OPENING SHEET APPEALS IN COURT SUBORDINATE TO

HIGH COURT

IN THE COURT OF DISTRICT JUDGE, EAST, KARKARDOOMA,

DELHI

APPEAL NO. _________ OF 2017

NUMBER AND DATE OF THE ORIGINAL SUIT

No. Date of Institution in first court : Suit No. 8109/2016

19.12.2001
Date of decision in the first court : 25.2.2017

Date of Institution of appeal : 26.3.2017

Value of sum and appeal

for purposes of jurisdiction : Rs. 1,08,500/-
Value of appeal for
purpose of court fee : Rs. 1,08,500/-
Amount of fee on appeal : Rs. 3,420/-

BSES YAMUNA POWER LIMITED

SHAKTI KIRAN BUILDING
KARKARDOOMA
DELHI …APPELLANT

VERSUS

SH. KALLU
R/0 D-5/17, NEW D-5/20
VIJAY COLONY, THIRD PUSTA
DELHI …RESPONDENT

Appeal filed by : Ritu Gupta & Hemant Gupta, Advocates

Appeal from the Judgement/decree/order of Ms. Sadhika Jalan, Civil Judge,

East, KKD, Delhi dated 25.2.2017.

Claim in Appeal : To accept the appeal with costs, set-aside the

impugned judgment and to dismiss the suit of the
plaintiffs/respondents.
BRIEF FACTS: -

1. Respondent (plaintiff in the suit) filed a suit for the Declaration and
Mandatory Injunction in respect of the inspection dated 19.07.05 and a bill
of an amount of Rs. 1,08,500/-. The bill was initially raised for an amount
of Rs. 1,44,691/- and was later reduced to Rs. 1,08,500/- on account of
settlement between the parties. However the respondent denies the factum
of settlement. The suit was filed in year 2005 bearing no. 466/06 titled as
“Sh. Kallu Vs BSES-YPL”.

2. The suit was decreed in favour of the respondent and against the
appellant vide judgment and decree dated 20.03.08 whereby it was held that
bill of Rs. 1,08,500/- is null & void and is unsustainable in law. It was
further held that respondent should be refunded the amount deposited i.e.
Rs. 1,08,500/- against the impugned bill, respondent be directed to transfer
the connection no. YV1250V7090340 in the name of the plaintiff, Sh.
Kallu.

3. Aggrieved by the impugned Judgment/Decree dated 20.03.08, the

appellant preferred an appeal and vide order dated 29.1.2010, the ld.
Appellate court set aside the order dated 20.03.2008 passed by the ld. Civil
Judge and the suit was remanded back for fresh consideration after re-
framing of issues and giving the parties an opportunity to lead additional
evidence.

4. After remanding back the matter, the issues were re-framed on

4.5.2010 and issue no. 6 was treated as a preliminary issue. The arguments
on the Preliminary Issue was heard and finally on 24.10.2016 the issue was
decided in favour of the plaintiff and against the appellate/defendant.

5. After deciding the preliminary issue, the final arguments were heard
on 8.2.2017 and the final judgement was passed on 25.2.2017 in favour of
the plaintiff and against the appellate/defendant.
6. Thus the present appeal is also filed under the provisions of order 43
rules 1A of CPC against the order dated 24.10.2016 whereby the
preliminary issue was decided in favour of the respondent and the Learned
court observed that it had jurisdiction to try and adjudicate the matter.

7. Aggrieved by the impugned order dated 24.10.2016 and

Judgment/Decree dated 25.02.2017, the appellant is preferring the present
appeal amongst other the following

GROUNDS

A. Because the impugned judgment/decree and the findings returned

therein by the Ld. Trial Court are wrong, untenable and manifest with
errors;

B. Because the Ld. Trial Court erred in law in holding that it has
jurisdiction to try and adjudicate the present suit wherein declaration is
sought in respect of theft of the electricity. It is submitted that the special
courts have been constituted for the purpose of providing speedy trial inter
alia in respect of cases covered under section 135 of The Electricity Act i.e.
cases pertaining to theft of electricity. Reference in this regard may be
made to judgment of Hon'ble High Court of Delhi, passed in a suit titled as
Sh. B.L. Kantroo Vs. BSES-RPL reported as 154 (2008) DLT 56 and
Deepika Kalara VS BSES, 2009(4) JCC2601, whereby it has been held
that jurisdiction of the Learned Civil Court in respect of matters related to
theft of electricity and bills raised in lieu thereof are barred;

C. Because the Ld. Trial Court erred in law by holding that it had
jurisdiction over the matter as the provisions of the Act were not complied
with;

D. Because the Ld. Trial Court erred in law by not appreciating that
only the court having jurisdiction over the subject matter has power to
adjudicate whether the provisions of law has been followed or not;
E. Because the Ld. Trial Court erred by holding that as no tracking
report was filed hence the respondent was not served with the inspection
report or the show cause notice;

F. Because the Ld. Trial Court erred by not appreciating that the
appellant had filed in original speed post postal receipts which were duly
exhibited hence there was presumption under the law that the respondent
was served, in any case the non service is of no consequence as the
respondent admitted of visiting the office of the appellant, of having
received copies of entire bunch of inspection reports, show cause notices
and speaking order and that documents like inspection report, speaking
order etc were filed by the respondent along with the plaint;

G. Because the Ld. Trial Court erred in law by holding that as the theft
of electricity falls under section 135 of the Electricity Act (THE ACT) and
as the case of respondent does not fall under section 145 of the Act, hence
the ld. Trial Court has the jurisdiction to try and adjudicate the suit;

H. Because the Ld. Trial Court erred in law by not appreciating that
order passed without jurisdiction is in nullity and hence the impugned order
is liable to be set aside. Reference in this regard may be made to judgments
titled as “Srikant Kashinath Jituri and Ors. Vs Corporation of the City of
Belgaum”, 1994(6) SCC 572 and “Harshad Chiman Lal Modi Vs DLF
Universal Ltd. & Anr”, 2005 (7) SCC 791;

I. Because the Ld. Trial Court erred in law by not appreciating that the
plaintiff was estopped from challenging the inspection and bill raised in lieu
thereof as the dispute was settled between the parties and the plaintiff had
voluntarily of his own free will had made the payment of settled amount ;

J. Because the Ld. Trial Court erred in law by not appreciating that
admittedly plaintiff was not present at the time of inspection hence his
evidence can not be taken into consideration;
K. Because the Ld. Trial Court erred in law by not appreciating that the
copy of the inspection report, load report and show cause notice were sent
to the consumer vide speed post receipt whereof was exhibited as DW 1/4;

L. Because the Ld. Trial Court erred in law by not appreciating that
DW1 and DW2 had in their examination in chief specifically stated that the
show cause notice along with copies of inspection report and load report
were sent to the consumer vide speed post receipt whereof was exhibited as
DW1/4;

M. Because the Ld. Trial Court erred in law by not appreciating that the
witnesses of the defendant were not even cross examined in respect of the
sending of show cause notice along with inspection and load report via
speed post;

N. Because the Ld. Trial Court erred in law by not appreciating that the
plaintiff in his cross examination had not denied the factum of receipt of
show cause notice along with inspection report and load report and had
only stated that he was not aware of the same;

O. Because the Ld. Trial Court erred in law by not appreciating that the
plaintiff had attended the personal hearing and had also signed the copy of
ration card, note sheet which were duly exhibited;

P. Because the Ld. Trial Court erred in law by not appreciating that the
plaintiff in his cross examination had admitted that he had not filed on
record the copy of ration card and also that the same was duly signed by
him;

Q. Because the Ld. Trial Court erred in law by not appreciating that the
personal hearing was attended by the plaintiff on 28.07.05;

R. Because the Ld. Trial Court erred in law by not appreciating that
DW2 in his examination in chief had specifically averred that personal
hearing was attended by Sh. Kallu who signed the note sheet and copy of
ration card in his presence;

S. Because the Ld. Trial Court erred in law by not appreciating that
DW2 was not even cross examined in respect of attending of personal
hearing by the plaintiff and signing of ration card and note sheet by him;
T. Because the Ld. Trial Court erred in law by not appreciating that in
the speaking order the factum of plaintiff attended the personal hearing was
duly mentioned and that plaintiff had duly received the copy of speaking
order;

U. Because the Ld. Trial Court erred in law by not appreciating that
though the plaintiff had specifically averred in his plaint that he had
received the copy of speaking order, he had nowhere pleaded in the plaint
that he had never attended the personal hearing as duly mentioned in the
speaking order;

V. Because the Ld. Trial Court erred in law by not appreciating that
the respondent had taken contradictory stand in para 4 of the plaint
regarding receipt of the speaking order. On the one hand he averred that he
received the speaking order on 28.07.05 and on the other hand he has
alleged that he received inter alia the speaking order after the payment of
the bill at the office of the appellant on 22.08.05;

W. Because the Ld. Trial Court erred in law by not appreciating that
show cause notice alongwith inspection report and load report were
received by the plaintiff on or around 23.07.05, personal hearing was
attended on 28.07.05 and the matter was settled on 22.08.05;

X. Because the Ld. Trial Court erred in law by not appreciating that
settlement was not arrived at under the threat as alleged as the settlement
was arrived at the reduced amount and also as the plaintiff had ample time
to consider the inspection report, load report, speaking order before
entering into any settlement with the appellant;
Y. Because the Ld. Trial Court erred in law by not appreciating that
DW2 had specially stated in his examination in chief that respondent had
voluntarily entered into settlement with the appellant and had also acted
upon the same by making the payment of the settled amount;

Z. Because the Ld. Trial Court erred in law by not appreciating that the
evidence of DW2 in respect of the settlement was unrebutted as he was not
even cross examined about the same;

AA. Because the Ld. Trial Court erred in law by not appreciating that
settlement was arrived on August, 2005 whereas the suit was filed four
months thereafter in December, 2005;

BB. Because the Ld. Trial Court erred in law by not appreciating that on
22.08.05 when the matter was settled the plaintiff had visited the office of
the defendant. On the said date there was neither any personal hearing nor
the respondent was admittedly called by the appellant;

CC. Because the Ld. Trial Court erred in law by not appreciating that the
plaintiff had never made any representation and/or complaint in respect of
the threats and/or the payment made in lieu of the settlement except for the
filing of the suit after the four months of the settlement;

DD. Because the Ld. Trial Court erred in law by holding that principle of
the estoppel was not applicable as the demand raised by the appellants were
illegal;

EE. Because the Ld. Trial Court failed to appreciate that the demand
was reduced or to say the original bill raised by the appellant was reduced
as the parties negotiated and settled the dispute of their own free will and
hence estopped to challenge the same;
FF. Because the Ld. Trial Court erred in law by not appreciating that the
relief of mandatory injunction could not be granted to the respondent as the
respondent had voluntarily made the payment in lieu of the settlement
between the parties;

GG. Because the Ld. Trial Court erred in law by not appreciating that the
in order to establish the case of DAE it is not mandatory to find some
artificial means inside the meter body as what is required that the meter is
tampered in order to slow down the recording of the electricity current
passing through it with the dishonest intentions;

HH. Because the Ld. Trial Court erred in law by not appreciating that the
electricity meter which was a single phase electro-mechanical meter was
found badly tampered, both half seals of the meter body were tampered and
the upper and base cover of the meter was disturbed and re-fixed;

II. Because the Ld. Trial Court erred by not appreciating that as per the
Electricity Act read with Regulations, a case of DAE established where the
consumer has accessibility to the internal mechanism of the metering
equipment;

JJ. Because the Ld. Trial Court erred by not appreciating that the
plaintiff had access to the internal mechanism of the meter in respect of
which DAE has been established;

KK. Because the Ld. Trial Court erred by not appreciating that as per the
definition of DAE, it includes the other means adopted by consumer to
cause the meter to stop. Thus the definition is inclusive and not exhausted;

LL. Because the Ld. Trial Court erred by not appreciating that when the
meter is tampered with the probability of it slowing down increasing which
further establish and/or to say conclusively establish on the study of the
consumption pattern which in the present case was 39.07%;
MM. Because the Ld. Trial Court erred in law by not appreciating that on
inspection the connected load was found to be 7.120-KW which was duly
proved by the witness of the defendant DW1;

NN. Because the Ld. Trial Court erred in law by not appreciating that
plaintiff had not specifically denied that the connected load;

OO. Because the Ld. Trial Court erred in law by not appreciating that the
vague denial is no denial in the eyes of law;

PP. Because the Ld. Trial Court erred in law by not appreciating that the
defendant’s witness was not even cross examined in respect of the
connected load found at site. Infact the DW1 had specifically stated that in
his cross examination that he found the load of 7.120-KW at site;

QQ. Because the Ld. Trial Court erred in law by not appreciating that the
consumption pattern was not challenged and/or disputed by the plaintiff;

RR. Because the Ld. Trial Court erred in law by not appreciating that
defendant’s witness was not even cross examined in respect of the fact that
recorded consumption was only 39.07% of the assessed consumption;

SS. Because the Ld. Trial Court erred in holding that the principles of
natural justice were not followed;

TT. Because the Ld. Trial Court has failed to appreciate that even the
internal mechanism of the meter was assessable to the consumer;

UU. Because the Ld. Trial court failed to appreciate that the ratio of the
cases as referred to in the impugned order are not applicable to the present
case. The Hon’ble Supreme Court in catena of judgment has held that
judgment passed in the facts of a particular case can be applied only to a
case of same or similar facts and not otherwise;
VV. Because the Ld. Trial Court erred in law by not appreciating the
evidence recorded on behalf of defendant;

WW. Because the Ld. Trial Court erred in law and in fact by holding that
there was no conclusive proof or evidence with the defendant that the
plaintiff indulged in DAE;

XX. Because if the impugned judgment/decree dated 20.03.08 is allowed

to stand there would a grave miscarriage and travesty of justice;

YY. The order of the Ld Trial Court is against the fundamental principle
of judicial procedure as the relief granted is beyond the relief prayed for by
the respondent.

8. The present appeal has been filed within a period of limitation. The
impunged order is dated 25/2/2017. The certified copy of the same was
applied on 03/03/2017 which was received on 17/03/2017. The period of
thirty days after excluding the time taken in getting the certified copy of
order would expire on April 11, 2017 and the present appeal has been filed
on April 11, 2017 is well within a period of limitation.

9. It is therefore, respectfully prayed that this Hon'ble court may kindly

be pleased to set-aside the impugned decree/judgment dated 25.02.2017 and
order dated 24.10.2016 passed by the Ld. Trial Court in suit no. 8109/16 by
accepting the appeal of the appellant and to dismiss the said suit, titled as
“Sh. Kallu Vs BSES-YPL” decided by Ld. Civil Judge, Delhi.

10. Any other relief as this Hon'ble court may deem fit and proper be
also passed in favour of the appellant and against the respondent.

APPELLANT
BSES-YPL
 THROUGH

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 11.4.2017 ADVOCATES
 IN THE HON’BLE COURT OF DISTRICT JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /
IN THE MATTER OF:

BSES-YPL …APPELLANT

VERSUS

SH. KALLU …RESPONDENT

APPLICATION UNDER ORDER 41 RULE 5 R/W SECTION 151 OF

CPC ON BEHALF OF BSES-YPL

MOST RESPECTFULLY SHOWETH:

1. That the appellant has filed the accompanying appeal against the
impugned decree/judgment dated 25.02.2017 and order dated 24.10.2016
passed by the Ld. Trial Court in suit no. 8109/16 titled “Sh. Kallu Vs
BSES-YPL”. The averments made in the said appeal may kindly be read as
part and parcel of this application and the same are not repeated herein for
the sake of brevity.

2. That the appellant has a good prima facie case in its favour and there is
every likelihood to succeed in it, balance of convenience is in favour of the
appellant and against the respondent and in case the operation of the
impugned order dated 25.2.2017 is not stayed during the pendency of the
accompanying appeal, then the appellant shall suffer irreparable loss and
injury in terms of public revenue.

It is, therefore, respectfully prayed that this Hon'ble court may kindly be
pleased to suspend/stay the operation of the impugned order dated 25.02.17
passed by the Ld. Trial Court in suit no. 8109/2016 the final disposal of the
appeal.

APPELLANT
BSES-YPL

THROUGH
DELHI RITU GUPTA & HEMANT GUPTA
DATED:11.4.32017 ADVOCATES
 IN THE HON’BLE COURT OF DISTRICT JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /

IN THE MATTER OF:

BSES-YPL …APPELLANT
VERSUS

SH. KALLU …RESPONDENT

AFFIDAVIT

I, Mukesh Kumar, Legal Officer of BSES-YPL presently working at Legal

Cell of BSES-YPL at Shakti Kiran Building, Karkardooma, Delhi do
hereby solemnly affirm and declare as under:-

1. I am LO of BSES-YPL, am well conversant with the facts of the

case and as such am competent to swear this affidavit.

2. I say that the contents of the accompanying application has been

drafted under my instructions on the basis of the record of the
appellant and legal information received & believed to be true and
correct.

3. I have read and understood the contents of the accompanying

application, the contents of the same be read as part and parcel of
this affidavit and the same are not being repeated herein for the sake
of brevity.

DEPONENT

VERIFICATION:
Verified at Delhi on this 11th day of April, 2017 that the contents of my
above affidavit are true and correct to my knowledge; no part of it is false
and nothing material has been concealed therefrom.

DEPONENT
 IN THE HON’BLE COURT OF DISTRICT JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /

IN THE MATTER OF:

BSES-YPL …APPELLANT
VERSUS

SH. KALLU …RESPONDENT

AFFIDAVIT

I, Mukesh Kumar, Legal Officer of BSES-YPL presently working at Legal

Cell of BSES-YPL at Shakti Kiran Building, Karkardooma, Delhi do
hereby solemnly affirm and declare as under:-

1. I am LO of BSES-YPL, am well conversant with the facts of the

case and as such am competent to swear this affidavit.

2. I say that the contents of the accompanying appeal have been drafted
under my instructions on the basis of the record of the appellant and
legal information received & believed to be true and correct.

3. I have read and understood the contents of the accompanying appeal,

the contents of the same be read as part and parcel of this affidavit
and the same are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:

Verified at Delhi on this 11th day of April, 2017 that the contents of my
above affidavit are true and correct to my knowledge; no part of it is false
and nothing material has been concealed therefrom.

DEPONENT
 IN THE HON’BLE COURT OF DISTRICT JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /2017

MEMO OF PARTIES

BSES YAMUNA POWER LIMITED

SHAKTI KIRAN BUILDING
KARKARDOOMA
DELHI …APPELLANT

VERSUS

SH. KALLU
R/0 D-5/17, NEW D-5/20
VIJAY COLONY, THIRD PUSTA
DELHI …RESPONDENT

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 11. 04.2017 ADVOCATES FOR BSES-YPL
 IN THE HON’BLE COURT OF DISTRICT JUDGE, EAST,
KARKARDOOMA, DELHI

APPEAL NO. /

IN THE MATTER OF:

BSES-YPL …APPELLANT
VERSUS

SH. KALLU …RESPONDENT

INDEX

S.NO PARTICULARS PAGE NOS.

1. Memo of Parties A
2. Opening Sheet B
3. Grounds of appeal with affidavit in 1-
support thereof

4. Application for stay

5. Affidavit in support of the

applications

6. Certified copy of impugned order

dated 25.02.2017.

7. Certified copy of order dated 24.10.16

8. Vakalatnama

DELHI RITU GUPTA & HEMANT GUPTA

DATED: 11.04.2017 ADVOCATES FOR
BSES-YPL