JUDGMENT
S.N. Sapra, J.
(1) By this order, I propose to dispose off an application, filed under Order 39 Rules I and 2, read with Section 151 of Civil Procedure Code, whereby petitioner has sought directions to respondents, to restore electric supply to the premiles, G-6, Udyog Nagar, New Delhi.
(2) In brief, the facts leading to the institution of the present proceedings, are as under :-
(3) Petitioner has filed a petition, under Section 20 of the Arbitration Act, Arbitration 1940, for filing of the agreement in Court, and reference of disputes to the arbitrator.
(4) Petitioner has been carrying on the business of production of Slab casting at premises No. G-6, Udyog Nagar, Delhi. Respondent no. 2 has given to petitioner, electricity connection of 2820 KWs.
(5) During the course of business, the employees of respondents have been conducting various inspections, fr(r)m time to time and, found the working of the petitioner’s factory in order in all respects. Respondents are also maintaining the record of inspection and, according to petitioner, in the inspection books, it has been duly recorded that the electric connection was working inorder. Petitioner has been paying the bills regularly, as raised by respondent no. 2.
(6) The bills of the petitioner, for a considerable period, had varied between. Rs.l,70,000.00 to Rs. 2,50,000.00 . Petitioner never defaulted in payment of the bills.
(7) Respondent no. 2 threatened to disconnect the electric supply of the petitioner’s premises, without any basis. This resulted in the filing of a suit, by petitioner, in the court of the Senior Sub ‘Judge,, Delhi. After this, respondent no. 2 disconnected the power connection, of the petitioner, with a view to frustrate the suit.
(8) From the beginning, petitioner had installed another furnace, that is an alternate furnace. This furnace is primarily for the reason, that petitioner was carrying on the work, which was continuous for complete heating period.
(9) It is alleged that staff of respondents raided the premises of. petitioner, and on the ground that, the seals of the meters had been broken/ tampered with, a bill for Rs. 5,53,75,978,86 was raised by respondent no. 2.
(10) Vide its order dated November 5, 1988, the learned Sub Judge stayed the operation of the aforesaid bill, subject to the payment of Rs. 5 lakhs, by petitioner. In the appeal, filed by respondents, order of the learned Sub Judge was upheld by the learned Additional District Judge, vide its judgment dated December 5, 1988. Against this order, respondents filed a civil revision, being No. 744 of 1988, in the High Court of Delhi. While disposing of the Civil Revision, vide order dated December 21, 1988, the Court increased the amount of Rs. 5 lakhs to Rs. 20 lakhs and the stay was continual.
(11) The suit is still pending in the trial court, in respect to the afore- said bill for Rs. 5,53,75,978.86.
(12) During the pendency of civil revision, Mr. Justice S.B. Ward appointed Chief Electrical Inspector, Delhi Administration, as a Commissioner, with a view to find out the duration of the supply of electricity, to the petitioner’s factory. The Commissioner, submitted his report, copy of which is annexure-III.
(13) It is the case of petitioner, that the electricity to the entire premises of petitioner, was being supplied only 8 hours per for day. Petitioner was operating on a single shift basis. In the presence of the Commissioner, the officials of respondent no. 2 slated that the electricity was being supplied to petitioner, only for a period of 8 hours perday. The Court, thus, directed that the electricity would be supplied to petitioner for 8 hours
(14) It is further alleged by petitioner, that right from 1988, petitioner was receiving the electricity for a period of 8 hours a day and for the remaining part of the day, no power supply, for the purpose of running the machines of the petitioner company, was being supplied by respondent no. 2.
(15) In spite of the order, passed in the Civil Revision No. 744 of 1988, respondents threatened to take action against the petitioner, for disconnecting the electricity on the same bill, or take such other action. As a- result of such action, petitioner was compelled to file a writ petition, which was disposed off and it was held that the bill of Rs. 5 crores & odd would remain stayed and from subject matter of the suit.
(16) In the meanwhile, respondent no. I increased the Tariff of minimum demand charges, from Rs. 40 to Rs. 340.00 per Kva, with effect from May 23, 1989. This was challenged in the High Court of Delhi, by means of various writ petitions, which, were dismissed by the Division Bench of this Court. Now, the matter is pending before the Supreme Court of India.
(17) The agreement, between the. parties, contains Clause 15(b) for reduction/deduction, an account of load shedding, breakdown, peak load cut. and other cases, when no electricity is supplied by respondent No. 2 itself. Petitioner was permitted to run its factory only for 8 hours and, consequently for the remaining 16 hours a day, no minimum consumption charges, can be charged, on the basis of 24 hours a day. According to petitioner, the cause of action lastly arose, when the petitioner received a bail] for Rs. 72.44,934.16, satiable on March 3, 1990. Respondent No 2 has disconnected the electric supply to the premises of the petitioner, for the non-payment of the bill for Rs. 72,44,934.16.
(18) At present, am dealing with only the bill for Rs. 72,44,934 16.
(19) In reply, the allegations made by petitioner, have been denied. There are two universally recognised methods of charging, in relation to the petitioner, being a two part tariff which comprises of (a) Energy charge and (b) Re and charges (Minimum consumption charges). The manner and method of charging in such that in the., event, the energy charges exceed the demand charges, then, the demand charges get merged with the energy charges. If, however, the energy charges are lower than the demand charges, petitioner is required to pay the demand charges in addition to the order charges applicable.
(20) Respondent no. 2 has specifically stated that petitioner is being supplied electricity, for 24 hours. In the additional affidavit, filed by respondent no. 2, the details, with regard to non-supply of electricity, on account of break-down etc. have been denied.
(21) It may be noticed that vide order dated April 4, 1990, Santosh Duggal, J dismissed the petitioner’s application, being I.A. No 2822/90, on the ground, that the order, which was being sought by petitioner, would tantamount to the modification of the order, passed by the Supreme Court of India..
(22) Against this order, petitioner filed a Special Leave Petition, before the Supreme Court. Vide order dated April, 12, 1990, the Lordships of the Supreme Court set aside the aforesaid order and held that the High Court should examine the prayer for stay, and not decline to consider the matter, on the ground, that the same was covered by the earlier orders of the Court. Accordingly, the interlocutory application was remained to this Court, for further consideration.
(23) While considering the prayer for grant of temporary injunction the Courts take into consideration, three principles, namely, whether plaintiff has got a good prima facie case ; in whose favor the balance of convenience lies and whether plaintiff will suffer irreparable loss and injury, i.f the injunction, as prayed for, is not granted
(24) Mr. Kapil Sibal, learned Additional Solicitor General, appearing for respondents, contends that vide order dated May 10, 1990, Mr. Justice R.L. Gupta, disposed of various identical applications, in different suits/petitions, filed by various other persons, for similar relief sand on stay was granted. The present application is fully covered by the aforesaid order, as such, the same is liable to be dismissed
(25) Mr. M.L. Varma, learned counsel for petitioner, on the other hand, urges that the case of petitioner is different from the other tenons, whose applications have been..decided by Mr. Justice R.L. Gupta.
(26) The present application, filed by petitioner, was also listed before Mr. Justice R.L.Gupta who linked the application, of petitioner, from the applications, filed by other parties. It appears that the case of the. present petitioner was considered different, from the others.
(27) Moreover, taking into consideration the background of the present case of the petitioner, the previous litigation, between the parties and the order, passed by S.B. Wad, J. in Civil Revision No. 744/88. I am of the view that the case of the petitioner is not identical with those, whose applications have been disposed off, vide order dated May 10, 1990, by Mr. Justice R.L. Gapta.
(28) Now, the question, which arises for determination, is whether petitioner has a good prima facie case. In other words, petitioner has to show, of course prima fade, that respondent no. 2 was not supplying electricity for more than 8 hours a day and as such, under Clause 15(b) of the Agreement petitioner is entitled to reduction and adjustment.
(29) Petitioner has raised various disputes, in the petition, under Section 20 of the Arbitration Act, 1940, for reference to the arbitrator. Clause 15(b) of the agreement reads as under :-
“15(B) If at any time the consumer is prevented from receiving or using electrical energy to be supplied under this agreement whether in whole or in part owing to all or any of the causes mentioned in Clause 5 of this agreement or if the Undertaking is prevented from supplying or is unable to supply such electrical energy owing to all or any of these causes then the minimum charge payable by the consumer shall be reduced in proportion to the ability of the consumer to take, or Undertakings to supply such power.”
In M/s Northern India Iron and Steel Co. and ors v. The State of Haryana and another, AIR. 1976 Supreme Court, f 100 their Lordships of the Supreme Court held: “Under Clause 4(f) she consumer is entitled to a proportionate reduction of demand charges in the event of lock out, fire Or any other circumstances considered by the supplier beyond the control of the consumer ; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge. The circumstance of power put which disabled the Board to give the full supply to the appellant because of the Government order under Section 228 of the 1910 Act, undoubtedly would be a circumstances which disabled the consumer from consuming electricity as per the contract. And this was circumstance which was beyond its control, and could not be considered otherwise by the Board. It entitled the consumer to a propagate reduction of the demand charges. This interpretation of sub clause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on alt hands. In our opinion it is so. In a circumstance like this, it is plain, the obligation o! the consumer to serve at least 3 days’ notice on the supplier as per the latter part of sub-clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days duration. 9. We are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume. The monthly demand charge for particular month will have to be assessed in accordance with Sub-clause (b) of clause 4 of the tariff and there from a proportionate reduction will have to be made as per Sub clause (f). We hope, in the light of the judgment, there .will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period. In case of any difference or dispute as to the quantum of the demand charge or the proportionate parties will be at liberty to pursue their remedy as may be available to them accordance With law.”
It may be worthwhile to notice that respondent No. 2 raised a bill for the sum of Rs. 5,53,75,978.86, and aggrieved by the same petitioner filed a civil suit, in the subordinate court, Delhi The operation of the bill was stayed, on the deposit of Rs. 5 lakhs. The appeal of respondent was dismissed by the learned Additional District Judge, Delhi.
(30) Against that order, respondents filed a Civil Revision. In order to determine the question with regard to the duration of electricity supply in a day: S.B. Wad, J. vide order dated December 9,1988. appointed Mr. Khanna, Chief Electrical Inspector of the Delhi Administration, to supervise the trial run of the factory of petitioner from 11th December, 1988 to 18th December, 1988 and respondent no. 2 was also directed to provide power supply during these days for only 8 hours a day. The Chief Electrical Inspector, has filed his report. In his report, he has held :
“STATEMENTS showing the readings of both the matters for 8 hours trial run recorded on 15-12-1988; 16-12-88; 17-12-1988; and 18-12-1988 areplacedataiincxures’F’,’G’,H’ and ‘I’ respectively. Statements showing the production of slab castings for daily for 8 hours on J5-12-1988 to 18-12-1988 are placed at Annexures J.K.I.. and M respectively. The consolidated record of production on 12-12-1988, 15-12-1988 ; 16-12-1988 ; 17-12-1988 and 18-12-1988 is placed at Annexure ‘N’. The total consumption of electricity for six days of trial run for 8 hours a day for one furnace works out to 37380 Kwh (as per the consumption meter).
(31) On the basis of the report, the Civil Revision was disposed off and it was held that the order, with reward to the re-connection of the electricity, be maintained, but the present petitioner should deposit a sum of Rs. 20 lakhs with Desu, to be adjusted in the bills, that were pending. .
(32) Mr. Sibal contends that after this order, the bills for the subsequent 3 months were raised, on the basis of the supply of electricity for 24 hours a day and petitioner, without any protest, has made the payment. This according to him, proves that petitioner was receiving electricity for 24 hours a day.
(33) On the other hand, Mr. Varma urges that till March 31, 19S9, the minimum consumption guarantee charges, for large industrial power consumers were levied at the rate of Rs.. 40.00 per KVA. The same was enhanced, with effect from April 1, 1989, to Rs. 340.00 per Kva per month. Till March 31, 1989, this minimum consumption guarantee charges did not bother the petitioner and, therefore, petitioner was not concerned, whether power supply was given to them for K hours or for more hours. During the period of running the factory for 8 hours, petitioner could achieve the target neutralising the minimum consumption guarantee charges and, therefore, there was no question of claiming the proportionate reduction, undead clause 11(b) of the agreement as, the consumption of power and the bills turn Units consumed, were always more than the figure for the minimum guarantee charges, at the rate of Rs,. 40.00 per Kva per month. Under these circumstances, Mr.Varma submits that petitioner had been making payment for the bills, for the month of December, 1989 onwards. A detailed affidavit has been filed by petitioner, in this regard.
(34) In order to show that petitioner was getting electric supply for 8 hours a day, it has been alleged that Labour Inspector has been inspecting the premises; Excise Department has computed the production and charged excise duty, which would indicate that production and functioning could not be more than 8 hours per day.
(35) Taking into consideration the fact, that in the aforesaid Civil Revision, S.B. Wad, J. appointed the Chief Electrical Inspector, for the purpose of finding out the consumption of electricity, in a day, and the report of the Chief Electrical Inspector, I am of the view that petitioner has been able to make out a prima-facie case. This may be noticed that the subject matter of the present case, is different from the subject matter of the Various Special Leave Petitions, now pending before the Supreme Court.’
(36) Ultimately, these disputes, including the ones, with regard to actual supply of electricity per day, the proportionate reduction/deduction, shall be decided by the arbitrator. ‘
(37) Petitioner will suffer an irreparable loss if, petitioner is made to pay the entire amount of the bill dated March 3, 1990.
(38) The balance of convenience also lies in favor of the petitioner.
(39) Under the facts and circumstances of the case, I direct that in case, petitioner deposits a sum of Rs. 14 lakhs, within two weeks from today with respondents, then, respondents shall restore the electric supply to petitioner’s premises, i e. G 6, Udyog Nagar, New Delhi, within 5 days from such deposit This payment will be without prejudice to the respective rights and contentions of both the parties.