JUDGMENT
R.C. Lahoti, J.
(1) This common judgment shall govern the disposal of suit No.2565- A/92 M/s.Matsya Metal Udhyog VS. Desu and S.No.2572A/92 M/s. Shubh Metal Pvt. Ltd. Vs. Mcd, In both the suits common question of facts and law arise.
(2) M/S.MATSYA Metal Udhyog; Pvt.Ltd. is a large industrial power (LIP) consumer. It has connection No.X-10191001821. For the year 1991-92 it paid all the bills received by it. On 14.7.92, it received a supplementary bill raising a demand of Rs.l,35,388.88p on account of supplementary fuel bill due to enhancement of rate from .96 to 3.93p per unit for the period April, 1991 to February, 1992. The bill was payable on or before 20.7.92. On 21.7.92 it filed the present petition under Section 20 of the Indian Arbitration Act, 1940 registered as S.No.2565A.00 92.
(3) M/S-SHUBH Metal Pvt. Ltd. is also a large industrial power consumer having connection NO.X-10191001171. It had paid all the bills for the year 1991-92. On 16.7.92 it received a bill for Rs.l,6.6,634.00 on account of supplementary fuel bill due to enhancement of rate from .96 to 3.93p per unit for the period April, 1991 to February, 1992. Bill was payable on or before 17.7.92. It filed the petition under Section 20 of the Arbitration Act, 1942 on 21.7.92.
(4) In both the cases, the petitioners have raised a dispute whether the respondent-DESU is entitled to claim the amount of impugned bill and sought for reference of the same to the arbitrator under the Arbitration Clause. The defense raised by the Desu is that in the monthly bills provisional demand on account of fuel adjustment charges was raised. At the end of the year calculation ‘of actual fuel adjustment charges was made: Supplementary bill was issued for the amount of difference. There is nothing illegal in it and no dispute arises worth being referred for adjudication by arbitration.
(5) Clause 18 of the Tariff 1991-92 reads as under :- “xviii)The tariff for the Large Industrial Power and non-domestic Mixed load (HT) consumers and Railway Traction will be subject to adjustment as under :- a) The energy charges specified in this schedule are , on the average fuel and purchase cost of 107 paise per KWH. b) The actual oost of fuel used during any period shall be the amount in rupees of the cost of all types of fuel burnt in Undertakeing’s generating plants (including gas turbines) in that period; c) The actual cost of energy purchased shall be the amount paid in rupees for import of energy for that period; d) The fuel and purchase cost of energy per Kwh sold shall be the quotient computed on dividing the sum of (b) and (c) by the Kwh sold during that period; e) The increase or decrease in fuel and purchase cost of power Kwh sold shall be the difference of (d) and (a) above and accordingly shall be added or subtracted to the energy charges; Final adjustment on account of variation in energy charges will be made as soon as possible after the close of the period of account, but adjustment as may be provisionally fixed by the Desu Management from time to time will be incorporated as a part of the monthly bill and shall be payable by the consumer. Such provisional rates as and when finalised shall have retrospective effect from the beginning of that financial year-”
(6) It is contended by the learned counsel for the petitioners that the demand is unconstitutional in as much as the Tariff levies demand on account of fuel adjustment charges only on Lip consumers which is discriminatory. Secondly it is submitted that the petitioners had fixed prices of their products by taking into account the demands raised by Desu month by month and the Desu should be deemed estopped from raising such demands in as much as petitioners would not be able to pass on the burden of additional demand to their customers which would render the additional demand confiscatory in nature. In any case it is a dispute liable to be referred for adjudication by arbitrator.
(7) In so far as the question of constitutional validity of the demand is concerned there are several impediment in the way of the petitioners to the contentions being entertained. Firstly, this Court is hearing a petition under Section 20 of the Arbitration Act wherein neither this Court would examine the constitutional validity of the demand nor would refer such a question to be answered by the arbitrator. Secondly, in view of the law laid down by their Lordships of the Supreme Court in M/s.]ain Exports Pvt.Ltd. VS. UniOn.of India, , M/s.Hindustan Zinc Ltd. VS. Andhra Pradesh State Electricity Board and Ors., and Division Bench decisions of this Court in M/s Matsya Metal Udhyog Pvt.Ltd. VS. M.C.D. (DESU) 44(1991) Dlt 33, (para 13) and Delhi Cloth Mills Vs Mcd Air 1989 Delhi 30, the validity of the demand is no more res Integra and stands concluded as valid and legal. The Tarriff quoted hereinabove itself contemplate a consumer being billed provisionally for demand on account of fuel adjustment charges subject to revised and final demand on the rates being finalised after the close of the financial year. The Tariff permits the finalised rates being given effect to retrospectively from the beginning of the financial year. This is the view taken in a recent decision of this Court in M/s.Sagar International Pvt.Ltd. VS. Municipal Corporation of Delhi, S.No-2512/92 decided on 5.9.94. In the face of tariff the dispute cannot be raised. Tariff is statutory ( See – M/S Suri & Suri Ltd v. Desu, Air 1992 Delhi 351). Interpretation of tariff or judging in its validity” cannot be left to arbitrator.
(8) As there is nothing like a dispute capable of being referred to the arbitrator, both the petitions are held liable to be dismissed.
(9) S.NO.2565A/92M/S.MATSYA Metal Udhyog is dismissed. With that the IAs No-9720/92, 9455/92, 9455/92 which were filed for seeking interim reliefs are also dismissed.
(10) S.NO.2572A/92 M/s. Shubh Metal Pvt.Ltd. VS. Mcd is dismissed. With that the lAs 9740/92 which was filed for seeking interim relief is also dismissed.
(11) All the interim orders passed in both the suits also stand vacated. The petitioners may, however, satisfying the demand raised by impugned bills within two weeks and till then their electric supply shall not be disconnected.
(12) One copy each of this judgment shall be placed on the record of the two suits.
