ORDER
J.D. Kapoor, J.
1. This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (in short ‘Act’) seeking interim protection by way of restraining the respondent from in any manner recovering the amount of Rs.10,51,737.60 raised in the impugned bill either directly or indirectly and also from disconnecting, altering or otherwise affecting the continuous supply of electricity to the petitioner under the agreement dated 22/24 November, 1999 during the pendency of the arbitration proceedings.
2. By way of an experiment the respondent Delhi Vidyut Board (in short Board) decided to engage an agency or individual for getting the job of revenue Realizing from persons using electricity from the source in the designated area on the basis of payment of commission for the services rendered by the said agency or individual. In the instant case, the respondent-Board entered into an agreement with the petitioner Smt. Baby Arya in respect of designed H Block Sangam Vihar, New Delhi. The petitioner agreed to pay minimum revenue of 75% of the electricity recorded in the meters provided by respondent board jointly read on monthly basis. Clause 7 of the agreement provides that in the event of default respondent-Board will be entitled to terminate the agreement and the party committing an event of default which is capable of being remedied will be given a reasonable opportunity to remedy the default by a written notice. It was further agreed that petitioner shall indemnify respondent board against any claims. demands, costs and expenses whatsoever which may be against it because of failure of the petitioner or its representative int he performance of their duties and negligence, any accident or injury to any person or timely payment to any employee.
3. However, on 25.9.2000, a bill for the amount of Rs.10,51,737/- was received by the petitioner stating therein that payment should be made by 26th September, 2000 with the threat that FIR will be lodged in case of non-payment of bill before the due date.
4. Admittedly, this bill was not a regular bill like other bills which were received by the petitioner in the past. It was a provisional bill which according to the respondent was on a account of fraudulent abstraction of electricity.
5. According to the petitioner, the agreement does not contemplate any provisional billing as the respondent-Board had been raising actual bills on meter reading basis and payments against, each bill were made without any delay or default.
6. According to the respondent-Board, the petitioner was engaged to cater to 392 dwelling units in the area but she arbitrarily extended its supply to about 900 dwelling units without the permission and extension of the agreement on these lines and was found committing theft of electricity as well as cheating for which a report has already been lodged with the local police. The petitioner has collect huge amount from these unauthorised consumers by not supplying electricity to the original consumers for whose benefits connections were given. However, the petitioner had also made an agreement for the inclusion of 172 dwelling units.
7. On 28.7.2000 for the purpose of recording the consumption on electricity supplied to the consumers, meter was checked by the Meter Testing department. The Meter Testing department found the following pilferage showing theft of electricity by the petitioner.
“a) One seal of CT/PT terminal cover found tampered, where other seal was found intact and O.K. also lower being found missing.
b) Meter chamber door seal found intact and OK.
c) Full seal found intact and OK.
d) Potential on the meter terminal for ‘Y’ phase was not available which was found disconnected. On checking after removing the seals of the CT/PT terminal covers it was also observed by the team that meter was recording 5- per cent less consumption due to disconnection/missing of Y phase potential. This was checked on 28.7.2000 and resealing was also done on the same day,”
8. According to the respondent-Board, the question of getting the dispute arbitrated upon does not arise as the dispute has not arisen out of agreed terms of the agreement between the parties as the impugned bill was raised towards the fraudulent abstraction of electricity by way of committing theft and therefore the present petition is not maintainable.
9. A party is entitled to a relief under Section 9 of the Act if there is a condition precedent to the relief and such a relief emanates from the terms of the agreement. Any dispute which is not subject matter of the terms of agreement is beyond the purview of arbitration. A party or a person is entitled t o interim protection if action of the other party is either in breach of the terms of the agreement or militates against equity, fair play or principles of natural justice, otherwise not.
10. In the instant case dispute as claimed by the respondent is no account of fraudulent abstraction of electricity and not on account of regular bills or actual consumption or as per terms of the agreement. The petitioner has not pointed out which of the teams of the agreement has been breached by the respondent. However, provisional bill served upon to the petitioner itself shows that bill was on account of fraudulent abstraction of electricity. It also warned that if payment was not made before the due date, FIR would be lodged. The very fact that inspection of meter was made in the presence of the petitioner and pilferage was detected by the inspecting Agency prima facie that the impugned bill was towards the fraudulent abstraction of electricity. Had it not been so, the question of lodging of FIR would not have arisen. As a mater oath the fact , the respondent-Board should have lodged the FIR besides calling upon the petitioner to make payment as demanded.
11. Since the consumption of electricity by the petitioner on account of fraudulent abstraction does not come within the ambit of dispute arising from either breach or non-compliance of the terms of the agreement between the parties relief sought by petitioner is not available under the provisions of Section 9 of the Act.
12. Unless and until petitioner succeeds in bringing the nature of dispute and differences within the ambit of agreement and terms and conditions, no relief can be granted under the previsions of Section 9 of the Act. Petition is devoid of merit and is hereby dismissed.
