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Judgment
Valmiki J Mehta, J.
I.A. No. __________/2000 in CS(OS) No. 2150/2000
This application contains the objections under Sections 30 and 33 of the Arbitration Act, 1940 on behalf of the respondent to the Award of the sole Arbitrator dated 23.8.2000. This application is not numbered. Let this application be numbered by the registry.
The only objection which has been urged by counsel for the objector to the Award, is with respect to the findings on issue No. 5, whereby the respondent has been directed to refund the minimum guarantee charges for the period for which the objector did not supply the electricity to the petitioner on account of a fire in the premises of the petitioner.
The counsel for the objector has contended that the Award is liable to be set aside because neither of the conditions mentioned in Clause 15 (b) read with Clause 5 of the agreement between the parties apply to the facts of the case and it is only on finding the existence of the causes as mentioned in these clauses that the claim of minimum guarantee charges can be suspended. What is in fact argued is that when electricity cannot be supplied for reasons beyond the control of the objector, only in such cases, there is a proportionate reduction of the minimum guarantee charges, and not if the objector deliberately disconnects the electricity supply.
I am afraid, I am unable to agree with the contentions of the counsel for the objector. No doubt Clauses 15(b) and 5 of the Contract pertain to non- charging of minimum guarantee charges on account of the inability of the objector to supply electricity for reasons beyond his control, however, it is very much implicit in these clauses that if the objector deliberately refuses to supply electricity although there is no breach/fault of the consumer, and in fact switches off the electricity supply from the feeder point, then and (I fail to understand as to how it can be otherwise) the objector cannot continue to claim minimum guarantee charges. The concept of claim towards minimum guarantee charges is predicated on the basis that the objector wants to and is capable of supplying electricity, however either it cannot supply because of reasons beyond its control or the consumer does not take deliberately the electricity supply. In the facts of the present case, the admitted position is that the objector in fact consciously, deliberately and purposely switched off the electricity supply. If that be so, I do not understand as to how can the minimum guarantee charges be claimed, because it is not that the objector wanted to supply and the petitioner did not want to take the supply. The Arbitrator rightly has relied upon a Division Bench judgment of this Court reported as Matsaya Metal Udyog (P) Ltd. Vs. Municipal Corporation of Delhi (DESU), and its para 22 which is reproduced as under:
As regards the minimum guarantee charges it was held in Bihar State Electricity Board, Patna and Others Vs. Green Rubber Industries and Others, the stipulation to pay minimum guaranteed charges, irrespective of whether energy was connected or not is not ultra vires. It will have to be seen as to whether the supply was disrupted because of the default of the consumer or of the Department. In case the supply was disrupted for any reason or default on the part of the consumer then obviously the respondents are entitled to minimum guarantee charges. However, in case it is shown that the disruption was because of the respondents and for no fault of the consumers, then obviously the respondents are not entitled to raise a bill of even minimum guarantee. This being a disputed question of fact can be raised in arbitration proceedings if the consumers so like.
It is quite clear from this judgment that once disruption takes place on account of the objector who supplies electricity, then, it is not entitled to raise the bills of minimum guarantee. No judgment to the contrary has been brought to my notice by counsel for the objector.
Accordingly, I do not find that the Arbitrator has at all misconducted himself or the proceedings. In fact, the Arbitrator has acted in accordance with law by not allowing the minimum guarantee charges for the period during which the objector deliberately failed to supply electricity and in fact switched off the electricity from the feeder point.
The counsel for the petitioner also sought the relief of reduction in the rate of interest but when he was asked to point out any objection taken to this effect in the objections filed, he fairly conceded that no such objection was taken. Also, the rate of interest awarded by the arbitrator is in the facts of the case quite reasonable at 12%, and therefore, on merits also, and especially in view of no objections having been taken, I am not inclined to interfere in the peculiar facts and circumstances of the case with regard to the rate of interest. I may also note that the objector being a licensee of electricity, and who distributes electricity, charges interest varying between 18% and 24% where there is a failure to make payment for the supply of electricity.
The objections are therefore dismissed with costs of Rs. 25,000/-. Award dated 23.8.2000 is made a rule of the Court.