RSA/1/2014 of MADHVI JAIN Vs BSES YAMUNA POWER LTD

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RSA No. 1/2014

2[nd ]April, 2014

MADHVI JAIN

Through:

..... Appellant Mr. Praveen Jain, Advocate.

Versus

BSES YAMUNA POWER LTD ..... Respondent Through: Mr. Manish Srivastava, Advocate.

..... Respondent

CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. There is very limited issue in this appeal filed under Section 100 of Code of Civil Procedure, 1908 (CPC). The limited issue is that whereas the suit of the appellant/plaintiff for mandatory and permanent injunction was decreed, however the amount deposited by the appellant/plaintiff for enhancement of the sanctioned load from 30 kw to 55 kw amounting to Rs.49,140/- was held to be not recoverable by the appellant/plaintiff as recovery was held to be time barred. Recovery was prayed because the sanctioned load has indubitably not been enhanced.

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2. The following substantial question of law arises in the present

appeal:-

“Whether the suit of the appellant/plaintiff for recovery of Rs.49,140/- given for seeking enhancement of the electricity load from 30 kw to 55 kw is

barred by time or it is not barred by time because limitation period with respect to deposit only arises from the date of the demand and is not three years from the date of original deposit.”

3. In my opinion, the substantial question of law has to be answered in favour of the appellant because it is not disputed that the amount which was deposited with the respondent of Rs.49,140/- on 21.3.1999 was because this amount was towards the charges to be deposited for increase of load from 30 kw to 55 kw, and, charges deposited were not in the nature of any loan amount or the amount which had to be repayable on specific date or cause of action with respect to which arises/had arisen on specific date.

4. In the present case suit/plaint has been filed on 11.9.2003 with respect to this amount of Rs.49,140/- which was deposited on 21.3.1999, but since the amount is not loan or any other amount which is repayable on fixed date or the right to recover arises on fixed date, limitation for

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claiming back this amount will not be from the date of payment but will be from the date of demand. In this case the demand for return of the amount was for the first time made in the suit only and therefore it cannot be said that the suit for return of this deposit is barred by time. It is also noted that there is no refusal of the respondent/defendant prior to the date of filing of the suit to pay this amount. It bears reiteration that the enhancement of load from 30 kw to 55 kw did not take place as held in favour of the appellant/plaintiff by the courts below and therefore there is no reason that the amount deposited only for such purpose should be allowed to be retained by the respondent/defendant.

5. In view of the above, the appeal is allowed. Decree is passed in favour of the appellant/plaintiff for sum of Rs.49,140/- alongwith pendente lite and future interest @ 6% per annum simple on the appellant depositing the necessary court fee in this Court within period of two weeks from today. Decree sheet be prepared. Parties are left to bear their own costs.

APRIL 02, 2014 Ne

VALMIKI J. MEHTA, J

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