ECE Industries v. Delhi Power Supply Co.

1. This order shall decide an application moved by the judgment debtors No.3 & 4 under Order 1 Rule 10 read with Section 151 of the CPC for impleading of non-applicant/Tata Power Delhi Distribution 2017:DHC:7042 Limited (TPDDL) in the present execution proceedings as judgment debtor No.5.

2. The decree holder has sought execution of an arbitral award dated 09.04.2002 for recovery of `1,40,18,612.84/- along with interest @ 18% pa against the judgment debtor Nos.[1] & 2. Vide an order dated 02.04.2007 the applicants viz judgment debtor Nos.[3] & 4 were impleaded and they filed their respective affidavits.

3. The case of the decree holder, initially, was three purchase orders were placed by the Delhi Vidyut Board (DVB) for supply of 50, 110 and 135 KV Distribution Transformers. The same were duly supplied to the DVB and since they did not pay in terms of the purchase orders, the arbitration was invoked and subsequently award dated 09.04.2002 was passed against judgment debtors No.1 & 2.

4. In the year 1998 the Government of NCT of Delhi has started the process of bundling and privatization of the DVB and pursuant to such exercise, it was unbundled into six company i.e., a holding company; a generating company; a transmission company; and three distribution companies (DISCOMS). The provisions of the Delhi Electricity Reform (Transfer Scheme) Rules, 2001 came into force with effect from 01.07.2002 as notified by the notification dated 26.06.2002 and thus such rules are statutorily binding in nature. After the privatization, in place of the erstwhile DVB, six companies came into existence viz. holding company namely Delhi Power Company Limited; generating company namely GenCo; a transmission company namely Delhi Transco Limited; and three distributions companies / DISCOMS viz BSES Rajdhani Power Limited; BSES Yamuna Power Limited; and Tata Power Delhi Distribution Limited (North Delhi Power Limited). The work related to the decree holder claimant, as contained in the statement of claim was undertaken and executed till 2002, but prior to the date of privatization. Despite there being no privity of contract between the judgment debtors Nos.[3] & 4 and the decree holder, this Court vide an order dated 02.04.2007 had impleaded them being DISCOMS as subsequent to the Transfer Scheme came into existence with effect from 01.07.2002 three DISCOMS shared the responsibility for supply of electricity through transformers.

5. Hence, it is prayed that TPDDL formerly known as North Delhi Power Limited, a DISCOM, be also made a party to the present proceedings as under the transfer scheme it was entitle to equal assets and liabilities along with two other DISCOMS viz. judgment debtors No.3& 4. It is alleged there is nothing on record to suggest as to what happened to the transformers that were received by the judgment debtor Nos.[3] & 4 and by the TPDDL. It is also alleged that TPDDL, if impleaded, would reveal as to how many transformers were supplied to them by erstwhile DVB which are lying in its possession or is using it for supply of electricity within the vicinity of Delhi. Hence TPDDL is necessary and proper party.

6. In reply TPDDL/DISCOM in para No.9 has alleged that all records relating to the transformer were within the sole custody of the Transco and therefore, it is the liability of the Transco to provide the details as to whether any of the transformers relating to the present execution petition were ever delivered /transferred or is possessed by the non-applicant. Admittedly the dispute amongst the DISCOMS pertain only to 64 transformers.

7. Now Rule 8 (3) of the Delhi Electricity Reform (Transfer Scheme) Rules, 2001 notes as under:-

8. Here I would also like to refer to the decision of the Supreme Court in North Delhi Power Limited vs. Government of NCT of Delhi & Ors (2010) 6 SCC 278, where it notes:-

9. Hence, considering the provision of Rule 8(3) of the Electricity Reforms Act and decision in North Delhi Power Limited (supra), the nonapplicant TPDDL cannot say that it would be illegal or unjustified to implead them as party to these proceedings.

10. It is matter of record that in order dated 21.11.2013 this Court notes three transformers have been transferred to BSES Yamuna Power Limited; seven to BSES Rajdhani Power Limited; but the details of 54 transformers was yet to be provided. In an affidavit dated 19.04.2014 on behalf of judgment debtor no.2 reference was made to failure of 10 transformers, of which deductions were given by the learned arbitrator. Moreso, the affidavit of Mr.Prakash Kumar Choudhary, on behalf of the judgment debtor No.1 averred about the Scheme of the Act more specifically under Rule 8(3) (supra) and deposed that on the basis of the discussions the decree holder had with the officials of DPCL a sum of `1,17,93,716/- was determined. The calculations were upto 31.01.2017. The affidavit further recorded the aforesaid sum is payable by the DISCOMS and not by DPCL, per Rule 8(3) (supra). He further reiterated that in view of above, the amount so calculated shall be payable by three DISCOMS viz BSES Rajdhani Power Limited; BSES Yamuna Power Limited; and Tata Power Delhi Distribution Limited in equal proportion of 1/3rd each of such amount in terms of Shared Facility Agreement dated 27.06.2002 effective from 01.07.2002 which is the part of the statutory Transfer Scheme Rules, 2011 and the DISCOMS were legally bound by the same. The relevant portion of the schedule annexed to Share Facility Agreement dated 27.06.2002 read as under:-