Nirmal Kumar Jain v. BSES Rajdhani Power Ltd

2. By way of the present appeal filed under section 96 read with Order XLI Rule 1 of the Code of Civil Procedure 1908 („CPC‟), the appellant impugns order dated 21.09.2023, whereby the learned trial court has rejected the plaint filed by the appellant on an application under Order VII Rule 11(d) CPC as being time-barred.

3. Mr. Karan Luthra, learned counsel appearing for the appellant has argued that by way of the plaint, the appellant had claimed relief against what was a continuing tort; and accordingly, the learned trial court has erred in holding, without trial, that the claim in the suit was time-barred.

4. In this behalf, Mr. Luthra argues that the grievance of the appellant arose when the respondent issued to the appellant an inflated electricity bill dated 23.07.2014, which led to the disconnection of the appellant‟s electricity connection on 10.03.2016, followed by another electricity bill dated 24.08.2016.

5. Mr. Luthra contends that thereafter, since the respondent did not reconnect the electricity connection, the appellant continued to sustain losses, which compelled him to file the suit claiming the following relief: “a. Pass a decree for compensation/damages of Rs. 10,92,800/-(ten lakhs ninty two thousand and eight hundred only) in favour of the plaintiff and against the defendant. b. Pass a decree for payment of pendelite and future interest at the rate of 12% per annum, from the date of filling of the suit till its realization.”

6. Upon being queried, counsel points-out that, as has been narrated in para 12 of the plaint, the cause of action in relation to the suit arose in the following chronology: “12. That the cause of action to file present suit arose on 24/9/2008 when applied for new electricity connection and again on 30/8/2008 when the electricity connection was given and again on 23/7/2014 when the sanction load was increased illegally and again on 10/3/2016 when the electricity connection was disconnected and again on 24/8/2016 which the hefty bill was given and again on 21/8/2015 when his wife was dead and again on 26/4/2015 when the defendant stated that as per your MDI your sanction load should be 1 only. The cause of action is still continuing.”

7. In this backdrop, Mr. Luthra argues, that the relief claimed in the suit would be covered by Article 72 of the Schedule to the Limitation Act 1963 („Limitation Act‟), which reads as under: Part VII- Suits Relating to Torts Description of suit Period of limitation Time from which period begins to run

72. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extends. One year When the act or omission takes place.

8. Counsel further argues that the limitation would continue to run so long as the respondent does not recall and cancel the electricity bill issued to the appellant and restores his electricity connection. In this behalf, attention is drawn to section 22 of the Limitation Act, which reads as under:

22. Continuing breaches and torts.—In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or tort, as the case may be, continues.

9. Counsel has also drawn attention to verdict of the Supreme Court in Samruddhi Co-operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd.,[1] inter-alia to para 13 and 14 of the judgment, which read as follows: “13. Section 22 of the Limitation Act, 1963 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476: AIR 1959 SC 798] elaborated on when a continuous cause of action arises “14. Speaking for the three-Judge Bench, P.B. Gajendragadkar, J. (as the learned Chief Justice then was) observed that: (Balakrishna case [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476: AIR 1959 SC 798], AIR p. 807, para 31) “31. … Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this 2022 SCC OnLine SC 35 connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.” (emphasis supplied) The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants, the injury to their rights was complete when they were evicted.” (bold in original)

10. On the other hand, Mr. Sharique Hussain, learned counsel appearing on behalf of the respondent submits, that there is no error in the impugned order, since on a bare perusal of the plaint the following is evident:

10.1. That the claim in suit was not for quashing or cancellation of the impugned electricity bills dated 23.07.2014 and 24.08.2016 nor had the appellant claimed restoration of his electricity connection.

10.2. That the only claim in the suit was for a decree of damages towards compensation arising from the disconnection of the appellant‟s electricity connection, which had been the result of non-payment of the electricity bills raised upon the appellant.

10.3. That in para 12 of the plaint, the appellant himself set-out the dates on which, on the appellant‟s own reckoning, the cause of action had arisen for filing of the suit; and the last such date is cited as 24.08.2016, viz. the date of the last electricity bill by which the demand was raised on the appellant.

10.4. That the claim for damages laid before the learned trial court arose from the disconnection of the appellant‟s electricity, which was a result of the appellant having failed to pay the electricity bills. The electricity bill had not been challenged nor had the disconnection of electricity been impugned.