V.S. Aggarwal, J.@mdashThe present petition has been filed u/s 9 of the Arbitration and Conciliation Act byAwasiya Samajik Sudhar Samiti,
hereinafter describedas the petitioner seeking that during the pendency ofthe arbitration proceedings an order should be passedstaying the recovery
of the amount demanded in theprovisional bill sent by the respondent (Delhi VidyutBoard) and restrain the respondent from taking anycoercive
steps for recovery for the said amount. Itfurther seeks a direction to direct the respondent toforthwith turn on the electric supply to the petitioner
society and maintain uninterrupted supplyof electricity.
2. The fact alleged are that the respondent wasdesirous of getting the job of revenue realisationfrom persons using electricity from its source
indesignated pocket-1, Block-L, Badhu Bazar, SangamVihar, New Delhi. The petitioner society had agreedto carry on the said job. An
agreement dated 29thOctober, 1999 was entered into between the petitionersociety through its General Secretary and therespondent. Under the
said agreement, thepetitioner/society was to receive electricity in bulkat one point from DVB and distribute the electricityso received to the
residents of the area, collect theelectricity charges and made payment to DVB. TheDVB''s scope of work was supply in bulk supply ofelectricity at
one or more points, providing meteringarrangement for measuring the consumption ofelectricity to be delivered to the society.
3. On 16th November, 2000 a fresh agreement wasentered into for period ending 15th November, 2001 onsimilar terms and conditions. The
petitioner wasentitled to get a commission of 25% of the revenuepaid to DVB for the bulk supply. The agreement alsocontemplates the petitioner
depositing a securityequivalent to two months receivables. It contemplatesa minimum revenue of 75% of the electricity recordedin the meters. As
per the petitioner, it has beenperforming its duties in accordance with the agreementand terms and conditions. The petitioner societythrough its
General Secretary Sohan Lal Kashyap is inoccupation and possession of a separate office. The employees of DVB in the absence of Sohan Lal
Kashyaphad broken open the lock and put their own lock on thepremises. They tempered with the electric fittingsand disconnected the power
supply. Certain otherallegations that some cash was removed and they tookaway the broken logs. The whole locality was plungedint darkness,
because the supply of electricity wasstopped.
4. The petitioner was awaiting action on the saidcomplaints purported to have been made but aprovisional bill was received for Rs. 93,18,540/-
stating that if the amount is not paid by due date the petitioner would be liable to pay Rs. 1,39,77,810/-.It is claimed that there was an arbitration
clause inthe agreement and the matter is to be referred forarbitration. During the pendency of such proceedings,petitioner claims that since demand
is illegal andimproper, the interim order referred to above isprayed.
5. In the reply filed DVB has contested theapplication. It has been alleged that large number ofunauthorised colonies and jhuggies clusters have
comeup in Delhi. They have been found indulging in theftof energy either through direct taping from the wiresor otherwise as a result DVB was
suffering losses. Inorder to provide basic civil amenities and that theunauthorised colonies have come up without anyplanning, the agreement with
the petitioner wasentered into with respect to the colony mentioned inthe petition. A scheme was formulated. It is not in dispute that the said
agreement between the partieshad been entered into. The scheme formulated forproviding electricity i.e. single point electricsupply scheme. Under
this scheme groups of jhuggiesjhopries dwellers formed a welfare association, theycan join together and make an association. The personso
identified enters the agreement with DVB.Thereupon the agreement is entered into which in thepresent case had been entered into between
theparties.
6. According to the respondent a complaint wasreceived by the Chairman, DVB on 23rd August, 2001which was signed by large number of
residents of thearea against Sohan Lal Kashyap, the General Secretary.It had been alleged that in connivance with someofficials he is stealing
electricity directly from theHT lines. The enforcement department of DVB conducteda joint inspection in 14/15th September, 2001. In this
inspection officer of the enforcement departmentand the meter testing department were present. Thepartner of the petitioner B.D. Joshi was called
fromthe nearby house. On inspection of the sub-station itwas observed that CT points were bye-passed and DVBsupply was found directly
connected to the out-goingside of CT point with the help of naked copper wire.The photographs were taken at the site. A directtheft bill was also
raised on the petitioner which waspayable by 20th September, 2001. An FIR has also beenfiled against the petitioner. It is denied that thematter in
question is covered by the arbitrationagreement between the parties.
7. On the strength of these facts, the learnedcounsel for the petitioner had urged that there was anagreement between the parties which provided
thatdisputes would be referred to for arbitration. Thebill in question is a disputed one and Therefore itwas prayed that the matter has to be referred
forarbitration. It was contended that the bill inquestion is totally exaggerated and without any basisand Therefore till the arbitration
proceedingscontinue payment of the same should be stayed and noaction or coercive action should be taken in thisregard.
8. On the contrary plea as already referred toabove was that it is a case of theft of electricityand is not covered by the disputes contemplated
underthe agreement.
9. In order to appreciate the said controversyreference can well be made to the agreement betweenthe parties that had been entered into. The
same hasnot in fact been disputed during the course ofarguments.
10. It is not in dispute that to over the menace oftheft of electricity of unauthorised colonies that hadcome up around Delhi and also to overcome
the tappingof the wires directly by the unauthorised persons, thescheme had been formulated known as single pointelectric supply scheme. Under
the said schemepetitioner society was to receive electricity in bulkat one point from DVB and distribute the same to theresidents of the locality and
make payment to DVBsubject to the terms of the agreement. The scope ofthe work of the agency was contemplated in Clause 3 ofthe said
agreement and reads:-
3. SCOPE OF WORK OF AGENCY
To perform the following jobs in the area:
i) Initially to prepare a statement of allthe houses of the Area, name and address ofthe head of the family drawing electricityand submit to DVB and
shall not extend thesupply to other occupants/residents withoutobtaining prior permission of DVB andfulfilling the required formalities,including
payment of applicable charges.
ii) To lay insulated low voltage wires ofappropriate capacity on poles fordistribution of electricity taking intoaccount the safety aspects as per
IndianElectricity Rules, 1956.
iii) To receive electricity in bulk from oneor more point from DVB in or adjacent to theArea.
iv) Distribute the electricity as receivedto the residents of the area to only forwhich the list has been submitted.
v) Collect revenue from the residents ofthe Area and make payment to DVB for the bulksupply on monthly basis as per applicable andapproved
tariff.
11. It has further been granted that petitionershall have to pay the minimum revenue of 75% of theelectric energy as recorded in the meter provided
byDVB for measurement of the bulk energy. The meterswere to be jointly read on monthly basis. Theagreement also provided with respect to the
streetlightings. For the service rendered the petitionerwas to be paid 20% after the billed amount. AnnexureA to the agreement provided additional
terms andconditions of the contract between the parties. Itprovided that minimum connected load admissible shallbe 1 KW. It also provided that in
the event ofdefault DVB would be entitled to terminate theagreement. If the agreement is terminated earlier byone party the party in default will pay
suitableliquidated damages to compensate for the loss.
12. Paragraph 11 of the same pertains to disputesand the arbitration and reads:-
DISPUTES AND ARBITRATION
Disputes under the Agreement shall be settledby mutual discussions. Failing this, thedisputes will be referred to sole arbitrationby the owner or his
nominee as solearbitration. The agency shall have noobjection if the nominee is an employee ofDVB.
The arbitration shall be carried out as perIndian Arbitration and Conciliation Act, 1996and the arbitration award shall be binding onboth the
parties.
The parties to the agreement shall continueto fulfill their obligations under theAgreement during arbitration proceedings andno payment shall be
withheld on this accountunless it is a subject matter of thedispute.
13. The brief resume of the agreement andadditional terms and conditions referred to aboveclearly show that disputes that have to be referred
toarbitration have to be the disputes under theagreement. In other words, if there is any disputenot covered under the agreement it cannot be
referredfor arbitration.
14. u/s 9 of the Arbitration andConciliation Act during the pendency of thearbitration proceedings before or after that in casethe need arises a
party indeed besides other reliefscan approach the court for an injunction to be issuedso as to protect and preserve the property or any suchevent
that may arise. Necessarily before any suchinjunction can be granted it has to be found as onfact as to whether the dispute is under the
agreementor not. The court ordinarily will not go into themerits of the matter but since it is a basic fact asto whether the dispute is covered by the
arbitrationor not necessarily same as to be decided.
15. Reverting back to the facts in question asalready referred to above it is the dispute betweenthe parties as to whether the petitioner
wascommitting theft of electricity or not. Respondentsspecific plea is that on the surprise inspection itwas found that the petitioner was stealing
electricityand Therefore the bill in this regard had been raisedwhich is the bill in dispute. The agreement betweenthe parties referred to disputes
under the agreement.Theft of electricity is not a part of the agreementcontemplated as a dispute that could be referred forarbitration. If such a
dispute arises it would beindependent of the agreement and the arbitrationagreement patently does not cover the said dispute.Therefore when such
is the dispute between the partiesthe same necessarily cannot be raised and as anecessary corollary it would follow that petitionunder Section 9 of
the Arbitration and ConciliationAct will not be maintainable.
16. For these reasons petition is dismissed to benot maintainable. However, by way of abundant cautionit is added that nothing said herein can be
taken asan expression of opinion on merits of the matter.
