S.B. SINHA FOR HIMSELF AND P. K. RASTOGI, MEMBER
By reason of this application, the petitioner has inter-alia prayed for amendment of the petition.
The petitioner is an UASL licensee, the licence having been granted by the Department of Telecommunication in terms of Section 4 of the Indian Telegraph Act, 1885 (The 1885 Act).
2. The parties herein entered into an Interconnection agreement. An Addenda to the said agreement was inserted on or about 28.02.2006 with retrospective effect from 14.11.2003.
3. The petitioner has filed the petition for setting aside the bills dated 15.10.2004 and 21.3.2005 as also disconnection notices dated 05.3.2008 and 02.02.2009.
The said bills were issued inter-alia on the premise that the petitioner has wrongly routed its international calls as local calls. The matter was heard by this Tribunal. By a judgment and order dated 24.5.2010, the said bills were set aside, directing:-
“For the foregoing reasons, we are also of the opinion that other contentions raised by the parties hereto need not be gone into. All contentions, save and except, what has been found by us heretobefore shall remain open. The impugned demand in our opinion being not sustainable is set aside accordingly. However, we are of the opinion that the amount deposited by the petitioner need not be directed to be refunded. This order is being passed afresh because no prayer in this behalf has been made before us. Secondly because the petitioner filed the aforementioned Misc. Pe tition which was not maintainable and therefore the petitioner did not deposit any amount and thirdly
because in the event it would be able to show that it has not committed any breach of the interconnection agreement it would be entitled to refund of the deposited amount with interest.
Even otherwise, when a demand is made, subject to just exceptions, ordinarily the operators under the interconnection agreement are bound to deposit 50% of the demanded amount besides the admitted
amount. Furthermore, we have set aside the demand on the ground of noncompliance of the principle of natural justice and, therefore, we are of the opinion that a conditional order may be passed in a case of this nature.
The respondent shall be given liberty to the petitioner to show that before disconnecting the number, all actions were taken strictly in terms of the circular letter of the DoT dated 24.6.2003 and its case
otherwise comes within the purview of the circular letter issued by the respondent. In the event any occasion arises therefor, the petitioner may ask the respondent to supply the CDRs for the
concerned period which may be complied with. This petition is allowed in part and with the aforementioned observations and directions.”
4. The principal questions, which were raised therein, are as under:-
“(i) Whether the petitioner is liable to pay penal charges in terms of clause 6.4.6 which has been inserted in the UASL license by reason of VIIIth Interconnect Agreement on or about 28.2.2006 and came into force with effect from 14.11.2003?
(ii) Whether the petitioner has otherwise complied with the terms and conditions of the guidelines issued by the DoT in its circular dated 24.6.2003?
(iii) Whether in any event the petitioner is entitled to the benefit of the circular letter dated 14.10.2005 issued by the respondent?
5. This Tribunal inter-alia opining that Clause 6.4.6 inserted with the addenda VIII on 28.02.2006 provides for a penal clause and, thus, it was obligatory on the part of the respondent herein to comply with the principles of natural justice set aside the same.
6. The respondent herein preferred an appeal thereagainst before the Supreme Court of India. By reason of a judgment and order dated 29.11.2010, it was opined that Clause 6.4.6 is not a penal clause but merely a pre-estimate of damages, stating :-
“54. We need to clarify that in this case our judgment is restricted only to the interpretation of Clause 6.4.6 of the Interconnect agreement read with the addenda. As stated above, we have held that Clause 6.4.6 represents pre-estimate of reasonable compensation for the loss suffered by BSNL. Thus, we set aside the impugned judgment and remit the matter to TDSAT to decide the matter de novo in accordance with the law laid down hereinabove.
55. However, we need to highlight one aspect. In the letter dated 13.10.2004 addressed by BSNL to Reliance, it has been alleged that the calls have landed at the POIs of M/s Reliance Infocomm Ltd. at
Karellbaug, Panigate, Alkapuri, Makarpura, Padra, Dabhoi and Miyagam exchanges in Vadodara SSA. The said letter highlights one more important aspect. It is alleged that the number 0281-3041000
was an unallocated number with Reliance during the relevant period. This aspect needs to be examined by TDSAT on facts.”
7. The matter was listed on 16.12.2010.
This Miscellaneous Application was filed on 24.01.2011. Having regard to the fact that the Petitioner has filed a fresh Misc. Application, the earlier application for amendment being M.A. No. 354 of 2010 was held to have become infructuous.
8. Mr. Vaidyanathan, learned Senior Counsel appearing on behalf of the petitioner would contend :-
(i) From a perusal of the judgment of the Supreme Court of India, it would appear that several issues had been raised before it, but some of them having not been gone into, this application for amendment of the petition should be allowed.
(ii) The said amendment has become necessary by reason of the findings of the Supreme Court of India interpreting Clause 6.4.6 in the light of various observations made therein.
9. Mr. Maninder Singh, learned Senior Counsel appearing on behalf of the respondent, on the other hand, urged :-
(a) The matter having been remanded for fresh hearing in accordance with the law laid down by the Supreme Court of India, this application is not maintainable.
In any event, the matter having been listed for final hearing, no application for amendment of the petition can be entertained in view of the proviso appended to Order VI Rule 17 of the Code of Civil
Procedure.
(b) By reason of the said application, the petitioner has raised new pleas which, if permitted, would amount sitting over the judgment of the Supreme Court of India.
(c) The petitioner by way of amendment of the petition or otherwise should not be permitted to resile from the admissions made before this Tribunal.
10. Before, however, considering the aforementioned rival contentions, we may notice the proposed amendments sought for by the petitioner :-
“ADD AFTER PARA 12.3 :
“12.3-A. It is submitted that there was no change in CLI by the Petitioner while delivering the call. Further it is pertinent to mention that there is no willful or deliberate change/tampering/masking of
CLI by the Petitioner as the Petitioner has delivered the call with the same CLI as originated from its subscriber.
”ADD AFTER PARA 22.5 :
“22.5-A. It is further submitted that in the facts and circumstances of the present case Clause 6.4.6 of the Interconnect Agreement is not applicable at all as the said Clause 6.4.6 did not exist during the relevant period i.e. July 2004 to October 2004. It is pertinent to mention that Clause 6.4.6 was inserted in ADDENDA VI signed between the parties on 28.02.06 and the same is not applicable with retrospective effect from 14.11.2003 on account of exception carved out in the ADDENDA VI itself.
22.5-B. Without prejudice it is submitted that Clause 6.4.6 added in the Interconnect Agreement on 28.02.06 cannot make the bills raised in the year 2003 and 2004 legal and valid in law even if
the clause is retrospectively applicable from 14.11.2003. It is pertinent to mention that none of the impugned bills have been raised on the basis of Clause 6.4.6 of the Interconnect Agreement.”
ADD AFTER PARA 28:
“28-A. It is submitted that there has been no benefit to the Petitioner in the national or international market in the matter of pricing. In fact the Petitioner is a net loser on account of the grey
market operations.”
ADD AFTER GROUND C:
“C-(a) Because there was no change in the CLI by the Petitioner while delivering the call.
C-(b) Because there was no change/tampering/masking of CLI by the Petitioner as the Petitioner has delivered the call with the same CLI as originated from its subscriber, nor was there any willful or
deliberate change/tampering/masking.”
ADD AFTER GROUND P:
“P-(a) Because in the facts and circumstances of the present case Clause 6.4.6 of the Interconnect Agreement is not applicable at all.
P-(b) Because admittedly Clause 6.4.6 did not exist during the relevant period i.e. July 2004 to October 2004.
P-(c) Because it is submitted that Clause 6.4.6 was inserted in ADDENDA VI signed between the parties on 28.02.06 and this Clause 6.4.6 is not applicable with retrospective effect from
14.11.2003 on account of exception carved out in the ADDENDA VI itself.
P-(d) Because subsequent issue of Clause 6.4.6 added in the Interconnect Agreement on 28.02.06 cannot make the bills raised in the year 2003 and 2004 legal and valid in law even if the clause
retrospectively applicable from 14.11.2003.
P-(e) Because none of the impugned bills have been raised on the basis of Clause 6.4.6 of the Interconnect Agreement.”
ADD AFTER PRAYER (a) :
“a-1) Quash and set aside the notice/bill dated 18.03.2005.”
11. The relevant paragraphs of the judgment of the Supreme Court of India, whereupon reliance has been placed by the learned counsel for the parties, may also be noticed :-
“26. Coming to the validity of the demand notice and disconnection notice issued by BSNL, the learned counsel submitted that the demand notices issued by BSNL are invalid since the same have
been raised in 2004 without any provision in the interconnect agreement. That, the bills raised by BSNL were admittedly issued not in terms of any provision in the interconnect agreement but in
terms of the letter of BSNL (Headquarters) dated 28-1-2004 which was issued only for implementation of the IUC Regulations of TRAI dated October 2003. Therefore, according to the learned counsel bills dated 13-10-2004, 15-10-2004 and 21-3-2005 are invalid.
28. It is submitted that BSNL could not have validated the bills issued illegally in 2004 on the basis of the provisions introduced in the interconnect agreement subsequently in 2006 when Clause 6.4.6 was not given retrospective effect and in the absence of any express provision in the subsequent addenda the bills cannot be validated. In any case, according to the learned counsel the disconnection
notice dated 2-2-2009 was for alleged illegal routing under the NLD interconnect agreement; that the said NLD interconnect agreement was signed on 1-11-2002 which did not have Clause 6.4.6 as it exists in the addenda dated 28-2-2006; that Clause 6.4.6 in the interconnect agreement for NLD was different from Clause 6.4.6 in the addenda dated 28-2-2006 of the interconnect agreement and
that Clause 6.4.6 of the NLD interconnect agreement did not provide for charging at the highest rate and that too for the previous two months.
42. Under Clause 2.1.13, the fully mobile, limited mobile and fixed services network of UASL shall be having separate PoIs with BSNL, which shall be treated separately for set-up costs, port charges, etc. Under Clause 2.1.15.3.3, for the purpose of international call UASL shall hand over the call to BSNL at the originating long distance charging centre (i.e. LDCC TAX). Lastly, under Clause 6.4.7, all the required information shall be submitted in the form of monthly certificate as prescribed in Schedule I to BSNL by UASL. It will indicate details of the traffic routed other than through BSNL as
NLDO/ILDO in respect of international long distance calls (both incoming and outgoing). It also indicates procedure for billing and recovery of ADC inter alia in respect of ISD calls (both incoming and outgoing). This is relevant also because under Clause 2.1.5.2 calls from fully mobile subscribers of other telecom service providers of the different service area (national roaming) or other country
(international roaming) have got to be handed over by UASL to BSNL on separate trunk groups at the Gateway TAX of BSNL of that service area.
43. Under Clause 2.1.9.2, no bypass of traffic shall be resorted to by any party by delivering the traffic at any PoI other than the specified PoI and in case unauthorised diversion in routing comes to
notice, BSNL shall be free to disconnect that PoI in that area. Thus, under the agreement if UASL like Reliance receives an international call at its exchange, its primary duty will be under the contract to
identify it and to forward it to the appropriate trunk group of BSNL. Now, as alleged if the international call(s) falls on the local PoI of Reliance, the latter is obliged under the contract to identify the call, whether it is local or national or international, and accordingly forwards it to the appropriate trunk group of BSNL. For the above reasons, it is also stipulated in Clause 2.9.1 (which deals with network integrity and screening) that it shall be the duty of UASL to prevent wrong transmission. In fact, under Clauses 2.9.2 and 2.9.3 the establishment of proper screening function at its gateway shall be the obligation of UASL so as to detect signals outside the interworking specification of TEC.
44. As a corollary, Clause 6.4.6(a) inter alia provides that calls on non-specified trunk groups (like international calls landing on the local PoIs), if detected, for which the IUC rate applicable is higher (for example, for international calls the IUC rate is much higher than IUC rates for local/national calls), then the higher IUC rate would be applicable for such unauthorised calls. In such a case, BSNL would be free to charge UASL the higher IUC for all calls recorded on these PoIs from the date of provisioning of that PoI (at Vadodara in this case) or for preceding two months, whichever is less. Similarly, under Clause 6.4.6(b), if UASL masks or disguises the international call as local call that UASL will have to pay the higher IUC rate meant for international calls to BSNL from the date of provisioning of that PoI or for preceding two months, whichever is less. Thus, if
there is masking of CLI for the calls generated and forwarded from the telephone of UASL, then it would be the primary duty of that UASL to prevent such misuse and failing which BSNL would be free to invoke Clause 6.4.6.
45. It is important to note that Clause 6.4.6 restricts the charge to last two preceding months. The charge under Clause 6.4.6 is not dependent upon number of calls and even the period of misuse of
services is restricted to last two preceding months. Thus, when an international call, as in this case, lands on the local PoI of UASL it knows the nature of the call. There is a difference between an
international CLI and the local/national CLI. The billing record of that PoI indicates the nature of the call. It is the contractual obligation of UASL to maintain the billing records in detail (including
the CDR and the monthly certificate in the prescribed form). Further, when the international call(s) lands at the local PoI of UASL, the incoming traffic bypasses the authorised route—international
gateway exchange of BSNL, the NLDO trunk exchange of NLDO and the local telephone exchange of BSO. Thus, the defaulting UASL fails to maintain the billing records (including CDRs at each stage).
This results in concealment of details which results in reduced payment of IUC charges by the defaulting UASL, thus, giving him the unauthorised benefit of paying less ADC which was the major
component of IUC at the relevant time and which reduces the cost of providing services which in turn results in destroying the “principle of level playing” which is so important in the regulatory regime
because pricing of the services in the international market plays an important role. The above modus operandi enables the defaulting UASL to sell his product (services) abroad at a rate which may be
less as compared to the rates charged by BSNL (who is also a competitor service provider). The unauthorised call(s) gets for the defaulting UASL not only more profits by cost reduction, he also gets
more business at the rates below the competitive rates. Same is the position in case of masking of international calls as local calls.
50. Applying the above tests to the facts of this case, we find that the interconnect agreement in question should be viewed in the context of the regulatory regime. In this case, we are concerned with
telecom as a service. This is the most important circumstance to be considered as one of the main surrounding circumstances to the interconnect agreement. Under the interconnect agreement, UASL is
obliged to maintain the integrity of its exchange/PoI. It is important to note that each service provider, including BSNL, is a market player/stakeholder. Each UASL is entitled to a level playing field.
The nature of the call, be it local or national or international, as indicated by corresponding CLI, is the basis for the levy of IUC (including ADC). If by wrong routing of calls or by masking the cost of providing services is reduced, the operator concerned gets an undue advantage not only in the Indian market over other competing operators but also in the international market.
51. Billing is one of the most vital aspects of this case. With technology, an international call could fall on the local PoI but then the operator concerned is responsible for the identity of the call. In
the case of calls which are correctly routed, the display screen with the subscriber clearly indicates whether the call bears international or local/national CLI. Similarly, when a gateway bypass scam takes place and the international call(s) lands on the local PoI which is not forwarded to the specified trunk group/PoI, there is not only bypassing of international gateway/PoI and national PoI but also
evasion of duty to maintain billing records in detail at each PoIs. All this results in payment of IUC at a lower rate. All this leads to reduced cost for the defaulting UASL which provides not only
increase in its profit but also gives it an advantage in international market vis-Ã -vis other competitors (including BSNL) because the defaulting UASL can easily price its product in the international
market at a lower rate and in that sense loss is caused to BSNL.
52. Similarly, as stated above, masking takes place as international CLI can easily be identified even when an international call lands on the local PoI of UASL, hence, the defaulting UASL resorts to masking. Hence, an international call coming from the masked number alone
cannot be taken into account. Thus, in our view, Clauses 6.4.6(a) and 6.4.6(b) provide for pre-estimate of damages. It is so also for one more reason. The clause, as stated above, restricts the higher IUC
rate made applicable for calls only for last two preceding months and not for last three years or the longer period. These time lines are an indicia showing that Clause 6.4.6 is not penal but a pre-estimate
of reasonable compensation for the loss foreseen at the time of entering into the agreement.”
12. Order 6 Rule 17 of the Code of Civil Procedure reads thus:-
“Amendment of Pleadings :- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after
the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
13. The said proviso was inserted by reason of the Code of Civil Procedure (Amendment) Act, 2002. By reason of the provisions contained in Section 16 (2) (b) of the 2002 Amendment Act, the amendments carried out therein shall apply to suits, which were filed thereafter.
(See Somesh Singh Vs. Phoolan Devi – 2009 (12) SCC page 689) Page 15 of 30
14. There cannot be any doubt or dispute that stricto sensu this Tribunal is not bound by the provisions of the Code of Civil Procedure, 1908. However, the principles analogous thereto, in absence of any procedure having been laid down by this Tribunal, should be followed. Moreover, this Tribunal keeping in view the Section 14-A of the Telecom Regulatory Authority of India Act, 1997
should ordinarily dispose of the matter within a period of 90 days.
15. It was in that view of the matter, this Tribunal has to consider the applicability of the proviso appended to Order 6 Rule 17 and/or the principles analogous thereto.
16. Ordinarily, although an application for amendment should be liberally considered, the proviso restricts the jurisdiction of this Tribunal.
In certain cases, even otherwise, an application for amendment should not be allowed e.g. in a case (i) where the claim would be barred by limitation. (See Tamilnadu Alloys Foundry Co. Ltd. vs. Tamilnadu Electricity Board – 2004 3 SCC page 392); (See also Chanderkant Bansal Vs. Rajender Singh Anant 2008 (5) SCC 117, and South Concon Distillery Vs. Prabhaakar Ganjan Naik 2008 (14) SCC page 632. (ii) where it seeks to take away an admission – 2008 (7) SCC; Gautam Sarup Vs. Leela Jetly and Others.
17. The proviso to Order VI Rule 17 in the Code has been inserted with the avowed object of avoiding delay in disposal of the suit. It curtails the discretion of the Court to allow amendment of the pleadings. The discretion of the Court is no longer absolute. In Salem Bar Association Vs. Union of India reported in 2005 (4) SCC 344, it has been held :-
“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.”
18. It is in the aforementioned situation, the words “due diligence’” are required to be construed. The petitioner filed its petition with full knowledge of the issues which would arise for consideration of this Tribunal. In fact, one of the contentions of the petitioner was non-application of Clause 6.4.6.
In the order of this Tribunal, it has been held :-
“It is, however, neither in doubt nor in dispute that during the period for which the bills were raised namely July to September, 2004 there did not exist any provision in the UASL License for levy of
penal charges by way of Clause 6.4.6. It will bear repetition to state that the said provision was inserted on or about 28.2.2006 with retrospective effect from 14.11.2003.”
19. On the interpretation of Clause 6.4.6, this Tribunal opined that the respondent ought to have categorically stated in the bills as to whether the calls received were non-CLI/modified/tampered CLI calls. On fact, it was held that for preventing such calls, the petitioner had taken some actions in terms
of the circular letter issued by the respondent.
20. The Supreme Court of India principally considered the interpretation of the said clause.
Before it, some arguments might have been advanced, which have not been considered, but the same would be available to the petitioner, if they arise from the pleadings of the parties and/or other evidences brought on record on the basis thereof.
The petitioner, however, by inserting para 12.3.8 intends to bring on record a factual aspect, which cannot be said to be beyond its knowledge.
21. By insertion of para 22.5.A and 22.5.B, the applicability of Clause 6.4.6 itself has been questioned. Yet again, such a plea was available to it and in fact has been considered by this Tribunal.
22. By reason of para 28-A, a new case is sought to be made out that the petitioner has suffered loss on account of grey market operation and has not otherwise been benefitted in the national or international market in the matter of pricing. It was not the case of the petitioner in the original petition. It is seeking to raise absolutely a new plea. New grounds are sought to be raised in support of the aforementioned pleas.
23. A prayer clause has also been added namely quashing and/or setting aside the notice dated 18.3.2005.
24. According to Mr. Vaidyanathan, the said prayer is formal in nature. However, if a bill is sought to be set aside, the application for amendment should have been filed within the period of limitation.
25. Mr. Vaidyanathan, in support of the Misc. Application, has relied upon a few decisions of the Supreme Court of India. We may notice the same.
26. In North-Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs. reported in 2008 (8) SCC 511, the Supreme Court of India has held :-
“12. We have considered the submissions of the learned counsel in the light of the documents on record. We are constrained to observe that the High Court has altogether failed to consider the application filed by the appellant under Order 41 Rule 27 CPC. We also feel that even the application under Order 6 Rule 17 CPC has not been dealt with in its correct perspective and the High Court was in error in rejecting the same on the sole ground that such an application was not maintainable at the stage of second appeal.
13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section
107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are
found to exist. The circumstances under which additional evidence can be adduced are:
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or
(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)].”
27. It was, thus, not a case for amendment of Plaint but adduction of additional evidence, for which the amendment was sought for. In Harcharan Vs. State of Haryana reported in 1982 (3) SCC 408, the
Supreme Court of India opined :-
“4. It is a well-settled principle that the best evidence with regard to evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the award of the
court, subject of course, to the comparison of the land areawise, topographywise and usewise. The appellant sought amendment relying on this principle. The question is whether the High Court was
justified in dismissing this petition in limine. Order 6 Rule 17 in terms provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner
and on such terms as may be necessary for the purpose of determining the real questions in controversy between the parties.”
28. Reliance was placed on an earlier decision of the Supreme Court of India in the Ganesh Trading Co. Vs. Moji Ram 1978 (2) SCR 614, wherein it was observed:-
“5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional Court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.”
In Haridas Aildas Thadani and Ors. Vs. Godrej Rustom Kermani reported in 1984 1 SCC 668, it has been held :-
“In case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil this Court has held that the test for allowing the amendment is to find out whether the proposed amendment works any serious injustice to the other side. It is well settled that the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other
side.”
In that case the High Court was exercising its revisional jurisdiction against an order passed by the learned District Judge, wherein a relief for recovery of possession was permitted to be inserted. The Supreme Court opined that by reason thereof neither the nature of the suit was altered nor was there
any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arose. The said decision, therefore, has no application to the fact of the present case.
Reliance has also been placed on A. K. Gupta and Sons Vs. Damodar Valley Corporation 1966 1 SCR page 796 = 1967 SC 96 wherein it was held as under:-
“28. Before referring to the cases, I may set out the provisions of the Code which empower the Court to allow amendment of pleadings. Section 153 and Order 6 Rule 17, deal with the matter. Section 153
reads:
“The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.”
Rule 17 of Order 6 reads:
“The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”.
These indicate that the amendment should be in such manner as may be just and that, as a rule, all such amendments shall be made as be necessary for the purpose of determining the real questions in
controversy between the parties. No amendment would be just if it so prejudices the interests of the other party for which that party cannot get any relief from the Court. The amendments which must
be allowed can be those in the absence of which the Court may not be able to determine the real question in controversy between the parties. The real question in controversy must be gathered only from the plaint and to some extent from the allegations in the written statement. If the point to be decided as a result of the amendment is not covered by the controversy raised by the plaint and the written statement, the amendment is not to be allowed necessarily, for the simple reason that it is unnecessary for determining the real questions in controversy between the parties. The Court has to
decide the suit instituted before it and with respect to the controversies raised in it. It follows that the amendments to be allowed relate to such matters which, due to bad drafting of the plaint, could not be clearly and precisely expressed, though the parties did really intend to have those matters determined by the Court. The object of the amendment of the pleadings is to clarify the pleadings for bringing into prominence the real controversy between the parties and not for helping a party by making such amendments which be beneficial to him in connection with some dispute between the parties a dispute which has not been really taken to the Court for decision and which the parties did not really intend to be decided in that suit. This seems to me to be the real basis for an order of the Court in connection with such amendments sought by a party in its pleadings as would raise a claim which has become time-barred.”
It also referred to a judgment of the Bombay High Court in Charan Das Vs. Amir Khan, stating :-
“From the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions
(a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.”
29. We have noticed heretobefore that the Supreme Court of India clearly held that by reason of the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure, the Court has no absolute discretion. Before allowing the amendment, it must be satisfied that the requisite ground invoking the proviso appended to the said rule exists.
30. In Chander Kant Bansal Vs. Rajender Singh Anand 2008 (5) SCC 117, it has been held that the word “due diligence” means reasonable diligence, as a prudent man who would exercise conduct of his own affairs.
31. Keeping in view the said proviso, we are of the opinion that it is not a fit case where the application for amendment should be allowed.
32. In R.A.No.1 of 2011 of Petition No. 245 (C) of 2009, Sahara Sanchar Ltd. vs. Hathway Cable and Datacom Ltd. disposed of on 13th April, 2011, it was held:-
“15. It is a trite law that the general principles laid down in the Code of Civil Procedure should be applied even by a Tribunal in the absence of special provision or circumstances. A departure can be made by this Tribunal only if an exceptional case is made out and not otherwise.
The Parliament by reason of Code of Civil Procedure Act (Amendment Act) in 1976 had added an ‘Explanation’ whereby the power of review has further been curtailed.”
33. If the principles of Order VI Rule 17 or the principles analogous thereto are applicable in the matter of allowing the prayer for amendment of the Plaint, we are of the opinion that the principles for amendment are certainly applicable. This Tribunal in Petition No. 174(C) of 2008 (Power Grid
Corporation of India Ltd. Vs. M/s. SAB Infotech Ltd.) has applied the provisions of the proviso appended to Order VI Rule 17 of the Code of Civil Procedure and on that ground dismissed the application for amendment. While saying so, we are not unmindful of the fact that unnecessary hardship should not be caused, but in this case the principles contained in the proviso appended to Order VI Rule 17 of the Code of Civil Procedure may be found to be applicable as the same is being filed after a long time and principally relying on or on the basis of the decision of the Supreme Court of India. We are of the opinion that the Supreme Court of India has taken one view reversing the views of this Tribunal, but that would not mean that such a view was not possible to be taken by this Tribunal.
34. Moreover, the matter was fully heard. Although one view was taken by this Tribunal, the Supreme Court of India has taken another view of the matter. The matter has now come back to this Tribunal on remand. The petitioner at this stage should not be permitted to raise additional pleas. It cannot take a plea which would unnecessarily enlarge the scope of enquiry. It cannot also be permitted to add a new cause of action.
35. A decision was taken in favour of the petitioner. Once a trial was held, the matter having been heard fully, it is difficult to conceive that the trial for the purpose of attracting the proviso appended to Order VI Rule 17 of the Code of Civil Procedure must be held to have not started. In terms of the decision of the Supreme Court of India, the matter has to be considered de-novo.
36. The order of the Supreme Court does not mean that we have to proceed on the basis as if no trial had commenced.
37. In fact, only fresh look at the quantification issue is required to be made in the light of the decision of the Supreme Court of India.
38. Whether, in a situation of this nature, the provisions of the Code of Civil Procedure should be considered to be applicable or not, must be seen from this angle of the matter.
39. The application for amendment of the plaint/petition is governed by the procedure laid down under the Code of Civil Procedure/TRAI Act. There cannot be any doubt or dispute having regard to the provisions contained in Section 16 of the TRAI Act, provisions of Code of Civil Procedure are stricto sensu not applicable. It must, however, be borne in mind that in absence of any procedure having been laid down by this Tribunal, the principles of the Code and/or those akin/analogous thereto should be followed.
40. The Code of Civil Procedure 1908 was amended with a view to cut short the time it takes in disposal of the suit. Whereas in terms of the provisions of the Code of Civil Procedure, ordinarily a suit should be disposed of within a period of nine months, the TRAI Act has mandated this Tribunal to conclude a trial within a time span of only ninety days.
41. All endeavours, thus, be made so as to avoid unnecessary adjournments and unnecessary petitions so as to make it possible to conclude the trial within a period of ninety days. A distinction must also be borne in mind between a mufassil pleading and the pleading in the original side.
42. The parties before us in the Telecom Disputes have huge stakes. The petitions filed before us are considered to be akin to the suits filed before the original side of High Courts.
43. The counsel appearing for the parties are, therefore, better equipped than the mufassil lawyers.
44. We, however, do not mean to say that no error is expected to be committed by them, but the same would only mean that it was expected that all pros and cons of the case must have been taken into consideration. The Supreme Court only has taken a view on the construction of Clause 6.4.6 of the Interconnection Agreement entered into by and between the parties hereto. It, however, did not mean that the petitioner had never put forward its case on the question of applicability of the said clause. In fact, from the judgment of this Tribunal, which has since been reversed by the Apex Court, it
will be evident that both aspects of the matter namely, the construction of Clause as a penal provision, as also the applicability thereof had been put forth.
45. It is in that sense, new points are sought to be urged, new grounds are sought to be raised and new contentions are sought to be advanced which in view of the Parliamentary intent, as contained in the Code of Civil Procedure Amendment Act, 1999, must be held to be prohibited.
It is, therefore, difficult for us to agree with the submissions of the learned senior counsel that because the cause of action for filing the present petition has arisen after the judgment of the Supreme Court of India.
46. We are, however, of the opinion that by reason of the amendment, the petitioner does not intend to resile from any admission made by it as such contended by Mr. Maninder Singh. This application is dismissed.
47. However, in the facts and circumstances of the case, there shall be no order as to costs.