Dr. J.N. Seth Vs. Union of India (Uoi) and anr. - Court Judgment

K.L. Issrani, J.

1. This is an appeal against the order dated 17-2-1990 passed by the Fifth Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 2-A of 1990 refusing to grant temporary injunction against the recovery of the telephone bills of the appellant.

2. In this case, the respondents haveraised a preliminary objection that the application of the appellant for appointment of an arbitrator is not maintainable because the dispute is not covered under Section 7B of the Indian Telegraph Act (hereinafter referred to as 'the Act').

3. For deciding the preliminary objection, it is necessary to mention some facts here. The appellant was nominated as a member of the M. P. Telecom Advisory Committee on 28-6-1985. His term was extended up to 30-6-1989. In his capacity as a member of the M.P.T.A.C., a free telephone No. 28888 was provided to him and was installed at his residence. No rent was to be charged for the said telephone and 1200 local calls bimonthly were allowed free on the said telephone. The appellant is also a subscriber of the telephone No. 24382. He has also other two telephone bearing numbers 21432 and 27121 in the name of his sons Sanjay Seth and Dr. Ajay Seth. This position is not denied by the parties.

4. According to the appellant, from the date of the installation of the telephone No. 28888, no bills of this telephone were ever issued to him. The bills issued on other telephones were duly paid. On 5-2-1990, the appellant received a bill of Rs. 1,16,298/- on his telephone No. 28888, which was allotted to him in his capacity as a member of the M.P.T.A.C. A covering letter signed by the respondent No. 2 was sent threatening that if this bill is not paid by 15-2-1990, all his telephones will be disconnected. The appellant further submitted that for the first time in August, 1988, a bill on this telephone was issued for Rs. 8,808/-. The bill was absolutely wrong and, therefore, a protest was made and the respondents were called upon to appoint an arbitrator under Section 7B of the Act for resolving the dispute. Instead of resolving the dispute by appointing an arbitrator, the respondent No. 2 has issued the impugned bill for Rs. 1,16,298/- along with a threat of disconnection of all other telephones in the event of non-payment. Finding no response, and apprehending imminent threat of disconnection of all the telephones, the appellant filed a petition under Sections 8, 22 and 33 ofthe Indian Arbitration Act praying the lower Court for appointment of an arbitrator and quashing the recovery. The application under Section 41 of the Arbitration Act read with Order 39, Rules 1 and 2, C.P.C. was also moved by the appellant on 14-2-1990. Learned counsel for the respondents had disputed the submissions of the appellant and supported the order of the trial Court.

5. The trial Court has rejected the application on the ground that the respondent/ defendant No. 1 is not yet been served and in view of the M. P. Amendment Act No. 29 of 1984 under Order 39, Rule 2(2) of the Code of Civil Procedure, the application is not maintainable.

6. Now two points remain to be determined (i) whether the application of the appellant for appointment of an arbitrator is maintainable, and (ii) whether a temporary injunction can be granted by the trial Court under Section 41 of the Arbitration Act read with Order 39, Rules 1 and 2, C.P.C.

7. So far as the maintainability of the application for appointment of an arbitrator is concerned, Section 7B of the Indian Telegraph Act speaks as under:--

'7B. Arbitration of disputes;-- (1) Exceptas otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2) The award of the arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.'

8. The only objection of the learned counsel for the respondents is that before filing an application for appointment of an arbitrator, the appellant had not prayed orasked for appointment of an arbitrator. The submission of the learned counsel for the appellant is that the appellant has always disputed the correctness of the bills and challenge them to be decided after verification.

9, While going through various correspondences between the parties, I am of the opinion that there is a dispute relating to the correctness of the bills and the dispute about disconnection. Here the appellant has also challenged the correctness of the telephone bills on the ground of malfunctioning or misuser of the telephone lines by lineman and other staff of the telephone department. The dispute relating to the actual meter reading involving the question as to whether the meter has been correctly and honestly note down clearly falls within the purview of Section 7B of the Act, as held in Raghubir Dayal v. Union of India, AIR 1970 Allahabad 143-145. So also the dispute about disconnecting telephone from a person's premises is covered by Section 7B of the Act in the matter which is the subject-matter to be referred to arbitration as held in Rasiklal v. Divi. Engi., Raipur, 1964 MP1J 831 (DB). Relying on the above judgment of this Court, the Delhi High Court in a judgment reported in Union of India v. M/s. Usha Spinning and Weaving Mills Ltd., AIR 1982 Delhi 111, has held that in the event the correctness of the bill is challenged on the ground of malfunctioning or mususer of lines, surely a dispute concerning the telegraph line, apparatus or appliances within the meaning of Section 7B of the Act will spring up. In paragraph 5 of the petition of the appellant under Sections 8, 22 and 33 of the Indian Arbitration Act, the appellant has made allegations that 'during investigation it was detected that some undesirable persons were intercepting the lines which resulted in ex-horbitant bill.'This type of dispute is covered as per judgment of the Delhi High Court and our High Court under Section 7B of the Act. It is also to be noted that the telephone set provided to the subscriber being appliance within the meaning of Section 7B of the Act, question of recovery of bills, relating to its user, would fall under Section 7B of the Act and the dispute is to be resolved by appointment of an arbitrator. It was the duty ofthe Department to have appointed an arbitrator no sooner the dispute of the correctness of the bill is raised.

10. The High Court of Jammu and Kashmir in a case reported in Prithvi Raj Kohli v. Union of India, AIR 1988 J & K 17; while interpreting the provisions of Secton 7-B of the Act has held that Section 7B of the Act does not in any manner oust the jurisdiction of the Civil Court. The only bar contained in this provision is regarding the Court's jurisdiction to modify, remit and set aside the award and make it a rule of Court in accordance with the provisions of the Arbitration Act so far as referring the matter in dispute between the parties to the Central Government for appointment of an arbitrator is concerned, the Civil Court has jurisdiction. In this case, Nityananda v. P.M.G. Bhubaneswar, AIR 1977 Orissa 48 has been dissented from. As such, the preliminary objection has no merit. It is held that the application for appointment of an arbitrator is maintainable before the Civil Court and the Civil Court has jurisdiction to entertain such an application.

11. So far as grant of temporary injunction is concerned, in para 8 of the impugned order, the Court has rejected the application for grant of temporary injunction in view of the M. P. Amendment Act No. 29 of 1984 under Order 39, Rule 2(2) of the Code of Civil Procedure but the Court has not considered the provision of Section 41(b) of the Arbitration Act under which the Court has power to issue an interim injunction. In Orissa Vegetable Oil Complex Ltd. v. Union of India, AIR 1990 Orissa 51 it has been held that the disconnection of telephones pending dispute regarding excess bills and false metering is illegal. The demand raised under the bills against the subscriber cannot be said to be due from him if he has raised a protest against the same and the dues have not been finally determined by the arbitrator. In such an event, the only amount which would be due against the subscriber is the amount which is admitted by him as his due and the rest of it, which is disputed, must be determined by the arbitrator and only on failure to paythe dues, as determined by the arbitrator, on a demand being raised, power under the rules can be invoked to effect disconnection. Once a dispute is there, it car be solved only in the manner as provided in Section 7B of the Act and not otherwise. No doubt, in this case, the telephone number 28888 of the appellant has already been disconnected but there is an imminent threat of disconnecting his telephone number 24382 and other telephones of his sons bearing numbers 21432 and 27121. Unless the matter in dispute is referred to and decided by an arbitrator, it is necessary to restrain the respondents from disconnecting the other telephone numbers of the appellant. The respondents are, therefore, restrained from doing so during the pendency of the application and decision by the arbitrator of the dispute raised.

12. In the result, the appeal is allowed and the order of the trial Court is set aside. The respondents are directed not to disconnect telephone numbers 24382, 21432 and 27121 and not to recover the amount till the matter is heard and decided finally by the Arbitrator. However, there shall be no order as to costs.