Reliance Communication Ltd. Vs. Bharat Sanchar Nigam Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/941415
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided OnFeb-11-2011
Case NumberPetition No.92 OF 2011
JudgeS.B. SINHA, CHAIRPERSON, THE HONOURABLE MR. G.D. GAIHA, MEMBER & THE HONOURABLE MR. P.K. RASTOGI, MEMBER
AppellantReliance Communication Ltd.
RespondentBharat Sanchar Nigam Ltd.
Advocates:For Petitioner: Mr.C.S. Vaidyanathan, Sr. Advocate with Ms. Manali Singhal and Mr. Santosh Sachin, Advocates. For Respondent: Ms.Pratibha M. Singh, Mr.Paras Anand and Mr. Ravi Bhardwaj, Advocates.
Excerpt:
p.k. rastogi the petitioner herein is a licensee having been granted basic operator license. it commenced a limited mobility services relying or on the basis of the terms and condition of the said basic operator’s license. the question which was raised was as to whether the petitioner could do so. the respondent herein which is a successor in interest of the department of telecommunication asked the petitioner to pay charges relating to iuc including adc, as being, the petitioner has launched a full mobile services. questioning the said demands petitions were filed before this tribunal. the issue was answered in favour of the respondent. the matter went up to the supreme court of india. it upheld the decision of this tribunal. on the question of quantum of the amount payable, the matter was considered afresh by this tribunal in petition no.109 of 2008. the tribunal held the petitioner to be liable. the respondent, however, raised a demand claiming interest on the principal amount. there exist a controversy as to whether the pois have been disconnected or not. according to the learned counsel for the respondent, the petitioner promised to settle the bills within a period of 10 days from 25.1.2011 and the said request having been acceded to by the respondent in terms of its letter dated 27.1.2011, on the expiry of the said period disconnection of the pois of the petitioner has already been effected. the question which arises for consideration is as to whether the petitioner is bound to pay the demanded amount. mr. vaidyanathan, learned senior counsel appearing on behalf of the petitioner took us through the pleadings of the parties as also the orders passed by the supreme court of india and this tribunal to contend that the respondent cannot demand any interest on the principal sum as the question of interest was not decided by the apex court. it has been pointed out that this tribunal in the case of the parties in respect of gujarat circle has directed payment of the principal amount alone. mr. singh, learned counsel appearing on behalf of the respondent, on the other hand, submitted:- (1) that the amount of iuc including adc was payable to bsnl and the only question which was not decided in the earlier petition was the amount qua the other private operators. (2) m/s tata has agreed to pay both the principal amount as also the amount of interest. (3) the respondent has raised the bill for the subsequent period in terms of the observations made by this tribunal with liberty to challenge the same as also the clause 6.4.6 of the agreement. it is true m/s tata has made its payments. it is also true that the principles in regard to the liability of the petitioner has already been determined. it is furthermore true that in the earlier of litigation the period in fact was 14.11.2004 up to 26.8.2005. it is also not in controversy that the petitioner has not paid any interest on the amount in respect whereof its liability has been determined. however, keeping in view the fact that the order of this tribunal dated 15.4.2010 is pending before the supreme court of india and as it is stated before us that the petitioner has also a counter claim against the respondent which could not be raised because of the non availability of cdr from bsnl, we are of the opinion that the interest of justice would be subserved if in the facts and circumstances of this case and in particular having regard to the fact that some pois of the petitioner already stand disconnected/might have been disconnected, the respondent is restrained from disconnecting the pois of the petitioner which have not been disconnected and restore those which have been disconnected on the petitioner’s depositing the entire principal amount and 50% of the amount of interest as per the agreement clearly specifying for the period from 14.11.2004 upto 26.8.2005 and 27.8.2005 upto 28.2.2006, such demand shall be made within one week from the date before the various officers of the respective circles. this order is, however, being passed without prejudice to the rights and contentions of the parties and subject to any other or further order which may be passed by this tribunal.
Judgment:

P.K. RASTOGI

The petitioner herein is a licensee having been granted basic operator license. It commenced a limited mobility services relying or on the basis of the terms and condition of the said basic operator’s license.

The question which was raised was as to whether the petitioner could do so. The respondent herein which is a successor in interest of the Department of Telecommunication asked the petitioner to pay charges relating to IUC including ADC, as being, the petitioner has launched a full mobile services.

Questioning the said demands petitions were filed before this Tribunal. The issue was answered in favour of the respondent. The matter went up to the Supreme Court of India. It upheld the decision of this Tribunal. On the question of quantum of the amount payable, the matter was considered afresh by this Tribunal in Petition No.109 of 2008. The Tribunal held the petitioner to be liable.

The respondent, however, raised a demand claiming interest on the principal amount.

There exist a controversy as to whether the POIs have been disconnected or not. According to the learned counsel for the respondent, the petitioner promised to settle the bills within a period of 10 days from 25.1.2011 and the said request having been acceded to by the respondent in terms of its letter dated 27.1.2011, on the expiry of the said period disconnection of the POIs of the petitioner has already been effected.

The question which arises for consideration is as to whether the petitioner is bound to pay the demanded amount.

Mr. Vaidyanathan, learned senior counsel appearing on behalf of the petitioner took us through the pleadings of the parties as also the orders passed by the Supreme Court of India and this Tribunal to contend that the respondent cannot demand any interest on the principal sum as the question of interest was not decided by the Apex Court. It has been pointed out that this Tribunal in the case of the parties in respect of Gujarat circle has directed payment of the principal amount alone.

Mr. Singh, learned counsel appearing on behalf of the respondent, on the other hand, submitted:-

(1) That the amount of IUC including ADC was payable to BSNL and the only question which was not decided in the earlier petition was the amount qua the other private operators.

(2) M/s Tata has agreed to pay both the principal amount as also the amount of interest.

(3) The respondent has raised the bill for the subsequent period in terms of the observations made by this Tribunal with liberty to challenge the same as also the Clause 6.4.6 of the agreement.

It is true M/s Tata has made its payments. It is also true that the principles in regard to the liability of the petitioner has already been determined. It is furthermore true that in the earlier of litigation the period in fact was 14.11.2004 up to 26.8.2005.

It is also not in controversy that the petitioner has not paid any interest on the amount in respect whereof its liability has been determined.

However, keeping in view the fact that the order of this Tribunal dated 15.4.2010 is pending before the Supreme Court of India and as it is stated before us that the petitioner has also a counter claim against the respondent which could not be raised because of the non availability of CDR from BSNL, we are of the opinion that the interest of justice would be subserved if in the facts and circumstances of this case and in particular having regard to the fact that some POIs of the petitioner already stand disconnected/might have been disconnected, the respondent is restrained from disconnecting the POIs of the petitioner which have not been disconnected and restore those which have been disconnected on the petitioner’s depositing the entire principal amount and 50% of the amount of interest as per the agreement clearly specifying for the period from 14.11.2004 upto 26.8.2005 and 27.8.2005 upto 28.2.2006, such demand shall be made within one week from the date before the various officers of the respective circles.

This order is, however, being passed without prejudice to the rights and contentions of the parties and subject to any other or further order which may be passed by this Tribunal.