Reliance Communications Ltd, Mumbai Vs. Bharat Sanchar Nigam Ltd, New Delhi - Court Judgment

SooperKanoon Citationsooperkanoon.com/941504
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided OnMay-27-2011
Case NumberM.A. No.134 of 2011 in Petition No.96 of 2011
JudgeS.B. SINHA, CHAIRPERSON, MR. G. D. GAIHA, MEMBER & MR. P.K. RASTOGI, MEMBER
AppellantReliance Communications Ltd, Mumbai
RespondentBharat Sanchar Nigam Ltd, New Delhi
Advocates:For the Petitioner: Mr. C.S.Vaidyanathan,Senior Advocate, Mr. Ramji Srinivasan, Senior Advocate Ms. Manali Singhal, Mr. Santosh Sachin, Advocates.For Respondent:Ms. Prathiba M. Singh, Advocate, Mr. Te
Excerpt:
p.k. rastogi, member the applicant has filed the present application before this tribunal being aggrieved by the demand/ threat of disconnection dated 28.4.2011 raised by respondent bsnl jaipur unit.   according to the applicant, these demands were contrary to the intent and spirit of various interim orders passed by this tribunal being orders dated 11.02.2011 (petition nos. 86, 87, 92, 96 of 2011), 1.3.2011(m.a. no. 66 of 2011 in petition no. 86 of 2011), 10.3.2011(petition no. 141 of 2011), and 18.4.2011(petition nos. 141 of 2011 with petitions 156 to 169 of 2011). 2. the applicant has submitted that it has paid 100% of the principal amount demanded by bsnl and 50% of the interest amount calculated as per the terms of the interconnect agreement as amended up to date and as decided by this tribunal vide its orders dated 11.02.11, 1.03.2011, and 10.3.2011. the said demand and payment as an interim measure was ordered and also understood between the parties to be payable for the period 14.11.2004 to 28.02.2006. the payment made by the petitioner was accepted as per above understanding. the payment of demand for the period from 1.2.2004 to 13.11.2004 was not payable at all. 3. the applicant further submitted that in accordance with order dated 11.2.2011 in petition 96 of 2011 the period prior to november 2004 was not covered and as per understanding between the  petitioner as well as the respondent bsnl the no demand for the period prior to 14.11.2004 was payable. on such understanding respondent bsnl accepted the payment made by the petitioner in terms of the order dated 11.2.2011. now after the order dated 18.4.2011 in petition 141 of 2011 alongwith petition nos. 156-169 of 2011 respondent bsnl have started  raising demands for the period prior to 14.11.2004 both for adc as well as for refund of adc. 4. despite the above, interim payment has been made by the petitioner in compliance of this tribunal’s various orders dated 11.02.2011, 1.3.2011, 10.3.2011, 18.4.2011 and despite the admission made by respondent bsnl before this tribunal that bills for the refund of adc amounts for the period 1.2.2004 to 13.11.2004 requires verification, the respondent bsnl circle office is continuously insisting on payment of the demand for the period from 1.2.2004 to 13.11.2004 too and under such erroneous demand is issuing threats of disconnection of petitioner’s pois  if the amount as demanded is not paid. 5.  in view of the above facts,  the applicant has requested for the following reliefs:“a.        direct respondent bsnl to comply with this tribunal’s order dated 11.02.2011 and 1.3.2011 in petition 96 of 2011 and order dated 18.4.2011 passed in petition 141 of 2011 alongwith petition no.s 156 -169 of 2011 in its true spirit.direct the respondent bsnl not to coerce the petitioner under threat of disconnection to pay the demand raised for the period from 1.2.2004 to 13.11.2004. c. injunct the respondent bsnl from taking any coercive steps including the disconnection of petitioner’s pois till the final disposal of the petition.”6. mr. c. s. vaidyanathan, the learned senior counsel appearing on behalf of the petitioner has submitted that this tribunal by its interim order dated 18.04.2011 had clarified that only amount paid by the respondent to the petitioner for the period from 01.02.2004 to 13.11.2004 was refundable to the respondent.   but the respondent is claiming the adc amount for the said period.  the respondent has again raised a demand on 28.04.2011 in terms of the following : “1. with reference to the above cited subject, it is informed that as per interim orders dated 18.04.2011 interest is to be charged from reliance from the date when it became due and the due date means when the amount became payable, which means when the amount should have been paid at the first instance, had there been no dispute about and the service being mobile ab intio.            as per tdsat order, entire principal amounts alongwith 50% of the interest amount had to be paid by 25.04.2011 but the payment has not been paid as per learned tdsat order.  therefore, kindly deposit the balance 50% amount of interest rs. 8600405/- as per annexure a) upto 30.04.2011. 2. the demands raised by bsnl for refund of adc paid by it to reliance during the period 01.02.2004 to 13.11.2004 are to be paid back by reliance with interest @ 12 per annum. kindly deposit the adc refund amount and its interest amount accordingly upto 30.4.2011 otherwise action will be taken to disconnect all basic pois as per bsnl hq instructions and terms and conditions of the interconnect agreement.”annexure a name of the circle statement of recovery of supplementary / arrear adc bills from m/s reliance communication ltd.(rcl) in respect of their wll(m) services under the brand name “unlimited cordless” respectively s.no. name of the operator total bill raised by the circle amount recovered directly by the unitapportionment done by c.o.balance claim to be realizedfurther bill raised fro reconnection charges further bill for interest on delayed payment amount recovered directly by the unit total amount yet recoverable on a/c of adc+recon charges +interest remarksamount tds12345678910111m/s rcl (unlimited cordless)136647511324072741042402370nil9971497734933051632403358457893interest calculated from pay by date to 18.02.201150% interest amount of total =49857489less: total interest paid (column 9)41257084balance interest payable by reliance86004057. mrs. prathiba m. singh, the learned counsel appearing on behalf of the respondent submits that the petitioner has not paid the interest amount in terms of the various interim order issued by this tribunal.  she clarified that the demand include the principal and interest for the period starting from 14.12.2004 to 28.02.2006 and refund of the principal and interest paid to the petitioner as adc treating its service as fixed service.   the calculation of interest has been made in terms of this tribunal’s order dated 18.04.2011 in petition no. 141 of 2011. 8.  there doesn’t seem to be any dispute regarding the interpretation of our interim orders issued on different dates as mentioned above.   both the counsel agree that the interest will have to be paid from the date when the amount became due at the first instance.   both parties further agree that the respondent is liable to get its money back which it paid to the petitioner as adc during the period 1.2.2004 to 13.11.2004.  the only dispute seems to be factual aspect.    while the counsel for the respondent says that they are asking to refund only that amount which was paid by it to the petitioner as adc for the period prior to 14.11.2004, the learned counsel of the petitioner disputes the same. 9. the respondent has raised a demand of rs. 86,00,405/- on 28.4.2011 upon quantifying the amount payable by the petitioner towards interest.   the demand note attached with the letter of the respondent does not show any details of the period and the rate of interest calculated.  we are of the opinion that it is necessary to show the details of the amount payable clearly and separately for the period 14.11.2004 to 28.02.2006 and for the period 1.2.2004 to 13.11.2004 as the rate of interest to be calculated are different for both these period.  further as determined in petition no. 141 of 2011, the amount of adc paid to the petitioner by the respondent for the period prior to 14.11.2004 should be clearly indicated to avoid any dispute. 10. therefore, a clarification was sought from the respondent by this tribunal on 26.05.2011 in this regard.  ms. prathiba m. singh, the learned counsel for the respondent clarified that no demand has been calculated for the period prior to 13.11.2004.  the supplementary demand of rs. 86,00,405/- relates to the period post 14.11.2004 only, as can be seen from bsnl letter 28.04.2011 quoted at para 6 above.  the clarification of the respondent given today was contrary to the stand taken by it on the date of first hearing in this m.a.   had the issue been clarified in the ist hearing itself, there would not have been any dispute at all. 11. in view of the clarification given by the counsel of the respondent, the petitioner is directed to pay the amount mentioned at annexure a of the bsnl letter dated 28.04.2011 within a period of one week from today.  subject to the compliance of this direction, there shall not be any disconnection of pois of the petitioner.  the respondent, however, may serve on the petitioner its calculation as interest payable on the principal amount in regard to the dues relating to the period prior to 14.11.2004.12. this m.a. is disposed of with aforementioned directions.
Judgment:

P.K. Rastogi, Member

The Applicant has filed the present application before this Tribunal being aggrieved by the demand/ threat of disconnection dated 28.4.2011 raised by respondent BSNL Jaipur Unit.   According to the applicant, these demands were contrary to the intent and spirit of various interim orders passed by this Tribunal being Orders dated 11.02.2011 (Petition Nos. 86, 87, 92, 96 of 2011), 1.3.2011(M.A. No. 66 of 2011 in Petition No. 86 of 2011), 10.3.2011(Petition No. 141 of 2011), and 18.4.2011(Petition Nos. 141 of 2011 with Petitions 156 to 169 of 2011).

2. The applicant has submitted that it has paid 100% of the principal amount demanded by BSNL and 50% of the interest amount calculated as per the terms of the Interconnect Agreement as amended up to date and as decided by this Tribunal vide its orders dated 11.02.11, 1.03.2011, and 10.3.2011. The said demand and payment as an interim measure was ordered and also understood between the parties to be payable for the period 14.11.2004 to 28.02.2006. The payment made by the Petitioner was accepted as per above understanding. The payment of demand for the period from 1.2.2004 to 13.11.2004 was not payable at all.

3. The applicant further submitted that in accordance with order dated 11.2.2011 in Petition 96 of 2011 the period prior to November 2004 was not covered and as per understanding between the  Petitioner as well as the Respondent BSNL the no demand for the period prior to 14.11.2004 was payable. On such understanding Respondent BSNL accepted the payment made by the Petitioner in terms of the order dated 11.2.2011. Now after the Order dated 18.4.2011 in Petition 141 of 2011 alongwith Petition Nos. 156-169 of 2011 Respondent BSNL have started  raising demands for the period prior to 14.11.2004 both for ADC as well as for refund of ADC.

4. Despite the above, interim payment has been made by the Petitioner in compliance of this Tribunal’s various orders dated 11.02.2011, 1.3.2011, 10.3.2011, 18.4.2011 and despite the admission made by Respondent BSNL before this Tribunal that bills for the refund of ADC amounts for the period 1.2.2004 to 13.11.2004 requires verification, the Respondent BSNL circle office is continuously insisting on payment of the demand for the period from 1.2.2004 to 13.11.2004 too and under such erroneous demand is issuing threats of disconnection of Petitioner’s POIs  if the amount as demanded is not paid.

5.  In view of the above facts,  the applicant has requested for the following reliefs:

“a.        Direct Respondent BSNL to comply with this Tribunal’s order dated 11.02.2011 and 1.3.2011 in Petition 96 of 2011 and order dated 18.4.2011 passed in Petition 141 of 2011 alongwith Petition No.s 156 -169 of 2011 in its true spirit.

  1. Direct the Respondent BSNL not to coerce the Petitioner under threat of disconnection to pay the demand raised for the period from 1.2.2004 to 13.11.2004.
 c. Injunct the Respondent BSNL from taking any coercive steps including the disconnection of Petitioner’s POIs till the final disposal of the Petition.”

6. Mr. C. S. Vaidyanathan, the learned senior counsel appearing on behalf of the petitioner has submitted that this Tribunal by its interim order dated 18.04.2011 had clarified that only amount paid by the respondent to the petitioner for the period from 01.02.2004 to 13.11.2004 was refundable to the respondent.   But the respondent is claiming the ADC amount for the said period.  The respondent has again raised a demand on 28.04.2011 in terms of the following :

“1. with reference to the above cited subject, it is informed that as per interim orders dated 18.04.2011 interest is to be charged from Reliance from the date when it became due and the due date means when the amount became payable, which means when the amount should have been paid at the first instance, had there been no dispute about and the service being mobile ab intio.

           As per TDSAT order, entire principal amounts alongwith 50% of the interest amount had to be paid by 25.04.2011 but the payment has not been paid as per learned TDSAT order.  Therefore, kindly deposit the balance 50% amount of interest Rs. 8600405/- as per Annexure A) upto 30.04.2011.

2. The demands raised by BSNL for refund of ADC paid by it to Reliance during the period 01.02.2004 to 13.11.2004 are to be paid back by Reliance with interest @ 12 per annum.

Kindly deposit the ADC refund amount and its interest amount accordingly upto 30.4.2011 otherwise action will be taken to disconnect all basic POIs as per BSNL HQ instructions and terms and conditions of the Interconnect Agreement.”

Annexure A
Name of the circle

Statement of recovery of supplementary / arrear ADC bills from M/s Reliance Communication Ltd.(RCL) in respect of their WLL(M) services under the brand name “unlimited cordless” respectively

S.no. Name of the operator Total bill raised by the circle Amount recovered directly by the unitApportionment done by C.O.Balance claim to be realizedFurther bill raised fro reconnection charges Further bill for interest on delayed payment Amount recovered directly by the unit Total amount yet recoverable on a/c of ADC+Recon charges +Interest Remarks
Amount TDS
1234567891011
1M/s RCL (Unlimited cordless)136647511324072741042402370Nil9971497734933051632403358457893Interest calculated from pay by date to 18.02.2011
50% interest amount of total =49857489
Less: total interest paid (column 9)41257084
Balance interest payable by reliance8600405

7. Mrs. Prathiba M. Singh, the learned counsel appearing on behalf of the respondent submits that the petitioner has not paid the interest amount in terms of the various interim order issued by this Tribunal.  She clarified that the demand include the principal and interest for the period starting from 14.12.2004 to 28.02.2006 and refund of the principal and interest paid to the petitioner as ADC treating its service as fixed service.   The calculation of interest has been made in terms of this Tribunal’s order dated 18.04.2011 in Petition No. 141 of 2011. 8.  There doesn’t seem to be any dispute regarding the interpretation of our interim orders issued on different dates as mentioned above.   Both the counsel agree that the interest will have to be paid from the date when the amount became due at the first instance.   Both parties further agree that the respondent is liable to get its money back which it paid to the petitioner as ADC during the period 1.2.2004 to 13.11.2004.  The only dispute seems to be factual aspect.    While the counsel for the respondent says that they are asking to refund only that amount which was paid by it to the petitioner as ADC for the period prior to 14.11.2004, the learned counsel of the petitioner disputes the same.

9. The respondent has raised a demand of Rs. 86,00,405/- on 28.4.2011 upon quantifying the amount payable by the petitioner towards interest.   The demand note attached with the letter of the respondent does not show any details of the period and the rate of interest calculated.  We are of the opinion that it is necessary to show the details of the amount payable clearly and separately for the period 14.11.2004 to 28.02.2006 and for the period 1.2.2004 to 13.11.2004 as the rate of interest to be calculated are different for both these period.  Further as determined in Petition No. 141 of 2011, the amount of ADC paid to the petitioner by the respondent for the period prior to 14.11.2004 should be clearly indicated to avoid any dispute.

10. Therefore, a clarification was sought from the respondent by this Tribunal on 26.05.2011 in this regard.  Ms. Prathiba M. Singh, the learned counsel for the respondent clarified that no demand has been calculated for the period prior to 13.11.2004.  The supplementary demand of Rs. 86,00,405/- relates to the period post 14.11.2004 only, as can be seen from BSNL letter 28.04.2011 quoted at para 6 above.  The clarification of the respondent given today was contrary to the stand taken by it on the date of first hearing in this M.A.   Had the issue been clarified in the Ist hearing itself, there would not have been any dispute at all.

11. In view of the clarification given by the counsel of the respondent, the petitioner is directed to pay the amount mentioned at Annexure A of the BSNL letter dated 28.04.2011 within a period of one week from today.  Subject to the compliance of this direction, there shall not be any disconnection of PoIs of the petitioner.  The respondent, however, may serve on the petitioner its calculation as interest payable on the principal amount in regard to the dues relating to the period prior to 14.11.2004.12. This M.A. is disposed of with aforementioned directions.