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

SooperKanoon Citationsooperkanoon.com/941619
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided OnJun-08-2011
Case NumberR.A. No. 5 of 2011 In M.A. No.134 of 2011 In Petition No.96 of 2011
JudgeS.B. SINHA, HAIRPERSON, THE HONOURABLE MR. G. D. GAIHA, MEMBER & THE HONOURABLE 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, Advocate. For the Respondent: Mr. Maninder Singh, Sr. Mr. Tejveer Singh Bhatia, A
Excerpt:
mr. p.k. rastogi, member the present application has been filed for review of para 6 and 8 of the interim order dated 27.05.2011 passed in m.a. no. 134 of 2011 filed in the pending petition no.96 of 2011.  2. according to the petitioner the said paragraphs recorded statements which were not submitted by the counsel for the petitioner, neither there was any statement or averment in the said m.a. no. 134 of 2011 regarding agreement/consent of the petitioner either on the issue of the due date for the purpose of calculation of interest or with regard to the refund of adc amount by the petitioner to the respondent for the period 01.02.2004 to 14.11.2004.  paragraphs 6 and 8 of the order dated 27.05.2011 is reproduced below :  “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. 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.” 3. mr. c. s. vaidyanathan, the learned senior counsel contended that the stand of the petitioner has been reflected in paragraph 17 of the interim order dated 18.04.2011 passed by this tribunal, which reads as under : “17. according to the learned counsel, the period for which the principal amount should be directed to be paid, is 14.11.2004 to 28.02.2006 and no amount is payable for the period prior to 14.11.2004. the respondent has raised bills for the period from 1st february 2004 to 13th november 2004 also. the same was not payable. secondly, the 50% of the interest should be directed to be calculated only from the due date i.e. after the bills were raised and not from the  original period.” he further contended that had there been no dispute about the payment of interest from the due date of payability of interest and payment of principal and interest amount for refund of adc, there was no need for the petitioner to file the application on 29.04.2011 against order dated 18.04.2011 passed by this tribunal. 4. mr. maninder singh, learned senior counsel appearing on behalf of the respondent, however, raised a contention, which we must note, that concessions have rightly been recorded in the light of various orders passed by this tribunal in several petitions and in particular in order dated 18.04.2011.5. we have perused the record and we find that the applicant had filed m.a. no. 134 of 2011 in petition no. 96 of 2011 wherein it had requested for following reliefs : (a) direct respondent bsnl to comply with this hon’ble 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 alonwith petition no.s 156 -169 of 2011in its true spirit.  (b) 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. we see that the main request of the petitioner was to direct respondent bsnl to  implement the order dated 18.4.2011 passed in petition 141 of 2011. it did not question the said order at any forum at that time. we would like to quote the relevant paras of the order related to the issue of demand raised for the period 1.2.2004 to 13.11.2004: “22. the learned counsel for the respondent was specifically asked to explain about the bills for the period from 1st february 2004 to 13.11.2004. he explained that the bills were raised for the period not in terms of clause 6.4.6 but towards refund of the amount paid by bsnl to the petitioner treating the petitioner’s service as fixed services. 23. the arguments were heard in quite detail. the learned counsel for petitioner, pointed out that an amount about rs. 7.00 crore does not pertain to the adc paid by bsnl to the petitioner. in fact, this  should have been only around 7.00 lakhs as per the record of the petitioner.  such erroneous demand and interest on the said amount makes it a huge sum. 24. mr. vaidyanathan would urge that a refund cannot be claimed by threatening disconnection. when the judgment of the supreme court was passed in the aforementioned matters on 30.4.2008, the amount became payable to the bsnl. in all fairness, the petitioner should have paid the said amount to the respondent on the basis of its own records, as it itself states that some more amount was paid to bsnl believing that its services were mobile services and not  fixed services. in that view of the matter, it is also difficult for us to agree with the submissions of mr. vaidyanathan that prima facie the said bills are barred by limitation in view of the decision of the supreme court of india in 2004 (2) scc 747. 25. moreover, the petitioner has not filed the bills issued by the respondent, which would contain the details of the charges. a question arose, as to whether adc was to be recovered from february, 2004 to october, 2004 amounting to rs.7 crores. it was accepted that the same requires verification. 26. mr. maninder singh very fairly submitted that as the same requires verification, the said amount may not be directed to be deposited. 27. therefore, we direct in modification of our order that the petitioner need not deposit the amount of rs.7 crores for the period february 2004 to october 2004 and also interest on the said amount. however, so far as the rate of interest on the amount of refund for the period prior to 14.11.2004 is concerned, in our opinion the rate of interest should be reasonable, which was for the time being determine @ 12 % p.a without any prejudice to the rights and contentions of the parties purely as an interim measure and subject to the final outcome of these petitions. the petitioner shall pay to the respondent 50% of the interest calculated on that basis.” 7. we had given clear findings about the amount of refund for the period prior to 14.11.2004 as can be clearly understood from above quoted paras. the demand of rs. 7.00 crores required verification, however, an amount of rs. 7 lakhs was the principal amount which was to be paid alongwith interest as explained at para 27 of our order quoted above. 8. the other issue related to the explanation as to what was due date. we had elaborated the same in terms of the following in order dated 18.04.2011 :“28. in our interim order dated 11.02.2011 we had specifically mentioned that the petitioner should pay 50% of the amount of interest calculated @ 24% per annum for the period of delay beyond 30 days. the amount of interest was to be calculated from due date. the learned counsel for the petitioner has raised an issue that the due date should be from the date of the bills raised by the respondent. we are, prima facie of the opinion that when a legitimate demand is made after the final findings, the interest would have to be paid from the date when it became due and the due date here 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 petitioner’s service being mobile ab initio. therefore, the amount has to be paid from the date it became payable after considering to be mobile as confirmed by the order of this tribunal as well as supreme court this is also without any prejudice to the rights and contentions of the parties and subject to the final outcome of these petitions”9. the petitioner in its m.a. 134 of 2011 had requested to implement the order dated 18.04.2011. the issue in this m.a. 134 of 2011 was the interpretation of the interim order dated 18.04.2011. the main petition no. 96 of 2011 was not under discussion at all. the learned counsel had again argued as contended at para 3 mentioned above. however, it was explained sufficiently that both the points relating to the due date as well as refund of adc amount have been fully covered in our order dated 18.04.2011. there was little scope of further clarification. however, the factual aspect of the amounts relating to the refund amount for the period prior to 13.11.2004 was discussed in detail i.e. quantification of the principal amount due for the period february 2004 to 13.11.2004 as also the amount of interest which was payable by petitioner to respondent in terms of our interim order. 10. the petitioner, keeping in view that it itself wanted implementation of the order dated 18.4.2011, could not have questioned the correctness thereof. the said order was binding on the parties. no question of interpretation thereof could have been raised. 11. we have no hesitation to record that the petitioner is opposing the calculation of interest from the original date. similarly, it is opposing any payment for the period prior to 13.11.2004. this aspect has to be gone into at the final hearing and not at this stage in view of the order which we have already passed. our observations in our order dated 27.05.2011 is based on our impressions and our understanding of the submissions and contentions made by the counsel for the petitioner and the respondent so far as effect of our previous order is concerned. 12. we, therefore, are of the opinion in view of the circumstances that it is not necessary to allow this review application. 13. we, may, however, place on record that during the course of submissions made in this matter, mr. srinivasan, learned senior counsel submitted that the petitioner is ready and willing to deposit a sum of rs 86 lakhs, towards interest and the respondent should not disconnect its pois and should connect those pois, if disconnected anywhere. 14. mr. maninder singh, the learned senior counsel contended that the total dues of the petitioner was rs. 86 lakhs and rs. 36 lakhs towards the period from february 2004 to 13.11.2004. as this issue was not part of the r.a, we have not discussed this matter and it is for the petitioner to seek any relief available under law and at appropriate forum.
Judgment:

Mr. P.K. Rastogi, Member

The present application has been filed for review of para 6 and 8 of the interim order dated 27.05.2011 passed in M.A. No. 134 of 2011 filed in the pending Petition No.96 of 2011.

 2. According to the petitioner the said paragraphs recorded statements which were not submitted by the counsel for the petitioner, neither there was any statement or averment in the said M.A. No. 134 of 2011 regarding agreement/consent of the petitioner either on the issue of the due date for the purpose of calculation of interest or with regard to the refund of ADC amount by the petitioner to the respondent for the period 01.02.2004 to 14.11.2004.

 Paragraphs 6 and 8 of the order dated 27.05.2011 is reproduced below :

 “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.

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.”

3. Mr. C. S. Vaidyanathan, the learned senior counsel contended that the stand of the petitioner has been reflected in paragraph 17 of the interim order dated 18.04.2011 passed by this Tribunal, which reads as under :

“17. According to the learned counsel, the period for which the principal amount should be directed to be paid, is 14.11.2004 to 28.02.2006 and no amount is payable for the period prior to 14.11.2004. The respondent has raised bills for the period from 1st February 2004 to 13th November 2004 also. The same was not payable. Secondly, the 50% of the interest should be directed to be calculated only from the due date i.e. after the bills were raised and not from the  original period.”

He further contended that had there been no dispute about the payment of interest from the due date of payability of interest and payment of principal and interest amount for refund of ADC, there was no need for the petitioner to file the application on 29.04.2011 against order dated 18.04.2011 passed by this Tribunal. 4. Mr. Maninder Singh, learned senior counsel appearing on behalf of the respondent, however, raised a contention, which we must note, that concessions have rightly been recorded in the light of various orders passed by this Tribunal in several petitions and in particular in order dated 18.04.2011.5. We have perused the record and we find that the applicant had filed M.A. No. 134 of 2011 in Petition No. 96 of 2011 wherein it had requested for following reliefs :

(a) Direct Respondent BSNL to comply with this Hon’ble 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 alonwith Petition No.s 156 -169 of 2011in its true spirit.

 (b) 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. We see that the main request of the petitioner was to Direct Respondent BSNL to  implement the order dated 18.4.2011 passed in Petition 141 of 2011. It did not question the said order at any forum at that time. We would like to quote the relevant paras of the order related to the issue of demand raised for the period 1.2.2004 to 13.11.2004:

“22. The learned counsel for the respondent was specifically asked to explain about the bills for the period from 1st February 2004 to 13.11.2004. He explained that the bills were raised for the period not in terms of clause 6.4.6 but towards refund of the amount paid by BSNL to the petitioner treating the petitioner’s service as fixed services.

23. The arguments were heard in quite detail.

The learned counsel for petitioner, pointed out that an amount about Rs. 7.00 crore does not pertain to the ADC paid by BSNL to the petitioner. In fact, this  should have been only around 7.00 lakhs as per the record of the petitioner.

 Such erroneous demand and interest on the said amount makes it a huge sum.

24. Mr. Vaidyanathan would urge that a refund cannot be claimed by threatening disconnection. When the judgment of the Supreme Court was passed in the aforementioned matters on 30.4.2008, the amount became payable to the BSNL. In all fairness, the petitioner should have paid the said amount to the respondent on the basis of its own records, as it itself states that some more amount was paid to BSNL believing that its services were mobile services and not  fixed services. In that view of the matter, it is also difficult for us to agree with the submissions of Mr. Vaidyanathan that prima facie the said bills are barred by limitation in view of the decision of the Supreme Court of India in 2004 (2) SCC 747.

25. Moreover, the petitioner has not filed the bills issued by the respondent, which would contain the details of the charges. A question arose, as to whether ADC was to be recovered from February, 2004 to October, 2004 amounting to Rs.7 crores. It was accepted that the same requires verification.

26. Mr. Maninder Singh very fairly submitted that as the same requires verification, the said amount may not be directed to be deposited.

27. Therefore, we direct in modification of our order that the petitioner need not deposit the amount of Rs.7 crores for the period February 2004 to October 2004 and also interest on the said amount. However, so far as the rate of interest on the amount of refund for the period prior to 14.11.2004 is concerned, in our opinion the rate of interest should be reasonable, which was for the time being determine @ 12 % p.a without any prejudice to the rights and contentions of the parties purely as an interim measure and subject to the final outcome of these petitions.

The petitioner shall pay to the respondent 50% of the interest calculated on that basis.”

7. We had given clear findings about the amount of refund for the period prior to 14.11.2004 as can be clearly understood from above quoted paras. The demand of Rs. 7.00 crores required verification, however, an amount of Rs. 7 lakhs was the principal amount which was to be paid alongwith interest as explained at para 27 of our order quoted above.

8. The other issue related to the explanation as to what was due date. We had elaborated the same in terms of the following in order dated 18.04.2011 :“28. In our interim order dated 11.02.2011 we had specifically mentioned that the petitioner should pay 50% of the amount of interest calculated @ 24% per annum for the period of delay beyond 30 days. The amount of interest was to be calculated from due date. The learned counsel for the petitioner has raised an issue that the due date should be from the date of the bills raised by the respondent. We are, prima facie of the opinion that when a legitimate demand is made after the final findings, the interest would have to be paid from the date when it became due and the due date here 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 petitioner’s service being mobile ab initio. Therefore, the amount has to be paid from the date it became payable after considering to be mobile as confirmed by the order of this Tribunal as well as Supreme Court This is also without any prejudice to the rights and contentions of the parties and subject to the final outcome of these petitions”9. The petitioner in its M.A. 134 of 2011 had requested to implement the order dated 18.04.2011. The issue in this M.A. 134 of 2011 was the interpretation of the interim order dated 18.04.2011. The main Petition No. 96 of 2011 was not under discussion at all. The learned counsel had again argued as contended at para 3 mentioned above. However, it was explained sufficiently that both the points relating to the due date as well as refund of ADC amount have been fully covered in our order dated 18.04.2011. There was little scope of further clarification. However, the factual aspect of the amounts relating to the refund amount for the period prior to 13.11.2004 was discussed in detail i.e. quantification of the principal amount due for the period February 2004 to 13.11.2004 as also the amount of interest which was payable by petitioner to respondent in terms of our interim order.

10. The petitioner, keeping in view that it itself wanted implementation of the order dated 18.4.2011, could not have questioned the correctness thereof. The said order was binding on the parties. No question of interpretation thereof could have been raised.

11. We have no hesitation to record that the petitioner is opposing the calculation of interest from the original date. Similarly, it is opposing any payment for the period prior to 13.11.2004. This aspect has to be gone into at the final hearing and not at this stage in view of the order which we have already passed. Our observations in our order dated 27.05.2011 is based on our impressions and our understanding of the submissions and contentions made by the counsel for the petitioner and the respondent so far as effect of our previous order is concerned.

12. We, therefore, are of the opinion in view of the circumstances that it is not necessary to allow this Review Application.

13. We, may, however, place on record that during the course of submissions made in this matter, Mr. Srinivasan, learned senior counsel submitted that the petitioner is ready and willing to deposit a sum of Rs 86 lakhs, towards interest and the respondent should not disconnect its POIs and should connect those POIs, if disconnected anywhere.

14. Mr. Maninder Singh, the learned senior counsel contended that the total dues of the petitioner was Rs. 86 lakhs and Rs. 36 lakhs towards the period from February 2004 to 13.11.2004. As this issue was not part of the R.A, we have not discussed this matter and it is for the petitioner to seek any relief available under law and at appropriate forum.