TELECOM
DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 11th
February, 2010
Petition
No.134 of 2007
Tata Teleservices (Maharashtra) Ltd. …Petitioner
Versus
Bharat Sanchar Nigam Ltd. …Respondent
BEFORE:
HON’BLE MR. JUSTICE
S.B.SINHA, CHAIRPERSON
HON’BLE MR.G. D.
GAIHA, MEMBER
|
For Petitioner |
: |
Mr.Ramji Srinivasan, Senior
Advocate with Ms.Simran Brar, Mr.Vedant Verma, Advocates |
|
For Respondent |
: |
Mr.Maninder Singh, Senior Advocate with
Mrs.Prathiba M. Singh,Mr.Yoginder Handoo, Mr.Tejveer Singh Bhatia, Ms.Nitya Thakur, Mr.Arjun
Natarajan, Advocates |
JUDGMENT
S.B.
Sinha
Interpretation of clause 6.4.6 of the
interconnect agreement entered into by and between the parties hereto is in
question in this petition wherein the petitioner has inter alia prayed for the
following reliefs:
“(a) hold
and declare that the action of the respondent BSNL in raising these demands is
unilateral, arbitrary and impermissible in law,
(b) hold
and declare that the action of the respondent BSNL in raising these demands is
without any jurisdiction whatsoever and contrary to its own agreement and
conduct;
(c) hold
and declare that the action of the respondent BSNL in resorting to coercive
methods even after acknowledging such non-CLI calls as being technical and
unintentional in nature is bad in law;
(d) set
aside the impugned demands raised by the respondent including Demand Notes
dated 13.11.06 as revised on 6th January, 2007 and Disconnection
Notices dated 4.5.07 and 4.6.07 and/or any other Demand Note raised by the
Respondents in this regard;
(e) Refund
any excess amount already paid by Petitioner under protest to avoid
disconnection of its Points of Interconnection in respect of supplementary
bills raised by respondent;
(f) Direct
the respondent to maintain reciprocity with the petitioner in respect of the
terms of Interconnect Agreement;
(g) Declare
that clause 7.6.3 to the extent it is not reciprocal, is bad in law”
The factual
matrix involved herein is as under:
An interconnect agreement by and
between the parties hereto was entered into on or about 30.09.1997 for the
Maharashtra Service Area. It was
modified by an agreement dated 28.04.2006, the relevant clauses whereof are as
under:
“2.5 CALLING LINE PRESENTATION
2.5.1 BSNL’s
and UASL’s network shall wherever technically possible, transmit and receive
Calling Line Identification (CLI). The
Calling Line Identification from UASL’s fully mobile/ CMTS network shall
contain mobile subscriber number including 92 and from its basic services
network the CLI shall contain Access code, Area code and subscriber
number. The Calling Line Identification
from BSNL shall contain area code and subscriber number depending on the
technical feasibility.
2.5.2 Malicious
call line identification shall be transported across the network as required by
Law Enforcing Agency.
2.5.3 Disclosure
of identity of calling line will be subject to provisions of law and this
facility will be made use of for technical, commercial and administrative requirements
as prescribed by the Government of India/ any other competent authority from
time to time.
2.5.4 No
tampering/alteration of CLI of calls handed over at the POI with BSNL shall be
done by UASL. Instructions of Licensor
in this regard shall be followed by UASL failing which the concerned POI of
UASL shall be disconnected under misuse after giving one week notice in
addition to other actions prescribed in this agreement elsewhere.
2.5.5 The
switches of BSNL, which do not have CLI based call barring capability or are
not having CDR based offline-billing capability, shall be technically non
feasible for provision of point of interconnection. However, UASL undertakes that in the absence
of such capabilities in BSNL’s switches, it shall abide by all terms and
conditions including MCU based arrangements for the purpose of measurement and
billing of interconnect traffic as mutually agreed and thus mentioned in this
agreement and that this arrangement will not be a matter of dispute, then BSNL
shall provide POIs to UASL in such switches, if otherwise feasible to do so.
It
is further agreed that in case of any regulatory/judicial intervention on the
above matters, the UASL shall be entitled to and be extended the same
relief/benefit given to any other operator to the extent it is applicable to
the UASL under this agreement.
6.4.6 WRONGLY ROUTED CALLS
(a) Unauthorised
calls i.e. calls other than specified for that trunk group if detected, for
which the applicable IUC is higher than the IUC applicable for calls prescribed
in that trunk group, then BSNL shall charge the UASL the highest applicable
IUC, as applicable for such unauthorized calls, for all the calls recorded on
this trunk group from the date of provisioning of that POI or for the preceding
two months whichever is less.
(b) The
CLI based barring facility shall be activated at the PoIs wherever technically
feasible to ensure that the traffic handed over to BSNL is in the appropriate
trunk groups only. Wherever it is
technically not feasible to activate CLI based barring, periodic monitoring of
the incoming trunk groups shall be done by BSNL to ensure this objective. The calls received by BSNL without CLI or
modified/ tampered CLI from UASL shall be charged at the highest slab i.e. as
for ISD Calls. In case such calls are
received by BSNL on any trunk group, then all the calls recorded on this trunk
group shall be charged at the rates applicable for IUC of incoming ISD Calls
from the date of provisioning of that POI or for the preceding two months, whichever
is less.
(c) When
CDR based billing is introduced in BSNL’s network some of the trunk groups
shall be merged. In such cases also, in
case unauthorized or Incoming International call, without CLI call, call with
tampered CLI is handed over to BSNL at the merged trunk group, then BSNL shall
charge the UASL the highest applicable IUC, as prescribed in clauses 6.4.6 (a)
above for unauthorized calls & 6.4.6 (b) above for Incoming International
call, without CLI call, call with tampered CLI, for all calls recorded on this
merged trunk group from the date of provisioning of that POI or for the
preceding two months whichever is less.
(d) In
addition, BSNL shall also have the right for taking other legal actions
including disconnection of POIs or temporary suspension of the Interconnection
arrangements under misuse.
7.2 ISSUE OF BILLS
7.2.1 Bills
for IUC will be issued on monthly basis by the designated unit of BSNL to the
UASL and such bills shall be payable within 15 days from the date of issue, the
UASL for the IUC, if any, due to it, may also issue similar bills.
7.2.2 Bills
for telecom resources and other support facilities, such as connection charges,
charges for leased facilities, charges for value added services and charges for
enhancement of features, if availed by the UASL will be issued by BSNL and paid
by the UASL at the intervals specified in this agreement.
7.6 SETTLEMENT OF DISPUTES REGARDING WRONG/ EXCESS
BILLING:
7.6.1 The
bills issued by BSNL based on bulk record shall be final. In case of difference upto 0.25% +/- with the
billing record of UASL, the amount billed by BSNL shall be treated as
final. If the difference is more than
+/- 0.25% but upto +/- 2%, payment shall be made by UASL. However, reconciliation of variance shall be
carried out by both parties and will be subject to dispute resolution
mechanism. Variance beyond this limit
also shall be subject to dispute resolution mechanism as specified in the
Interconnect Agreement. However, UASL
shall pay to BSNL the undisputed amount plus 50% of the disputes amount subject
to a minimum of an amount equal to previous month’s billed amount immediately.
7.6.2 In
the event UASL disputes the accuracy of a bill delivered by BSNL pursuant to
this Agreement, it will, as soon as practicable, but in any case before the
pay-by-date notify the billing liaison contact of BSNL of the nature and extent
of the dispute along with all details reasonably necessary to substantiate its
claim, which shall be reasonably capable of being verified by BSNL.
7.6.3 In
case of calculation or clerical error in the bill, the bill issuing authority
after verifying the bill, if it finds the errors genuine, will correct the
relevant bill accordingly within three days of the receipt of the complaint.
7.6.4 In
cases other than those referred in clause 7.6.3, UASL shall immediately obtain
a provisional bill from BSNL before the pay by date or the original bill on the
basis given in clause 7.6.1. The
provisional bill shall be paid by the UASL before the pay by date indicated in
the provisional bill. Thereafter, within
7 days of the issue of the provisional bill, the UASL shall approach the
designated authority of BSNL along with all his relevant records based on which
the UASL disputes the bill issued by BSNL.
The UASL shall, in consultation with the designated authority of BSNL,
settle the dispute within 15 days of the issue of the provisional bill referred
in this clause. In this consultation,
the records made by the measurement devices located at the BSNL interface point
shall have precedence over the records of the UASL. If after consultation, it is found that the
bill issued by BSNL is correct, the balance amount of the bill, which was kept
under dispute after the issue of the provisional bill, will also have to be
paid by the UASL within 7 days of the settlement of such dispute.
7.6.5 After
the settlement of the dispute, if balance of the due payment is not made within
the period referred to in clause 7.6.4, the BSNL shall discontinue the use of
its facilities by the UASL immediately on occurrence of this default. Restoration of the facility will be made only
on clearance of the dues payable by the UASL.
7.6.6 (i) Notwithstanding
anything provided herein above, if the dispute over the accuracy of the bill
fails to be resolved, in the manner already provided, the dispute shall be
referred to the CMD BSNL, for resolution.
The decision of the CMD BSNL shall be final.
(ii) Each party
shall continue to fulfill its obligations under the Interconnect Agreement
during the pendency of dispute and while dispute resolution process invoked
under sub Para (i) above except that BSNL shall not be obliged to continue to
provide and/or restore the interconnect services when all payments are not made
by the UASL.
(iii) Any party
shall not use any information obtained from other party during the course of
dispute resolution process under this clause for any purpose other than to
resolve the dispute such information shall not be used in any litigation.”
Indisputably
the Telecom Regulatory Authority of India framed IUC Regulations 2003 whereby
and whereunder the rates for termination charge as also the Access Deficit Charges(ADC)
were fixed. The details of the said
charges are specified in Appendix A to the agreement some of the relevant portions
whereof are as under:
“A. POI
of BSO at SDCC Tandem
|
S.N. |
Type of Calls |
Charges payable by BSO
to BSNL (Rs.per minute) |
Charges payable by
BSNL to BSO (Rs.per minute) |
Trunk Group Required |
|
|
Originated from
subscriber of BSO in same SDCA |
|||
|
1 |
BSO
to BSNL (F,M), ISPs, Pagers, Level 1 services like 131, 141 etc except
emergency services (100, 101, 102) |
0.30 |
0.00 |
AA |
|
2 |
BSO
to Emergency services (100, 101 & 102) of BSNL |
1.20 |
0.00 |
AA |
|
3 |
Local
Traffic originated in network of BSO, handed over to BSNL (F,M) for transit
to other BSO or to Cellular (POI of cellular network at below Level II TAX
level (in exiting cases)) |
0.49 |
0.00 |
AA |
B POI of BSO at Level II TAX of BSNL
|
S.N. |
Type of Calls |
Charges payable by BSO
to BSNL (Rs.per minute) |
Charges payable by
BSNL to BSO (Rs.per minute) |
Trunk Group Required |
|
|
Traffic Originated from subscriber of BSO and handed over
by BSO to BSNL at Originating end |
|||
|
1 |
BSO
to STD for upto 50 km |
0.50 |
0.00 |
BA |
|
2 |
BSO
to STD for > 50 km |
0.95 |
0.00 |
BA |
|
3 |
BSO
to BSNL for transit to Cellular |
0.49 |
0.00 |
BA |
”
Indisputably in terms of the said
provision, termination charges for local call was 30 paise per call, whereas
carriage charges for long distance was to be 95 paise per call. It is furthermore not in dispute that the
calls originating from the exchange of the petitioner is required to be
transferred to the parallel exchanges maintained by the respondents namely,
from TAX to TAX, Tandem to Tandem or SDC to SDC.
For the period July and August 2006,
inter alia on the premise that the petitioner has routed its calls on a wrong
trunk group as also delivered the calls at the exchange of the respondent
without any caller line identification (CLI) a demand for a sum of
Rs.14,46,31,750/- was made in terms of a bill dated 13.11.2006.
The petitioner inter alia raised a
contention that the said bill did not satisfy the requirements of the circular
letter dated 13.06.2005 issued by the respondent in terms of a letter dated 29.11.2006. It was urged that the calls in question being
related to alleged wrong routed calls, sub-clause (a) of Para 6.4.6 of the
agreement shall apply and not the sub-clause (b) thereof.
By another letter dated 15.12.2006 the
petitioner pointed out that so far as non-CLI calls are concerned, upon analysis
of its CDRs and other records it was found that only two calls did not bear CLI
which being very insignificant, no bill should have been raised relying on or
on the basis of clause 6.4.6(b). It is
not denied and disputed that no response thereto was received by the petitioner
from the respondent. Yet again on
29.05.2006 and 13.01.2007 the petitioner raised a contention that both wrong
routed calls and non-CLI calls cannot be clubbed together.
Before us, it has been pointed out
that in fact the respondent itself has raised bills claiming the difference of
payment in IUC charges at the highest applicable rate: the calls being intra
circle in nature at the rate of 75 paise and the most of the same had been paid
and only some amounts are yet to be paid.
It has, therefore, been contended that the respondent was wholly
incorrect in raising its bill at the rate of 2.55 paise per call which is meant
for the international calls in which event only the provisions of 6.4.6(b) of
the agreement would get attracted.
The respondent, however, by its
letters dated 16.02.2007 and 20.02.2007 reminded the petitioner that the amount
of bill has not been paid.
According to the petitioner a
presentation was also made before the appropriate authorities of the respondent,
a copy whereof has been annexed to the petition and marked as Annexure-II.
Mr.Ramji
Srinivasan, learned counsel appearing on behalf of the petitioner would contend
that from a perusal of the said presentation, the correctness whereof has not
been denied or disputed, it would appear that wrong routing of calls took place
because of human error as would appear from of the fact that in all the
respective areas at which the calls were meant to be terminated; the petitioner
had the requisite infrastructure including exchanges.
Our attention in this connection has
been drawn to the following:
|
TTML POI |
BSNL Exchange |
Wrong routing |
Actual IUC payable to BSNL |
IUC paid due to wrong routing |
Remarks |
|
Kohlapur |
Kolhapur Tax |
Calls from TTML
Sandhli were handed over at Kolapur TAX |
0.95 |
0.95 |
TTML Kolhapur MSC has
connectivity from BSNL Sanghli Tax and BSNL Kolapur Tax. The calls to be handed over on Sanghi Tax
POI were handed over on Kolhapur Tax POI |
|
Solapur |
Solapur Tax |
Calls to BSNL Karad
local were handed over at Kolhapur Tax |
0.3 |
0.95 |
TTML has POI at BSNL
Karad local exchange, but the calls were routed on Kolhapur Tax instead of to
Karad local thereby paying higher IUC charges |
|
Pen |
Pen Tax |
Calls originated from
Ahmednagar, Aurangabad, Beed, Jalna andPune Handed over at Pen Tax. |
0.95 |
0.95 |
TTML Pune MSC has
connectivity from BSNL Ahmednagar Tax, BSNL Aurangabad Tax, BSNL Beed Tax,
BSNL Jalna Tax and BSNL Pune Tax and BSNL Pen Tax. The calls to be were handed over on Pen Tax
instead of respective LDCA POI on the same TTML exchange. |
Mr.Maninder Singh, learned senior
counsel appearing on behalf of the respondent, on the other hand, submitted
that the very fact that the calls originated at a given exchange of the
petitioner was handed over to the BSNL’s exchange which was not specified in
terms of the National Routing Plan and, thus, the same would be deemed to be
wrongly routed calls. Wrong routing of
calls, it was urged, having been admitted; the respondent was at liberty to
raise bills either in terms of sub-clause(a) or sub-clause(b) of clause 6.4.6
of the agreement at its discretion.
It was vehemently submitted that as
wrongly routed calls and non-CLI calls would give rise to raising of bills
under two different heads, and in view of the fact that the respondent cannot
raise bills twice over; only because some calls in a period of two months are
wrongly routed and some are non-CLI calls, the bill dated 13.11.2006 must be held
to be legal and valid.
Clause 6.4.6 principally is in two
parts. Clause (a) refers to unauthorized
calls and clause (b) refers to non-CLI calls or modified/tampered CLI
calls. In terms of clause (a) the
respondent is entitled to charge a UASL licensee the highest applicable IUC as
applicable for such unauthorized calls; whereas in terms of clause (b) the
respondent is entitled to charge the rate of IUC applicable for incoming ISD
calls. Clause (a), therefore, speaks of
a call which is not to be treated ISD calls and clause (b) provide for treating
the calls as ISD calls.
It may
be true that in a given case where the calls in question considered both unauthorized calls as also non-CLI calls
and/or modified or tampered CLI calls, it may be difficult to give effect to
both the sub-clauses at the same time, but as would appear from the discussions
made heretobefore, it is not necessary to dwell upon the same.
Clause
6.4.6, we would assume for the purpose of disposal of this case contains a
strict liability clause and not a penal one.
A strict liability clause as contended by Mr.Singh also deserves strict construction. Even for the said purpose, the preconditions
therefor must be fulfilled.
In a given case where an act of
omission on the part of a party to the agreement would amount to a breach thereof,
the promisee is entitled to obtain damages.
As the validity of clause 6.4.6 is not
in question, we would furthermore assume that although no genuine pre-estimated
sum is named in the contract, in a case of this nature where a machinery
provision has been laid down for quantification of damages, it would attract
provisions of Section 74 of the Indian Contract Act. (However, another view is also
possible to be taken in the light of the decision of the Supreme Court of India
in Fateh Chand Vs. Balkishan Das – AIR 1963 SC 1405).
The contention that all calls were
intra-circle calls is not in dispute. The
presentation made on behalf of the petitioner and as contained in Annexure-II
to the petitioner categorically goes to show that all calls were wrongly routed
calls. If that be so, we have no doubt
in our mind that sub-clause (a) of clause 6.4.6 would be attracted in this case
and not the sub-clause (b) thereof.
So far as the non-CLI clauses are
concerned, we may notice that according to the petitioner only two such calls
were detected. We have been taken
through the reply filed by the respondent.
The allegations to the
aforementioned effect made in the petition have not been specifically traversed
by the respondents. In that view of the
matter, the statements made in the petition to the aforementioned extent would
be deemed to have been admitted that only two calls were not having CLI. They should, in the facts and circumstances
of the case, in our opinion, should be ignored.
For the reasons aforementioned we are
of the opinion that in this case the respondent would be entitled to charge the
petitioner only at the rate of 95 paise per call and thus in the cases where
payment has not been made the difference therefor would be required to be paid. The petitioner is directed to pay the deficit
amount (which is stated to be about Rs.18 lakhs) within a period of 30 days
from date, failing which interest @ 18% per annum shall be payable.
The
respondent, it goes without saying, shall be entitled to, if no actual bill has
been raised, to raise the same, in which event payment must be made within a
period of two weeks from the date of receipt of a copy of the bill after making
adjustments of all payments made. This
petition is allowed with the aforementioned direction. No costs.
………....., J
(S.B. Sinha)
Chairperson
.………….....
(G. D.
Gaiha)
Member