TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
DATED 18TH DECEMBER, 2009
Petition
No. 146 of 2005
M/s Bharti Televentures Ltd
(Formerly known as M/s Bharti
Telenet Ltd.),
Having its Registered Office
at Qutab Ambience
(Near Qutab Minar),
H-5/12,
New Delhi-110030 ….Petitioner
Vs.
Bharat Sanchar Nigam Limited
B-613, Statesman House,
B-148,
New Delhi-1
…Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA,
CHAIRPERSON
HON’BLE
MR. G. D. GAIHA, MEMBER
|
For Petitioner |
: |
Mr. Navin Chawla, Advocate Mr Sharath Sampath,
Advocate |
|
For
Respondent |
: |
Mr.
Maninder Singh, Senior Advocate Mrs.
Pratibha M. Singh, Mr.
Saurabh Mishra, Mr.
Arjun Natarajan, Ms.
Nitya Thakur, Advocates |
JUDGMENT
S.B. Sinha
Petitioner
is a basic telephone service provider. It
was granted a license under Section 4(1) of the Indian Telegraph Act, 1885 to
provide Basic Telephone Services in the Service Area of Haryana Telecom
Circle. Indisputably, such services are
provided by the respondent circle-wise, which for all intent and purposes, represents
geographical area of a State.
2. The
petitioner, on or about 9.10.2001, made separate requests for grant of
connectivity at Gurgaon TAX as also at Faridabad TAX, one of which is as
under:-
“We have received License for providing Basic Service
in Haryana. We propose to have
interconnectivity of our BTNL network with the BSNL network at
Kindly find enclosed Annexure-I & II showing
details of E-1’s and space/power requirement for the POI BSNL exchange . The requirement has been given for year 1 on
the presumption that extra E1’s shall be made available when applied for.
You are requested to please issue a provisional demand
note for ad-hoc lump-sum charges to be paid by us for building space power
supply etc. as per the guidelines published by Sanchar Bhawan.”
Similar
request was also made for having interconnectivity of its network with that of
BSNL at Gurgaon. An interconnection was
entered into by and between the parties hereto on or about 6.12.2001. On the same day, separate agreement was also
entered into.
3.
The petitioner contends that pursuant to the said agreement, its demand for
bandwidth was discussed and analysed on 20.12.2001 by the respondent and it was
agreed that 34 MBPS (16 PCMS) would be sufficient for grant of connectivity
both at Faridabad and Gurgaon.
The inaugural call was to
be made on 26.12.2001 by Hon’ble the Minister
of Communications of the Government of India and the Chief Minister of Haryana
wherefor, by a letter dated 25.12.2001, the respondent was requested to provide
connectivity both at Faridabad and Gurgaon; wherefor, the petitioner undertook
to pay the charges which was to be worked out by the respondent. It is not in dispute that to the
aforementioned effect, an undertaking was given by the petitioner. Relying on, or on the basis thereof, the
respondent granted connectivity to the petitioner’s network both at
4. The
Telecom Regulatory Authority of
In terms of the said
regulation, 0.48 paise was fixed for STD calls towards access charges with
effect from 14.12.2001. The petitioner,
however, contends that despite the same, it continued to pay unto the respondent
@ 0.50 paise per calls in terms of the agreement. The petitioner was asked by the respondent to
shift its TAX Point of Interconnect (PoI) from Faridabad to Gurgaon wherefor, a
request was made by the petitioner asking the respondent to sanction 20 more
E1’s at Gurgaon TAX to cater to the additional traffic by a letter dated
9.5.2003.
5. According
to the petitioner, it had no knowledge of the requirement of payment of any
extra carriage charges or any other charge to the respondent for its
connectivity at Gurgaon TAX. A notice
dated 15.10.2003 was issued by the respondent to the petitioner directing
disconnection of the petitioner’s PoI at Gurgaon TAX on the premise that as per
directions of BSNL Headquarters, only one Level-II TAX connectivity is
permitted, pursuant whereto, the TAX connectivity was disconnected by the
respondent on 30.3.2004. The impugned
demand was made on 4.10.2005 in terms whereof, the petitioner was asked to pay
additional access charges by way of carriage charges with effect from
1.5.2003. This petition has been filed
by the petitioner, inter alia, questioning the legality of the said bill dated
4.10.2005. The petitioner, by this
petition, also questions not only the jurisdiction of the respondent to issue
the said bill but also justifiability thereof.
The petitioner has furthermore taken the plea that a part of the dues is
barred by limitation. According to the
petitioner, the inter-departmental decision taken by the respondent herein, to
raise the said demand being invalid, is not binding on it.
6. The
respondent, on the other hand, pleaded that the petitioner was guilty of
suppression of an undertaking given by it on or about 25.12.2001 in its
Headquarters, in terms whereof, it undertook to pay the charges which might be
levied for the indulgences shown to it by way of grant of connectivity at
Gurgaon TAX.
7. At
this juncture, we may place on record that this Tribunal, by a judgment and
Order dated 5.9.2007, allowed the petition.
The respondent preferred an appeal thereagainst before the Supreme Court
of India which was marked as Civil Appeal No. 4961 of 2007. By an Order dated 1.5.2008, the Supreme Court
of India, while setting aside the said Order dated 5.9.2007, remitted the
matter back to the Tribunal, stating –
“The only question on which we allow this appeal and remand the case to TDSAT is that the Tribunal
considered only the undertaking by the respondent herein dated 25.12.2001 in
the impugned judgment. However, the
Tribunal failed to consider the undertaking by the respondent dated
24.12.2001. On this sole ground we are
setting aside the order impugned passed by the Tribunal. The matter is remanded to the Tribunal to
consider both the undertakings i.e., 24.12.2001 and 25.12. 2001 and pass an
appropriate order as deem fit and proper in accordance with law.
All contentions and arguments of both the parties are
open before the Tribunal.”
8. Mr.
Navin Chawla, learned counsel appearing on behalf of the petitioner would
urge:-
(i)
It
is incorrect to contend that the petitioner is guilty of suppression of an
undertaking which might have been given at the spot as the date of inauguration
of connectivity between Gurgaon TAX and Faridabad TAX was fixed on 26.12.2001
and a copy thereof was not available on record.
(ii)
The
undertaking dated 5.10.2001 placed on record being on similar terms with the
other one, the petitioner cannot be said to have derived any advantage by
resorting to suppression of the said undertaking, as alleged by the respondent
or at all.
(iii)
A
supplementary bill can be raised only in terms of clause 6.1.3 of
Interconnectivity Agreement, providing for power to the respondent in respect thereof,
only in the event some honest or bonafide error had crept in the original bill
and not by way of a separate independent one.
(iv)
The
undertaking having been given by the petitioner on 24.12.2001, the period of
limitation being three years from the said date, the impugned demand is barred under
the law of limitation.
(v)
The
petitioner, having not been communicated by the respondent, that the
connectivity at Gurgaon was a special facility granted to it, therefore,
separate charges would be levied, the impugned demand is illegal which would be
evident from the fact that the respondent had asked the petitioner to surrender
the Faridabad connectivity and move to Gurgaon.
9. Mr.
Maninder Singh, the learned senior counsel appearing on behalf of the
respondent, on the other hand, contended:-
(a)
The
petitioner, intentionally and deliberately suppressed the undertaking to pay
all charges for grant of special facility to the petitioner in regard to
connectivity at Gurgaon.
(b)
The
petitioner did not have the requisite infrastructure for making its calls from
Gurgaon to
(c)
In
terms of the national routing plan for optimum utilization of network and
resources, the Telecom Regulatory Authority of India (The Authority), by an
Order dated 15.6.2001 (which has been upheld by this Tribunal in Appeal No. 1
of 2004 (BSNL Vs. TRAI) dated 16.8.2004) laid down that handing over of the calls for
the purpose of interconnection shall only be at the designated point at the
near-end and at the far-end as prescribed therein. In respect of Gurgaon SDCA in Haryana Circle,
the LDCC TAX of BSNL being located at Faridabad, which the petitioner was fully
conscious and aware in terms whereof, it was required to hand-over all the
calls at Faridabad and only with a view to avail the facility of handing-over
of its calls to BSNL at the Level-II TAX of the BSNL at Gurgaon, it had sought
for a special permission.
(d)
For
the aforementioned purpose, the petitioner had approached the Headquarters of
BSNL by giving an undertaking in terms of clause 6.1.3 on 24.12.2001 for the
purpose of obtaining the said facility through a separate permission, which,
having been granted, the demand dated 4.10.2005 for a sum of Rs. 1,98,75,227/- raised @ 0.60 paise for STD calls and 0.78 paise for
ILD calls respectively, cannot be held to be on a higher side, particularly
when one of the telecom industries, namely, Reliance Mobile Limited, had been
charged and paid bills raised at the same rate.
The petitioner, being a telecom operator, cannot be heard to say that it
was not aware of the LDCC TAX of the BSNL.
With a view to evade its liability, the petitioner deliberately withheld
and suppressed the specific undertaking given by it.
(e)
The
term of the interconnect agreement, being not applicable, the respondent was at
liberty to raise bills, at a rate higher than the permissible rate in terms
thereof, which was required to be worked out keeping in view the fact that the
designated place for routing and charging of such STD/ISD traffic was Faridabad
LDCC TAX and not othe Gurgaon Level-II TAX.
10. Before
, however, adverting to the rival contentions of the parties, as noticed
hereinbefore, we may notice the relevant clauses of the interconnect agreement
between the parties herein.
Chapter
I of the said agreement deals with interpretation clause. Definitions of some of the terms are as
under:
“LOCAL AREA : It
means the geographical area served by an exchange system and which is
co-terminus with Short Distance Area (SDCA) or where the telegraph authority
has declared any area served by an exchange system to be the local area for the
purpose of telephone connections. All
exchanges within the local area will be treated as multi exchange system.
LONG DISTANCE CHARGING AREA (LDCA) :
It means one of the several areas into which the
country is divided and declared as such for the purpose of charging for trunk
calls which generally is co-terminus with Secondary Switching Area (SSA).
SHORT DISTANCE CHARGING AREA (SDCA) :
It means one of the several areas into which a Long
Distance Charging Area is divided and declared as such for the purpose of
charging for trunk calls and within which the local call charges and local
numbering scheme is applicable. SDCAs,
with a few exceptions, coincide with revenue tehsil / taluk.
SHORT DISTANCE CHARGING CENTRE (SDCC) :
It means a particular Exchange in a Short Distance Charging
Area declared as such for the purpose of charging trunk calls. Headquarters of SDCAs are generally SDCCs.”
Chapter
2 of the agreement deals with technical issues. Clause 2.1.2 reads as under:
“….2.1.2 The BSO’s network shall have
interconnectivity with BSNL’s network equivalent level at a local/tandem
exchange and at the LDCC TAX….
2.1.3 The BSO
shall be responsible for providing the required transmission links from/to his
network to/from BSNL’s network at interface points under Clause 2.1.2, at
local/tandem and TAX levels, initially as well as for augmentation from time to
time. These links include passive
transmission links.
2.1.12. INTERCONNECTIVITY
FOR STD/ISD CALLS :
Interconnectivity for STD/ISD calls shall be between
BSNL’s LDCC TAX and BSO’s LDCC TAX, in case BSO does not have his own TAX in
the LDCC, STD/ISD Calls from BSO’s SDCC Tandem/local exchange in an SDCA in the
LDCA shall be handed over to BSNL’s LDCC TAX by the BSO.
2.1.13.1
(i) Calls
from BSNL’s subscriber or BSNL’s network at BSO’s network will be routed in the
BSNL network up to the farthest point, i.e., up to BSNL’s SDCC Tandem/local
exchange in the terminating SDCA and then will be delivered to the BSO’s SDCC
Tandem/Terminal exchange. Similarly the
BSO can carry the intra circle STD Cass originated in their network up to the
farthest point in its service area i.e., the SDCC tandem in the terminating
SDCA. In case this far end handover is
nt feasible for the BSO, BSNL shall accept such calls at the near end i.e. at
the originating LDCC TAX.
(ii) If the
BSO serves multiple SDCAs through one large exchange, BSNL shall deliver the
traffic directly into BSO’s large exchange from its TAX except for local and
intra SDCA calls. For calls delivered
from BSNL’s TAX to BSO’s main exchange, the latter shall be treated as terminal
exchange and access charges corresponding to the termination at the SDCC shall
only be payable by BSNL to the BSO.
(iii) The
local and intra-SDCA calls shall be handed over by BSNL at the POP or the large
switch through a direct link established by the BSO.
(iv) The above
situation of one main exchange serving multiple SDCAs does not exist n BSNL at
present. However, if a similar situation
arises at a later date, the same facility shall be extended to the BSO as well,
provided it is not technically feasible
to accept the calls directly by the remote BSNL exchange in the SDCA. The numbering and charging plans shall always
be adhered to by both BSNL as well as BSO.
2.1.13.2 For
the purpose of Inter circle and international call, the BSO shall handover the
call to BSNL at the originating LDCC TAX.
6.1.3 STD/ISD
calls originated by subscribers of BSO will be delivered to BSNL’s LDCC TAX of
the LDCA in which the call is originated and not at any other intermediate
points as provided under clause 2.1.13.
…XXX…BSNL may accept STD/ISD
calls from BSO at the SDCC tandem in originating SDCA and LDCC TAX in the
terminating LDCA on terms and conditions
to be prescribed by BSNL separately.
…xxxx….”
6.2.1 For every
STD/ISD Call originating from the BSO’s network and accepted by BSNL, a
detailed billing and/or bulk billing record will be generated in the LDCC
TAX. For this purpose calling
subscriber’s identity shall be supplied by the BSO for detailed billing
purpose.
Chapter 7 of the
agreement provides for interconnect billing system. Clauses 7.2.1 and 7.3.1 (IV) thereof read as
under:-
“7.2.1. Bills
for access charges – actual or minimum usage charge, whichever is higher and
charges for special services including trunk calls will be issued on monthly
basis by the designated unit of BSNL to the BSO and such bills shall be payable
within 15 days from the date of issue.
Similar bills may also be issued by the BSO for the access charges, if
any, due to it.
7.3.1.(iv) if
the bill issuing authority subsequently finds that some charges have been
omitted from the bills issued, he will include the omitted charges in the
subsequent bills at any time, but within 6 months from the date of issue of the
relevant bill except in cases where additional billing becomes necessary due to
the tariffs/rates changes notified subsequently with retrospective effect by
the appropriate authority.”
The core question which
arises for consideration is whether the designated TAX of BSNL for the
connectivity of STD/ISD Calls originating from the network of the petitioner
was at
11. It
is not in dispute that within the Circles, there are Short Distance Call Areas
(SDCAs) and Long Distance Call Areas (LDCAs).
An LDCA is constituted with a few SDCAs.
Interconnection between the two areas can be done through the SDCC
tandem, but for STD, calls must be routed through LDCC TAX.
12. In
the State of
In terms of clause 2.1.2
of the Interconnect Agreement dated 6.12.2001, interconnection between the
petitioner and the respondent was to be at equivalent level of the networks,
i.e., respondent’s SDCC tandem was to be connected with the petitioner’s SDCC
tandem and LDCC TAX for calls originating in the LDCA.
13. The
Authority, by its Order dated 15.6.2001, while considering the applicability of
the National Routing Plan, in almost similar circumstances, opined as under:-
“In the light of the foregoing, the Authority has come
to the following conclusions:-
(i)
BSNL’s refusal to
accept at
14. TRAI
was of the opinion that it was not a
case of refusal on the part of the respondent to accept handing-over of a call
at a place which is not designated but it was impermissible on the part of the
licensee to hand-over such calls at the places which are not designated.
In
arriving at the aforementioned finding, the Authority, inter alia, noticed the
following contentions:-
“5. According
to BSNL, one of the reasons for non acceptance of transit traffic in
Indore/Ujjain TAX put forward by the BSNL to them is that such a handover is
not in conformance with the National Routing Plan (NRP) of the DOT. To counter this argument, BSNL has contended
that the NRP was a Plan drawn up only for the DOT (now BSNL) network and that
it will not be far to ask BSNL to conform to this plan. They further contended that the NRP is an
internal document of DOT, which has not been amended to take care of the
dynamic situation of the liberalisation of the telecom market and the entry of
private BSOs. BSNL stated that
optimization of their Network usage required that BSNL be free to carry its
traffic on its Network, as far as possible, and be permitted to hand over the
Inter Network STD calls to BSNL at any point, within the service area, without
any restriction about its origin and its ultimate destination.”
It
furthermore noticed clause 1.7. 6.5 which reads as under:-
“Inter-connectivity for STD/ISD calls shall be
ordinarily only between DOT’s LDCC TAX and Licensee’s LDCC TAX. In case licensee does not have his own TAX in
the LDCC, STD/ISD calls from Licensee’s SDCC Tandem. Local exchange in an SDCA
in the LDCA shall be routed to DOT’s LDCC TAX.
This requires the Licensee to connect to the nearest DOT TAX even for
Intra-Circle calls that may be between two LDCCs. However, the Licensee is free to have his
Network for carrying the traffic entirely over his own Network within the
Circle/Service Area.”
15. The
Authority held as under :-
“26. There is
no denying that the general framework of the routing plan provides for a
Hierarchical Routing with exceptions called “high usage routes”. Such routes can be justified between level II
TAXs based on techno economic viability, and are required to carry traffic
which originate and terminate in these two TAXs, i.e., these high usage routes
do not carry any transit traffic to other TAXs, i.e., these high usage routes
do not carry any transit traffic to other TAXs.
These high usage routes may be used by both the operators for far end
hand overs, provided for in the license agreement as per Clause 1.7.6.6
thereof.
16. Thus,
not only the general applicability of such plan was noticed but also an
exception thereto was carved out.
17. A
three-Member-Bench of this Tribunal in BSNL Vs Telecom Regulatory Authority of
India Ltd being Appeal No. 1 of 2004 by a judgment and Order dated 16.8.2004,
held :-
“10. Therefore
taken in its totality, we do not see any reason to interfere in the TRAI
determination that intermediate handover of calls for transiting is not in
conformity with the license agreement; and we do not see any relaxation having
been given by DOT as stated on behalf of the Appellants and rightly so as that
would have meant modification of the terms of the license which did not seem to
have been the intent of the letter of 12-5-98.”
18. It
is, therefore, difficult to accept that the petitioner was not aware that the
Faridabad TAX was designated TAX for STD calls.
19. From the
records, it does not appear that the designated TAX for BSNL was located in
Gurgaon. It appears from the records
that Gurgaon has a level-II Tax and
20. Gurgaon
level-II DCA is to have 5 SDCAs in Gurgaon, Palwal,
21. From
the letter of the respondent dated 25.12.2001, it would appear—
“M/s Bharti Telenet Limited has proposed
to launch basic telephone services in Haryana on 26.12.2001. In this regard, M/s Bharti Telenet has
requested to permit handing over of STD/ISD traffic from M/s BTNL Gurgaon MSU
to BSNL Tax at Gurgaon.
As per clause 6.1.3 of the Interconnect
Agreement ‘BSNL’ may accept STD/ISD calls from BSO at the SDCC tandem in
originating SDCA and LDCC TAX in the following terminating LDCA on terms and
conditions to be prescribed by BSNL separately.
M/s Bharti Telenet Ltd has given an
undertaking to BSNL Corporate Office to bear the charges for the said traffic
in accordance with the terms as may be decided by BSNL.
We may accept the request of M/s Bharti
Telenet Ltd in this regard and permit handing over of STD/ISD traffic from M/s
BTNL Gurgaon MSU to BSNL Tax at Gurgaon.
The charges for this traffic shall be decided by BSNL Corporate Office
and communicated to you. However,
complete record of MCUs and traffic in Erlang per PCM may be kept for this
traffic.”
22. The
undertaking dated 24.12.2001 furnished by the petitioner reads as under:
“In accordance with clause 6.1.3 of the
Interconnect Agreement with BSNL, it is requested to permit the handing over of
STD/ISD traffic from BTNL Gurgaon MSU to BSNL TAX at Gurgaon. We, hereby undertake to bear the charges for
the said traffic in accordance with the terms as may be decided by BSNL.”
23. Mr.
Chawla would submit that there was no deliberate suppression of the said
undertaking as a similar undertaking had been given by the petitioner in
respect of Faridabad TAX. It is
difficult to agree with the aforementioned submission. The contention of the petitioner in this
behalf was that the said undertaking was not available in its file.
24. It
is in the aforementioned premise that we may refer to the decision of the
Authority dated 15.6.2001 wherein the scope of National Routing Plan was taken
note of in the following terms:
“According to BTNL, one of the reasons for
non acceptance of transit traffic in Indore/Ujjain TAX put forward by the BSNL
to them is that such a handover is not in conformance with the National Routing
Plan (NRP) of the DOT. TO counter this
argument, BTNL has contended that the NRP was a Plan drawn up only for the DOT
(now BSNL) network and that it will not be fair to ask BTNL to conform to this
plan. They further contended that the NRP is an internal document of DOT, which
has not been amended to take care of the dynamic situation of the
liberalization of the telecom market and the entry of private BSOs. BTNL stated that optimization of their
Network usage required that BTNL be free to carry its traffic on its Network,
as far as possible, and be permitted to hand over the Inter-Network STD calls
to BSNL at any point, within the service area, without any restriction about
its origin and its ultimate destination.”
25. The
findings of the Authority are as under:
“There is no denying that the general
framework of the routing plan provides for a Hierarchical Routing with
exceptions called “high usage routes”.
Such routes can be justified between lever II TAXs based on techno
economic viability, and are required to carry traffic which originate and
terminate in these two TAXs i.e. these high usage routes do not carry any
transit traffic to other TAXs. These
high usage routes may be used by both the operators for far end hand overs,
provided for in the license agreement as per Clause 1.7.6.6 thereof.”
By reason thereof, thus, an exception to the
general rule was carved out. The
Authority, therefore, after having taken into consideration, the letter of DoT
dated 12.5.1998 and other documents, concluded:-
“BSNL’s refusal to accept at
26. The
aforementioned order of the Authority was upheld by this Tribunal in Appeal No.
1 of 2004 (BSNL Vs TRAI), wherein it was opined:
“20. Based on
the above, it is clear that the correct interpretation of the determination of
TRAI dated 15.6.2001 would be that HFCL has no case for handing over its calls originating
in an SDCA located within Amritsar LDCA and meant for SDCA Barnala located in
LDCA Sangrur at the LDCC TAX of BSNL at Sangrur. They have option of interconnection with
BSNL network, only of “near end hand over” at the LDCC TAX at Amritsar vide
clause 1.7.6.5 of the license or of a “far end hand over” at the SDCC Tandem at
Barnala but not at any intermediate point, not even at LDCC TAX of BSNL at
Sangrur.
21. We,
therefore, (i) quash and set aside the impugned communications dated 4.12.2003,
17.12.2003 and 22.12.2003 issued by TRAI and (ii) hold that HFCL is not
entitled to hand over its traffic originating from the SDCA in Amritsar LDCA at
LDCC TAX at Sangrur for termination to a BSNL subscriber in Barnala SDCA.”
27. It
is therefore evident that it is now settled that handing over of STD/ISD calls
for the purpose of interconnection could take place only at the ‘designated
TAX’ at the near-end and the far-end as prescribed and the same cannot be
handed over at any other point whatsoever, thus not accepting of any traffic by
BSNL at hand-over points would not amount to refusal on its part.
28. The
conduct of the petitioner in this behalf must be taken note of. Admittedly, it had approached the BSNL
Headquarters on 24.12.1991 for additional facility at Gurgaon. A special permission was sought for in the
following terms:
“In accordance with clause 6.1.3 of the
Interconnect Agreement with BSNL, it is requested to permit the handing over of
STD/ISD traffic from BTNL Gurgaon MSU to BSNL TAX at Gurgaon. We, hereby undertake to bear the charges for
the said traffic in accordance with the terms as may be decided by BSNL.”
29. The
Regulation, thus, ensures that the petitioner was an appropriate authority
therefor. We may notice that the
respondent in its counter-affidavit has stated as under:
“In case petitioner had any problem in
handing over such STD/ISD traffic at Faridabad LDCC TAX the same could have
been brought to the notice of BSNL Corporate Office dealing with signing of
interconnect agreement and related policy issues. It is submitted that in any case, the
petitioner cannot wriggle out of its obligation as per its undertaking. The petitioner has been charged only on such
rates which have been charged by the BSNL from other service operators who had
been extended similar separate arrangement and further in accordance with the
IUC Regulations dated 24.1.2003.”
30. The
aforementioned conduct of the petitioner, in our considered opinion, goes to
show that it was, at all material times, aware of the fact that Faridabad was
the designated TAX for the Gurgaon LDCA.
It would be of some significance to place on record the letter of the
respondent dated 15.10.2003, which reads as under:
“As per clarification received from
Corporate Office New Delhi vide letter No. 115-3/2003-Regln dated 17.09.2003,
notice of one month from the date of issue of this letter is being served to
you that your POI at Gurgaon TAX will be disconnected as it is only permitted
at Faridabad in Gurgaon LDCA.”
31. The
petitioner, in its letter dated 5.11.2003 stated as under:
“1. Whether
connectivity of Touchtel Main Switches of Faridabad & Gurgaon should be
separate or the same as existing between Touchtel Faridabad & BSNL TAX
Faridabad.
2. As per
interconnect agreement, TAX calls of the whole LDCC are to be given at LDCC TAX
which is at Faridabad, the existing Trunk Group for STD outgoing calls will
carry the calls of Gurgaon also. As per IUC guidelines, Level-II TAX POI should
have only one Trunk Group for outgoing traffic.
Pls clarify if any other change w.r.t. Trunk Groups is required or not.”
32. In
this view of the matter, there is sufficient evidence on record to show that
the designated TAX of BSNL at Faridabad was for the Gurgaon LDCA immediately in
terms of the interconnection agreement dated 6.12.2001. The petitioner must be
held to have filed the application in the corporate office of the respondent
headquarters for permission for additional facility at Gurgaon consciously. The said fact will also appear from a letter
of the respondent dated 8.11.2005 which
is on the following terms:
“However, it is intimated that letter No.
8-3/2001-Regln dated 10.8.2005 issued by Jt DDG (Regln) for access charges
& additional carriage charges for having POI at Gurgaon TAX is in
accordance with your undertaking given at BSNL Corporate Office as per
Interconnect Agreement clause 6.1.3.’
33. The
aforementioned contention, it must be noticed, as apart from the undertaking of
the petitioner dated 25.12.2001. A bare
perusal of the said undertaking of the petitioner reveals two facts, namely, a
request had been made to the respondent to provide them STD connectivity at
Gurgaon on the charges being worked out by the respondent and second, the
respondent was requested to provide the connectivity at Gurgaon also to route their STD calls from the Gurgaon TAX
wherefor charges were to be worked out by BSNL, the payment whereof was to be
made by the petitioner on 26.12.2001 by 10.30 a.m.
34. It
is in the aforementioned context that the explanation was offered by the petitioner
with regard to non-filing of the said undertaking, in the context of the letter
dated 10.8.2005. If a mistake had been
committed earlier, the same could be rectified.
It is on the aforementioned premise that the demand dated 10.8.2005 and
letter dated 25.12.2001 were issued. In
the said letters, the petitioner, in terms of its undertaking, agreed to bear the charges for the trunk on the terms
as may be decided by the BSNL. The
suppression of a material fact has its own consequences. While saying so, we are not oblivious of the
decision in Arunima Baruah Vs. Union of
India, (2007) 6 SCC 120, wherein, the Supreme Court of India stated the law
in the following terms:
“12. It is trite law that so as
to enable the court to refuse to exercise
its discretionary jurisdiction
suppression must be of material
fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary
relief, would depend upon the facts
and circumstances of each case. Material
fact would mean material for the purpose of determination
of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppression is not
material for determination of the lis
between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also
trite that a person invoking the discretionary
jurisdiction of the court cannot be allowed to approach
it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean,
whether the relief would still be
denied is the question.
13. In Moody v. Cox6
it was held: (All ER pp. 555
I-556 D)It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have
rescinded the contract. But they were not bound to do so. They
had the right to say “no, we are well satisfied with the contract;
it is a very good one for us; we affirm
it”. The proposition put forward by counsel for the defendants is: “It
does not matter that the contract has been
affirmed; you still can claim no
relief of any equitable character
in regard to that contract because
you gave a bribe in respect of it. If
there is a mistake in the contract,
you cannot rectify it, if you
desire to rescind the contract, you cannot rescind it, for that is equitable
relief.” With some doubt they said: “We do not think you can get
an injunction to have the contract
performed, though the other side have affirmed it, because an injunction
may be an equitable remedy.” When one
asks on what principle this is supposed
to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression “clean hands” is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but
I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the
person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected
at all with the bribe. I was
glad to find that it was not the case,
because I think it is quite clear
that the passage in Dering v. Earl of
Winchelsea7
which has been referred to, shows that equity will not apply the principle
about clean 
hands
unless the depravity, the dirt in question on the hand, has an
immediate and necessary relation
to the equity sued for. In this
case the bribe has no immediate
relation to rectification, if rectification were asked, or to rescission
in connection with a matter not in any way connected with the
bribe. Therefore that point,
which was argued with great strenuousness by counsel for the defendant,
Hatt, appears to me to fail, and we have to consider
the merits of the case.”
35. We
must, however, notice that the Supreme Court of India in SJS Business
Enterprises Vs State of Bihar & Ors – (2004) 7 SCC 116 held as under:
“…..13. As
a general rule, suppression of a material fact by a litigant disqualifies such
litigant from obtaining any relief. This
rule has been evolved out of the need of the courts to deter a litigant from
abusing the process of court by deceiving it.
It must be a matter which was material for the consideration of the
court, whatever view the court may have taken….”
36. In
this case, the petitioner has raised a contention that its communication dated 25.12.2001
addressed to the officers of the respondent at Haryana did not contain any mention
of clause 6.13. It reads:
“….and secondly, misreading a letter dated 25.12.2001
written by the Petitioner, as an undertaking given by the petitioner in terms
of Clause 6.1.3 of the Interconnect Agreement.”
But it would appear from
its own letter dated 25.12.2004, as indicated hereinbefore, that they had used
the word ‘also’ and that it is evident that they were aware of the undertaking
given by it. It is on the aforementioned
premise that clause 6.1.3 of the agreement was applicable. The petitioner had even not raised the said plea
in its correspondences with the respondent, having availed an additional facility,
thus, in our opinion, estopped and precluded from contending that it was not
bound to pay any additional charge as per the demand of the respondent dated
4.10.2005 for period 26.12.2001 to 30.3.2004.
37. Mr.
Chawla vehemently urged that in absence of any declaration with regard to an
LDCC TAX as is required in terms of its definition, the impugned demand cannot
be sustained. Reliance in this behalf
has been pressed on the meaning of the said term in the agreement.
38. The
importance of a declaration would be for a person who is not aware
thereof. If, however, a party to the
contract is fully aware of the existence of LDCC TAX at a particular place, it
is in our opinion, idle to contend that a contractual obligation and / or an
undertaking need not be complied with as an LDCC TAX had not been
declared. In terms of Section 58 of the
Indian Evidence Act, a fact admitted need not be proved. Admission, as is well known, is the best
evidence. A person is obligated to
fulfill its contractual terms and / or its undertaking. In our considered opinion, the petitioner cannot
be allowed to raise any technical plea to defeat the legitimate claim of the
respondent.
39. It
may be true that in April / May, 2003, the respondent had directed the
petitioner to surrender its TAX connectivity at Faridabad, pursuant whereto,
request was made by it for additional E1 ports at Gurgaon Exchange. It is also true that one Rajinder Kumar of
the respondent by a letter dated 29.7.2003, sought for a clarification from the
Joint DDG(Regulation-I) as to whether PoI to be kept / continued for both TAX’s or it was to be
provided only from one TAX, and in that event, to name the TAX. The respondent, however, in para 29 of the
counter-affidavit, has stated that a clarification was given that the
petitioner was only entitled to inter-connectivity of SDCC Trunk traffic at
Faridabad Exchange by its letter dated 17.9.2003. It is
only on the basis of the aforementioned clarification that Gurgaon Exchange was
sought to be disconnected.
40. We
are of the firm view that the petitioner is bound by this undertaking. It is also of some significance to notice
that had the petitioner been given connection both at Gurgaon and Faridabad,
pursuant to the applications made by it, there was absolutely no reason why it
had succumbed to the demand of the respondent to close its Gurgaon
establishment without any demur whatsoever.
In other words, had the contention of the petitioner been that it had
acquired a right to carry on its activities both from Gurgaon and Faridabad,
there was absolutely no reason why it would not have asserted the same. Why and under what circumstances, the
petitioner had not carried its STD/ISD calls through its Faridabad Exchange is
not for this Tribunal to determine.
41. We
are also not concerned as to whether the petitioner was capable of carrying
calls both from Gurgaon and Faridabad. In
any event, there does not exist sufficient proof in respect thereof.
42. The
petitioner has raised the plea of limitation.
In support of the said plea, reliance has been pressed on Article 29 of
the Schedule appended to the Limitation Act.
It reads as under:
“29.
Where a deed authorizes the oblige to realize the money
whenever he wishes, the money becomes due immediately on the execution of the
bond. If a house is mortgaged, while
under attachment, the mortgage is void altogether, under s. 64, C.P.C., and a
suit to enforce the personal security is governed by Art. 29. Article 47 does not apply to the case as the
consideration failed ab initio.”
43. A
plain reading of the said Article would show that the same has no application in
the instant case whatsoever. It applies
only in a case of bond/Undertaking given by a party to pay the dues of another
contracting party does not constitute a bond.
44. Reliance
has also been placed by the petitioner on clause 7.3.1.4 of the Interconnect
Agreement and clause 3(v) of the Supplementary Interconnect Agreement, to
contend that the demand made by the respondent is vitiated in law as it was not
permitted to charge any additional amount from the petitioner after expiry of six
months. They read as under :
“7.3.1(iv) If
the bill issuing authority subsequently finds that some charges have been
omitted from the bills issued, he will include the omitted charges in the
subsequent bills at any time, but within 6 months from the date of issue of the
relevant bill except in cases where additional billing becomes necessary due to
the tariffs/rates changes notified subsequently with retrospective effect by
the appropriate authority.
3(v) Access
charges for net local calls, ISD and STD Calls shall be reviewed within six
months (of signing of this Interim Interconnect Agreement) through mutual
discussions. These access charges as
finalized above shall be made effective retrospectively from the date of
signing of this interim interconnect agreement.
TRAIs order/regulations in this regard will become applicable from the
date of effect of such orders/regulations.”
45. The
said clauses on a bare perusal would clearly show that the same in this case have
no application. By reason of the
provision contained in a contract, the statutory period of limitation cannot be
curtailed as would be evident from Section 28 of the Indian Contract Act.
46. The
Supreme Court of India in the case of National Insurance Company Vs. Sujir Ganesh Nayak, 1997 (4) SCC
366 held that curtailment of the period of limitation provided by law is not
permissible and is hit by Section 28 of the Indian Contract Act.
47. The
said decision therefore is an authority for the proposition that period of limitation cannot be curtailed by
mutual agreement. In any event, in this
case, the respondent had detected a mistake.
If a mistake was detected, it could rectify the same under the common
law. It could, therefore, in exercise of
its said jurisdiction, issue a demand also.
The petitioner contended that a special permission had been granted to
route calls from Faridabad. The
respondent, however, in its reply stated –
“It is respectfully submitted that the
special permission for the traffic originating in Gurgaon to be handed over at
Faridabad TAX given to the petitioner by BSNL for a limited period of 10 days
was due to the congestion being faced by petitioner from its MSU at Gurgaon to
BSNL TAX at Gurgaon. It is submitted
that the petitioner itself had requested BSNL to temporarily accept the traffic
meant for MTNL, Delhi at Faridabad TAX till the time petitioner’s PoI at BSNL
TAX at Gurgaon is augmented. Copy of
request of petitioner dated 3.6.2003 to BSNL in this regard is placed at
Annexure R-6. The petitioner has chosen
not to place its own communication dated 3.6.2003 before this Hon’ble
Tribunal.”
48. It
is, therefore, evident that such permission was granted with a view to
facilitate the petitioner to get over from the congestion in the traffic faced
by it at its MSU at Gurgaon. The
petitioner had requested the respondent to temporarily accept traffic meant for
MTNL, Delhi at Faridabad TAX till its PoI at Gurgaon are augmented.
49.
Mr. Chawla has relied upon a decision of the Supreme Court of India in BSNL Vs BPL Mobile Cellular Ltd. – (2008)
13 SCC 697. The said decision in our
opinion has no application as therein the question which arose for
consideration was as to whether internal circulars raising charges which were at
variance with the contractual amount could be enforced. It was held that such internal circulars
would not prevail over the contractual provision. Reliance has also been pressed by Mr. Chawla
on Delhi Development Authority Vs. Joint
Action Committee – (2008) 2 SCC 672.
In that case, levy by way of surcharge being not forming a part of the
contract, was directed to be quashed.
In
this case, as noticed hereinbefore, the contract came into being by and between
the petitioner and the respondent. Having
regard to the petitioner’s own application for grant of additional facilities
at Gurgaon to which the responded acceded to.
It
was a separate contract. Liability of
the petitioner arose in terms of its undertaking. The formal agreement entered into by and
between the parties in relation to the interconnect agreement for Faridabad TAX
has nothing to do with the same. Terms
and conditions of the said agreement are irrelevant so far as the present claim
is concerned; being based on the undertaking of the petitioner. Furthermore, the petitioner must be held to
be bound by its own undertaking. We may
place on record that this Tribunal in its judgment dated 05.09.2007, accepted
the respondent’s contention:-
(i) That the petitioner was aware that
Faridabad TAX was the designated TAX;
(ii) That connectivity at Gurgaon was not
governed by the interconnect agreement for which separate permission had been sought for and undertakings given by
the petitioner only on the ground that the respondent did not raise bill within
six months in terms of clause 7.3.1(iv).
50. For
the reasons aforementioned, in our opinion, there is no merit in this
application. It is dismissed
accordingly.
51. The
petitioner, pursuant to an interim order dated 13.12.2005 has deposited 75% of
the dues. It is directed to deposit the
rest of the amount within 90 days from date, failing which, the same shall
carry interest at the rate of 12% p.a.
The petitioner shall pay and bear the costs of the respondent. Counsel’s fee assessed at Rs. 50,000/-.
…………….....,
J
(S.B.Sinha)
Chairperson
…………….....
(G. D. Gaiha)
Member