Bombay High Court

Atc Telecom Infrastructure Pvt Ltd ... vs Mahanagar Telephone Nigam Limited on 16 September, 2025

2025:BHC-OS:15241


                                                                                  CARBP-449-2024==J.doc



                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       ORDINARY ORIGINAL CIVIL JURISDICTION
                                            IN ITS COMMERCIAL DIVISION

                              COMMERCIAL ARBITRATION PETITION NO. 449 OF 2024
                                                  WITH
         Digitally                INTERIM APPLICATION (L) NO. 6505 OF 2025
         signed by
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH  TALEKAR
                                                  WITH
TALEKAR  Date:
         2025.09.16
         14:49:53
                                 INTERIM APPLICATION (L) NO. 10816 OF 2024
         +0530
                                                   IN
                              COMMERCIAL ARBITRATION PETITION NO. 449 OF 2024

                       ATC Telecom Infrastructure Pvt. Ltd.                                  ...Petitioner
                                  Versus
                       Mahanagar Telephone Nigam Limited                                     ...Respondent


                           Mr. Tishampati Sen a/w Sumanth Anchan for the Petitioner.
                           Mr. L.B. Rai (Through VC) i/b R V & Co. for Respondent.


                                                   CORAM        : SOMASEKHAR SUNDARESAN, J.
                                                   RESERVED ON: MAY 5, 2025
                                                   PRONOUNCED ON: SEPTEMBER 16, 2025

                      JUDGMENT :

Context and Factual Background:

1. This is a Petition filed under Section 37 of the Arbitration and

Conciliation Act, 1996 ("the Act") impugning an order of a Learned

Arbitral Tribunal dated January 10, 2024 passed under Section 17 of the

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

Act ("Impugned Order"), refusing to grant interlocutory reliefs sought

by the Petitioner.

2. The Petitioner, ATC Telecom Infrastructure Private Limited

("ATC") is a passive telecom infrastructure service provider while the

Respondent, Mahanagar Telephone Nigam Limited (" MTNL") is a state-

owned telecommunications service provider.

3. MTNL had executed a Master Services Agreement dated

October 5, 2009 with Essar Telecom Infrastructure Private Ltd. (" Essar

Agreement"). Likewise MTNL had executed a Master Infrastructure

Provisioning Services Agreement dated October 20, 2010 with ATC

(then called Wireless TT Info Services Limited). ATC inherited the Essar

Agreement too and therefore the parties are counterparties to both these

agreements.

4. It is ATC's case that the two separate agreements constitute

one economic transaction and they are inter-related. MTNL is said to

have owed Rs. ~12.13 crores as of February 1, 2023, but has only made

ad hoc payments. This led to arbitration proceedings by a Learned

Arbitral Tribunal appointed by a Learned Single Judge of this Court by

an order dated January 7, 2023. A claim for Rs. ~24.88 crores was

made as of March 2023. An application under Section 17 was filed

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

asking for a deposit of the amount claimed and a direction to pay future

invoices (with effect from March 2023) to avoid further accumulation of

debt.

5. ATC's grievance is that it is already involved in three different

arbitration proceedings with MTNL, which continues to utilise its

services. ATC was desirous of not letting further dues get accumulated

and desired to club the economic impact of both agreements and to get

payments directed in these arbitration proceedings on all future bills.

6. The Learned Arbitral Tribunal did not grant the reliefs sought

in the Section 17 Application. The primary grievance raised in these

proceedings is that despite ATC continuing to provide services and

despite MTNL's track record of defaults, the Learned Arbitral Tribunal

has refused to direct that future bills be paid on time.

Analysis and Findings:

7. I have heard Mr. Tishampati Sen, Learned Advocate on

behalf of ATC and Mr. L.B. Rai, Learned Advocate on behalf of MTNL

and with their assistance reviewed the material on record.

8. MTNL had raised an objection that individual site

agreements governing the use of individual units of telecom

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

infrastructure have not been executed. MTNL contended that there are

disputes over the amounts payable. MTNL has also raised the issue of

limitation on certain component of the dues claimed.

9. Having heard the Learned Counsel for the parties and despite

the persuasive skills of Mr. Sen for ATC, I am of the view that the

Impugned Order does not call for interference.

10. The Learned Advocate Tribunal has noted that the issue of

limitation in relation to certain invoices has been raised, presenting

mixed questions of fact and law. The objection raised by MTNL about

the parties not having signed individual site agreements also has to be

dealt with. Whether there is a need for signing such site agreements;

whether customs and trade usage in the telecom sector do not require

them to be executed; whether their usage flows from the two master

agreements referred to above, rendering their execution unnecessary

and a ruse not to pay, are these facets that the Learned Arbitral

Tribunal would examine and deal with in the course of the arbitral

proceedings.

11. ATC could well be totally right about there being no practice

or requirement to execute individual site agreements over and above the

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

two master agreements, but this would have to be adjudicated by the

Learned Arbitral Tribunal in the arbitral proceedings.

12. ATC has also alluded to MTNL's financial condition being

weak, among others pointing to correspondence from MTNL stating

that it would pay as and when monies are available to it. The history of

payment defaults even while continuing to use ATC's infrastructure has

been brought to bear. However, what measures would be appropriate

pending the conduct of the arbitral proceedings to protect and preserve

the subject matter of the arbitration agreement is a matter for Learned

Arbitral Tribunal to determine.The Learned Arbitral Tribunal has

indeed found that payments have been made by MTNL, which are

termed as ad hoc payments by ATC. The Learned Arbitral Tribunal has

taken the view that a declaration that any invoice that may be raised in

future should be paid, would be in the nature of a final relief and that

too in relation to invoices that are yet to come into existence.

13. The Learned Arbitral Tribunal has taken a view that after

evidence is complete, the issue of protective reliefs may be revisited by

the Learned Arbitral Tribunal. The Learned Arbitral Tribunal has also

found that directing an anticipatory relief of paying invoices to be raised

in future would be inappropriate. The Learned Arbitral Tribunal has

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

also taken a view that there is no reasonable apprehension that MTNL

would dispose of its assets or take any steps to frustrate the arbitral

proceedings and that merely based on apprehensions about its financial

weakness, an intervention in the nature of a direction to pay future

invoices cannot be made.

14. The Learned Arbitral Tribunal found that ATC was

continuing to provide services to MTNL and raising monthly bills to the

tune of Rs. 90 lakhs. Considering that the claim amount too is

substantial, the Learned Arbitral Tribunal has observed that the main

matter ought to be expeditiously heard and concluded. The Learned

Arbitral Tribunal has also granted leave to make a fresh application for

protective relief at a future stage should the proceedings take longer

than anticipated.

15. It is well settled law that an appeal is to be regarded as a

continuation of the original proceedings. Equally, an Appellate Court

exercising the power under Section 37 of the Act to review the exercise

of discretion by an Arbitral Tribunal must be well guided by the

principles set out by the Supreme Court in Wander vs. Antox1 i.e. it may

interfere only if there is something perverse or implausible in the

1 Wander Ltd. Vs. Antox India (P) Ltd. - 1990 Supp SCC 727

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

exercise of discretion by the Learned Arbitral Tribunal. In a plethora of

judgements, the principle articulated in Wander vs. Antox has been

followed and reiterated. The following extract would suffice to throw

light on the principles:

14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.

[Emphasis Supplied]

16. Having examined the record, I find no reason to find the

Impugned Order as being unreasonable or having been taken in a

September 16, 2025 Ashwini Vallakati/Shraddha

CARBP-449-2024==J.doc

manner that is not judicious. It is not open to me to substitute one

plausible view taken by the Learned Arbitral Tribunal with another view

found plausible by the Section 37 Court. The reasoning of the Learned

Arbitral Tribunal is clear and not perverse. Indeed, a direction to pay

every future invoice would be inappropriate - genuine reasons for non-

payment of an invoice in future may arise and that would have to be

considered on merits of the disputes over that invoice. It cannot be