Total Telefilm P. Ltd. vs Govt. Of Nct Of Delhi
2007 Latest Caselaw 1980 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The Petitioner claims various reliefs including the directions to the respondents (herein referred to "VSNL") to pay amounts for alleged lossess incurred by it. A sum of Rs. 2,96,00,000/- (Rupees Two Crores Ninety Six Lacs) in addition to which compensation for "mental torture" for alleged harassment, quantified at Rs. 01,4,00,000/- (Rupees One Crore Four Lacs) have also been claimed.

2. The facts of the case are that the Petitioner entered into a Tripartite Agreement on 23.12.2003 with Respondent-Videsh Sanchar Nigam Ltd. and M/s Shen Public Ltd. In terms of the contract, the Petitioner's channel was to be up-linked by the respondents in Delhi. The Petitioner deposited Rs. 5 lakhs on 5.1.2004 with the VSNL pursuant to terms of the agreement. It is averred on 27.7.2005 the Petitioner applied for permission from the Ministry of Information and Broadcasting for Telecast of channel named "Total TV". Permission is alleged to have been granted. The Petitioner applied to the said Wireless Planning Commission on 27.9.2004.

3. In these circumstances it is claimed that having performed its part of the bargain the Petitioner was not provided with the services agreed to by the parties. It, therefore, claimed commercial losses and also damages.

4. Learned Counsel for the Petitioner besides reiterating the averments in the petition relied upon the judgment of the Supreme Court in ABL International v. Export Credit Guarantee Corporation and contended that this Court ought to issue appropriate directions to give complete relief without insisting upon the exhaustion of alternative remedy. Learned Counsel contended that the action of the Respondents in accepting the amounts and not proceeding further to honour the contract besides being a contractual dispute is one falling within the public law domain as it amounts to breach of the doctrine of promissory estoppel. Counsel further relied upon the judgment reported as Nobel Resources Ltd. v. State of Orissa and Anr. .

5. Learned Counsel for the Respondents resisted the proceedings. It was contended that the services agreed to be provided, did not materialize because the Petitioner was unable to secure permission from the Wireless Planning Commission. Counsel also relied upon Clause 2.13 and 3.14 of the Agreement which, inter alia, cast obligation on the Petitioner to secure necessary permission and consent. It was contended that the cause of action arose in Mumbai. Lastly, the counsel submitted that in terms of Clause 14 of the Agreement the dispute between the parties is arbitrable. Lastly counsel contended that immediately upon coming aware that the necessary permission from the Wireless Planning Commission was not forthcoming, the Respondent refunded the security deposit of Rs. 5 lakhs.

6. The above narrative would show that the Petitioner entered into a Tripartite Agreement whereby it was to receive feed/uplinking from the respondent. A copy of that agreement has been produced. In terms of Clause 2.1.3 and 3.1.4 all approvals from the necessary government authorities were to be obtained (and should be maintained) as a condition for the services under the Contract. Clause 3.1.4 reads as follows:

It is the absolute responsibility of the Customer to obtain all necessary consents, approvals, licenses, and other rights from third parties, including without limitation, government agencies required for the transmission and reception of such programming and/or material.

7. The Respondent contends that since the necessary permission and consent of the Wireless Planning Commission was not forthcoming it refunded the security deposit amount, to the Petitioner. The latter, on the other hand contends that the BSNL has not only breached the contract but acted arbitrarily and in an unreasonable manner, inviting the public Law jurisdiction of this Court.

8. It is no doubt true that this Court has a wide amplitude of power under Article 226 of the Constitution. In given situations the jurisdiction is not inhabited by the nature and character of the disputes. Therefore, the Supreme Court has remarked that exercise of jurisdiction need not be conditioned whether the dispute fell within the contractual domain or, otherwise, so long the action is that of a public authority within the meaning of that expression under Article 12 or Article 226.

9. While there can be no doubt about the wide parameters of the jurisdiction of this Court, equally the fact that the dispute in this case has arisen after the parties entered into contract and in relation to the terms of the contract or its purpose, cannot be lost-sight-of. The Court, under Article 226 of the Constitution does not usually entertain disputes pertaining to or arising out of such contracts; and leave the parties to work out their remedies in accordance with law, which can be either through the mechanism of civil courts (by adducing evidence or through arbitration. In this case Clause 14 binds the parties to the Agreement to seek recourse to a grievance redressal mechanism i.e. arbitration.

10. As far as the Petitioner's contention regarding promissory estoppel and the decision of the Supreme Court are concerned, while ABL International did indicate broad parameters for exercise of jurisdiction under Article 226 of the Constitution of India, in relation to contractual disputes, nevertheless that cannot itself be an iron clad rule. The Courts would have to assess the fact situation in each case and exercise discretion in the given circumstances. This aspect has been emphasized in Para 29 of the subsequent judgment in Nobel Resources case (supra) itself. The Court was alive to this aspect when it considered the impact of the judgment in ABL International.

11. In view of the above discussion I am of the opinion that this Court should not exercise its writ jurisdiction and entertain the disputes raised by the Petitioner in these proceedings. However, it is open to the Petitioner to seek recourse to Clause 14 of the contract and apply for arbitration, if it wishes to do so.

12. In the light of the above findings the relief claimed in this petition cannot be granted. The Petition and pending applications are accordingly dismissed.