Telewings Communication ... vs Viom Networks Ltd. & Anr.
2012 Latest Caselaw 7361 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of Decision : December 22, 2012

+                                FAO(OS) 613/2012

       UNITECH WIRELESS (TAMIL NADU) PVT. LTD. ..... Appellant
                Represented by: Mr.Rajiv Nayyar, Sr.Advocate
                Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Sitesh
                Mukherjee, Mr.Ashish Dholakia, Ms. Padmaja Kaul, Ms.
                Preeti Gupta, Advocates.

                      versus

       VIOM NETWORKS LTD. & ANR.                    ..... Respondents

Represented by: Mr.Sanjay Jain, Sr.Advocate instructed by Mr.Jai Mohan and Ms.Shreya Sircar, Advocates.

AND

FAO(OS) 614/2012

TELEWINGS COMMUNICATION SERVICES ..... Appellant Represented by: Mr.Rajiv Nayyar, Sr.Advocate Mr.Sandeep Sethi, Sr.Advocate instructed by Mr.Sitesh Mukherjee, Mr.Ashish Dholakia, Ms.Padmaja Kaul, Ms. Preeti Gupta, Advocates.

versus

VIOM NETWORKS LTD. & ANR. ..... Respondent Represented by: Mr.Sanjay Jain, Sr.Advocate instructed by Mr.Jai Mohan and Ms.Shreya Sircar, Advocates.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH

CM No.21594/2012 & 21595/2012

PRADEEP NANDRAJOG, J. (oral)

CM No.21594/2012 in FAO (OS) 613/2012 CM No.21595/2012 in FAO (OS) 614/2012

1. The prayer made in the applications is to clarify the order dated December 21, 2012 as under:-

(i) That the expression „infrastructure provided by Viom', occurring in the 5th line of paragraph 17 of the order to be clarified to mean : 'Infrastructure installed by Unitech at the sites provided to it by Viom';

(ii) Similar clarification of the phrase „infrastructure provided by Viom' in the 8th line of paragraph 18 of the order dated December 21, 2012;

(iii) The last sentence of paragraph 18 : „Telewings shall not physically remove any equipment provided under its agreement with Viom' to be clarified to mean : „Telewings shall not physically remove any equipment installed at the sites provided by Viom'.

2. To make good the clarification sought, learned Senior Counsel for Viom urges that under the agreement dated February 10, 2009, the sites and towers as also some more physical infrastructure, listed in the agreement, and called „Passive Infrastructure' has been provided by Viom and „Active Infrastructure' has been provided by Unitech and the co- existence of the twin, creates the utilizable asset. It is urged that if Unitech were to physically remove the „Active Infrastructure' from the towers of Viom, the security available to Viom would be diminished.

3. While penning our opinion on December 21, 2012, as would be evident to the reader of our opinion, it would be strikingly obvious that the signature tune was to create a charge with respect to the „Passive CM No.21594/2012 & 21595/2012

Infrastructure' made available by Viom which was being taken over from Unitech by Telewings so that Telewings would not, in its further commercial dealings, deal with the asset in a manner that the same would be encumbered.

4. Thus, it may not be possible for us, under the garb of clarifying do something which may amount to a review of our decision.

5. However, we would be failing if we do not clarify, with respect to our opinion dated December 21, 2012, that a letter has been written on the same day i.e. December 21, 2012 by Unitech to Viom which reads as under:-

"BY RPAD/HAND DELIVERY/EMAIL/FAX

To,

VIOM Networks Limited, 14th and 15th Floor, DLF Square, Jacaranda Marg, DLF City Phase-II, Gurgaon 122002, India

VIOM Networks Limited 1-8-368 to 372, Gowra Trinity 5th Floor, Chiran Fort Lane, Begumpet, Hyderabad 500003, India

Attention : Syed Sawafi, Managing Director Cc: Naresh Arora, Vice President Legal

Date: 21 December 2012

Dear Sir,

CM No.21594/2012 & 21595/2012

Subject: Intimation of Assignment of the Master Infrastructure Services Agreement dated 10 February 2009 to Telewings Communications Services Private Limited.

We refer to the Master Infrastructure Services Agreement dated 10 February 2009 (Agreement) which term shall include all modifications and amendments to the Master Services Infrastructure Agreement) between Unitech Wireless (Tamil Nadu) Private Limited (Unitech Wireless) and VIOM Networks Limited (VIOM).

This letter is to intimate you that in furtherance o its right under clause 19.1 of the Agreement, Unitech Wireless intends to assigns all its rights under the Agreement to Telewings Communications Services Private Limited (Telewings) with effect from a date which is no later than the date on which Unitech Wireless‟s licenses will stand quashed (Effective Date). The Effective Date would be communicated to you at a later date.

As a result of such assignment, all rights of Unitech Wireless shall stand assigned to Telewings on and with effect from the Effective Date. You will therefore be obliged to provide services under the Agreement to Telewings with effect from the Effective Date.

We also call upon you to agree within a period of 7 days, to an assignment of Unitech Wireless‟s obligations under the Agreement to Telewings, with effect from the Effective Date, in accordance with clause 19.1 of the Agreement.

We also confirm that Telewings would be willing to assume all liabilities and responsibilities under the Agreement with effect from the Effective Date.

Thanking You,

Sd/-

CM No.21594/2012 & 21595/2012

Authorised Signatory

Unitech Wireless (Tamilnadu) Private Limited

Copy to:

Telewings Communications Services Private Limited A-38, Kailash Colony, New Delhi-110048"

6. And a complementary-cum-supplementary letter of even date written by Telewings to Viom which reads as under:-

"BY RPAD/HAND DELIVERY/EMAIL/FAX

To,

VIOM Networks Limited, 14th and 15th Floor, DLF Square, Jacaranda Marg, DLF City Phase-II Gurgaon 122002, India

VIOM Networks Limited 1-8-368 to 372, Gowra Trinity, 5th Floor, Chiran Fort Lane, Begumpet, Hyderabad 500003, India

Attention: Syed Sawafi, Managing Director, CC: Naresh Arora, Vice President Legal

Date 21 December 2012

Dear Sir,

Subject : Letter from Unitech Wireless Dated 21 December 2012

CM No.21594/2012 & 21595/2012

We refer to the letter from Unitech Wireless (Tamilnadu) Private Limited (Unitech Wireless) on the assignment of the Master Infrastructure Services Agreement dated 10 February 2009 (Agreement) between Unitech Wireless and VIOM Networks Limited (VIOM). We understand that Unitech Wireless has indicated its intention to assign this Agreement to Telewings, with effect from a date which is no later than the date on which Unitech Wireless‟s licenses will stand quashed (Effective Date), and which will be communicated by Unitech Wireless.

As advised by Unitech Wireless, we are writing to you to confirm that we are willing to assume all liabilities and responsibilities of Unitech Wireless under the Agreement with effect from the Effective Date. In this regard, we are ready to enter into appropriate documents to give effect to this assignment.

Thanking You,

Sd/-

Authorised Signatory

Telewings Communications Services Private Limited

Copy to:

Unitech Wireless (Tamilnadu) Private Limited The Masterpiece, Sector-54 Golf Course Road, DLF Phase-V, Gurgaon - 122002."

7. It is obvious that the two letters have been written in view of Viom‟s pleadings in paragraph 80 of OMP No.1127/2012, with respect to which we had reflected a constructive suggestion and the expression thereof is reflected by us in paragraph 14 of our opinion dated December 21, 2012.

6. Needless to state, learned Senior Counsel appearing for Unitech and Telewings affirm the commitment of their clients as per the two letters noted herein above and we put on record the said commitment. CM No.21594/2012 & 21595/2012

7. Now, as stands reflected in paragraph 15 of our opinion dated December 21, 2012, of the 13 circles in which Viom have provided „Passive Infrastructure' to Unitech, spectrum relating to 6 circles has been acquired by Telewings and to provide the mobile services Telewings would, of necessity and compulsion, be using not only the „Passive Infrastructure' belonging to Viom but even the „Active Infrastructure' provided by Unitech.

8. Whatever be the fate at the auction of the spectrum for the 7 remaining circles, for which Telewings contemplates to be bidding and hopes for a success, but even in the event of Telewings not being successful at the bid for the 7 circles, we find that as per the letters addressed by Unitech and Telewings to Viom, the undertaking is that Telewings assumes all liabilities under the agreement between Viom and Unitech, and this, in our opinion, is an added security made available by Telewings to Viom. It would be a case akin to a promise to pay being taken over by a third party with the consent of the promisor and the promisee. In other words, even if the consideration by the promisor to the promisee is reduced, the reciprocal consideration by the promisee to the promisor remains as per the original terms. We clarify that as per the letter Telewings has agreed to assume entire responsibility (the consideration for the promise by Unitech to Viom) irrespective of the extent of use of the „Passive Infrastructure‟ provided by Viom to Unitech under the original agreement.

9. Learned Senior Counsel for Unitech and Telewings informs us that the date of auction of the spectrum in the 7 remaining circles being uncertain and Telewings being obliged to provide mobile services under the 6 spectrums obtained by it for the 6 circles would require re-deployment of some 'Active Infrastructure' keeping in view the tele density, meaning CM No.21594/2012 & 21595/2012

thereby it may have to augment the inter connectivity between towers and the handsets of the consumers in the 6 circles for which spectrum has been obtained.

10. It may be that this may cause some injury to Viom, but balance of convenience, in our opinion in the facts of the instant case, would have to be given due weightage.

11. Now, let us list the assurances with respect to injury caused and balance of convenience in favour of Viom :

(i) the promise of Telewings to assume all responsibility under the agreement dated February 10, 2009 between Viom and Unitech;

(ii) `500/- crores directed as per our opinion dated December 21, 2012 to be retained in an escrow account;

(iii) the possibility of Telewings being the highest bidder for the remaining 7 circles; and

(iv) the concomitant obligation which Telewings has undertaken in terms of its letter dated December 21, 2012 to assume entire responsibility to make good the promise by Unitech to Viom under the agreement dated February 10, 2009 if 7 remaining circles are successfully bidded by it or not.

12. In that view of the matter, the clarification, not only being beyond the signature tune of our decision dated December 21, 2012 requires us not to grant the clarification as prayed for, but while disposing of the applications we note further conditions as are emanating from Unitech and Telewings‟ letters dated December 21, 2012 to be binding them and additionally directing that such active infrastructure which is removed by Telewings or Unitech from the 7 circles in respect whereof neither Unitech nor Telewings has the spectrum from the Government of India, shall be inventorized and an affidavit shall be filed of the inventory in the OMP CM No.21594/2012 & 21595/2012

before the learned Single Judge.

13. We clarify that the `500/- crores to be kept in an escrow account may be a fixed deposit bearing interest or in any account where interest is available.

14. The two applications are disposed of without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE DECEMBER 22, 2012//skb//

CM No.21594/2012 & 21595/2012