Delhi High Court
Mahanagar Telephone Nigam Ltd. vs M/S Usha India Ltd. & Anr. on 27 November, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th November, 2012
+ LPA No.772/2012
MAHANAGAR TELEPHONE NIGAM LTD. ..... Appellant
Through: Mr. Rajeev Sharma, Adv.
Versus
M/S USHA INDIA LTD. & ANR. ..... Respondents
Through: None.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the order dated 13.07.2010 of the
learned Single Judge of dismissal of W.P.(C) No.5464/1998 preferred by
the appellant. The said writ petition was preferred impugning an
arbitration Award pursuant to an arbitration under Section 7B of the
Indian Telegraph Act, 1885.
2. The arbitration proceedings had arisen out of a claim by the
appellant on the respondent for `40,18,296/- on account of misuse of
telephone for a period of three years. It was the case of the appellant that
the respondent, though had not applied for the STD facility on the
telephone line, was making STD calls therefrom.
3. The arbitrator dismissed the said claim holding:
(i) that the appellant had observed the telephone line using the
Multi Linked Observation Equipment (MLOE) only for one
day and on that basis could not raise a bill for a period of
three years;
(ii) that there was no explanation offered for raising the bill for
three years on extrapolation of the calling pattern observed
for a single day;
(iii) that though it was the case of the appellant that the STD
facility was fraudulently availed by the respondent through
diversion / tempering and without metering of calls in
connivance with some of the MTNL employees but could
not find anybody from their own department guilty of
connivance;
(iv) that the appellant was otherwise unable to prove that the
respondent itself had access and control on the exchange
equipment to enable misuse thereof;
(v) that the appellant had not undertaken any investigation
inspite of offer of the respondent in this regard;
(vi) that the records of the appellant showed STD calls to have
been made from the line even after the time the same was
taken away from the respondent and there was no
explanation forthcoming therefor;
(vii) that from the factum of the telephone line being continued to
be used for making calls even after being taken away from
the respondent, it stood established that the STD calls shown
in the MLOE installed for one day were not made by the
respondent; and
(viii) that the period of observation of one day only was too short
to justify raising the impugned bill.
4. We may notice that the respondent had deposited a sum of
`18,33,042/- out of the total demand of `40,18,296/- with the appellant
during the pendency of the proceedings. The Arbitrator accordingly
while dismissing the claim of the appellant directed the appellant to
refund the said amount to the respondent. The respondent had also filed
W.P.(C) No.3735/1998 impugning the Award to the extent it did not
grant any interest along with refund.
5. The learned Single Judge by the impugned judgment, besides
dismissing the writ petition preferred by the appellant has also dismissed
the writ petition preferred by the respondent.
6. We may notice that the appellant had failed to appear before the
learned Single Judge. The learned Single Judge has recorded that in the
writ petition that there was no challenge to the reasoning aforesaid given
by the Arbitrator. We find the appellant to have, in the Memorandum of
this appeal also, not found fault with or rendered any explanation
whatsoever for the reasoning aforesaid given by the Arbitrator. The
counsel for the appellant also, inspite of our query has been unable to
urge any fault in the reasoning aforesaid given by the Arbitrator. He is
not even able to show any Rule or Regulation which entitles the appellant
to, on detecting misuse, raise a bill for the previous three years.
7. There is thus no merit in this appeal, which is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
NOVEMBER 27, 2012
'gsr'
