Delhi High Court
Atc Telecom Infrastructure ... vs Reliance Communications Limited ... on 6 December, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06th December, 2017
+ O.M.P.(I) (COMM.) 504/2017, IA No.14109/2017
ATC TELECOM INFRASTRUCTURE
PRIVATE LIMITED ..... Petitioner
Through : Mr.Sandeep Sethi, Sr Advocate
with Mr.Rajshekhar Rao,
Mr.Krishnayan Sen, Mr.Ankit
Jain, Mr.Rishad A. Choudhary,
Advocates.
versus
RELIANCE COMMUNICATIONS
LIMITED & ANR. ..... Respondents
Through : Mr.Ravindra Shrivastava, Sr.
Advocate with Mr. Manan Shukla,
Mr.Vaidhav Niti, Ms.Surabhi
Limaye, Advocates for respondent
no.1.
Mr.Akhil Sibal, Sr. Advocate with
Mr.Shivek Trehan, Advocate for
respondent no.2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. The respondents appear on advance notice.
2. This petition is under Section 9 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred as 'the Act') seeking prayers as per the
clause (a) to (g) stated therein.
3. The petitioner herein, a combined entity of Wireless TT Info
Services Limited (hereinafter referred as 'WTTIL') and passive
infrastructure business of Quippo Telecom Infrastructure Limited
(hereinafter referred as the 'QTIL') is one of the leading independent
Passive Telecom Infrastructure Providers in India and is a wholly owned
subsidiary of American Tower Corporation (hereinafter referred as the
'ATC').
4. The petitioner is holder of a registered certificate of Infrastructure
Provider Category-I (IP-1 Category) issued by the Department of
Telecommunications, Government of India and accordingly built, owned
and operate passive telecommunication infrastructure sites across India
providing such services for various telecom operators.
5. The petitioner installed towers incurring the upfront capital
expenditure (Capex) and lease the towers to telecom operators through
long term agreements called 'Master Services Agreements'. The towers
are built for a specific operator which are anchored towers and are
customized to meet the specific configuration stipulated by the said
operator. In certain cases the towers can be used by other telecom
operators with modifications as per its requirement and the tenancy so
received is called shared tenancy.
6. The respondent No.1 is licensee of telecom services / Unified
Access Service provider licensed under Section 4 of the Telegraph Act,
1885 and is authorized to provide telecom services in various telecom
circles across India under various licenses issued by the Department of
Telecommunications, Government of India.
7. On 25.07.2008 Master Infrastructure Services Provisioning
Agreement was entered into WTTIL and respondent No.2. Further on
26.09.2008 Passive Infrastructure Sharing Agreement was entered into
and executed between QTIL and respondent No.2. On 31.08.2009
Master Infrastructure Provisioning Agreement was entered into between
21st Century Infra Tele Limited (hereinafter referred as TFCITL) and
respondent No.2.
8. In the year 2010 QTIL merged its passive infrastructure business
with WTTIL vide a scheme of arrangement under Sections 391-394 of
the Companies Act, 1956 and the name of WTTIL was changed to VIOM
Networks Limited.
9. The decision of the Supreme Court in Writ Petition (Civil)
No.423/2010 declared the licenses granted on or after 10.01.2008 to
private telecom companies (including those granted to respondent No.2)
and subsequent allocation of spectrum to them as illegal and quashed the
same. The respondent No.2 then claimed frustration of the agreements
/MSAs entered into by it with the petitioner and terminated the
agreements with respect to certain sites where the licenses were not
obtained by the said respondent. The petitioner raised the demand for
payment of lock in charges/exit fee on account of premature termination
of the agreements hence a Deed of Amendment and Settlement dated
17.09.2013 was entered into between the petitioner and respondent No.2
wherein the respondent No.2 agreed to pay 40.00 Crore to the
petitioner towards its liability for payment of the lock in charges and
extended lock in period in respect of remaining sites. The respondent
No.2 also committed to place the site orders for 1500 sharing sites of
petitioner within 36 months i.e. till 31.08.2016 that is committed tenancy
and agreed to pay a genuine pre-estimate of damages calculated in terms
of the settlement deed in case of occurrence of any default.
10. On 07.06.2016, the name of Viom Networks Limited was changed
to ATC Telecom Infrastructure Limited and subsequently to ATC
Telecom Infrastructure Private Limited i.e. the petitioner herein. The
correspondences went on between the petitioner and respondent No.2 and
on 09.11.2016 the respondent No.2 informed the petitioner about a
scheme filed under Section 391-394 of the Companies Act by vesting of
undertakings of respondent No.2 with respondent No.1, Reliance
Communications Limited 'RCOM' scheme and sought approval of
petitioner in this regard.
11. The petitioner filed the OMP (I) (COMM) No.49/2017 under
Section 9 of the Act for securing its outstanding dues and orders were
passed therein.
12. Before proceeding further, let me refer to various terms and
conditions set out in Scheme of Arrangement between the two
respondents which are relevant for the controversy involved.
"Excluded Liabilities' means
(a) any and all liabilities relating to the Excluded
Assets, Excluded Employees and Excluded IPR;
and
(b) any and all Actions or Costs arising, directly or
indirectly, out of, or in respect of, or in connection
with any liability or obligation of the Transferor
Company, whether in relation to the Transferred
Undertaking or otherwise, save for liabilities or
obligations the Transferee Company has expressly
agreed to assume in the Merger Agreement or in
the Scheme including:
(i) xxx xxx;
(ii) any liability for sites that have been exited by
the Transferor Company prior to the Effective
Date other than: (a) those exited at the request of
the Transferee Company; and (b) those exited on
account of non receipt of consent of infrastructure
provider for assignment of contracts to Transferee
Company pursuant to this Scheme which are
forming part of the Identified Liabilities;
(iii) xxx xxx
(iv) xxx xxx
(v) any liability relating to the licenses held by the
Transferor Company and which were cancelled in
terms of the order of the Supreme Court of India in
2012, save and except for such liabilities which
are included as part of the Identified Liabilities;
(vi) xxx xxx
(vii) any liabilities in respect of Contracts where
the relevant Third Party Consent has not been
obtained excluding IP Colo contracts;
(viii) xxx xxx
(ix) xxx xxx."
"Transferred Undertaking" or "SSTL Business"
means the telecom business undertaking of the
Transferor Company on a going concern basis,
consisting assets as set out in Part 1 of Schedule 1
("Identified Assets" or "SSTL Assets") and
liabilities as set out in Part 2 of Schedule 1
("Identified Liabilities" or "SSTL Liabilities");
It is clarified that Identified Assets and
Identified Liabilities of the Transferred
Undertaking shall include:
(a) xxx xxx
(b) xxx xxx
(c) The debts, obligations and liabilities of
the Transferor Company in relation to the
Transferred Undertaking comprising of, only those
debts, duties, obligations and liabilities that are
outstanding as on the Appointed Date and, (a)
which arise out of the activities or operations of
the Transferor Company appertaining to or
relatable to the Transferred Undertaking and such
other debts, liabilities, duties, and (b) obligations
arising of contracts and/or agreements of the
Transferor Company relating to the Transferred
Undertaking, set out in Part 2 of Schedule 1.
4. DEMERGER AND VESTING OF THE
TRANSFERRED UNDERTAKING
4.1 With effect from the Appointed Date, the
Transferred Undertaking shall, pursuant to the
provisions of Sections 391 to 394 of the Companies
Act, 1956 and all other provisions of the Act and
without any further act, deed, matter or thing be
transferred and vested from the Transferor
Company and stand transferred to and vested in or
shall be deemed to be transferred to and vested in
the Transferee Company, on a going concern
basis, such that the Transferred Undertaking shall
without any other order to this effect, become the
properties, assets, rights, claims, title, interest,
authorities, licenses, permits, registrations, quotas,
allocations, investments and liabilities of the
Transferee Company simply by virtue of approval
of the Scheme and in the manner provided in this
Scheme.
Excluded liabilities means, as under:-
"4.5 Upon the coming into effect of the Scheme, all
Identified Liabilities exclusively relating to the
Transferred Undertaking which arose out of the
activities or operations of the Transferred
Undertaking and which are more particularly
identified in Part 2 of Schedule 1 shall without any
further act or deed be and stand transferred to and
vested in the Transferee Company and shall
become the debt, duties, undertakings, liabilities
and obligations of the Transferee Company on the
same terms and conditions as were applicable to
the Transferor Company.
All the Identified Assets and Identified Liabilities
of the Transferred Undertaking, as set out in Part
1 and Part 2 of Schedule 1, respectively shall be
deemed to be transferred on the Appointed Date,
at the Consideration provided herein.
IDENTIFIED LIABILITIES OF THE
TRANSFERRED UNDERTAKING AS ON THE
APPOINTED DATE
1. to 4. xxx xxx
5. Exit penalties related to IP cola contracts in the
operating circles (Rajasthan, Delhi, U.P. West,
Kolkata, West Bengal, Tamil Nadu, Karnataka,
Kerala and Gujarat);
6. to 8. xxx xxx
6. Contracts
6.1 Save as provided under this Scheme, upon
coming into effect of this Scheme and subject to the
provisions of this Scheme, all Contracts,
agreements, undertakings, arrangements and
understandings which relate exclusively to the
Transferred Undertaking or of which any part
exclusively relates, and which are expressly
included in the Identified Assets, in each case to
the extent that on the Effective Date the same
remain to be completed or performed, to which the
Transferor Company is a party or to the benefits of
which the Transferor Company may be eligible,
shall be in full force and effect on and against or
in favour, as the case may be, of the Transferee
Company and may be enforced as fully and
effectually as if, instead of the Transferor
Company, the Transferee Company had been a
party or beneficiary or obligee thereto.
6.2 The Parties acknowledge that upon the Scheme
coming into effect, as a result of the approval of
this Scheme by the High Courts, all the Contracts
will be assigned, novated and/or transferred to the
Transferee Company to the extent that such
Contracts can be assigned, novated and/or
transferred by the Transferor Company to the
Transferee Company without Third Party Consent.
6.3 To the extent that any Category A Contract
cannot be assigned without Third Party Consent
Transferee Company and the Transferor Company
shall both use all reasonable endeavours to obtain
any such Third Party Consent by the Effective
Date or as soon as practicable thereafter,
including the payment of liabilities accrued until
Effective Date and/or payments in lieu of
contractual lock-in, that may be required to be
made. The Transferee Company shall be liable for
any costs or expenses (including payments in lieu
of contractual lock-in) other than any payment of
liabilities accrued until Effective Date in respect of
obtaining such Third Party Consent and shall
indemnify the Transferor Company in respect of
the same.
13. CARRYING ON THE BUSINESS OF THE
TRANSFERRED UNDERTING UNTIL THE
EFFECTIVE DATE
13.1 With effect from date when the board of
directors of the Transferor Company and the
Transferee Company approve this Scheme and up
to and including the Effective Date, the Transferor
Company shall:
13.1.1 take reasonable steps to preserve and
protect the Transferred Undertaking and not to
dispose of any of the Identified Assets save in the
ordinary and usual course of business;
13.1.2 notify the Transferee Company in writing
the existing management reports which the
management of the Transferor Company uses for
business reviews at the same time as they are
provided to the management of the Transferor
Company; and
13.1.3 notify the Transferee Company in writing as
soon as reasonably practicable of any matter,
circumstance, act or omission which is or may be a
breach of this Clause 13."
13. Initially in the agreement dated 25.07.2008 between WTTIL and
respondent No.2 the lock in period was as under:-
"Lock In Periods:
10.3. Anchor Sites: with respect to Anchored Sites, a
Lock In period of 10 (Ten) years shall apply upon
both Parties.
10.4. Shared Sites: with respect to Shared Sites, a
Lock In period of 10 (Ten) years shall apply upon
both Parties."
14. However, by an Amendment and Settlement Agreement dated
17.09.2013 the lock in period was amended as under:-
"1. Lock-in Period
a) The Parties hereby agree that the Lock-in
Period for the Sites existing as on 31st August2013,
under QTIL MSA in the Operational Circles
(defined herein below) shall be till 31st March,
2020. The Lock-in Period for the Sites existing as
on 31st August 2013 under WTTIL MSA in the
Operational Circles shall be till 31st March, 2023.
b) The Lock-in Period for all the New Site/s
(Sharing Sites which come into existence on or
after 1st September 2013) shall be ten (10) years
from the RFI date of the respective Site/s."
15. It is the case of the petitioner that since an amount of `88.00
Crores approx is due against the respondent No.2 as on 31.10.2017 and
since with effect from 31.10.2017 by virtue of the Scheme of
Arrangement the transferee company - on a ongoing concern basis stood
transferred to the respondent No.1 and since the transferred undertaking
has become the property of the transferee company along with its
investment, liabilities, etc by virtue of the scheme and since all the
contracts on approval of the said scheme by this Court stood assigned /
novated and / or transferred to the transferee company with its liabilities,
hence respondent No.1 be directed to secure its dues. Various provisions
of the scheme of arrangement prima facie disclose all the assets along
with liabilities of respondent No.2 have been taken over by the
respondent No.1 with effect from the appointed date i.e. 31.10.2017 and
the respondent No.1 shall be liable of all liabilities of respondent No.2
existing on or before the appointed date.
16. The learned senior counsel appearing on behalf of the respondent
No.1 argued the liabilities which are included in part 2 of Schedule 1
attached to the Scheme are only transferred to the respondent No.1 and
no other liability. To substantiate his arguments, the learned senior
counsel for the respondent No.1 referred to the definition of 'Excluded
Liabilities' especially clause b to say that any and all actions or costs,
whatsoever, directly or indirectly, out of or in respect of any liability or
obligation of the transferor company whether in relation to the transferred
undertaking or otherwise, save for liabilities or obligation of the
transferor company has expressly agreed in the merger scheme or
arrangement scheme including: (i) xxxxxxx.
17. The learned senior counsel for the respondent No.1 further referred
to the definition of the Transferred Undertaking which means the
telecom business undertaking of the Transferor Company on a going
concern basis consisting of the assets as set out in part 1 of schedule 1
and liabilities as set out in part 2 of Schedule 1(identified liabilities) and
then to clause 'c' of the Transferred Undertaking to say only
obligations which are arising out of the contract and / or agreement of the
transferee company relating to the transferred undertaking as set out in
part 2 Schedule 1 would come to the respondent No.1. The learned
senior counsel also relied upon clause No.4.5 of the agreement to
substantiate his argument that upon coming into effect of the scheme all
identified liabilities exclusively relating to the Transferred Undertaking
which arose out of the activities or operations of the Transferred
Undertaking and more particularly identified in part 2 of Schedule 1 only
stood transferred and vested in the transferee company and since the
liability of the petitioner herein is not a part of liabilities set out in Part 2
of Schedule I, hence respondent No.1 cannot be directed to secure the
dues of the petitioner.
18. The learned senior counsel for the respondent No.1 further submit
there is also a merger agreement which is not on record and shall be filed
along with its reply and would further clarify the issues involved.
19. No doubt the respondent No.1 would get an opportunity to file
reply with relevant documents, but at this stage, one need to find if there
exist a prima facie case against respondent No.1 to secure the dues of the
petitioner, at least those existing till 31.10.2017.
20. It is pertinent to mention the relevant terms of the scheme as
understood by the respondents No.1 and 2, culminated into a joint letter
dated 09.11.2016, duly signed by both the respondents, was sent to the
petitioner and relevant part of it is as follows:-
"Dear Sir,
xxxx
Pursuant to the, Merger Agreement, the following
agreement between SSTL and ATC Telecom
Infrastructure Private Limited ("ATC Telecom")
will stand transferred to RCOM with effect from
the Completion Date which is anticipated to be on
or about 15th December 2016:
(i)Master Infrastructure Provisioning Agreement
dated 25th July, 2008 between Wireless-TT Info
Services Limited and SSTL (hereinafter referred to
as 'WTTIL MSA' which term shall include all
documents adding to, modifying, amending or
supplementing the WTTIL MSA); and .
(ii) Passive Infrastructure Sharing Agreement
dated 26th September, 2008 between the Operator
and Quippo Telecom Infrastructure Limited
(hereinafter referred to as 'QTIL MSA' which term
shall including all documents adding to modifying,
amending or supplementing the QTIL MSA).
WTTIL MSA and QTIL MSA shall be collectively
referred to as 'Master Agreements'.
We will separately inform you of the actual
Completion Date after it has occurred.
Consequently, all rights and obligations of SSTL
under the Master Agreements arising and on and
after the Completion Date shall, with effect from
the Completion Date, stand transferred to RCOM
as if it was an original party to such Master
Agreements.
Accordingly,
(i) You, ATC Telecom hereby agree to release and
discharge, with effect from the Completion Date,
SSTL from all its obligations and liabilities under
the Master Agreements, and;
(ii) You, ATC Telecom hereby agree to continue to
discharge in favour of RCOM, with effect from the
Completion Date, on the same terms and
conditions, SSTL's obligations under the Master
Agreements for the balance of the term of the
Master Agreements as stated therein.
If required, you· agree to sign any further
documents, to give effect to the above.
Thank you.
Your faithfully,
For Sistema Shyam Teleservices Limited
Sign:
Name:
For Reliance Communications Limited
Sign:
Name:
Acknowledged and agreed to on the date first
above written by ATC Telecom Infrastructure
Private Limited
Sign:
Name:"
21. Thus the above letter sent by respondents No.1 & 2 jointly to the
petitioner clarifies that it shall be the respondent No.1 who shall
discharge all liabilities and obligations qua the petitioner herein in respect
of the above agreements. However, this joint understanding was
unilaterally resiled by respondent No.1 on 30.10.2017 and the relevant
portion its letter dated 30.10.2017 is as follows:-
"...... Pursuant to the Scheme, the following
agreement between SSTL and ATC Telecom
Infrastructure Private Limited ("ATC Telecom")
will stand transferred to RCOM with effect from
the Completion Date which is 31st October 2017:
(i) Master Infrastructure Provisioning
Agreement dated 25th July, 2008 between
Wireless-TT Info Services Limited and SSTL
(hereinafter referred to as 'WTTIL MSA' which
term shall include all documents adding to,
modifying, amending or supplementing the WTTIL
MSA); and
(ii) Passive Infrastructure Sharing
Agreement dated 26th September, 2008 between
the Operator and Quippo Telecom Infrastructure
Limited (hereinafter referred to as 'QTIL MSA'
which term shall include all documents adding to,
modifying, amending or supplementing the QTIL
MSA).
WTTIL MSA and QTIL MSA shall be collectively
referred to as 'Master Agreements'.
Consequently, all rights and obligations of
SSTL under the Master Agreements arising after
the Completion Date shall, with effect from the
Completion Date, stand transferred to RCOM as if
it was an original party to such Master
Agreements.
Accordingly,
(i) You, ATC Telecom, hereby agree to
release and discharge, with effect from the
Completion Date, SSTL from all its obligations
and liabilities under the Master Agreements
(except the liabilities which have arisen prior to
Completion Date), and;
(ii) You, ATC Telecom, hereby agree to
continue to discharge in favour of RCOM, with
effect from the Completion Date, on the same
terms and conditions, SSTL's obligations under the
Master Agreements.
The above service arrangement with SSTL
as transferred to RCOM shall stand terminated at
the close of business on November 30, 2017. Any
arrangement post 30th November 20l7, if
necessary, would be a matter of a separate
agreement to be entered into directly with RCOM
on the mutually agreed terms.
If required, you agree to sign any further
documents, to give effect to the above.
Thank you.
Your faithfully,
For Reliance Communications Ltd.
Sign:
Name
Acknowledged and agreed to on the date
first above written by ATC Telecom Infrastructure
Private Limited
Sign:
Name:"
22. In the above letter, the respondent No.1 has deliberately omitted
the word 'on' and only wrote arising after and hence for the first time
denied its liability towards the petitioner and hence this petition under
Section 9 of the Act is filed. I have heard the learned senior counsels on
advance notice.
23. At this stage, only a prima facie view needs to be taken by this
Court, based upon principles under Order 38 Code of Civil Procedure.
Now, clause 6.1 of the Scheme of Arrangement says all contracts,
agreements, undertakings, arrangements etc which relate exclusively to
the Transferred Undertaking shall be transferred from the Effective Date
from respondent No.2 to respondent No.1. Hence, the respondent No.1
from such effective date viz 31.10.2017 steps into the shoes of
respondent No.2. Now, since all the contracts between petitioner and
respondent No.2 stood transferred to respondent No.1 so shall be the
right to refer disputes therein to arbitration, being a part of such
contract(s) also stood transferred.
24. The respondent No.2 admittedly was transferred as a going
concern to respondent No.1 along with its liabilities and hence to oust
the claim of petitioner there ought to have been an express exclusion
clause, lest it would not bar this Court to take a prima facie view against
respondent No.1.
25. Now 'excluded liabilities' especially clause b refers any or all
actions, costs whatsoever arising directly or indirectly, or in connection
with any liability or obligation of the transferor company whether in
relation to the transferred undertaking or otherwise save for liabilities
and obligation, the transferor company has expressly agreed in the
merger scheme and or scheme of arrangement: xxxxx. The Transferred
Undertaking clarifies the identified assets and liabilities of the
undertaking shall include - The debts, obligations and liabilities of the
Transferor Company in relation to the Transferred Undertaking
comprising of, only those debts, duties, obligations and liabilities that
are outstanding as on the Appointed Date and, (a) which arise out of the
activities or operations of the Transferor Company appertaining to or
relatable to the Transferred Undertaking and such other debts, liabilities,
duties, and (b) obligations arising of contracts and/or agreements of the
Transferor Company relating to the Transferred Undertaking, set out in
Part 2 of Schedule 1.
26. A bare perusal of the definitions of the Transferred Undertaking
and identified liabilities would go on to show all the liabilities and
obligations of respondent No.2 outstanding as on the appointed date were
taken over by respondent No.1 along with obligations arising out of the
contract and/or agreements of the transferor company relating to the
transferred undertaking as set out in part 2 of Schedule 1. Hence, it is not
only the obligation as set out in part 2 of Schedule 1 which is transferred
but the identified liabilities also include the obligation and liabilities of
the respondent No.2 that were outstanding as on the appointed date and
in that sense, the identified liabilities is inclusive of the obligations set
out in part 2 of Schedule 1.
27. At this stage, I need not elaborate further on various provisions of
the scheme and suffice is to say prima facie a) considering the joint
understanding dated 09.11.2016 signed by respondents No.1 & 2; b) the
definition of identified liabilities being inclusive of the obligations set out
in part 2 of Schedule 1; and c) there being no express exclusion of
liabilities of respondent No.2 arising from its agreements it had entered
with the petitioner herein, the respondent No.1 is liable to secure the
petitioner of its outstanding dues as on the effective appointed date.
28. Though the agreements the petitioner had with respondent No.2 do
talk of lock in period and compensation/exit fee to be paid if such clause
is violated, but such amount and/or damages are yet to be determined /
quantified and hence at this stage, I need to protect only the admitted
liability as on 31.10.2017, which the respondent No.1 had expressly
taken over vide a joint communication dated 09.11.2016 sent to the
petitioner herein, hence I direct the respondent No.1 to file an affidavit of
its assets, immovable or movable within two weeks from today
disclosing its properties to the extent of the value of ` 88.00 Crores with
an undertaking not to alienate those assets till pendency of this petition,
lest on expiry of said period of two weeks, the respondent No.1 shall
furnish a bank guarantee to the extent of ` 88.00 Crores in favour of the
petitioner therein. This direction is all the more necessary in view of
various media reports viz the Reliance Communication is shutting down
its operations of wireless business; is reeling under the debt of around
`4600 Crores, per page 259 of the documents file.
29. Notice of this petition is hence issued. It is accepted by the learned
counsels for respondents No.1 & 2 who seek time to file replies. Let
replies be filed by the respondents within six week from today with an
advance copy thereof to the learned counsel for the petitioner. Rejoinder
thereto, if any, be also filed within three weeks thereafter.
30. List on 10.04.2018.
YOGESH KHANNA, J
DECEMBER 06, 2017
M/DU
