Bhagyanagar India Ltd vs Bharat Sanchar Nigam Ltd
2018 Latest Caselaw 5175 Del

$~15
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: 29th August, 2018.
+               EX.P. 53/2014 & EX.APPL.(OS) 437/2014
       BHAGYANAGAR INDIA LTD                              ..... Decree Holder
                          Through:     Mr.Siddharth Gautam, Advocate (M-
                                       9810202212).

                          versus

       BHARAT SANCHAR NIGAM LTD                        ..... Judgement Debtor
                   Through: None.

       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. The Decree Holder seeks execution of the judgement and decree dated 9th July 2003. The operative portion of the said decree reads as under:

"This suit coming on this day for final hearing before this Court in the presence of counsel for the parties with Mr. Yogesh Kr. Nagar, Asst. Manager ( WLL) BSNL., C.O. New Delhi as aforesaid, it is ordered that a decree be and the same is hereby passed in terms of two circulars of the respondent being applicable to the plaintiff, i.e., circular No. 13-1/2008-WLL/Cores/28 dated 07.08.2009 read with a clarification No.13- 1/2008-WLL/Cores/33 dated 16th September, 2009 (Copy enclosed)"

2. Learned counsel for the Decree Holder submits that by applying the circulars, as was directed by this Court vide judgment and decree dated 9 th July, 2013, the total amount due would be Rs.88,06,657/- . The break-up of the same is as under:

                 Name of Circles        AMC Dues
                Kerala                 10,18,662
                Rajasthan              57,19,603
                Haryana                6,07,038
                Andhra Pradesh         14,61,354
                Total                  88,06,657

3. Counsel for the Decree Holder further submits that a sum of Rs. 5,43,755/- was already paid by the Andhra Pradesh Circle, and accordingly he prays that the remaining amount is still outstanding and has to be paid. The decree is clear to the effect that BSNL had to apply the circulars dated 7th August 2009 and 16th September, 2009, and thereby reduce the penalty amount.

4. The reply of BSNL to the present execution petition states that the payments have been made after deducting the penalty amounts. The penalty amounts were to be deducted only as per the Circulars, and higher amounts cannot be deducted. It is admitted that the penalty amounts have been capped at 25% of the AMC value for the year or 25% of the 2% of the PO value, whichever is higher. But additionally, BSNL contends that a circular dated 12th November, 2012 has been issued, which states that the capping can be done only if the services have been performed to a satisfactory level. It further relies upon a clarification dated 14th, December, 2009 issued to clarify the circular dated 7th August, 2009. BSNL thus contends that the payments of the Decree holder have been settled as per the said 2012 circular in four circles i.e., Assam, Andhra Pradesh, Tamil Nadu and Uttaranchal. However, it is further stated in the reply affidavit that if a terminal is not returned, an amount equivalent to 1.5 times of the cost of terminal would be leviable on the supplier and this cannot be counted as

penalty for the purpose of the 25% cap.

5. As per the reply, the challenge to the Petition in each of the circles is as under:

i. Andhra Pradesh Circle: The pending amount has been paid and no dues certificate has been collected from the vendor. ii. Haryana Circle: The matter was re-examined and the penalty amount was reduced from Rs. 10,86,308 to Rs. 8,80,064/-. However due to non return of IFWT terminal, penalty has been calculated based on the cost of the complete IFWT. This according to BSNL is as per the circular dated 7th August, 2009 read along with circular dated 14th December, 2009 clarifying the circular dated 7th August, 2009. iii. Kerala circle: In this circle, the circular dated 12th November 2012 which was issued subsequent to the passing of the decree has been applied by BSNL.

iv. Rajasthan circle: Insofar as this Circle is concerned, BSNL has sought to reply that due to non-returning of various chargers/adapters, the penalty @1.5 times the cost has been applied.

6. Thus, for Andhra Pradesh, no further payment is liable to be made as the no dues certificate has been issued by the Decree Holder. In respect of the Haryana circle, Kerala circle and Rajasthan circle, the reliance on the subsequent clarification dated 14th December, 2009 and the subsequent circular dated 12th November, 2012, is not sustainable. The decree of this Court is clear that the penalty is to be determined as per circulars dated 7 th August, 2009 and 16th September, 2009. The charging of higher penalty on the basis of a subsequently issued clarification or circular is unsustainable. BSNL is accordingly directed to make the payment of the amounts due after

re-computing the same as per the decree, read with the present judgement, along with interest @ 6% per annum from 9th July, 2013. Payment be made within 8 weeks, failing which, the Bank A/c No. 1 120002102306372 of BSNL shall stand attached to the extent of the decretal amount.

7. A copy of this order be sent to the legal department of BSNL as also to the counsel - Mr. Sameer Aggarwal, (B-138, Sector 30, Noida-201303).

8. Order dasti.

PRATHIBA M. SINGH, J

AUGUST 29, 2018 Rahul