I have had the benefit of perusing the judgment of my. esteemed learned brother, Hon ble Justice Shri S.B. Sinha,

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1 TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI DATED 18 th JULY, 2011 Petition No. 275 (C) of 2009 Reliance Communications Limited.. Petitioner Vs. Bharat Sanchar Nigam Limited..... Respondent BEFORE : HON BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON HON BLE MR. G.D. GAIHA, MEMBER HON BLE MR. P.K. RASTOGI, MEMBER For Petitioner : Mr. C.S. Vaidyanathan, Sr. Advocate Mr. Santosh Sachin, Advocate for Ms. Manali Singhal, Advocate For Respondent : Mr. Maninder Singh, Sr. Advocate Mr. Tejveer Singh Bhatia, Advocate Mr. Paras Anand, Advocate G.D. Gaiha O R D E R I have had the benefit of perusing the judgment of my esteemed learned brother, Hon ble Justice Shri S.B. Sinha, Chairperson of TDSAT in draft stage. Despite the great respect, 1

2 he commands at my hands, and having every regard for his opinion, I have not been able to persuade myself to agree with him. In my opinion, the Miscellaneous Application No.19/2011 should be allowed. The reasons thereof are mentioned below:- 2. In this case Apex Court in its judgement and order dated has arrived at the following conclusions:- We need to clarify that in this case our judgment is restricted only to the interpretation of Clause of the Interconnect Agreement read with the Addenda. As stated above, we have held that Clause represents pre-estimate of reasonable compensation for the loss suffered by BSNL. Thus, we set aside the impugned judgment and remit the matter to TDSAT to decide the matter de novo in accordance with the law laid down hereinabove. However, we need to highlight one aspect. In the letter dated 13 th October, 2004 addressed by BSNL to Reliance, it has been alleged that the calls have landed at the POIs of M/s Reliance Infocomm. Ltd. at Karellbaug, Panigate, Alkapuri, Makarpura, 2

3 Padra, Dabhoi and Miyagam exchanges in Vadodara SSA. The said letter highlights one more important aspect. It is alleged that the number was an unallocated number with Reliance during the relevant period. This aspect needs to be examined by TDSAT on facts. 3. As can be seen from above, the directions are to decide the matter de novo in accordance with the law laid down herein above and the Apex Court has set aside the impugned judgment and remitted the case back to TDSAT. 4. There are two important directions which are to be followed as per the judgement and order and the same are as follows:- (i) (ii) The matter is to be decided de novo. A new law has been laid down which is not within the perceptions of the petitioner herein and the petitioner could not also have any access to this new law even with due diligence prior to the announcement of the judgement on

4 5. The present application of the petitioner has to be decided as per the provisions in Order 6 Rule 17 in case we strictly go as per the Code of Civil Procedure. Order 6 Rule 17 is cited below:- 17. Amendment of Pleadings:- The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendments shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 6. The important part is the proviso, which has to be carefully looked into, for deciding the amendment application in this particular case. The proviso specifically denies to allow any application for amendment only in the following two contingencies:- (i) After the trial has commenced 4

5 (ii) Unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 7. I have tried to examine this case from the point of view of the above two considerations, in case we have to go strictly in accordance with the Civil Procedure Code. It will be in fitness of things that I also bring out the relevant provision in the TRAI Act also at this stage. Alternatively the TRAI Act provides under Section 16 as follows:- 16. Procedure and powers of Appellate Tribunal- (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure. (2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- 5

6 (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) requisitioning any public record or document or a copy of such record or document, from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it, ex-parte; (h) setting aside any order of dismissal of any application for default or any order passed by it, ex parte; and (i) any other matter which may be prescribed. (3) Every proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXV of the code of criminal Procedure, 1973 (2 of 1974). 6

7 8. We are, therefore, is strictu sensu not bound by the Civil Procedure Code and the principles of natural justice can be the guiding factor in regard to deciding any such case. This Tribunal has, therefore, got inherent power to regulate its own procedures, as per statute and section 16 of the TRAI Act shows us the way. 9. Even if we go strictly by the CPC under the present circumstances while we have otherwise got full liberty, as per the statute to follow our own procedure, we have only to examine the following two important facts:- i) Whether the trial has commenced? (ii) Whether in spite of due diligence, the party could not have raised the matter before the commencement of trial. 10. In regard to the commencement of trial, the Apex Court in Civil appeal No.7251 of 2008 arising out of the SLP (Civil No.4740 of 2008) has decided that the earliest occasion, to come to a conclusion, that the trial has commenced is the date on which the issues are framed and we can call it as a date of first hearing. In this particular case after the case has been referred for deciding de novo by the Apex Court on 30 th Nov, 2010, the case 7

8 has come up for hearing on 16 th Dec, 2010 and we have passed the following order:- Mr. C.S. Vaidyanathan, the learned Senior Counsel appearing on behalf of the petitioner states that an application for amendment of the petition shall be filed by Mrs. Prathiba Singh, the learned counsel appearing on behalf of the respondent states that if a copy thereof is served in advance, reply thereto may be filed by Put up the matter for hearing on the application on under the heading for order. However, the respondent may also, as has been prayed for, file an additional affidavit. As can be seen from above, we have given liberty to file application for amendment of petition and also directed the hearing to this application on 18 th Jan, We also directed the respondent to file its reply. We have not framed the issues by due application of mind after new law has been laid down by the Apex Court in regard to the most crucial clause of the Interconnect Agreement. 8

9 11. On 18 th Jan, 2011, we have issued notice on the M.A. No. 354 of 2010 directing the respondent to file a reply and thereafter, a rejoinder thereto by the petitioner. Another Miscellaneous Application No.19 of 2011 was filed on 24 th Jan, The earlier application for seeking amendment, being M.A. No. 354 of 2010 was held to have become infructuous and the M.A. No. 19/2011 was heard on 15 th March, This application seeks for amendment of the petition. 12. From the above sequence of events, I cannot persuade myself to infer that:- (i) The trial has commenced after the case was remanded back by the apex Court for a de novo hearing. (ii) As regards the other factor, I am of the opinion that the Apex Court has finally settled the law on the most crucial clause on the basis of which the impugned prayer for amending the petition has been made and, therefore, prior to this date, the fact about the new law on clause could not have been known to the petitioner even with the best of due diligence. 9

10 13. Now coming back to the other important requirements of the Order 6 Rule 17, i.e., that:- (i) The application should state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original proceeding with proper verification as laid down in Order 6 Rule 15. This has been strictly followed by the applicant petitioner. 14. The important requirement that the amendment shall be made as may be necessary for the purpose of determining the real question between the parties can be examined on the basis of comparing the existing averments vis-à-vis the new/additional averments sought to be made after amending the petition. A comparative statement is placed below for the purpose of coming to a conclusion on this issue. The existing averments are typed in the normal letters while the additional averments have been typed in bold letters. Para 12.3 As regards the allegation of deliberate tampering of CLI by the petitioner, it is stated that the statement is factually incorrect since the number indicated 10

11 to the BSNL terminating end is of a subscriber which has been shown as CLI. On what basis the BSNL has alleged deliberate tampering by the petitioner is not explained by the respondent Para 12.3-A: It is submitted that there was no change in CLI by the petitioner while delivering the call. Further it is pertinent to mention that there is no wilful or deliberate change/tampering/masking of CLI by the petitioner as the petitioner has delivered the call with the same CLI as originated from its subscriber. Para 22.5: Without further prejudice, it is stated that the respondent vide the said letter dated have also referred to the clauses (a), (b) & (c) & (d) of the Interconnect Agreement as being related with the issue. It is submitted that this an afterthought of the respondent to cover the illegal action of raising bills without any provision of the Interconnect agreement, because when the said impugned bills were issued on the clause (a), (b), (c) and (d) were not there in the NLD Interconnect Agreement. The only clause was which did not have any sub sections (a) (b) (c) and (d) etc. Without prejudice, it is further submitted that during the period when the bills were raised, the said clause of the NLD Interconnect Agreement was not invoked by the respondent and is added in the letter dated as 11

12 an afterthought. Therefore, referring to this clause in 2007 as justification for raising the impugned bills on is invalid, illegal and in violation of the provisions of the Interconnect Agreement. Para 22.5-A: it is further submitted that in the facts and circumstances of the present case Clause of the Interconnect Agreement is not applicable at all as the said clause did not exist during the relevant period ie. July 2004 to October It is pertinent to mention that Clause was inserted in ADDENDA VI signed between the parties on and the same is not applicable with retrospective effect from on account of exception carved out in the ADDENDA VI itself. Para 22.5-B: Without prejudice it is submitted that Clause added in the Interconnect Agreement on cannot make the bills raised in the year 2003 and 2004 legal and valid in law even if the clause is retrospectively applicable from It is pertinent to mention that none of the impugned bills have been raised on the basis of Clause of the Interconnect Agreement. Para 28: Without prejudice to the contention herein above, it is respectfully submitted that the respondent BSNL is 12

13 itself aware of the problem relating to grey market as it also faces the same problem in its own network. This fact has been admitted by the respondent BSNL in question raised in Parliament. Copies of some of the questions answered on behalf of BSNL by the Ministry of Communication are annexed hereto and marked as Annexure P-31. Para 28-A: It is submitted that there has been no benefit to the petitioner in the national or international market in the matter of pricing. In fact the petitioner is a net loser on account of the grey market operations. 15. There are some addition in the grounds and the same are as follows:- C. Because the respondent has not substantiated the allegation of deliberate tampering of CLI by the petitioner. C-(a): Because there was no change in the CLI by the petitioner while delivering the call. C-(b): Because there was no change/tampering/masking of CLI by the petitioner as the petitioner has delivered the call with the same CLI as originated from its subscriber, nor was 13

14 there any wilful or deliberate change/tampering/masking P: Because the said impugned notices are alleged to have been issued for violation of clause (a), (b), (c) & (d) whereas at the relevant time there was no such clause in the NLD Interconnect Agreement. P-(a): Because in the facts and circumstances of the present case Clause of the Interconnect Agreement is not applicable at all. P-(b): Because admittedly Clause did not exist during the relevant period i.e., July 2004 to October P-(c): Because it is submitted that Clause was inserted in ADDENDA VI signed between the parties on and this Clause is not applicable with retrospective effect from on account of exception carved out in the ADDENDA VI itself. P-(d): Because subsequent issue of Clause added in the Interconnect Agreement on cannot make the bills raised in the year 2003 and 2004 legal and valid in law even if the clause retrospectively applicable from

15 P-(e): Because none of the impugned bills have been raised on the basis of Clause of the Interconnect Agreement. 16. In prayers the petitioner has asked for an additional prayer which is as follows:- a-1 Quash and set aside the notice/bill dated 18 th March, As can be seen from the above amendments sought for, the para 22.5-A is only a narration of the facts of the case. Para 22.5-B is only in regard to the bills being raised in case the clause is applicable for raising such a bill. Para 28-A is only a submission in regard to the perception of the petitioner that it has not gained any mileage in the national or international market in the matter of pricing. The addition of the grounds under C and under P are simply from the point of view of making the stand of the petitioner clear and visible. 15

16 18. In my opinion, therefore, the amendments sought for, stand the scrutiny of the requirements of Order 6 Rule 17 of the CPC upto the hilt. The amendments sought for also do not include any new grounds or new contentions and, therefore, they do not violate the basic intent as contained in the Civil Procedure Code Amendment Act, These amendments shall, therefore not become the cause for any further delay in deciding this case. 19. The Apex Court had categorically laid down the rule in Tamil Nadu Alloys Foundry Co. Ltd. Vs. Tamil Nadu Electricity Board (2004) 3 SCC page 392 in which it has been held that where a complete new case is made out in (1995) suppl.3 SCC paragraph 17 or where it seeks to take away an admission (2008) 7 SCC 85, the amendment is not allowed. The present case does not fall in these categories also. 20. In another case the Apex Court has put a bar for seeking any amendment in case the claim could be barred by limitation. The instant case also does not fall in this category. 21. In yet another case in Salem Bar Association Vs. Union of India reported in (2005) 4 SCC 344, it has been held:- 16

17 26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision. 22. In case we go by the principle of natural justice also, any delay which avoids the mis-carriage of justice, is not denied to be incurred by any statutory procedure and; especially from that point of view Section 16 of TRAI Act shows us the way. In the alternate, therefore, this Tribunal is already armed by the statute under Section 16 of the Act to lay down its own procedure and by exercising this power we can also allow this application without 17

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