2007 Supreme(SC) 1102

2007(6) Supreme 293
Supreme Court of india
(From TDSAT)
H.K. Sema & P.K. Balasubramanyan, JJ.
Union of India — Petitioner
versus
Tata Teleservices (Maharashtra) Ltd. — Respondent
Appeal (civil) 1033 of 2004
Decided on : 23-08-2007

important point
TDSAT has jurisdiction to entertain a counter claim in the light of Section 14(1) and 14A of the Telecom Regulatory Authority of India Act, 1997.

Headnote:(a)Telecom Regulatory Authority of India Act, 1997 – Section 14 – Section 14A of the Act gives the right to the Central Government or to the State Government to make its claim in TDSAT – Normally, a right to make a claim would also include a right to make a cross-claim or counter and such a claim will have to be entertained by the TDSAT – The Central Government could do this even while defending a claim made against it in TDSAT – It would not be logical to hold that the same claim could not be made by way of a counter claim when the other side, namely, the licensee or consumers, had already approached the TDSAT with a claim of their own and the Central Government is called upon to defend it – Therefore the TDSAT has jurisdiction to entertain a counter claim in the light of Section 14(1) and 14A of the Act. (Para 12)

       (b)Telecom Regulatory Authority of India Act, 1997 – Section 14 – Section 14 takes within its sweep disputes following the issue of a Letter of Intent, pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor. (Para 13)

       (c)Telecom Regulatory Authority of India Act, 1997 – Section 14 – When a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act there is no reason to restrict the jurisdiction of the tribunal by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and who had even accepted that letter of intent – Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a Notice Inviting Tender, would also normally come within the purview of a dispute that is liable to settled by the specialised tribunal. (Para 15)

       (2003) 3 SCC 186 – Relied upon.

       (d)Telecom Regulatory Authority of India Act, 1997 – Section 16 r/w O.VIII, r. 6A, Code of Civil Procedure, 1908 – Section 16 of the Act, does not exclude the powers under CPC – It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the CPC – Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII Rule 6A of the CPC which could be applied by the TDSAT – TDSAT was in error in dismissing the counter claim as not maintainable – Matter remitted back for fresh adjudication of the claim and counter-claim. (Paras 16 and 18)

       Facts of the case :

       The respondent approached the TDSAT praying for a declaration that the action of the Union of India in raising a claim and in recovering the amount as per its demand dated 10.8.1999, was bad in law and be set aside, for a declaration that the set off made by invoking condition 19 of the licence the respondent had with the appellant in respect of the Maharashtra Service Area was illegal and unauthorised and for setting aside the same, for directing the appellant to refund an amount of Rs.50 crores together with interest from the date of the purported set off of that amount with the amounts due to the respondent till the date of refund and for other consequential and incidental reliefs. In answer, the appellant contended that it was entitled to make the set off and the set off made was authorised and legal and that there is no reason to interfere with the set off and the respondent was not entitled to the recovery of Rs.50 crores with interest thereon. A claim that the appellant is entitled to recover as damages from the respondent a sum of Rs.654.25 crores towards the loss suffered by it on account of the respondent herein failing to fulfil its obligations under the Letter of Intent issued to it in respect of the Karnataka Telecom Circle was also put forward. The TDSAT upheld the claim of the respondent, rejected the claim of the appellant that it was entitled to a legal or equitable set off of the sum of Rs.50 crores and more importantly held that it has no jurisdiction to entertain a counter claim at the instance of the appellant. Thus the claim of the respondent was accepted and a direction was issued to the appellant to refund the sum of Rs.50 crores to the respondent with interest thereon at 17 per cent per annum from the date the said amount was appropriated by the appellant till its payment along with costs of the proceedings. This adjudication of the TDSAT is challenged in this appeal.

       The two substantial questions of law sought to be adjudicated on are (1) whether the TDSAT was justified in not accepting the plea of set off raised by the appellant and 2) whether the TDSAT has not failed to exercise the jurisdiction vested in it by law in declining to go into the merits of the counter claim made by the appellant and in rejecting the same as being not maintainable.

       Findings of the Court:

       TDSAT was in error in dismissing the counter claim as not maintainable.

       Result : Appeal allowed and matter remitted back for fresh adjudication.