The court established that the setting aside of an arbitral award on the ground of being against public policy entitles the claimant to the relief sought, and the pendency of an appeal does not automatically stay the judgment.

RAJIV SAHAI ENDLAW, J.

1. The petition (i) impugns the decision dated 26th December, 2012 of the respondent Department of Telecommunications (DoT) of the Union of India (UOI) refusing to refund the amount deposited by the petitioner no.1 Bharti Airtel Ltd. (petitioners no.2 and 3 are its shareholders and the word “petitioner” hereafter will mean Bharti Airtel Ltd. only); (ii) seeks a direction to the respondent UOI to comply with the understanding and obligations recorded in the petitioner’s letters dated 1st August, 2001, 6th November, 2012 and 10th December, 2012; (iii) seeks mandamus directing the respondent UOI to refund the sum of Rs.399.92 crores to the petitioner; (iv) seeks mandamus directing the respondent UOI to also pay interest on the said amount of Rs.399.92 crores i.e. a total sum of Rs.2495.87 crores to the petitioners with future interest till the date of refund; and, (v) alternatively seeks permission for the petitioner to adjust the amount so refundable by the respondent in the future licence fee payments due to the respondent UOI from the petitioner.

2. Notice of the petition was issued and a counter affidavit has been filed by the respondent UOI and to which a rejoinder has been filed by the petitioner. The counsels were heard on 8th October, 2015 and 4th November, 2015 when judgment was reserved.

3. It is the case of the petitioner:-

(i) that the petitioner was granted a licence dated 26th December, 1995 under Section 4(1)(b) of the Telegraph Act, 1885, to establish, maintain and work telegraph in the Punjab Telecom Circle;

(ii) that for reasons attributable to the respondent UOI, the licence of the petitioner was de-facto suspended from 18th April, 1996 to 10th March, 1998 (though the petitioner has made detailed pleadings in this regard but the need to refer thereto, for the reasons hereinafter appearing, for the purpose of the present petition is not felt);

(iii) that the petitioner thus did not pay the licence fee payable by it for the period 18th April, 1996 to 10th March, 1998;

(iv) that the respondent UOI however insisted upon payment of licence fee for the aforesaid period together with interest and penal interest thereon and upon non payment thereof by the petitioner, terminated the said licence on 15th July, 1999;

(v) that though the petitioner represented to the respondent UOI to refer the dispute aforesaid to arbitration in accordance with the terms therefor in the licence, but to no avail;

(vi) that on the contrary, the respondent UOI, to arm-twist the petitioner, denied release of eight Basic Service Licences, eight Cellular Licences and one National Long Distance Licence to the associate companies of the petitioner;

(vii) that the petitioner was thus constrained to deposit the entire licence fee along with interest and penal interest for the aforesaid period with the respondent UOI as “on account payment”, strictly without prejudice to its rights and contentions and with a clear understanding that in the event of the dispute being decided in favour of the petitioner, the respondent UOI will forthwith refund the said amount along with interest for the period the same was retained by the respondent UOI; the said understanding is reflected in the letter dated 1st August, 2001 of the petitioner;

(viii) that in accordance with the aforesaid understanding, a reference dated 27th September, 2001 was made for arbitration;

(ix) that the petitioner in the said arbitration made a claim for refund of the amount deposited along with interest at the same rate at which the respondent UOI had demanded interest;

(x) that the Sole Arbitrator vide arbitral award dated 20th December, 2002 dismissed the claim of the petitioner;

(xi) that the petitioner filed OMP No.77/2003 under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) before this Court and which had been allowed vide judgment dated 14th September, 2012 by setting aside the arbitral award;

(xii) that though the petitione