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IN THE HIGH COURT OF DELHI AT NEW DELHI
YOGESH KHANNA, J.
ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED - PETITIONER
Versus
RELIANCE COMMUNICATIONS LIMITED & ANR. - RESPONDENTS
O.M.P.(I) (COMM.) 504 of 2017, IA No. 14109 of 2017
Decided On : 06-12-2017
Arbitration - Infrastructure Provider - Arbitration and Conciliation Act, 1996 - Section 9
Fact of the Case:
The petitioner, an infrastructure provider, sought outstanding dues from respondent No.2, which were taken over by respondent No.1 through a scheme of arrangement. Respondent No.1 denied liability, leading to the petitioner filing a petition under Section 9 of the Act.
Finding of the Court:
The court found that the liabilities of respondent No.2 outstanding as on the appointed date were taken over by respondent No.1, making respondent No.1 liable to secure the petitioner's outstanding dues as on the effective appointed date.
Issues: Prima facie view on liability of respondent No.1 to secure petitioner's outstanding dues as on the effective appointed date.
Ratio Decidendi: The court held that the liabilities of respondent No.2 outstanding as on the appointed date were taken over by respondent No.1, making respondent No.1 liable to secure the petitioner's outstanding dues as on the effective appointed date.
Final Decision: The court directed respondent No.1 to file an affidavit of its assets or furnish a bank guarantee to the extent of the outstanding dues in favor of the petitioner.
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 th
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