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2014 Supreme(Online)(TDSAT) 10
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Kuldip Singh, J
Reliance Communications Ltd. – Appellant
Versus
Bharat Sanchar Nigam Ltd. – Respondent
Execution Application No.45 of 2012 | Execution Application No.46 of 2012 | Petition No. 142 of 2007 | Petition No. 143 of 2007
For the Appellants/Petitioners: Mr. Ramji Srinivasan, Ms. Manali Singhal, Mr. Santosh Sachin, Mr. A. P. Singh
For the Respondents: Ms. Maneesha Dhir, Mr. K. P. S. Kohli, Ms. Neha Singh
For Respondent(MTNL): Mr. Maninder Singh, Mr. Ravi Sikri, Mr. Deepansh Yadav
The burden of proof lies on both the claimant and the respondent to establish their respective demands through credible evidence during financial reconciliations.
Headnote:(A) Telecom Regulatory Authority of India Act, 1997 - Interconnect Agreements - Execution of claims and liability reconciliation - Appellant sought refunds from Respondents related to overbilling and penalties imposed during their operations under specific plans. The Tribunal held both parties accountable for failing to provide evidence to support their claims. The Tribunal ordered a reconciliation of accounts and mandated specific payments plus interest at specified rates. (Paras 167, 140-142, 88)
(B) Burden of proof - The responsibility lies on the party making the demand to substantiate their claims through reliable data records. (Paras 90, 101)
Facts of the case:
Reliance launched a calling plan targeting international users, resulting in penalties imposed by BSNL and MTNL for alleged deceitful billing practices. Reliance claimed refunds after paying these penalties under protest. The Tribunal partly allowed Reliance’s petitions while also commenting on the obligations of both parties to prove their respective claims.
Findings of Court:
The Tribunal determined that both BSNL and MTNL failed to adequately produce evidence to back their demands for penalties against Reliance. Reliance's claims against BSNL were largely refuted due to a lack of substantiation. The judgment led to a direction for both parties to reconcile their accounts as per the established findings.
Issues: The primary issues were the legitimacy of the penalties imposed by the Respondents and the protocols for billing.
Ratio Decidendi: The Tribunal ruled that both parties had a burden to prove their claims, which they failed to do adequately, necessitating a reconciliation of accounts.
Result: The Execution Application No. 45 was dismissed, and Application No. 46 was allowed in part, mandating repayments with interest.
ORDER
Aftab Alam, Chairperson - Reliance Communications Limited (Reliance) earlier filed petitions claiming refund of large sums of money from Bharat Sanchar Nigam Limited {BSNL),
Both BSNL and MTNL have filed their respective responses maintaining that reliance is not entitled to be paid anything from them and the Execution Petitions are liable to be dismissed.
The question, therefore, is what Reliance is held entitled to under the judgment? And in order to find that, it is necessary to briefly examine the relief(s)
Reliance had launched a plan, called “Home Direct Calling” (HDC), purportedly in accordance with a scheme of the International Telecommunication Union. The plan mainly targeted Indians living or visiting abroad. The subscriber to the plan would be told that for calling a number in India (s)he should not dial the desired number directly but instead dial a certain assigned number. The call would thus land on the Reliance network and from there it would be handed over to the other Access Provider with a Calling Line Identification showing a national number. The international code (00) and the country code (e.g., 4 for UK, 1for USA) would be deleted and replaced by local numbers (e.g., 022 3239, 033 3239 or 044 3239) so as to make the origin of the call appear from inside the country. Thus disguised, the call would be landed/terminated on trunk groups of BSNL or MTNL (as the case may be) other than those meant for International Long Dialing calls. The trunk groups of BSNL and MTNL would accept the call as originating from Mumbai, Kolkata or Chennai, process it and raise bill against Reliance accordingly.
When the matter came to light, the department of telecommunication took a serious view of it and slapped Reliance with penalties of Rs.50 crores on each of its three licences. Reliance challenged the imposition of penalties by the DoT before the Tribunal in Petition no. 3 of 2005. It was contended on its behalf that its plan was quite legitimate and within the provisions of the licence. On behalf of the DoT it was maintained that besides being deceitful and in violation of the terms of the licence, the tampering of the Calling Line Identification (CLI) of the call coming to India from abroad was also fraught with grave national security risks. The Tribunal by judgment and order dated 4 March, 2005 dismissed the petition and upheld the imposition of penalties against Reliance. Against the order of the Tribunal, Reliance filed an appeal,
The manner in which Reliance had executed its plan had also caused huge loss of revenue to BSNL and MTNL. For international long distance calls to fixed lines, in addition to the terminating charge, an Access Deficit Charge(ADC) was payable by the International Long Distance Operator (in this case Reliance) to the Access Service Provider (in this case MTNL and BSNL). By sending
