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2016 Supreme(Online)(TDSAT) 30
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
MR. AFTAB ALAM, CJ, DR. KULDIP SINGH, J, MR. BIPIN BIHARI SRIVASTAVA, J
M/s Vodafone India Ltd. & Ors. – Appellant
Versus
Bharat Sanchar Nigam Ltd. – Respondent
Telecommunication Petition No.8 of 2015
For the Appellants/Petitioners: Mr. Saket Singh
For the Respondents: Mr. Abhishek Kumar, Mr. K. Vijay Kumar, Mr. Ashwin Rakesh, Ms. Maneesha Dhir
Telecommunication service providers are bound by their interconnection agreements, and applicable charges must be enforced as per existing contractual terms despite regulatory considerations.
Headnote:(A) Telecom Regulatory Authority of India Act - Sections regarding SMS termination charges - Petitioners sought a declaration on SMS termination charges owed from April 2011 to May 2013 based on interconnect agreements. Regulatory framework determined that specific charges outlined in agreements must be abided prior to amendments. (Paras 3, 4, 7, 8)
(B) Agreement Validity - Tribunal's decision indicated that despite the lack of finalization of some agreements, the existing terms remained applicable for the parties involved. (Paras 29, 30)
Facts of the case:
Petitioners claimed SMS termination charges for services rendered under interconnect agreements amended by a 2010 addendum, with disagreements regarding billing periods and charges from 2011 to 2013.
Findings of Court:
The Tribunal mandated reconciliation of data and clarified SMS termination charges applicable as per existing agreements.
Issues: Key considerations included the validity and enforceability of agreed charges between the petitioners and the respondent, particularly in the context of applicable TRAI regulations.
Ratio Decidendi: The agreement for SMS termination at the rate of 10p per SMS was deemed binding, and failure to implement this agreement was in violation of the terms set during prior meetings.
Result: The petitions are partially allowed to the extent above.
ORDER
Kuldip Singh:
The petitioners are seeking a declaration that the letters of the respondent dated 11.12.2012 and 26.06.2013, to the extent that that these seek to limit the obligation to pay SMS termination charges only with effect from 16.12.2012, and letter of the respondent dated 19.11.2014 which seeks to further limit the obligation to pay SMS termination charges with effect from 01.06.2013, are contrary to the interconnect agreements, as amended from time to time, between the parties. They further seek a declaration that the respondent is liable to pay SMS termination charges to the petitioners for the period 1.04.2011 to 31.05.2013. In view of the agreement between the parties as well as the regulations of the TRAI, the petitioners are claiming an amount of Rs. 17,20,48,252/- along with interest as per rate provided in the interconnect agreements. They are also claiming a sum of Rs. 10,46,27,230/- towards service tax.
The petitioners are part of a group of companies. They are telecom service providers and have been granted licenses by the Department of Telecom, Union of India, under section 4 of the Indian Telegraph Act . The respondent is a PSU and also a telecom service provider providing licensed telecom services pan India. The parties have entered into interconnect agreements for various service areas details of which are given at page 4 para 4 of the paper book.
By an addendum dated 13.04.2010, clause 6.7 relating to IUC (Interconnect Usage Charge) for SMS was amended as under:
“ 6.7.1 UASL shall pay an IUC OF Rs.0.10 per SMS to BSNL for termination of its SMSs (Short message service) at the BSNL’s network in the same service area. On reciprocal basis, BSNL shall also pay the termination charges @ Rs.0.10 per SMS to UASL for termination of its SMSs on the network of UASL.
6.7.2 In addition to termination charges prescribed in clause 6.7.1 above, carriage charges of Rs. 0.20 per SMS shall be payable by UASL to BSNL in case of termination of its SMSs in other service areas.
6.7.3 Details regarding handover and routing arrangements for intra service area and inter-service area SMSs shall be finalized subsequently through mutual discussions. The arrangement/agreement for termination charges and carriage charges in clause 6.7.1 and clause
6.7.2 above shall come into force prospectively after finalization of such handover and routing arrangements”
A new clause 7.2.1 was also added with stipulated that:
“7.2.1 Bill for IUC will be issued on monthly basis by the designated unit of BSNL to the UASL and such bills shall be payable within 15 days from the date of issue. The UASL for the IUC, if any, due to it, may also issue similar bills.”
On 07.09.2011, the petitioners wrote to the respondent that for the period April to July 2011, there was a net imbalance of SMS traffic for which a net amount of Rs. 2,79,52,971/- ( @ 10p per SMS) was payable by the respondent. After some further correspondence and meeting between the parties, on 11.12.2012 the respondent wrote to the petitioners that the agreement relating to SMS termination charge will be given effect from 16.12.2012.
On 29.01.2013, the petitioners raised bills on the respondent for the period from 16.12.2012 to 31.12.2012. There was some further correspondence from the petitioner to the respondent. However, no payment was made by the respondent. Subsequent to the issue of 2013 regulation,
On the same date, i.e. 26.06.2013, the respondent issued letters to various other service providers stating that bills for SMS termination charges shall be raised by the respondent with effect from 01.04.2011 to 31.05.2013. Aggrieved by th
