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2015 Supreme(Online)(TDSAT) 34
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Kuldip Singh, Member
M/s Reliance Communications Ltd., Navi Mumbai – Appellant
Versus
Bharat Sanchar Nigam Ltd., New Delhi – Respondent
Petition No.179 of 2011
For the Appellants/Petitioners:Mr. Navin Chawla, Advocate, Mr. Santosh Sachin, Advocate for Ms. Manali Singhal, Advocate
For the Respondents:Ms. Maneesha Dhir, Advocate, Mr. K.P.S. Kohli, Advocate, Mr. Prashant Jain, Advocate
Lack of due diligence by service providers in preventing misuse results in liability for consequential charges under interconnect agreements.
Headnote:(A) Indian Telegraph Act, 1885 - Section 4 - Interconnect Agreement - Clause 6.4.6 - Dispute regarding bills for alleged tampering of Calling Line Identification (CLI) by the respondent against the petitioner. Petitioner's challenge against the demand notices issued to recover significant dues resulting from claims of unauthorized call handling. (Paras 1, 21, 34, 39)
(B) Liability and Diligence - The Tribunal held that the petitioner did not exercise due diligence in preventing misuse of its services, making it liable for charges under Clause 6.4.6, which represents a pre-estimate of compensation. (Paras 58, 70)
Facts of the case:
The petitioner challenged demand notices for a total of approximately Rs. 90.37 crores issued due to alleged routing of calls with tampered CLIs, invoking provisions from the Interconnect Agreement. The judicial examination involved the interpretation of contractual obligations regarding call routing and billing.
Findings of Court:
The court found the respondent entitled to invoke Clause 6.4.6 due to lack of diligence on the part of the petitioner in addressing unauthorized call handing.
Issues: The primary issues involved whether the petitioner had tampered with CLIs and the appropriate interpretation of liability under the Interconnect Agreement.
Ratio Decidendi: The court concluded that the petitioner failed to demonstrate due diligence in preventing misuse of its service, hence liable under Clause 6.4.6 as it constitutes a pre-estimate of compensation. (Paras 48, 72)
Result: The petitioner is ordered to pay Rs. 31,63,21,053/- to the respondent within four weeks and has been permitted to contest interest charged thereafter.
| Table of Content |
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| 1. interpretation of due diligence and clauses concerning interconnect agreement. (Para 29) |
JUDGMENT
Kuldip Singh: The dispute in the present petition is with regard to certain bills raised by the respondent on the petitioner allegedly for routing calls with tampered CLI 1 , non-CLI, invalid CLI, incomplete CLI, wrong routed calls etc. The petitioner is challenging the demand notices dated 30.11.2007, 21.12.2007, 29.12.2007, 10.02.2011 and disconnection notice(s) dated 14.2.2011 & 1 Calling Line Identification 24.2.2011, issued by Kerala Unit of the respondent-BSNL.
The Petitioner had been granted a license by the Department of Telecommunications under Section 4 the Indian Telegraph Act , 1885, as a Basic Service Operator (BSO) for provision of basic telephone services. Subsequently, the petitioner was permitted to migrate to a Unified Service License (UASL) in November 2003. The respondent is a wholly owned Government of India Enterprise and is providing telecommunications services in whole of India except Delhi and Mumbai.
The petitioner and the respondent entered into an Interconnect Agreement for Basic Telephone Services for Kerala Circle on 25.01.2002. Subsequently, when the petitioner migrated to the UASL, an addenda to the Interconnect Agreement was signed between the parties on 21.09.2005.
Clause 6.4.6 of the Interconnect Agreement and the addenda is relevant to the present dispute. The clause reads as under:
"Clause 6.4.6 WRONGLY ROUTED CALLS (a) Unauthorized calls i.e. calls other than specified for that trunk group if detected, for which the applicable IUC (including ADC) is higher than IUC(including ADC) applicable for calls prescribed in that trunk group, then BSNL shall charge the UASL the highest applicable IUC (including ADC), as applicable for such unauthorized calls, for all the calls recorded on this trunk group from the date of provisioning of (b) The CLI based barring facility shall be activated at the PoIs wherever technically feasible to ensure that the traffic handed over to BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to activate CLI based barring, periodic monitoring of the incoming trunk group shall be done by BSNL to ensure this objective. The calls received by BSNL without CLI or modified / tampered CLI from UASL shall be charged at the highest slab i.e. as for ISD calls. In case such calls are received by BSNL on any trunk group, then all the calls recorded on this trunk group shall be charged at the rates applicable for IUC of incoming ISD Calls from the date of provisioning of that PoI or for the preceding two months, whichever is less. (c)
When CDR based billing is introduced in BSNL's network some of the trunk groups shall be merged. In such cases also, in case unauthorised or Incoming International Call, without CLI call, call with tampered CLI is handed over to BSNL at the merged trunk group, then BSNL shall charge the UASL the highest applicable IUC, as prescribed in clauses 6.4.6(a) above for unauthorised calls & 6.4.6(b) above for incoming International call, without CLI call, call with tampered CLI, for all calls recorded on this merged trunk group from the date of provisioning of that POI or for the preceding two months whichever is less.
(d) In addition, BSNL shall also have the right for taking other legal actions including disconnection of POIs or temporary suspension of the interconnection arrangements under misuse."
On or about 30.11.2007, 21.12.2007 and 29.12.2007, the Kerala Unit of the respondent, on the premise that the petitioner has tampered with the CLI (Calling Line Identification) and forwarded its calls through non-CLI, invalid CLI, incomplete CLI and wrong routed trunk group etc., raised demand notices on the petitioner for a sum of Rs. 96.53 crores which was subsequently revised to Rs. 90.37 crores. These demand notices were challenged by the petitioner before the Tribunal vide P
