RELIANCE COMMUNICATION LTD Vs VODAFONE INDIA LTD.
- Case No.TELECOM PETITION/823/2012
Ratio decidendi
The rule this decision rests on
Where an interconnection agreement contains a specific bill-and-keep clause providing that no termination charges are payable for SMS, the Tribunal has already decided that no such charges are payable under that clause. The case is governed by the Tribunal's earlier decision in that regard. Where the interconnection agreement contains no specific bill-and-keep clause for SMS in a circle, the question is governed by the Tribunal's earlier decisions in *Aircel v. Bharti* and *Aircel v. Vodafone*. Where the parties take contradictory positions on the factual question of whether such a clause exists in a given circle, the dispute cannot be adjudicated on the petition and a proper trial in which the parties adduce evidence is required.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
O R D E R
Kuldip Singh:
Both the petitioner and the respondent 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 petitioner is aggrieved by the demand letter dated 25.10.2012 of the respondent, vide which it has raised a demand for Rs. 11.30 crores towards SMS termination charges @ of 10p per SMS for the period from 1.4.2011 to 30.9.2012.
The respondent has since filed a counter claim for Rs. 15.11 crores in respect of SMS termination charges for the period from 01.04.2011 to 31.05.2013.
On 19th December, 2012, the Tribunal noted as under:
“4. ……………Mr. Ramji Srinivasan, learned senior counsel appearing on behalf of the petitioner has brought to my notice the interconnection agreements including the supplementary agreements for various circles between the Petitioner and the Respondent executed on different dates. He has brought to my notice the clause existing in the agreements for certain telecom areas as mentioned below wherein it is provided that no termination charges for SMS originating from either party’s network and terminating on other party’s network shall be payable. They are:
1. Punjab 2. Andhra Pradesh 3. U.P. (West) 4. West Bengal 5. West Bengal 6. New Delhi 7. Chennai 8. Mumbai 9. Kolkata 10. Kolkata 11. Karnataka 12. Gujarat There is no mention of the SMS services in the interconnection agreements for the following circles: 1. Maharashtra 2. Assam, Bihar, H.P., M.P. North East and Orissa 3. Bihar, H.P., J&K, M.P. and Orissa 4. Haryana, Rajasthan and U.P. (East) 5. Kerala 6. Tamil Nadu ………….”
The Tribunal on that date passed an order to the effect that the respondent shall not disconnect the interconnection of the petitioner for 12 circles i.e. Punjab, Andhra Pradesh, U.P. (West), West Bengal, West Bengal ,New Delhi, Chennai, Mumbai, Kolkata, Kolkata, Karnataka, Gujarat, and for these circles no charge shall be payable to each other during the pendency of the petition. However, in respect of other circles, the petitioner was to start paying 50% of the amount demanded by the respondent @ 10p per SMS on net inflow of traffic basis. The order was without prejudice to the rights and contentions of the parties.
Following the notification of the 2013 regulation, the Tribunal vide its order on 23rd July, 2013, modified the earlier order as under:
“Since the statutory provision been brought into effect from June 1, 2013, the interim orders passed in each of the cases need to be modified and brought in accordance with the statutory provision. That is to say, from 1.6.2013 ‘termination of SMS charges’ shall be payable @ Re 0.02 paise per SMS only.”
We have already dealt with the case where there was a specific clause for Bill and Keep/no payment for termination charge for SMS, in Aircel Vs. IDEA1. The case circles, where there is no specific clause for Bill and Keep are covered by the judgments of the Tribunal in Aircel Vs. Bharti2 and Aircel Vs. Vodafone3. In the present case, however, the parties are not ad idem on facts. As per the petitioner, there was a specific clause for bill and keep in thirteen circles, whereas the respondent states that there was no such clause in 17 circles. The parties also take a contradictory stand with regard to Kerala Circle.
In view of the contradictory stand taken by the parties on facts, we think that for adjudication of the matter, a proper trial is required in which the parties may adduce their respective evidences. We direct accordingly.
1 Petition No. 943 of 2012. 2 Petition No. 130 of 2012 delivered on 24th September, 2012. 3 Petition No. 843 of 2012.
List the matter for further directions on 8th April, 2016.
....………………. (Aftab Alam) Chairperson
….……….………. (Kuldip Singh) Member
……………………….. (B.B. Srivastava) Member
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