RELIANCE INFRATEL LTD Vs ETISALAT DB TELECOM PVT. LTD.

BEFORE: HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON HON’BLE MR. P.K.RASTOGI,MEMBER For Petitioner : Mr.Ramji Srinivasan,Sr.Advocate Mr.Akshat Hansaria,Advocate Mr.Kawaljit Singh Bhatia,Advocate For Respondent : Mr.Ashish Prasad,Advocate Mr.Divyakant Lahoti,Advocate ORDER These applications by the Respondent have been filed for a direction upon the Petitioner herein to produce the passive telecom infrastructure agreements entered into by and between the Petitioner and some other operators namely STel Pvt. Ltd, Shyam Sistema Teleservices Ltd, Aircel Ltd and Tata Teleservices Ltd.

The relevant averments in the application made by the Petitioner in support of its aforementioned prayer are as under:- “3. The Respondent submits that as per Clause 5.2 of the Passive Infrastructure Agreement dated 07.07.2009 (The Agreement), the Respondent is the preferred customer of the Petitioner and the Petitioner had undertaken to provide best terms for the services rendered by it. 4. The Respondent further submits that in violation of the above said clause of the Agreement and in spite of the above said undertaking given by the Petitioner to the Respondent, the Petitioner has made the Respondent to enter into an agreement which contains onerous and unconscionable terms.

6. The Respondent verily believes that the Petitioner had entered into agreements with the above said telecom companies and other telecom companies on better and more favourable terms than with the Respondent. Originals and copies of said agreements are in possessions of the Petitioner.”

The Petitioners in their replies to the said application, inter alia, contends: 1. The agreements entered into by and between it and the other operators are not relevant for the purpose of determining the issues between the parties as such a clause does not exist therein.

2. The said documents containing confidential commercial clauses should not be directed to be produced.

3. The Respondent having not questioned the validity or otherwise of clause 5.2 of the agreement and having taken benefit thereunder cannot be permitted to ask the Petitioner to produce the said documents.

4. By reason of the present application the Respondent has taken recourse to a roving and fishing enquiry.

The Petitioners have filed these applications, inter alia, praying for recovery of diverse sums mentioned therein inter alia on the premise that the Respondent failed and/or neglected to pay the infrastructural charges in terms of the agreements for providing Passive Telecom Infrastructure and related services.

Mr. Prasad learned counsel appearing on behalf of the Respondent/Applicant would submit:-

1. The Petitioner having prayed for a decree for a huge sum of money, inter alia, on the premise that the Respondent was a preferred customer, the documents sought to be produced would be relevant and as despite of clause 5.2 of the said agreement it has levied „deficit commitment charges‟.

2. Having regard to the provision of Section 30 of the Code of Civil Procedure, 1908 as also the provisions contained in Order XI thereof, the Court can direct production of the documents at any time and not necessarily before the first hearing of the suit.

Reliance in this behalf has been placed on Shri M.L. Sethi Vs. R.P. Kapur reported in 1972,(2) SCC page 247 and a decision of learned single judge of Andhra Pradesh High Court in Rajesh Bhatia & Ors. Vs. G. Parimala & Anr reported in 2006(3) ALD page 415.

Mr. Ramji Srinivasan, learned senior counsel appearing on behalf of the Petitioner, on the other hand, urged:-

1. This Tribunal having framed issues and the Petitioner‟s witnesses having filed their affidavits and the cross examination of the said witnesses having been fixed on 28.09.2012, these applications have been filed by the Respondent by way of dilatory tactics.

2. Apart from the fact that the agreements sought to be produced, are not relevant as the Petitioner in its reply very categorically stated that other agreements do not contain any clause of the nature of clause 5.2.

3. The Respondent in its reply having not raised any contention with regard to the validity or otherwise of clause 5.2 and/or having taken the benefit there under, the Respondent is not entitled to maintain this application.

4. The production of these documents have been sought for by way of roving and fishing enquiry and thus the same cannot be granted.

The original petition has been filed by the Petitioner for recovery of certain charges relying on or on the basis of the agreement dated 07.07.2009, clause 5.2 whereof reads as under:- “ Clause 5.2: During the term of this Agreement and during the term of the relevant Site Agreements, the Service Provider commits to maintain the best terms for the Services offered to the Customer among other customers (except for Group company(ies) of the Service Provider) who have agreed to avail of or have availed of, directly or indirectly (being under the same management control) (i) 5000 or more Sites from the Service Provider, or(ii) 1000 or more Sites Customer shall be a preferred customer amongst all such customers to whom (i) 5000 or more Sites, or (ii) 1000 or more Sites in a telecom circle are offered by the Service Provider with regard to the rates, costs, terms and conditions taken collectively.”

In terms of the said agreement the Respondent/Applicant was to pay: (i) Basic MIC (ii) Site specific additional charges (applicable both for sites Category 1 and Category 2) (iii) City class based additional charges (applicable both for Sites Category 1 and Category 2) (iv) Optional additional charges (applicable both for Sites Category 1 and Category 2) and (v) Escalation (Sites Category 1 and Category 2), as envisaged in Annexure II thereof.

Mr. Prasad contends that the Petitioner has claimed a huge amount from the Respondent although it did not fulfill its contractual obligations and despite the fact that it did not avail the services. This Tribunal at this stage is not concerned with the merit of the matter.

The issues between the parties have been framed on 03.07.2012. Some issues have also been framed in Petition No. 76 of 2012 on 16.07.2012.

The Petitioner has filed affidavit of its witness(s) on or about 24.07.2012. The Respondent despite direction, did not file the affidavit of its witness within one week thereafter. In that view of the matter, the cross examination of the witness(s) of the Petitioner which was fixed on 29.08.2012 was postponed to 28.09.2012. As the Respondent filed two Miscellaneous Applications, the cross examination of the witnesses to be examined on behalf of the Petitioner could commence. There cannot be any doubt or dispute that an application inter-alia for discovery, inspection and production of documents in terms of Section 30 of the Code of Civil Procedure can be filed at any time. That however, would not mean that the Court shall entertain any such application irrespective of the stage of the suit.

Order XI of the Code provides for discovery and inspections. In an application for discovery of documents in terms of the said provision, the Court may not direct any discovery of the documents, if it is of the opinion that the same is not necessary either for disposing fairly of the suit or for saving cost. The Court is also required to consider the relevance of the documents and as to whether the same is necessary for effective disposal of the suit. Calling for documents without considering the relevance thereof would not be a proper exercise of its discretion on the part of the Court. It is well settled that no partly can take recourse to the procedural provision by way of discovery of a document for the purpose of a roving and fishing enquiry.

Order XI Rule 12 of the Code refer to the documents which relate to the issues between the parties or any of them.

It must throw light on the issue between the parties. It must be relevant.

If the document has no relevance, the application for discovery must be rejected.

In M.L. Bhatia (Supra) the Supreme Court opined as under:- “(8): The High Court was equally wrong in thinking that in passing the order for discovery, the trial Court acted illegally in the exercise of its jurisdiction as it deprived the respondent of his right to claim privilege for non-production of his pass book and personal accounts, because the stage for claiming privilege had not yet been reached. That would be reached only when the affidavit of discovery is made. Order 11, rule 13 provides that every affidavit of documents should specify which of the documents therein set forth the party objects to produce for inspection of the opposite party together with the grounds of objection.

(9): Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the inquiry. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences. The word 'document' in this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted. We think that the documents of which the discovery was sought, would throw light on the means of the respondent to pay court fee and hence relevant.”

In that case the Respondent therein filed a suit in forma pauperis. The Plaintiff was asked to discover on affidavit some documents which pertained to bank accounts namely pass book, cheque book and counter foils etc. from 1st March 1963.

The order passed by the Trial Court directing such discovery was set aside by the High Court opining that the proceedings for filing a suit in forma pauperis does not require a sophisticated procedure for discovery being summary in nature.

The High Court furthermore opined that the application did not specify the documents sought to be discovered.

It is that order of the High Court was reversed by the Apex Court inter alia on the premise that it ought not to have interfered with the order of the Trial court in exercise of its Revisional Jurisdiction u/s 115 of the Code.

The Andhra Pradesh High Court considered the said decision of the Apex Court, the Halsbury Laws of England, the Corpus Juris Secundum as also the provisions of the Indian Evidence Act, to opine :- “(30): The Apex Court seems to have clearly drawn the distinction between the production of the documents at the stage of Inspection and at the stage of trial and held, however, that the provisions of Section 162 would apply even at the stage of inspection i.e., at the stage of discovery by documents.

It was also held : Therefore, it is always open to the Court wherever necessary when the fact situation warrants to draw the necessary adverse inference for the non-production of the documents relevant to the matter in controversy, notwithstanding the fact that the burden is upon a particular party in whose custody the documents are in existence and there is no need to discover the documents.”

We may notice that the Petitioner in paragraph 8 of the Petition stated that the Telecom Infrastructure Sharing Agreement dated 07.07.2009 was filed before the Department of Telecom (DoT).

In its Reply the Respondent stated as under: “That the contents of paragraphs 6, 7& 8 are formal in nature and hence need no reply.”

The Respondent, however, had earlier filed a short Reply.

It, therein, raised question of “comparable contracts in the market” to contend that undue burden has been placed upon it by reason of the agreement in question.

In its rejoinder to the said short reply, the Petitioner contended that the same was irrelevant; the agreement containing the terms which were mutually agreed upon.

In this case this Tribunal is not concerned with the merit of the matter.

The short question is as to whether the documents sought for by the Applicant for their production are relevant and/or whether in relation thereto, any privilege has been claimed.

If the Respondent according to the Petitioner was sui-generis, the question of comparing the agreement in question with other agreements does not arise.

It may be true that the Apex Court made same observations in M.L. Sethi (Supra) that the relevancy of the documents sought to be produced will have to be judged not only from the point of view of the merit of the case of the Plaintiff or the defence of the defendant but also with regard to the strength and the weakness of the case of the other side.

But, there cannot be any doubt or dispute that if it is found that the purpose for which the documents were sought to be called for is fulfilled by reason of an admission made by the Petitioner itself, no useful purpose would be served by asking it to produce the said documents.

We, however, of the opinion that keeping in view the fact that the Petitioners have already sent copies of the said documents to the DoT, they may produce another set of copies in a sealed cover before this Tribunal, so as to enable it to consider any issue which may arise between the parties at an appropriate stage. The Petitioners would not be prejudiced thereby.

These applications are, therefore, dismissed with the aforementioned observations without any order as to costs.

……………….. (S.B. Sinha) Chairperson

……………….. (P.K.Rastogi) Member MM