MNP INTERCONNECTION TELECOM SOLUTIONS INDIA PVT LTD vs BHARAT SANCHAR NIGAM LTD. & ANR

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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
th
Dated 16 October 2026
Telecom Petition No. 4 of 2022

MNP Interconnection Telecom Solutions …Petitioner
India Private Limited
Vs.
Bharat Sanchar Nigam Limited and Anr. …Respondent(s)

BEFORE:

HON’BLE MR. JUSTICE RAM KRISHNA GAUTAM, MEMBER

For Petitioner : Mr Dhiraj Mehtre, Mr. Sanampreet Singh, Mr
Nikhil Singh
For Respondents : Ms. Madhuri Diwan Sr Advocate, Mr Sameer
Choudhary, Mr Tejveer Singh Bhatia, Mr V
Suresh Kumar, Ms Akshita Nain For BSNL
Mr Shubham Jain, Mr. Himanshu Dhawan,
Advocate, Mr. Abhay Dev Sharma, Advocate,
Mr Apporva Gaur For TRAI

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JUDGMENT

1. This Telecom Petition, by MNP Interconnection Telecom Solutions India
Private Limited – petitioner, against Bharat Sanchar Nigam Limited (BSNL) –
respondent, under Section 14, read with Section 14A(1) of the Telecom
Regulatory Authority of India Act, 1997 (hereinafter referred to as “ TRAI
Act ”), has been filed, with a prayer to direct the respondent to make
payment of outstanding dues, aggregating to Rs. 11,73,75,884/-, (Rupees
Eleven Crores Seventy Three Lakhs Seventy Five thousand Eight Hundred
Eighty Four only) (inclusive of interest upto December 31, 2021), to the
petitioner towards PPTC, for invoices raised upto September 30, 2021, as
per the particulars of the claim annexed at Annexure P-17 hereto, and
direct the respondent to pay the interest at SBI PLR + 200 basis points, on
the outstanding dues, from January 01, 2022 till payment thereof, with a
further to direct the respondent to strictly comply with Regulation 15(1) of
the MNP Regulations and PPTC Regulations, alongwith further prayer to
pass such order, which this Tribunal deems fit.

2. In brief, the petition contends that petitioner, is a licensee for providing
mobile number portability services (MNP), under license, issued under

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section 4(ii) of the Indian Telegraph Act, 1885, and had been extending its
services to the respondent, a government owned Telecom Service Provider
(TSP), under the ownership of Department of Telecommunications(DoT),
Ministry of Communications, Government of India(GoI), having task to
provide mobile voice and internet services, through its nationwide
telecommunication network across India, and other service providers since
2011, as per the Telecommunication Mobile Number Portability Regulations
2009 (MNP Regulations). Petitioner was granted this license for providing
MNP Services in Zone – 2 covering South and East of India, by way of license
agreement between the petitioner and Department of Telecommunications
(DoT), GoI, as a licensee, and MNP service provider, with effect from
20.03.2009, on the basis of license agreement, executed on 17.04.2009, for
initial period of 10 years validity, which was subsequently extended for
another 10 years. The TRAI issued the Telecommunication Mobile Number
Portability Regulations, 2009 (MNP Regulations) to lay down the basic
business process framework for implementation of MNP in the country,
wherein the Authority issued the Telecommunication Mobile Number
Portability Per Port Transaction Charge and Dipping Charge Regulations,
2009(PPTC Regulations 2009), (which came in effect on December 31,

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2009), wherein the petitioner was entitled to charge Per Port Transaction
Charge (the PPTC) of Rs. 19/-, for each porting request, processed by
petitioner. This license was granted to petitioner company for providing
MNP services in Zone -2 covering South and East of India, by way of above
licence agreement, and it was with a function to provide MNP services, by
way of processing porting request from a donor operator to a recipient
operator and was to levy fee/charge per port transaction, as per Regulation,
directions and orders issued by the TRAI, which was subsequently, fixed to
be of Rs. 19/- each porting request processed by petitioner, written as
above. TRAI issued PPTC first amendment Regulations 2018 (03 of 2018) to
amend the PPTC Regulations 2009, and this PPTC charge was reduced to Rs.
4/- from Rs. 19/-, with a condition of liability chargeable for ‘successful
portation’ only.

3. Being aggrieved by the above mentioned amendment, of the year 2018, a
Writ Petition (C) No. 1508 of 2018, M/s MNP Interconnection Telecom
Solutions India Private Limited vs. Telecom Regulatory Authority of India
Regulation(TRAI) and Anr, was got filed before Hon’ble Delhi High Court,
wherein vide order, dated 8.3.2019, the above amendment of 2018 (03 of

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2018), was got quashed as ultra vires to TRAI and unconstitutional to Article
14 of the Constitution of India. Petitioner issued demand notices to all
business circles of respondent, for default in payment of PPTC, under the
PPTC Regulations 2009, as well as under amendment regulation. The TRAI
issued Telecommunication Mobile Number Portability Per Port Transaction
Charge and Dipping Charge (Second Amendment) Regulations, 2019 (PPTC
second amendment Regulations), wherein the per port transaction charge
for each porting request was fixed at the rate of Rs. 6.46, per request and
this regulation was made effective from the date of 11.11.2019. The
consolidated outstanding dues, accrued against respondent, towards all the
circles of operation of petitioner, was Rs. 11,91,85,520/-, (Rupees Eleven
Crores Ninety One Lakhs Eighty Five Thousand Five Hundred Twenty only)
for which noticed dated 11.06.2020, was got issued. There was further
request in this notice that to make specify the payment made by
respondent in the tune of Rs. 1,40,17,509.17/-(Rupees One Crore Forty
Lakhs Seventeen Thousand Five Hundred and Nine and paise seventeen
only), for the circle related as well as period for payment. Vide letter, dated
25.9.2020, a reminder for outstanding payment of dues, payable by all
circles of the respondent, including GST, with a specific mention that with

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regard to outstanding payment, (inclusive of GST), the respondent could
have availed the GST credit for the FY 2019 - 2020, by September 30, 2020,
was made and in this regard, and petitioner requested the respondent to
avail the GST, as payment is being delayed beyond due date for availing the
GST credit. On 5.11.2020, petitioner issued a letter to Authority to address
the issue of its unpaid dues, amounting to Rs. 9.92 crores, as on September
30, 2020, payable by the respondent. The petitioner received a letter from
the respondent, which was issued to all the business circles on 10.02.2021,
with direction to be followed regarding the payments to be made to the
petitioner, with respect to its demand for outstanding dues. But this was
with wrongful understanding of the order, dated 8.3.2019, of the Hon’ble
Writ Court, quashing the amendment Regulation 2018. The BSNL was of the
opinion for making PPTC @ Rs. 19/- for each successful porting from
8.3.2019 to 10.11.2019 and no PPTC was required to be paid, for any
unsuccessful porting request during the period from 8.3.2019 to
10.11.2019. The excess payment towards the unsuccessful transaction may
be recovered and as far as GST outstanding is concerned, the same was to
be with above instructions. Being aggrieved, petitioner sent an email dated
20.3.2021, 22.3.2021 and 23.3.2021, challenging the letter, dated

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10.02.2021 of respondent, which was issued to its circle offices and was in
utter disregard of Hon’ble Delhi High Court order dated 8.3.2019, pursuant
to inter departmental consultation, made by the Respondent, the same
direction was reiterated by BSNL, vide its letter dated February 10, 2021
and on 25.10.2021, demand notice to the respondent by petitioner, for
making clearance of the outstanding dues, as against its all branch circles
were got issued, and in response to it, petitioner received an email, from
the respondent on 25.10.2021, alongwith invoices issued by respondent
with respect to the recovery to be done for unsuccessful transactions for
the period between 8.3.2019 to 10.11.2019, as per direction issued by
respondent, through its letter dated February 10,2021 and May 18, 2021.
Soon after judgment, dated 8.3.2019 of Hon’ble High Court Delhi, quashing
PPTC first amendment regulation, the Petitioner, reconciled its account
statements with respect to all transactions falling in the period between
31.1.2018 and 8.3.2019 , i.e interregnum period and raised invoices for
amount of Rs. 15/-, as PPTC for each Porting request. This is because, post
quashing PPTC first amendment regulation, the operation of PPTC
regulation 2009 was restored, (including for the period between 31.1.2018
to 8.3.2019). The table annexed with para 20 of the petition having details

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of the dues, per service area of the respondent BSNL, with the demand
notice dated 24.5.2019 was in the total 2,84,70,950/-(Rupees Two Crores
Eighty Four Lakhs Seventy Thousand Nine Hundred Fifty only). As against
this demand, Rs 1,18,07,796/- (Rupees One Crore Eighteen Lakhs Seven
Thousand Seven Hundred and Ninety Six only) was got paid by respondent.
The business activities of the petitioner was got continued wherein invoices
were raised accordingly, but respondent in complete disregard of its
obligations, under Regulation 15(1) of MNP Regulations, defaulted in
making payment towards PPTC, lawfully due and payable to the petitioner,
resultantly, petitioner issued demand notices to various circles of
respondent in accordance with Regulation 16(6) of the MNP Regulations.
Vide demand notice, dated 11.6.2020, Rs. 11,91,85,520/- (Rupees Eleven
Crores Ninety One Lakhs Eighty Five Thousand and Five Hundred Twenty
only) was said to be outstanding dues, against respondent, to be paid from
various circles, with request for specifying the amount received, in
between, in the tune of 1,40,17,509.17/- (Rupees One Crore Forty Lakhs
Seventeen Thousand Five Hundred and Nine and paise seventeen only), by
different circles. Again the details were served by a notice, dated
13.06.2020. These details of notice dated 11.6.2020 as well as 13.06.2020

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are given in para 23 of the petition, wherein the total outstanding was
shown to be Rs. 11,91,85,520/-(Rupees Eleven Crores Ninety One Lakhs
Eighty Five Thousand and Five Hundred Twenty only). The petitioner
received an aggregate amount of Rs.3,38,72,600/-(Rupees Three Crores
Thirty Eight Lakhs Seventy Two Thousand and Six Hundred only), from
various circles of respondent, in response to above notices issued by the
petitioner. However, no clarification was provided as to the payment, which
was made against which invoices, as different rates were prevalent for
different periods. But as against huge outstanding in the tune of Rs.
11,91,85,520/- (Rupees Eleven Crores Ninety One Lakhs Eighty Five
Thousand and Five Hundred Twenty only), this miniscule payment of Rs.
3,38,72,600/- (Rupees Three Crores Thirty Eight Lakhs Seventy Two
Thousand and Six Hundred only), was made. Hence, another demand letter,
dated 24.9.2020 specifying GST input credit for FY 2019-2020, by
September 30, 2020 was got issued. Vide notice, dated November 5, 2020,
unpaid dues amounting to Rs. 9,92,00,000/- (Rupees Nine Crores Ninety
th
Two lakhs only) as on 30 September 2020, was requested, but on February
10, 2021, letter from respondent, which was got issued to various circles,
was received with a wrongful interpretation of 8.3.2019 order, for ensuring

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payment, for successful port only. During the period 8.3.2019 to 10.11.2019
an excess payment, if any, was to be recovered. This letter was instantly
challenged / responded by email, dated 20.03.2021, 22.03.2021 and
23.03.2021, with a request to make the payment of the pending dues and in
case of failure, to be charged with interest @ SBI PLR + 200 basis points for
each day delay in payment made by the respondent. Vide Demand Notice
dated, October 21, 2021, the total demand of outstanding of
Rs.9,38,05,184/- (Rupees Nine Crores Thirty Eight Lakhs Five Thousand One
Hundred and Eighty Four only) was made. But in utter shock, a mail of
respondent with direction to issue invoices and recover for the excess
payment made, if any, towards unsuccessful porting transactions for the
period between 8.3.2019 to 10.11.2019, was got received by petitioner.
Respondent had failed to make payment towards outstanding dues
amounting to Rs.9,38,05,184/- (Rupees Nine Crores Thirty Eight Lakhs Five
Thousand One Hundred and Eighty Four only) upto 30.9.2021 under the
MNP Regulations read with PPTC Regulations, despite several demands
notices got issued to the respondent. Rather it had made a wrong
instructions to its various circles for recovery of the payment, if made, with
regard to unsuccessful transactions.

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4. Hence, a cause of action, within territorial jurisdiction of this Tribunal,
within the period of limitation had arisen. Hence, this petition with above
prayers, was got filed on 20.1.2022.

5. In Reply, BSNL contended that on November 20, 2009, the Authority issued
Telecommunication Mobile Number Portability Per Port Transaction Charge
and Dipping Charge Regulation 2009 (Regulations of 2009) (which came in
effect on 31.12.2009, having mention of Per Port Transaction Charge (PPTC)
of Rs. 19/-, for each porting request, processed by the petitioner. On
31.1.2018, PPTC first amendment regulation of 2018, was got promulgated
by TRAI as Regulation (Regulation 3 of 2018), whereby PPT for each
successful porting was provided to be of Rs. 4/-, as against Rs. 19/-, which
was chargeable for each porting request irrespective of for successful or
unsuccessful. BSNL was making the payment @ Rs. 19/- per porting request
w.e.f. 31.12.2009 to amendment regulation i.e. 31.1.2018, and after this
amendment regulation, the charge calculated was @ Rs. 4 per successful
porting request. This PPTC first amendment regulation 2018, was
challenged by petitioner and another similar service provider before
Hon’ble Delhi High Court by Writ Petition bearing no. WP(C) 1507 and 1508

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of 2018, which was got heard and decided vide order, dated 8.3.2019,
wherein amendment regulation 2018 was got quashed holding it ultra vires
to TRAI. For the interregnum period 31.1.2018 to 08.03.2019, per port
transaction charge payable by BSNL to the petitioner is Rs. 4/- per
successful porting and it was charged from its customers as above. Hence,
BSNL was not directed to make the payment to the petitioner @ Rs. 19/-
retrospectively. Admittedly, there was no stay order given by Hon’ble Delhi
High Court, but vide order, dated 16.02.2018, there was condition that in
case this Writ Petition succeeds, appropriate orders would be passed.
Hence, because of being no stay order, the regulation remained enforced
for the interregnum period. As BSNL was not a party to this Writ Petition,
and it can never be forced to a civil liability retrospectively. The subsequent
regulation as second amendment regulation 2019, has been provisioned by
TRAI wherein, from the date of its effect i.e. 10.11.2019, Rs. 6.46 per port
request had become payable and same is still in continuation. In a similar
petition bearing No. TP No. 92 of 2019 M/s Syniverse Technologies (India)
Pvt Ltd against BSNL, (TP No. 92 of 2019), a MA No. 429 of 2021 was filed
before this Tribunal, for raising the grievance against the letter of
respondent, dated 10.02.2021, wherein this Tribunal vide its order, dated

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09.12.2021 had allowed above MA, filed by M/s Syniverse Technologies Pvt
Ltd, and had directed BSNL not to withhold any amount unilaterally on the
basis of distinction between successful and unsuccessful porting request for
the period after 8.3.2019. In response to it, BNSL had passed order to its all
sub circles to make the outstanding payment of the invoices issued by both
of the MNP service providers i.e. M/s Syniverse Technologies Pvt Ltd as well
as MNP Interconnection Telecom Solutions India Private Limited for the
period starting from the date 8.3.2019 to 10.11.2019, at the rate of Rs. 19/-
per port, for all successful as well as unsuccessful MNP porting requests.
Since then, all the circle offices of the respondent are making payment
accordingly. The alleged outstanding to the tune of Rs. 11,73,75,884/-,
(Rupees Eleven Crores Seventy Three Lakhs Seventy Five Thousand Eight
Hundred Eighty Four only) inclusive of interest, upto December 31, 2021,
against respondent BSNL towards the payment of per port Transaction
Charges (PPTC) for invoices raised upto September 30, 2021, is being
objected. Rather, outstanding amount, for the period prior to 31.01.2018
i.e. date of operation of first amendment regulation were cleared by
respondent and upto September 30, 2021, the whole outstanding amount
payable by respondent to petitioner is Rs. 18,05,241/- (Rupees Eighteen

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Lakh Five Thousand Two Hundred Forty One only). The claimed composite
amount is barred by limitation, because nowhere in the petition, it was
mentioned that for which period and for which amount, this claim pertains.
Rather, it was written to be the amount claimed based on the invoices
raised upto September 30, 2021. Though Counsel for respondent had
written an email, dated 05.04.2022 to the counsel for this petitioner, asking
about the details of the amount, outstanding as claimed by the petitioner
and the time period for which, it was pertaining, but it was not replied by
petitioner. The contention made by petitioner was against the facts on
record. It was denied that the amount of Rs. 11,73,75,884/- (Rupees Eleven
Crores Seventy Three Lakhs Seventy Five Thousand Eight Hundred and
Eighty Four only) (inclusive of interest upto December 31, 2021) is
outstanding against the respondent BSNL, towards the payment of per port
transaction charges. However, it is submitted that the outstanding amount
payable by the respondent is much lesser i.e. an outstanding amount
payable by respondent to petitioner is Rs. 18,05,241/- (Rupees Eighteen
Lakh Five Thousand Two Hundred Forty One only). The BSNL had made a
total amount of Rs. 5,43,89,065/- (Rupees Five Crores Forty Three Lakhs
Eighty Nine and Sixty Five only) leaving remains of Rs. 18,05,241/- (Rupees

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Eighteen Lakh Five Thousand Two Hundred Forty One only), as on
September 30, 2021. The GST amount redeemed from the petitioner has
been refunded back to the petitioner. Hence, the petition be got dismissed.

6. Rejoinder, is with reiteration of contention of petition, as well as negation
of the contention made in the reply. For the interregnum period, petitioner
had recovered porting charge @ INR Rs. 4/- per porting request, but after
quashing of amendment 2018 vide order, dated 8.3.2019, petitioner is
entitled to recover balance amount of Rs. 7,01,43,817/- (Rupees Seven
Crores One Lakh Forty Three Thousand Eight Hundred and Seventeen only)
for the aforesaid interregnum period at the rate of balance of Rs. 15/- per
porting request, which was not paid to petitioner, owing to amendment
regulation 2018. This calculation sheet is Annexure P – 27. For the period
between 8.3.2019 to 10.11.2019, calculated at the rate of Rs. 19/- per
porting, the outstanding comes to Rs. 1,24,81,183/-(Rupees One Crore
Twenty Four Lakhs Eighty One Thousand One Hundred and Eighty Three
only), as per Annexure P-28. From November 11, 2019 to September 30,
2021 @ Rs. 6.46 per porting request, as per second amendment 2019,
unpaid amount is Rs. 1,11,80,184/- (Rupees One Crore Eleven Lakh Eighty

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Thousand One Hundred Eighty Four only), detailed in Annexure P-29. The
payment towards GST had also been denied. Hence, the alleged admitted
outstanding to the tune of Rs. 18,05,241/- (Rupees Eighteen Lakhs Five
Thousand Two Hundred Forty One only) is being denied, and the amount
prayed for, as a decree has been reiterated.

7. Though there is no provision, but this Court no. 1 had admitted counter to
rejoinder, as a sur rejoinder of BSNL, wherein the same contention of reply
had been reiterated, negating the contention of rejoinder.


8. As per TRAI Act, 1997, the proceeding before this Tribunal has been written
to be a civil court proceeding and for a civil suit, i.e. a proceeding of a civil
court, the law of adjudication has been propounded by Hon’ble Apex Court,
as well as Hon’ble High Courts, in many of its precedents as below.


9. The proceeding before this Tribunal is a civil proceeding, as has been given
in the TRAI Act, itself. In a civil proceeding, the preponderance of

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probabilities is the touchstone for making a decision, as against strict
burden of proof, required in criminal proceeding.

10. Hon’ble Apex Court in Anil Rishi Vs. Gurbaksh Singh – AIR 2006 SC 1971 has
propounded that onus to prove a fact is on the person who asserts it. Under
Section 102 of The Indian Evidence Act, initial onus is always on the plaintiff
to prove his case and if he discharges, the onus shifts to defendant. It has
further been propounded in Premlata Vs. Arhant Kumar Jain- AIR 1976 SC
626 that where both parties have already produced whatever evidence they
had, the question of burden of proof ceases to have any importance. But
while appreciating the question of burden of proof and misplacing the
burden of proof on a particular party and recording of findings in a
particular way will definitely vitiate the judgment. The old principle
propounded by Privy Council in Lakshman Vs. Venkateswarloo – AIR 1949
PC 278 still holds good that burden of proof on the pleadings never shifts, it
always remains constant. Factually proving of a case in his favour is cost
upon plaintiff when he fulfils, onus shifts over defendants to adduce
rebutting evidence to meet the case made out by plaintiff. Onus may again
shift to plaintiff. Hon’ble Apex Court in State of J & K Vs Hindustan Forest

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Co. (2006) 12 SCC 198 has propounded that the plaintiff cannot obviously
take advantage of the weakness of defendant. The plaintiff must stand
upon evidence adduced by him. Though unlike a criminal case, in civil cases
there is no mandate for proving fact beyond reasonable doubt, but even
preponderance of probabilities may serve as a good basis of decision, as
was propounded in M Krishnan Vs Vijay Singh- 2001 CrLJ 4705. Hon’ble
Apex Court in Raghvamma Vs. A Cherry Chamma – AIR 1964 SC 136 has
propounded that burden and onus of proof are two different things.
Burden of proof lies upon a person who has to prove the facts and it never
shifts. Onus of proof shifts. Such shifting of onus is a continuous process in
evaluation of evidence.


11. Perusal of order sheet reveals that Hon’ble Court No. 1 had given
opportunity with regard to ripening of the file for hearing of final argument,
for which the direction was for placing before the Court of Registrar for
ripening the file, alongwith connected Telecom Petition No. 92 of 2019,
which was with the same subject matter, as is in the present one. Wherein
mentioning by both side was there for not availing opportunity of giving any
evidence etc. The order dated 7.3.2023 specifically mentions that :

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“Counsel appearing for the petitioner submitted that they do not want to
lead any evidences. Hence, the stage of taking of the evidence by petitioner
is hereby closed.
Similarly, counsel appearing for the respondent, upon instructions from their
client, submits that they do want to lead any evidence nor they want to file
any affidavit of examination-in-Chief on behalf of any of the witnesses.
Hence, the stage of taking evidences by the respondent is also hereby
closed.
As the proceedings have been over in this Telecom Petition, we hereby direct
the Registry of this Tribunal to enlist this Telecom Petition under the head
“For Hearing" on 28.08.2023”.

12. This Telecom Petition was heard at length at many dates, then ultimately,
got ordered on 31.7.2025, “we hereby direct the Registry of this Tribunal to
place these matters for hearing before Bench No. II on 1.8.2025.”

13. In response to this order, the file was proceeded for final hearing, before
this Bench, wherein learned counsels for both side had argued. But as the

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main dispute was with regard to effect of Writ Court’s Order, dated
8.3.2019, and TRAI was party to above writ proceeding, which had
contested and after the order/judgment, whereby amendment 2018, was
got quashed and held to be ultra vires to TRAI Act, and unconstitutional
being violative of Article 14 of the Constitution of India, whereupon Review
Petition was got filed by alike Telecom Service Provider, Jio as well as TRAI,
before Hon’ble Delhi High Court, wherein the same defence, which is taken
by BSNL in present petition, was taken and it was heard and decided against
the review petitioners. TRAI was ordered to be arrayed as respondent no. 2
in this proceeding, for placing and apprising the facts and circumstances,
under which those disputed amendment regulation 2018 and subsequent
amendment regulation 2019, were got promulgated and what was the pros
and cons of same?. This order was got challenged by petitioner by a
Miscellaneous Application, and this was heard and rejected. Whereupon
TRAI was added as a party. Learned counsel for TRAI appeared, but with no
counter or written submission, except with a mention that TRAI is not of
any contest in the present matter. Being a regulatory authority, it had
passed regulations, wherein each Telecom Service Provider is bound. The
amendment regulation 2018 was got passed, and it was got set aside

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holding it to be ultra vires and unconstitutional. Then subsequent
amendment of 2019 was got notified, which is in operation. TRAI is with no
contest.

14. Heard arguments of learned counsel for both side and gone through the
material placed on record.

15. At the very outset, it is being mentioned that no evidence is there. Even
after providing opportunity for leading evidence, the same was not availed
by either side. It has been specifically written in the order-sheet cited supra.
Whatever is there, is pleadings only. The petition, the reply to this petition,
the replication to this reply, and the sur-reply, (though not permitted, but
accepted by Court No. 1 on record) is there.

16. In view of the law cited above, pleadings can never be a proof, the thing
pleaded is to be proved by the pleader. Plaintiff/petitioner, in a civil
proceeding is to prove its contention written in the plaint or petition and in
case of its failure to prove, the suit or civil proceeding will fail. The
defendant / respondent /other side, is to prove the contention made by it

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in its reply, as per rule of burden of proof, as well as onus to proof,
including the shifting of onus to proof, and where both side have given their
evidences, then the appreciation of evidences, led by both side is to be
made, as per rule of evidence.



17. The preponderance of probabilities is the guiding and deciding factor in a
civil suit proceeding. The facts admitted, need not to be proved and
admission is best piece of evidence, unless retracted or taken away, or is
against the law. In the present case, there is no evidence by either side,
except the pleadings, though the affidavits have been filed, in support of
pleadings, but the statements of accounts, emails, were neither in original,
as a primary one, nor proved to be of secondary one, nor with an affidavit,
required under section 65 B of Evidence Act, for making them admissible in
evidence.


18. Under above facts and circumstances, the adjudication with regard to effect
of amendment regulation 2018, in the light of subsequent quashing by
judgment of 8.3.2019, by Hon’ble Delhi High Court, in Writ Petition, holding

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the same to be ultra vires to TRAI and unconstitutional because of being
violative of Article 14 of the Constitution of India, is to be adjudged.

19. In the connected petition(TP No. 92 of 2019), this Tribunal, after hearing the
same question, has decided as below :
“Hence, it has decided in all its words that after the amendment of
31.1.2018 got struck down by Hon’ble Delhi High Court, wherein
regulator TRAI was a party, this judgment will definitely bind all service
providers governed by the regulations, including BSNL and BSNL was
not permitted to have a defence of successful or unsuccessful porting
request for interregnum period. There was a direction to make the
payment for each porting request. Hence, for the interregnum period,
the effect of amending regulation of the year 2018 was of no avail.
Rather, regulation of 2009 was in operation, and PPTC was payable @
Rs. 19/- per porting request and after this interregnum period, till the
effect of subsequent regulation dated 30.09.2019, being effective from
11.11.2019, @ Rs. 6.46 per porting request. The above rate of Rs. 19/-
per porting request is to be paid. Hence, to conclude, the rate for
interregnum period i.e. 31.1.2018 to 8.3.2019, will be of Rs. 19/- per
porting request, as per TRAI’s PPTC Regulation 2009. For the period
beyond it till the effect of subsequent regulation of 2019, the BSNL
itself has admitted to have paid Rs. 19/- per porting request and order
of this Tribunal on this point, dated 9.12.2021 is specific and final.

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14. This Tribunal, in many previously decided judgments, has
awarded pendente lite and future interest @ 9% p.a. simple interest
over outstanding dues. Considering present financial and fiscal
scenario, the award of same interest will be reasonable, just and
fair.

15. Hence, the main petition was filed with the prayer for
declaring respondent’s letter dated 23.09.2019 bearing no. NOW
CM-I/MNP/Regln/2019/34 as unlawful and non-est. This has
already been made vide order of this Tribunal, dated 9.12.2021 and
this Tribunal in its civil jurisdiction, is of no Writ Court jurisdiction to
declare any Regulation ultra vires or void ab initio. Rather, is to
decide the effect of order of Writ Court over a civil suit pending
before it and this has been specifically mentioned by this Court in its
order, dated 18.09.2025 in Para 3 “This Tribunal, exercising a Civil
Court jurisdiction, is of firm view, that it is of no jurisdiction, under
Article 226 to add or subtract or interpret the Writ Court Judgment,
given under exercise of Writ powers. Though, the effect of that
Judgment, for interregnum period, is to be justifiably drawn by this
Tribunal, in its judicial decision making in this Petition.” Hence, this
relief of declaration, is under the provision of a declaratory decree of
a Civil Court, and as Writ Court had itself given the judgement,
striking down the amendment Regulation, 2018, and each relief
being prayed by BSNL hereat, were prayed by the subsequent service

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provider in review Petition, which were heard and decided,
negatively, in review Petitions before Hon’ble Delhi High Court.
Hence, this letter of BSNL is not of any avail in respect of the matter,
already heard and decided by a Writ Court in above judgment of
08.03.2019.

16. The second relief is with regard to declaration that
Respondent is required to pay the per port transaction of Rs. 19/-
per porting request, in accordance with the Telecommunication
Mobile Number Portability Per Port Transaction Charge and Dipping
Charge Regulation 2009 and the Telecommunication Mobile Number
Portability Regulation, 2009, including the period between
31.1.2018 and 08.03.2019, this relief is being granted and the rate
for interregnum period to be of above rate is being held to be
payable to Petitioner.”

20. Hence, for brevity and rule of prudence, the same is not being reiterated.
Rather, is being taken as heard and decided that after the setting aside of
the amendment regulation 2018, holding the same ultra vires to TRAI and
unconstitutional, because of being against Article 14 of Constitution of
India, it became of no existence. The erstwhile regulation of 2009
became operative, for the interregnum period, for which Rs. 19/- per
porting request, was payable and this Tribunal of Civil Court jurisdiction,

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is of no jurisdiction of Writ Court to interpret the judgment of Writ Court,
rather to follow the principle of that Hon’ble Writ Court. Hence, as has
been decided in connected Telecom Petition, the PPTC will remain Rs.
19/- per porting request for interregnum period as above.

21. The fact of making payment @ Rs. 19/- per porting request for that
interregnum period is not being pleaded by respondent – BSNL, whereas
Rs. 4/- per successful request has been said to be made for that
interregnum period and balance of Rs. 7,01,43,817/- (Rupees Seven
Crores One Lakh Forty Three Thousand Eight Hundred Seventeen only) is
being claimed for above interregnum period @ Rs. 15 per porting
request. Hence, this is a question to be calculated by office, for making a
final decree. But the relief prayed for alleged outstanding dues, said to be
in the tune of Rs. 11,73,75,884/-(Rupees Eleven Crores Seventy Three
Lakhs Seventy Five thousand Eight Hundred Eighty Four only), as on
December 31, 2021, had been given in the affidavit of rejoinder to be of
Rs. 9,38,05,184/- (Rupees Nine Crores Thirty Eight Lakhs Five Thousand
One Hundred and Eighty Four only) with interest of Rs.2,35,70,699/-,
(Rupees Two Crores Thirty Five Lakhs Seventy Thousand Six Hundred and

27

Ninety Nine only) total amounting to Rs. 11,73,75,884/-(Rupees Eleven
Crores Seventy Three Lakhs Seventy Five thousand Eight Hundred Eighty
Four only) but this interest is said to be @ SBI PLR + 200 basis points, for
each day of delay in making payment by the respondent. But no evidence
is there to prove this interest, whereas this Tribunal in many decided
petitions have awarded interest @ of simple interest of 9% p.a, as against
the outstanding dues, being decreed for payment, and this Tribunal
considering the financial and fiscal scenario, is of considered view that
above interest, @ 9% p.a. simple interest, will be reasonable, just and fair
interest towards above payment of outstanding dues.

22. Hence, the petition merits to be decreed, as a preliminary decree with
regard to principle that for interregnum period i.e 31.1.2018 to 8.3.2019,
the chargeable PPTC will be at the rate of Rs. 19/- per port request
processed by petitioner. The interest, till filing of this petition, i.e.
20.1.2022 will be pre-institution interest @ 9% p.a simple interest, over
the above interregnum period, by counting @ of remaining Rs. 15/- per
porting request, after subtracting Rs. 4/- against Rs. 19/- per porting
request, for above period. This interest, alongwith above principal, will

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become principal interest. The admission is with regard to existing
liability in the tune of Rs. 18,05,241/- (Rupees Eighteen Lakhs Five
Thousand Two Hundred and Forty One only) as against BSNL, to the
petitioner, and this fact is admitted one. This is with regard to
subsequent period to interregnum period. Hence, this alongwith 9% p.a
simple interest over it, from the date of demand notice, till filing of this
petition, will become a principal amount. The other admitted amount is
said to be Rs. 3,688/- (Rupees Three Thousand Six Hundred Eighty Eight
only) towards March 8, 2019 to November 10, 2019 and Rs. 80,634/-
(Rupees Eighty Thousand Six Hundred and Thirty Four only) towards the
subsequent period. This will again be with simple interest of 9% p.a, from
the date of due, till filing of this petition and these all admitted amounts,
alongwith pre institution interest, as above, will become a principal
amount outstanding, on the date of filing of this petition. The pendente
lite and future interest from the date of petition, till actual date of
realisation shall be payable by respondent to petitioner towards above
calculated unpaid amount for the interregnum period and admitted
amount written as above, @ 9% simple interest.

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23. Preliminary decree be got prepared by office regarding these admitted /
declared claims. The above decided amount be got paid by respondent –
BSNL, to petitioner, within two months of judgment. Both side will be at
liberty to make reconciliation, in between, with regard to claims and
payments made towards it, at the above decided rate of principal, for
interregnum period, as well as rate of interest. Then and only then, final
decree will be drawn in the matter.


….......………………
(Justice Ram Krishna Gautam)
Member
16.10.2026
/NC/