Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Order delivered on: 15 September, 2016
+ ARB. P. No.351/2016
ATC TELECOM TOWER CORPORATION PVT. LTD. ..... Petitioner
Through Mr.Amar Gupta, Adv. with
Mr.Manish K. Jha & Mr.Divyam
Agarwal, Advs.
versus
VIDEOCON TELECOMMUNICATIONS LIMITED ..... Respondent
Through Mr.Sndeep S. Ladda, Adv. with
Mr.Soumik Ghosal & Mr.Devender
Singh, Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (ORAL)
1. The petitioner has filed the present petition under Section 11(6)
of the Arbitration and Conciliation Act, 1996 (hereinafter referred to
as the ‘Act’) for seeking the appointment of an Arbitrator on behalf of
the respondent, in the arbitration initiated by the petitioner vide its
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letter dated 21 April, 2016 for resolving the disputes and differences
that have arisen under the Agreements between the parties. The
prayer is also made to appoint an Arbitrator who would act as the
Presiding Arbitrator, in the event that the Arbitrator nominated by the
petitioner and the Arbitrator appointed by this Court on behalf of the
respondent fail to agree upon the name of the third Arbitrator within
the time frame as fixed by this Court.
2. The relevant dates and events are referred as under:-
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(i) On 18 March, 2011, the Ministry of Communications & IT
had taken on record the change in name of the petitioner-
Company from 'Essar Telecom Infrastructure Private Limited'
to 'ATC Telecom Tower Company Private Limited'.
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(ii) On 1 June, 2009, a Passive Infrastructure Sharing
Agreement ("ETIPL MSA") was entered into between Essar
Telecom Infrastructure Pvt. Ltd. ("ETIPL") (now ATC
Telecom Tower Company Private Limited) and Datacom
Solutions Private Ltd. (now Videocon Telecommunication
Limited) for providing passive telecom infrastructure
facilities and services all over India.
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(iii) On 15 December, 2014, the parties had entered into the
Settlement Agreement for providing the passive telecom
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infrastructure facilities. Thereafter, on 5 May, 2015, parties
had entered into a subsequent Addendum for providing the
passive telecom infrastructure facilities.
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(iv) By letter dated 27 November, 2015, the respondent had
informed the petitioner that it would be shutting down its
mobile operations in Gujarat Service Area with effect from
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the midnight of 26 December, 2015 and had requested the
petitioner to immediately stop the billing for the sites. On
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11 December, 2015, the respondent had modified its
number of sites. However, the petitioner had rejected the
request of the respondent for an Early Exit without
imposition of the Exit Penalty. The respondent had revised
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its date of closure of services to 26 January, 2016,
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thereafter to 31 March, 2016 and still thereafter to 31
May, 2016.
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(v) By letter dated 7 April, 2016, the petitioner had asked the
respondent to clear the dues which was more than
Rs.1 crore (excluding the exit fee). In reply to the said
letter, the respondent without denying its liability, had
simply stated that since the matter is sub judice, they will
not make any payments.
2.1 It is further stated by the petitioner that the mechanism for
resolution of disputes between the petitioner and the respondent, for
the sites under the Passive Infrastructure Sharing Agreement dated
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1 June, 2009 provides for the reference of disputes to arbitration
under the Act by three Arbitrators. One Arbitrator is to be appointed
by each party and the third Arbitrator is to be appointed by the
Arbitrators so appointed. Accordingly, the petitioner had appointed
Mr.Sanjeev Puri, Senior Advocate, as its nominee Arbitrator to
adjudicate the disputes between the parties.
2.2 Since the respondent had continuously defaulted in making the
payment towards the invoices raised by the petitioner for the services
provided under the Agreement, the petitioner was constrained to
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invoke the Arbitration Agreement on 21 April 2016 for the
settlement of disputes under the two Master Infrastructure
Provisioning Agreements as per the dispute resolution clause.
2.3 Since there is a continuous liability on account of non-payment
of monthly fee and accumulated interest, the petitioner had restricted
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its claim of such dues as on 21 April, 2016 in the arbitration notice
but with a right to claim all monthly fee with accumulated interest (on
the date of filing of the Claim) till the respondent continues to avail
the services of the petitioner. The petitioner has filed the present
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arbitration petition for the appointment of an Arbitral Tribunal to
adjudicate the above said claim of the petitioner.
3. The petitioner states that till the filing of the present petition,
(which is more than thirty days from the date of notice of invocation
of arbitration calling upon the respondent to nominate their
Arbitrator), it has not received any communication from the
respondent for the appointment of their nominee Arbitrator.
4. Learned counsel for the petitioner further states that there is a
valid and binding arbitration agreement between the parties. It is
just, necessary and equitable that this Court may appoint an
Arbitrator on behalf of the respondent for the Arbitral Tribunal
consisting of three Arbitrators for adjudication of the disputes/claims
as stated in the present petition as well as other claims, disputes or
differences as may be submitted by the petitioner before the Tribunal.
5. Notice of this petition was issued to the respondent. Time was
also given to the respondent to file the reply. However, the reply was
not filed and further, time was sought which was opposed by the
petitioner.
6. The only contention of the respondent is that the disputes
between the parties are to be decided by the TDSAT and not under
the Act. When it was pointed out to him that the similar issue has
already been decided by another Bench in Viom Networks Ltd. v. S-
Tel & Ors. , AIR 2014 Del. 31, as well as by this Court in O.M.P.(I)
(COMM.) No.107/2016 between the same parties vide judgment
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dated 14 September, 2016, counsel states that the respondent
intends to contest the said decision, however, it is not denied by the
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counsel for the respondent that there is valid agreement executed
between the parties which contains the arbitration clause.
7. I have heard the learned counsel for the parties. In case the
averments made in the petition and the documents placed on the
record are read in a meaningful manner, I am of the view that the
prayer made in the above said petition is liable to be allowed. As far
as the objection of the respondent is concerned, the respondent is at
liberty to raise the same before the Arbitral Tribunal. There is no stay
by any Court about the findings of two Courts, thus, there is no
impediment to pass this order.
8. Accordingly, Justice Vikramajit Sen, Retired Judge of the
Supreme Court (Mobile No.9818000290/8447333366) is appointed as
an Arbitrator on behalf of the respondent. Both the Arbitrators, as
appointed by the petitioner as well as by this Court, will mutually
appoint a Presiding Arbitrator within one month. The Arbitral Tribunal
shall adjudicate the disputes and differences that have arisen under
the agreements between the parties and as mentioned in the present
petition. The parties are also allowed to file their respective claims
and counter-claims before the Arbitral Tribunal.
9. The Arbitral Tribunal shall ensure the compliance of the
provisions of Arbitration and Conciliation (Amendment) Act, 2015
before commencing the arbitration. The fee of the Arbitrators
consisting the Arbitral Tribunal shall be in terms of the schedule of the
amended Act.
10. The petition is accordingly disposed of.
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11. Copy of this order be given dasti to the learned counsel for the
parties and a copy thereof be delivered to the learned Arbitrators
forthwith.
(MANMOHAN SINGH)
JUDGE
SEPTEMBER 15, 2016
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