Karnataka High Court
Smt. Tulasi Yellappa Pawaskar W/O ... vs Department Of Telecommunication, ... on 23 August, 2007
Equivalent citations: 2008(1)KARLJ582, AIR 2008 KARNATAKA 3, 2008 (2) ALJ (NOC) 371 (KAR.) = AIR 2008 KARNATAKA 3, 2007 (6) AIR KAR R 194, 2008 A I H C 296, (2007) ILR (KANT) 4104, (2008) 1 KANT LJ 582, (2007) 4 ICC 789
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
Page 2169
1. In this case, petitioner has called in question the order passed by the Civil Judge (Sr.Dn.)., Sirsi, dated 6.4.2005 in E.P. No. 14/2003 whereby the objections raised by the petitioner for execution of the decree in O.S. No. 136/2001 dated 6.9.2002 have been rejected and a direction has been issued by the Executing Court to issue warrant of attachment of movables of the petitioner as prayed for by the respondents.
2. The first respondent had filed a suit against the petitioner in O.S. No. 136/2001 on the file of the Additional Civil Judge (Jr.Dn.), Sirsi, for recovery of a sum of Rs. 31,386/- towards telephone charges as per the bills dated 1.1.1999 and 1.3.1999. The petitioner was placed exparte in the suit. The court below decreed the suit on 6.9.2002 for a sum of Rs. 31,386/- with interest at the rate of 15% per annum from the date of the suit till the date of realisation. Since the petitioner did not pay the amount in terms of the aforesaid Page 2170 decree, the first respondent filed Execution Petition for execution of the said decree. The petitioner filed objections before the Executing Court contending that having regard to Section 7-B of the Indian Telegraph Act, 1885 ('Act' for short), the Court had no jurisdiction to try the suit. Therefore, the decree is not executable. The court below has rejected the said contentions and has directed issue of warrant of attachment of movables of the petitioner/judgment debtor.
3. Sri S.G. Hegde, learned Counsel appearing for the petitioner contends that the court below was not justified in rejecting the objections filed by the petitioner to the execution of the decree. It is submitted that the decree was not a valid decree. It is a nullity in the eye of law. It is further submitted that though the petitioner has not challenged the judgment and decree, the objection with regard to nullity of a decree can be raised in the Executing Court and the Execution Court is duty bound to consider the objection. In this connection, reliance is placed on the following decisions:
(i) Union of India and Anr. v. Firm Ramchand Naraindas ,
(ii) Urban Improvement Trust, Jodhpur, v. Gokul Narain and Anr. ,
(iii) Telecom District Manager, Goa and Ors. v. V.S. Dempo and Co. and Ors. ; and
(iv) District Manager, Telecom v. M.L. Raina .
4. On the other hand, Sri Papegowda, learned Counsel appearing for the first respondent would contend that the petitioner has not raised objection to the bills sent by the respondents claiming telephone charges. Since the petitioner failed to pay the bills, there was no other option for the first respondent but to file a civil suit for recovery of the bill amount. It is not necessary for the Department to refer the matter for statutory arbitration under Section 7-B of the Act because the petitioner has not disputed the bills. Thus, the judgment and decree passed by the trial Court was valid and enforceable. Petitioner has not challenged the judgment and decree of the court below. In the Execution Court, for the first time, petitioner contends that matter should have been referred to the arbitration under Section 7-B of the Act when there was no dispute to the bills. It is argued that an Executing Court cannot go behind the decree. In this connection, the learned Counsel relies on the decision in Divisional Engineer, Telephones, Cuttack and Anr. v. Beharilal Shyamsundar in support of his contention.
Page 2171
5. I have carefully considered the arguments of the learned Counsel made at the bar and perused the materials placed on record.
6. The undisputed facts are that the respondents had issued bills on 1.1.1999 and 1.3.1999 to the petitioner for payment of telephone charges. Admittedly, the petitioner did not pay the said hills. There is no material on record to show that the petitioner had disputed the bills. Therefore, the first respondent filed a suit against the petitioner for recovery of the amounts as per the said bills. The suit was decreed on 6.9.2002 in the following terms:
The suit of the plaintiff - Department is decreed with costs.
Plaintiff-1 is entitled to recover Rs. 31,386/- with interest at the rate of 15% per annum from the date of the suit till the date of realisation from the defendant.
Draw a decree accordingly.
7. It is also an admitted fact that petitioner has not challenged the said judgment and decree. Thus, it has become final and binding between the parties. In the Execution Petition filed by the first respondent, for the first time, petitioner has taken up the contention that the decree is invalid and unenforceable. The contention of the petitioner is that when the petitioner has failed to pay the bills, the Department ought to have referred the matter to statutory arbitration under Section 7-B of the Act. Section 7-B of the Act is as under:
Section 7-B: Arbitration of disputes: (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this Section.
(2) The award of the arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
8. Thus, in order to attract Section 7-B of the Act, there should be a dispute concerning any telegraph line, appliance or apparatus arising between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided. There would be a dispute so long as a claim is asserted by one party and denied by the other. In the present case, petitioner has not raised any objection to the bills issued by the first respondent. Had the petitioner objected to the bills, the first respondent would have referred the matter for arbitration under Section 7-B of the Act. The bills are dated 1.1.1999 and 1.3.1999. The first respondent has waited nearly two years for payment of the bills. The first respondent had no other option but to initiate action for recovery of the Page 2172 amount covered under the bills. Therefore, the first respondent had rightly filed the suit for recovery of the amount. In my opinion, there was no bar for filing of such a suit. There is no merit in the contention of the petitioner that the first respondent ought to have referred the matter for arbitration under Section 7-B of the Act. The civil suit filed by the first respondent for recovery of the bill amount was maintainable and the judgment and decree passed by the Civil Court is valid. In the case of Divisional Engineer, Telephones, Cuttack and Anr. v. Beharilal Shyamsundar , the Orissa High Court has held that the jurisdiction of the Civil Court will be ousted only if the dispute would be covered by Section 7-B of the Act. But if the dispute is not covered by Section 7-B(1), then the Civil Court's jurisdiction cannot be ousted.
9. Coming to the decisions relied on by the learned Counsel for the petitioner, in Union of India and Anr. v. Firm Ramchand Naraindas , it has been held that in a matter relating to dispute regarding correctness of the telephone bill, suit for injunction restraining disconnection of the telephone facility was not maintainable as the dispute falls within the ambit of Section 7B of the Act. In the present case, no such dispute has been raised by the petitioner. In Telecom District Manager, Goa and Ors. v. V.S. Demp and Co. and Ors. , the Apex Court was considering the dispute relating to two bills. The Court has held that administrative instructions are not binding. The power to refer is given by the Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc., instead of litigating the dispute in a civil Court, it should be decided by the arbitrator under Section 7-B of the Act. That is not the position in the present case. In the case of District Manager, Telecom v. M.L. Ratna AIR 2000 J & K 33, the Court has held that the disputed question of fact as to what should have been the correct amount of the bill is a matter which would be settled by taking resort to Section 7B of the Act. The position in the present case is entirely different. In the case of Urban Improvement Trust, Jodhpur, v. Gokul Narain and Anr. , the Apex Court has held that question of nullity can be set up at any stage including execution of the decree. The said decision also is not applicable to the facts of this case as I have taken a view that the decree is valid.
10. Having given my anxious consideration to the arguments made by the learned Counsel at the bar, I do not find any merit in this petition. It is accordingly dismissed. No costs.