Madras High Court
Bharat Sanchar Nigham Ltd vs The Manager on 27 April, 2018
Author: Anita Sumanth
Bench: Anita Sumanth
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2018
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
C.R.P.(NPD)(MD)No.849 of 2008
and
M.P(MD)No.1 of 2008
Bharat Sanchar Nigham Ltd.,
Through its Deputy General Manager,
Tuticorin. ... Petitioner / Petitioner
Vs.
1.The Manager,
Quality Servies and Solutions Pvt. Ltd.,
126, 1-2nd Floor, New Colony,
Tuticorin.
2.Quality Services and Solutions Pvt. Ltd.,
Through its Managing Director,
Having Office at Sai Sharadha,
C.Wing, Ground Floor,
Plot No.279, Station Road,
Vikhoril, East Mumbai.
... 1 & 2 Respondents/Respondents
PRAYER : This Civil Revision Petition has been filed under Article 227 of the
Constitution of India to set aside the Decree and Judgment passed by the
Subordinate Judge, Tuticorin in A.S.No.86 of 2005 dated 31.10.2007 confirming
the decree and judgment of the District Munsif, Tuticorin in O.S.No.363 of
2003 dated 20.10.2004.
!For Petitioners :Mr.M.D.Poornachari
^For Respondents :Mr.S.Subbiah,learned senior counsel for
Mr.N.Subramanian
:ORDER
This Civil Revision Petition has been filed by Bharat Sanchar Nigham Ltd., (in short BSNL), challenging the judgment and decree passed by the learned Subordinate Judge, Tuticorin in A.S.No.86 of 2005 dated 31.10.2007 confirming the decree and judgment of the District Munsif, Tuticorin in O.S.No.363 of 2003 dated 20.10.2004, referring the dispute inter se the parties to arbitration.
2. The learned District Munsif has, vide the aforesaid order, passed after hearing both parties, directed the plaintiff/BSNL to refer the matter for arbitration and final adjudication holding that the provisions of the Indian Telegraph Act, 1885 impliedly bar the jurisdiction of the Civil Court. Challenging the confirmation of the aforesaid order in appeal, the present Civil Revision Petition has been filed.
3. The main contention raised by the petitioner is to the effect that remedy by way of filing a suit is available to BSNL and the learned Judge ought not to have foreclosed / denied the aforesaid remedy by confirming the reference of the matter to arbitration.
4. According to the learned counsel appearing for BSNL, arbitration is only one of the options available for resolution of disputes between the parties and does not preclude other civil remedies. He places reliance on the decision in General Manager, Department of Telecom, Bharat Sanchar Nigam Ltd., Tuticorin vs. R.Ganesan [2008(3) CTC 490] and Smt.Tulasi Yellappa Pawaskar v. Department of Telecommunication [AIR 2008 Karnataka 3] in this regard. Being an arm of the Government, he would urge that limitation of thirty years is available to BSNL and in view of the settled position that suit remedy is available for the resolution of disputes BSNL should, according to him, be permitted to contest the same by way of civil suit.
5. Learned senior counsel appearing for the respondents relies upon a judgment of the Supreme Court in the case of Bharat Sanchar Nigam Limited v. Pawan Kumar Gupta [2016 (1) Supreme Court Cases 363], wherein the Bench, considered among other questions, the question of whether BSNL could avail of the extended limitation of thirty years available to the Central Government. The issue for resolution before the Bench is set out at paragraph No.8 as follows:
?...
8. The query that falls for our scrutiny in that, though, in respect of the claim against the respondent-subscriber, the amount due from the installation of the telephone connection i.e. 29.01.1992 till its disconnection on 16.03.1998 is Rs.25,296/-, the DoT of the Central Government is entitled to file a suit within thirty years under the period of limitation provided under Article 112 of the Limitation Act, whether this benefit will accrue in favour of the appellant-company either from the date of the execution of the Office Memorandum, referred to supra, transferring the assets and liabilities and remedies, or the date of its incorporation.
...?
6. After an exhaustive discussion of the issue, the position is crystalised in paragraph Nos. 14 & 15 of the judgment, wherein the Bench holds as follows:
?...
14. In the connected matter i.e. Civil Appeal No. 2409/2009, learned counsel appearing for the respondent has placed reliance on two judgments of this Court in the cases of A.K. Bindal & Anr. vs. U.O.I. & Ors., (2003) 5 SCC 163 paras 5, 14 and 17 and Food Corporation of India vs. Municipal Committee, Jalalabad & Anr., (1999) 6 SCC 74, in support of the contention that the expressions 'Central Government' or 'State Government' in terms of Section 3(8) and Section 3(60) of the General Clauses Act do not include in their purview or definition their agencies or instrumentalities.
15.In view of the aforesaid judgments of this Court, the legal contention urged by the learned Senior Counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule to the Limitation Act or alternatively, whatever the limitation period which was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in law.
...?
7.Heard Mr.Poornachari, learned counsel appearing for BSNL and Mr.Subbiah, learned senior counsel appearing for Mr.N.Subramanian, learned counsel for the respondents.
8.It is a well settled position that section 7(B) of the Indian Telegraph Act, 1885 providing for arbitration of disputes between parties is not an exclusive remedy and the parties are at liberty to avail of other remedies including civil remedies. Thus, there is no dispute with regard to the position that the remedy of a civil suit is available to the petitioner.
9. In the present case, the dispute relates to two bills raised by the petitioner upon the respondents dated 11.12.1999 and 11.02.2000. The direction to BSNL to refer the dispute for arbitration as a method of dispute resolution has been made by the learned Additional District Munsif on 20.10.2004 as confirmed by the learned Subordinate Judge on 31.10.2007.
10. It is an admitted position that the activities of the Department of Telecommunication were taken over by BSNL, which was incorporated as a Company under the provisions of the Companies Act 1956 on 01.10.2000.
11. An office memorandum dated 30.09.2000 bearing No.2-29/2000-Restg., Government of India, Ministry of Communications, Department of Telecommunication Services, reveals that BSNL has been set up as an exercise in corporatising the service facilities being offered by the Department of Telecommunications. Thus, the business of provision of telecom services that were earlier entrusted with the Department of Telecom Services(DTS) and the Department of Telecom Operations(DTO) was handed over to BSNL with effect from 01.10.2000. BSNL has been incorporated as a Company with limited liability by shares under the Companies Act, 1956.
12. The demarcation between the activities of the erstwhile DTS and DTO has been set out in Paragraph No.2 of the office memorandum, to the following effect:
?...
2.The Department of Telecom, Services and Department of Telecom Operations concerned with providing telecom services in the country and maintaining the telecom network/telecom factories were separated and carved out of the Department of Telecommunications as a precursor to coporatisation, It is proposed to transfer the business of providing telecom services and running the telecom factories to the newly set up Company, viz., Bharat Sanchar Nigam Limited w.e.f, 1st October, 2000. The Government has decided to retain the functions of policy formulation, licencing, wireless spectrum management administrative control of PSUs, standarisation & validation of equipment and R & D etc. These would be responsibility of Department of Telecommunications (DOT) and Telecom Commission. As such, administrative department for Bharat Sanchar Nigam Limited would be the Department of Telecommunications(DOT).
....?
13.Only the function of providing telecom services and running telecom factories have been entrusted to and are being carried on by BSNL and what has been retained by the Government is policy formulation, licencing, research and development and other specific areas.
14. In the light of the judgment of the Supreme Court referred to above and the fact that BSNL is an independent entity set up under the provisions of the Companies Act, 1956, while the remedy of a civil suit would certainly be available to BSNL had the same be availed of in time, the extended period of thirty years cannot be invoked.
15. In the aforesaid circumstances, this Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Subordinate Judge, Tuticorin.
2.The District Munsif, Tuticorin.
.