Delhi District Court
Asha Goel vs Mahanagar Telephone Nigam Limited on 9 November, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
OMP (COMM) No. 21/2019
ASHA GOEL
W/o Sh. Pradeep Goel
R/o B-118, Pura Apartment,
Plot No. 22, Sector 13, Rohini
New Delhi ..... Claimant/
Petitioner
VS.
1. MAHANAGAR TELEPHONE NIGAM LIMITED
O/o, DGM (Proj & PLG)
3rd Floor, Mahnagar Door Sanchar Sadan,
9, CGO Complex, Lodhi Road,
New Delhi-110003 ...... Respondent
2. Sh. Akmal Hasan, DGM (P&P) BSS
Sole Arbitrator,
Cabin No. 3306, 3rd Floor,
MTNL Building, CGO Complex
New Delhi ....Sole Arbitrator
Date of Institution : 18.02.2019
Date of Arguments : 04.11.2023
Date of Judgment : 09.11.2023
JUDGMENT
1. Vide this judgment, I shall dispose of the petition under Section 34 of the Arbitration & Conciliation Act filed by OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 1 of 9 petitioner for setting aside the impugned award dated 14.06.2018 passed by Ld. Sole Arbitrator.
2. Brief facts of the case are that the claimant/petitioner has subscribed the mobile calling facility of MTNL (Garuda Mobile service) having mobile bearing no. 20037254 in the month of December 2003, however, facing problems in network, thus made various complaints for poor network and connectivity but her grievances not addressed by the dealing officer of the MTNL. In July, 2006, the applicant applied for new connection bearing no. 20288195, however, the new connection was found to worse than the earlier connection. The applicant thereafter made a complaint dated 12.07.2007 to the TRAI, however, despite this, no action was taken by the respondent MTNL. Thereafter, a consumer complaint was filed but the district form was pleased to refer the matter to arbitration in the light of provision of Indian Telegraph Act. The petitioner again vide letter dated 12.08.2008 requested the General Manager of MTNL for disconnection and refund of the amount, however, no action was taken.
3. The respondent thereafter filed an application on 24.12.2010 for referring the matter for Arbitration in view of judgment of Hon'ble Supreme Court of India reported as III(2009) CPJ 71 SC holding that only the arbitrator has jurisdiction to adjudicate upon the dispute as per the provisions of Section 7(B) of the Indian Telegraph Act. Vide order dated 21.02.2012, Sh. A.K. Kaushik, Assistant General Manager (Legal) on behalf of MTNL appointed Sh. Tribhuvan Singh, DGM as an Arbitrator in respect to the dispute over both the OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 2 of 9 numbers. Thereafter, matter was referred to Sh. Akmal Hasan, Sole Arbitrator, DGM (P&P) BSS. The petitioner vide letter dated 24.09.2016 filed her statement of claim. Respondent MTNL filed the objections, however, vide impugned award dated 14.06.2018, Ld. Sole Arbitrator rejected the claim of the applicant/ claimant.
4. The plea in defence of the respondent MTNL before the Ld. Arbitrator is that the statement of claim is barred by limitation as per Section 43 of Arbitration and Conciliation Act. The mobile no. 20288195 is disconnected on 09.02.2008 for non- payment of bill, therefore, there is no useful purpose in claimant sending or surrendering the telephone by letter dated 12.08.2008. It is also pleaded that the satisfactory service was provided by the MTNL.
5. The Ld. Arbitrator in the impugned award observed that the claimant has not filed any documents in evidence before the Arbitrator and in absence of the same, the claimant has failed to prove and show that there were deficiency in the services of respondent. The pleadings of the same are vague and inconsistent. The claimant do not bring any evidence and also not specified the time, place, mobile numbers and occasions when the call used to drop often. The burden is on the claimant who brought the claim before the adjudicating authority. The claimant also not specified the basis and reasons on account of which she calculated the quantum of compensation. It is also observed by the Ld. Arbitrator that if the claimant was facing so much problem then why she opted again MTNL, and after assessment OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 3 of 9 of the pleadings and considering the contentions dismissed the claim of the claimant vide impugned award dated 14.06.2018.
6. Ld. counsel for the claimant/ petitioner submitted that arbitral award was not provided on 14.06.2018, however, receiving the award only after the writing letter dated 20.10.2018 to the public information officer, and received the same on 14.11.2018. The limitation provided for filing the present petition for 3 months and the present petition was filed within 3 months on 14.02.2019, hence, within limitation. Ld. Counsel also submitted that the Ld. Arbitrator dismissed the claim on vague grounds. The claimant has made numerous complaints regarding poor connectivity and, therefore, applied for new connection which was also found to be worse than the earlier connection, therefore filed the complaint to TRAI, then to the consumer forum. The Ld. Arbitrator passed the award mechanically without proper consideration of the complaint, hence, the impugned award is liable to be set aside.
7. Ld. counsel for the claimant/petitioner further submitted that the appointment of the Arbitrator is hit by section 12 (5) r/w 7 Scheduled of the Arbitration and Conciliation Act. Therefore, on this ground, the award is liable to be set aside. (Relied upon Ellora Paper Mills Limited Vs. The State of Madhya Pradesh in Civil Appeal no. 7697 of 2021 dt. 04.01.2022). The counsel further submitted that Apex Court in case title 'Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited & Ors. Vs. M/s Ajay Sales & Suppliers in SLP No. 13520/2021 and SLP (Civil) No. 13543/2021 dt. 09.09.2021 held that the arbitration act is a special act therefore section 58 Rajasthan OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 4 of 9 Cooperative shall not come in the way of appointing Arbitrator under the Arbitration Act, therefore, in present case, Section 7(B) of Indian Telegraph Act will not come in way. Furthermore, Delhi High court in case titled 'Kotak Mahindra Bank Ltd. Vs. Narendra Kumar Prajapat reported in 2023 DHC 3705-DB' also found that the unilateral appointment of the Arbitrator makes the arbitration proceedings void abnitio and is in complete violation of Section 12 (5) of the amended Arbitration and Conciliation Act. Hence, the impugned award is liable to be set-aside.
8. Ld. counsel for the respondent submitted that this court cannot appreciate the evidence and the impugned award passed by Ld. Arbitrator after considering all the documents on record. Furthermore, this court has no territorial jurisdiction. The area of CGO Complex lies in the jurisdiction of Patiala House Courts. Ld. Counsel further submitted that the present petition is also barred by limitation. The award was pronounced on 14.06.2018 in the presence of the husband of the petitioner and the copy of original award was provided on the same date to her husband., however, with ulterior motive to extend the period of limitation maliciously and falsely written the letter dated 09.10.2018 which is also time barred. Ld. Counsel submitted that there is no violation of Section 12(5) of Arbitration Act as the arbitration proceedings were conducted U/s 7(B) of the Indian Telegraph Act. The Section 7(B) of Indian Telegraph Act provides for arbitration for any dispute regarding any telephone lines, appliances or operator arising between the telegraph authority and beneficiary, therefore, the arbitration is the statutory arbitration, hence, the provision of Section 12(5) of Arbitration OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 5 of 9 Act is not applicable. Ld. Counsel submitted even otherwise no ground made out for setting aside the award 34 of Arbitration and Conciliation Act, therefore, the present petition is liable to be dismissed.
9. Both the parties also filed written submissions.
10. Arguments heard. Record perused.
11. The present arbitration proceedings was conducted by the sole arbitrator Md. Akmal Hasan, DGM (P&P) BSS, who was appointed to resolve the dispute in accordance of provision U/s 7(B) of Indian Telegraph Act. Section 7(B) of Indian Telegraph Act provides for arbitration of any dispute regarding any telegraph line, appliance or apparatus arising between the telegraph authority and the beneficiary. The arbitrator is appointed by the Central Government, and the award pronounced by such arbitrator cannot be examined before any court and shall be conclusive between the parties to the dispute. Section 7(B) of Indian Telegraph Act is re-produced as under :
"(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 (I) shall be conclusive between the parties to the OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 6 of 9 dispute and shall not be questioned in any court."
The arbitration proceedings U/s 7(B) of Indian Telegraph Act is a statutory arbitration proceedings. Therefore, the appointment of arbitrator in terms of the Indian Telegraph Act cannot become ineligible in terms of Section 12(5) of the amended Arbitration and Conciliation Act.
12. It is pertinent to refer to the case titled Divisional Engineer, Telephones, Cuttack and Another Vs. M/s Beharilal Shyamsundar, 1993 SCC Online Ori 15 held as under :
"6. So far as the first contention of Mr. Misra, the learned counsel for the appellants is concerned, I have no hesitation to agree With him, inasmuch as the provisions of the Arbitration Act will have no application to an arbitration, contemplated in S. 7-B of the Indian Telegraph Act, 1885. A learned single Judge of this Court in the case of Nityananda Sahu v. Postmaster General, Orissa, Bhubaneswar, AIR 1977 Ori 48, after analysing the provisions of S. 7-B(2) of the Indian Telegraph Act and in view of the provisions contained in S. 46 of the Arbitration Act came to hold that the general scheme of the Arbitration Act is not applicable to a statutory arbitration under the provisions of the Indian Telegraph Act. In that view of the matter, the lower appellate Court committed an error in applying the provisions of S. 34 of the Arbitration Act and the conclusion on that score, therefore, must be set aside. The first contention of Mr. Misra, the learned Senior Standing Counsel, is upheld."
13. As per the mandate of this judgment, the general scheme of the arbitration act is not applicable to the statutory arbitration, therefore, the award passed U/s 7(B) of Indian Telegraph Act cannot be challenged U/.s 34 of Arbitration and Conciliation Act. Even otherwise, there is no patent illegality or OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 7 of 9 violation of fundamental policy of the law in the present case. The judgments as relied by Ld. Counsel for the petitioner are of no help in present facts and circumstances.
14. As far as the plea of limitation is concerned, the impugned award was passed on 14.06.2018. The noting dated 14.06.2018 from the arbitral record is re-produced as under :-
"Next hearing was scheduled on 14.06.2018. Final award was given on this matter. Copy is placed at 39/c. The complainant authorized representative Sh. Pradeep Goyal appeared. From respondent side no one appeared. One original copy of award was given to Sh. Pradeep Goyal.
The case stands closed now.' As per this noting, one original copy of the award was given to Pradeep Goyal, Authorized representative/ husband of the claimant Asha Goel on the said date i.e. 14.06.2018, therefore the period of limitation expired on 14.09.2018 However, the present petition was filed on 14.02.2019 which is beyond limitation, hence, the present petition is also liable to be dismissed as barred by limitation.
15. As far as issue of jurisdiction is concerned, CGO Complex falls within the jurisdiction of New Delhi and New Delhi also includes the jurisdiction of this court. Hence, it cannot be held that this court has no territorial jurisdiction to entertain the present petition.
16. In view of the aforesaid discussion, the present petition is barred by limitation. The arbitration proceedings are conducted U/s 7(B) of Indian Telegraph Act, thus statutory in OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 8 of 9 nature, therefore, there is no violation of Section 12(5) of the amended Arbitration and Conciliation Act. Accordingly, the present petition stands dismissed and disposed off.
File be consigned to record room after necessary compliance.
Announce in the open Court on 9th November, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts 03), SouthEast District, Saket Courts, ND OMP (COMM) 21/19 Asha Goel Vs. Mahanagar Telephone Nigam Limited dt. 09.11.2023 9 of 9