MAHANAGAR TELEPHONE NIGAM LTD Vs. TATA COMMUNICATIONS LTD

JUDGEMENT

(1.) The present appeal arises out of a dispute under the Telecom Regulatory Authority of India Act, 1997. The relief sought through a petition before the Telecom Disputes Settlement and Appellate Tribunal, New Delhi ["TDSAT"] by the respondent, Tata Communication Ltd. against the appellant, Mahanagar Telephone Nigam Ltd., is for a recovery of a sum of INR 1,10,57,268.00 plus interest thereon. The question that arose between the parties is whether the appellant was justified in adjusting this amount from the dues payable to the respondent by deduction from the bills raised by the respondent. Since the Purchase Order dated 01.10.2008 forms the basis for the claim, it is important to set out clauses 4 and 8 of the said Purchase Order as under:

(2.) Having heard the learned counsel for both sides, one neat question arises before this Court, which is, whether, when parties are governed by contract, a claim in quantum meruit under Sec. 70 of the Indian Contract Act, 1872 ["Contract Act"] would be permissible. Sec. 70 of the Contract Act reads as under:

(3.) An early judgment reported as Moselle Solomon Vs. Martin & Co., 1935 62 ILR(Cal) 612 resulted in a split verdict between the two judges on the point of whether Sec. 70 of the Contract Act can apply when there is, in fact, a contract between the parties. LortWilliams, J. held: