BHARAT SANCHAR NIGAM LIMITED Vs. AKSH OPTIFIBRE LIMITED

JUDGEMENT

(1.) By way of the present appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short "the Act"), the appellant seeks to challenge the judgment and order dated 04.03.2020 passed in OMP.(COMM).No.131/2017. By the judgment impugned herein, the learned Single Judge has affirmed the Award dated 27.10.2016 passed by the learned Arbitrator.

(2.) The facts, in brief, leading to this appeal are as under:

(3.) In the arbitration proceedings, it was claimed by the respondent that as per the agreement between the parties, there was no agreed parameter on which inter-city bandwidth charge to be paid by it to the appellant herein, could be determined. It is stated that the provisions in the EOI as well as the Franchise Agreement relating to payment of inter-city bandwidth charges are neither certain, nor are they capable of being made certain and hence, are void. It was contended in the Claim Statement filed by the respondent herein that the contract does not provide the start in time for levy of inter-city bandwidth charges. It is stated that due to uncertainty of the provisions relating to payment of inter-city bandwidth charges, there is no consistency between the provisions contained in the EOI and the Franchise Agreement; that while the EOI contemplated provision of intercity bandwidth at competitive rates, Schedule 3 of the Franchise links the bandwidth charges to the fact that Franchisee is expected to locate separate Video on Demand (VOD) server for the additional city; that without prejudice to the contention that the provisions of the EOI and Franchise Agreement relating to payment of inter-city bandwidth charges are void, the claimant (respondent herein) stated that any such charges could not be determined without mutual consultation and concurrence of the parties keeping in mind various commercial and circumstantial realities and were to be within the overall parameters of commercial viabilities of transaction and feasibilities. The respondent, therefore, claimed that the demand of the appellant for Rs.17,84,13,410/- or any other sum towards MPLS/inter-city bandwidth charges for the inter-city connectivity from it was excessive and bad in law. The respondent also prayed for Rs.10.0 Lacs as costs.