MAHANAGAR TELEPHONE NIGAM LIMITED Vs. P K MEHROTRA

JUDGEMENT

(1.) This writ petition is filed by the petitioner, Mahanagar Telephone Nigam Limited (in short MTNL) assailing the award dated 28/7/1999 passed by Mr. P.K.Mehrotra, Arbitrator as being violative of Section 7-B(2) of Indian Telegraph Act (hereinafter called the Act).

(2.) The factual matrix of the case is that respondent no.2 was provided a telephone No.583779 which was subsequently closed and a new number 5744090 was provided to him on 14/10/1991 with dynamic STD control facility. According to the petitioner the respondent no.2 was using this telephone for business, social and personal use. He was running a business in the style of M/S New Metals Manufacturing Co., Mayapuri Industrial Area, Phase-II, New Delhi and has admitted the use of the telephone for business purpose also. The first bill dated 1/11/1992 after installation was issued for the period from 34/10/1991 to 15/10/1992 for a sum of Rs.1,64,097.00. After cancellation of rent the net amount payable was Rs. 1,62,317.00. It was for 146215 net calls. The respondent made a representation against the bil1. The petitioner, thereafter, issued a provisional bill for a sum of Rs. 24,395.00 keeping the balance sum of Rs.1,37,922.00 pending. After thorough investigation the representation/complaint made by respondent no.2 against the bill dated 1/11/1992 was rejected vide letter dated 10/6/1993 and he was requested to pay the outstanding amount of the bill. Since the bill was issued for one year the respondent was granted liberty to make the payment in instalment. On 21/4/1993 he filed a petition under Section 20 of the Arbitration Act for reference of the dispute in respect of the bill dated 3/11/1992 to the Arbitrator which was registered in this court as suit No.2143/1993. This court vide order dated 18/4/1996 referred the dispute for the billing cycle from 14/10/1991 to 15/10/1992 to the Arbitrator under Section 7B of the Act on the condition that the respondent no.2 shall deposit the balance amount. On 26/7/1996 Mr.P.K.Mehrotra, Deputy General Manager (TR). and the petitioner was appointed as arbitrator to adjudicate the dispute between the parties, without appreciating the fact and without considering the document, respondent no.1, being Arbitrator, passed the award dated 28/7/1999 whereby a rebate of 138510 calls out of the total 146215 charged calls has been granted. This rebate is about 95% of the total charged calls. The impugned award is absolutely without reasoning and is a non-speaking award. It shows lack of application of mind as much as it was accepted by the arbitrator that the telephone in question was provided with dynamic STD control facility, therefore, possibi1ity of misuse or pilferage was absolutely ruled out and even"further there was a spurt due to excessive and 1iberal use of the telephone facility by respondent no-2. Respondent no.2 has used the telephone liberally and excessively for his business purposes and for his social and personal need. It was prayed that the award may be quashed and it be declared that respondent no.2 was liable to pay balance amount of the bill dated 1/11/1992.

(3.) In the reply to the show cause notice respondent no.2 stated that the petitioner has voluntarily acted upon and implemented the award by making a refund of a sum of Rs.1,50,581.00 by cheque No.425169 drawn on Oriental Bank of Commerce on account of the rebate of 138510 calls in terms of the award - Since the award has been implemented, the question of setting aside the award did not arise. He further-alleged that the petitioner had not sent any bill for about one year after the installation of the telephone despite repeated requests for it by the respondent. On his complaint the petitioner supplied the bill for Rs.24,395.00 taking the average of the calls made by him but later on the entire bill was revived and Illegal demand was made.