CREATIVE ENTREPRENEURS Vs. MAHANAGAR TELEPHONE NIGAM LTD

JUDGEMENT

(1.) The question, of some complexity, that arises in these Petitions is whether the Respondent/MTNL is empowered or justified in making payments to the Petitioners at the rate of Rs.230/- per meter of trenchless cables installed by the Petitioners. It is not in dispute that the rate initially agreed upon was Rs.412/- per meter. Although payments have been released by MTNL to the Petitioners at the latter rate, MTNL has threatened to effect recoveries for the differential amounts from other pending bills. However, there are stipulations in subsequent contracts broadly to the effect that during the extended period the lower of the two rates viz. - (a) at the current approved rate or (b) approved rates of new tender going to be opened shortly will be applicable. The critical date is stated to be 30.12.2002 on which date the Techno Commercial Bids were opened and considered. Mr. Sanghi, learned counsel for the Petitioner states that with regard to the Work Orders placed on the Petitioners after 30.12.2002 the Respondent may, for the present, make payments at the rate of Rs.230/- per meter, subject to adjudication in arbitral proceedings.

(2.) The stand of the Respondents, however, is that since the Petitioners had been put to notice that the lesser of the two rates would be paid to the Petitioners, in their letters dated 11.3.2002 and 17.6.2002 etc. these rates should also be applicable to Work executed after 30.12.2002, even though the Contracts/Work Orders may have been placed much earlier. The Petitions contain correspondence between the various officials of the MTNL bringing to the surface the possible disputes that may arise in the event that the MTNL were to make payments on the post 30.12.2002 rates even in respect of the Work Orders awarded earlier and which were in the process of execution. In OMP No.268/2003 the arbitration proceedings have already commenced. Mr. Sanghi states that the Petitioner in OMP No.157/2004 also intends to invoke the Arbitration Clause and shall initiate arbitration proceedings in the very near future.

(3.) Reliance has been placed by both sides on Clause 16.3 which reads as foliows:-