Page 1 of 12
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
DATED 03RD MAY, 2012
Petition No.75 of 2012
(M.A. No.112 of 2012)
Reliance Infratel Ltd. … Petitioner
Vs.
Etisalat DB Telecom Pvt. Ltd. … Respondent
Petition No.76 of 2012
(M.A. No.113 of 2012)
Reliance Communications Ltd. … Petitioner
Vs.
Etisalat DB Telecom Pvt. Ltd. … Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON
HON’BLE MR.P.K. RASTOGI, MEMBER
For Petitioner : Mr.Ramji Srinivasan, Sr. Advocate
Mr. Tushad Cooper, Sr. Advocate
Ms. Yamini Roy, Advocate
For Respondent : Mr. H.S. Chandoke, Advocate
Mr. Ashish Prasad, Advocate
Page 2 of 12
O R D E R
Applicability of the doctrine of ‘Amity or Comity’ is the issue involved in
these matters.
2. Petitioners are licensees under Section 4 of the Indian Telegraph Act,
1885. Respondents are also licensees operating in different circles.
Petitioners provide for passive infrastructure to the Respondents herein.
They entered into several agreements in this behalf.
Inter-alia on the premise that the Respondent owes a huge sum of means
to the Petitioners herein, these petitions have been filed.
Several interim prayers have been made in the petition being :-
(i) a direction to the Respondent to secure the outstanding of over
Rs.1270.45 crore as on 31.01.2012 by way of deposit in Court
and/or attachment of the equipments of the Respondent;
(ii) a direction to the Respondent to secure the outstanding
amount of Rs.1270.45 crore as on 31.01.2012, restraining the
Respondent from in any manner dealing with/disposing off or
parting with possession, alienating, transferring or selling or
encumbering or creating third party rights or charge on any of
the assets and movable or immovable properties, advances,
loans etc. of the Respondent or on any part thereof;Page 3 of 12
(iii) attachment of all the movable and immovable properties of the
Respondent including but not limited to bank accounts/
machineries/equipments;
(iv) pending the hearing and final disposal of the Petition appoint
a competent person as receiver in respect of all the assets
both movable and immovable, and affairs of the Respondent;
(v) restrain the Respondent from interfering with the Petitioner‟s
possession and control of the existing sites including in
respect of the equipment installed by Respondent;
(vi) Petitioner shall be permitted to have lien on the Respondent‟s
equipments;
(vii) The Respondent be directed to disclose and/or furnish
information to the Petitioner of all its assets both movable and
immovable as also receivables.”
3. Respondent herein filed a short reply in respect of the said interim prayer
made by the Petitioner, wherein jurisdiction of this Tribunal was questioned.
4. By an order dated 10.04.2012, this Tribunal held that it has jurisdiction
to decide the issues between the parties. However, no ad-interim order was
passed in favour of the Petitioner as it had been brought to the notice of this
Tribunal that the Delhi High Court, while considering an application filed by Page 4 of 12
Viom Networks Ltd. had restrained the Respondent from transferring its
properties.
Respondent, however, has brought to our notice two other proceedings,
which have been initiated in the meantime.
Standard Chartered Bank has filed an application before the Debt
Recovery Tribunal at Mumbai and by an order dated 16.4.2012, it was
directed:-
“After hearing the Counsel for the Applicant and considering the
veracity of the matter, but without going into the merits of the main
O.A., the interim order is being passed against the Defendant,
allowing prayer 9 (b), (d), and (e). In the mean time, Mr. A. K. Singh,
Advocate, is hereby directed to appoint Advocate Commissioner/
Receiver by this Tribunal to take necessary inventory of the
hypothecated goods and as well as assets, belonging to Defendant
company in all the addresses/places which shall be provided by the
Applicant Bank. The Advocate Commissioner/Receiver is also
hereby directed to take possession of the invented hypothecated
goods and other assets belonging to Defendant company and keep
them under safe custody by appointment of necessary security
personnels to protect the same.
The Registrar I/c. of this Tribunal is hereby directed to issue
necessary Warrant of Appointment to Mr. A. K. Singh, Advocate,
within two days from today. A sum of Rs.30,000/- is fixed as initial
remuneration payable to the Advocate Commissioner/Receiver by
the Applicant Bank. The Advocate Commissioner/Receiver is hereby
directed to submit Status Report within four weeks from today.Page 5 of 12
In the mean time, in view of the aforesaid order passed by
this Tribunal, the Applicant Bank is hereby directed to give
necessary details of addresses/places wherein the Defendant
company keeping all its hypothecated goods and other assets
charged to the Applicant Bank within a week‟s time from today.
Further, under the principles of natural justice, one more fresh notice
is hereby directed to be served upon the Defendant company by the
Applicant Bank and file proof of service when the matter shall be
taken up for further proceedings.”
5. It has further been placed on record that the said order has been
modified to the following effect :-
“i) Para No.2, (6th
line from the bottom) the word “unsecured”
shall be replaced with “secured” and the word “no security”
shall be replaced with “insufficient”;
ii) Para No.3 (5th
line from the top) the phrase „and the employees
were terminated‟ shall be replaced with “employees have left
the company”;
iii) Para No.3 (last line from the bottom) the word “unsecured”
shall be replaced with “secured” and the last line on that page
and first line on next page should read as “that the loan is a
secured one, but the Defendant is likely to remove”;
(iv) Para No.4 (4th
line from the bottom) after the Phrase „allowing
prayer 9(b), (d) and (e)‟ should be replaced with “allowing
prayer 10(b), (c) and (d) of the Interim application”;Page 6 of 12
(v) Para No.4 (last line from the bottom) needs to read as “Mr. A.
K. Singh, Advocate is directed to be appointed as Advocate
Commissioner/Receiver”.”
6. An application for winding up has also been filed by Etisalat Mauritius
Ltd. against the Respondent herein.
Kathawalla, J. of Bombay High Court in Company Petition No. 114 of
2012 passed the following order on 28.3.2012 :-
“Since the Winding up Petition is already filed, the Company seeks
permission of the Court to disburse the salaries of its employees in
the sum of approximately Rs.9.00 Crores. The learned Advocates
appearing for the Parties have no objection if the Company is
allowed to pay the salaries of its employees for the month of March
2012. In view thereof, the Company is granted permission to
disburse the salaries for the month of March 2012 to its employees
which is approximately in the sum of Rs.9.00 Crores.”
7. We are informed that pursuant to and in furtherance of the said
directions, various creditors including the Petitioners herein had filed their
claims before the learned Company Judge.
In its order dated 11.04.2012, it was noticed :-Page 7 of 12
“Today several creditors of the Company have appeared before this
Court and have claimed that the Company owes them various
amounts ranging from Rs.60 Lacs to Rs.1,500 Crores. The Company
Petition is placed for admission on 18th April 2012. In the meantime,
the creditors/claimants shall, on or before 16th April 2012, file their
respective Affidavits before this Court setting out the particulars of
their claim against the Company along with documents in support
thereof and shall serve the same on the Advocates for the Parties.
Until further Orders, the Company shall not make any payments to
any of the creditors/claimants of the Company without obtaining
prior permission of this Court. This Order is passed without
prejudice to the rights and contentions of the Parties.”
8. The interim order passed by the learned Company Judge is only to the
effect that the Respondent herein has been prohibited from paying any amount
to its creditors.
9. Mr. Ramji Srinivasan, learned senior counsel appearing on behalf of the
Petitioner would contend that there is no bar for this Tribunal to pass an
interim order so as to secure the interest of the Petitioner.Page 8 of 12
10. The Supreme Court of India in Centre for Public Interest Litigation Vs.
Union of India reported in (2012) 3 SCC 1 directed cancellation of the licences
held by the Petitioner. However, so as not to put the customers to any
disadvantage, the Petitioners have been permitted to carry out their operations
till 30.6.2012, which has since been extended to 31.8.2012.
11. Respondent has many creditors. Different creditors, as indicated
heretobefore, have approached different forums. Some interim orders have also
been passed in those proceedings.
12. Mr. Chandoke appearing for the Respondent would contend that keeping
in view the order passed by the Debts Recovery Tribunal at Bombay appointing
a Receiver/Advocate Commissioner, who not only has been directed to take
possession of all assets of the Respondent but also take adequate security
measures to protect such properties, o other or further interim order need be
passed in these proceedings.Page 9 of 12
13. Before us, leaned counsel for the Standard Chartered Bank has also
appeared, although so far it has neither been impleaded as a party nor has it
been allowed to intervene in the matter.
14. Keeping in view the order of this Tribunal that it has jurisdiction to
determine the disputes between the parties, there cannot be any doubt or
dispute that it has also the jurisdiction to pass interim orders.
Interim orders are inter-alia passed for the purpose of protecting the
subject matter of the dispute.
Petitioner cannot be put to any disadvantage only because other
creditors of the Respondent have approached the other forums.
While, however, saying so, we are not unmindful of the doctrine of Amity
or Comity.
In Prabhjot Singh Mand & Ors. Vs. Bhagwant Singh & Ors. reported in
(2009) 9 SCC 435, the law is stated in the following terms :-
“This Court in India Household and Healthcare Ltd. vs. LG
Household and Healthcare Ltd [(2007) 5 SCC 510] noticed:
17. This aspect of the matter has been considered in A
Treatise on the Law Governing Injunctions by Spelling and
Lewis wherein it is stated:Page 10 of 12
Section 8. Conflict and loss of jurisdiction. --Where a
court having general jurisdiction and having acquired
jurisdiction of the subject- matter has issued an injunction, a
court of concurrent jurisdiction will usually refuse to interfere
by issuance of a second injunction. There is no established
rule of exclusion which would deprive a court of jurisdiction to
issue an injunction because of the issuance of an injunction
between the same parties appertaining to the same subjectmatter, but there is what may properly be termed a judicial
comity on the subject. And even where it is a case of one court
having refused to grant an injunction, while such refusal does
not exclude another coordinate court or Judge from
jurisdiction, yet the granting of the injunction by a second
Judge may lead to complications and retaliatory action....”
xxx xxx xxx
19. A court while exercising its judicial function would
ordinarily not pass an order which would make one of the
parties to the lis violate a lawful order passed by another
court.”
See also Tamilnad Mercantile Bank Shareholders Welfare
Association Vs. S.C. Sekar & Ors. reported in (2009) 2 SCC 784 and
Shankar Cooperative Housing Ltd. Vs. M. Prabhakar & Ors. reported
in (2011) 5 SCC 607).Page 11 of 12
15. The doctrine of Amity or Comity would apply in a case where conflicting
interim orders are passed.
While passing an interim order in favour of the Petitioner, if due care is
taken of the other orders passed by the Debts Recovery Tribunal and/or the
High Courts of Delhi and Bombay, we are of the opinion that the said doctrine
shall not be breached.
16. In a situation of this nature, we are of the opinion that interest of justice
will be sub-served if in respect of the equipments of the Respondent, which are
in possession and control of the Petitioner in terms of the agreement, it is
restrained from interfering with the possession and/or transferring the said
equipments which are not hypothecated to the bank and have been in
possession and control of the Petitioners, and furthermore, it is restrained from
disturbing the possession of the Petitioner with regard thereto.
17. There cannot be any doubt or dispute that even in the event the Receiver
takes possession of the said equipments in terms of the order passed by Debts
Recovery Tribunal, keeping in view the fact that the equipments belonging to
the Respondent and are installed in the ‘towers’ belonging to the PetitionerPage 12 of 12
which are under its possession, it must give access to the Receiver with regard
thereto.
18. Liberty is granted to the Petitioner, which even is otherwise available to
it, to file an appropriate application(s) before the learned Company Judge as
also before Debts Recovery Tribunal.
Respondent, furthermore, is directed to bring to the notice of this
Tribunal if the orders of the Hon’ble Delhi and Bombay High Court and the
Hon’ble Debts Recovery Tribunal are in any way varied, modified or rescinded.
19. The hearing of this petition, however, shall be expedited.
..……….......
(S.B. Sinha)
Chairperson
……………….
(P.K. Rastogi)
Member
rkc
