Moksh Mahajan, Member
1. The complainant M/s. Influence is a registered partnership firm carrying on its business from 4 and 5 Community Centre, Zamrudpur, Kailash Colony, New Delhi. The business consists of export of garments and other products. It is a subscriber of telephone connections bearing Nos. 6218236, 6218237, 6218238 and 6218239 installed at its business premises. Vide letter dated 27/30.8.1996 the complainant was asked to clear the dues of Rs. 6,55,508/- in respect of the telephone No. 6446323 provided to M/s. East-West and Co. Pvt. Ltd. failing which the telephone No. 5460606 in the name of Shri M.K. Awtaney, Director of the Company and 6851594 in the name of Shri Gautam Thadani, another Director as well as the telephones of the complainant registered firm would stand disconnected. This is stated to be for the reason that Mrs. Lavlin Thadani, Master Vedant Thadani and Master Karmanya Thadani, the partners in the registered firm are the shareholders of M/s. East-West and Co. Pvt. Ltd. The complainant requested for withdrawal of the letter on the ground that the dues of the third party could not be recovered from it and the disconnection of its telephones would be unjustified. On non-acceptance of the complainant's plea by the respondent, the complainant filed an application under Sections 36B(a)/10(a) of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) charging the respondent for unfair trade practices being adopted and indulged in by it.
2. In the reply to the Notice of Enquiry, the respondent stated the practice of disconnecting the telephone under Rule 443 of the Telephone Rules for non-payment of arrears can by no means be termed as unfair. A due notice in respect of the same was given to the complainant in view of which the payment should have been made long time back. The use of the telephone without making the payment by the complainant tantamounts to unfair trade practice on its part. Strongly relying on the decision of the Hon'ble High Court of Delhi in the case of H.C. Raghubir v. Union of India and Ors., reported in 48 (1992) Delhi Law Times 319 (DB), it is contended that the stay operating against disconnection of the telephone, should not bar the respondent from recovering the dues from the complainant.
3. The complainant also applied for temporary injunction against the disconnection of the telephone lines installed at the premises of the complainant. The Commission in its order dated 4th October, 1996 directed the respondent authority not to disconnect the telephone numbers i.e., 6218236, 6218237, 6218238 and 6218239.
After completion of the pleadings, the following issues were framed :
(1) Whether the respondent has been indulging in or has indulged in the unfair and restrictive trade practices listed in the NOE ?
(2) Whether the alleged restrictive trade practices are not prejudicial to public interest ?
(3) Whether, the alleged unfair trade practices are prejudicial to public interest, to the complainant and consumers generally ?
4. Affidavit/counter-affidavit by way of evidence along with supporting documents have been filed on both sides
5. Section 7B of the Indian Telegraph Act, 1885, read with Rule 443 of the Telephone Rules is reproduced as under :
["7-B. Arbitration of Disputes-
(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by Arbitration and shall, for the purposes of such determination, be referred to an Arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the Arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the disputes and shall not be questioned in any Court."]
6. The aforesaid section of the Indian Telegraph Act, 1985 provides for an alternative Forum for determination of the disputes relating to telephone lines, appliances or apparatus between the subscriber and the Telegraph Authority whereby the matter is to be referred to the Arbitrator.
Rule 443 of the Telephone Rules reads as under :
"Default of payment--If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones rented by him may be disconnected without notice. The telephone or telephones may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone remains disconnected) as may be prescribed by the Telegraph Authority from time-to-time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraphs Authority from time-to-time."
7. Rule 443 of Telephone Rules on the other hand entitles the Telephone Authority to disconnect the telephone of the subscriber on account of non-payment of the bills or charges in respect of calls.
8. The aforesaid section and the rule came for interpretation before the Delhi High Court in the case of H.C. Raghubir v. Union of India and Ors. (supra), wherein Their Lordships after considering the decision in case of Santokh Singh v. Divisional Engineer, Telephones, Shillong and Ors., reported in AIR 1990 Gauhati 17, held as under :
"Section 7B is very clear and unambiguous. The words "any dispute concerning any telegraph line" have to be liberally construed. A telegraph line is the line which is given to the subscriber.... the dispute may be with regard to the telephone bill or repair of any telephone line or even with regard to the disconnection thereof. The important word, to our mind, is "concerning". The dispute must concern the telegraph line.... Therefore, even if a restrictive interpretation is to be given to Section 7B, though in our opinion there is no warrant for doing so, nevertheless when on account of non-payment of bill action is proposed to be taken to disconnect the telephone then any dispute arising in respect thereto would be covered by Section 7B."
9. It has also been held that the remedy provided under Section 7B is efficacious. In this connection they have observed that :
"When a subscriber receives a bill which, according to him, is inflated and is not justified then apart from making a representation to the respondent, it is open to the subscriber to seek recourse to the arbitration under Section 7B of the Act. He can do so either by making a request to the respondent to appoint an Arbitrator or by filing an application under Section 20 of the Arbitration Act. In either of the two cases, if stay of disconnection is desired, the subscriber would have a remedy by invoking the provisions of Order 39 Rules 1 and 2, C.P.C. read with Section 41 of the Arbitration Act."
10. Making a clear distinction between the Rule 443 vis-a-vis Rules 421 and 439 of the Telephone Rules, it has been observed that :
"The said Rule 443 cannot be given a restricted meaning. It not only refers to telephone charges not being paid in accordance with the rules but it also contemplates a case where there in nonpayment of "bills for charges in respect of calls (local and trunk)...". We find it difficult to agree with the contention of the learned Counsel for the petitioner that this rule deals only with normal bills. It may be that the first part of Rule 443 may be dealing with a case of monthly or bimonthly bills which are sent by the respondents at regular intervals but even in cases where there has been an undercharge, bills have to be sent and Rule 443 would take within its ambit such bills."
11. The above discussion clearly shows that the remedy for disconnection of the telephone is available under the provisions of Section 7B of the Indian Telegraph Act.
12. Admittedly it is a registered partnership firm consisting of partners namely Shri Rajan Madhu, Mrs. Manjul Madhu and Mrs. Lavlin Thadani and her minor children -Master Vedant Thadani and Master Karmanya Thadani. It operates from 5 Community Centre, Zamrudpur, Kailash Colony, New Delhi. Mrs. Lavleen Thadani is a wife of Shri Gautam Thadani and mother of Master Vedant Thadani and Master Karmanya Thadani who are shareholders of 44% + 3% (47%) of East-West and Co. (P) Ltd. Shri Gautam Thadani on the other hand is one of the Directors of East-West and Co. (P) Ltd. Accordingly there is a nexus between the Directors of the Company as well partners of the registered firm. In the premises, the disconnection of a telephone in use by the Directors is justified. Till date the Company has not even cared to clear the bills despite the fact that the quantum of the same have not been disputed. Even otherwise too, in view of our conclusion at page 5 the complaint deserves to be dismissed.
13. In view of the above, the complaint against the respondent merits dismissal and the Notice of Enquiry deserves and is directed to be discharged. In the premises, the injunction already granted stands vacated.