1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 81 OF 2009 Mahanagar Telephone Nigam Ltd. Through the Assistant General Manager (North), Wadala Telephone Exchange Building, Wadala, Mumbai 400 014. ...Petitioner. Vs. Abdul Rahim Mohamed Yasin 233, Ground Floor, Bunder Building, Dongree, Mumbai 400 009. ...Respondent. Mr. S.R. Rajguru for the Petitioner. Mr. ALN Khatri for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 25th SEPTEMBER, 2009. ORAL JUDGMENT- 1 The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Act) and challenged the award dated 10/05/2008 passed by the sole arbitrator which is concluded as under:- “5 CONCLUSION: Taking into consideration, the above mentioned points and statements of claimant, submission of respondent’s reply, 2 affidavit and considering facts and figures enlightened by both the parties, the Arbitrator decided to give benefit of doubt to the respondent/ Plaintiff (Abdul Rahim Mohd. Yasin) because the Claimant (MTNL) have failed to prove without reasonable doubt that the disputed telephone at the relevant time was installed and/or functioning from the suit premises belonging to the respondent. The Claimant had not submitted any Bonafide verification of Telephone No: 3092133 at the “suit premises”. The Respondent denied for the use of telephone no.: 3092133 in support of that he submitted the affidavit. Further, the Claimant failed and neglected to initiate legal action for recovery of arrears against the subscriber Mr. Ansari Mohamed Yusuf of the said telephone 3072133. Hence, by considering all these points, hearings, as well as taking into consideration rules of Natural Justice, the Arbitrator issues following award:- AWARD 1. The claimant MTNL’S claim dated 15.3.2002 for recovery of Rs.1,09,042/- being arrears of four bills in respect of disputed telephone numbers 3092133 against the Respondent Mr. Abdul Rahim Mohammed Yasin is hereby rejected and dismissed. 2. The AOTR notice dated 22-10-96 is not maintainable. 3. No other relief granted. 4. In circumstances of the case, the party shall bear their own cost and expenses.” 2 Admittedly, respondent No.1 was not a telephone subscriber. The telephone was never transferred in his name at any point of time. Admittedly, the petitioner initiated recovery proceedings against the original subscriber, one Mr. Ansari Mohammed Yusuf, but not proceeded, in fact, not initiated legal proceedings against him of the telephone No.3092133. The Petitioner is the telephone Department (Mahanagar Telephone Nigam Ltd. (for short, MTNL) and provides telephone service 3 and other related facilities to the subscriber. The word “subscriber” defined as under:- “ ‘Subscriber’ means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement.” 3 The responsibility of a subscriber to pay bill and the consequences of default of payments are provided in Rules 440 and 443 of the Indian Telephone Rules, 1951. “Rule 440- Responsibility of subscriber to pay bills-(1) Save as provided in sub-rules (2) and (3), a subscriber shall be personally responsible for all calls (local and trunk) made and phonograms sent for onward transmission from his telephone and for the payment of call charges thereof. (2) For collect calls and reversed charge calls the charge shall be payable by the called subscriber. In case the called subscriber on a collect call does not agree to pay the charges the call will not be set up but an appropriate charge to cover the work done by the exchange shall be payable by the subscriber from whose telephone the call was booked or by the person who booked the call from a public call office. (3) For calls made with credit card facility the charge shall be payable by the subscriber in whose name the credit card has been issued and whose telephone number has been specified in the credit card for debiting the charges. 443. 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 or any telex service rented by him may be disconnected without notice. The telephone or telephones or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays 4 the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex 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 Telegraph Authority from time to time.” 4 The above rules are in no way against the Respondent, to demand and or to take action in view of the alleged defaults in making payment of telephone charges/ bills. 5 The learned counsel appearing for the Petitioner, has strongly relied on Surjit Singh Vs. Mahanagar Telephone Nigam Ltd., (2008) 5 M.L.J. 106 (S.C.) and contended that the word “subscriber” need to be interpreted by giving purposive construction and it should be expanded to the extent of covering the person like the Respondent, so that, they can recover the telephone bills from the person, who is in the result, or without any permission uses the telephone but failed to make the due payments/ subscription/ charges. 6 I am not inclined to accept the said submission even the Supreme Court Judgment and as sought to be contended, the plain reading of the words “the rules” and the meaning and the definition of the “subscriber” is nowhere provides and or cover a third person like the respondent, against whom the petitioner can raise bills and demand the charges, though he is not subscriber and or defaulter as contemplated under the Rules. 5 7 In Surjit Singh (Supra) the facts are totally different. Those are reproduced as under- “22. In the case of a wife who is a housewife and is economically dependent on her husband, obviously the telephone bills in connection with the line in her name are being paid by her husband and not by herself. Hence, we have to adopt a purposive construction in this case and not go by the literal rule of interpretation.” “28. In our opinion, in the present case, we have to adopt the Lakshana (or Linga) rule of interpretation rather than the Shruti or Abidha (the literal) rule. In other words, Rule 443 of the Indian Telegraph Rule has to be interpreted in a purposive sense. Hence the telephone line in the name of the person who is really paying the bills in connection with the telephone line in the name of another person who is economically dependent on the former can be disconnected for non payment of bills in connection with the telephone line in the name of the latter. Such an interpretation would effectuate the intention of Rule 443, which is that telephone bills should be paid promptly.” “29. Also, it would make no difference whether the telephone line is at the residence or at the business premises, even if the two are entirely separate. Hence, in our opinion both the telephone lines in the name of the appellant, one at his residence and the other at his business premises, can be disconnected for non-payment of the dues in connection with the line in the name of his dependent wife. “ 8 The factual position is totally different in the present case, as recorded above. The respondent is an independent third person. He has no relation whatsoever with the subscriber. He is not even economically dependent of the recorded subscriber. The definition clause of subscriber, as well as, the rule so reproduced above, no way covers the case and 6 empowered the petitioner to demand such telephone bills from the third person, who is not a subscriber. In view of above, in the present facts and circumstances, the submission so raised has no force. It is rejected. 9 Resultantly, the award which is well within the framework of law and there is no perversity and as the view so taken is a possible view on facts and as there is no illegality, the petition is, therefore, dismissed. The rule discharged. No order as to costs. (ANOOP V. MOHTA, J.)