Shyam Telelink Ltd vs Union Of India

5. Commercial operations in Rajasthan were finally started by the appellant-company on 5th June 2000. In March 2001 a demand was raised by the respondent for payment of a 5 further amount of Rs.70 lakhs as liquidated damages for the delay in the commissioning of the service. Aggrieved by the demand of Rs.8 crores towards liquidated damages out of which the appellant had already paid Rs.7.30 crores on 16th August, 1999 the appellant approached the Tribunal for redress. As mentioned earlier the appellant's case before the Tribunal was that it was ready to commence commercial operations in the last week of February 1999 and had sought permission to do so from the respondent which permission was in an arbitrary, illegal and discriminatory manner refused by the respondent. Recovery of the liquidated damages was, therefore bad, argued the appellant who demanded refund of the entire amount of Rs.8 crores recovered towards liquidated damages from it.

6. The respondent contested the petition before the Tribunal, inter alia, on the ground that the petitioner- appellant was not entitled to question any demand arising out of the agreement executed between the parties after it had unconditionally accepted the Migration Package under 6 which it agreed to deposit without demur the outstanding licence fee as also the liquidated damages payable under the licence agreement. The respondent also asserted that the appellant was not ready with the commissioning of the service as was evident from the admissions made in several communications sent by it to the respondent. It was further pointed out by the respondent that the computation of actual liquidated damages could be undertaken only after the appellant had commenced commercial operations. The actual charges after such computation were according to the respondent determined at Rs.29.86 crores but the demand was restricted to Rs.8 crores in terms of the explicit limitation prescribed under the licence. An amount of Rs.7.3 crores having already been paid under the Migration Package, a demand for payment of Rs.70 lakhs only was raised by the respondent. It was also asserted by the respondent that the appellant had not disputed calculation of the amount of Rs.7.3 crores as liquidated damages for non- commissioning of the service at the time of Migration 7 Package and paid the same with other dues. Having done so, the Migration Package which contained a specific stipulation that the acceptance of the package "will be deemed as a full and final settlement of all existing disputes whatsoever irrespective of whether they are related to the present package or not" could not be questioned by the petitioner-appellant. The respondent also raised the question of limitation and assailed the maintainability of the petition on that ground. By its order dated 9th April, 2003 impugned in this appeal the Tribunal dismissed the petition filed by the appellant aggrieved whereof the appellant has filed C.A. No.7236 of 2003 before this Court.

18. For the reasons set out by us hereinabove, we have no hesitation in holding that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same.

19. In the result this appeal fails and is hereby dismissed but in the circumstances without any order as to costs.