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2001 DIGILAW 548 (PNJ)

HFCL Infotel Ltd. v. V. V. Telecom

2001-05-16

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - M/s. V.V. Telecom Ltd. filed a suit for permanent injunction restraining M/s. HFCL Infotel Ltd. from issuing any press release, statements, advertisement or convey or communicate to the general public at large that it has been granted uncircumscribed rights to provide basic telephone services along with limited mobility. It also prayed for issuance of a mandatory injunction directing the defendant to disclose prominently and boldly in all the press release, communications, advertisements or any other method or mode by which the defendant may seek to solicit the subscribes that the services are provisional as per the order dated 29.1.2001 by the TDSAT; and to provide a clause in the agreement to be entered into by it with the subscribes that the services are provisional and subject to the decision of TRAI in petition No. 1 of 2001 and in the event the licences are revoked, the subscribes shall be entitled to refund along with costs. 2. An application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was also filed by the plaintiff alongwith the suit seeking interim directions and the learned Civil Judge (Jr. Division) Jalandhar vide his impugned order dated February 15, 2001 disposed of the application restraining the defendant from issuing the press statements or advertisements soliciting business from the general public for providing fixed service with limited mobility without disclosing the true contents, effect or impact, direct or indirect of the order dated 29.1.2001 issued by TDSAT boldly and prominently. Notice to the defendant was issued for February 24, 2001. 3. The defendant-petitioner aggrieved by the order dated February 15, 2001 has invoked the extra-ordinary jurisdiction of this Court by filing the present revision under Section 227 of the Constitution of India to assail the order on the ground that the jurisdiction of the Civil Court is specifically barred under Section 15 of the Telecom Regulatory Authority of India Act, 1997 (in short the Act). 4. I have heard Sh. H.L. Sibal, Senior Advocate assisted by Mr. Bhatia learned counsel for the petitioner and Shri. M.L. Sarin, Senior Advocate, learned counsel for the respondent. 5. Mr. 4. I have heard Sh. H.L. Sibal, Senior Advocate assisted by Mr. Bhatia learned counsel for the petitioner and Shri. M.L. Sarin, Senior Advocate, learned counsel for the respondent. 5. Mr. Sibal, learned counsel for the petitioner contended that the petitioner is public limited company having a licence to provide basic telecom services in the State of Punjab issued by the Department of Telecommunications, Ministry of Communications, Government of India (hereinafter referred to as As(DOT). The plaintiff-respondent is an agent Cellular Mobile Service Operators (CMSOs) and provide business of mobile telephone services. The As DOT has been providing licences to various companies to provide inter alia cellular, basic and radio paging services in various cities and circles in India. The petitioner has a licence to provided basic telephone services in the State of Punjab. In January, 2001, the AS Dot announced that a meeting of Telephone Commission would be held on January 25, 2001 to consider the recommendations of TRAI. On January 24, 2001, i.e. a day before the DoT was to meet to consider the recommendations of TRAI, the CMSo filed a petition before the Telecom Disputes Settlement and Appellate Tribunal (hereinafter referred to as TDSAT), a quasi-judicial authority set up the TRAI Act, challenging the recommendations of the TRAI and seeking urgent relief against the DoT for acting against the said recommendations. The ad interim relief was also sought against BSOs (without even impleading them as a party, to the proceedings) restraining them from providing limited Will mobility to their subscribers. On January 24, 2001, the TDSAT, after hearing the COAI, adjourned the matter to January 29, 2001 in order to enable the Union of India to address the Tribunal. The TDSAT specifically refused to grant any ad interim injunction in the matter. On January 25, 2001, the DoT adopted the recommendation of the TRAI and permitted BSOs to offer limited Will mobility to their subscribes. On 27th January, 2001, the DoT announced fresh guidelines on the basis of which future licences for provision of basis telephone services would be granted by the DoT. Since the entire controversy with regard to the provision of limited mobility was pending before TDSAT, therefore, no Civil Court has jurisdiction to entertain any suit or proceeding in respect of any matter under Section 15 of the TRAI Act. Section 15 of the TRAI, Act reads as under :- "15. Since the entire controversy with regard to the provision of limited mobility was pending before TDSAT, therefore, no Civil Court has jurisdiction to entertain any suit or proceeding in respect of any matter under Section 15 of the TRAI Act. Section 15 of the TRAI, Act reads as under :- "15. Civil Court not to have jurisdiction. No Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any manner which the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred or under this Act." 6. Mr. Sibal, learned counsel for the petitioner by way of making reference to Section 15 of TRAI Act which bars the jurisdiction of a Civil Court to entertain any suit or proceedings, further contended that if at all the plaintiff was aggrieved by the order, as it pertains to alleged misleading and undue advertisements allegedly made by the petitioner, the proper remedy available to him or to the consumers is to resort to the MRTP Commission constituted under the provisions of MRTP Act, 1969. Thus, the proceedings before the trial Court are not maintainable and the interim injunction passed by it is without jurisdiction. 7. Mr. Sarin, learned counsel for the respondent, on the other hand, contended that the provisions of Article 227 of the Constitution of India cannot be invoked by the petitioner as equal efficacious remedy was available to the petitioner to challenge the order passed by the trial Court by way of filing appeal to the first Appellate Court or by way of an application for setting aside the ex parte ad interim injunction. 8. There is no dispute to the proposition of law that an order passed under Order 39, Rules 1 and 2 Civil Procedure Code, ex parte, proceedings are required to be set aside or varied by way of filing an application for setting aside the ex parte order or by way of appeal before as is required under Order 39, Rules 4 Civil Procedure Code. Rule 4 of Order 39 empowers the Court to discharge, vary or set aside the temporary injunction against any party during the pendency of the suit. The Court can vacate the ex parte injunction after recording reasons thereof. Rule 4 of Order 39 empowers the Court to discharge, vary or set aside the temporary injunction against any party during the pendency of the suit. The Court can vacate the ex parte injunction after recording reasons thereof. It is equally well-settled that where it is found that the subordinate Court or a Tribunal has acted beyond its jurisdiction, such action necessarily results in injustice. 9. In the given case in hand, the grievance of the petitioner is that the trial Court has exceed the jurisdiction vested in it by entertaining the suit which is specifically barred under Section 15 of the TRAI Act. In such a situation, I am of the view that the revision petition by way of invoking the extra-ordinary jurisdiction under Article 227 of the Constitution of India cannot be curtailed on the ground that it does not lie against the impugned order. Anyhow, as it would be appropriate to probe into the matter whether the Civil Court has got jurisdiction to entertain the suit or not, this point should be left open to the trial Court and the petitioner who has got an alternative remedy, may approach the trial Court for setting aside the ex parte interim order. In Industrial Credit and Investment Corporation of India Ltd. v. GIRAPCO Industries Ltd. and others, (1999)4 SCC 710, the challenge was to the ex parte order granting ad interim injunction, passed by the Tribunal. It was held that instead of merely staying the ex parte order of the Tribunal, the High Court could have remanded the matter to the Tribunal to take a decision expeditiously while at the same time continuing the interim order in a modified form or otherwise. Since the circumstances of the case certainly so warranted. 10. On the point of issuing ex parte order the observations made by the Apex Court as contained in para 15 are reproduced as under :- "When the Tribunal issued the ex parte order, it granted 15 days time to the respondents to show cause. Instead of merely setting aside the order, the High Court could have remanded the matter to the Tribunal to take a decision expeditiously while, at the same time, continuing the interim order in a modified from or otherwise, since the circumstances of the case certainly so warranted. Instead of merely setting aside the order, the High Court could have remanded the matter to the Tribunal to take a decision expeditiously while, at the same time, continuing the interim order in a modified from or otherwise, since the circumstances of the case certainly so warranted. At this point of time, the stage of the proceedings before the Tribunal is not known to the Supreme Court. It is not known if there is any interim order passed by the Tribunal after the High Court stayed the operation of the ex parte order. The object with which the Tribunal passed the ex parte order appears now to have been lost. The Supreme Court would not, therefore, interfere with the impugned judgment of the High Court setting aside the order of the Tribunal. But that is only because of passage of time and without the Supreme Court knowing the stage of proceedings before the Tribunal on the application filed by ICICI under Section 19(1) of the Act. It will, however, be open to the Tribunal to pass an interim order on the plea of ICICI if the matter is still pending before it." 11. Considering the facts that ex parte interim injunction was against the petitioner by the trial Court vide the impugned order and that the petitioner has straightaway filed this revision under Article 227 of the Constitution of India, therefore, it is considered appropriate that he should first avail the remedy available to him under Order 39, Rule 4 of the Code. In case the impugned order is set aside, it may, result into failure of justice as it would amount to giving a finding without going into the merits of the suit, particularly when the entire material is not brought before this Court, on the basis of which the injunction has been sought and also on the basis of the impugned order is sought to be set aside. 12. With the above observations, this revision is disposed of. Parties through their counsel are directed to appear before the trial Court on 5.6.2001. 13. Till then, the interim order already issued by this Court on February 20, 2001 shall enure. Order accordingly.