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2017 DIGILAW 1292 (ORI)

Amita Acharya v. Tata Tele Services Limited

2017-11-10

VINEET SARAN

body2017
JUDGMENT Vineet Saran, C.J. - The petitioner entered into a franchise agreement with opposite party-Tata Tele Services Limited (for short, 'TTSL') on 29.12.2006, which is admittedly still in force. The dispute arose with regard to nonpayment of the rent and franchisee fees to the petitioner. The petitioner thus sent notice dated 16.08.2016 to the opposite party for appointment of an Arbitrator under Article 19 of the agreement, which reads as under: "19.1: Without prejudice to the provision hereof, in the event of any dispute, difference, conflict or question arising between the parties hereto relating to or concerning or arising out of this agreement, the same shall be referred to the sole arbitration of the person as nominated by both parties whose decision shall be final and binding on the parties. 19.2 Parties shall be governed by the Arbitration and Conciliation Act, 1996 and the arbitration proceedings shall be held in Bhubaneswar. The Arbitrator shall have summary powers and he shall not be bound to give any reasons for his holdings." 2. Since no reply to the said notice was received by the petitioner, she has filed this Arbitration petition praying for appointment of an Arbitrator. 3. Though the opposite party has put in appearance, but learned counsel for the opposite party states that the opposite party does not wish to file any counter affidavit, which submission has also been recorded in the order dated 03.11.2017. As such, from the record it is clear that the opposite party has neither given its reply to the notice issued by the petitioner for appointment of Arbitrator nor has filed any counter affidavit. 4. Heard Shri K.A. Guru, learned counsel for the petitioner and Shri S.K. Mohanty, learned counsel for the opposite party and perused the record. 5. The fact that the petitioner and the opposite party had entered into the franchisee agreement dated 29.12.2006 whereby the opposite party had appointed the petitioner as franchisee, is not in dispute. Article 19 of the agreement, as quoted above, relates to appointment of an Arbitrator. 6. 5. The fact that the petitioner and the opposite party had entered into the franchisee agreement dated 29.12.2006 whereby the opposite party had appointed the petitioner as franchisee, is not in dispute. Article 19 of the agreement, as quoted above, relates to appointment of an Arbitrator. 6. Learned counsel for the petitioner has submitted that in view of the fact that there is a dispute between the parties and the agreement provides for resolution of dispute by way of arbitration, and, the when the opposite party has not responded to the notice for appointment of Arbitrator, this Court may now appoint an Arbitrator for resolution of the dispute. 7. Learned counsel for the opposite party has contended that in view of section 14 of the Telecom Regulatory Authority Of India Act, 1997 (hereinafter referred to as "the TRAI Act, 1997"), the Telecom Dispute Settlement and Appellate Tribunal would be the appropriate authority to decide the dispute and appointment of an Arbitrator would not be appropriate in the facts and circumstances of the present case. 8. A bare perusal of Section 14 of the TRAI Act, 1997 would make it clear that the Telecom Dispute Settlement and Appellate Tribunal has been constituted to adjudicate any dispute between the licenser and the licensee, or between two or more service providers. 9. According to the learned counsel for the opposite parties, the present case should be treated as a dispute between the licenser and the licensee as, in fact, the petitioner is a licensee of the opposite party. 10. Admittedly, the opposite party-TTSL has been granted licence by the Department of Telecommunication and thereafter it has appointed the petitioner as its franchisee for promotion of telecom services to be provided by the opposite party. The heading of the agreement describes it to be a "Franchise Agreement" and in the body of the agreement also petitioner has been described as 'franchisee' and not licensee. 11. Considering the nature of the agreement between the parties, which has been filed as Annexure-1 to this petition, I am of the opinion that the same cannot be treated as an agreement between the licenser and the licensee, and the same is only an agreement between the licensee and the franchisee, which would not be covered under the provisions of Section 14 of the TRAI Act, 1997. 12. 12. Learned counsel for the opposite party relied on a decision dated 02.08.2016 of the Delhi High Court dated rendered in Arb. P. 129 of 2016 (Gaur Distributors vs. Hathway Cable & Datacom Ltd.). 13. Having gone through the aforesaid judgment, I am of the opinion that the facts of the said case are distinct from those of the present case. The case before the Delhi High Court was admittedly between the two service providers, and thus was covered under Section 14(a)(ii) of the TRAI Act, 1997. As such, the ratio of the said judgment would not be applicable to the facts of the present case, where the agreement is neither between the licensee and licenser, nor between two service providers. 14. In view of the aforesaid facts, the objection raised by learned counsel for the opposite party is without merit and is thus rejected. 15. In view of the fact that under Article 19 of the Agreement any dispute between the petitioner and the opposite party is to be resolved through arbitration, for which notice was given and the opposite party did not give any response and, in view of the fact that this Court has already held here-in-above that the matter is to be resolved through arbitration and would not be covered under the provisions of the TRAI Act, 1997, I am of the opinion that the matter should be referred to an Arbitrator. 16. Accordingly, with consent of learned counsel for the parties, this Court appoints Shri Subhasish Patnaik, learned Advocate, as the sole Arbitrator to resolve the dispute between the parties. The venue of the arbitration shall be at the High Court of Orissa Arbitration Centre, Cuttack/Bhubaneswar and the proceeding shall be conducted by the learned Arbitrator as per the High Court of Orissa Arbitration Centre (Arbitration Proceedings) Rules, 2014. 17. The fees of the learned Arbitrator shall be as per the Fourth Schedule of the Arbitration and Conciliation (Amendment) Act, 2015. It shall be open to the parties to raise all such pleas as are available to them in law before the learned Arbitrator, who shall consider the same on its own merit and in accordance with law. 18. The ARBP is, accordingly, disposed of. 19. Urgent certified copy of this order be granted on proper application. 20. This order be communicated to Shri Subhasish Patnaik, learned Advocate, forthwith.