Decided on March 29,2004



D.P.Wadhwa, - (1.)IN this Petition filed under Section 14(a)(i) of the Telecom Regulatory of INdia Act 1997 (for short the "Act"), the petitioner, an INternational Long Distance Operator (ILDO) is holder of licence of INternational Long Distance Service from the Department of Telecommunication in the Ministry of Communication, Government of INdia, seeks refund of Rs.8,69,24,457.36p from the Respondent, Mahanagar Telephone Nigam Limited (MTNL) being the alleged excess amount charged by MTNL for the period October 23, 2002 to December 20, 2002 under an INterconnect Agreement entered by the petitioner with MTNL. This INterconnect Agreement is for interconnecting the network of the petitioner with the network of MTNL in the service areas of Delhi and Mumbai.
(2.)The petitioner here was granted licence by the Department of Telecommunications on March 27, 2002. This was under the provisions of the Indian Telegraph Act 1885. The Interconnect Agreement with the MTNL was entered into on July 19, 2002 as it is stated that petitioner was desirous of Interconnecting its network with the network of MTNL in the service areas of MTNL which is Delhi and Mumbai. Clause 11 of the Interconnect Agreement is as under:-
"Each party agrees that the other is treated no less favourably than any of other ILDO by MTNL and any other access provider by ILDO in same service area with regard to commercial, interconnectivity and other aspects of the Interconnect Agreement."

The complaint of the petitioner is that this clause was breached by MTNL in its Interconnect Agreement with Bharti Telesonic Limited (BTSOL), another ILDO. This Interconnect Agreement with BTSOL is dated August 1, 2002 and the licence by the DOT granted to BTSOL is dated March 14, 2002. This petition came to be filed on November 25, 2003. The petitioner contended that the Interconnect Agreement between MTNL and BTSOL came to its knowledge only on February 21, 2002 in an earlier petition (Petition No.4 of 2003) filed by the petitioner against MTNL on this very Interconnect Agreement. The earlier petition was also filed in this Tribunal and it was decided on March 10, 2003 when that petition was dismissed by this Tribunal. MTNL has contended in opposition of this petition that it is barred by res judicata or principles analogous to res judicata in as much as before filing of the petition the petitioner had knowledge of the Interconnect Agreement entered by MTNL with BTSOL. MTNL has given specific date which is December 20, 2002 when it says the Interconnect Agreement of BTSOL came to the petitioner's knowledge. This fact is denied by the petitioner and it is asserted that the Interconnect Agreement of the MTNL with BTSOL came to its knowledge only after the filing of Petition No.4 of 2003 which was filed on January 8, 2003 and during the pendency of its proceedings the said Interconnect Agreement was made known to the petitioner on February 21, 2003. It is also submitted that terms of both the Interconnect Agreements i.e. that of between the petitioner and MTNL and BTSOL and MTNL are entirely different.

(3.)BEFORE we proceed further we may refer to two more clauses of the Interconnect Agreement and these are as follows:-
"Clause 6.3.2 (iii)

In case higher rates for termination and carriage are offered by another ILDO to MTNL, ILDO shall have to pay at higher rate. Similarly, if MTNL contracts lower rates for termination and carriage with another ILDO, such lower rates shall apply with ILDO also. On the same lines, if ILDO offers higher charge to another BSO/CMSP or NLDO, the same shall apply to MTNL as well. These revised rates for termination shall apply to MTNL as well. These revised rates for termination shall apply from the date they are applied for another carrier, under the identical terms and conditions.

Clause 6.3.2 (iv)

Minimum monthly guaranteed (I/C) traffic: ILDO shall guarantee MTNL 20 million minutes on send or pay basis except for the initial 3 months of the date of start of service where the minimum guaranteed traffic condition would not apply."

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