CoramThe Honourable Mr v. The Arbitrator

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 23-1-2007CoramThe Honourable Mr.Justice P.SATHASIVAMandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.A.No.1061 of 2002V.N.Damani...Appellant[Petitioner].Vs.1.The Arbitrator,Divisional Engineer,(ESP-1), Chennai Telephones,No.7, Kush Kumar Road,Chennai - 600 036.2.The Deputy General Manger,North East,Chennai Telephones,Chennai....Respondents[Respondents]This Writ Appeal has been filed under Clause 15 of Letters Patentagainst the order of the learned single Judge in W.P.No.11386 of 1999dated 1.3.2002 WP.No.11386/1999: Petition presented under Article 226 of the Constitutionof India, praying to issue a Writ of Certiorarified Mandamus calling forthe records relating to Arbitration No.Arb/Esp/2/1999-2000 dt. 11.5.1999on the file of the Arbitrator, Divisional Engineer [Esp-1] ChennaiTelephones [the 1st respondent herein] and to quash the same and forbearthe Deputy General Manager[North East] Chennai Telephones Chennai, the[Second Respondent herein] from demanding the petitioner herein] fromdemanding the petitioner to pay the Bill dated 7.2.1990 in respect of theTelephone No.585678[Old No.30678]For Appellant:Mr.S.SubbiahFor Respondents:Mr.Badrinathanfor Mr.P.WilsonAsst.Solicitor General of Indiafor R.2.No Appearance for R.1 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TN. PAUL VASANTHAKUMAR, J.This writ appeal is filed against the order of the learned singleJudge dated 1.3.2002 in W.P.No.11386 of 1999, dismissing the writ petitionfiled by the appellant herein and upholding the award of the firstrespondent dated 11.5.1999, wherein the arbitration petition filed by theappellant was dismissed.2.The brief facts necessary for disposal of this writ appeal arethat the appellant was the subscriber to telephone No.30678, which wassubsequently changed to 585678. The said telephone connection wasoriginally installed at 122 (now 357) Mind Street and now shifted atNo.13, Rangan Street, T.Nager, Chennai-17 with telephone No.4335009.According to the appellant, he had STD facility and until bill dated7.8.1989, the bill amount was less than Rs.2,600/- for two months and on7.12.1989, a bill was received by the appellant for a sum of Rs.18,706/-.The said bill was challenged by the appellant in W.P.No.331 of 1990 andthis Court directed the appellant to go for arbitration. Again by billdated 7.2.1990 appellant was directed to pay a sum of Rs.10,748/- and thesame was also challenged in W.P.No.2638 of 1990, which was also directedto be decided in arbitration proceeding.3.Thereafter, according to the appellant, he made an arbitrationclaim before the first respondent, who passed an award on 11.5.1999dismissing the arbitration claim petition filed by the appellant. The saidorder was challenged in W.P.No.11386 of 1999 by contending that in spiteof two telephone numbers given by the appellant through which STD callswere received, the department failed to verify the same and prove thetampering of telephone number of the appellant by somebody else and due totampering only huge amount is demanded from the appellant in the saidbills. According to the appellant, the enquiry conducted on 24.3.1999 wasimproperly conducted and the appellant's claim should have been verifiedby the Vigilance Cell and even after the withdrawal of STD facility by theappellant, subsequent bills also showed the usage of STD facility and thesame was not considered by the first respondent. Hence the award of thefirst respondent is sought to be quashed in the writ petition.4.The writ petition was heard by the learned single Judge and thesame was dismissed on 1.3.2002 on the ground that the earlier writpetitions filed by the appellant, challenging the bills were dismissedwith a direction to go before the arbitrator and if at all the appellantis aggrieved, he could have challenged the award of the arbitrator undersection 34 of the Arbitration Act. Stating the said reason, the learnedjudge dismissed the writ petition with costs of Rs.2,000/-. https://hcservices.ecourts.gov.in/hcservices/

5.The learned counsel for the appellant argued that the earlierorder passed in the writ petitions filed by the appellant challenging thebills were not decided on merits and only as per the direction given bythis Court, appellant approached the Arbitrator by raising arbitrationclaim and the appellant cannot challenge the award under section 34 of theArbitration Act as the award passed under section 7B of the Telegraph Act,would not fall as an award in terms of the Arbitration and ConciliationAct, 1996. Hence the learned counsel for the appellant prayed for goinginto the merits of the case and consider the issue.6.We have considered the submissions made by the learned counselfor the appellant and perused the claim statement filed by the appellantbefore the first respondent as well as the counter affidavit filed by thedepartment before the first respondent. It is stated in the counterstatement that thorough investigation was made in the excess meteringcomplaints and the appellant's telephone was kept under observation forthe period from 5.8.1989 to 8.9.1989; 14.9.1989 to 18.9.1989; 21.10.1989to 24.10.1989 and during those observations it was found that the claimantwas in the habit of making STD calls to Tirunelveli. During the secondobservation it was found that out of the total 464 call units, 419 callunits were STD calls and in the third observation, out of the total 907call units, 896 call units were STD calls. Taking note of the saidobservations, department justified the correctness of the bills, which aredisputed by the appellant. It is also stated that meter routine test wasconducted on 23.11.1989 and it was found working properly and even beforethe complaint preferred by the appellant, the department kept thetelephone under observation for the period from 12.12.1989 to 15.12.1989and it was found that the claimant was in the habit of making STD calls.Again, the telephone was kept under observation from 20.12.1989 to23.12.1989 and it was found that the appellant was in the habit of makingSTD calls to Bikaner and out of the total 64 call units, 34 call unitswere STD calls. Due to such liberal usage of STD calls, such a hugeamount became due from the appellant and therefore there is no substancein the argument of the appellant that there was excess metering ortampering of meter.7.In the light of the said specific averments contained in thecounter affidavit filed by the department before the first respondent andthe same having been taken note of by the first respondent whiledismissing the arbitration petition filed by the appellant, which is afactual finding, we are unable to find any perversity in the award of thefirst respondent dated 11.5.1999.8.The appellant may be right in contending that the earlier writpetitions filed challenging the bills, which were dismissed with adirection to go before the arbitrator may not be a bar for challenging theaward of the first respondent. However, the same cannot be a reason toallow the writ petition filed by the appellant, particularly in the lightof the factual denial made by the department before the first respondent, https://hcservices.ecourts.gov.in/hcservices/ based on which a clear finding is given by the first respondent.9.There is no merit in the writ appeal and the writ appeal isdismissed. However, taking note of the fact that the writ petition isnot disposed on merits by the learned single Judge, we are of the viewthat imposing of cost of Rs.2,000/- is unsustainable. Therefore, theportion of the order of the learned single Judge, awarding cost ofRs.2,000/- alone is set aside. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vr/To1.The Arbitrator, Divisional Engineer,(ESP-1), Chennai Telephones, No.7, Kush Kumar Road,Chennai - 600 036.2.The Deputy General Manger, North East,Chennai Telephones, Chennai.+ 1 CC To Mr. P.Wilson, Asst. Solicitor General SR NO. 4427W.A.No.1061 of 2002 bv[co]gp/2.2.