RELIANCE COMMUNICATION LTD vs VODAFONE INDIA LTD. on 19 December 2012

**ORDER**

The Respondent by its letter dated 25.10.2012 demanded an amount of Rs.11.30 crores for SMS termination charges for a period from 1.4.2011 to 30.9.2012 at the rate of 10 paise per SMS. Besides, it informed the Petitioner that in case of failure to make the payment, the SMS termination services will be withdrawn with effect from 9.11.2012.

2. The Petitioner has filed this petition against the said demand and threat of disconnection of the SMS services by the Respondent.

3. On the date of preliminary hearing, i.e. on 12.11.2012 Mr.Ankur Sood, the learned counsel appearing on behalf of the Respondent offered that the Respondent will not resort to any disconnection of the SMS services if the Petitioner starts paying the SMS charges at the rate of 10 paise per SMS from that date onwards till the next date of hearing of this petition.

Mr. Meet Malhotra, learned senior counsel appearing on behalf of the Petitioner agreed to pay the said amount at the rate of 10 paise per SMS from that date till the next date of hearing.

Accordingly this Tribunal by way of an ad interim order directed the Respondent not to disconnect the SMS services of the Petitioner till the next date of hearing. The Petitioner was also directed to pay SMS charges at the rate of 10 paise per SMS till that date. However, the payment was without prejudice to the rights and contentions of the parties.

4. The Respondent has filed a short reply for the purpose of passing an interim order. The Petitioner has filed a rejoinder thereto.

Mr. Ramji Srinivasan, learned senior counsel appearing on behalf of the Petitioner has brought to my notice the interconnection agreements including the supplementary agreements for various circles between the Petitioner and the Respondent executed on different dates. He has brought to my notice the clause existing in the agreements for certain telecom areas as mentioned below wherein it is provided that no termination charges for SMS originating from either party's network and terminating on other party's network shall be payable. They are:

1. 1. Punjab

2. 2. Andhra Pradesh

3. 3. U.P. (West)

4. 4. West Bengal

5. 5. West Bengal

6. 6. New Delhi

7. 7. Chennai

8. 8. Mumbai

9. 9. Kolkata

10. 10. Kolkata

11. 11. Karnataka

12. 12. Gujarat

There is no mention of the SMS services in the interconnection agreements for the following circles:

1. 1. Maharashtra

2. 2. Assam, Bihar, H.P., M.P. North East and Orissa

1. 3. Bihar, H.P., J & K, M.P. and Orissa

2. 4. Haryana, Rajasthan and U.P. (East)

3. 5. Kerala

4. 6. Tamil Nadu

However, it is seen that the SMS services are being provided by both the parties to each other without any payment in these circles also.

5. Mr. Gopal Jain, learned counsel appearing on behalf of the Respondent contends that the Petitioner should not request for change of the ad interim order as the Petitioner itself had agreed to make payment at the rate of 10 paise per SMS and the same status should be continued as the Petitioner was willing to pay the same amount.

The counsel further pointed out the judgment in Petition No.130 of 2012 and Petition No.430 of 2011 wherein this Tribunal found that the charging of 10 paise per SMS was reasonable. The affected parties went in appeal to the Supreme Court but did not get any stay order against the TDSAT order. Therefore, as on today the orders of TDSAT in those petitions are binding.

6. Mr. Ramji Srinivasan pointed out that the judgments of this Tribunal in Petition No.130 of 2012 and Petition No.430 of 2011 relates to the particular facts and circumstances of those petitions and cannot be applied in all the cases.

7. In this petition it is seen that there are agreements between the parties for not charging any SMS termination charges in certain circles. Both the parties are bound by the terms and conditions of the contract and have no right to modify the same unilaterally as long as the agreement is continuing.

8. I had considered the Petition No.939 and 940 of 2012 wherein there was specific agreement between the parties for not charging any SMS termination charges in certain circles. As the facts and circumstances in the present petition are similar, I am of the opinion that the end of justice will be subserved if similar order is issued in this petition also. By way of an interim order it is directed that the Respondent shall not disconnect the signals of the Petitioner in respect of 12 circles i.e. Punjab, Andhra Pradesh, U.P. (West), West Bengal, West Bengal, New Delhi, Chennai, Mumbai, Kolkata, Kolkata, Karnataka, Gujarat and no termination charge will be payable by any party to other party during pendency of these petitions.

9. In respect of other circles the SMS services of the Petitioner shall not be disconnected and wherever disconnection has taken place, the same will be restored immediately subject to the condition that Petitioner will start paying 50% of the amount demanded by the respondent @10 paise per SMS on net inflow of traffic basis. This amount will be calculated and paid with effect from the date of filing of this petition.

10. This order is without prejudice to the rights and contentions of the parties and subject to any other or further order passed by this Tribunal.

11. Reply may be filed within three weeks. Rejoinder thereto, if any, may be filed within two weeks thereafter.

12. Put up the matter for framing of issues on 5.2.2013.

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**(P.K. RASTOGI)** **MEMBER**

**December 19, 2012** **'anu'**