A genda of Meeting
(RCOM)As was o
10.07.2007","Decisions taken in meeting
non 10.07.2007",Status as on 28.02.08,Decision taken on 05.03.08
3. Short payment received
from IOBAS cell BSN
(post IOBAS period) t
the tune of Rs.13.55 Lacs.
Over the period July-05 to
May-07 pending
reconciliation with BSNL
We have provided Daily
summary report for all
months. However, BSNL
has to provide 03 days
CDR for the period July
05 to Dec-06 & April-07
& May-07.","CDR details for 3 days
Lwith maximum variation in
ominutes of usage (MOU
has been already provided
to RCOM for the month o
Jan-07. Feb-07 & Mar-07
.for reconciliation purpose.
Balance CDRs will be
provided as & when
received from data
processing center. CGM
-office has already placed
request with data
processing center for all
months CDRs as
requested by Operator.","Post IOBAS reconciliatio
is pending for Rs. 35.70
)Lacs. For the period Jul-05
t o Jan-08. (IOBAS Rs
fRs.20.15 lacs.& Cellone
CMTS Rs. Rs.15.5
Lacs.) BSNL has provided
reconciliation findings for
the period May-06 to July-
06 for 11 POIs, & Oct-06
to Dec-06 for 15 POI
which contains details of
matched CDRs
unmatched CDRs in
BSNL and unmatched
CDRs in RCL. Howeve
findings of BSNL has been
disputed by RCL by
making further analysis of
unmatched CDRs reported
by BSNL in BSNL CDR
as same is available in
RCL CDRs. BSNL ha
not provided any further
feedback on our analysis
or concluded on short
payments made to RCL
BSNL has provided 03
days CDRs for the month
of Jan07 to March-07 for
28 POIs. Unmatche
CDRs reported by BSN
in BSNL CDRs has been
disputed by RCL as same
is available in RCL CDRs
BSNL has not provided
any further feedback on
our analysis or concluded
on short payments made to
RCL. BSNL is yet t
provide 3 days CDRs fo
balance period (i.e. other
than May-06 to July-06
Oct-06 to Dec-06 & Jan
07 to March-07). RCL has
submitted complete CDRs
for all POIs for all months
up to Oct07, for Recon. At
BSNL end.","nJoint visit will be made by
DGM (IT) BSNL & RC
representative to IOBAS
C. hennai for expediting
reconciliation & getting 03
5days CDRs for POIs wit
variations. POI leve
switch defects at
Berhampur &
Bhawanipatna has been
sidentified. Old MOUs wil
be revised for OG traffic
,of BSNL.
r,
s,
s
.
d
L
.
o
r
,
-
Agenda of Meeting (RCOM
As was on 10.07.2007",")Decisions taken in meeting
on 10.07.2007",Status as on 28.02.08,"Decisi on taken on
05.03.08
4.Recivables & Payables
amount confirmation for PRE
IOBAS period required for a
SSAs from IOBAS CEL
ORISSA against letter give
by HO BSNL New Delh
Vide Letter no. Lt.no..9-53
(RIL)/2005-BSNl/TR
Dt..01.02.2007.
We are regularly following up
with IOBAS for these detail
since Feb07. Refer our
reminder letter dated
17.02.2007,08.03.2007,28.03.20
07 &15.05.2007 However, we
are yet to receive all detail.","4 . CGM Office ha
-Received detail of
lrleceivable & payable for
LSSAs (PreIOBAS).
n
iS.ame will be provided to
RCOM within 07 days fo
feedback.
s","sResolved , detail received.
r",Not Applicable
Sl.No.,Point of discussion,Action to be taken,Follow up action
Agenda of Meeting (RCOM) As was on 11.03.0
12.03.08",8Decision taken in meeting on 11.03.2008,,
4. One PC will be identified by DGM (IT) to dump 0
days CDRs as provided by IOBAS Chennai.",34. Agreed by DGM (IT),,
6.Regular high variation between BSNL records &
RCOM records for BSNL OG calls inB erhampuer
Lex 5ESS, Koraput TAX . II AXE, Rourkela L
WLN 5ESS BhawanipatnaW LL TAX II OCB
Rourkela L-II TAX POIs","6 . Problems in Bherhampuer lex 5ESS &
Bhawanipatna WLL TAX II OCB has bee
eidxentified. Bill for these POIs will be revised for al
&previous months also & Refund will be make
applicable. For rest POIs we have analyzed DSR&
will further analyze CDRs for highlighted POIs onc
received from IOBAS Chennai.",,
18. Effect of acknowledgment in writing.,,,
(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in",,,
respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person",,,
through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.",,,
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the",,,
provisions of the Indian Evidence Act, 1872 (1 of 1872 ), oral evidence of its contents shall not be received. Explanation - For the purposes of this",,,
section,-",,,
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment,",,,
delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a",,,
claim to set- off, or is addressed to a person other than a person entitled to the property or right,",,,
(b) the word"" signed"" means signed either personally or by an agent duly authorised in this behalf, and",,,
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.,,,
33. We may at the outset consider the applicability of the ingredients of the said provision. The ingredients thereof can be held to have been fulfilled,",,,
provided an acknowledgement in writing is signed by the party.,,,
The word `signed' has been explained in Explanation B appended thereto to mean sign personally or by the person duly authorized in this behalf.,,,
34. The grounds for exemption from limitation must exist at the date of the filing of the suit.,,,
Reliance on the minutes of meeting dated 10.3.2008 and 11.3.2008 saying that the Petitioner has acknowledged its liability by the Respondent within,,,
the meaning of Section 18 of the Limitation Act, is misplaced.",,,
For the purpose of consideration of applicability of the said provision, the backdrop of events may also have to be noticed.",,,
35. It is not the case of the Respondent that it had at any point of time raised any contention prior to the parties' authorized representatives' visit of the,,,
Data Centre at Chennai with regard to the bills for incoming calls.,,,
36. Petitioner having brought to the notice of the Respondent that its CDR had not recorded some data in respect of one of the POIs was within its,,,
knowledge.,,,
37. The Respondent in fact in paragraph 3 of its reply admitted the billing procedure. According to it from July, 2005 the billing through SSC was",,,
replaced by the Centralized Data Centre situated at Chennai.,,,
38. In paragraphs 4 to 7 of the reply, it was stated :-",,,
4. That for each service of the operator and for different type of calls, different Trunk Groups (TGP) were configured in BSNL switch and the CDR's",,,
passing through the same were pulled for rating and billing purpose by the Data Centre based on the TGP configuration entered into the Data Centre,,,
portal by each BSNL POI incharge in the circle. The CDRs recorded at each POI of Odisha Circle are pulled up by the Data Centre at Chennai from,,,
the POI after having being loaded by the concerned POI incharge through File Transfer Protocol (FTP) Location Data Pull System. That the full data,,,
of a month is required to be ready for pulling by the Data Centre, Chennai by the 2nd day of the following month.",,,
5. That after the CDRs of a month are captured and pulled by the Data Centre, the same are rated and invoices/bill for the both way traffic are",,,
generated on monthly basis by the Application Service Provider (ASP) i.e M/s Satyam at Data Centre, Chennai by 5th of the following month. The",,,
draft invoices/bills are uploaded in the IOBAS portal and after the go ahead conformation about the accuracy of the draft invoices/bills is given by the,,,
DGM (IT) Odisha circle who is the nodal officer for IODAS technical cell, the final bill/invoices are generated. While giving the go ahead, the",,,
DGM(IT) coordinated and confirms from all POI incharges about 100% provision of CDRs to Data Centre for bill/invoice generation to insure that,,,
there are no missing/left over CDRs. In case, there are any missing CDRs for any technical reason whatsoever, action shall be taken to retrieve the",,,
same and arrange for issue of supplementary bills at a later stage. It is submitted that once the confirmation from the technical cell of circles is,,,
received, the final bills/invoices are generated, which contains the following details:",,,
a) Invoice (i.e. consolidated bills),,,
b) POI-wise monthly summary,,,
c) Invoice details,,,
d) Day-wise summary,,,
6. That in the present case, the supplementary bills were generated by the Respondents only after an investigation which was carried out in response",,,
to the Petitioners complaint of short payment of BSNL. On investigation carried out by the Respondent, it was found that one stream of POI at",,,
Berhampur was not configured due to which the CDRs were not captured at the time of issue of the main invoices. It is pertinent to mention that,,,
under the Berhampur POI 2 exchanges (a) EIOB local and (b) 5ESS local Exchanges were working during the period from July 2005 to December,,,
2006. In 5ESS exchange, the details of subscriber billing and junction/TGP billing are registered into system i.e stream 0 and stream 1. The copy of",,,
letter issued by the Petitioner to the Respondent regarding complaining of short payments are annexed herewith marked as ANNEXURE R-,,,
2(COLLY),,,
7. It is evident from the correspondence of the Petitioner that the Petitioner had the knowledge of the problem in the POI and in its letter dated 2nd,,,
February 2007 had also observed inter alia ''that the major intec difference every month is because of software problem.............''. Further, in its letter",,,
dated 7th February 2006, the Petitioner observed that ''we have found that in many cases, BSNL switch did not capture the CLI. Hence you are",,,
requested to kindly give us the exclusive CDRs of such calls, so as to validate your claim. Till that time, you are requested to exclude this amount from",,,
our outstanding until the matter is resolved''. Copy of letter dated 7th February 2006 is annexed herewith and marked as ANNEXURE R-3,,,
39. The system introduced by the Respondent for rasing bills were having checks and balances at different stages. The first stage was loading by the,,,
concerned POI through file transfer protocol location and data pull system. The second one was the data centre Chennai's scrutinizing the bill by,,,
second day of the following month and the third stage was that the draft/ invoice bills were uploaded in the IOBAS portal and after obtaining go ahead,,,
or confirmation thereabout by the concerned Nodal Officer, Technical Cell; whereafter the final bills were to be generated.",,,
40. Further check was provided at the centre for bills/invoice generation to ensure that no CDR was missing.,,,
41. In the event of any finding that there were any misuse of CDRs, action was required to be taken.",,,
42. The final bill was to be generated which contained the certificate in respect of four items mentioned in paragraph 5 of the Reply. Admittedly,,,
investigations were carried out with regard to the Petitioner's complaint.,,,
43. The Respondent does not state as to when the mistake to the effect that one single POI - Berhampur did not configure due to which CDRs were,,,
captured at the time of issue of the main invoices was detected. It also does not state as to how the letter of the Petitioner dated 8.2.2007 gives rise to,,,
the presumption that it had full knowledge of the problem of POIs and thus bound by it.,,,
44. There is another aspect of the matter. The Petitioner by reason of various letters including the one dated 29.12.2005 and 2.2.2006 had asked the,,,
Respondent to make good of its short payments.,,,
45. All actions were taken pursuant thereto or in furtherance thereof. The parties had met ultimately and resolved to find out the reason for short,,,
payment of the Petitioner's bill. Even at that point of time the Petitioner was not informed that the Respondent had committed any mistake in omitting,,,
to raise its bill.,,,
46. Mr.Kohli has taken us through various internal letters and e-mails to contend that the matter was being examined by different offices.,,,
47. In our opinion they are of not much relevance for the purpose of considering the question as to whether the provisions of Section 18 of the,,,
Limitation Act, 1963 would become applicable thereby.",,,
48. In any event the Petitioner itself stated that it came to know of the defect in its system on 10th/11th March, 2008. There is therefore, no reason as",,,
to why the impugned bills were issued after such a long time.,,,
49. Indisputably, the original invoices show that no bill was raised in respect of the Berhampur circle. There is nothing on record to show that the",,,
mistake was a bonafide one or the same could not be detected despite due diligence on the part of the officers of the Respondent.,,,
50. Respondent was not only required to bring on record sufficient materials in that behalf but also ought to have examined the concerned officers as,,,
to how due diligence on its part was exercised.,,,
51. Mr.Chawla has relied upon a decision of the Supreme Court of India in Chandradhar Goswami & Ors. vs. The Gauhati Bank Ltd. reported in,,,
MANU/SC/0037/1966 : (1967) 1 SCR 898 wherein despite the provisions of Section 4 of the Bankers' Books Evidence Act, the Apex Court observed",,,
:-,,,
Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage deed is concerned as it",,,
was filed within 12 years of the execution of the mortgage (see Art. 138 of the Limitation Act of 1908). As to the personal liability under this deed,",,,
that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Aret 116 ibid). Nor does the entry of payment of,,,
Rs.100/- in the accounts help the bank in this behalf. That entry is of no value under s. 19 or s. 20 of the Limitation Act for neither a writing signed by,,,
the appellants nor an acknowledgement of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Art.,,,
85 of the Limitation Act of 1908 help the bank.""",,,
Internal documents of the Respondent, in view of the aforementioned authoritative pronouncement of the Supreme Court, are of no avail.",,,
52. The Apex Court in J.C. Bhudraja vs. Chairman, Orissa Mining Corporation Ltd., MANU/SC/0602/2008 : (2008) 2 SCC 444 reiterated the",,,
proposition of law that although the admission in question need not be express but be made in circumstances and in words from which the Court can,,,
reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement.,,,
It was opined that the Courts lean in favour of a liberal construction of such statement though it does not mean that where no admission is made, one",,,
should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship, such intentions could be",,,
fastened on the maker of the statement by an involved or far-fetched process of reasoning. In construing the words used in the statements made in,,,
writing on which a plea of acknowledgement rests, oral evidence has been expressly excluded but surrounding circumstances could always be",,,
considered. The effect of the words used in a particular document must inevitably depend upon the context in which the words are used and would,,,
always be conditioned by the tenor thereof.,,,
53. It was opined that the acknowledgement of liability must involve an admission of a subsisting jural relationship between the parties as also,,,
emphasis conscious expression of an intention of continuing such relationship in regard to an existing liability. It was stated as under:-,,,
20. Section 18 of the Limitation Act, 1963 deals with effect of acknowledgement in writing. Sub-section (1) thereof provides that where, before the",,,
expiration of the prescribed period for a suit or application in respect of any right, an acknowledgement of liability in respect of such right has been",,,
made in writing signed by the party against whom such right is claimed, a fresh period of limitation shall be computed from the time when the",,,
acknowledgement was so signed. The explanation to the section provides that an acknowledgement may be sufficient though it omits to specify the,,,
exact nature of the right or avers that the time for payment has not yet come or is accompanied by a refusal to pay, or is coupled with a claim to set",,,
off, or is addressed to a person other than a person entitled to the right.""",,,
54. Sofar as the question of purported doctrine of mistake is concerned, exercise of due diligence is a sine qua non for application thereof.",,,
55. In Ramesh B. Desai v. Bipin Vadilal Mehta, MANU/SC/2996/2006 : (2006) 5 SCC 638, it is stated:",,,
27. In our opinion, in view of the facts pleaded in the company petition, the case is covered by Section 17(1)(a) of the Limitation Act and not by",,,
Section 17(1)(b) as the Petitioners are not claiming any right or title over the shares of the Company, which according to them were purchased out of",,,
the funds of the Company. Section 17(1)(b) will apply when the plaintiff or the applicant is claiming any kind of right or title to any movable or,,,
S.No.,Name of the Parties,Citation,
1,"M/s Lakshmirattam Cotton Mills
Co. ltd. & Anr. Vs. The Aluminum
Corp. of India Ltd.,",1971(1) SCC 67,
2,"( A n n a y y a ) Janakirama
Bhagawathar & Anr. Vs.
(Annayya) Narasimha Bhagavatha
& Ors.","MANU/TN/0259/1936,
r",
3,Hiralal & Ors. Vs Badkhual &Ors.,AIR 1953 SC 225,
4,"Khan Bhadur Shapoor Freedom
Mazada Vs. Durga Prosa
Chamaria Ors.","AIR 1961 SC1236
d",
5,"The Mahila Shiksha Sadan, Gandh
Ashram Hatundi Through its
Secretary Vs. Jainarayan Mittal",iMANU/RH/0041/1975,
6,"Reet Mohinder Singh Sekhon Vs
Mohinder Prakash & Ors",.(1989) 4 SCC 30,
7,State of Kerala Vs. T.M. Chacko,(2000) 9 SCC 722,
8,"Syndicate Bank Vs. R. Veeranna
& Ors.",(2003) 2 SCC 15,
9,"Food Corporation of India Vs
Assam State Cooperative
Marketing & Consumer Federation
Ltd. & Ors",.(2004) 12 SCC 360,
10,"Tenumal Bishamal Singhi Vs. Ama
Mohandas Sindhi & Ors.",rMANU/MH/0075/1973,
11,"Tilak Ram & Ors. Vs. Nathu &
Ors.",AIR 1967 SC 935,
12,"Sarangdhar Singh & Anr. Vs.
Laxmi Narayan Wahi",MANU/BH/0080/1955,
It contained the following stipulation:-,,,
....Now I of my own accord have sold all my mortgagee rights along with the original mortgage consideration and interest which according to the",,,
terms of the aforesaid mortgage deed has accrued and is payable to the instant vender.... The rights and interest regarding recovery of original,,,
mortgage money and interest according to mortgage deeds executed by Jangi Khan Original mortgagor deceased and redemption of the mortgaged,,,
land which hence to fore vested in the instant vendor stand vested in the purchaser....""",,,
71. It was held :-,,,
.... It is true, as pointed out in Tilak Ram v. Nathu. that the period of limitation cannot be extended by a mere passing recital regarding the factum of",,,
the mortgage but that the statement on which the plea of an acknowledgment is based must relate to a subsisting liability. The words used must,,,
indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting such jural,,,
relationship. But, in our opinion, the recitals in the sale deed on 1-11-1913 fulfill the above requirements.""",,,
72. Thus, the requirements that the statement on which the plea of an acknowledgement rests must be based on a subsisting liability.",,,
73. We would, a little later, consider the question as to what is meant by `subsisting liability'.",,,
74. In the case of T.M. Chacko (supra), the legal position is stated in the following terms:-",,,
10. It may be noted that for treating a writing signed by the party as an acknowledgement, the person acknowledging must be conscious of his liability",,,
and the commitment should be made towards that liability. It need not be specific but if necessary facts which constitute the liability are admitted an,,,
acknowledgement may be inferred from such an admission.,,,
11. Here it is necessary to refer to the said documents - Exhibits B-4 and A-8. The trial court as well as the High Court accepted the plea of the,,,
Respondent and held that the period of limitation would start from September 19,1974 (Exhibit A8) and the suit was within limitation. Both the court",,,
relied upon the judgment of the Kerala High Courts in Harrisons & Crossfield Ltd. v. State of Kerala 63 K.L. T. 215. It is laid down therein that it,,,
was not necessary that there should be a specific and direct acknowledgement of the particular liability which is sought to be enforced if there was an,,,
admission of facts of which the liability in question was necessary consequence then there would be an acknowledgement within the meaning of,,,
Section,,,
19 of Limitation of 1908. It is not the correctness of the proposition but its application that is in dispute.""",,,
75. In Food Corporation (supra) the jural relationship between the Appellant therein and the Federation was not disputed.,,,
The Federation admitted that a sum of Rs.2 crores had been received from Food Corporation.,,,
76. What was disputed was the quantum thereof. In that context only, it was observed:-",,,
16. The two letters dated 29/03/1977 and 30/07/1977(Exhibits 8 and 9) clearly acknowledge the amount of Rs. 2 crores having been received by the",,,
Federation from the Food corporation of India whether by way of advance or by way of deposit. The letters also indicate that the amount of two,,,
crores was by way of advance or deposit against paddy procurement. This is admission of jural relationship of buyer and seller which stood converted,,,
into relationship of creditor and debtor on the failure of the principal transaction. However, the acknowledged liability is sought to be disowned by",,,
submitting that on an account being taken nothing would be found due and payable by the plaintiff to the Federation. Disputing the liability to repay the,,,
amount acknowledged to have been received does not dilute the fact of acknowledgement in so far as Section 18 of the Limitation Act is concerned.,,,
The two letters have the effect of extending the period of limitation prescribed for filing the suit and calculated from the date of the latter of the two,,,
letters i.e. 30/07/1977, the suit filed on 30/05/1980 was well within the period of limitation.""",,,
77. In Tilak Ram (supra), the case of Khan Bhadur has merely been followed.",,,
78. We are also not unmindful of the fact that the Supreme Court of India in Commissioner of Central Excise vs. Kalvert Foods India Pvt. Ltd. and,,,
Ors. reported in MANU/SC/0921/2011 : 2011 12 SCC 243 opined that Section 17 would apply when the clandestine removal of the excisable goods,,,
came to the knowledge of the authorities under the Act upon conducting raid in the premises. Such is not the position here.,,,
79. The Respondent, as indicated heretobefore, at all material times had sufficient knowledge of the claim of the Petitioner. It is furthermore not",,,
understood as to why despite knowledge and/or discovery of the facts as far as back in March, 2007 no bill was raised till January, 2011.",,,
80. These acts of omissions and commission on the part of the Respondent clearly go to show that the billing method applied by it leaves much to,,,
desire. We are making these observations as the Respondent being a Public Sector Undertaking was bound to take all precautions having been dealing,,,
with the public money.,,,
81. It is in the aforementioned backdrop of events, the question as to whether there had been an acknowledgement on the part of the Petitioner or not",,,
must be considered.,,,
82. The parties entered into an interconnect agreement in respect of their outgoing calls i.e. calls originated from the network of one operator to the,,,
network of the other operator, wherefor bills were to be raised.",,,
83. The operator who generated the call meaning thereby `outgoing calls' is liable to pay the IUC charges to the other operator. It is not a case where,,,
the Respondent has exercised its right of set off.,,,
84. The right of the Respondent to raise bills emanates from the following stipulation in the interconnect agreement:-,,,
6.4 Interconnect usage charges",,,
6.4.1 Interconnect usage charges (IUC) shall be payable by USAL to BSNL for the calls originating in UASL Network and handed over to BSNL,,,
Network. Likewise, interconnect usage charges shall be payable by BSNL to UASL for the calls handed over by BSNL Network and terminating in",,,
UASL Network. Internet usage charges include termination charge, carriage charge, transit charge and access deficit charge (ADC) as applicable.",,,
6.4.2 Internet usage charges (IUC) payable by UASL to BSNL shall be as per details enclosed in Schedule I. Similarly, IUC shall be payable by",,,
BSNL to UASL as per Schedule I. This Schedule I may be amended as per applicable TRAI's Regulation or as mutually agreed from time to time.,,,
Interconnect usage charges shall not be linked with any tariff plan provided by BSNL to its own subscribers or any other categories of service,,,
providers.,,,
6.4.3 The traffic from / to fully mobile network delivered on any BSNL's LDCC TAX from UASL's GMSC will be measured on the incoming/,,,
outgoing junctions of BSNL's LDCC TAX.,,,
6.4.4 For basic services, the calls originating and terminating within same SDCA are local calls. When such calls are delivered to BSNL for carriage",,,
and termination, IUC for STD calls shall apply on such calls. The STD / ISD traffic delivered on any BSNL's LDCC TAX from USAL's LDCC TAX",,,
/SDCC tandem / local exchange will be measured on the incoming junctions of the BSNL's LDCC TAX.,,,
6.4.5 For calls delivered form BSNL's TAX to UASL's main exchange serving multiple SDCC's, the latter shall be treated as the terminal exchange",,,
and IUC shall be payable by BSNL to UASL as applicable at terminating SDCA only.""",,,
They provide for different sets of liabilities.,,,
85. It is not a case where mutual and current account were to be maintained; the liabilities of both the operators being distinct and separate.,,,
The period of bill for which the dispute alleging short payment was raised by the Petitioner was July, 2005 onwards. All the correspondences relied",,,
upon by the parties relate only to the said claim of the Petitioner.,,,
86. The parties met with a view to resolve the said dispute and no other.,,,
87. We may notice the agenda of the meeting dated 5.3.2008, which was in respect of the POIs of Berhampur for the month of July, 2005. It reads as",,,
under :-,,,
Agenda - Short payment received from IOBAS cell BSNL (post IOBAS period) to the tune of Rs.13.55 Lacs. Over the period July-05 to May-07",,,
pending reconciliation with BSNL. We have provided Daily summary report for all months. However, BSNL has to provide 03 days CDR for the",,,
period July-05 to Dec-06 & April-07 & May-07.""",,,
The said agenda refers to the Petitioner's bills relating to its outgoing calls i.e. those which terminated at the network of the Respondent.,,,
88. Only in relation thereto the three days' CDRs were to be supplied. It was in that context by way of follow up action, the parties visited Chennai on",,,
10.3.2005 and 11.3.2005.,,,
89. We may notice the subject matter of the discussions between the parties:-,,,
IUC BILLING & CDR RECON. RELATED ISSUES Under mentioned agenda items were deliberated in detail during meeting on 5.3.2008 & joint",,,
decisions were taken as reported below.""",,,
It is in the aforementioned context in para 6 thereof, it was recorded that :-",,,
6. Problems in Bherhampuer lex 5ESS & Bhawanipatna WLL TAX II OCB has been identified. Bill for these POIs will be revised for all previous",,,
months also & Refund will be make applicable...""",,,
90. Ms.Dhir would contend that keeping in view the dictionary meaning of the words `acknowledgement', `liability' and `debt' as would appear from",,,
Oxford's Advance Learners Dictionary of Current English and Black's Law Dictionary, it was not necessary to mention even the exact nature of",,,
rights.,,,
91. In Oxford Advance Dictionary the word `revise' has been stated to be :-,,,
Revision",,,
1. [C] a change or set of changes to sth : he made some minor revisions to the report before printing it out.,,,
2. [U,C] the act of changing sth, or of examining sth with the intention of changing it : a system in need of revisiona revision of trading standards.""",,,
92. In Black's Law Dictionary 9th Edition page 1434 the term `revision' it is stated :-""Revision - A reexamination or careful review for correction or",,,
improvement............""",,,
93. The contention of Ms.Dhir is that the Respondent had issued the original invoice and thus it was entitled to revise the same.,,,
The invoice could be revised in the context of the provisions of the interconnect agreement entered into by and between the parties hereto and not,,,
otherwise.,,,
No bill had been raised in respect of the Berhampur -POI. A consolidated demand was made therein. However, details of all the POIs were",,,
furnished.,,,
Even if such bills could be revised, the same was to be within the stipulated period of limitation and not in the year 2011, ie. not within the period of",,,
limitation.,,,
94. Reliance placed by Ms.Dhir on the definition of the word `liability' in the context of Section 18 of the Limitation Act is of some significance.,,,
It reads as under :-,,,
Liability - The quality or state of being legally obligated or accountable; legal responsibility to another or to society; enforceable by civil remedy or",,,
criminal punishment""",,,
Agenda of Meeting (RCOM) As was on 11.03.08 &
12.03.08",Decision taken in meeting on 11.03.200,,
6.Regular high variation between BSNL records &
RCOM records for BSNL OG calls inB erhampuer
Lex 5ESS, Koraput TAX . II AXE, Rourkela L
WLN 5ESS BhawanipatnaW LL TAX II OCB
Rourkela L-II TAX POIs .","6 . Problems in Bherhampuer lex 5ESS &
Bhawanipatna WLL TAX II OCB has bee
eidxentified. Bill for these POIs will be revised for al
&previous months also & Refund will be make
applicable. For rest POIs we have analyzed DSR&
will further analyze CDRs for highlighted POIs onc
received from IOBAS Chennai.",,
From the agreement it is clear that it does not contain any clause which could be said to be contrary to Section 28 of the Contract Act nor it imposes",,,
any restriction to file a suit within six months from the date of determination of the contract as claimed by the company and held by the High Court.,,,
What was agreed was that the appellant would not have any right under this bond after the expiry of six months from the date of the termination of,,,
the contract. This cannot be construed as curtailing the normal period of limitation provided for filing of the suit. If it is construed so it may run the risk,,,
of being violative of Section 28 of the Contract Act. It only puts embargo on the right of the appellant to make its claim known not later than six,,,
months from the date of termination of contract. It is in keeping with the principle which has been explained in English decisions and by our own court,,,
that the insurance companies should not be kept in dark for long and they must be apprised of their liabilities immediately both for facility and certainty.,,,
The High Court erroneously construed it as giving up the right of enforceability of its claim after six months. Since the period is provided under the,,,
agreement the appellant had to move within this period asserting its right and apprising the company of the breach or violation by the miller to enable it,,,
either to pay or to persuade the miller to pay itself. It does not directly or indirectly curtail the period of limitation nor does it anywhere provide that the,,,
Corporation shall be precluded from filing suit after expiry of six months. It can utmost be construed as a condition precedent for filing of the suit that,,,
the appellant should have exercised the right within the period agreed to between the parties. The right was enforced under the agreement when,,,
notice was issued and the company was required to pay the amount. Assertion of right is one thing than enforcing it in a court of law. The agreement,,,
does not anywhere deal with enforcement of right in a court of law. It only deals with assertion of right. The assertion of right, therefore, was",,,
governed by the agreement and it is imperative as well that the party concerned must put the other side on notice by asserting the right within a,,,
particular time as provided in the agreement to enable the other side not only to comply with the demand but also to put on guard that in case it is not,,,
complied it may have to face proceedings in the court of law. Since admittedly the Corporation did issue notice prior to expiry of six months from the,,,
termination of contract, it was in accordance with the Fidelity Insurance clause and, therefore, the suit filed by the appellant was within time.""",,,
After the said decision was rendered, Section 28 of the Indian Contract Act has been amended.",,,
110. In a case of this nature, moreover, the Court is required to consider that although in terms of the agreement a supplementary bill could be raised",,,
within a period of six months, the period to approach the Court of law or in the alternative to disconnect the interconnect agreement to which the",,,
Respondent was specifically authorized to, is taken away when there are different remedies to enforce the claim keeping in view its other right under",,,
the agreement.,,,
111. In this case the parties had been negotiating with regard to the short payment of the bill raised by the Respondent. In a given case the,,,
Respondent could have shown to the Petitioner that by reason of technical fault it became disabled to raise the bill.,,,
112. A bill has to be raised of course within the prescribed period of limitation but if there are other inabilities, namely, physical impossibility to raise a",,,
bill by way of ignorance or otherwise, the six months limitation may not be held to have any application.",,,
113. The decision of this Tribunal in M/s Tata Communication vs. BSNL being Petition No.186/2010 must be considered from this angle. However,",,,
the said question need not be finally decided being not necessary. For the reasons aforementioned this petition is allowed. In the facts and,,,
circumstances of this case, however, there shall be no orders as to costs.",,,
