Rajiv Sahai Endlaw, J.@mdashThis intra-court appeal impugns the order dated 13.07.2010 of the learned Single Judge of dismissal of WP (C) No. 5464/1998 preferred by the appellant. The said writ petition was preferred impugning an arbitration award pursuant to an arbitration u/s 7B of the Indian Telegraph Act, 1885. The arbitration proceedings had arisen out of a claim by the appellant on the respondent for Rs. 40,18,296 on account of misuse of telephone for a period of three years. It was the case of the appellant that the respondent, though had not applied for the STD facility on the telephone line, was making STD calls therefrom.
2. The arbitrator dismissed the said claim holding:
(i) that the appellant had observed the telephone line using the Multi Linked Observation Equipment (MLOE) only for one day and on that basis could not raise a bill for a period of three years;
(ii) that there was no explanation offered for raising the bill for three years on extrapolation of the calling pattern observed for a single day;
(iii) that though it was the case of the appellant that the STD facility was fraudulently availed by the respondent through diversion/tampering and without metering of calls in connivance with some of the MTNL employees but could not find anybody from their own department guilty of connivance;
(iv) that the appellant was otherwise unable to prove that the respondent itself had access and control on the exchange equipment to enable misuse thereof;
(v) that the appellant had not undertaken any investigation in spite of offer of the respondent in this regard;
(vi) that the records of the appellant showed STD calls to have been made from the line even after the time the same was taken away from the respondent and there was no explanation forthcoming therefor;
(vii) that from the factum of the telephone line being continued to be used for making calls even after being taken away from the respondent, it stood established that the STD calls shown in the MLOE installed for one day were not made by the respondent; and
(viii) that the period of observation of one day only was too short to justify raising the impugned bill.
3. We may notice that the respondent had deposited a sum of Rs. 18,33,042 out of the total demand of Rs. 40,18,296 with the appellant during the pendency of the proceedings. The arbitrator accordingly while dismissing the claim of the appellant directed the appellant to refund the said amount to the respondent. The respondent had also filed WP (C) No. 3735/1998 impugning the award to the extent it did not grant any interest along with refund.
4. The learned Single Judge by the impugned judgment, besides dismissing the writ petition preferred by the appellant has also dismissed the writ petition preferred by the respondent.
5. We may notice that the appellant had failed to appear before the learned Single Judge. The learned Single Judge has recorded that in the writ petition there was no challenge to the reasoning aforesaid given by the arbitrator. We find the appellant to have, in the memorandum of this appeal also, not found fault with or rendered any explanation whatsoever for the reasoning aforesaid given by the arbitrator. The counsel for the appellant also, in spite of our query has been unable to urge any fault in the reasoning aforesaid given by the arbitrator. He is not even able to show any rule or regulation which entitles the appellant to, on detecting misuse, raise a bill for the previous three years. There is thus no merit in this appeal, which is dismissed.
No costs.
