ORDER
Dr. M.K. Sharma, J.
1. The present writ petition has been filed by the petitioner seeking for
issuance of a writ quashing the award dated 31.12.1998 passed by respondent
No.2 under Section 7(B) of the Indian Telegraph Act.
2. There were two telephone connections, both in the name of the petitioner. Telephone No.6801740 was released to the petitioner sometime in November 1989 alongwith STD/ISD facilities. The said telephone was however, disconnected in the month of October, 1993. On the basis of another application filed by the petitioner he was allotted with another telephone No.6803600 which was released in the month of October, 1991 and the said telephone also had STD/ISD facilities. So far as telephone No.6801740 was concerned regular bills were not issued from time to time due to fault in the computer but a bil with due date of payment as 18.5.1993 was issued to the petitioner for the period from 30.5.1990 to 15.4.1993. The said bill included charges for rent, installation charges and interest on initial deposit alongwith call charges to the tune of Rs.9,46,123.80. Thereafter two more bills were issued to the petitioner which were respectively for
the amounts of Rs.1,34,463/- and Rs.15,495/- making a total of Rs.12,98,685/-. For non-payment of the aforesaid bills the telephone No.6801740 was disconnected on 27.10.1983. Even after the same as the dues were not paid the other telephone of the petitioner namely-telephone No. 6803600 was also ought to be disconnected and at that stage the petitioner filed a writ petition in this Court which was registered as C.W. 4285/1994. It was stated in the said writ petition by the petitioner that the petitioner has only been given the first page of the bill and accompanying pages were not delivered to the petitioner and without giving details of the bills it was submitted, that no recovery be made from the petitioner in respect of the said bills.
3. This court considered the submission of the counsel appearing for the parties and on consideration thereof found that the document namely – bill dated 18.5.1993 as filed in the writ petition contained only the first page of the bill bearing a foot note forming part of the bill and the remaining portion was not on the record. It was the case of the petitioner that only the said first page of the bill was received and the accompanying pages were not delivered to the petitioner. But the said plea was found to be not acceptable by this Court. The Division Bench however, issued a direction to
the respondent to deliver to the petitioner duplicate copy of the complete bill with whatever details may be available with it as regards the demand of Rs. 10,96,081.80 and on receipt of the said duplicate copy of the bills and details in accordance with the direction, the petitioner was asked to raise a dispute to the respondent and on the dispute being raised the respondent was directed to take steps for appointment of an arbitrator. It was also observed that reference of the disputes to the arbitrator shall be made in consonance with the provisions of Section 7B of the Indian Telegraph Act and that the arbitrator shall rendered a reasoned award within four months from the date of entering upon the reference and that the admitted amount not forming subject matter of dispute shall be deposited by the petitioner.
4. In terms of the aforesaid direction passed by the Division Bench duplicate copies of the bills with some details were sent to the petitioner. It is however, the stand of the petitioner that no such details have been received as ordered to be furnished by the court. The petitioner however, did not raise any dispute with the respondent nor deposited the admitted amount in terms of the order passed by this court. As the petitioner did not seek for a reference the respondent of its own made a reference to the arbitrator under Section 7B of the Indian Telegraph Act.
5. The arbitrator entered upon the reference and issued notices to the parties, who on receipt of the same filed their statement and counter statement. It was contended before the arbitrator by the petitioner that the respondent was required to furnish duplicate copy of the bills with whatever details and after receipt of the same within one month the petitioner was to raise dispute and after appointment in terms of section 7B of the Indian Telegraph Act the arbitrator was to render reasoned award withina months and the admitted amount was to be deposited by the petitioner. It was stated that as the bills with details/break up was not given and the dispute beyond the bill amount cannot be raised the reference was illegal. The arbitrator considered the counter claim raised by the respondent claiming total dues at Rs.10,99,874/- in respect of telephone No.6801740 with STD/ISD facilities for the billing cycle 1.5.1993 for Rs.9,49,916/-, bill-
ing cycle 1.7.1993 for Rs.1,14,463/- and for billing cycle 1.9.1993 for an amount of Rs.15,495/- totaling Rs.10,99,874/- excluding interest, total of which comes to Rs.23,91,107.20.
6. It was contended on behalf of the respondent in support of its counter claim that the bills were raised as per its meter readings for the actual use of the telephone made during the aforesaid periods for which the bills were issued and therefore, the petitioner is liable to pay the entire amount in terms of the claim. The arbitrator considered the record as also the pleadings of the parties and thereafter observed that the bills although raised from May 1990 to July 1993 for the billing cycle 1.5.1993 have been issued based on fortnightly meter reading of fortnight as per billing practice. He also observed that the petitioner at no stage approached the department for issue of bills. He also found that as item-wise details in respect of the bill could not be provided due to the reasons stated by the respondent which was also accepted by the High Court and as the duplicate bills have been submitted by the respondent with whatever
details as available with the respondent in terms of the orders of the High Court, it was ordered by the arbitrator upon consideration of the records that the petitioner is liable to pay the entire outstanding dues of Rs.10,99,874/- for the aforesaid 3 disputed billing cycles. The arbitrator, considering the over all facts of the case, allowed the petitioner to pay the amount in 4 monthly installments with a further order that in the vent of his failure to pay installments within 30 days after the bills are raised by the concerned Accounts Officer of the area, interest @ 18% per
annum would be chargeable. The claim for payment of interest from the date of the bill was however, declined by the Arbitrator. Being aggrieved by the award of the arbitrator the present petition has been preferred.
7. It was submitted by Mr. Nigam appearing on behalf of the petitioner that the award passed by the Arbitrator is not only barred by limitation but that is also an error apparent on the face of the record. He also submitted that the award is based on non-existent facts and is based on extraneous grounds. He submitted that the reference of the dispute in question was made by the respondent on 27.11.1997 and the award was passed on 31.12.1998 which is beyond the period of 4 months stipulated by the court and therefore, the said award is barred by limitation and is bad in
law. The said submission was considered by me giving due weight thereto. It is true that the said award was passed by the arbitrator beyond the period of 4 months without there beng any formal extension of time. But it is necessary to mention at this stage that the parties continued to appear before the arbitrator even after expiry of 4 months period and did not raise any objection regarding expiry of the 4 months period and continued to take part in the proceedings actively without raising objection regarding the limitation. Therefore, the parties by their conduct agreed to waive
of the period of 4 months stipulated for passing the award and therefore, for all practical purposes times for passing the award was extended by the parties which could be deduced from their conduct. For arriving at aforesaid findings I find support from a decision of the Supreme Court in Nagar Palika, Mirzapur Vs. Mirzapur Electric Supply Co. Ltd., . In the backdrop of almost similar facts the Supreme Court held that the conduct of the parties is a major factor to waive the extension of time given by the Court. In the said case the time was taken as extended taking into consideration the conduct of the parties in continuing to appear in the arbitration proceedings without objection. The first contention therefore, of the learned counsel appearing for the petitioner is without any merit.
8. The learned counsel for the petitioner thereafter referring to the observations of the arbitrator as recorded in the award submitted that the bills stated to have been issued for billing cycle 1.5.1993 were not based on fortnightly meter readings at regular intervals as held by the arbitrator. It is true that the arbitrator has recorded that the bills although raised for a period extending 3 years for the billing cycle 1.5.1993 were issued based on fortnightly meter readings at regular intervals, in my considered opinion the aforesaid observation has been made by the arbitrator upon perusal of the records of the case. In a matter like this the High Court cannot substitute its own views in place of the view of the arbitrator. The High Court does not have power to examine the matter as an appellate court as has been held by the Supreme Court in the case of B.V. Radha Krishna Vs. Sponge Iron India Limited, . On
going through the records it was found by the arbitrator that the bills although for the period from may 1990 to July 1993 for the billing cycle 1.5.1993 were issued based on fortnightly meter readings at regular intervals of fortnight and therefore, the said conclusions of fact cannot be upset in exercise of writ jurisdiction under Article 226 or the Constitution of India. It was also submitted that reference has been made to a letter dated 13.3.1997 in the award by the arbitrator. It is contended by
the counsel appearing for the petitioner that no such letter was placed before the Arbitrator. I have considered the record of the arbitrator and on perusal thereof find that in fact the letter dated 13.3.1997 existe on record which indicates that the Area Officer issued duplicate bills to the petitioner with whatever details that were available with the respondent. The said details contained the period for which the bill is issued and metering details also. The petitioner, after receiving the said letter dated 13.3.1997 should have raised the dispute in terms of the order of the
Court and should have paid the admitted dues which according to the learned counsel for the petitioner, the petitioner is liable to pay but were in fact not paid. The petitioner, therefore, even did not comply with the orders of the Division Bench of this Court. Counsel appearing for the petitioner also submitted that the forth nightly meter reading of telephone No.6801740 was not provided for at any point of time. Item wise details were not available with the respondent as the period for preservation of item wise billings is only six months and thereafter magnetic tapes are alone available for availing dates and therefore, it was not possible to give each and every detail but the bills were based on fortnightly meter reading on the basis of the magnetic tapes in the exchange which did not record item wise calls. The conclusion arrived at by the arbitrator cannot be said to be extraneous and/or unreasonable. I also do not find any error
apparent on the face of the record. The arbitrator is the sole Judge of facts, and adequacy and sufficiency of the evidence is not a matter for the Court to judge. So long as the finding of the arbitrator is based on some evidence it does not warrant any interference as has been held by a decision of this Court in C.W.P. No. 4880/1997 (Kalawati Agarwal Vs. MTNL) delivered on 1.12.1998. Therefore, there is no merit in this petition and the same is dismissed but without any costs.