JUDGMENT
P.K. Bahri, J.
1. Office has made a mistake in giving I.A. No. 999/94 as well as Suit No. 251/94 to the application filed under Section 7(B) of the Indian Telegraph Act read with Section 20 of the Arbitration Act. Only suit number was liable to be given and not I.A. number. So, this I.A. number should be treated as cancelled. Office to make necessary corrections in the registers.
2. I have heard the arguments for deciding the two applications by which the petitioner has sought relief of temporary injunction in respect of the telephone bills raised by the respondent pertaining to telephone No. 608527. The main petition has been filed for appointment of an arbitrator for deciding the disputes arising between the parties with regard to the two bills raised by the respondent. I may mention that at first the provisional bill was raised claiming a sum of Rs. 18,33,042/- in respect of the said telephone and the petition was filed seeking reference of said disputed bill for decision by an arbitrator and the temporary injunction was sought restraining the respondent from disconnecting the telephone of the petitioner for non-payment of the amount of the said bill.
3. During the pendency of these proceedings an additional bill had been raised claiming total amount of Rs. 40,18,296/-. The petitioner had been already allowed to amend the petition to raise the dispute in respect of this bill.
4. Admittedly the said particular telephone of the petitioner installed at the premises of the petitioner at B-203, Bhikaji cama Place, has no STD facility granted to it. The petitioner had admittedly 20 more telephones and STD facility is stated to be available on those telephones. On receipt of some information by the authorities regarding illegally made available STD facility on telephone No. 608527 where the STD calls were not being metered, the Assistant Engineer Phones (Tech), Chanakya puri Exchange, was required to keep the above telephone under Multi-Link Observation Equipment (MLDE) for observation. It was detected that STD facility through barred on the aforesaid telephone was being availed of and it was found that the STD calls were being made from that telephone at various places outside Delhi and some of the telephone calls were on the Branch Offices of the petitioner at Guwhati, Calcutta, Bomboy, Solan and Kanpur.
5. On October 4, 1993, the Inspection Team visited the premises of the petitioner as well as Chanakya puri Telephone Exchange. The aforesaid telephone was checked in the Switch Room/Auxiliary Distribution Frame and Meter Room. It has come out in the reply affidavit of Sh. R. K. Saini, Vigilance Officer of the respondent, that vigilance team led by SDO (Phones), Chanakya Puri and the Field Staff reached the office of the petitioner at Bhikaji cama Place but the gateman at first did not permit the Inspecting Team to enter the premises of the petitioner-company and then the inspecting Team reached the third floor and met the Receptionist and one Shri Wadhwa, Director of the petitioner and Sh. D. K. Garg, Advocate, who declined to supply the list of various telephones available in their office and they did not allow the Inspection Team to inspect the working telephones. The telephones were mostly working in EPABX System. Efforts of the team to locate the disputed telephone were being thwarted as no cooperation was being furnished by the representatives of the petitioner. The lineman reported that there was a dial tone on its pair No. 68/9/83 at Pillar No. 63X but he was not getting contact when ring was giving to the said telephone from another telephone pair in that Pillar. The Inspecting Team started to trace the line from that Pillar and found that the said telephone was having dial tone and coming towards the premises of the petitioner it terminated at Tag No. 5 of internal distribution point at the ground floor of the said premises and it was further going to the internal Distribution Point located at 3rd floor inside the premises of the petitioner and terminated on junction No. 7 of EPABX Board installed on the third floor of the petitioner’s premises. The Inspecting Team at the Telephone Exchange found that the said telephone was found terminating on a spare STD location No. 01B-3-38 instead of its original location No. 01B-3-47. So, in this way the said telephone was found to having STD facility without metering as there are no meters installed on the spare STD location. So, it was discovered that to avoid detection, somebody had tampered with the equipment/record indicating the said telephone number against the spare STD location in the grid whereas the original location of the said telephone was at 10A-3-03 and due to the said diversion on the spare STD location used for telephone in question, the same may not be detected. So, by this arrangement the petitioner was able to make outgoing calls both STD as well as local but was not in a position to receive in any incoming calls on that telephone. Then the Team practically used the telephone as a test case for making STD call and one call to Bombay matured and on the direction of the Director (Vigilance) efforts were made to have talk with Mr. Wadhwa, Director of the petitioner, who refused to speak to him. However, Sh. K. C. Gupta, one Director, came spoke to Director (Vigilance) and he admitted that the telephone in question was not receiving any incoming calls but STD facility was available on that telephone. The checking of the meter of the telephone indicated that meter was recording nil calls very often and the calls which were checked as per Multi Link. Observation Equipment were not metered. It was mentioned that similar type of mal-practice/modus operand was adopted by four other subscribers of the same Exchange and on detection one of them admitted the use of such STD facility illegally and a bill, which was raised on that basis, was paid; another subscriber also had paid substantial amount against the bill raised against him.
6. The petitioner was issued the bill Along with the letter dated January 4, 1994, giving out the facts on the basis of which the provisional bill was issued. Mr. M. R. Gupta, Accounts Officer (Vigilance) had filed an additional affidavit giving the details of the inspection carried out and it came out that it is only at about 4.15 p.m. that Sh. Wadhwa and Sh. D. K. Garg, Advocate, were met at the Reception and there after they traced the telephone and started making calls to verify whether the STD facility was available on the said telephone or not and after various affords Bombay call matured and some local calls were also made. At 6.30 p.m. the Inspecting Team had left the said premises.
7. In the petition, the petitioner had referred to other litigation taking place between the petitioner and the respondent and the petitioner had pleaded that it is only to harass the petitioner that some mischief had been carried out with the telephone in question and even the Director of the petitioner wanted joint inspection to be made in the matter in order to find out the culprit. So, the case set up by the petitioner is that the petitioner has not done the mischief and the mischief must have been done by some persons who were having some disputes with the petitioner with regard to pay-off phones.
8. The learned counsel for the petitioner has vehemently argued that before raising the impugned bills no opportunity has been given to the petitioner to explain the position and thus, the payment of the bills could not be inforced. In the alternative, he has contended that once on material racts. a bill although called ‘provisional bill’ had been raised, there is no occasion for the respondent to have raised additional bill later on which is not based on any new facts coming into existence and thus, by raising the first bill the respondent should be deemed to have waived its right to raise the second bill.
9. The learned counsel for the petitioner has referred to M/s. S.G. Steels Pvt. Ltd. v. Union of India , where a Bench of this High Court while examining the Provisions of Rule 505-B of the Telephone Rules 951, had held that the court will have to read the provisions of natural justice in Section or Rule if the same is silent and thus, aforesaid rule shall be read to include that the telegraph service shall not be withdrawn and the telex and other apparatus shall not be removed unless the subscriber is served with a reasonable show cause notice for the said purpose.
10. In the present case, this judgment is not applicable because the first bill which was raised, was not to be paid forthwith and the bill was to be paid after a fortnight and there was ample time available to the petitioner to make any representation against the said bill. The reasons for raising the said bill had been already given in the letter which was sent Along with the bill. So, it cannot be said that the bill has been raised without petitioner being afforded an opportunity of hearing to have its say against the aforesaid bill.
11. Similarly, the second bill has been raised which gives on one month’s time to the petitioner to make the payment. The petitioner could make representation against such bill within one month So, it cannot be said that the bills in question could be declared invalid as they have been raised without first an opportunity of hearing to the petitioner.
12. The learned counsel for the petitioner has made reference to Municipal Corporation of Delhi v. M/s. Ahanta Iron & Steel Co. Pvt. Ltd. . In the said case, on the basis of detection of theft of electricity, the electricity of the respondent was disconnected without giving and show cause notice. The Supreme Court held that it is not understood as to what is the difficulty in the way of the MCD to serve a notice on the consumer before disconnecting the supply. This judgment is not applicable to the facts of the present case because the telephone had not been disconnected forthwith. The bill had been raised, the grounds on which the bill was raised were disclosed to the petitioner and sufficient time had been granted to the petitioner to make the payment meaning thereby that before the telephone could be disconnected for non-payment, the petitioner had ample time to make any representation to the respondent against the bill.
13. The second bill has been raised by the respondent on the basis of calculation made for last three years. It is not shown to this court as to on what basis the charges could be levied for three years on the basis of detection made in respect of the STD facility being illegally used on the telephone in question in 1993. In case the respondent was entitled to have the charges for last three years on the ground that such STD facility must have been illegally used for last three years, then such a demand could have been made in the first bill itself. So, prima facie, it is not possible to hold that the second bill has been raised by the respondent on any valid legal grounds.
14. So, I am of the view that the petitioner is not entitled to have any injunction in respect of the first bill. I, hence, grant temporary injunction restraining the respondent from disconnecting the telephone in question or other telephones of the petitioner installed at the said premises on the basis of the bills in question subject to the petitioner paying a sum of Rs. 18,33,042/- within five days till the disposal of the main petition. These applications are, hence, disposed of.