* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Order delivered on: 15th September, 2016

+ ARB. P. No.346/2016

VIOM NETWORKS LIMITED ..... Petitioner

Through Mr.Amar Gupta, Adv. with
Mr.Manish K. Jha & Mr.Divyam
Agarwal, Advs.

versus

VIDEOCON TELECOMMUNICATIONS LIMITED ..... Respondent

Through Mr.Sndeep S. Ladda, Adv. with
Mr.Soumik Ghosal & Mr.Devender
Singh, Advs.

CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The petitioner has filed the abovementioned petition under

Section 11(6) of the Arbitration and Conciliation Act, 1996 for
appointment of an Arbitrator on behalf of the respondent, in the
arbitration initiated by the petitioner vide its letter dated 21st April,
2016 for resolving the disputes and differences that have arisen under
the Agreements between the parties and as mentioned in the present
petition. The prayer is also made to appoint an Arbitrator who would
act as the Presiding Arbitrator, in the event that the Arbitrator
nominated by the petitioner and the Arbitrator appointed by this
Court on behalf of the respondent fail to agree upon the name of the
third arbitrator within a time frame as fixed by this Court.

2. The relevant dates and events are referred as under:-

Arb.P. No.346/2016 Page 1 of 7

 (i) On 1st November, 2008, a Passive Infrastructure Sharing
Agreement ("QTIL MSA") was entered into between Quippo
Telecom Infrastructure Ltd. ("QTIL") and Datacom Solutions
Private Ltd. (now Videocon Telecommunication Limited) for
providing passive telecom infrastructure facilities and
services all over India.
(ii) On 14th August, 2009, the Wireless-TT Info Services Limited
(WTTIL) entered into a Master Infrastructure Provisioning
Agreement with the respondent for providing passive
telecom infrastructure facilities and services all over India
including at specific circle/s as may be specified in the
agreement ("WTTIL MSA").
(iii) In 2010, QTIL merged their passive infrastructure
businesses with WTTIL vide a scheme of arrangement under
Sections 391-394 of the Companies Act, 1956.
Subsequently, the name of WTTIL was changed to Viom
Networks Limited, the Petitioner herein.
(iv) On 20th May, 2010 WTTIL MSA was amended by way of an
Addendum Agreement ("Addendum-WTTIL MSA"), by which
Quadrant Televentures Limited ("QTL") was included as a
Party under the WTTIL MSA along with subsequent
amendments. The QTIL MSA was also amended by way of
an Addendum Agreement dated 22nd January, 2009 and 20th
May, 2010 ("Addendum-QTIL MSA"), by which QTL was
included as a Party the QTIL MSA along with subsequent
amendments.
(v) Thereafter, the parties decided to have a single Agreement
between the petitioner and the respondent. But pending

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 execution of single Agreement, the parties decided to amend
WTTIL MSA and QTIL MSA vide an addendum dated 27th
December, 2010 executed between the petitioner,
respondent and QTL ("Addendum").
(vi) In December, 2011, the total recoverable outstanding from
the respondent accumulated to Rs.65.27 Crores. The
respondent approached the petitioner with a request to
change certain terms and conditions of QTIL MSA, WTIIL
MSA, Addendum and TFCITL MSA (Collectively called as
"Agreement") and flexibility in payment of all outstanding
dues.
(vii) On 12th December, 2011, the petitioner and respondent,
alongwith VINL, QTIL, and WTIIL entered into a
Memorandum of Understanding ("MOU") to change a few of
the terms and conditions of the aforesaid Agreement
including the payment terms and terms relating to power
and fuel costs. The respondent acknowledges the
outstanding amount.
(viii) Thereafter, on 12th September, 2013, the parties executed a
Supplementary Agreement for resolving the outstanding
issues between the parties. The respondent acknowledged
an outstanding amount of Rs.70.88 crores on account of IP
Fees and bills for power and fuel reimbursement.
(ix) By letter dated 27th November, 2015, the respondent
communicated that it would shut down its mobile operations
in Gujarat service area with effect from midnight of 26th
December, 2015. The respondent further requested the
petitioner to immediately stop monthly billing for the sites

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 and allow the respondent to remove its telecommunication
equipment without imposing any exit penalty.
(x) The Petitioner received another letter of the same date from
the respondent suggesting for revision of the agreed
extended lock-in period and proposed the lock-in period to
be revised to 23 months.
(xi) On 7th December, 2015, the petitioner informed the
respondent of its consistent default and demanded
Rs.159.02 Crores plus applicable taxes, on account of loss of
revenue; Lock in charges/Exit fee of Rs.78.34 Crores plus
applicable taxes on account of premature exit from sites in
Gujarat; Outstanding Monthly Fee and other charges,
amounting to Rs.91.40 Crores; Rs.30.34 Crores on account
of waiver of interest; Payment of interest amount of
Rs.21.60 Crores accrued till April 2013 and interest @ 18%
p.a. from the date on which the sums were due till the date
of actual payment.
(xii) This Court vide its order directed the respondent to deposit
the claim amount if the spectrum is sold to any third party.
(xiii) By letter dated 11th April, 2016, the petitioner asked the
respondent to pay for the IP fee for the month of March
2016. In reply to the said letter, the respondent without
denying their liability, simply stated that since the matter is
subjudice, they will not make any payments.

2.1 It is stated by the petitioner that as per the mechanism for

resolution of dispute provided under Clause 17.1 and 17.2 of the
Wireless-TT Info Services Limited ("WTTIL") Master Infrastructure

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Provisioning Agreement, the parties agreed that the disputes will have
to be referred to Sole Arbitrator mutually appointed by the parties.

2.2 Accordingly, the petitioner had proposed the name of Ms.

Justice Usha Mehra, Former Judge of this Court, B-57, Defense
Colony, Delhi-110024, to act as an Arbitrator and adjudicate upon the
disputes under the Agreements. The respondent in its reply to the
arbitration notice has not consented to the name of Ms. Justice Usha
Mehra to act as sole Arbitrator. Since, the respondent is not agreeable
to the appointment of the said arbitrator as sole Arbitrator, Mrs.
Justice Usha Mehra shall be treated as the nominee of the petitioner
to the Arbitral Tribunal consisting of three Arbitrators as provided
under the WTTIL Master Infrastructure Provisioning Agreement.

2.3 Since there is a continuous liability on account of non-payment

of monthly fee and accumulated interest, under these circumstances,
the petitioner was constrained to invoke the arbitration agreement on
21st April 2016 for settlement of the disputes under the two Master
Infrastructure Provisioning Agreements as per dispute resolution
clause provided in the WTTIL MSA.

3. The petitioner states that till the filing of the present petition,
which is more than thirty days (30) days from the date of notice of
invocation of arbitration calling upon the respondent to nominate their
Arbitrator, it has not received any communication from the
respondent appointing their nominee Arbitrator.

4. Learned counsel for the petitioner states that there is a valid

and binding arbitration agreement between the parties. It is just,
necessary and equitable that this Court may appoint an arbitrator on
behalf of the respondent on the Arbitral Tribunal consisting of three

Arb.P. No.346/2016 Page 5 of 7

Arbitrators for adjudication of the disputes/claims as stated in the
present petition and other claims, disputes or differences as may be
submitted by the petitioner before the Tribunal.

5. Notice of this petition was issued to the respondent. Time was

also given to the respondent to file the reply. However, the reply was
not filed. Further time is sought. The request is opposed by the
petitioner.

6. The only contention of the respondent is that the disputes

between the parties are to be decided by the TDSAT and not under
the Arbitration Act. When it was pointed out to him that the similar
issue has already been decided by another Bench in Viom Networks
Ltd. v. S-Tel & Ors., reported in AIR 2014 Del. 31, as well as by this
Court in O.M.P.(I) (COMM.) No.95/2016 between the same parties
vide judgment dated 14th September, 2016, counsel says that the
respondent intend to contest the said decision, however, it is not
denied by the counsel for the respondent that there is valid
agreement executed between the parties which contains the
arbitration clause.

7. I have heard the learned counsel for the parties. In case the
averments made in the petition and the documents placed on the
record are read in a meaningful manner, I am of the view that the
prayer made in the above said petition is liable to be allowed. As far
as the objection of the respondent is concerned, the respondent is at
liberty to raise the same before the Arbitral Tribunal. There is no stay
by any Court about the findings of two Courts, thus, there is no
impediment to pass this order.

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8. Accordingly, Dr. Justice M.K. Sharma, former Judge, Supreme
Court of India (Mobile 9818000190) is appointed as an Arbitrator on
behalf of the respondent. Both the Arbitrators, as appointed by the
petitioner as well as by this Court, will mutually appoint a Presiding
Arbitrator within one month. The Arbitral Tribunal shall adjudicate
the disputes and differences that have arisen under the Agreements
between the parties and as mentioned in the present petition. The
parties are also allowed to file their respective claims and counter-
claims before the Arbitral Tribunal.

9. The Arbitral Tribunal shall ensure the compliance of the

provisions of Arbitration and Conciliation (Amendment) Act, 2015
before commencing the arbitration. The fee of the Arbitrators
consisting the Arbitral Tribunal shall be in terms of the schedule of the
amended Act.

10. The petition is accordingly disposed of.

11. Copy of this order be given dasti to the learned counsel for the
parties and a copy thereof be delivered to the learned Arbitrators
forthwith.

(MANMOHAN SINGH)
JUDGE
SEPTEMBER 15, 2016

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