Indus Towers Ltd v. Unitech Wireless(Tamil Nadu) Pvt Ltd & Anr

order. The petition, in so far as for other reliefs, is dismissed. No costs. Dasti.

RAJIV SAHAI ENDLAW, J FEBRUARY 12, 2013 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12th February, 2013. + O.M.P. 78/2013 INDUS TOWERS LTD ..... Petitioner Through: Mr. Arvind Nigam, Sr. Adv. with Ms. Ruchi Agnihotri Mahajan, Ms. Smarika Singh, Mr. Jai Mohan & Ms. Shreya Sircar, Advs. Versus UNITECH WIRELESS (TAMIL NADU) PVT LTD & ANR ..... Respondents Through: Mr. Rajiv Nayyar, Sr. Adv. with Mr. Ashish Bhan & Ms. Padmaja Kaul, Advs. for R-1. Mr. Sandeep Sethi, Sr. Adv. with Mr. Ashish Dholakia & Mr. Ashish Bhan, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW 1. This petition under Section 9 of the Arbitration and Conciliation Act, 1996, pending arbitration, seeks interim protection for the petitioner by restraining the respondent No.1 Unitech Wireless (Tamil Nadu) Private Limited from removing its active infrastructure from the passive infrastructure sites of the petitioner in the fourteen circles/service areas of Mumbai, Kerala, Karnataka, Tamil Nadu, Rajasthan, Punjab, Kolkata, West Bengal, Haryana, Andhra Pradesh, U.P. East, U.P. West, Maharashtra, Goa and Gujarat and by further restraining the sale/transfer of business of the respondent No.1 to the respondent No.2 Telewings Communication Services Private Limited, till payment by the respondent No.1 of the dues of Rs.207.73 crores of the petitioner. 2. The Counsels for the two respondents appeared on advance notice. However, it appears that certain other petitions of similar nature are pending before this Bench and for which reason this petition was also transferred to this Bench. 3. The petition came up before me first on 5th February, 2013 when it was sought to be posted on the same day when other similar petitions are listed. However, the senior counsel for the petitioner urged for ad interim relief as granted in the other petitions and which was vehemently opposed by senior counsels for both the respondents who stated that they are prepared to argue without filing replies and without prejudice to their contention as to the arbitrability of the disputes and for consideration of which question the other petitions have been posted. It may be noticed that it is the contention of the respondents that the disputes as raised by the petitioner are entertainable exclusively by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and are not arbitrable. In the circumstances, the counsels were heard on merits. 4. The petitioner is carrying on business of providing passive telecommunication infrastructure sites across India and passive infrastructure services to various telecom operators. The petitioner was providing such services to the respondent No.1 also which was providing telecommunication services under license from the Government of India and an agreement titled "Master Services Agreement" (MSA) dated 30th September, 2009 was entered into between the petitioner and the respondent No.1 for providing such services to the respondent No.1 in the fourteen circles/service areas aforesaid. Under the said agreement, the respondent No.1 placed its active infrastructure equipment on the petitioner"s towers built on as many as 4271 sites of the petitioner in the fourteen circles/service areas aforesaid and was paying charges in terms of the MSA to the petitioner. 5. The respondent No.1 vide its letter dated 31st December, 2012 informed the petitioner that in furtherance to the judgment of the Supreme Court in Centre for Public Interest Litigation Vs. Union of India, the licenses of respondent No.1 under which it was providing telecom services stands quashed with effect from end of 18th January, 2013 and consequently it was impossible for the respondent No.1 to carry on business of telecom services after 18th January, 2013; that in the Spectrum Auction held by the Government of India, the respondent No.2, an affiliate of Telenor, has been declared successful in circles/service areas of Gujarat, Andhra Pradesh, U.P. East, U.P. West, Maharashtra and Bihar and the tw