CIRCULAR HOTEL PVT. LTD. vs CHIEF GENERAL MANAGER, CALCUTTA TELEPHONES

THIS is an appeal filed against the order dated 5.8.1999 passed by the Calcutta District Forum Unit-II in the Forum Case No. 433/1999. The impugned order was really an interim order rejecting the complainant''s prayer for summoning and examine a witness. But the hearing was not concluded and no final order was passed. The complainant''s case in brief was an under.

THE complainant (Circular Hotel) disputed the telephone bill for the cycle 8/1996 for the amount of Rs. 60,509/-. According to the complainant the telephone remained out of order for a major part of the period in question. Moreover, the E.P.A.B.X. installed in the hotel with the permission of the O.P. recorded very few originating telephone calls during the said period. It was the complainant''s allegation that the O.P. had artificially registered bogus telephone calls through their metering equipment. THE complainant prayed for examining the representative of the manufacturer of the E.P.A.B.X. with a view to proving that the number of calls recorded by the E.P.A.B.X. was correct. However, this prayer of the complainant was opposed by the O.P. (Calcutta Telephones) on the ground that the disputed bill is required to be referred for Arbitration under Section 7B of the Indian Telegraph Act. After hearing both sides the Forum felt that there was no need to examine any further witness (two witnesses having been examined already) and accordingly rejected the prayer of the complainant for examining the witness as prayed for. With this observation the Forum fixed a date for hearing of the matter on merits. But being aggrieved by the interim order the complainant/appellant has filed an appeal before the Commission. In the memo of appeal the main point that has been pleaded by the appellant is that the Forum erred in rejecting the complainant''s prayer for examining the witness and it has been further pleaded that such examination of the witness was very necessary to prove the complainant''s case and the complainant''s right in this regard cannot be taken away by the Forum. The respondent has filed an objection to the memo of appeal in which the main points taken are as under : (1) As the interim order has been challenged, an appeal cannot lie and only a revision petition may lie. (2) The complainant being a limited company is not a consumer under the Consumer Protection Act. (3) In case of complaint relating to excess billing the Forum has no power to reduce the bill and the appropriate course of action is to refer the matter for arbitration upon payment of a provisional bill.

During the hearing the learned Counsel for the appellant also filed a letter stating that the appellant wanted not to press the appeal with liberty to apply for Arbitration in accordance with law. As a matter of fact this is also the stand taken by the respondents in their objection. Therefore, on this point there is agreement between the parties to the effect that the disputed bill is required to be referred to the learned Arbitrator under Section 7B of the Indian Telegraph Act. This is also the well-settled principle in such disputes and hence we have no hesitation to decide that the disputed bill is to be referred to the learned Arbitrator under Section 7B of the Indian Telegraph Act. We also find from the objection filed by the respondents (vide Paras 5B & C of the objection) that the Forum passed an interim order directing the O.P. to raise a provisional bill for Rs. 25,000/-. Accordingly such a provisional bill was issued and also paid by the complainant. In view of such payment being made provisionally against the disputed bill it is not necessary for the complainant to make any further payment for referring the matter to the learned Arbitrator. If however the said provisional bill has not yet been paid the complainant is directed to pay the same immediately. As already stated, both the parties concur that the appropriate Forum for adjudication of the dispute is the learned Arbitrator as provided under Section 7B of the Indian Telegraph Act. The appeal is however dismissed on contest. It is so because the appeal has been filed against the order of the Forum rejecting the prayer of the complainant to examine a witness. When the main matter itself is being referred to the Arbitrator, there is hardly any point in examining a witness or in continuing the proceeding in the Forum.

IN view of the foregoing discussion we deem it appropriate to pass the following order. The disputed bill for the cycle 8/1996 for the amount of Rs. 60,509/- shall be referred to the learned Arbitrator under Section 7B of the INdian Telegraph Act for adjudication. Be it noted that the decisions of the learned Arbitrator shall be binding on both the parties. The appeal as well as the complaint petition filed before the Forum is disposed of in terms of this order. However, there will be no order as to cost. Appeal disposed of.