Approbate and reprobate barred challenge to migration package burdens, while licence-linked liquidated damages remained enforceable.

Commercial commencement was held to be properly refused where the appellant had not rectified technical deficiencies or satisfied licence conditions, and its own correspondence showed the system was not ready; the denial was therefore not arbitrary, mala fide, or discriminatory. The appellant also could not challenge liquidated damages after unconditionally accepting and acting upon the Migration Package, paying the demanded sums, and taking its benefits. On those facts, the doctrines of approbate and reprobate, election, and estoppel by acceptance of benefits barred the challenge, and the liquidated damages were treated as consistent with the licence conditions.

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Issues: (i) Whether the appellant was ready to commence commercial operations within the stipulated period and whether denial of permission to commence operations was arbitrary or discriminatory. (ii) Whether the appellant, after unconditionally accepting the Migration Package and acting upon it, could challenge the levy and recovery of liquidated damages.

Issue (i): Whether the appellant was ready to commence commercial operations within the stipulated period and whether denial of permission to commence operations was arbitrary or discriminatory.

Analysis: The record showed that commercial operations actually commenced only on 5 June 2000, and that commencement was delayed because the required technical deficiencies were not rectified and the licence conditions were not satisfied. The appellant's own correspondence showed that the system was not ready and that no firm date for launch could be given. The denial of permission was therefore linked to non-compliance with licence conditions and not shown to be arbitrary, mala fide, or discriminatory.

Conclusion: The issue is decided against the appellant.

Issue (ii): Whether the appellant, after unconditionally accepting the Migration Package and acting upon it, could challenge the levy and recovery of liquidated damages.

Analysis: The Migration Package required unconditional acceptance, payment of outstanding dues, and settlement of existing disputes. The appellant accepted the package without demur, paid the demanded amounts including liquidated damages, and derived the benefit of the package. Having taken the benefit of the instrument, the appellant was barred by the doctrine of approbate and reprobate, the doctrine of election, and estoppel by acceptance of benefits from challenging the very burden attached to it. The computation of liquidated damages was also found to be in conformity with the licence conditions.

Conclusion: The issue is decided against the appellant.

Final Conclusion: The appellant's challenge to both the refusal to permit early commencement and the demand for liquidated damages failed, as the contractual conditions and the Migration Package bound the appellant to the liability accepted under them.

Ratio Decidendi: A party that unconditionally accepts and acts upon a contractual migration or settlement package cannot later challenge the burdens attached to it, and a demand for liquidated damages consistent with the governing licence conditions is enforceable where the underlying non-compliance is established.

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