TaxTMI 
TaxTMI 
2010 (10) TMI 1017
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before the Tribunal so also before us is that, it was ready to commence commercial operations in the last week of February 1999 and had sought permission of the respondents to do so. Permission was, however, denied on the ground that certain technical deficiencies remained to be removed and certain conditions for the grant of permission remained to be fulfilled. In the meantime the Union of India appears to have offered a Migration Package to all the Telecom Operators in July 1999. Under this package which was offered to the appellant-Shyam Telelink Ltd. on 22nd July, 1999 the fixed licence fee was to stand replaced by a revenue-sharing arrangement w.e.f. 1st August, 1999 subject to the stipulation that atleast 35% of all outstanding dues including interest payable as on 31st July, 1999 and liquidated damages in full is paid by the appellant on or before 15th August, 1999. Migration Package further provided that the company shall have to accept all the conditions stipulated in the package and that all proceedings instituted by the licensee or their associations against the Union of India shall have to be withdrawn. 3. It is not in dispute that the appellant gave an unconditional ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the petitionerappellant was not entitled to question any demand arising out of the agreement executed between the parties after it had unconditionally accepted the Migration Package under which it agreed to deposit without demur the outstanding licence fee as also the liquidated damages payable under the licence agreement. The respondent also asserted that the appellant was not ready with the commissioning of the service as was evident from the admissions made in several communications sent by it to the respondent. It was further pointed out by the respondent that the computation of actual liquidated damages could be undertaken only after the appellant had commenced commercial operations. The actual charges after such computation were according to the respondent determined at Rs. 29.86 crores but the demand was restricted to Rs. 8 crores in terms of the explicit limitation prescribed under the licence. An amount of Rs. 7.3 crores having already been paid under the Migration Package, a demand for payment of Rs. 70 lakhs only was raised by the respondent. It was also asserted by the respondent that the appellant had not disputed calculation of the amount of Rs. 7.3 crores as li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....count as stipulated under condition 18.6 of the Licence Agreement). 8. Material further established that the deficiencies pointed out by the TEC could not be rectified by M/s Qualcomm manufacturer of the equipment purchased by the appellant forcing the latter to go for a new set of equipment from a new vendor in December 1999 which equipment was finally delivered and installed in April 2000. It was only after the installation of the said equipment that fresh test certificates were issued by TEC on 1st June, 2000 leading to the start of the commercial operations on 5th June, 2000. The fact that the appellant was not ready to commence commercial operations in February 1999 is evident from its own letter dated 19th July, 1999 in which the appellant had clearly admitted that the system was not yet ready for such operations and that the appellant was engaged only in monitoring and testing the credential of the new technology and the related software/hardware. It is also evident from the letter of the appellant dated 25th August, 1999 that the appellant was not in a position to indicate any firm date for a formal launch of the service as the system was not yet in a position to do so. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondents to decline permission to commence commercial operations on account of failure on the part of the appellant to comply with the conditions stipulated in the said agreement, which condition included a defect-free efficient system, the fact that some other service providers were given permission in the peculiar facts of their cases and deficiencies allegedly noticed in their system could not make out a case for the appellant to question the demand raised on the basis of a package which the appellant had accepted unconditionally and pursuant to which acceptance a substantial part of the liquidated damages amounting to Rs. 7.3 crores had been deposited by it without any demur. 11. The Tribunal has also held and in our view correctly so that the computation of the liquidated damages for noncommencing of the services as well as limiting the same to a total amount of Rs. 8 crores was in conformity with the licence conditions executed between the parties. There is nothing before us to suggest that any error has crept in the computation of liquidated damages nor was any such error pointed out before the Tribunal. As a matter of fact, according to the respondents the amount of dama....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. In Ambu Nair v. Kelu Nair AIR 1933 PC 167 the doctrine was explained thus: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a wellaccepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker (1878) LR 8 CP 350 at p. 357 '....