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TMI Blog2010 (10) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and realized by the respondent-Union of India in terms of the Licence Agreement executed between the parties. 2. The appellant-company holds a licence to provide cellular mobile telephone services for Delhi Metro area. The Licence Agreement executed between the appellant on the one hand and the Government of India on the other, inter alia, provided for payment of fixed amount towards licence fee for the first three years of the licence period. From the fourth year onwards the licence fee payable was to be on the basis of number of subscribers of the service provider subject to the minimum stipulated in the agreement. Clause 19 of the Licence Agreement in particular dealt with this aspect and, inter alia, provided that for the first three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrary computation of the advance payment stipulated for the entire quarter as due in the month of June itself and calculation of the interest and penal interest on the overdue amount. One other grievance of the appellant was regarding the Unit Call Rate for the purpose of calculation of the licence fee. It was contended by the appellant that in terms of the Licence Agreement the rate of Rs. 5 lakhs per 100 subscribers was based on the Unit Call Rate of Rs. 1.10. This rate was revised by the respondent to Rs. 6.023 lakhs per 100 subscribers or part thereof on 30th July 1998 based on the Unit Call Rate of Rs. 1.40 prevalent at that time. Unit Call Rate was then reduced to Rs. 1.20 from 1st May, 1999. The appellant, therefore, claimed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, contained a clause that no dispute relating to the Licence Agreement for the period upto 31st July 1999 shall be raised at any future date. The appellant gave its unconditional acceptance to the entire Migration package on 27th July, 1999. Having done so, the appellant was not entitled to raise any issue that related to the pre-migration period. 6. There is, in our opinion, no legal infirmity in the view taken by the Tribunal. Once the petitioner-appellant had specifically and unconditionally agreed to accept the Migration Package and given up all disputes relating to Licence Agreement for the period upto 31st July 1999, it was not open to it to turn around and agitate any such dispute after availing of the Migration Package. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. 8. In the light of the above, the view taken by the Tribunal is legally unexceptionable. 9. That brings us to the second issue formulated by the Tribunal for determination. The Tribunal has answered this issue in favour of the appellant holding that while respondent was entitled to recover licence fee together with interest from the earlier unpaid amounts upto and for the month of July 1999, it was not entitled to recover both advance quarterly licence fee for July-September 1999 and revenue-sharing fees for August 1999 and September 1999 in terms of the Migration Package. This part of the order of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal has rightly held that the petitioner-appellant had not led any evidence before it and that the question regarding Unit Call Rate was raised by it at any stage either before or after the licence was issued for the year 1994 and that the issue relating to the Licence Agreement could not be agitated being a pre- migration package. 12. That leaves us with issue No. 4 formulated by the Tribunal relating to the levy of interest on the licence fee from 1st January 2000 till actual date of payment. The Tribunal has taken the view, and in our opinion rightly so, that the respondents were entitled to recover not only the outstanding licence dues but also interest due on the same for the period of default. The Tribunal has rightly held that to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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