SHYAM TELELINK LTD. NOW SISTEMA SHYAM TELESERVICES LTD. versus UNION OF INDIA

Citation: [2010] 12 S.C.R. 927 · Decided: 05-10-2010 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Dismissed

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Judgment (excerpt)

[2010] 12 S.C.R. 927 
SHYAM TELELINK LTD. NOW SISTEMA SHYAM 
A 
TELESERVICES LTD. 
V. 
UNION OF INDIA 
(Civil Appeal No. 7236 of 2003) 
OCTOBER 5, 2010 
B 
[MARKANDEY KAT JU AND T.S. THAKUR, JJ.) 
Telecom Regulatory Authority of India, Act, 1997 - s. 
14(f!}(i) rlw s. 14A(1) - Grant of licence to a company under C 
Telecom Act for providing basic telecom services - Delay in 
commencing the commercial operations within the stipulated 
time provided in the agreement due to certain technical 
deficiencies - In the meantime, introduction of 'Migration 
Package' -
The company unconditionally accepting the D 
package and paying the entire amount towards the licence· 
fee and liquidated damages in terms of the package - Further 
demand of amount towards liquidated damage -
The 
company challenging the demand of entire amount towards 
liquidated damages and demanding refund thereof - The E 
tribunal declined the challenge -
On appeal, Held: The 
company not entitled to question the terms of the Migration 
Package after unconditionally accepting and acting upon the 
same - The unconditional acceptance of the package would 
estop the company from challenging the recovery of the dues 
F 
under the package - The company cannot be allowed to 
approbate and reprobate the same instrument - Telecom Act, 
1885 - Evidence - Estoppel. 
Maxim -
Maxim 'qui approbat non reprobat' -
Applicability of. 
G 
Doctrine -
Doctrine of benefits and burdens -
Applicability of. 
927 
H 
928 
SUPREME COURT REPORTS 
[2010] 12 S.C.R. 
A 
The appellant was granted a licence under the 
Telecom Act, 1885 on 4.3.1998 for providing basic 
telecom services. The licence agreement required the 
appellant to start the commercial operations within twelve 
months from the date of the agreement. The appellant, 
B when sought permission to commence the commercial 
operations, towards the end of the year, it was denied on 
the ground that certain technical deficiencies remained 
to be removed. In the meantime, the respondent-Union of 
India offered a Migration Package. The appellant gave an 
C unconditional acceptance to the Package. The 
respondent, in terms of the package, demanded 35% of 
the outstanding licence fee with interest, and also 
liquidated damages amounting to Rs. 7.30 crores. The 
appellant prayed for waiver of the damages and the same 
D on being turned down, paid the entire amount towards 
the liquidated damages. The appellant started the 
commercial operations on 5.6.2000. Thereafter, the 
respondent demanded a further amount of Rs. 70 lakhs 
as liquidated damages from the appellant for the delay in 
commissioning the service. Aggrieved by the demand of 
E the entire amount of Rs. 8 crores towards the liquidated 
damages, the appellant filed a petition before the Telecom 
Dispute Settlement and Appellate Tribunal and also 
demanded refund of the entire amount of Rs. 8 crores. 
The Tribunal dismissed the petition. Therefore, the 
F instant appeal was filed. 
Dismissing the appeal, the Court 
HELD: 1. The Tribunal was justified in holding that 
G the commercial operations were started only on 5th June, 
2000 and that for the intervening period such operations 
could not be commenced on account of deficiencies that 
were attributed entirely to the defects in the system which 
the appellant had installed. It is not correct to say that the 
appellant was ready to commence commercial 
H 
SHYAM TELELINK LTD. v. UNION OF INDIA 
929 
operations in February 1999 i.e. within one year of the 
A 
date on which the agreement was signed between the 
parties, which is evident from the fact that it applied for 
the grant of permission to commence commercial 
operations from 3rd February, 1999 and this was 
sufficient to show its readiness to commence such 
B 
operations. It is not disputed that the actual operations 
started only on 5th June, 2000. The material placed 
before the Tribunal clearly established that during the 
intervening period, the appellant had been informed by 
the respondent that clearance for commencing c 
commercial operations could be considered only after 
certain requirements of the licence agreement were 
complied with. The material further established that the 
deficiencies pointed out by the Telecommunication 
Engineering Centre (TEC) could not be rectified by the 
0 
. 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 fin

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