It is number in dispute that the appellant gave an unconditional acceptance to the Migration Package on 22nd July, 1999 number is it disputed that on 10th August, 1999 the respondent advised the appellant that a sum of Rs.6,74,90,481/ was payable towards outstanding licence fee and interest due thereon apart from a sum of Rs.7.30 crores payable towards liquidated damages that were provisionally determined.
The respondent companytested the petition before the Tribunal, inter alia, on the ground that the petitioner appellant was number 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.
By its order dated 9th April, 2003 impugned in this appeal the Tribunal dismissed the petition filed by the appellant aggrieved whereof the appellant has filed C.A. No.7236 of 2003 before this Court.
As mentioned earlier the appellants case before the Tribunal was that it was ready to companymence companymercial operations in the last week of February 1999 and had sought permission to do so from the respondent which permission was in an arbitrary, illegal and discriminatory manner refused by the respondent.
Recovery of the liquidated damages was, therefore bad, argued the appellant who demanded refund of the entire amount of Rs.8 crores recovered towards liquidated damages from it.
Aggrieved by the demand of Rs.8 crores towards liquidated damages out of which the appellant had already paid Rs.7.30 crores on 16th August, 1999 the appellant approached the Tribunal for redress.
The actual charges after such companyputation 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.
It also paid the full amount of Rs.7.30 crores towards liquidated damages as demanded by the Government.
Commercial operations in Rajasthan were finally started by the appellant company on 5th June 2000.
It was also asserted by the respondent that the appellant had number disputed calculation of the amount of Rs.7.3 crores as liquidated damages for number companymissioning of the service at the time of Migration Package and paid the same with other dues.
Having done so, the Migration Package which companytained a specific stipulation that the acceptance of the package will be deemed as a full and final settlement of all existing disputes whatsoever irrespective of whether they are related to the present package or number companyld number be questioned by the petitioner appellant.
It was further pointed out by the respondent that the companyputation of actual liquidated damages companyld be undertaken only after the appellant had companymenced companymercial operations.
In March 2001 a demand was raised by the respondent for payment of a further amount of Rs.70 lakhs as liquidated damages for the delay in the companymissioning of the service.
The factual matrix giving rise to the appeal may be summarised at the outset.
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.
Migration Package further provided that the companypany shall have to accept all the companyditions 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.
The respondent also raised the question of limitation and assailed the maintainability of the petition on that ground.
However, we hope to companymercialize the services by middle of December 1999, as supplier is companytinuously working to resolve the bugs in the software.
The respondent also asserted that the appellant was number ready with the companymissioning of the service as was evident from the admissions made in several companymunications sent by it to the respondent.
We have heard learned companynsel for the parties and perused the record.
