HC dismisses Rs.7.8bn damages claim from SLT
The Colombo High Court upheld the preliminary objection raised by defendant Sri Lanka Telecom (SLT) and dismissed the claim of Rs.7.8 billion claim made by plaintiff Dialog Broadband Network (Pvt) Ltd. (DBN) as a cause of action accrued to the plaintiff. By S.S. Selvanayagam
High Court judge Ratnapriya Gurusinghe delivered this order with regard to the litigation initiated by DBN against SLT.
DBN filed action on July 18, 2017 seeking relief against the defendant SLT.
The plaintiff sought an order from the court that SLT’S acquisition of DBN’S Request for Proposals (RFP) was a dishonest commercial practice constituting an act of unfair competition.
It sought the court to order defendant SLT to disclose the source/ person from which/whom the confidential RFP was acquired from and to furnish the original of RFP to the court.
The case was earlier supported ex-parte and court granted the reliefs aforementioned.
On August 9, 2017, SLT made an application to revoke the said reliefs, which were granted ex-parte.
DBN filed its objections to the application made by SLT and in turn SLT filed its counter objections.
The case was taken up for inquiry on May 16, 2018 and President’s Counsel S.A. Parthalingam, who appeared for the defendant SLT, took up a preliminary objection that this action has been filed by the wrong party.
President’s Counsel Dr. K. Kanag Ishwaran, who appeared for plaintiff DBN objected to the preliminary objection and submitted that the preliminary objection was not on a pure question of law and that a preliminary objection cannot be raised at the present stage of litigation.
He further contended that issues, preliminary or otherwise may only be determined at the pre-trial hearing and that until an answer/ replication has been filed by defendant SLT.
Counsel Parathalingam for the defendant SLT maintained that RFP was not issued and/or floated by defendant SLT and therefore plaintiff DBN’S action is to be dismissed in limine.
He further submitted that the captioned name of the plaintiff ‘Dialog Broadband Network (Pvt) Ltd.’ does not appear anywhere in the RFP document annexed to the plaint and that the term ‘Dialog’ in the said RFP document refers to Dialog Axiata PLC and not Dialog Broadband Network (Pvt) Ltd.
He also brought to the cognizance that the said RFP document states that the receipt and/or response to the RFP should be communicated to Dialog Axiata PLC and not to Dialog Broadband Network (Pvt) Ltd.
The contract for “supply, delivery, installation, testing, commissioning, integration, training and maintenance of Gigabit Passive Optical Networks (GPON) active solution” accompanying the RFP identifies the parties to such contract as Dialog Axiata PLC and the successful bidder, he submitted.
The said RFP document states that all documents and correspondence shall be addressed to Director/group Chief Executive, Dialog Axiata PLC, No.475, Union Place, Colombo 02 and not of Dialog Broadband Network (Pvt) Ltd, he pointed out.
The Performance Bond format in the schedule of the contract, which stipulates that such is to be issued in favour of Dialog Axiata PLC and not Dialog Broadband Network (Pvt) Ltd, he said.
After having heard the submissions, the High Court judge dismissed the action of the plaintiff Dialog Broadband Network (Pvt) Ltd.’s action that claimed Rs.7.8 Billion damages from defendant SLT in limine and held that the RFP document was issued by Dialog Axiata PLC and not by Dialog Broadband Network (Pvt) Ltd. Dr. Kanag Iswaran PC with Lakshmanan Jeyakumar instructed by F.J & G De Saram appeared for plaintiff DBN. S.a.parthalingam PC with Chanaka de Silva, Niranjan Arulpragasam and Sachinda Kahandage instructed by G.g.arulpragasam appeared for defendant SLT.