Wrangle on alleged acquisition of Request for Proposals: HC dismisses claim of Rs. 7.8 b by Dialog

By S.S. Selvanayagam

Colombo High Court upheld the preliminary objection raised by Defendant Sri Lanka Telecom (SLT) and dismissed the claim made by Plaintiff Dialog Broadband Network Ltd. (DBN) against it for Rs. 7.8 billion as a cause of action accrued to Plaintiff.

High Court Judge Ratnapriya Gurusinghe gave this order in the litigation initiated by DBN against SLT.

Dialog Broadband Network filed action on 18 July 2017 seeking reliefs against the Defendant, Sri Lanka Telecom PLC.

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 Court.

The case was earlier supported ex parte and court granted the reliefs aforementioned.

On 9 August 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 16 May and President’s Counsel, S.A. Parthalingam appeared for Defendant SLT, took up a preliminary objection that this action has been filed by the wrong party.

President’s Counsel Dr. K. Kanag Iswaran 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 PC for the Defendant SLT maintained the 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 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 Ltd.

He also brought to cognisance 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 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 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 Ltd., he said.

After having heard the submissions, the High Court Judge dismissed the action of the Plaintiff Dialog Broadband Network 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 Ltd.

Dr. Kanag Iswaran PC with Lakshmanan Jeyakumar instructed by F.J & G De Saram appeared for Plaintiff Dialog Broadband Network Ltd.

S.A. Parthalingam PC with Chanaka de Silva, Niranjan Arulpragasam and Sachinda Kahandage instructed by G.G. Arulpragasam appeared for Defendant SLT.