Case: Bargachh Telelinks Pvt. Ltd. and Anr. Vs Noida Vision. TDSAT (Telecom Disputes Settlement & Appellate Tribunal)
| Judges | S.B. Sinha, J. (Chairperson), G.D. Gaiha and P.K. Rastogi, Members |
| Issue | Media and Communication |
| Judgement Date | May 28, 2010 |
| Court | TDSAT (Telecom Disputes Settlement & Appellate Tribunal) |
Judgment:
S.B. Sinha, J. (Chairperson), (New Delhi)
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The Petitioner No. 1 is a distributor appointed by the Petitioner No. 2. Both were Multi Service Operators (MSO). The Petitioner No. 2 carries on business in distribution of signals of various broadcasters wherefor it has established its cable networks head-ends/control rooms all over India. The first petitioner runs its control room and operational network from A-57, Sector-4, Noida, Gautambudha Nagar, Uttar Pradesh.
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Respondent is said to be a cable operator having its business in Noida and its surrounding areas. It is not in dispute that the Petitioner No. 2 earlier was known as M/s. Siti Cable Network Limited. It has been de-merged and now vested in the 2nd Petitioner in terms of an order dated 17.11.2006 of the High Court of Bombay.
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The respondent entered into a subscription agreement with the 1st Petitioner herein on or about 1.2.2002 for obtaining supply of signals of the channels of the various broadcasters in terms whereof the respondent was obligated to provide a list of subscribers with their names, address and other relevant informations.
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Clause 3 of the subscription agreement reads as under:
The price payable by the FRANCHISEE for access to the signals provided by the Network shall be as follows:
Rs. 25/- per subscriber per month to be paid before 7th day of the every month. (This subscription charge of Rs. 25/- is only for providing Free to Air channels. Charges for encrypted (Pay) channels shall be charged extra as per the pricing policy adopted by the Pay Channel providers from time to time.) This subscription rate of Rs. 25/- or such increased subscription charges payable by franchisee to network shall be net of taxes. If any taxes/rates are payable on Cable TV Business, same shall be borne by franchisees only.
The Network reserves its right to increase the subscription charges as mentioned above depending upon market conditions and cost of supply of signals.
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Indisputably the supply of signal by the 1st Petitioner to the Respondent herein commenced from the date of entering into the said franchise agreement namely 1st February, 2002. It continued upto 31st July, 2008. According to the Petitioners, the respondent has defaulted in regular payment of the subscription fees and as on the said date a sum of Rs. 44,21,849/- was owning and due to it from the respondent. The subscriber base of the respondent is said to be 787.
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The petitioners contend that despite Clause 3 of the aforementioned agreement which we have noticed heretobefore but having regard to inclusion of a large number of channels which had become Pay Channels and/or owing to increase in the subscriber base of the respondent and furthermore imposition of 'Service Tax', the originally stipulated amount of subscription fee had to be increased from time to time. The petitioners have annexed a large number of invoices which are said to have been raised and served on the respondent from the period February, 2002 till 1.10.2006 as also for the rest of the period namely 1.10.2006 to 31st July 2008.
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In view of the fact that the respondent failed and/or neglected to clear its dues, the petitioner raised a demand upon it on or about 26.07.2008, inter alia stating:
We would like to inform you that as per our Books of Accounts you have an outstanding payment of Rs. 43,80,464/- till June'2008. You are requested to please clear the above outstanding payment within 7 days otherwise we will take legal steps.
We are enclose herewith outstanding details for your ready reference.
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The petitioner has also proved a large number of receipts granted to the respondent herein for payments received from it.
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In view of the fact that despite the said demand dated 26.07.2008, the respondent failed and/or neglected to pay its dues to the petitioners herein, a second notice being dated 19.08.2008 was served on the respondent; the contents whereof are as under:
Kindly refer to the Franchisee Agreement dated 1st February, 2002 under which each party was under an obligation to carry out their respective obligations envisaged therein. In furtherance of the said Franchisee Agreement, we have been providing cable TV signals to you from February 2002 onwards. You have been continuously availing our services since February 2002 and are enjoying signals of various channels provided by us for onward transmission to the subscribers in your operational area and have earned substantial subscription income from the subscribers.
However, it is regretting to point out that after taking the signals from us, you have neglected to pay the subscription charges regularly as a result of which a sum of Rs. 44,21,849/- (Rupees Forty Four Lakhs Twenty One Thousand Eight Hundred Forty Nine only) has become outstanding against you. We have been continuously following up with you to clear the said outstanding, however you have deliberately ignored our reminders and withheld the said payment which you are liable to pay to us on account of services/signals received from us. It may also pointed out that in terms of the agreement you are also liable to pay interest @18% per annum for the delayed period on the above mentioned outstanding amount of Rs. 44,21,849/-. Copy of statement of account showing the outstanding dues payable to company enclosed herewith as Annexure-A.
We once again call upon you to pay a sum of Rs. 44,21,849/- within seven days from date of this notice along with interest, failing which we shall initiate appropriate action as per law, which shall be at your cost and consequences.
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Alongwith the said notice the petitioners have also enclosed a statement of account for the period in question. The receipt of the said notices is not disputed and in fact the respondent responded thereto in terms its letter dated 25.08.2008, the contents whereof are as under:
I am in receipt of your letter dated 19th August 2008. At the outset I deny the outstanding as alleged is payable to you. Please note that I am not getting any feed from you with effect from 31st July, 2008. You are also aware of this fact, therefore, you had created false outstanding against me. I had paid all the dues to you. Kindly send me the legible copies of statement of accounts, which you had sent along with the letter to enable me to reconcile with my accounts. You are also requested to send me the legible copy of the Franchise Agreement dated 1st February, 2002 as alleged by you in the letter as I am not in possession of any Franchise Agreement and I do not remember also that any Agreement had been executed with you.
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On the aforementioned premise, the petitioners had filed this petition praying inter alia the following reliefs:
(a) Order/decree in favour of the petitioner and against the respondent for an amount of Rs. 44,21,849/- (Rupees Forty four lakhs twenty one thousand eight hundred and forty nine only) being the outstanding amount due from the respondent as on 12.09.2008 for the cable services received by the respondent from the petitioner.
(b) an order awarding an interest in favour of the petitioner for an amount of Rs. 87,045.65 on the aforesaid payment of Rs. 44,21,849/- till 18.07.2008.
(c) an order awarding pendent elite interest @ 18% on the above mentioned amount due of Rs. 45,08,894.65.
(d) pass an order awarding costs to the petitioner.
(e) any other order as this Hon'ble Tribunal may deed fit in the facts and circumstances of the present case.
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Before, however, we advert to the defence of the respondent, we may notice that according to the petitioners, the respondent had migrated to another Multi Service Operator without clearing of its dues and ultimately it transferred its network to M/s. Den Network Limited.
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The respondent, however, in its defence contended:
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It having ceased to carry out any operation as Multi Service Operator to the knowledge of the petitioner; this petition is not maintainable. Reference has been made to Petition No. 52(C) of 2005 P.B. Enterprises v. World View and Ors. (TDSAT Compilation, Page 133).
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Alternatively the petition is barred under the law of limitation.
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TRAI having frozen the tariff, no amount is payable to the petitioner.
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It having not received any invoice from the petitioners in terms of the Telecommunication (Broadcasting and Cable Services Interconnection Regulations) 2004 as amended in the year 2006, was not bound to pay any amount to the petitioners.
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In view of the aforementioned pleadings of the parties this Tribunal framed the following issues:
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Whether this Tribunal has the Jurisdiction to adjudicate the present dispute between the parties?
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Whether the petitioner is entitled to the amounts claimed in the petition towards Subscription fee i.e. Rs. 44,21,849?
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Whether the petitioner is entitled for interest on Rs. 44,21,849/- @ 18 % i.e. Rs. 87,045.65?
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Whether the petitioner is entitled to any Subscription fee after July, 2008?
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Whether the respondent had received the invoices of subscription fee raised by petitioner?
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Whether the respondent is bound to pay the subscription amount mentioned in the invoices raised by the petitioner? 7. Whether the respondent had made payment as per the invoices received by it?
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Whether the respondent issued any notice to the petitioner before migrate to competing MSO's after availing continuous signals from the petitioner as per the regulations?
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Whether the respondent has ceased to be a cable operator?
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Mr. Tejveer Singh Bhatia, the learned Counsel appearing on behalf of the petitioner has advanced the following contentions, which we would notice with reference to the principal issues:
(A) Regarding maintainability:
(a) Section 14 of the Telecom Regulatory Authority of India Act, 1997 merely identifies the type of dispute but it does not say that the respondent has to be a service provider.
(b) The matter relating to adjudication of any dispute is contained in Section 14 (A) of the Act and in terms thereof it is...
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