Petition No. 188(C) of 2013 and M.A. No. 335 of 2014. Case: Kal Cable Pvt. Ltd. Vs Shalini Zen TV Network. TDSAT (Telecom Disputes Settlement & Appellate Tribunal)
| Case Number | Petition No. 188(C) of 2013 and M.A. No. 335 of 2014 |
| Counsel | For Appellant: Ajay Kumar, Advocate and For Respondents: Jayant K. Mehta, Advocate |
| Judges | Aftab Alam, J. (Chairperson) and Kuldip Singh, Member |
| Issue | Media and Communication Law |
| Judgement Date | July 01, 2015 |
| Court | TDSAT (Telecom Disputes Settlement & Appellate Tribunal) |
Order:
Aftab Alam, J. (Chairperson)
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The petitioner describes itself as a unit of Kal Cables Pvt. Ltd., which is a company incorporated under the Companies Act, 1956. It is a Multi System Operator (MSO), as defined under regulation 2(m) of the 2004 Interconnect Regulations. The respondent is a partnership firm and it works as a cable operator.
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The petitioner has filed this petition seeking recovery of the sum of Rs. 81,05,301/- from the respondent as dues of subscription fees. According to the petitioner, it supplied the signals of its channels to the respondent in terms of an interconnect agreement on a monthly subscription fees for Rs. 20,00,002/-. The respondent, however, persistently defaulted in payment of the monthly fees and as a consequence, the petitioner's dues against it accumulated to the aforementioned figure.
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The period to which the dues relate is not easy to discern from the petition. The date on which the petitioner commenced the supply of its signals to the respondent is nowhere stated in the petition and different dates are given as to when the supply of signals was discontinued and the date to which the claimed amount relates. In paragraph 4(c) that contains the gist of the petitioner's claim it is stated:
c) That the respondent had an (sic) subscription agreement with the petitioner for distribution of petitioner's signals, on the monthly lump sum payment of Rs. 20,00,002/-. The relationship between the parties continued till the end of July 2010. The petitioner continuously provided signals from its network to the respondent till July 2010. So, as per this arrangement between the parties the respondent was mandated to pay to the petitioner, a monthly subscription charges of Rs. 20,00,002/- excluding taxes in advance, on or before 10th day of every calendar month. That on the basis aforesaid arrangement, the respondent continuously enjoyed the signals of TV channels from the petitioner network upto August 2011 and during this period, the petitioner was continuously raising and serving invoices upon the respondent on regular basis. But the respondent was irregular in making payment of monthly subscription charges (copy of monthly invoices alongwith proof of service are enclosed hereto as Annexure P-2 collectively).
(emphasis added)
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In Paragraph 4(g), however, it is stated that:
...... despite consuming signals of the petitioners (sic) network up to September 2011.......
(emphasis added)
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The matter is further confounded by prayer clause (a) that seeks from the Tribunal:
Order/decree in favour of the petitioner and against the respondent for recovery of the sum of Rs. 81,05,301 (Rupees Eighty one Lakh, Five Thousand, Three Hundred and one only) along with interest @ 18% thereon w.e.f. 30/07/2011 being the outstanding subscription fee payable by the respondent to the petitioner.
(emphasis added)
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From the prayer it would appear that the relationship between the two sides continued till the month of July of the year 2011 and the amount claimed was due on 30 July 2011.
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But if we turn to the documents enclosed with the petition it would immediately appear that the confusion of months (July, August and September) and of years (2010, 2011) is the result of careless and mindless drafting. The petition has enclosed with it invoices for the months of April to August 2010. The first invoice is dated 1 April 2010; it is for the month of April 2010 and the pay-by-date is 7 April 2010. Invoices for the subsequent months are similarly raised in advance and the date of payment for every month is by the 7th of that month. Likewise, the invoice for the month of July 2010 is dated 1 July 2010 and the pay-by-date is 7 July 2010. Here it also needs to be noted that though an invoice was issued also for the month of August 2010, from the statement of accounts enclosed with the petition, it appears that later on it was cancelled and the debit entry for the month of August 2010 was reversed. It thus, appears that notwithstanding the divergent statements made in the petition, the supply of signals by the petitioner to the respondent came to end in July 2010 and as per the invoice issued by the petitioner, the respondent was liable to pay the subscription fee for July 2010 by the 7th of that month.
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Here it further needs to be noted that the petition is filed by one J. Rajesh who is described as the authorised signatory of the petitioner company and a copy of the resolution passed at the meeting of the Board of Directors of the company held on 15 April 2010 giving the necessary authorisation to J Rajesh is enclosed with the petition as annexure P 1.
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The respondent in its Reply completely denied the petitioner's claim. It denied the correctness of the statement of account enclosed with the petition and further took the plea that the petitioner's claims with respect to all the entries/amounts stated in the statement of account, except the last two entries dated 1 August 2010 and 1 September 2010 (by which the latter cancels the former) are barred by limitation (paragraph IV of the Reply). On the substance of the case it is admitted that in terms of a compromise/oral agreement, the respondent received signals from the petitioner from January 2010. It is, however, stated that for the period January - August 2010, the respondent paid to the petitioner the invoiced amount of Rs. 20,00,002/- every month, totalling to the sum of Rs. 1,60,00,008/-. It is further stated that the respondent has in fact made excess payment of Rs. 14,99,018.90 and it is entitled to refund of that amount. In paragraph 7 of the Reply details are given of specific amounts (aggregating to Rs. 14,99,018.90) wrongly collected/received by the petitioner and it is claimed, assigning reasons, that the petitioner has no right to retain those amounts and those must be refunded to the respondent. The petitioner has filed a rejoinder in which there is a bald denial that the respondent has made the excess payment of Rs. 14,99,018.90. There is no comment, however, in regard to the specific amounts said to have been received by the petitioner, details of which are given in paragraph 7 of the Reply. We, however, need not go into any further detail on this aspect of the matter as there is no counter-claim by the respondent.
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On the basis of the pleadings, the following issues were framed as arising for adjudication:
"(a) Whether the petitioner is entitled to Rs. 81,05,301/- alongwith interest toward outstanding subscription fees?
(b) Whether the claim of the petitioner is barred by limitation? and
(c) Any other issue/relief as the Hon'ble Tribunal may deem fit and proper?"
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The petitioner has examined two witnesses in support of its case. The first witness is one Vittal Sampathkumaran. Kumaran, in paragraph 6 of his evidence affidavit, said that the "relationship between the parties continued till the end of July 2010". He further said that "the petitioner has continuously provided signals from its network to the respondent till July 2010". He formally proved the invoices issued to the respondent and the petitioner's statement of account, which were marked as Ex. PW 1/1 and Ex. PW 1/3 respectively. In paragraph 9 of his evidence affidavit he said that the petitioner sent a letter dated 9 November 2011 (Ex. PW 1/4) demanding its dues from the petitioner but the respondent did not even care to reply to this letter. After the demand letter of 9 November 2011, the petitioner sent a number of reminders both orally and in writing but it did not receive any reply from the respondent. The petitioner finally sent a legal notice on 10 July 2012 (Ex. PW 1/5) to which the respondent gave its reply by letter dated 19 July 2012 (Ex. PW 1/6) denying any liability for payment.
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The second witness examined by the petitioner is J. Rajesh, who has filed this petition on behalf of the petitioner company. J Rajesh, in his evidence affidavit, said that he is the General Manager-Operations of the petitioner company and he is also its authorised signatory. He further said that by virtue of the resolution passed by the company's Board on 15 April 2010, enclosed as Annexure P-1 to the petition, he is duly authorised to swear the affidavit by way of evidence. He then proceeded to identify Annexure P-1 which was marked as Ex. PW 2/1.
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The respondent did not lead any evidence in support of its case.
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On these set...
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