Petition No. 357(C) of 2013. Case: Tata Sky Ltd. Vs Brand Value Communications Ltd.. TDSAT (Telecom Disputes Settlement & Appellate Tribunal)

Case NumberPetition No. 357(C) of 2013
CounselFor Appellant: Mamta Tiwari, Advocate and For Respondents: Jayant K. Mehta and Kunal Singh, Advocates
JudgesAftab Alam, J. (Chairperson) and Kuldip Singh, Member
IssueMedia and Communication Law
Judgement DateJuly 01, 2015
CourtTDSAT (Telecom Disputes Settlement & Appellate Tribunal)


Aftab Alam, J. (Chairperson)

  1. The petitioner is a direct-to-home (DTH) operator and it is a distributor of TV channels under the broadcasting regulations. The respondent is a broadcaster of TV channels.

  2. The petitioner has filed this petition against the respondent seeking recovery of Rs. 4,12,29,171/- as dues of carriage fee. It has computed its dues as under:

  3. According to the petitioner, it entered into, what is called as an 'Access Agreement' with the respondent on 11.11.2010. Under the agreement, the respondent is called as the 'Programmer' and it is stipulated that Tata Sky would provide access to the Programmer in respect of its Bengali language programme service known as "Rupashi Bangla". The term of the agreement was for the period 07.10.2010 to 06.10.2013. Clause 6 of the agreement dealt with Bandwidth Support Fee and provided as under:

    The Programmer shall pay Tata Sky a Bandwidth Support fee of Rs. Seven Crore (7,00,00,000) plus service tax for the Term.

    The Bandwidth Support Fee breakup is as follows:--

    In the 2nd and 3rd year, the DD/at par cheques for each quarters should be sent within one week of commencement of each quarter in advance.

    The Bandwidth Support Fee is an admitted debt on the Programmer and payable in full by the Programmer unless:

    (i) there is a breach of the Agreement by Tata Sky and the agreement is terminated by the Programmer in which case, no further bandwidth support fee shall be payable; and

    (ii) in case of pre-mature termination by Tata Sky as stated in Clause 21, in which case, any pro rata advance shall be refunded to the Programmer and no further bandwidth support fee shall be payable.

  4. The agreement did not prescribe any specified band or frequency on which the respondent's channel was to be carried. It rather gave Tata Sky full rights in this regard by providing, in clause 11 as under:

    Tata Sky shall always have full flexibility in terms of packaging the Channel in any of its Consumer Offerings/Packages/tiers.

    Tata Sky shall retail, distribute, package the Channel in any tier/package/bouquet for its subscribers on the Tata Sky DTH platform.

    Clause 18 contained indemnification clause that obliged each party to keep the other indemnified against losses etc. resulting from any breach or non-performance by the concerned party. The provision for termination of the contract under clause 21 gave the right to termination to Tata Sky alone and provided as under:

    Tata Sky will have the additional right to terminate the agreement at any point, with an advance one month's written notice and shall also comply with the relevant provisions of the existing regulatory laws in this respect. In this case, any advance received from the Programmer shall be refunded pro rata to the Programmer and no further bandwidth support fee shall be payable.

  5. Clause 23 of the agreement dealing with Dispute Resolution provided that any dispute, difference or claim unless resolved through the respective CEOs of both sides would be finally settled on the application of either party by the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) on any other such Tribunal or court as may be prescribed under the TRAI Act 1997 or any subsequent laws.

  6. It is the case of the petitioner that in full and complete discharge of its obligation under the agreement, it carried the respondent's channel Rupashi Bangla on its DTH platform until it terminated the agreement for non-payment of the dues by the respondent vide its letter dated 05.09.2013. According to the petitioner, the bandwidth support fee for the first year was duly paid by the respondent in advance. The first quarter for the second year was also paid in time. But defaults took place in further payments with the result that dues accumulated as indicated above. The dates on which the petitioner raised invoices/demands and received or failed to receive payment against those invoices/demands are detailed in paragraphs 9 to 29 of the petition.

  7. The petitioner has also brought on record the exchange of emails/correspondence in some of which the respondent appears to acknowledge the dues. For instance, in the email dated 07.08.2012, in reply to the demand letter/email dated 06.08.2012 from the petitioner, it is stated on behalf of...

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