Appearing as officials from WhatsApp.
Preliminary decree directing respondent to render accounts via a Commissioner to determine dues and subscriber migration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated : September 12, 2011
Petition No.368(C) of 2010
M/s S.S. Cable Network
…Petitioner
Vs.
M/s Hathway Bhaskar Multinet Pvt Ltd. …Respondent
BEFORE:
HON’BLE MR. JUSTICE S.B. SINHA, CHAIRPERSON HON’BLE MR.P.K. RASTOGI, MEMBER
J U D G M E N T
S.B. Sinha
Background facts
It’s status, however, is not clear.
proprietory concern of Sheikh Sahajad, although in paragraph A at
page 2 of the paper-book it is stated that the said Sheikh Shezad
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and Sheikh Amin Sheikh had jointly been operating a cable network under the name and style of the petitioner.
In the affidavit affirmed in support of the petition, the deponent thereof Shri Sheikh Sahajad has described himself as a partner of the petitioner. In the evidence by way of affidavit Shri Sheikh Sahajad as also the said Shri Amin Sheikh, claimed themselves to be the co-proprietors of the petitioner concern.
The respondent’s predecessor in interest Bhaskar Multinet Pvt. Ltd. was a multi service operator.
It entered into a joint venture undertaking with the Hathway Group of Companies, wherefor a separate company was incorporated and registered by the name of respondent herein.
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Some of the clauses thereof which are relevant for our purpose read as under:
“(5) That, in the territory of the operator, to provide signals use of fiber optic cables, to plan and used necessary equipments and to establish them planned amplifiers jointers, tap-offs, power supply etc. to be established and to effectively provide signals and for that to receive permissions and such other investments so that this cable be profitable keeping in view BML has to take this net work for at least minimum period of 3 years so as to become capable to remit effectively.
(8) That, the operator would be having no right to collect any of the earnings rather it would be desired on his part that he may provide full support and guidance for the effect collection by the boys who work for this collection.
(9) That, the operator hereby assures and commits to BML that the network in the territory of the operator is in a good condition and running condition and the description given about the consumers in Schedule B, all the cable connections are in active state and all the described consumers of Schedule B are regularly paying monthly charges. If in accordance with documents of agreement on receiving the cable net work by BML, if any kind of repairing, comes to be necessary or some change has to be done in cable line then this would be deducted by BML from the amount to be paid to the operator as it would be taken to be the expenditure of the
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operator and BML would have right to deduct the amount from the money which is to given to the operator.
(13) That, it will be the duty of the operator to protect the rights and favours of BML and may not participate in any such kind of activity by which the losses may be incurred to the BML regarding monthly income or losses being incurred to BML at some other place of his business. Any of the member of the family of the operator would have no right to participate or enter into any business which may be related Cable Television Network nor, would they have a right to become a supporter or partner to such kind of business.
(15) That, on till 15th of every month books would be prepared by BML and would be settled by the end of the month. The operator would reconcile every month these books and accounts. In case of operator not reconciling the books prepared by BML would be taken as final no objection would be thereby entertain after the books and accounts have been settled.
(16) That, on the condition if BML does not pay to the operator for continuously two month the operator would have right as per agreement to produce a notice within 30 days and after which the agreement can be cancelled.
(17) That, any communication between the parties would be in written and would be posted through Registered post to the address mentioned in this document of agreement in case of change of address the information of it should be given at least a month before. (22) The operator shall not be entitled to execute any kind of mortgage, loan, etc. on the basis of this document of the agreement. In this agreement the operator has practically not given an undertaking regarding BML and regarding any practical payment of any amount.
(23) That, the operator would have no right to sell or transfer any of the part of the Cable
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Television net work till this agreement is in continuance and this can not be done without written consent of BML. The operator would have not right to subrogate to any person or body for Corporate body, this document of agreement.
(24) That, every year in the month of April review of the Division of the Revenue between BML and operator would be done and BML as per his wisdom and as per all the taxes in regulation may decide on the change of such amount from the 50 % share. In case if change occur due to pay channels rate or change in taxes or charges, change in different department or to launch a new technical development or change in the laws or Government Policies (in which use of DTH is also included on all this BML would have in such a case right to negotiate regarding the terms and condition of agreement to be change if need be. In such a condition above mentioned BML would have right to produce a notice of one month for operator regarding this agreement.
(25) That, in such a condition where BML finds that further development in the net work is not possible while managing the net work and operating it on lease then BML would have the freedom to cancel this agreement after giving a months notice, and on the expiry of the period of notice he may in working condition handover the net work to the operator.
(27) That, the operator would be committed to written all the equipments which have been installed by BML within the period of this agreement, on ending of it. Apart from this it would be the duty of the operator to written the equipments in good conditions to BML and if any loss or damage has been done due to negligence of operator then it would be the right of BML to recover the amount of that equipment from the share of operator.
(28) That, hereby operator has no duty or right to negotiate subscription agreement without written permission of BML regarding this, nor he
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would commit or propose any sub operator for anything.
Earlier Proceeding
By an order dated 17.4.2009, the said petition was disposed of directing:
“Notice. Mr. Nasir Hussain accepts notice on behalf of the respondent.
The grievance of the petitioner is that supply of signals to the petitioner has been discontinued. Mr. Nasir Hussain, counsel for the respondent submits that according to his instructions the supply of signals to the petitioner is continuing. In any case, the respondent will ensure that supply of signals to the petitioner continues uninterrupted. Both parties will abide by the terms of agreement which exists between the parties.”
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The petitioner contended that the respondent had also
been issuing receipts to the consumers in different names.
The present proceedings:
following reliefs:
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It furthermore denied and disputed that it had not shared with the petitioner the amounts collected or delayed settling of the accounts. According to the respondent the accounts between the parties stand drawn and settled.
It has furthermore been contended that the petitioner had been running its business by taking feed from a rival MSO.
13. Questions
In view of the pleadings of the parties hereto, the following issues were framed by this Tribunal by an order dated
7.1.2011:
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Evidence
Shri Sheikh Shezad and Shri Amin Sheikh, its co-proprietors. It had also filed affidavits of various persons to prove a CD to show that its subscribers are getting signals of Bhaskar TV.
Only one of the witnesses, however, has been examined to prove the said CD viz Mr. Zuber who has also been cross-examined.
Another witness Mr. Mohd. Shakir Khan has also been cross-examined on the same point.
The respondent has examined Mr. Jayant Agrawal and Mr. Farooq Sheikh in support of its case..
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Submissions
(i) The respondent having failed and/or neglected to traverse in its reply the contentions raised by the petitioner in the petition must be held to have admitted the same.
(ii) The respondent, having regard to the `lease agreement’ was bound to disclose its accounts keeping in view the admitted fact that it had not only been collecting the amounts towards subscription charages from the subscribers but also with a view to avoid its liability to the petitioner, has been issuing receipts in the name of some other companies also.
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would handover the same to it and in that view of the matter only they have been showing interest in this case and, thus, no exception thereto can be taken.
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of various broadcasters.
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Jurisdiction Issue
The terms of both the agreements have to be read conjointly. A literal meaning thereto must be assigned. The terms of the agreement dated 24.4.2008 stipulate that the petitioner had 1,230 consumers and had been collecting a sum of Rs.50/- per month from each of them totaling Rs.61,600/-.
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Maintenance of books of account was the job of the respondent. The petitioner was not entitled to create any mortgage or raise any loan on the basis of the said agreement or otherwise.
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the respondent. Even the giving of a proposal in that behalf was forbidden.
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A composite agreement, therefore, was entered into. If that be so, it is difficult to accept the submission that the network of the petitioner was owned and controlled by it alone. Both the lessor and the lessee can claim ownership.
If the relationship between the parties were entered into merely for the purpose of collection of the subscription amount, it is difficult to conceive as to why the negative covenants had to be incorporated in the agreement.
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Act, as also the Regulations framed by the TRAI in exercise of its power conferred upon it under Section 11(1)(b) thereof, there cannot be doubt or dispute that a service provider would not only be a person who transmits or retransmits signals but also one who has a substantial control thereover or in management thereof.
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If what is now contended by the respondent is correct, it is difficult to comprehend as to why in the earlier proceeding, it accepted that it would continue to supply signals to the petitioner uninterruptedly and furthermore agreed to abide by the terms of the agreement.
It is also difficult to conceive as to why a public notice should be issued which would defeat the very fabric of the agreement itself. We, therefore, are of the opinion that this Tribunal has jurisdiction to enter into the merit of the matter.
Subscriber Issue
Before us, a list of subscriber has been produced in which the name of the respondent finds place and thus presumably the same was prepared by it. It runs into 22 pages. The list of
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subscribers are in two parts; one detailing the subscribers of the Sheikh Sahajad and the other those of Amin Sheikh.
In deviation of the terms of the agreement, however, the said Shri Jayant Agrawal contended that the number of subscribers of the petitioner was much less, being around 700-800. 42. He, in his cross-examination, stated as under:
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“Q: How many subscribers did the petitioner had at the time of execution of the agreement?
A: As per the record of the petitioner, they had 1230 subscribers.
Vol. In fact there were around 700-800 subscribers only.
Q: Did you inform the petitioner that in reality the number of subscribers was less?
A: Yes, we have informed them orally.”
It is difficult to accept that such a vital matter would not
be communicated to a LCO by a MSO of the status of the respondent in writing.
So far as the quantum of the amount collected from the subscribers is concerned, he stated that the same used to vary from Rs.75,000 to Rs.80,000/- per month; although he could not specify the exact amount as regards thereto. When asked as to what was the amount collected from the petitioner’s network in JanuaryFebruary, 2009, he could not prove the same stating that it was less than the amount previously collected as the dispute had started between the parties.
He, however, admitted that the statement of account had not been filed with the reply.
“Q.16: Is it correct that before you started collection from the customers of the petitioner, you were introduced to the customers?
A: Out of the 1230 customers of the petitioners, we were only introduced to 700-800 customers.
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Q.17: Did you collect subscription from 700 or 1230 customers?
A: We collected the subscription from about 700800 customers only.
Vol. The list that was given to us was for 1230 customers. But the collection was being received from only 700-800 customers. This was within the knowledge of the petitioner.
Q.18: Did you inform your higher authorities about the reasons for not receiving subscriptions from about 500 customers of the petitioners network?
A: Yes.”
Why at least the competent authorities of the respondent company did not take up the matter with the proprietor(s) of the petitionerconcern is difficult to comprehend.
the following terms:
“Q.36: are you still giving your signals in Khajrana area?
A: Yes.
Q.37: How many subscribers do you have at present in Khajrana area?
A: About 1500.
Q.41: Is it correct that the three MSOs operating in the Indore area have entered into an agreement not to infringe upon each others
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locality after the demarcation mutually between them?
A: Yes.
Q.42: When this agreement has been entered into between the MSOs?
A: I cannot say it with certainty. Probably it took place in April-May 2009.
Re-examination by Mr. Jayant Mehta, Ld. Counsel for the respondent
Q: How many operators are there in Khajrana area?
A: There are two major operators apart from the petitioner. However, there are also small operators, whose names I am not aware of.
Q: What is the connectivity of these two operators and to which operator of the two does the respondent supply signals?
A: Approximately 650-700. Respondent supply signals to both the operators.”
only with regard to the subscriber base but also of the payments received from the subscribers disbursed to the petitioner. If it had any doubt or dispute with regard to the details of the subscribers, it was expected that it would file not only the original agreement but also its books of accounts.
“Q: Can you tell as to how many copies of the agreement are prepared?
A: One copy, original is kept with the company.
Q: Did you hand over the photocopy of the agreement to the other party?
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A: Yes.
Vol. In some cases, when the operator has insisted we have prepared two original copies of the agreement, one for us and other for the other party.
Q: How many copies of the agreement were prepared in the case of the petitioner?
A: I do not recall.
Q: Do you affix the company’s stamp on the documents executed by the company? A: No.
Q: Can you recall the name of the witnesses in whose presence the agreement was executed with the petitioner?
A: I am not sure 100 % but may be Mr. Sudhanshu Nagar and Mr. Farooq Shaikh.”
It could have in the process shown that the petitioner in violation and/or breach of the covenant of the agreement had been collecting the same amount from its subscribers directly.
An adverse inference, therefore, must be drawn against the respondent that had those documents been produced, the same would have run counter to its contentions.
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deviation or departure therefrom can be permitted to be raised. The exceptions provided for in Sections 91 and 92 of the Indian Evidence Act should have been pleaded and proved by the respondent in this regard.
We, therefore, are of the opinion that the respondent must be held to have been realizing subscriber fee from all the 1230 subscribers.
CD Issue
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According to leaned counsel, the deposition of the
witnesses in the said case are admissible in evidence in this case also.
We do not agree.
The deposition of a witness in another proceeding would be admissible in evidence only in term of Section 145 of the Indian Evidence Act.
Mr. Mehta would contend that the deposition of the witnesses in the earlier case would be admissible in evidence being public document within the meaning of Section 74 of the Indian Evidence Act.
Section 74 of the Indian Evidence Act defining public document ex facie also do not bring within its purview deposition of a witness in an earlier case so as to make it admissible per se although the attention of the concerned witness was not drawn thereto.
Reliance has been placed by Mr. Mehta on Narsimaha Ramarao vs. Venkatramanaiya. AIR 1940 Mad 168. With respect we do not think that the said decision lays down the law correctly.
What would be the public documents have categorically been specified in Section 74 of the Act. A public document would ordinarily mean a document which is open to all, capable of being
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known or observed by all. It may signify having an interest for persons in general.
A private document filed in court does not become a public document.
We may notice the relevant the statements in this
behalf.
“Q. Have you filed any document on the record to show that as on date, your customers are getting signals from the respondent? A.No. (Witness is shown page 91-F of the paper book in Petition No.251(C) of 2009) Q. Does this document contain your signatures? (Ld. Counsel for the petitioner objects on the ground that document at page 91(F) has not been filed in the present proceedings or exhibited.)”
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We cannot persuade ourselves to agree with the said
contentions.
In Gulab Chand & Ors. vs. Sheo Karan ;Lall Seth and
Ors. AIR 1964 Pat 45 it was held:
“What are public documents are stated in Section 74 of the Evidence Act: Documents forming the acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country have been described as public documents. I cannot see how a plaint filed by a private person in Court to institute a case against some others can come within the descriptions of the documents given in that sub-section. Subsection (2) of Section 74 can in no way include a plaint. The plaint is neither an act nor the record of an act of any public officer. There can be no strength in the contention that when the plaint is presented and the Court makes an order admitting or registering it, the plaint becomes an act or the record of an act of a public officer presiding over the Court. At the most, it will become a part of the record maintained by the Court in that case after the plaint is admitted and registered, but that itself will not make it a public document. If it were, then anything filed in a case in a court of law either petitions or pleadings, private communications or documents which a party would file in a case would become public documents for the simple reason that they are on the record of a case in Court.”
See also Jagdishchandra Chandulal Shah vs. State of Gujarat & Ors. 1989 (095) CRLJ 1724 (GUJ).
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might have started supply of signals of pay channels according to the said witness around the year 2008 or 2009. It was the said Raja Cable which had laid the optical fiber cables and the distribution lines in analogue cables which were being used by the petitioner for transmission of signals.
It is, however, stated that the respondent had relaid the
cables.
We may notice the following statements of PW1 in his
deposition:
“Q: Do you have any subscribers as on date or not?
A: No.
Q: Till when you gave subscription charges to B TV?
A: I have never paid any subscription charges to B TV .
Vol. In fact, they were to pay me amounts as per the agreement.
Q: If the cables of petitioner’s network still exist or pass through your residence?
A: No.
Q: When were the cables removed from your residence?
A: Around March-April 2009.
Q: Who installed Optical Fibre Cables in your area?
A: B TV.
Q: At the time, when you were running your network in 2007-2008, did you install OFC in your network?
A: OFC was laid by Raj TV. The main line is OFC and the distributing lines are analog cables. I was transmitting signals through analog cables.
Q: Are the analog cables still existing in your network as they were in 2007-2008?
A: No.
VOl. B T V has re-laid the cables.
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Q: Have you raised any objection in writing when B TV was relaying cables? A: No. Vol. We told them orally. Q: When did B TV relay the cables? A: After our agreement, they made changes. Q: Have you sought signals from any MSO to restart your network? A: No. Vol. Nobody would give us. Q: Have you stated about B TV’s relaying of the cables in these proceedings? A: Yes. Q: What is the cost of a transmitter? A: Approximately Rs. 18,000/- - Rs. 20,000/-. Q: Have you tried to purchase another transmitter to restart your network, since you say that the respondent had taken away your transmitter? A: No. Vol. I do not need to purchase another transmitter since my network is with B TV. Q: Can you show any document showing that your network is with BT V as on date? A: Yes, I have filed a CD. Q: Do you have any other document except the CD showing that your network is with B TV as on date? A: No.
The police authorities while making investigations entrusted the matter relating to preparation of CD to two persons Mr. Zuber (PW-3) and Mohd. Shakir Khan (PW-4).
Mr. Zuber in his evidence sought to prove preparation of
CD stating :
“3. That we also talked with the people where we did recording they told us that Bhaskar Hathway is
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running signals on their TVs and they are making payment to them.
We may notice the statements in cross-examination in extensor to show, even otherwise the said CD has not been proveed
in accordance with law.
He in his cross-examination stated as under:
“(witness is shown para 2 of his affidavit)
Q: Is the order dated 26.2.2010 referred to by you, in writing? A: No. Vol. One policeman had come to my residence and asked me to report to Police Station.
Q: Were you given anything in writing in the Police Station? A: No. Now says, a list was given. Q: Are you a cable operator? A: No. Q: Who gave you the list, as stated by you above, in the Police Station? A: There was a dispute between the petitioner and Raja Cable and also the respondent. Q: Who gave you the list? A: One police official. Q: What were you told? A: I was told to verify as to whether the persons on that list were getting signals from B TV. Q: Were you given any copy of the complaint/FIR at that time? A: No. VOl. I was told orally.
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Q: Whether any police man had accompanied you? A: I am not sure. I think one police man in civil uniform may have gone with us. Q: Would you remember the name of the police man who gave you the list? A: No. Q: Is it correct that you are not engaged in the profession of Photography? A: Yes. ……………………………… Q: Who prepared the CD after the video shoot? A: I did not prepare it. The camera man made it at my instructions. Q: Did you pay any amount to the camera man for preparation of CD? A: No. Q: Where is the video cassette from which the CD was prepared?
A: It is with the police station. Q: Where was the CD prepared?
A: I have no idea.
Q: When the CD was prepared? A: After about a day or so of the video shoot. Q: Have you signed any other affidavit except for your affidavit at page 39 of the Evidence Folder, in any other proceedings before this Tribunal? A: No. Q: Were you present at the time of preparation of CD? A: No. Q: Have you filed the list which was given to you by the police authorities, on the record?
A: I have no knowledge.
Q: Have you prepared any report after completion of your visit for video shoot? A: No. Vol. All of us (including myself) tick marked the list given to us.
……………………………………. Q: How many names were there in the list? A: The list was over 100 pages. Now says, more than 1,000 names.
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Q: Did the list contain the addresses of all the persons? A: Yes. Q: Did you visit all the homes of the persons contained in the list provided to you?
A: No. Q: Is it correct that the video shooting was done only for 4-5 houses?
A: Yes.
Q: Have you recorded the statements of the persons you visited, in writing? A: No. Their statements were video recorded. Q: Does the list bear the signatures of petitioner or the respondent?
A: I have no idea.
Q: Have you filed the six CDs prepared, on the record?
A: No.
Vol. CDs were given to different persons. Now says, that all the CDs were given to the police persons at the police station.
Q: Did you see any document whereby the names of the persons contained in the list given to you were shown as the customers of any particular cable operator?
A: I saw the list and the list mentioned that they were customers of the petitioner. I did not see any other document apart from that list. Q: Have you filed the receipts collected by you during the video shoot on the record?
A: I have no idea.
Q: Do you know how many partners are there in the petitioner?
A: there are no partners.
Q: How many signal providers are operating in Khajrana?
A: Two-Digi Cable and B TV.
Q: How many cable operators are operating in Khajrana? A: Around 4 operators namely Nagar, Raja Cable, S S Cable and one Nilesh Patedar.
Q: In your affidavit you have stated that the video shooting was done in 1243 households/customers while today you have stated that the video
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shooting was done only for 4-5 houses. Which of the fact is correct?
A: We have done video shooting for 4-5 houses and met about 20-25 persons.”
“2. That on 26.02.2010 SHO of Police Station Khajrana ordered me to become part of camera team to conduct the home to home video shooting of TV channels running on Television of the people of Khajrana area. I got the signals of Hathway Bhaskar running on televisions. BTV News Channel was also found running on the televisions. Live shooting of TV channels in several houses for about 4-5 hours was conducted by the cameraman Waheed and he prepared 6 sets of CDs.
He, however, in his cross-examination to a large extent
contradicted the evidence of Zuber in the matter of preparation of CD.
“Q: Is it correct that you are not engaged in the profession of Photography? A:Yes.
Q: Is the order referred to by you in para 2 of your affidavit, in writing?
A: No.
Q: When were you called to the police station?
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A: On 11.2.2010, after the report of Mr. Wasim Khan.
Q: Are you aware as to what was the report filed by Mr. Wasim Khan?
A: Yes. The report was that Raja Cable had filed a case against B TV and had succeeded in that case. However, despite the orders of the courts, B TV’s signals were continuing. Vol. The SHO told us on 11.2.2010 that all such persons who are acquainted with Raja Cable and S S Cable should go and conduct a verification.
Q: Was any such instruction as referred to by you in your previous reply in writing?
A: No. It was oral.
Q: Were you paid for your visit?
A: No.
Q: When did you conduct the verification? A: On 11.2.2010. Now says, 26.2.2010. I was confused. It was a slip of tongue.
Q: Were you called in the police station on 26.2.2010?
A: No. I was called only on 11.2.2010.
Q: Who told you to conduct verification on 26.2.2010?
A: Mr. Shezad Amin told us that we have to go for a video shoot and we mutually decided to go on 26.2.2010.
Q: Did you meet any police official on 26.2.2010?
A: Yes. One police man accompanied us.
Q: Was the police man in uniform or in civil clothes?
A: He was in uniform.
Q: Did the police man carry any document with him?
A: No.
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Vol. We were given a list at the police station of 1243 connections of S S Cable.
Q: Have you counted 1243 connections in the list given to you?
A: No.
Q: Have you visited all the 1243 houses? A; No.
Q: How many houses did you visit?
A: Around 40-50 houses.
Q: Have you mentioned about your visit to 4050 houses in your affidavit? A: No. I have mentioned about 20-25 houses in my affidavit.
Q: How many houses have you video shot?
A: Only 10-12 houses.
Vol. After that there was an electricity failure.
Q: Whether the CD was prepared in your presence?
A: Yes.
Q: Did you prepare the CD?
A: No.
Q: When was the CD prepared?
A: After about 3-4 days of the video shoot.
Q: In whose possession is the video cassette on the basis of which CDs were prepared?
A: I have no idea.
Vol. Around 5-6 CDs were deposited in the Police Station.
Q: Have you filed any of those 5-6 CDs on the record?
A: We have filed a copy of those CDs on the record.
Q: Did you prepare the copy of the CD filed on record?
A: No.
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Q: Whether the copy of the CD was prepared in your presence?
A: Yes.
Q: Who prepared the copy of the CD?
A: It was prepared at a shop. I do not remember the name.”
proved in accordance with law. An electronic document must be proved in terms of the provisions of Section 65B of the Indian Evidence Act. The person who has prepared the CD must say so clearly as it pertains to a matter which related to a criminal proceeding. It was, thus, obligatory on the part of the petitioner to scrupulously follow the procedures laid down under the law.
the CD and/or copies thereof as also the cost of shooting etc. 60. Why PW-3 and PW-4 were entrusted with the said operation by the police authorities have not been shown. They are not in the profession of shooting films or preparation of CDs. The
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least which could have been done was to summon the records from the police station and/or if any charge-sheet has been filed, to produce the same. There are some minor contradictions as to whether a police officer accompanied the said witnesses in uniform or was in plain clothes and/or such other minor discrepancies but having gone through the evidence of the witnesses, we have no doubt in our mind that the CD in question has not been proved in accordance with law.
Re: Accounts
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pump would tally with the name of the subscriber which is at page 41 of the paper book.
We do not know on what basis the statement has been prepared. The basic documents have not been filed. The tables appended to the affidavit are not the subject matter of reply. How much amount the respondent realized from the subscribers had not been stated. Whether any amount had been collected by the respondent from March, 2009 from the subscribers of the petitioner is also not known.
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reply, it made only certain vague statements in that regard contending:
“E&F. The contents of paras E & E are wrong and denied. It is denied that the Respondent did not share the details of the amounts collected with the Petitioner or delayed settling the accounts with the Petitioner. As a matter of fact, the accounts between the parties stand drawn and settled. There are no dues from the Respondent to the Petitioner. As a matter of fact, the Petitioner is already running his network by taking feed from a rival MSO. The migration of the Petitioner to the rival MSO was without settling the subscription amounts owed by it to the previous MSO and as such, it was in deliberate and intentional disregard of the provisions of the Interconnect Regulations. The petition does not establish any dues in favour of the Petitioner or any amount whatsoever. The petition is vexatious and filed after dismissal of another petition filed by M/. Raja Cable qua the Respondent. The reply verily believes that there is a distinct identity between the Petitioner and M/s. Raja Cable and the present petition is a contrivance and the subterfuge adopted by M/s. Raja Cable in connivance with the Petitioner. In fact, the Petitioner and M/s. Raja Cable have engaged in collusive litigation so as to deny the dues to the Respondent and the previous MSO and to abuse the process of law. The Respondent craves leave to refer to and rely on all such documents.”
true to his personal knowledge derived from the official record maintained in due course.
Even Shri Jayant Agrawal was not even otherwise authorized by any
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competent authority. While verifying his statements in his affidavit he stated that the same were true to his personal knowledge derived from official records. Both do not go together. We may notice that the said affidavit was filed on 30.5.2011 i.e. after the cross-examination of the witnesses of the petitioner was over on 5.3.2011.
He, however, did not identify some of the receipts.
According to him the total amount collected by him was only Rs.38,000/- to Rs.40,000/-.
He accepted that all the amount used to be handed over to the cashier of the respondent company.
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accounts particularly in view of the fact that they had been continuously collecting the amount from the subscribers.
Re: Maintainability
It, however, stands admitted that the respondent was all along aware of the said fact. The number of subscribers have been shown to be belonging to two different persons.
Mr. Mehta would contend that the petition should be dismissed also on the ground that for all intent and purport, the present litigation is being fought by M/s Raja Cable.
We are, however, of the opinion that it is not the case of the respondent that for all intent and purport there has been an
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assignment of the interest of the petitioner in favour of the said M/s Raja Cable.
A settlement was arrived at which is yet to be acted upon and M/s Raja Cable had been showing interest in this litigation only for the said purpose.
Equity Issue
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itself a ground to deny the reliefs sought for by the petitioner herein, if it is otherwise entitled thereto.
Conclusion
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have opted to switch over to the network of the respondent voluntarily.
For the said purpose a Commissioner may be appointed. The parties shall also produce before the learned Commissioner all the documents to show as to whether the respondent had continued to supply signals to the subscribers of the petitioner and if so to what extent.
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Let a preliminary decree be prepared on the
aforementioned basis.
Put up after three months.
(S.B. Sinha) Chairperson
(P.K. Rastogi) Member
September 12, 2011 `anu’
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3 issues framed by the court
Whether the Tribunal has jurisdiction over a dispute between a Local Cable Operator and an MSO regarding a lease agreement for the network?
Whether the respondent has failed to render accounts and withheld documents showing the share due to the petitioner from subscriber fees?
Whether the petitioner is entitled to a preliminary decree directing the respondent to render accounts of subscriber collections?
Colour shows how this judgement treated each authority
Gulab Chand & Ors. vs. Sheo Karan ;Lall Seth and Ors.Followed¶56
AIR 1964 Pat 45 · Who else cites this
Jagdishchandra Chandulal Shah vs. State of Gujarat & Ors.Followed¶55
1989 (095) CRLJ 1724 (GUJ)
Narsimaha Ramarao vs. VenkatramanaiyaDoubted¶52
AIR 1940 Mad 168 · Who else cites this
4 provisions across 1 enactments
M/s S.S. Cable Network
M/s Hathway Bhaskar Multinet Pvt Ltd.
S.B. Sinha
P.K. Rastogi
As recorded by the court registry
A petition before the Telecom Disputes Settlement and Appellate Tribunal in a broadcasting or cable-distribution dispute.
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
