Appeal regarding recovery of subscription dues from a defaulting franchisee. The Tribunal, in the absence of the respondent, accepted the petitioner's evidence of non-payment and awarded a decree for the outstanding sum plus interest.
Decree for Rs. 1,98,357/- plus interest at 18% from October 1, 2011 to July 15, 2013 and 9% thereafter.
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TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI
Dated: 9th July, 2014
Petition No. 187(C) of 2013
M/s KAL Cables Pvt. Ltd., Chennai
…Petitioner
Versus
Mr. V. Manimaran Proprietor
M/s Channel-3 Lakshmi Cables, Coimbatore …Respondent
BEFORE:
HON’BLE MR. JUSTICE AFTAB ALAM, CHAIRPERSON HON’BLE MR. KULDIP SINGH, MEMBER
For Petitioner : Mr. Ajay Kumar, Advocate
For Respondent : None
ORDER
By Aftab Alam, Chairperson – M/s Kal Cables Pvt. Ltd., is a company
incorporated under the provisions of the Companies Act, 1956 and is working as a multi-system operator. It has filed this petition against the respondent, V. Manimaran, who is running a proprietorship concern under the name and style of M/s Channel-3 Lakshmi Cables as a local cable operator, for recovery of Rs.1,98,357/- as dues of monthly subscription fees.
The respondent did not appear despite service of notice and hence, the petition has proceeded against it ex parte .
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According to the petitioner, the respondent entered into a “Franchisee Agreement” with it which was to remain in force for a period of 7 years from 9 October 2010, the date of its execution by the two sides. Under the agreement, the respondent was to receive certain TV channels from the petitioner in consideration of payment of Rs.37,050/- as monthly subscription fee, calculated @ Rs.111/- on the fixed subscriber base of 325.
It is further the case of the petitioner that in terms of the agreement, the petitioner continuously provided signals to the respondent’s network till September 2011 and the respondent continuously enjoyed the signals of TV channels from the petitioner’s network upto September 2011. During this period, the petitioner was regularly raising invoices for payment of the monthly subscription fee but the respondent was quite irregular in making payments and as a result, the outstandings accumulated to Rs.1,98,357/- as on September 2011.
The petitioner sent demand notices and reminders but of no avail. Finally, the petitioner was compelled to file this petition for recovery of its dues.
No reply is filed on behalf of the respondent to controvert the statements and allegations made in the petition.
The petitioner examined as its witness one, J. Rajesh, who is working as the General Manager (Operations) with the petitioner company. The witness fully supported the petitioner’s case. He identified the “Franchisee Agreement” dated 9
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October 2010 which is marked as Exhibit PW-1/2. He also identified the monthly invoices raised on the respondent which are marked as Exhibits PW-1/3(1) to PW1/3(42). The statements made by the witness in paragraphs 6 and 7 of his affidavit are relevant and are reproduced herein below:
“6. That the respondent on 09/10/2010, entered into a franchisee agreement/subscription agreement with the petitioner for distribution of petitioner’s signals in the areas mentioned herein above, for the fixed subscriber base of 325 @ Rs.111/- per subscriber per month. Thereby total monthly subscription charges were fixed as per this agreement was Rs.37,050/- per month. This relationship between the parties continued till September 2011. The petitioner continuously provided signals from its network to the respondent till September 2011. So, as per this agreement between the parties the respondent was mandated to pay to the petitioner, monthly subscription charges of Rs.37,050/- excluding taxes in advance, on or before 10th day of every calendar month, as per clause 1(b) of the subscription agreement dated 09/10/2010.
He further stated that the respondent was irregular in making payments and
defaulted on several invoices and as a result, dues accumulated against it. The
witness further stated that the petitioner by its reminder dated 3 November 2011
demanded from the respondent, the outstanding subscription amount of Rs.2,39,223/- which had become due and payable as on 30 September 2011. In
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reply to the reminder, the respondent requested the petitioner to reverse the billing for the month of September 2011 on account of its migration to M/s Tamil Nadu Arasu Cable Corporation. The petitioner acceded to the request and sent reminders for payment of its arrears of subscription charges amounting to Rs.1,98,357/- but the respondent did not care even to reply to the reminders. He also identified a copy of the statement of accounts which is marked as Exhibit PW-1/4.
The case of the petitioner is fully supported by oral and documentary evidences that remain completely unchallenged and uncontroverted. There is no reason not to accept the petitioner’s claim.
We accordingly allow the petitioner’s claim and hold the petitioner entitled to a decree for the sum of Rs.1,98,357/- along with interest @ 18% from 1 October, 2011 to 15 July 2013, the date of filing of the petition before the Tribunal and @ 9% from 16 July 2013 till the date of realization.
Ordered accordingly.
………………. (Aftab Alam) Chairperson
……………….. (Kuldip Singh) Member
/sks/
2 issues framed by the court
Whether the petitioner is entitled to recover outstanding subscription dues from the respondent based on the unchallenged evidence of non-payment under a franchisee agreement.
Whether the claim for interest on the undisputed dues should be allowed.
M/s KAL Cables Pvt. Ltd., Chennai
Mr. V. Manimaran Proprietor/M/s Channel-3 Lakshmi Cables, Coimbatore
Aftab Alam
Kuldip Singh
As recorded by the court registry
A petition before the Telecom Disputes Settlement and Appellate Tribunal in a broadcasting or cable-distribution dispute.
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