Full Judgment
G.D.Gaiha
The petitioner claims to be a Multi System Operators as provided under regulation 2 (m) of the telecommunications (broadcasting and cable services) interconnection regulation, 2004 as amended on 4 September 2006. The respondent No. 1 is a broadcaster as described under section 2 (e) of the principal regulations. The petitioner had applied for a grant of connection in terms of clause 3.2 of the regulations on 19.2.2010.
2. The petitioner has registered himself as a cable operator under section 4 of the cable TV network regulation act 1995 and also possesses the certificate of registration for the purpose of paying the service tax. Copies of the postal registration certificate and list of cable operators have been annexed by the petitioner in the petition.
3. The petitioner claims that it was provided the de-coders, bearing MAA TV box number ZINWELL 712100226 and card number 4016389044 and MAA Music box number HCY6C2SMAASOFIRSE000470 and card number 41025086012 through the distributor Mr. K. Nageshwar Rao on 8.05.2010 and the petitioner, further in pursuance of the said delivery of decoders, on the terms already agreed mutually, entered into a subscription agreement on 12.5.2010 at Visakhapatnam with the respondent. The petitioner also paid an amount of Rs. 19,854 vide cheque number 881911 dated 13.5.2010. The grievance of the petitioner is that on 16.5.2010 the signals of the respondent No.1 were disconnected unlawfully without following any regulation and without giving any notice. The petitioner further claims that it has taken up the issue with the respondent on 17.5.2010 itself through a fax message, speed post and telegram, demanding the respondent to immediately restore the signal to the petitioner’s network. The petitioner further says that it did not receive any response till 21.5.2010, however it received a telegram on the said date which reads as follows:-
“This has been reference to your letter dated 17 May 2010. We are surprised to see the contents of the letter. At the outset the contents of your letters are totally denied as we have not entered into any agreement with you much less issued MAA TV box number ZINCWELL 712100226 and card number41025086012 and MAA Music box number HCY6C2SMAASOFIRSE000470 and card number 41025086012. In fact the above referred boxes and cards have been issued to M/s Sai Durga network JAAGAMPETA, East Godavari district. We now understand that these boxes are being misused in an area other than the assigned. We request you to kindly surrender the boxes with immediate effect. We are aware that you have approached us for supply of signals and for that year approached us for supply of signals and for that purpose you are negotiating an agreement with you and we were in the process of negotiating the terms and conditions of this agreement. In the Meantime you approached in Visakhapatnam and issued a cheque even before we arrived at a mutually agreeable conclusion. You may also be aware that this executive was not authorised to receive this cheque as this is beyond his area of operation. Our executive forwarded the cheque clearing number 679284 dated 13 May 2010 drawn on the bank of Hyderabad, Koruonda Road branch for Rs. 19,854 to the appropriate office and as there exists no agreement it is being duly returned to you. We further request you to refrain from transmitting signals of MAA TV and MAA music channels in Rajahmundari.''
4. The contents of the above-mentioned telegram tell a completely different story, denying to have issued decoders to the petitioner and claimed that the said decoder allegedly were issued to respondent No. 3 and the petitioner is misusing the same decoders without any authorisation. The respondent No. 1 however admits that the parties have been negotiating for an agreement and that before such mutually negotiable agreement could be reached, the petitioner approached the executive of the respondent No. 1 at Visakhapatnam and issued a cheque. It is also claimed by the respondent No. 1 that the executive at Visakhapatnam had no authority to receive the said cheque. The respondent No. 1 also categorically denies the signing of any agreement with the petitioner.
5. In the peculiar facts and circumstances of the case, we directed all the parties on 20.5.2010 to submit their specific stand by way of an affidavit. We also directed the respondent No. 2, and No. 3 to submit their respective stand on affidavit. We also directed that the respondent No. 1 should look into the application of the petitioner for supply of signals as per clause 3.2 of the regulations.
6. In the midst of these two diametrically opposite stand taken by the petitioner and the respondent No. 1 in this petition, we need to determine the following issues:-
(a) Whether the purported agreement submitted by the petitioner has been signed by and between the parties or not?
(b) Whether the decoder boxes have been supplied to the petitioner on the basis of the said agreement or otherwise?
(c) In case the answer to (b) above turns out to be negative, the petitioner has been using these decoder boxes without authorisation and in that case the consequence of the misuse of the decoders.
(d ) Whether the petitioner is entitled for the activation of the decoders already obtained by it or the same need to be handed over back to the respondent No.1?
(e) In case the request for asking for fresh signals is acceded to by the respondent No.1 to the petitioner, fresh decoders need to be issued and if so on what terms and conditions?
7. The respondent No. 1 in support of its contentions has placed the following facts in its reply:-
(i) There is no agreement which has been signed by and between the parties and a copy of the agreement which has been placed in the petition has been only signed by the petitioner and not signed by any authorised representative of the respondent.
(ii) The agreement also does not indicate the decoders and viewing cards, in question as claimed by the petitioner to have been issued to it and, therefore, there is no strength in the copy of the agreement which has been signed unilaterally by the petitioner and placed in the petition by the petitioner. It is not a legitimate document.
(iii) The invoices which are placed in the reply and which have been issued to, in the name of M/s Sri Communications (respondent No. 3) clearly shows that the above decoders and viewing cards have been given to the said M/s Sri Communications who is the respondent No. 3.
(iv) The account statement which has been annexed for M/s Sri communications for the period 1.4.2008 to 26.5.2010 also shows the relationship between Respondent No. 1 and 3.
(v) The petitioner is misusing the decoders and viewing cards without any authorisation which are meant for Respondent No. 3, i.e., M/s Sri Communication.
(vi) In the absence of any authorisation for issuance of the IRD Boxes or viewing cards in the favour of the petitioner, the claim of the petitioner in its letter dated 7.5.2010 is not sustainable. The malafide motives of the petitioner are abundantly clear from the fact that a letter addressed to Mr. K. Balaji dated 8.5.2010 was received by the answering respondent from the said M/s Raghu Communications, respondent No. 2 and alleged distributor of respondent No. 1 only on 26.5.2010, i.e, subsequent to the filing of the present petition wherein it is stated that the Raghu Communications has issued decoders to the petitioner as per the telephonic discussions with the said Mr. K. Balaji. The petitioner in collusion with the respondent No. 2 has only fabricated and created the letter dated 8.5.2010 in order to support their false contentions and thereafter posted the letter only to create false evidence. In support of this, the copy of the letter dated 8.5.2010 alongwith evidence and DTDC courier consignment letter are annexed by the respondent No. 1 in its reply.
(vii) The respondent No. 1 was definitely having negotiations with the respondent on the question of supply of signals and without the negotiations coming to a conclusion, the petitioner has obtained the IRD Box and viewing card unauthorisedly which were meant for respondent No. 3.
(viii) The area of operation of the petitioner, i.e, Rajahmundry falls under East Godavari District.. The Executive officer of the Rajahmundry, for East Godavari district is one Mr. K. Veera Babu whereas the said Mr. K. Gangadhar is the Executive Officer for Visakhapatnam district and, therefore, the petitioner handing over a cheque No. 679284 dated 12.5.2010 allegedly towards subscription charges for May, 2010 to the said Mr. K. Gangadhar, who is nowhere related to the matter and is not competent to negotiate or receive any cheque from the petitioner, is irrelevant
(ix) The petitioner’s claim to have received the decoders and viewing cards from the distributors Mr. K. Nageswar Rao acting for Raghu Communications, Respondent No. 2 should entitle the distributor to receive the cheque rather than an Executive Officer who is not related to this particular area where the petitioner is in operation. The cheque has also been returned by the respondent No. 1 without encashment and the same has been received back by the petitioner because the respondent No.1 has refused to accept the same.
8. The letter purported to have been issued on 8.5.2010 and addressed to the General Manager of the Respondent No. 1 at Hyderabad, i.e, K. Balaji Rao has been placed in the reply which clearly shows that the decoders and the viewing cards have been issued for M/s Sree Devi Digital Systems, i.e, respondent No. 3.
9. An affidavit has been filed by Mr. K. Gangadhar, Executive Visakhapatnam District, respondent No. 1 in which it has been alleged that the cheque which has been delivered indicate that his signatures have been obtained on the letter enclosing the cheque forcibly to create a false evidence. As per this affidavit, Mr. K. Gangadhar, has said that the petitioners case did not fall within the area of his operations and, therefore, he sent the cheque forthwith to the appropriate office and was told that there was no existing Agreement between the petitioner and the respondent No. 1 and that delivery of the cheque purportedly towards subscription amount was without any demand made by the respondent and was paid with a view to somehow coerce the respondent No. 1 for entering into agreement. He also states that there is no agreement entered into between petitioner and respondent No. 1 at Visakhapatnam to the best of his knowledge.
10. The affidavit furnished by Mr. K. Nageswar Rao on behalf of the respondent No. 2 in response to the reply filed by the respondent reveals the following:-
(i) Respondent No. 2 who is the distributor of Respondent No. 1 has categorically denied in its reply that the petitioner has attempted to mislead this Tribunal by fabricating the facts of this case and in collusion with it. it is also categorically denied that it has not played any fraud on the Respondent No. 1 in collusion with petitioner. The distributor of the respondent No. 1 has also categorically stated in its affidavit that it has consulted and communicated with respondent No. 1 in respect of the issuance of the decoders to the petitioner. It is also denied by the distributor that it has created any false or fabricated letter dated 8.5.2010. The decoders boxes and viewing cards have been issued to the petitioner in compliance of the orders of the respondent No. 1 after due communication of the same to the respondent No. 1. The communication involved the distributor to inform Mr. K. Balaji , the Associate Vice President of the respondent No. 1 about the request of the petitioner for decoders stating that the petitioner had applied for fresh decoders and negotiations were going on between the parties. The letter dated 8.5.2010 to the respondent No. 1 duly states that decoders had been granted to the petitioner after due intimation and approval of the respondent No. 1. However, the respondent No. 1 did not give any acknowledgement for the same. It is also stated in the affidavit that subsequently Mr. M. Satish the Costal Manager of the respondent No. 1 called the respondent No. 2 on 25.5.2010 stating that the letter dated 8.5.2010 informing the respondent No. 1 about the grant of decoders to the petitioner had been misplaced and requested the respondent No. 2, i.e, distributor to send it again. On the basis of this request, the distributor re-sent the letter dated 8.5.2010 to the respondent No. 1 on or around 25.5.2010 and coincidently the petition has also been filed on 25.5.2010, on the same day the Coastal Manager contacted the respondent No. 2, i.e, the distributor. This clearly shows that the respondent No. 1 wanted to somehow show collusion between the petitioner and the respondent No. 2 with ulterior motives and the reasons of the same are only known to the respondent No. 1.
11. We have gone through the Evidence records of the witnesses of the petitioner as well as three respondents in order to arrive at a definite conclusion to determine the various issues.
12. The cross-examination of Mr. I.R.K. Raju, Proprietor, M/s Sree Devi Digital Systems, Rajahmundry who claims to be the legitimate recipient of the decoders and viewing cards in question, reveals as follows:-
“Q. When did you first approach the respondent for supply of the fresh decoders?
A. I approached the respondent by letter dated 19.2.2010.
The application form dated 8.5.2010 was filled by the Assistant of the Distributor. I do not know his name.
Myself and my son signed the application form for the supply of decoders on 8.5.2010. The Assistant of the Distributor signed the application form dt. 8.5.2010.
Attention of the witness is drawn to page 26 and 27.
It is true that on the application dt. 8.5.2010 does not contain the signature of any of the representative of R-1.
The agreement at page 27 of the affidavit does not contain any date.
Attention of the witness is drawn to page 39.
It is true that Annexure-2 does not contain number of decoders and viewing cards.
It is true that the agreement at page 27 to 32 of the affidavit does not contain signature of R-1.
Vol: They have obtained my signature to the said agreement intimating that the same would be signed by the broadcaster at Hyderabad and copy thereof would be sent to me later on.
I do not know to whom these decoders belong.
It is not correct to say that these decoders were given to me by R-2 by colluding with me.
I have not sent the copy of the agreement directly to Maa TV office.
Vol. I have handed over it to Shri Gangadhar.
It is true that I mentioned the details with regard to the fact that Mr. K. Gangadhar had supplied hardware and subscription agreement on 12.5.2010 at Vizag in our office and the details in the agreement are filled by one Mr. Satish.
It is not true to suggest that the decoders were unauthorisedly using by me in collusion with R-2 for transmitting the signals and therefore R-1 disconnected the signals.”
From the above cross-examination, we infer as follows:-
(a) The chronological sequence in which the petitioner has approached the respondent for asking for decoders and the way in which the signatures were obtained on an agreement form by the respondent is in consonance with the normal practice prevailing in the cable industry.
(b) The proprietor of the petitioner has categorically denied that the decoders were unauthorisedly being used by it in collusion with the respondent No.2.
13. The Cross Examination of K. Siva Adinarayana, General Manager (Legal) of MAA TV reveals as under:-
“I am aware of the negotiation but did not directly participate in the negotiation.
Q. Will it be correct in saying that since you were not personally present in the negotiation, you do not have personal knowledge of the entire transactions?
A. Yes.
Though I was not personally present but had there been any outcome I would have come to know thereabout as there was any outcome, it would have come to me for documentation purpose.
Is there anything placed on record to show that the decoders and viewing cards were issued to Sai Durga Network and Sree Communications?
We have placed on record the invoices.
Q. Other than these invoices, have you placed anything on record?
A. The statement of accounts also.
Q. Have you placed on record anything to show that Sai Durga and Sree Communications had been making payments to R-1?
A. The statement of account to show payment.
Q. Have you placed on record anything to show that the invoices were delivered to Sai Durga and Sree Communications?
A. No.
Q. Have you placed any proof on record from Sai Durga or Sree Communications to show that their decoders were missing?
A. No.
Q. Is there anything on record to show that Sai Durga and Sree Communications had requested for fresh decoders?
A. No.
Q. Is there any communication from Sai Durga or Sree Communications to show that the decoders had been taken away from them?
A. No.
Vol. As per our record, the decoders are with them only.
Q. When did you come to know that the petitioner was using the decoders?
A. After 12.5.2010.
Vol. Our executives were at Kakinada and Rajahmundry informed us that the petitioner had been using the said decoders unauthorisedly i.e. without any agreement.
Q. Did you make the aforementioned statement in your affidavit?
A. No.
Q. Can you give the exact date when you came to learn about unauthorised use of the decoders by the petitioner?
A. I do not remember.
Q. Did you enquire from Sai Durga or Sree Communications after you came to know about unauthorized use of the decoders by the petitioner?
A. Yes, we did.
Q. Did you write any letter to them?
A. No. We talked on phone.
Q. Who made the telephone call?
A. Mr. Veera Babu, our Executive for East Godawari.
Q. who informed you about that Mr. Veera Babu has talked to Sai Durga or Sree Communications?
A. Mr. Satish informed me.
Q. Have you stated all these in your affidavit?
A. No.
(All is a third party communication and also not stated on affidavit cannot be believed).
Q. What is the procedure followed for switching off and switching on of the channels?
A. After the agreements are executed, we issue decoders and viewing cards which are activated by our IT people through a server by way of a software.
Q. What is that software called?
A. I cannot say.
Q. Will I right in saying that the instruction goes to the satellite for switching off and switching on?
A. Yes. The Company maintains the records for the same.
Q. Can you produce that record?
A. Yes.
Vol. I will check with the technical people and to provide activation and de-activation report.
(No records have been produced)
Q. Have you placed anything on record to show that signals of Sai Durga and Sree Communications were still activated before 8.5.2010?
A. No.
It is incorrect to suggest that the decoders and viewing cards, which were given to the petitioner, were in de-activated condition before 8.5.2010.
It is incorrect to suggest that these decoders were activated only on 8.5.2010.
Q. Did Sree Communications and Sai Durga report any theft of decoders?
A. No. We have not received any theft report.
(How come the decoders reach to petitioner from the possession of R-3? )
Q. Are you still supplying signals to Sai Durga and Sree Communications?
A. Yes.
Q. How are you supplying those signals to Sai Durga and Sree Communications?
A. Through optic fiber cable and not through decoders?
Q. Optic fiber from whom?
A. Raghu Communications. After that they had not given any decoders.
Q. Did they not ask for the decoders as earlier they were supplied to them?
A. Since they were getting signals from Raghu Communications, they did not ask for supply of decoders.
Q. Have you any proof to show that they are getting signals from Raghu Communications?
A. I have not filed any proof to show that they are getting signals from Raghu Communications.
(The statement of getting signals to Raghu Communications, i.e, R-2 does not stand the scrutiny of facts.)
It is incorrect to suggest that Sai Durga and Sree Communications are not getting signals from Raghu Communications.
Q. When was the last agreement entered into?
A. On daily basis, we are entering into the agreement. Every agreement goes on serial basis.
Q. With whom you had entered into an agreement bearing No. 1199 and 1200?
A. The petitioners are claiming the agreements but we have not executed the said agreements.
It is correct to suggest that the agreement formats bearing serial No. 1199 and 1200 are of our Company. These formats have been printed by our company.”
From the above cross-examination, we infer as follows:-
(a) The witness is working in the legal department of the respondent and he is not involved in any negotiations directly with the petitioner.
(b) When confronted with the question that the decoders and the viewership cards were issued to Sai Durga Network, the only confirmation to this effect was possible to be furnished by the witness by stating that the relevant invoices and the statement of accounts have been placed on record. There is no receipt or any other document which could be pointed out as a proof of giving these decoders to Sai Durga Network. There is also no proof of despatch of invoices to Sai Durga Network as well as delivery of invoices to Sai Durga Network. In case the decoders were missing, there is nothing to show on record that how the decoders have gone missing; no police report has been filed and the only reiteration in his statement is that decoders are still with Sai Durga Network. No letters have also been written to Sai Durga Network. Only some telephonic conversation has been confirmed to have been made for this purpose. There is no mention about such things in the affidavit of witness also. The witness is also not aware of the procedure of switching off and on of the channels through the decoders and he has mentioned in his cross examination that he will like to confirm the same from technical person in his organisation.
(c) When confronted with the question that how the signals are being provided to Sai Durga; it is told by the witness that signals are being provided through fibre and not through decoders. However, it is very surprising to know that the decoders are shifted to some other location and it is not a slightest provocation is there of such an incident happening either at the control room of Sai Durga Network or at the end of respondent No.1 and the respondent No.1 coolily decide to start giving signals to Sai Durga through the fibre without giving the decoders.
(d) When confronted with the question that whether there is any record of the agreements being given to various MSO’s and when these agreement are returned back to the Respondent No.1, there is no definite answer given by the witness as to their receipt, and there is also no register being maintained by the respondent No.1 for this purpose. He has only denied that decoder boxes have not been given to the petitioner but there is no proof of the same in his Cross examination.
(e) In regard to the delivery of letter dated 08.5.2010 on 26.5.2010, the answer given by the witness does not lead us to any conclusion in favour of the respondent and it appears that asking for a second copy of this letter on 25.5.2010 by Mr. Satish an executive, the respondent No.1 afraid just to create an evidence of collusion between distributor and petitioner.
(f) In regard to the termination of the distributorship of respondent No. 2, after the institution of the present case, it also does not impress us as an effective measure taken by the respondent No.1 for such an incident not to be repeated in future, as it happened in this particular case.
14. It shall be of interest to go through the further cross-examination of the representative of respondent No. 1. Mr. K. Siva Adinarayana by the counsel for respondent No. 2. This reveals the actual relationship between the parties.
The cross-examination reveals as under:-
“Q: What is the role of a distributor of Maa TV?
A: For each district there is a distributor who will take care of business of Maa TV in that District.
Q: What do you mean by business of MAA TV?
A: Penetration and placement of channels of MAA TV in the district.
Q: Does the agreement entered into MAA TV and the distributor assigns the duties of the distributor?
A: Yes.
Attention of the witness is drawn to page No. 34 of Petition No. 157 (C) of 2010.
Q: Do you agree that these are the application forms given to the distributors by MAA TV for supply of decoders?
A: Yes.
It is correct that the distributor has two copies of an application form, one retained by him and the other sent to MAA TV for signatures and official record.
(Shows that the agreement has been signed by the petitioner and sent for the signature of the respondent No.1)
Attention of the witness is drawn to page No. 84 of Petition No. 157 (C) of 2010.
The witness states that : It is incorrect to suggest that the letter dated 8.5.2010 was sent by the respondent No. 2 to the respondent No. 1 on the same date i.e. 8.5.2010 alongwith the application form for official record.
Q: Do you maintain DAK register or an inward register in your company?
A: Yes.
Q: Have you filed the same on record?
A: No.
Volunteer: we have only filed the DTDC courier consignment tracker - the witness points out page No. 86.
Attention of the witness is drawn to para 11 of the affidavit.
Q: Can you tell the dispute between MAA TV and Hathway?
A: It was regarding placement of our channels.
Volunteer: the dispute is nothing to do with the present case.
Q: Is it correct to say that Hathway switched off the signals of MAA TV in the TRP towns of Kakinada, Hyderabad and Rajamundry?
A: Yes.
Later says - only Hyderabad.
It is correct that MAA TV issued a public notice to the consumers asking them to demand the MAA TV channels from their cable operators if they were not showing them.
Attention of the witness is drawn to pages Nos. 102 and 104.
Q: Are these the public notices issued by Maa TV?
A: Yes.
It is correct that after issuing the pubic notices, the respondent No. 1 to increase its viewership started giving boxes to new MSOs as Hathway had disconnected their signals.
Q: How many boxes were supplied by the respondent No. 1 directly or through its distributors in the month of May, 2010?
A: I do not remember.
It is incorrect to suggest that the respondent No. 2 giving boxes to the petitioner was well within the knowledge of the respondent No. 1.
It is incorrect to suggest that Mr. K. Balaji of the respondent NO. 1 instructed the respondent no. 2 to give boxes to the petitioner on 8.5.2010.
It is incorrect to suggest that the respondent No. 2 supplied boxes to the petitioner in a deactivated condition.
It is correct that the respondent No. 2 has nothing to do with the activation or deactivation of signals as it is controlled only by the respondent No. 1.
It is incorrect to suggest that the affidavit filed by Mr. K. Balaji is false and has been procured for the purpose of the present petition.
Q: Would Mr. Balaji be examined in the present case?
A: Yes.
Attention of the witness is drawn to para 4 of the affidavit.
Q: Have you filed any criminal complaint against respondent No. 2 for commission of fraud or criminal breach of trust?
A: No. But we have terminated the agreement after coming to know about the unauthorized distribution of decoders.
Q: As you stated that you came to know of the unauthorized distribution of decoders on 12.5.2010, why have you terminated the distributorship agreement on 28.5.2010?
A: We need to check the decoder numbers.
(This also shows that the attempt is only for the purpose of taking a stand in this petition by respondent No.1)
Q: Is Mr. Satish still working as costal manager of the respondent No. 1?
A: Yes.
Q: Why he has not filed his affidavit in the present case?
A: I don’t have any reason.
It is incorrect to suggest that the letter dated 8.5.2010 was resent by the respondent No. 2 to the respondent No. 1 on the request of Mr. Satish on 25.5.2010.
Q: When did you receive the letter dated 8.5.2010 from the respondent No. 2 as per you?
A: 26.5.2010.
I am aware that the respondent no. 2 was impleaded as a party respondent only on 26.5.2010.
It is correct to suggest that the respondent No. 1 terminated the distributorship of the respondent No. 2 only after the institution of the present case.
It is incorrect to suggest that the termination of the respondent No. 2 was a tactic of the respondent no. 1 to somehow show collusion between the petitioner and the respondent no. 2 although there was none.
Q: Do you have any subscription agreement with the respondent no. 2 for supply of signals?
A: Yes. However in some other name.
It is incorrect to suggest that there is no subscription agreement between the respondent no. 1 and respondent no. 2 under any name and that is why the respondent no. 1 has not produced the same.
It is incorrect to suggest that the respondent no. 2 is not supplying signals to Shri Communications and Sai Durga as stated by me.”
From the above further cross examination, we infer as follows:-
(i) As regards the letter dated 8.5.2010, a tracker report has been filed for the receipt of a document on 26.5.2010 at 13:13 hrs from DTDC Courier. This is just to show as if the letter dated 18.5.2010 has been received by them only 26.5.2010 and not before that through Raghu Communications ,i.e., the distributor of respondent No.1.
(ii) As after going through the further cross examination on details of the representative of the distributor, we cannot place any reliance on this tracker report to suggest that the letter dated 8.5.2010 initially has been received only on 26.5.2010 because this copy of the letter dated 18.5.2010 has been sent on the request of Mr. Satish from the office of the respondent No.1 by telling to the distributor that the original copy of this has been placed.
(iii) When confronted with the question whether any criminal complaint has been filed against the respondent No.2 for commission of fraud or criminal breach of trust, in regard to giving of decoder boxes without any authorization to the petitioner, the witness has stated that they have not terminated the agreement after coming to know about unauthorized distributor of the decoders and have not taken any other action.
(iv) When confronted with the question that Mr. Satish who asked for the copy of the letter dated 08.5.2010 to be sent again by the distributorship, has not been asked to depose before us and file an affidavit of this particular important aspect of the case, the witness could not tell any valid reason for it. It is also admitted by the witness that only after the institution of this case in TDSAT by the petitioner, the distributorship agreement of the respondent No.2, i.e., the distributorship agreement has been terminated by the respondent No.1.
15. We infer from the cross examination of Mr. Nageshwar Rao is as follows:-
The cross examination of Mr. Nageshwar Rao, special power of attorney holder of the respondent No.2 (M/s. Raghu Communications) reveals the circumstances in which the decoders and viewing cars were distributed to the petitioner and also that there was no instructions to give the same to respondent No. 3. The process of signing of agreement between petitioner and respondent No. 1 also becomes clear from the details of this cross-examination.
The relevant portion of the cross-examination is as follows:-
Attention of the witness is drawn to page 34.
Q. Is this the form, which was given to the petitioner by the R-2?
A. Yes, by my clerk, Shri Srinivasa Acharyulu.?
The decoders were given to the petitioner on 8th May 2010.
Mr. Balaji, General Manager of the distribution side of Maa TV instructed me to give the decoders.
Q. Why there is signature of any Executive of the R-1 on this form?
A. We sent first copy to Head Office for signature of the Executive. We sent this application form to R-1 on the same date.
No decoder remains in active form. Only after they are supplied, they are activated.
16. Cross-Examination of Mr. Nageshwara Rao by Mr. Rajagopala Rao, Advocate:-
Q. Do you have any proof that Mr. Balaji had instructed you?
A. There is no proof that Mr. Balaji instructed me. But he talked to me on phone.
Q. Who has filled these details in form dt. 8.5.2010?
A. My clerk, Mr. Srinivas Acharyulu has filled the entire form.
Sai Durga Network and Sree Communications come within my distribution network.
I do not know that IRD Box and viewing card had been allotted to Sai Durga Network and Sree Communications.
Vol. Four months prior to 8.5.2010, these boxes had come to me.
I do not know about the execution of any agreement.
This form does not either contain my signature or signature of Maa TV side.
Vol. My clerk prepared the form. The form was supplied by the company.
Q. Can you show any proof that you had sent this form to the Head Office of R-1?
A. I do not have any proof to show that this form has been sent to Head Office of R-1 on 8.5.2010.
My distribution agreement has been terminated recently by Maa TV.
Q. What is the ground of termination of the distributorship agreement?
A. I had received a telegram from Maa TV terminating my distributorship on the ground of issuing IRD boxes unauthorisedly.
It is incorrect to suggest that Balaji had never asked me to hand over the decoders to the petitioner and I in collusion with the petitioner had issued the decoder boxes, which had earlier been issued to Sai Durga Network and Sree Communications.
It is incorrect to suggest that the letter dated 8.5.2010 was fabricated and sent to the R-1 after filing of this petition which was received in this office on 26.5.2010.
Vol. Mr. Satish of R-1 had asked us to send that letter once again and that is why, we did so.”
17. The fact that the letter of 12.5.2010 enclosing his cheque was not forcibly handed over to Shri K. Gangadhar, Executive, Vishakhapatnam, District of the Respondent No. 1 becomes clear from the cross-examination of the said witness by the counsel for the petitioner. It also becomes clear as to why the said letter was given to Shri K. Gangadhar and not to Veer Babu.
The cross-examination reveals as follows:-
Cross-Examination of Mr. K. Gangadhar by Mr. Yoginder Handoo and Mr. A. Tulsi Raj Gokul, both Advocates
I have been working as Executive in Maa Television Network Ltd. since five years. Maa Television Network Ltd. is a pay channel. I look after the collection in Vishakhapatnam District.
Attention of the witness is drawn to para 3 at page no. 127 and 128 of the affidavit.
It is correct to suggest that except for the statement made in the para 3 of my affidavit, I have not placed anything on record to show that my area of operation is Vishkhapatnam District and not East Godavari District.
I have known the petitioner since five years.
I was in Delhi on 23.7.2010. I came to Delhi by flight in the afternoon at 1.00 P.M.
I am not aware of any negotiations between the petitioner and respondent no. 1.
I have not filed any proof to show that one Mr. K. Veera Babu is the concerned executive of East Godavari District.
Volunteer: Mr. Veera Babu is the concerned executive of East Godavari District.
Q: Where was the letter dated 12.5.2010 handed over to you?
A: The letter was handed over to me at the office of the petitioner at Vishakhapatnam.
Q: Who handed over the aforesaid letter to you?
A: Mr. I.R.K. Raju handed over the said letter to me.
Q: When you acknowledged the letter dated 12.5.2010 of the petitioner apart from your signature, have you written anything else.
A: I only put my signature.
Attention of the witness is drawn to page no. 51 of the paper book.
Q: Are these your signatures?
A: Yes. The said signature is marked as exhibit ‘2’. Exhibit 2-A is in my hand writing.
Q: Who else was present when the letter dated 12.5.2010 was delivered to you?
A: Mr. Ranga Rao of Sree Devi Master Media Systems Pvt. Ltd.
Q: What all was handed over to you along with the letter dated 12.5.2010?
A: One Cheque. In another letter dated 12.5.2010 (Sree Devi Digital Systems) another cheque was also handed over.
I am sure only the cheques and the letters dated 12.5.2010 were given to me.
I had casually gone to petitioner’s office at Vishakhapatnam.
Volunteer: Generally 3-4 times I visit the office.
It is incorrect to suggest that along with the letters dated 12.5.2010 and cheques two agreements were also handed over to me.
I have not written any letter to the petitioner that the letters and cheques were forcibly handed over to me.
Attention of the witness is drawn to para 5 at page no. 128 of the paper book .
Q: When did you forward the cheques and letters which were handed over to you by the petitioner to your company?
A: I do not remember.
It is true I have not stated in my affidavit as to when and how the said letters and cheques were forwarded by me to the Respondent No. 1.
It is correct to suggest that I have not written any letter to the Respondent No. 1 stating that the letters and cheques were handed over to me forcibly.
It is correct to suggest that I have not lodged any police complaint against the Petitioner that the letters and cheques were handed over to me forcibly.
Q: I put it to you that the letters and the cheques were handed over to you and were readily accepted by you.
A: The letters and cheques when handed over to me on 12. 5.2010 I had asked the petitioner to hand over them to Mr. Veera Babu, executive of East Godavari. But the petitioner said no problem you receive the cheques and letters. Then I received them.
I have not stated the aforesaid statement in my affidavit.
It is incorrect to suggest that on the instructions of the Respondent No. 1, I visited the office of the Petitioner to collect the cheques and the agreements.
Attention of the witness is drawn to para 4 at page no. 128 of the affidavit.
It is correct to suggest that apart from the statement mentioned in para 4 of my affidavit, I have not filed anything on record to show that the letters and the cheques were handed over to me forcibly.
It is incorrect to suggest that I have deposed falsely in my affidavit that the letters and cheques were handed over to me forcibly.
Attention of the witness is drawn to para 6 at page no. 128 of the affidavit.
It is true I have not filed any proof before this Hon’ble Tribunal in support of my statement in para 6.
Mr. Balaji instructed me to file this affidavit before this Hon’ble Tribunal.
I don’t have an idea as to when Mr. Balaji instructed me.
I don’t remember the exact date but he instructed me to file affidavit around 15th -20th May, 2010.
The affidavit was prepared on my instructions.
It is incorrect to suggest that without knowing the implications of the averments in the affidavit, I signed it.
It is incorrect to suggest that I am deposing falsely.
Re-examination of the witness by Mr. Y. Rajagopal Rao, Advocate
{Counsel for the Petitioner objects to re-examination}
Q: What is the name of the office of the Petitioner at Vishakhapatnam?
A: Sree Devi Master Media Systems Pvt. Ltd.”
18. We conclude from the pleadings arguments and the details of the cross examination as follows:-
1. The petitioner has received the decoders and viewing cards with the consent of Respondent No. 1 from respondent No.2, after the agreement has been signed by petitioner and it was sent to respondent No. 1 for completion of the same on the other side by respondent No. 2. The cheque has also been handed over to Shri Gangadhar on 12.5.2010 and was duly received by him on behalf of respondent No. 1.
2. The visit of Mr. Gangadhar was a usual visit to the office of petitioner and, therefore, in place of Veer Babu who was the concerned executive for the area the cheque was given because Shri Gangadhar is also a senior executive in the company of respondent No. 1. There was no ulterior motives of the petitioner in doing so.
3. The fact as revealed by cross-examination that there is no relationship of respondent No. 1 with respondent No.3 from the point of supplying signals through decoders and viewing cards, and, therefore the plea of the respondent No. 1 that decoders and viewing cars were meant for respondent No.3 does not hold water. Since there were negotiations going on with petitioner by respondent No.1 on the basis of its application dated 19.2.2010 for asking for signals, there is a strong likelihood that the decoders/viewing cars on the basis of telephonical approval was given to petitioner by respondent No. 1 through respondent No.2. There appears to be strong reasons to believe that the signals were disconnected on 16.5.2010 by respondent No.1. It is also a very reasonable possibility that the signals were activated by respondent No.1 when the decoders/viewing cards were in the physical possession of petitioner before switching it off on 16.5.2010. It is a common practice of normal prudence that such a vital equipment location has to be ascertained before activation and it is just not done casually and then disconnected after coming to know that the decoders/viewing cards are in the wrong hands.
19. We, therefore, direct respondent No.1 to re-activate signals to petitioner within 48 hours and also complete the formalities of signing the agreement with petitioner as per regulations without any unreasonable conditions and discrimination after negotiating the subscriber base on the basis of the application of petitioner dated 19.2.2010.
20. The petition is disposed of without any costs.