Judgment:
By this petition the petitioner has claimed an amount of Rs. 221666/-upto Sept, 2006 alongwith interest @ 18% per annum from the respondent, who is a Cable TV Operator operating in the city of Nashik, Maharashtra. The petitioner claims to be a Multi System Operator (MSO) operating in the city of Nashik, Maharashtra. The petitioner also claims that the persistent default on the part of the respondent in making payment of the cable TV feed charges to the petitioner company for a considerable period of time, has resulted in building up the alleged outstanding against the respondent. The petitioner has prayed that the respondent may be restrained from switching over to any other cable TV service provider for availing signal feed for its network, without paying its outstanding dues.
2. The case of the petitioner is that it has raised monthly invoices on the respondent for the subscription charges. The invoices from 1st July, 2005 up till 1st Sept, 2006 are placed on record. These invoices dated 1st July, 2005 up till dated 1st March, 2006 have been raised on a connectivity of 450 points @ Rs. 110/- per point, exclusive of taxes. Thereafter, from the month of April, 2006 up till Sept, 2006, the invoices have been raised for a connectivity of 525 points @ Rs.110/- per point exclusive of taxes. The petitioner has claimed that the respondent was in default of an amount of Rs. 221666/- as on 31st July, 2006 and in this behalf a notice dated 24th Aug, 2006 has been sent to the respondent by courier. We note in the courier receipt annexed with the notice of 24th Aug, 2006 that the notice has been delivered to the respondent.
3. The petitioner has claimed that the total outstanding as on 30th Sept, 2006 is Rs. 435326.20 after including the invoices upto the month of Sept, 2006. The September, 2006 invoice shows a monthly cable TV feed charges as Rs. 64818.60, which includes service tax and education cess levied by Central Govt. The petitioner has also submitted that it is maintaining a running ledger account of the respondent on its request, however, the ledger account has not been annexed with the petition. The petitioner has also filed the affidavit by way of evidence of Mr. Vijay Mandhayan, who is authorized representative of petitioner company. During cross examination, it has been stated by the deponent of petitioner that there was an oral agreement between the parties which was arrived at sometime in the year 2000. This agreement did not specify the period. It was a continuing agreement. The invoices were raised in support of the subscription amount on the 1st of every month and the respondent was making payment against invoices from time to time. It has also been deposed during cross examination that payments used to be “on account payments”. During cross examination the deponent has also confirmed the issuance of letter dated 24th Aug,2006 indicating an outstanding of Rs.221666/- upto July, 2006 on the basis of the running ledger account of the petitioner. This figure has increased to Rs. 435326.20 upto Sept, 2006. The ledger account has neither been submitted with the petition nor with the rejoinder affidavit filed by the petitioner. It is surprising that, for the first time, the ledger account has been annexed by the petitioner with the evidence by way of affidavit. During cross examination, it was pointed out in the affidavit dated 26.10.07, a figure of Rs. 161996/- has been mentioned as due and outstanding on 31.7.2006 as against Rs.221666/- shown in the letter dated 24.8.2006. The deponent on behalf of the petitioner has admitted the mistake and called it as a typographical mistake and confirmed that the amount of Rs. 221666/- is on the basis of running ledger account which starts with effect from 1st April, 2001 and is upto July, 2006. In the affidavit the total amount due as on 30.9.2006 has been shown as Rs. 351303/- while there is a claim of Rs. 435326.20 as mentioned in the petition. We note that if we add alleged outstanding for the month of July, 2006 and Aug, 2006 @ Rs. 64818.60 to Rs. 221666/-, we arrive at a figure of Rs. 351303/- which tallies with the outstanding upto Sept, 2006 as shown in the affidavit but to arrive at a figure of Rs. 435326.20 upto Sept, 2006 by any permutation and combination appears to be impossible. This reflects the fallacy of the account submitted by the petitioner.
4. The respondent has annexed a letter dated 14.08.2006 addressed to Star India Pvt. Ltd. by Hathway Cable and Datacom Pvt. Ltd. which indicates a total no. of points for the respondent as 525. This letter mentions that the respondent has migrated to Broadband Cable Network (Panchvati Cable Network). When asked about this letter, the petitioner’s witness has tried to defend the statement made in this letter by commenting that this letter is only a pre-emptive letter and has been written in the normal course of business by Multi System Operator to the broadcaster. This letter admits the exit of respondent before 14.8.2006 from the network of the petitioner. Inspite of this admission, the witness of petitioner has tried to maintain that the signals to respondent continued upto Sept, 2006 and the respondent has moved out to other Multi System Operator only after Sept, 2006.
5. The respondent’s case is that, it has paid all charges regularly and in case there was any delay in making the payment, the petitioner used to disconnect the signals. As the respondent had to face the customers, it was very punctual in making the payment each month. The respondent contends that, it shifted to other Multi System Operator in July, 2006 and made payments to the petitioner upto 31.7.2006. The respondent has also pleaded that it entered into an oral understanding with petitioner to obtain output signal for random connections @ Rs. 80/-, Rs. 100/- or Rs.110/- per connection as prevailing rates and petitioner promised to pay a compensation of Rs. 8 lakhs to respondent. However, the petitioner has not paid the said amount so far. All payments in response to the bills raised have been made by cheque till July, 2006. Bank statement and the receipts supporting the contention of the respondent has been annexed in the counter affidavit. The receipts showing payment of Rs. 41000/- per month w.e.f. 31.1.05 till June, 2005, Rs. 49700/- from July, 2005 till Nov, 2005 , Rs. 50620/- for Dec, 2005, Rs. 49700/- from Jan, 06 to April, 06 and on an average for a similar amount for May, 06, June, 06 and July,06 have been annexed with the counter affidavit. The respondent has contended that the letter written by the petitioner to Star TV on 14.8.2006 is an admission of the fact that respondent has migrated in July, 2006 from the petitioner and has started taking feed from other MSO. The question of payment of any dues after July, 2006, therefore, does not arise. The respondent has also accepted the receipt of letter of 14.8.2006 sent by the petitioner claiming an outstanding amount of Rs. 221666/- upto July, 2006 on the basis of running ledger account. The respondent has strongly contested this claim on the grounds that the running ledger account has neither been filed in the petition not in rejoinder affidavit and has been filed by the petitioner for the first time in the affidavit by way of evidence which as per law in not permissible since the evidence cannot go beyond the pleadings. At this stage, introduction of the statement of the ledger account, denies opportunity to the respondent to specifically comment upon the correctness of the same. The contention of the respondent is that the petitioner has not placed on record anything to show as to what prevented the petitioner from claiming outstanding dues alongwith the bill of subsequent months. Further there is no demand letter for alleged outstanding for Jan, 2001 till July, 2006 and the letter raising demand has been sent for the first time on 14.8.2006 i.e. after the respondent has shifted to another MSO. It is beyond the stretch of any imagination that the petitioner would not claim the outstanding dues for more than five years and will simply go on maintaining the accounts without sending any notice to the respondent.
The witness of petitioner is also vague and does not help in improving the case of the petitioner. Neither he is employee of the petitioner company nor he has personal knowledge of anything pertaining to this case.
6. The following issues need to be determined to arrive at the amount, if any, which is due to the petitioner from the respondent:-
· Whether the respondent is liable to pay beyond July, 2006?
· Whether the ledger A/c presented for the first time alongwith the affidavit of evidence by petitioner after five years relationship between the petitioner and respondent can be taken cognizance of, for arriving at the outstanding amount?
· Whether the payment by cheque as per the statement of bank account and acceptance of the same without any demur by the petitioner for five years and raising a demand only by a letter dated 14.8.2006 can be considered as a credible evidence for deciding outstanding amount in favour of the petitioner?
7. (a) A letter dated 14.8.06 addressed to Star India Pvt. Ltd. by Hathway Cable and Datacom Pvt. Ltd. indicates that the respondent has stopped taking signals from the petitioner before 14.8.06, migrated to some other MSO and, therefore, the petitioner’s subscription fee to Star India Pvt. Ltd. should be reduced. In this letter, besides the name of respondent’s network, the names of 16 other networks have also been mentioned indicating the total no. of points of connectivity which petitioner has lost with the passage of time. The petitioner has asked for downgradation of the subscriber base from the broadcaster by the same number because of the migration of the cable operators, in which the respondent also figures. This is as good as an admission of the fact that respondent was not taking signals from the petitioner prior to 14.8.06. The above fact has also been confirmed during cross examination of Mr. Vijay Mandhayan, the authorized representative of the petitioner. We, therefore, uphold that the claim of the petitioner for the subscription amount for Aug, 2006 and Sept, 2006 is not sustainable.
(b) The ledger account submitted with the affidavit of evidence is not an admissible evidence as per the Section 34 of the Evidence Act.
“ [Entries in books of account including those maintained in an electronic form] when relevant – [Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.”
In this case the ledger account has been produced only at the stage of affidavit of evidence by the petitioner and the respondent has been deprived of the opportunity of specifically denying the correctness of the same. Petitioner has led no evidence in support of veracity of same. Besides this, the petitioner has accepted payment for five years without a demur or without issuing even a single notice to the respondent regarding the outstanding amount. In this context, the Apex Court’s decision in Chandradhar Vs. Gauhati Bank, AIR 1967 SC 1058 is relevant.
“No person can be charged with liabilities merely on the basis of entries in the books of account, even where such books of account are kept in the regular course of business. In order, that a person may be charged with liabilities thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them.”
We, therefore, hold that the demand of outstanding raised on the basis of ledger account is not sustainable.
(c) The respondent claims to have made all payments by cheque and the corresponding cheque numbers have been mentioned in the receipts issued by the petitioner and this evidence cannot be denied. It is very difficult to imagine that in a business relationship of such a long duration of about five years, the petitioner shall not raise its voice by way of issuing notice or disconnecting the signals, to realize the outstanding amount and shall remain satisfied by maintaining account only. We, therefore, hold that the notice raising a demand for an outstanding amount of Rs. 221666/- upto July, 2006 vide letter dated 14.8.06 is frivolous and false as evidence by way of affidavit and alleged ledger account. The total claim of Rs. 351303/- as against the claim of Rs. 435326.20 as per petition, do not tally and admission of witness of petitioner of a typographical error showing Rs. 161996/- as outstanding as against a claim of upto July, 2006, clearly exposes the fallacy of statement of account, fabrication of records placed on affidavit, and, therefore, not sustainable.
8. We observe that there is a tendency of fabricating records, placing them on affidavit by way of evidence and also implicating local cable operators. We deprecate this tendency of fabricating records and impose a cost of Rs.5000/- to be deposited by the petitioner in the Tribunal within two weeks by way of a cheque in the name of the DDO, TDSAT.
The petition is dismissed with Rs.5000/- as costs.