S.B. Sinha
1. The petitioner was a Multi Service Operator (MSO). The respondent is a Broadcaster. Indisputably from 1997 to December, 2002, Gemini TV and Teja TV channels of the respondent were free to air channels. They were converted into pay channels only in December, 2002. It is admitted that the petitioner being desirous of re-transmitting the signals of various channels of the respondent including the ‘Gemini’ and ‘Teja TV’ approached it therefor. An offer to that effect was made by it, which was accepted by the petitioner. It is also not in dispute that the subscriber base of the petitioner at that point of time was 3000. According to the petitioner, however, it had only 2450 connections. The amount of subscription fee payable by the petitioner was fixed at Rs. 30,000/- per month. It is also not much in dispute that at the relevant time, one Rajlakshmi Communication was the distributor of the respondent in respect of the districts of Raichur, Koppal, Devanagere and Chitradurga. Furthermore, it is not in dispute that for the aforementioned purpose the said M/s. Rajalakshmi Communication was to pay a sum of Rs. 2,50,000/- to the respondent herein.
2. There is, however, some controversy as to whether the petitioner was offered the distributorship for the Raichur District by the respondent or not. Whereas the petitioner contends that for the aforementioned purpose it was asked to deposit a sum of Rs. 5 lakhs, which having been agreed to by it, a sum of Rs. 4,80,000/- was deposited in instalments till 10.12.2003 which is, however, denied and disputed by the respondent.
3. The petitioner furthermore contends that in the month of January, 2004 a further offer was made to it by the respondent asking it to become its distributor also in respect of Uday and Ushe Channels for which a sum of Rs. 10 lakhs in instalments was to be deposited. According to the petitioner, it had no other option but to agree thereto. However, the said assertions on the part of the petitioner are also in dispute. It is, however, not in dispute that one Mr. Ashok Challani alias Ashok Kumar (examined on behalf of the respondent as RW-2) was appointed as the distributor of the respondent for Raichur District for its Uday Ushe and Uday News channel at the first instance and for Gemini and Teja channels later. There is, however, a small controversy as to whether in respect of Gemini and Teja Channels of the respondent, the said Mr. Ashok Challani was appointed in March, 2005 or in April, 2005. Nothing turns on it.
4. The petitioner however, contends that appointment of Mr. Ashok Challani was protested by him inter-alia on the premise that he had been offered distributorship and had made payments therefor in installments.
5. It is, however, not in dispute that the said Shri Ashok Challani set up its head-end in the town of Raichur and started its operation as a Multi Service Operator. This fact has been admitted by Mr. Bharma Achary, RW1 in his cross examination.
6. On or about 5.12.05 the petitioner received an e-mail which reads as under :-
“Dear Mr. Chowdry
Please find enclosed the statement of accounts for the financial year 2004-2005 and 2005-2006. Apart from the above mentioned dues you are also due and payable for the Decoders issued to you for viewing the sun network pay channels.
Please feel free to call us for any clarification.
Regards
Vittal”
7. With the said e-mail statements of account for the financial years 2004-05 and 2005-06 were attached wherein a huge amount was shown to be outstanding against the petitioner. According to the petitioner, however, the said statement of account is a forged and fabricated document which would be evident from the fact that the amount of subscription fee was raised from Rs. 36,000/- to Rs. 72,000/- w.e.f. 1st Jan, 2005 in respect whereof no notice had ever been served upon it. It, however, would furthermore appear that from the month of April, 2005, the respondent debited the petitioner with a sum of Rs. 36000/- only which was again increased to Rs. 72000/- for the months of May, 2005 onwards.
8. The petitioner submits that appointment of Mr. Challani as a distributor, who also started its own head-end is contrary to the decision of the Supreme Court of India in Star India(P) Ltd. Vs. Sea TV Network Ltd. and Anr (2007) 4 SCC 656.
9. The petitioner furthermore contends that from the pleadings of the parties it would appear that the respondent had taken contradictory and inconsistent stands. In support of the aforementioned contention, our attention has been drawn to the reply to the original petition at page 63 wherein the respondent averred that the petitioner had agreed to the subscriber base of 4000 for ‘Uday’ bouquet but in the subsequent reply to the amended petition as also in the evidence by way of affidavit (Pg. 94 and 160 respectively) the said plea was not taken, which, according to it, would clearly go to show that the e-mail sent by the respondent was clearly wrong.
10. The petitioner contends that the respondent had unjustly deprived it from the benefit of the advance payments made to it amounting to Rs. 8,25,000/-. The respondent, according to petitioner disconnected the signals of its Teja and Gemini channels on 9.12.2005 although the e-mail was sent in respect of Uday channels of the respondent only. The petitioner in this connection urged that the said illegal action was taken by the respondent as Teja and Gemini channels are watched by a large number of subscribers in the State of Karnataka whereas the Uday channels are not.
11. The petitioner furthermore contends that in any event such disconnection of signals without serving the mandatory notice of one month (as was required in terms of the Regulations then existing) was wholly illegal. Our attention in this behalf has been drawn to the evidence of RW-2, Mr. Ashok Kumar who accepted that no notice therefor has been issued to the petitioner.
12. On the aforementioned premise, the petitioner filed a petition before this Tribunal on or about 26.12.2005 which was marked as Petition No. 151(C) of 2005. The said petition came up before this Tribunal for preliminary hearing on or about 26.12.2005.
13. The learned counsel appearing on behalf of the respondent on that day did not have the requisite instructions as to whether the signals of the petitioner were disconnected or not.
This Tribunal, however, directed :-
“Notice. Mr. Yogesh Gupta, learned counsel accepts notice on behalf of respondent. Copy of the petition has been served on the respondent.
This is a case of alleged disconnection of signals of Teja and Gemini channels being supplied by respondent. Disconnection is alleged to have been taken place on 9th December, 2005 without any show cause notice. Learned counsel for the respondent says that presently he has no instructions. He is also not aware whether any disconnection has taken place.
After hearing the respective counsels and noticing that the petitioner has on affidavit stated that disconnection has taken place without any show cause notice, we find that this is a fit case for providing interim relief. We accordingly direct that in case disconnection has taken place of Teja and Gemini channels, respondent would forthwith restore the signals, in any case, within 48 hours. It is also directed that respondent would not disconnect the other channels being supplied by him to the petitioner without following the procedure enjoined in the Regulation.
Learned counsel for respondent seeks three weeks’ time to file his reply. Time prayed for is granted. Two weeks’ further time is given to the petitioner to file rejoinder, if any.”
14. Although 48 hours’ time given to the respondent to reactivate the signals of the petitioner expired on 28.12.2005, indisputably, it was restored on 29.12.2005.
15. On the statement made by the learned counsel appearing on behalf of the respondent before this Tribunal on or about 8.2.2006 that no disconnection of signals would be caused even if need be, without proper notice, the Tribunal disposed off the said petition No. 151(C) of 2005, observing :-
“When the matter was taken up for hearing, learned counsel for the respondent submitted that as at present, in view of the order of the Tribunal dated 26th December, 2005, the petitioner is receiving signals of the respondent and under instructions from his client learned counsel submits that there will be no disconnection even if need be without proper notice.
2. Recording the above undertaking by the learned counsel of the respondent, this petition is disposed of as having become infructuous.”
16. According to the petitioner, the said statement was made before this Tribunal by the respondent malafide as it had already achieved its purpose, namely, the petitioner had already lost 95% of its business to the new MSO which fact had been acknowledged by the other broadcasters, namely M/s. Zee Turner and, thus, the respondent must have realised that the petitioner would not be able to carry on its business and with that end in view only, a fresh threat of disconnection was made by it by a notice dated 25.3.2006, stating :
“ We have been informed by our local distributor that you are illegally transmitting the signals of our UDAYA TV, USHE TV, UDAYA NEWS, GEMINI TV and TEJA TV to various households in the areas of Pinjarwadi, Gudusat, Somarpet, Loharwadi, Forest Quatres. We have not authorized you to transmit our signals in the said areas in any manner whatsoever and the said transmission by you is therefore illegal. You are also affecting our commercial interest by making unlawful gains to yourself and causing unlawful loss to us. We are therefore constrained to disconnect our channel signal pressingly being provided to you and are giving you two days notice of the same.
You are also called upon to forthwith stop transmitting/ distributing our channel/s in the above areas. As the transmission of our channel/s by you is illegal you have made yourself liable for criminal action. You are also called upon to furnish the statement of accounts for the amounts collected by you from the customers till date and pay the same to us within one week from the date receipt of this letter failing which appropriate proceeding will be initiated for recovery of the same.
This letter may be treated as a notice issued to you under “The Telecommunication, (Broadcasting and Cable Services) Interconnection Regulation 2004”.
17. According to the petitioner the very fact that no contention was raised that any amount was due from the petitioner and only an allegation of piracy was made which RW-2 now accepts that no case therefor had been made out, the malafide on the part of the respondent must be held to have been clearly admitted.
18. The petitioner, however, contends that as at all material times it had been the sole MSO working for the town of Raichur and it had its head-end at Pinjarwadi (also known as Brestwarpet) and there was no area known as Gudusat and, thus, the allegation made against the petitioner that he transgressed into other areas must be held to be wholly false.
Submission of petitioner in this behalf is that as in the earlier petition no stand was taken by the respondent that any amount was due and the disconnection notice also had been issued only on the ground of alleged piracy, and, thus, the respondent is estopped by conduct, now to raise a contention that a huge amount has been owing and due to it.
19. The petitioner responded to the said notice in terms of its letter dated 29.3.2006, stating :-
“At the out set let me put the record straight. Till your local distributor started a new head end on 18.11.2005 we have been the single head end of Raichur Town servicing the entire town. In addition our old control room was located in PINJARWADI/ BRESTWARPET for 8 years almost, since its inception. Presently we have lost 95% of our original connectivity since 18.11.2005. It is a surprise that the areas you have mentioned are the only areas we are servicing.
Hence it is beyond our comprehension that how you could term it as illegal transmission.
It is to inform you that we have not committed any crime to warrant a criminal action to be taken against us.
Also kindly take notice that if our signals are interrupted, we will be forced to approach the Hon’ble TDSAT about your high handedness and also claim criminal and Civil damages against you in case you disrupt our signals without proper foundation.”
This petition was filed on 31.3.2006.
It now stands admitted that although no injunction order was passed by the Tribunal, the respondent did not disconnect the signals of its channels.
20. According to the petitioner having regard to the appointment of the respondent No. 2 as a “Minimum Guarantee Distributor” it had no other option but to close down its business. On the aforementioned premise the petitioner filed an application for amendment of the petition.
21. Mr. Navin Chawla, the learned counsel appearing on behalf of the petitioner would contend :-
A. from the trend of cross examination of the witness, examined on behalf of the petitioner viz. Capt. Chowdhary (PW1), it would appear that :
a) no suggestion had been given with regard to increase in the subscriber base;
b) no suggestion had been given that its claim in respect of offer of distributorship to it was incorrect;
c) no question was asked with regard to disconnection of his signal in December without notice;
d) no question was asked that the petitioner had not been serving the entire area of Raichur or that it did not have its head-end at Pinjarwadi;
and, thus, the statements made by the petitioner would be deemed to have been admitted.
B. From the evidences of the witnesses examined on behalf of the respondent, it would appear, that a wrong statement had been made by them with regard to the increase in subscriber base or that the petitioner was liable to pay a sum of Rs. 1,20,000/- per month for obtaining signals of Gemini and Teja and/or that the notice of disconnection has been issued at the behest of the distributor, RW2.
C. From the subsequent events it would appear that an offer was made to the petitioner to run all the eight channels of the respondent no. 1 on prime band which, keeping in view the fact that the petitioner had other commitments, could not be accepted by it.
D. As owing to the acts of omission and commission on the part of respondent, the petitioner suffered damages as it had to close down its business, it is entitled to an order for grant of damages.
22. Mr. Dhawan, the learned counsel appearing on behalf of the respondent, on the other hand, would contend :-
(i) The petitioner has falsely set up the story of distributorship.
(ii) Having regard to the cause of action which in the first petition, namely deactivation of signals and adjustment of the excess amount which would also be evident from the prayers made therein, and the same having been dismissed by this Tribunal as having become infructuous, this petition is barred under Order 23 Rule 1 of the Code of Civil Procedure.
(iii) The petitioner in the earlier petition having not prayed for grant of damages cannot now be permitted to do so in this case.
(iv) Only evidence of sufferance of damages by the petitioner on the basis of a purported letter dated 20.3.2006 issued by M/s. Zee Turner is not sufficient to establish a case for payment of damages particularly having regard to the fact that the same appears to be an ante dated document having been faxed only on 29.3.2006.
(v) Had the offer of distributorship been correct, reference thereof was expected to be made by it in its letters /communications to the respondent atleast on some point of time.
23. The principal issues, in view of the rival contentions of the parties, which arise for our consideration, are as under:-
(a) Whether the parties had in fact proposed to enter into a distribution agreement wherefor the petitioner had been making payments in instalments?
(b) Whether the subscriber base of the petitioner was increased from time to time as a result whereof the subscription fee had also increased?
(c) Whether this petition is barred under the principles of Order 23 Rule 1 and/or Order 2 Rule 2 of the Code of Civil Procedure?
(d) Whether the petitioner is entitled to damages as he had to close down its business owing to the actions taken against it by the respondent?
(e) What relief, if any, to which the petitioner is entitled to?
Before, however, we advert to the aforementioned issues we may notice the admitted fact of the matter.
(i) The petitioner was an MSO for the entire town of Raichur. It was subscribing to the pay channels of the respondent so far as the same related to Gemini TV and Teja TV from 6.2.2003 and other channels namely Uday, Uday Ushe and Uday News channels are concerned. Shri Ashok Challani (DW2) was appointed as a distributor by the respondent herein in respect of Gemini TV Channel, on and from 14.8.2004 in respect of the Uday Ushe and Uday News Channels and w.e.f. March 2005 in respect of Gemini and Teja.
(ii) There is no agreement in writing between the petitioner and the respondent. There is also nothing in writing to establish the fact of increase in the subscriber base of the petitioner and consequent increase in the subscription fee, as also in respect of the question as to whether the petitioner was offered the distributorship of the entire district of Raichur by the respondent herein consequent whereto the petitioner had been paying a huge amount to the respondent.
24. In absence of any documentary evidence, having been brought on the record we have no other option but to determine the issues arising between the parties only on the basis of the oral evidences adduced by them.
It may, however, be noticed that although in his pleadings the petitioner stated about use of force by the respondent in regard to the increase in the subscription fee, in his evidence PW1 categorically admitted that he had been paying the higher amount to the respondent only because of the good relationship prevailing between them.
The conduct of the parties, therefore, in our opinion also assumes significance.
25. The prayer made by the petitioner in his first petition being No. 151(C) of 2005 were as under :
“(a) direct the Respondents to forthwith restore their signals of its Teja and Gemini channels to the Petitioner;
(c) direct the Respondents not to disconnect or cause any interference with the signals being provided to the Petitioner of the other channels, that is, Udaya, Udaya News and Ushe Channels;
(d) direct the respondents to adjust the excess amount of Rs.8,25,000/- (Rupees eight lakhs twenty five thousand only) paid by the Petitioner to it towards the future monthly subscription amounts payabvle by the Petitioner to the Respondent for the supply of its signals to the Petitioner;”
26. The said petition, as noticed heretobefore was disposed of as having become infructuous by this Tribunal in terms of the Order dated 8th Feb, 2006.
27. In the aforementioned backdrop we may notice the prayers made by the petitioner in this petition
“(a) Restrain the Respondent from in any manner, deactivating or disconnecting or disrupting the supply of signals of its channels to the Petitioner;
(b) direct the respondents to adjust the excess amount of Rs. 7,05,000/- (Rupees seven lakhs five thousand only) paid by the petitioner to it towards the future monthly subscription amounts payable by the Petitioner to the Respondent for the supply of its signals to the Petitioner;
(c) direct the Respondent to charge the Petitioner subscription fee on the basis of the reduced number of subscribers of the Petitioner and give adjustment of the excess amounts clarified from the Petitioner since November, 2005;”
28. It is also not in dispute that most of the allegations contained in both the petitions are identical. However, the cause of action for filing the present petition arose in as much as the respondent herein had threatened disconnection of the supply of signals of its channels in terms of a notice dated 25.3.2006 interalia on the premise that the petitioner has transgressed into other areas and in fact disconnected signals on 9th Dec, 2005 without any notice. It, however, stands admitted that during pendency of the present proceedings, according to the petitioner, in view of the dwindling subscriber base it had no other option but to close down its business. It filed an application for amendment of the petition. The respondent having filed a reply to the amended petition. No formal order granting relief to the petitioner to amend its petition was required to be passed. In the amended petition the petitioner has prayed for the following reliefs :-
“(a) Direct the Respondent to refund to the petitioner such sum our of Rs. 7,05,000/- as may be refundable to the petitioner after adjusting the amount of subscription between the period 01.04.2006 till 28.09.2006 at such rate as may be found.
(b) Direct the Respondent to pay Rs. 15,00,000/- (Rupees Fifteen lakhs only) as damages suffered by the Petitioner due to their arbitrary and capricious acts;.”
29. In view of the aforementioned amended petition, as we have noticed, a further question would arise as to whether the petitioner would be entitled to any damages from the respondent allegedly by reason of breach of contract on its part.
We may at the outset deal with the question of maintainability of the present petition and/or some of the reliefs prayed for therein.
30. The petitioner in its earlier application not only made allegations that disconnection notice served on it was illegal, a specific plea was raised that it had lost 95% of its customers in view of the fact that the respondent has appointed a distributor. The said petition was filed in December, 2005. It, however, did not stop its case there. It made a prayer for a direction to adjust the amount of Rs. 8,25,000/- paid by it towards the future monthly subscription amount payable by the petitioner to the respondent for the supply of its signals. In effect and substance only the prayer in the unamended petition was a new one.
31. It stands accepted that the question raised in the first petition was as to whether the petitioner had been making payments of Rs. 25000/- per month on the alleged subscriber base of 3000 connections although according to it, the total no. of subscribers was 2450 only as contained in the affiliation form (Annexure P1 to the petition).
32. The respondent appeared in the said petition on the very first day and the learned counsel however, did not have any instructions.
This Tribunal, however, having regard to the facts and circumstances of the case and particularly in view of the fact that disconnection was caused without service of any notice, passed an interim order in mandatory form by directing the respondent to restore the signals within 48 hours. Albeit a bit late, the said order was complied with. The respondent made a statement that it would not disconnect the supply without any notice and, on the aforementioned premise the order dated 26th December, 2005 came to be passed by this Tribunal. Before passing of the said order dated 8th Feb, 2006, it was, in our opinion, was open to the petitioner to contend that the petition had not become infructuous as prayer (c) made in the said petition was yet to be considered. No such statement was made. The undertaking given by the learned counsel for the respondent was accepted without any demur. No other or further contention, although was possible to be raised, had been raised. The petitioner, therefore, abandoned a part of its claim. No leave of this Tribunal was taken to sue the respondent on the same cause of action.
34. It was in the aforementioned situation, in our opinion, the principles of Order 23 Rule 1 Code of Civil Procedure can be attracted. It reads as under:-
“Order 23 rule 1. withdrawal of suit or abandonment of part of claim
1. Withdrawal of suit or abandonment of part of claim –
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An Application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor of such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person.
(3) Where the Court is satisfied –
(f) that a suit must fail by reason of some formal defect, or
(g) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim,
it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule(1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.
35. The principles contained in the aforementioned provision indisputably would be attracted in the instant case. Order 23 Rule 1 of the Code of Civil Procedure carries with it a high public policy. It was enacted to prevent a respondent from being harassed again and again. Once it is held that Order 23 Rule 1 of the Code of Civil Procedure and/or principles analogous thereto would apply, in our opinion, the petitioner is precluded from raising the same questions yet again in another petition as it did not take the leave of the Tribunal to agitate the contentions in a subsequent petition. It has been so held by the Supreme Court of India in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwaliar and Ors. Reported in 1987 Vol 1 SCC Pg. 5 in the following terms:
“6. It may be noted that while in sub-rule (1) of the former Rule 1 of Order XXIII of the code the words “withdraw his suit” had been used in sub-rule (1) of the new Rule 1 of Order XXIII of the Code, the words ‘abandon his suit’ are used. The new sub-rule (1) is applicable to a case where the court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit of such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (20 practically no change is made and under that sub-rule the court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new Rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of a claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the court might award and would also be precluded from instituting any fresh in respect of such subject-matter or such part of the claim.”
“9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Dayarao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considerd as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.”
36. This principle of law laid down by the Apex Court in Sarguja Transport (supra) was followed in Upadhayay and Co. Vs. State of Uttar Pradesh and Ors. Reported in 1999 Vol.I SCC Page 81 in the following terms :
“13. The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said rule of public policy applicable to jurisdiction under article 226 of the Constitution (Sarguja Transport Service v. STAT). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again….”
37. We will now consider the question as to whether the suit was barred under Order II Rule 2 of the Code of Civil Procedure which reads as follows :
“2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several relief- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”
Order II rule 2 of the Code of Civil Procedure also provides for a public policy. It having created a bar in a plaintiff to maintain a claim subsequently which could have and might have been claimed. In the event of its applicability in the fact situation involving in a particular case, there cannot be any doubt or dispute that if attracted, the petitioner’s petition would be barred.
38. Mr. Chawla would however, draw our attention to the statement made by the respondent itself in its reply, which is as under :-
“15. The contents of this Para 15 are a matter of record and do not need a reply. It is however, denied non filing of reply in the earlier petition amounts to admission of the same. In any event of the matter signals were restored to the petitioner without prejudice. The petitioner has not averred any where in the present petition that the signals were not restored to the Petitioner. The present petition is a separate cause of action wherein due notice has been given to the Petitioner.
39. The said statements were made in the context of the statements made in paragraph 15 of the petition which reads as under :
“15. That the Petition filed by the Petitioner came up for further hearing before this Hon’ble Tribunal on 08.02.2006 when the Learned Counsel appearing for the Respondent made a statement that there will be no disconnection of signals to the Petitioner, even if need be, without proper notice. It is relevant to note that the contentions raised in the Petition were not replied to by the Respondent thereby admitting the same to be correct. A copy of the order dated 08.02.2006 passed by this Hon’ble Tribunal is annexed hereto and is marked as ANNEXURE P-8.”
It is, therefore, evident that what was meant by the respondent was that a separate cause of action had arisen for the respondent for which the said petition had been filed as in this case due notice had been given to the petitioner whereas in the earlier round of litigation no such notice had been given. It is now a well settled principles of law that the pleadings have to be read in their entirety. It is, therefore, difficult to accept the submissions of Mr. Chawla that the aforementioned sentences in paragraph 15 of the petition can be read in isolation so as to hold that the petition is maintainable as a subsequent cause of action had arisen.
40. It is true that a part of cause of action arising in this petition is different from the earlier petition. It is also true that a subsequent event took place during pendency of the present proceeding as a result whereof the petitioner had to amend its petition. It had to claim an additional relief of damages which it had not done either in the earlier petition or when this petition was originally filed, but it also gave up some reliefs prayed for originally, namely prayers (a) and (c).
41. The question which, however, arises for consideration is as to whether even in the earlier petition the petitioner had a cause of action for laying a claim for damages or not. The answer to the said question in our opinion, may be rendered in the affirmative. We have noticed heretobefore that the allegations made in the first petition and the second petition to a great extent are identical. Even in the first petition the petitioner had alleged that it had made advance of a sum of Rs.8,25,000/- which position the petitioner maintained not only in the original application but also in the amended application. The petitioner in the first petition as also the present one when it was originally presented before this Tribunal also maintains that by reason of appointment of the DW2 as a distributor by the respondent it had lost about 95% of its subscribers. To the aforementioned extent, the breach of contract must be held to have taken place. Furthermore even in the said petition, the petitioner has raised identical pleas, namely it was offered the distributorship pursuant whereto and in furtherance whereof only it had been making advance payments to the respondent.
42. The petitioner never called upon this Tribunal to determine the said question. It could have done so. As indicated herein before, it could have also prayed for damages atleast to the extent of 95% loss of its subscribers. The subsequent cause of action, if any, during pendency of this proceeding for claiming damages arose as the petitioner had to close down its business. It, thus, despite an interim order passed in its favour, could not carry on of its business. The loss suffered by it during pendency of this proceeding was, therefore, only to the extent of 5%. It is only in the aforementioned fact situation the principle of Order II Rule 2 of Code of Civil Procedure may be said to be attracted in the instant case.
43. The Supreme Court of India in Shiv Kumar Sharma Vs. Santosh Kumari reported in AIR 2008 SC Page 171 held as under :-
“17. If the respondent intended to claim damages and/or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly.
Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly.”
44. It has not been denied or disputed before us that claim for damages if had been omitted by the petitioner in the first petition would attract the principles of Order II, Rule 2 of the Code of Civil Procedure.
45. The only contention advanced by Mr. Chawla is that subsequent cause of action had taken place. In our opinion the contention of the learned counsel is not correct. Furthermore in a case of this nature even Explanation appended to Section 11 of the Code of Civil Procedure and/or principles analogous thereto may also apply. Even in the earlier petition because of disconnection of signal by the respondent without following the mandatory statutory requirement as contained in Clause 4.1 and also 4.3 of the Interconnect Regulation and furthermore having regard to the appointment of DW-2 as a distributor by the respondent, which even according to Mr. Chawla is contrary to the decisions of the Supreme Court of India in Sea TV Network (Supra) there cannot be any doubt that a claim for damages was maintainable.
The principles of constructive Res Judicata, therefore, in our opinion shall apply. It has been so held by this Tribunal in Petition No. 19 of 2003 by a judgment dated 29/3/2004, Data Access (India) Limited Vs. MTNL in the following terms:
“23. Principle of res judicata is based on sound principles of law and is applicable to the proceedings before a judicial Tribunal. Petitioner could have sought relief in the earlier petition as the dispute had arisen by that time as is being sought by it now. It has been repeatedly held by the Supreme court that the principle of res judicata is not a rule of technicality but is based on high public policy to bring about an end to litigation by giving finality to judgments inter parties and save a litigant from harassment a second time. Rule of constructive res judicata postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he could not be permitted to take that plea against the same party in a subsequent proceeding. Here in both, the earlier petition and the present one, it is the Interconnect Agreement which is subject matter of dispute and from which rights are being claimed by the petitioner. The issue raised in the present petition was very much alive when the earlier petition was filed as can be seen from the letter dated December 21,2002 of the petitioner to MTBL. The petition to my mind is barred by constructive res judicata or principles analogous to res judicata. This petition, therefore, fails on this ground as well.”
46. It is furthermore beyond any controversy that the provisions of general principles of res judicata would be applicable even in a proceeding before this Tribunal. (See
Halsbury Laws of India – item 65.136.)
47. In Union of India Vs. Tata Teleservices Ltd. 2007 7 SCC Pg. 517 the Supreme Court of India also applied the provisions of Code of Civil Procedure. Furthermore cause of action for a suit is not an isolated fact; it means a bundle of facts, which has been defined as under in Halsbury’s Laws of England, Vol-37 , in the following lines:
“Cause of action. ‘Cause of Action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which the defendant would have a right to traverse. “Cause of action” has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.
The same facts or the same transaction or event may give rise to more than one effective cause of action.
A cause of action arises wholly or in part within a certain local area where all or some of the material facts which the plaintiff has to prove in order to succeed arise within that area.
A reasonable cause of action means a cause of action with some chance of success, when only the allegations in the pleading are considered.”
48. Issue No. 1 and 2. These two issues being interconnected are being taken up for consideration together. We may at the outset notice the accounts maintained by the parties. It has a set pattern. It shows the manner in which payments were made. The payment started from February, 2003. The petitioner has paid a sum of Rs. 25,000/-, but in the next month he started paying Rs.30000/- which was increased to Rs. 40000/- in the month of June, 2003. He started paying a sum of Rs. 1 lakh from July, 2003 to Sept, 2003 but in October, 2003 he paid a sum of Rs. 1,10,000/-. During the period November, 2003 and July, 2004, upto November, 2004 he had paid @ Rs. 1,20,000/- per month. Again for two months he had paid @ Rs. 60,000/- and in the month of July, 2005 Rs.80000/- and yet again at sum of Rs. 80000/-, and in the month of July, 2005 Rs. 1,20,000/-. Again in September he had paid a sum of Rs.60000/- but in the month of November 2005, he has paid a sum of Rs. 2 lakhs.
49. Whereas on the one hand the petitioner contends that such payments were made having regard to the offer made to it by the respondent to be its distributor, the respondent contends that such payments had been made as the subscriber base had increased. There is however, neither any doubt nor dispute that no payment has been made by the petitioner for Uday bouquet of channels. It has also not been disputed that payments in respect of those channels were to be made by the petitioner directly to the respondent and not through the distributors. The petitioner, curiously, however, did not mention about the distributorship agreement in any of its correspondences. Even in its legal notice he did not do so.
50. The petitioner was a Multi Service Operator. It had been running its business from 1997. Although it was a multi service operator only for one town, a distributorship for the whole of the district was allegedly offered to it. The respondent is a company registered and incorporated under the Indian Companies Act, 1956. It is, therefore, doubtful if the petitioner without any agreement and/or without exchange of any correspondence would part with such a huge amount.
It may be true that the conduct between the parties is not such where this Tribunal can arrive at a positive finding one way or the other. Analaysis of the evidence of record, thus are necessary. But then, in this case both the parties have taken oath. The onus of proof was on the petitioner. If he had made excess payments, it was for him to show as to on what account he had done so. He admittedly is an income-tax assesse. It is expected, having regard to the nature of business and the fact that he was in a position to pay huge amount monthly must be held to have been maintaining books of accounts. It, therefore, should have produced his books of accounts. It even should have examined the old distributor with whom it admittedly had a good relation. It stands admitted that the respondent herein had appointed Mr. Ashok Challani as its distributor in the Raichur District for his Uday bouquet of channels in August, 2004 and in respect of its channel Gemini and Teja in March, 2005. It is, therefore, expected that so called protest by the petitioner would be in writing. It should have come out with a legal notice on its own showing in view of the decision of the Supreme Court of India in Star India (supra) the same was illegal. It is of some significance to note that even in the first petition it did not ask for refund of the excess payment allegedly made by it to the respondent. Even assuming that the petitioner’s contention is correct, having regard to the fact that cause of action for claiming the refund of the amount arose in Aug, 2004 and in March, 2005, the petitioner should have claimed the refund of the said amount in its first petition. Why he did not do so is for him to explain.
The petitioner filed the earlier petition (Petition No. 15(C) 2005) only in December, 2005. It approached this Tribunal not on the premise that the respondent has committed a breach of contract not on the premise that he has made excess payment but principally on the issue that his signal has been disconnected without serving any notice. The order dated 8.2.2006 passed by this Tribunal assumes significance in the aforementioned context. The offer made by the respondent that its signal shall not be disconnected even if need be, without proper notice was to be acceptable to the petitioner. It was, it must be presumed, on that account only it agreed to the disposal of the petition by this Tribunal on the ground that the same had become infructuous. The petitioner allowed this Tribunal to dispose that petition in that manner.
The term infructuous means :-
“unprofitable, unfruitful, ineffective”
51. Thus, in our opinion, the learned counsel for the respondent, in our opinion, is correct in his submission that even if the petitioner had raised a claim in paragraph (c) of the petition, it must be held have abandoned the same.
52. There cannot, however, be any doubt or dispute that the disconnection of signal of the petitioner was not on a legal ground. The public notice was issued on the ground that the petitioner is guilty of commission of the act of piracy. DW2, however, in his evidence categorically stated that piracy was not the issue and the only issue was default on its part. The subject matter of the default was not the basis on which the notice had been issued. If the notice had been issued only on the ground of piracy and not on the ground of default, the very fact that the petitioner did not commit any piracy even according to the respondent, must be held to be wrong when his signals were disconnected. The petitioner, on that ground, therefore, allegedly suffered damages. But then what was the quantum of damages it suffered? In his affidavit at page 153 he stated as under :
“19. It is most respectfully submitted that due to the arbitrary and capricious acts of the Respondent the Petitioner suffered the losses to the tune of Rs. 15,00,000/- (Rupees Fifteen lakhs only) which he is entitled to claim from them. The same is based on the capitalization of the earnings per annum that the Petitioner used to earn from the business.”
53. The basis of claiming damages, therefore, was the loss of profit. What was the profit it had been earning from its business was for it to state and establish. It should have pleaded in that behalf. In the amended written statement the petitioner has claimed damages for a sum of Rs. 15 lakhs. No details thereof has been disclosed. It is also not in dispute that the petitioner had not been carrying on any business as an MSO. According to the respondent it had sold its network to some other person and, therefore, did not suffer any damages, whatsoever. The petitioner, although claims that it had not sold its equipments to somebody but merely given the same to persons who were in need thereof, cannot be said to have discharged its burden.
54. Mr. Chawla would contend that this Tribunal may allow some reasonable amount of damages.
Strong reliance in this behalf has been placed on Oil and Natural Gas corporation Ltd. (supra) wherein it has been held as under :-
“67. In Maula Bux’s case (supra), the Court has specifically held that it is true that in every case of breach of contract the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree and the Court is competent to award reasonable compensation in a case of breach even if no actual damage is proved to have been suffered in consequence of the breach of contract. The Court has also specifically held that in case of breach of some contracts it may be impossible for the Court to assess compensation arising from breach.
68. Take for illustration construction of a road or a bridge. If there is delay in completing the construction of road or bridge within stipulated time, then it would be difficult to prove how much loss is suffered by the Society/ State. Similarly, in the present case, delay took place in deployment of rigs and on that basis actual production of gas from platform B-121 had to be changed. It is undoubtedly true that the witness has stated that redeployment plan was made keeping in mind several constrains including shortage of casing pipes. Arbitral Tribunal, therefore, took into consideration the aforesaid statement volunteered by the witness that shortage of casing pipes was only one of the several reasons and not the only reason which led to change in deployment of plan or redeployment of rigs Trident-II platform B-121. In our view, in such a contract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof. In such a situations, if the parties have pre-estimated such loss after clear understanding. It would be totally unjustified to arrive at the conclusion that party who has committed breach of the contract is not liable to pay compensation. It would be against the specific provisions of Sections 73 and 74 of the Indian Contract Act. There was nothing on record that compensation contemplated by the parties was in any way unreasonable………………”
It was opined
“69. From the aforesaid discussions, it can be held that:-
(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damage is entitled to the same;
(2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act.
(3) Section 74 is to be read along with Section 73 and , therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before the can claim a decree. The Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequences of the breach of a contract.
(4) Is some contracts, it would be impossible for the Court to assess the compensation arising from breach and if compensation contemplated is not by way of penalty or unreasonable, Court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation.”
55. The decision in ONGC (Supra), in our opinion, was rendered in a totally different fact situation. In that case liquidated damages was claimed in terms of Section 74 of the Indian Contract Act. It was in that context this Court held that when the parties had entered into a reasonable pre-estimated damages, the same should be directed to be paid even without proof of actual loss. In a case of this nature where the damage has been claimed owing to breach of contract on the part of the contracting party, in our opinion, it was for the petitioner to bring on record such materials which according to him would have established the quantum of damages suffered by it.
56. Even in ONGC (supra), the Supreme Court of India opined; “in our view, in such a contract, it would be difficult to prove exact loss or damages which the party suffered because of the breach thereof.” The Supreme Court, therefore, was considering a case involving a contract where it was difficult to prove exact damage. It was not so in the instant case. The petition is barred under Order 2 Rule 2 of Code of Civil Procedure in as much as the petitioner could also have claimed damages in the earlier round of litigation. This Tribunal having dismissed the earlier the first petition on the ground of it having become infructuous. The petitioner must be held to have abandoned its claim in regard to its other prayers apart from the prayers of disconnection of the network.
We, therefore, are of the opinion that the petitioner failed to prove its case for award of damages. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs. The petition is dismissed.