Sristi Cable Tv Network Ltd., West Bengal Vs. Zee Turner Ltd., Noida - Court Judgment

The Petitioner which is a Multi Service Operator has filed this petition, interalia, for a direction upon the respondent to enter into a subscription agreement and commence supply of signals of the channels of the respondent to its cable TV network on reasonable terms and conditions as also pay damages for a sum of Rs. 3 lakhs alongwith costs of litigation.

The dispute between the parties being in a narrow compass, the fact of the matter need not be noticed in great details.

Suffice it to say that the petitioner operates both in CAS areas and non-CAS areas in the town of Kolkata. It is not in dispute that in respect of CAS areas, the parties have entered into a subscription agreement and there does not exist any dispute in relation thereto.

However, interalia, on the premise that despite requests made in that behalf, the respondent failed/neglected to supply signals of its channels in the non-CAS areas, it filed a petition before this Tribunal which was marked as Petition No. 6(c) of 2008.

By an order dated 14.01.2008, the said petition was disposed of directing :

“The learned counsel for petitioner submits that without prejudice to the petitioner's stand that it has applied to the respondent in accordance with the regulations for supply of decoders, the petitioner is willing to supply further information as indicated by the learned counsel for respondent and if anything further is required as per the regulations. After the petitioner meeting these requirements, the respondent will process the request of the petitioner expeditiously in accordance with the regulations.”

Pursuant thereto and in furtherance thereof a meeting was held on or about 20.02.2008 wherein interalia while acknowledging that there was no legal complications between the parties, it was observed :

“It was also held that, only SAR to discuss by and between the both part and date of meeting will be intimated by the Zee Turner Ltd. within a short period. Meeting was continued and ends with a very cordial atmosphere.”

A reminder was given by the petitioner as no subscription agreement was entered into, despite the said meeting. However, it appears, that by a letter dated 10.06.2008, the petitioner accepted a purported settlement between the parties for entering into a subscription agreement on the minimum guarantee of 3000 points.

The parties met thereafter on several occasions and exchanged letters. We may, however, notice that by a letter dated 12.02.2009, the respondent stated :

“We would like to draw your kind attention that when you visited our Kolkata office in January 2009 we had requested you to provide us the clear documentation pertaining to No-Dues Certificate from MSOs and you had agreed to furnish the same. however, till date we have not received any document(s) in this regard. Hence, your above letter comes as a surprise to us despite your above consent to furnish the details.

We would request you to visit our Regional Kolkata Office on 16th February 2009 at 3 pm alongwith necessary and relevant documents for amicable resolution of the pending issue between the parties.”

We may furthermore place on record that the petitioner in its letter dated 25.11.2008, while annexing a large number of documents also made a statement that it had no dues with any MSOs. It was furthermore contended that SLRs had been furnished along its petition before this Tribunal.

We may furthermore place on record that the petitioner by its letter dated 21.02.2009 agreed to give minimum guarantee of 2000 points, although according to it, its subscriber base was only 150 and it was expected to rise by 300 subscriber base within a short period in the first phase of its expansion of business.

The petitioner intended to expand its area by operation in the following manner:

Ist phase Rashbehari and Hazra

IInd phase Ballygunge and Ballygung Phari

IIIrd phase Bhownipur

IVth phase Kasha and Santoshpur

Vth phase Central Calcutta

VIth phase North Calcutta

Despite the offer of the petitioner to give a minimum guarantee of 2000 subscriber bases (which was earlier 3000), the respondent by a letter dated 23.03.2009 requested the petitioner to approach one of its existing MSOs in Kolkata for availing their pay channels, citing the small subscriber base as the reason therefor.

According to the petitioner, however, the MSO in question being a rival MSO, it could not agree thereto and expressed its resentment to the said proposal in terms of its letter dated 26.03.2009.

The petitioner’s request for supply of signals, however, was again rejected by the respondent in terms of its letter dated 10.04.2009, stating :

“On one hand you are claiming that you have lost the major sub-base and on the other hand you have stated that initially you had 150 sub – base and you expect another 300 sub-base. Therefore, we would like to have a clear picture regarding your SLR so that we do not have any dispute on this issue subsequently.”

In response thereto, the petitioner vide its letter dated 20.04.2009, interalia, stated as under :

“Further note that we the MSO in CAS Zone dealing with CAS Zone 1 area and to expand our business in other zones we want to move in all Non CAS areas which is the fundamental right of ‘Sristi Cable TV’ Network Ltd.’ On the basis of the demand of the said matter we are being disturbed by the willing operators against whom we had submitted 150-300 sub-base but it will be more than that within a short period and will be intimated to you in due course keeping in mind minimum guarantee of 2000 points.”

It was further stated :

“Lastly, once again we feel that either you have not yet understand the meaning of our letter in respect of SLR and sub-base or you have purposely dragged the issue accordingly. We hope that we have given you a clear picture and there is no such bar to resolve the issue, raised by us, accordingly. We hope that we have given you the clear picture and we will wait for couple of days to get a positive reply and / or we have no other alternate but to move before the competent forum for the end of justice.”

A similar stand was taken by the petitioner in its letter dated 12.11.2009, stating :

“At the outset please accept our felicitation for the cooperation that we had received from your end from the very beginning. Please refer to our last meeting regarding yearning of IRD boxes for Non CAS Zones of Kolkata, as per the verdict of TDSAT. The outcome of that meeting was positive. You were of the opinion that the SLR should be fixed at certain points. But we are again to request you before your goodself to kindly fix our SLR at 2000 points in the initial stage and we will keep on increasing our SLR as and when each cable operator or MCR gets connected.

We are looking forward towards your kind cooperation once again and if required we are ready to sit for further discussion regarding this matter at your convenient.”

It is not in dispute that the petitioner has about 107 operators in the CAS area. It had also supplied a map of operation to the respondent.

The respondent, however, in its reply, interalia, contended :

(a) The petitioner has not filed its SLR despite agreeing thereto in the minutes of meeting dated 20.02.2008.

(b) It had been taking vasillating stand in so far as while stating its subscriber base to be 150, it assured a minimum connectivity of 3000.

(c) Had the petitioner furnished SLR, its request for grant of signals would have been acceded to.

In view of the rival contentions of the parties, as noticed heretobefore, the core question which arises for consideration is as to whether the petitioner has made out a case for issuance of direction upon the respondent to enter into the subscription agreement?

Although having regard to the area of controversy between the parties, it might not have been necessary for them to adduce any oral evidence, we may place on record that the petitioner in support of its case, examined one of its Directors Shri Raj Narayan Roy Choudhury ; whereas the respondent has examined Ms. Yogita Sharma, Dy. Manager-Legal.

It is pertinent to note that Shri Roy Choudhury in his cross-examination stated as under :

“I agree that for non CAS area I have never given the SLR to the respondent. We have only told the points.

We have asked for signals of respondent at 2000 sub-base.

Attention of the witness is drawn to Page No. 66 of the affidavit.

Q: Please circle the entire area which is non CAS?

A: The entire area is non CAS.

Q: Please confirm that you are not providing the signals of any channels in the non CAS area as shown in page No.66?

A: I confirm the same.

Q: Have you filed any list of cable operators who were attached with you non CAS area and who according to you have now migrated?

A: No.

Q: From 2008 please mention the names of the cable operators who have migrated according to you to other MSOs?

A: There was a cable operator by the name of M S T. I don’t know to whom he migrated. Initially he migrated to Cable Com which is now Digi Cable. The last person who migrated is Mr. Jayanto Sarkar who I think went to Citi Cable/Mantan.

Q: Before these alleged migrations what was your connectivity?

A: Apart from these two cable operators. There was no one else. They only had a SLR of 150 each.

Q: Why did you not supply the SLR as per order dated 14.01.2008?

A: Whatever we had, we have given at that time.”

Strangely enough the suggestion put to the respondent’s witness was :

“Q-12 Would it be correct to say except SLRs the respondent does not need anything from the petitioner?

Ans : Yes”

Was the petitioner in law obligated to furnish the SLR to the respondent is the question.

Mr. Vineet Bhagat, the learned counsel for the petitioner would draw my attention to the definition of ‘Subscriber Line Report’ (SLR) as contained in clause 2(q) of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations 2004 (Regulation) to contend that there was no such requirement in law.

The said term is defined as under :

“Subscriber Line Report or SLR means a monthly statement wherein, in a non-addressable system, a multi system operator and a cable operator agree upon the subscriber base for that month.”

It is now a well settled principle of law that keeping in view the nature of the ‘must provide’ clause contained in clause 3.2 of the Regulations, the conditions precedents therefor are required to be complied with. In a number of decisions, this Tribunal has clearly held that compliance of the requirements of the proviso appended to clause 3.2 and clause 9.2 of the Regulations are imperative in character although the broadcasters would be entitled to ask for any other or further information which may be necessary to enter into an agreement with the distributor of the TV channels on reasonable terms and on a non-discriminatory basis. (See Petition No. 156(C) of 2010 entitled Sree Devi Enterprises Vs. Channel Plus decided on 29th September, 2010)

Clause 3.2 of the Regulations, reads as under:-

“3.2 Every broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi-system operator, head ends in sky operator; Multi-system operators shall also on request re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators:

Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment.

Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request.”

The definition of the ‘Subscriber Line Report’ as noticed heretobefore evidently would not apply to the case of a distributor of TV channel, who intends to enter into an area for the first time.

The requirement to furnish SLR on a monthly basis appears to be for the purpose of meeting the requirements as contained in clause 12 of the Regulations.

Clause 9.2 of the Regulations reads as under :

“9.2 In non-addressable systems, while executing an interconnection agreement for the first time between a multi system operator and a broadcaster, the multi system operator shall furnish a list of the cable operators who will be getting signals from its network along with their subscriber base. The parties to the agreement shall take into account the subscriber base of cable operators connected to the multi system operator while negotiating the subscriber base of the multi system operator. For the consumers proposed to be directly served by the multi system operator, the procedure as laid down in sub-clause 9.1 of this regulation shall be followed.”

It is, therefore, not correct to contend that it is not possible for an operator to furnish any data whatsoever to the broadcaster so as to meet the requirements of clause 9.2.

We may notice that by an order dated 2.2.11, passed in Petition No. 121(c) of 2009 entitled M/s. Digicable Network (India) Pvt. Ltd. Versus M/s. Star Den Media Services (P) Ltd., this Tribunal opined as under :

“32. Clause 9.2 indisputably is one of the conditions precedent for invoking Clause 3.2. On a plain reading of the said provision, it would be evident that even for entering into an interconnection agreement for the first time, the Multi System Operator is required to furnish a list of cable operators “who will be getting signals from its network along with their subscriber base”. So far as the proposal of the ‘Distributor of TV channel’ to make available the signals by way of retransmission is concerned, we are of the opinion that SLRs, as laid down in sub-clause 9.1 of the Regulations, are required to be furnished. As at present advised, no case has been made out for reading down the said provision. It has not been stated that for a new comer to the field, it is imposible to comply with the said provision.”

It was directed :

“65. We, therefore, are of the opinion that interest of justice would be sub served if a direction is issued that the petitioner shall furnish, in terms of Clause 9.2, a list of the cable operators who will be getting signals from its network along with their subscriber base of each of the towns, for which it intend to obtain supply of signals from the respondent namely Kanpur, Lucknow, Gorakhpur and Jaunpur. On receipt of compliance in terms of the aforementioned direction, the parties shall enter into negotiations without any reservation, whatsoever.”

Following the aforementioned decision of this Tribunal, I am of the view that the interest of justice shall be sub-served if the petitioner is directed to supply the names of the proposed operators with their subscriber base at an early date on receipt whereof the parties may negotiate and enter into a subscription agreement on such subscriber base as may be agreed upon as expeditiously as possible and not later than three weeks from date of furnishing of the said informations by the petitioner.

I have issued the aforementioned direction as minimum guarantee of the number of connectivity by itself is not a substitute of clause 9.2 of the regulations nor the list of operators working with the petitioner in the CAS area will be indicative of the proposed LCOs with whom the petitioner intends to enter into an agreement.

This petition is disposed of with the aforementioned directions. However, no case has been made out to pass any decree for damages.

In the facts and circumstances, the parties are directed to pay and bear their own costs.