M/S Digicable Network (India) Private Limited Vs. Ms/ Espn Software India Private Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/941478
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided OnSep-18-2012
Case NumberPetition No. 621(C) of 2012
Judge S.B. SINHA, CHAIRPERSON
AppellantM/S Digicable Network (India) Private Limited
RespondentMs/ Espn Software India Private Limited
Advocates:For the Petitioner: K. Datta, Diggaj Pathak, Advocates. For the Respondent : N. Ganpathy, Kartik Yadav, Advocates.
Excerpt:
1. this petition is an off shoot of petition no.585(c) of 2012. by reason of this petition a prayer has been made for restoration of the signals of the petitioner in the regions of mumbai, badalpur, ratnagiri, alibaug, dhule, jalgaon, pen, indore, bhopal, jabalpur, gwalior, sagar, itarsi, burhanpur, jaipur, raipur, bhilai-durg, khairtabad, hyderabad and hanamkonda. 2. the parties had entered into agreements on a pan india basis. as the petitioner fell into arrears in payment of subscription fee, upon entering into negotiations by the parties, a memorandum of understanding was arrived at on or about 29.4.2010; by reason whereof, the petitioner was given discounts in the event payments were made as specified therein. 3. in terms of the said mou, the petitioner paid the first of the two instalments. out of a sum of rs.24.76 crores which with taxes thereupon came to be about rs.27.00 crores, however, a payment of only rs.6.5 crores was made. 4. the petitioner was served with notices in terms of clauses 4.1 and 4.3 of the telecommunications (broadcasting and cable services) inter connection regulations, 2004 being dated 13.2.2012 and 10.7.2012 respectively, inter alia, on the premise that the petitioner has not renewed the agreement and it defaulted in payment of subscription fee. 5. the petitioner filed petition no.585(c) of 2012 on or about 24.8.2012 in respect of the town of delhi only. 6. the prayer for restoration of supply of signals for the said town was prayed for and allowed directing: “however, without prejudice to the rights and contentions of the parties the respondent may restore the supply of signals to the delhi networks of the petitioner subject to its payment of rs. 16 crores plustaxes.  such restoration of supply of signal must be made within 48 hours from the time of payment. it is made clear that so far as the networks of the petitioner at delhi is concerned, it shall go on making payments of subscription fees for the month of july 2012 onwards.” pursuant thereto or in furtherance thereof, the petitioner has made payments of rs.17.71 crores, albeit after some delay. the cheques issued by it bounced. 7. keeping in view the fact that this tribunal had taken into consideration the dues of the respondent in terms of the aforementioned mou, despite the fact that the petitioner had sought for restoration of signals which was disconnected by the respondent upon issuance of notice under clause 4.1 and public notice under clause 4.3. 8. this petition has been filed, inter alia, praying for restoration of the signals in respect of the other towns which were also the subject matter of the said mou. 9. mr. datta, learned counsel appearing for the petitoenr would contend that keeping in view the fact that a substantial amount stands paid, the interim pryaer of the pettiner should be allowed. 10. mr. ganpathy, learned counsel appearing on behalf of the respondent, however, would contend that the petitioner is not only bound to enhance the amount of subscription fee but also having regard to the fact that it has also made incorrect statements, no order of injunction should be passed in its favour. learned counsel would also submit that this petition is barred under order ii rule 2 of the code of civil procedure, 1908. 11. it was furthermore submitted that a huge discount having been given in the mou dated 29.4.2010, no indulgence should be shown to the petitioner by way of grant of injunction in mandatory form. 12. it is not in dispute that the respondent has filed a suit for recovery of an amount of about rs.31.00 crores. according to the petitioner out of the aforementioned amount only a sum of rs.13.00 crores is payable. 13. the fact of the matter has been discussed in some details in the order delivered today in petition no.585(c) of 2012. it is, therefore, not necessary to reiterate the same over again. 14. while granting injunction in mandatory form in the said petition, the petitioner was directed to pay a sum of rs.16.00 crores with taxes. 15. the said order passed keeping in view the fact that an order in mandatory form was prayed for. however, it is also not in dispute that out of a total dues of about rs.20.50 crores a sum of rs.16.00 crores was directed to be paid only on the respondent’s plea that a huge amount is payable in terms of the aforementioned mou. 16. the mou entered into by and between the parties hereto was not confined to the town of delhi alone. in that sense a substantial amount said to be due in terms of the said mou has been paid to the respondent. 17. the agreement between the parties expired on 30.6.2012. for a period of three months from the date of expiry of the said agreement, the commercial terms contained therein would continue, as envisaged under clause 8.1 of the regulations. 18. it may be true that there has been some delay in approaching this tribunal by the petitioner. it is also true that the respondent might have given huge discounts keeping in view the financial difficulties of the petitioner but, prima facie, the respondent’s case for recovery of the amount is based on the said mou. 19. mr. ganpathy has drawn the attention of this tribunal to the statements made in paragraphs 13 and 26 of the petition to contend that it is incorrect to say that the petitioner had made substantial payment. 20. it may, however, be pointed out that the petitioner has raised a number of defenses in its reply filed in petition no.225(c) of 2012. page 6 of 8 the issues raised therein are required to be gone into. no purpose would be served by not directing restoration of supply of signals. so far as the question of balance of convenience is concerned, it lies in favour of the petitioner. it will be in body’s interest in the facts and circumstances of the case to refuse to restore supply of signals of the petitioner’s channel, particularly in view of the fact that this tribunal in petition no.585(c) of 2012 has passed a similar order. 21. at this stage, having regard to clause 8.1 of the regulations it is not possible for this tribunal to arrive at a firm opinion that a huge growth in the subscriber base of the petitioner should be presumed. 22. mr. ganpathy would contend that the petitioner has referred to disconnection of supply of signals in respect of the towns of muradabad or bangalore which were not the subject matter of its notice under clause 4.2. this, prima facie, may be so, but having regard to the fact that the said question is to be considered in petition no.225(c) of 2012, it is difficult to arrive at a conclusion one way or the other, particularly, having regard to the fact that the petitioner has prayed that the accounts between the parties be reconciled. 23. on consideration of the respective contentions of the parties, this tribunal is of the view that the respondent’s interest which is only on monetory terms can be secured, if the petitioner is directed to make payments of the balance amounts due from it i.e. a sum of rs.2.79 crores and is furthermore directed to pay the subscription fee for the month of july, 2012 as well as those from the date of restoration of connection onwards. 24. keeping in view the fact that as of now by reason of an interim order passed by this tribunal a huge amount has been directed to be paid by the petitioner, i do not see that any purpose would be served by not issuing a direction upon the respondent to restore the supply of signals of its channels subject to the aforementioned terms. 25. prima facie, moreover, the principle of order ii rule 2 cpc is not attracted. the respondent, prima facie again, cannot ask the petitioner to pay a huge amount and decline to restore supply of signals as a result whereof the petitioner may lose a huge business in the towns in question. 26. after having taken into consideration all aspects of the matter, i am of the opinion that on compliance of the directions as aforementioned by the petitioner viz deposit of the balance amount of rs.2.79 crores as also deposit of the subscription fee for the month of july, 2012, the supply of signals should be restored within 48 hours. 27. this order is being passed keeping in view the interest of both the parties but without prejudice to their rights and contentions in the pending matters. 28. let hearing of petition no.225(c) of 2012 as also those two petitions be expedited. libertyis granted to the parties to mention the matter, if any occasion arises therefore.
Judgment:

1. This petition is an off shoot of Petition No.585(C) of 2012.

By reason of this petition a prayer has been made for restoration of the signals of the Petitioner in the regions of Mumbai, Badalpur, Ratnagiri, Alibaug, Dhule, Jalgaon, Pen, Indore, Bhopal, Jabalpur, Gwalior, Sagar, Itarsi, Burhanpur, Jaipur, Raipur, Bhilai-Durg, Khairtabad, Hyderabad and Hanamkonda.

2. The parties had entered into agreements on a pan India basis. As the Petitioner fell into arrears in payment of subscription fee, upon entering into negotiations by the parties, a memorandum of understanding was arrived at on or about 29.4.2010; by reason whereof, the Petitioner was given discounts in the event payments were made as specified therein.

3. In terms of the said MoU, the Petitioner paid the first of the two instalments. Out of a sum of Rs.24.76 crores which with taxes thereupon came to be about Rs.27.00 crores, however, a payment of only Rs.6.5 crores was made.

4. The Petitioner was served with notices in terms of Clauses 4.1 and 4.3 of the Telecommunications (Broadcasting and Cable Services) Inter Connection Regulations, 2004 being dated 13.2.2012 and 10.7.2012 respectively, inter alia, on the premise that the Petitioner has not renewed the agreement and it defaulted in payment of subscription fee.

5. The Petitioner filed Petition No.585(C) of 2012 on or about 24.8.2012 in respect of the town of Delhi only.

6. The prayer for restoration of supply of signals for the said town was prayed for and allowed directing:

“However, without prejudice to the rights and contentions of the parties the Respondent may restore the supply of signals to the Delhi Networks of the Petitioner subject to its payment of Rs. 16 crores plustaxes.  Such restoration of supply of signal must be made within 48 hours from the time of payment.

It is made clear that so far as the networks of the Petitioner at Delhi is concerned, it shall go on making payments of subscription fees for the month of July 2012 onwards.”

Pursuant thereto or in furtherance thereof, the Petitioner has made payments of Rs.17.71 crores, albeit after some delay. The cheques issued by it bounced.

7. Keeping in view the fact that this Tribunal had taken into consideration the dues of the Respondent in terms of the aforementioned MoU, despite the fact that the Petitioner had sought for restoration of signals which was disconnected by the Respondent upon issuance of notice under Clause 4.1 and public notice under Clause 4.3.

8. This petition has been filed, inter alia, praying for restoration of the signals in respect of the other towns which were also the subject matter of the said MoU.

9. Mr. Datta, learned counsel appearing for the Petitoenr would contend that keeping in view the fact that a substantial amount stands paid, the interim pryaer of the Pettiner should be allowed.

10. Mr. Ganpathy, learned counsel appearing on behalf of the Respondent, however, would contend that the Petitioner is not only bound to enhance the amount of subscription fee but also having regard to the fact that it has also made incorrect statements, no order of injunction should be passed in its favour.

Learned counsel would also submit that this petition is barred under Order II Rule 2 of the Code of Civil Procedure, 1908.

11. It was furthermore submitted that a huge discount having been given in the MoU dated 29.4.2010, no indulgence should be shown to the Petitioner by way of grant of injunction in mandatory form.

12. It is not in dispute that the Respondent has filed a suit for recovery of an amount of about Rs.31.00 crores. According to the Petitioner out of the aforementioned amount only a sum of Rs.13.00 crores is payable.

13. The fact of the matter has been discussed in some details in the order delivered today in Petition No.585(C) of 2012.

It is, therefore, not necessary to reiterate the same over again.

14. While granting injunction in mandatory form in the said petition, the Petitioner was directed to pay a sum of Rs.16.00 crores with taxes.

15. The said order passed keeping in view the fact that an order in mandatory form was prayed for.

However, it is also not in dispute that out of a total dues of about Rs.20.50 crores a sum of Rs.16.00 crores was directed to be paid only on the Respondent’s plea that a huge amount is payable in terms of the aforementioned MoU.

16. The MoU entered into by and between the parties hereto was not confined to the town of Delhi alone. In that sense a substantial amount said to be due in terms of the said MoU has been paid to the Respondent.

17. The agreement between the parties expired on 30.6.2012. For a period of three months from the date of expiry of the said agreement, the commercial terms contained therein would continue, as envisaged under Clause 8.1 of the Regulations.

18. It may be true that there has been some delay in approaching this Tribunal by the Petitioner. It is also true that the Respondent might have given huge discounts keeping in view the financial difficulties of the Petitioner but, prima facie, the Respondent’s case for recovery of the amount is based on the said MoU.

19. Mr. Ganpathy has drawn the attention of this Tribunal to the statements made in paragraphs 13 and 26 of the Petition to contend that it is incorrect to say that the Petitioner had made substantial payment.

20. It may, however, be pointed out that the Petitioner has raised a number of defenses in its reply filed in Petition No.225(C) of 2012. Page 6 of 8

The issues raised therein are required to be gone into. No purpose would be served by not directing restoration of supply of signals. So far as the question of balance of convenience is concerned, it lies in favour of the Petitioner. It will be in body’s interest in the facts and circumstances of the case to refuse to restore supply of signals of the Petitioner’s channel, particularly in view of the fact that this Tribunal in Petition No.585(C) of 2012 has passed a similar order.

21. At this stage, having regard to Clause 8.1 of the Regulations it is not possible for this Tribunal to arrive at a firm opinion that a huge growth in the subscriber base of the Petitioner should be presumed.

22. Mr. Ganpathy would contend that the Petitioner has referred to disconnection of supply of signals in respect of the towns of Muradabad or Bangalore which were not the subject matter of its notice under Clause 4.2. This, prima facie, may be so, but having regard to the fact that the said question is to be considered in Petition No.225(C) of 2012, it is difficult to arrive at a conclusion one way or the other, particularly, having regard to the fact that the Petitioner has prayed that the accounts between the parties be reconciled.

23. On consideration of the respective contentions of the parties, this Tribunal is of the view that the Respondent’s interest which is only on monetory terms can be secured, if the Petitioner is directed to make payments of the balance amounts due from it i.e. a sum of Rs.2.79 crores and is furthermore directed to pay the subscription fee for the month of July, 2012 as well as those from the date of restoration of connection onwards.

24. Keeping in view the fact that as of now by reason of an interim order passed by this Tribunal a huge amount has been directed to be paid by the Petitioner, I do not see that any purpose would be served by not issuing a direction upon the Respondent to restore the supply of signals of its channels subject to the aforementioned terms.

25. Prima facie, moreover, the principle of Order II Rule 2 CPC is not attracted. The Respondent, prima facie again, cannot ask the Petitioner to pay a huge amount and decline to restore supply of signals as a result whereof the Petitioner may lose a huge business in the towns in question.

26. After having taken into consideration all aspects of the matter, I am of the opinion that on compliance of the directions as aforementioned by the Petitioner viz deposit of the balance amount of Rs.2.79 crores as also deposit of the subscription fee for the month of July, 2012, the supply of signals should be restored within 48 hours.

27. This order is being passed keeping in view the interest of both the parties but without prejudice to their rights and contentions in the pending matters.

28. Let hearing of Petition No.225(C) of 2012 as also those two petitions be expedited.

Libertyis granted to the parties to mention the matter, if any occasion arises therefore.