TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th
FEBRUARY, 2010
Petition
No. 154(C) of 2009
M/s.
Mercara Multimedia Network
.. Petitioner
Vs.
M/s.
Pammi Cable Network
.. Respondent
BEFORE :
HONBLE
MR. JUSTICE S.B. SINHA, CHAIRPERSON
HONBLE
MR. G.D. GAIHA, MEMBER
For
Petitioner : Mr. Rohit Puri, Advocate
O R D E R
1.
The petitioner is a partner of a cable
network operating under the name and style of M/s. Mercara Multimedia Network
which offers the cable services in the
city of
2.
The respondent is a cable network
operating under the name and style of Pammi Cable Network offering cable
services.
3.
An agreement has been indisputably signed
between and by the parties on 2nd December, 2006 at Madikeri. The agreement envisages that the respondent
intends to link his cable network with the cable network of the
petitioner. The salient features of this
agreement are as follows :-
(i)
The respondent has agreed to pay to petitioner
a sum of Rs. 140000/- per month in two installments each month. The first installment shall be paid on or
before 10th of every month
and second installment on or before 20th of every month.
(ii)
The respondent shall surrender all the pay
channel decoders immediately with effect from the date of signing of agreement
and shall surrender all boxes to the concerned company.
(iii)
The respondent has also agreed to pay 1/3rd
payment of pay channels paid by petitioner
: Rs. 140000/- is agreed to be the one third payment of the pay channels
initially. In the event of any increase
or decrease takes place in the payment of pay channels, the same shall be
passed on to the respondent in the same proportion.
(iv)
In the event of the surrender of the decoder
boxes and viewing cards by the respondent, the petitioner will take away the
package of Rs. 60/- and will introduce a uniform package for the whole city of
(v)
The respondent shall bear all the additional
taxes and/or increase in existing taxes levied by various Govt. Departments
except the entertainment tax which has to be borne by the respondent for his
share of the amount.
(vi)
The respondent shall pay off all its
liabilities towards pay channels of his network to the concerned company.
4.
The petitioner would contend that despite
agreeing to pay 1/3rd of total payment made by petitioner to various
channels, the respondent was very erratic in making payment from the very
beginning and made only part payments and, therefore, as on date the respondent
is liable to make payment of Rs. 2437776.00.
5.
In support of its claim the petitioner
had annexed all the invoices raised by it on the respondent till 2009. The last invoice which has been placed with
the petition is dated 5.6.2009 for the month of June, 2009 which shows an
outstanding amount of Rs.2437776/-.
6.
The petitioner would further contend that
the respondent has been periodically been intimated vide letters dated 7th
March, 2007, 7th July, 2007, 5th Oct, 2007, 5th
June, 2008, 6th Oct, 2008 and 5th Jan, 2009 to clear
outstanding which was due on these dates respectively.
7.
The petitioner would further contend that
besides the letters written to the respondent several reminders by way of
telephonic conversations were also made by the petitioner to the respondent.
8.
The petitioner would also contend that
sometimes in Jan, 2009 the respondent expressed its inability to pay the said
amount and instead offered to sell his cable network to the petitioner in lieu
thereof and the petitioner agreed to the same.
9.
The petitioner has finally written to
respondent on 7th March, 2009 along with the statement of account, called upon to make a payment of Rs.
2228329/- which was due to the respondent
upto that time. A photocopy of an
acknowledgement of sending this letter by Indian Post has been placed with the
letter of 7th March, 2009.
10.
The petitioner had further contended that
it has written to M/s. MSM, ESPN, STAR Den, Zee Turner, Ushodaya on 21st
Jan, 2009 not to accede to any request of the respondent for providing signals. The receipts of acknowledgement of sending
these letters by courier as well as by Indian Post on 21.1.2009 have also been
annexed with the petition.
11.
The petitioner has also given a public
notice mentioning the default on the part of the respondent as per agreement which resulted in piling up of
huge outstanding. It has also been mentioned
in this public notice that respondent
should not be given any parallel license to provide cable TV network which will
be in violation of the subsisting
agreement between and by the parties.
12.
In support of filing the evidence by way
of affidavit filed on 10.11.2009, a copy of the deed of Reconstitution of
Partnership Firm dated 1st Jan, 2002 has also been annexed with the
petition. A supplementary affidavit on
behalf of the petitioner has also been filed on 23.11.2009 solemnly affirming
the contents of the evidence by way of affidavit and also certifying that the exhibits
PW 1/1 to PW1/41 are true copies of their respective originals.
13.
This is an ex-parte matter. The petitioner has brought on record an
agreement which is marked as PW 1/3. The
payment is required to be made by the respondent only in terms thereof. In
paragraph 4 of the affidavit the petitioner has proved raising of invoices
followed by letter dated 7.3.2007 marked as Exhibit PW1/7. Further monthly invoices were said to have
been raised as stated in para 5. A
reminder has also been sent on 7.7.2007.
Other invoices were also proved to have been raised. Most of the letters appear to have been sent
through courier or speed post. The
petitioner has also filed a statement of account, the correctness whereof is
not in dispute. The statement of account
shows that part payments had been made, which have been duly accounted
for. The bills have been raised and
payment have been made channelwise. The
account shows the details as to the amount deposited with Channel Plus and had
been adjusted. It is also evident that
the petitioner has taken steps informing the channels that the respondent is a
defaulter. According to Petitioner, the
respondent has not entered into any correspondence despite the petitioner
informing him so far as its attempts made with the assistance of third party to
make arrangements to supply for parallel license to provider cable TV network is
concerned.
14.
The liabilities of the respondent arises
under the agreement, and even demands, on the basis thereof, had been
raised. Further in terms of Section 114
of the Indian Evidence Act, a
presumption may be raised in regard to service of a letter which
was handed over to an agent authorized
therefore, namely, post office and courier services. The petitioner has, as noticed, has even
before, proved letters of demand also.
15.
Payments have also been made by cheque
each month, the service of invoices would be presumed. In any event if a party to the agreement
makes payment regularly even without service of invoices, for the purpose of
considering as to whether he is a defaulter or not, the provisions of
Regulations may not have the application.
16.
The respondent has neither denied any of
the statement of the petitioner nor disputed either by appearing before this
Tribunal or by and, therefore, the petition is allowed. We are satisfied that the petitioner has made
out a case for passing of a decree for a sum of Rs.2437776.00. However, as the petitioner has not been able
to prove any agreement on record to levy interest payable on the outstanding
amount, we are of the opinion that it is entitled to a reasonable amount by way
of interest which we assess at 12% per annum.
In the facts and circumstances of the case and in the interest of
justice, interest should be allowed only at the rate of 12% per annum. We direct accordingly. The decree shall carry interest also at the
same rate pendente lite and future.
J
(S.B. Sinha)
Chairperson
(G.D. Gaiha)
Member