TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th
May, 2009
Petition Nos. 256(C)
of 2006
Hathway Nashik Cable
Network ……….. Petitioner
2nd Floor,
Shiledar Bhawan,
Opp. Fire Brigade
Office, Shingada Talao,
Vs.
Cidco Cable Network,
A sole properietory
concern
Represented through
Mr. Arvind Shelke,
Having its office at
N-35-54-7/1Swami
Vivekanand Nagar,
CIDCO, Nashik. ………..
Respondent
BEFORE :
HON’BLE MR. JUSTICE
ARUN KUMAR, CHAIRPERSON
HON’BLE MR. G.D.
GAIHA, MEMBER
For Petitioner : Mr. Jayant Mehta, Advocate
Mr.
Nasir Husain, Advocate
For Respondent : Mr. Sanjay V. Kharde, Advocate
Mr.
Sunil Kumar Verma, Advocate
O R D E R
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By this petition
the petitioner has claimed an amount of Rs. 221666/-upto Sept, 2006 alongwith
interest @ 18% per annum from the
respondent, who is a Cable TV Operator operating in the city of |
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2. |
The case of the
petitioner is that it has raised monthly invoices on the respondent for the
subscription charges. The invoices from
1st July, 2005 up till 1st Sept,
2006 are placed on record. These
invoices dated 1st July, 2005
up till dated 1st March, 2006 have been raised on a connectivity
of 450 points @ Rs. 110/- per point, exclusive of taxes. Thereafter, from the month of April, 2006
up till Sept, 2006, the invoices have
been raised for a connectivity of 525 points @ Rs.110/- per point exclusive
of taxes. The petitioner has claimed
that the respondent was in default of an amount of Rs. 221666/- as on 31st
July, 2006 and in this behalf a notice dated 24th Aug, 2006 has
been sent to the respondent by courier. We note in the courier receipt
annexed with the notice of 24th Aug, 2006 that the notice has been
delivered to the respondent. |
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3. |
The petitioner
has claimed that the total outstanding
as on 30th Sept, 2006 is Rs. 435326.20 after including the
invoices upto the month of Sept,
2006. The September, 2006 invoice
shows a monthly cable TV feed charges as Rs. 64818.60, which includes service
tax and education cess levied by Central Govt. The petitioner has also
submitted that it is maintaining a running
ledger account of the respondent on its request, however, the ledger
account has not been annexed with the petition. The petitioner has also filed the affidavit
by way of evidence of Mr. Vijay Mandhayan, who is authorized representative
of petitioner company. During cross
examination, it has been stated by the deponent of petitioner that there was
an oral agreement between the parties which was arrived at sometime in the
year 2000. This agreement did not
specify the period. It was a
continuing agreement. The invoices were
raised in support of the subscription amount on the 1st of every
month and the respondent was making payment against invoices from time to
time. It has also been deposed during cross examination that payments used to
be “on account payments”. During cross
examination the deponent has also confirmed the issuance of letter dated 24th
Aug,2006 indicating an outstanding of Rs.221666/- upto July, 2006 on the basis of the running
ledger account of the petitioner. This figure has increased to Rs. 435326.20 upto
Sept, 2006. The ledger account has
neither been submitted with the petition nor with the rejoinder affidavit
filed by the petitioner. It is
surprising that, for the first time, the ledger account has been annexed by
the petitioner with the evidence by way of affidavit. During cross examination, it was pointed
out in the affidavit dated 26.10.07, a figure of Rs. 161996/- has been
mentioned as due and outstanding on 31.7.2006 as against Rs.221666/- shown in the letter dated 24.8.2006. The deponent on behalf of the petitioner
has admitted the mistake and called it
as a typographical mistake and confirmed that the amount of Rs. 221666/- is
on the basis of running ledger account which starts with effect from 1st
April, 2001 and is upto July, 2006. In
the affidavit the total amount due as on 30.9.2006 has been shown as Rs.
351303/- while there is a claim of Rs. 435326.20 as mentioned in the
petition. We note that if we add alleged
outstanding for the month of July, 2006 and Aug, 2006 @ Rs. 64818.60 to Rs.
221666/-, we arrive at a figure of Rs. 351303/- which tallies with the
outstanding upto Sept, 2006 as shown in the affidavit but to arrive at a
figure of Rs. 435326.20 upto Sept, 2006 by any permutation and combination
appears to be impossible. This
reflects the fallacy of the account submitted by the petitioner. |
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4. |
The respondent
has annexed a letter dated 14.08.2006 addressed to Star India Pvt. Ltd. by
Hathway Cable and Datacom Pvt. Ltd. which indicates a total no. of points for
the respondent as 525. This letter
mentions that the respondent has migrated to Broadband Cable Network
(Panchvati Cable Network). When asked about this letter, the petitioner’s
witness has tried to defend the statement made in this letter by commenting
that this letter is only a pre-emptive letter and has been written in the
normal course of business by Multi System Operator to the broadcaster. This letter admits the exit of respondent
before 14.8.2006 from the network of the petitioner. Inspite of this admission, the witness of
petitioner has tried to maintain that the signals to respondent continued
upto Sept, 2006 and the respondent has moved out to other Multi System
Operator only after Sept, 2006. |
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5. |
The respondent’s
case is that, it has paid all charges regularly and in case there was any
delay in making the payment, the petitioner used to disconnect the
signals. As the respondent had to face
the customers, it was very punctual in making the payment each month. The respondent contends that, it shifted to
other Multi System Operator in July, 2006 and made payments to the petitioner
upto 31.7.2006. The respondent has
also pleaded that it entered into an oral understanding with petitioner to
obtain output signal for random connections @ Rs. 80/-, Rs. 100/- or Rs.110/-
per connection as prevailing rates and petitioner promised to pay a
compensation of Rs. 8 lakhs to respondent.
However, the petitioner has not paid the said amount so far. All payments in response to the bills
raised have been made by cheque till July, 2006. Bank statement and the receipts supporting
the contention of the respondent has been annexed in the counter
affidavit. The receipts showing
payment of Rs. 41000/- per month w.e.f. 31.1.05 till June, 2005, Rs. 49700/-
from July, 2005 till Nov, 2005 , Rs. 50620/- for Dec, 2005, Rs. 49700/- from
Jan, 06 to April, 06 and on an average for a similar amount for May, 06,
June, 06 and July,06 have been annexed with the counter affidavit. The respondent has contended that the
letter written by the petitioner to Star TV on 14.8.2006 is an admission of
the fact that respondent has migrated in July, 2006 from the petitioner and
has started taking feed from other MSO.
The question of payment of any dues after July, 2006, therefore, does
not arise. The respondent has
also accepted the receipt of letter of
14.8.2006 sent by the petitioner claiming an outstanding amount of Rs.
221666/- upto July, 2006 on the basis of running ledger account. The respondent has strongly contested this
claim on the grounds that the running ledger account has neither been filed
in the petition not in rejoinder affidavit and has been filed by the
petitioner for the first time in the affidavit by way of evidence which as
per law in not permissible since the evidence cannot go beyond the
pleadings. At this stage, introduction
of the statement of the ledger account, denies opportunity to the respondent to
specifically comment upon the correctness of the same. The contention of the respondent is that
the petitioner has not placed on record
anything to show as to what prevented the petitioner from claiming
outstanding dues alongwith the bill of subsequent months. Further there is no demand letter for
alleged outstanding for Jan, 2001 till July, 2006 and the letter raising
demand has been sent for the first time on 14.8.2006 i.e. after the
respondent has shifted to another MSO.
It is beyond the stretch of any imagination that the petitioner would
not claim the outstanding dues for more than five years and will simply go on
maintaining the accounts without sending any notice to the respondent. The witness of
petitioner is also vague and does not help in improving the case of the
petitioner. Neither he is employee of
the petitioner company nor he has personal knowledge of anything pertaining
to this case. |
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6. |
The following
issues need to be determined to arrive at the amount, if any, which is due to
the petitioner from the respondent:- · Whether
the respondent is liable to pay beyond July, 2006? · Whether
the ledger A/c presented for the first time alongwith the affidavit of
evidence by petitioner after five years relationship between the petitioner
and respondent can be taken cognizance of, for arriving at the outstanding
amount? · Whether
the payment by cheque as per the statement of bank account and acceptance of
the same without any demur by the petitioner for five years and raising a demand only by a letter
dated 14.8.2006 can be considered as a credible evidence for
deciding outstanding amount in favour of the petitioner? |
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7. |
(a) A letter dated 14.8.06 addressed to Star
India Pvt. Ltd. by Hathway Cable & Datacom Pvt. Ltd. indicates that the
respondent has stopped taking signals from the petitioner before 14.8.06,
migrated to some other MSO and, therefore, the petitioner’s subscription fee
to Star India Pvt. Ltd. should be reduced.
In this letter, besides the name of respondent’s network, the names of
16 other networks have also been mentioned indicating the total no. of points
of connectivity which petitioner has lost with the passage of time. The petitioner has asked for downgradation
of the subscriber base from the broadcaster by the same number because of the
migration of the cable operators, in which the respondent also figures. This is as good as an admission of the fact
that respondent was not taking signals from the petitioner prior to
14.8.06. The above fact has also been
confirmed during cross examination of Mr. Vijay Mandhayan, the authorized
representative of the petitioner. We,
therefore, uphold that the claim of the petitioner for the subscription
amount for Aug, 2006 and Sept, 2006 is not sustainable. (b) The ledger account submitted with the
affidavit of evidence is not an admissible evidence as per the Section 34 of the Evidence Act. “ [Entries in books of account
including those maintained in an electronic form] when relevant – [Entries in books of accounts including those maintained in an
electronic form], regularly kept in the course of business, are relevant
whenever they refer to a matter into which the Court has to inquire, but such
statements shall not alone be sufficient evidence to charge any person with
liability.” In this case the
ledger account has been produced only at the stage of affidavit of evidence
by the petitioner and the respondent has been deprived of the opportunity of
specifically denying the correctness of the same. Petitioner has led no evidence in support
of veracity of same. Besides this, the petitioner has accepted payment for five
years without a demur or without issuing even a single notice to the
respondent regarding the outstanding amount.
In this context, the “No person can be charged with liabilities merely on the basis of
entries in the books of account, even where such books of account are kept in
the regular course of business. In
order, that a person may be charged with liabilities thereunder, except where
the person to be charged accepts the correctness of the books of account and
does not challenge them.” We, therefore,
hold that the demand of outstanding raised on the basis of ledger account is
not sustainable. (c) The respondent claims to have made all
payments by cheque and the corresponding cheque numbers have been mentioned
in the receipts issued by the petitioner and this evidence cannot be denied. It is very difficult to imagine that in a
business relationship of such a long duration of about five years, the
petitioner shall not raise its voice by way of issuing notice or disconnecting
the signals, to realize the outstanding amount and shall remain satisfied by
maintaining account only. We,
therefore, hold that the notice raising a demand for an outstanding amount of
Rs. 221666/- upto July, 2006 vide letter dated 14.8.06 is frivolous and false
as evidence by way of affidavit and alleged ledger account. The total claim of Rs. 351303/- as
against the claim of Rs. 435326.20 as
per petition, do not tally and admission of
witness of petitioner of a typographical error showing Rs. 161996/- as
outstanding as against a claim of upto
July, 2006, clearly exposes the fallacy of statement of account, fabrication
of records placed on affidavit, and, therefore, not sustainable. |
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8. |
We observe that
there is a tendency of fabricating records, placing them on affidavit by way
of evidence and also implicating local cable operators. We deprecate this tendency of fabricating
records and impose a cost of Rs.5000/- to be deposited by the petitioner in
the Tribunal within two weeks by way of a cheque in the name of the DDO,
TDSAT. The petition is
dismissed with Rs.5000/- as costs. |
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…………………….J
(Arun Kumar)
Chairperson
………………….
(J.S. Sarma)
Member
………………….
(G.D.
Gaiha)
Member