TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th May, 2009
Petition Nos. 261(C)
of 2006
Hathway Nashik Cable
Network ……….. Petitioner
2nd Floor,
Shiledar Bhawan,
Opp. Fire Brigade
Office, Shingada Talao,
Vs.
Vision Cable Network
Flat No. 6, Sarvottam
Society,
Near
Dwaraka, Nashik – 422
001. ………..
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. Sunil Kumar Verma, Advocate for
Mr.
Sanjay V. Kharde, Advocate
O R D E R
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By
this petition the petitioner has claimed an amount of Rs. 445203/-upto Sept,
2006 alongwith interest @ 18% per annum
from the respondent, who is a Cable TV Operator, operating in the area
of Dwarka in Nashik, |
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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 from
July,2005 up till 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 565
points @ Rs.110/- per point exclusive of taxes. The petitioner has claimed that the
respondent was in default of an amount of Rs. 305689/- as on 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 could not be delivered, because
of the consignee’s address being incorrect.
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3. |
The
petitioner has claimed that after adding the subscription amount @ Rs.
69757/- per month (inclusive of statutory taxes) for Aug, 2006 and Sept, 2006
the total outstanding till Sept,2006 is Rs. 445203/-. 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. 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.305689/- upto July, 2006 on the basis of running
ledger account of the petitioner. This figure has increased to Rs. 445203/-
upto Sept, 2006. The ledger account has
neither been submitted with the petition nor in the rejoinder Affidavit filed
by 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. |
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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 565. 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 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. It has also been admitted
by the respondents witness during cross examination that there is no record
to show that petitioner used to disconnect the signals to the
respondent. 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 agreement with petitioner for a period of 5 years
from July 2000 to July, 2005. After
the expiry of the said agreement, the respondent entered into an oral
understanding with the petitioner to obtain signal for random connection @
Rs. 80/-, Rs. 100/- or Rs. 110/- per connection as per prevailing rates. 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 bank statements from 1.12.2005 to
31.11.2006 and payment receipts of 30.5.06 to 31.7.06 have been annexed by
the respondent in its 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 denied the receipt
of the letter of 14.8.2006 sent by the petitioner claiming an outstanding
amount of Rs. 305689/- upto July, 2006.
The contention of the petitioner is that, this outstanding is based
upon the running ledger account. This has
been strongly contested by the respondent on the grounds that the running
ledger account has neither been filed in the petition nor in rejoinder
affidavit and has been filed by the petitioner for the first time in the
affidavit by way of evidence which should not be considered. At this stage,
introduction of the statement of the ledger account, denies opportunity to
the respondent to specifically comments 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 June, 2000 till July,2006 and the
demand has been raised for the first time vide letter dated 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 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 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 six years relationship between the petitioner
can be taken cognizance 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 six 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 and has 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 number
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 the 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
six 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 has made all payments by
cheque and the corresponding statement of the bank account is an evidence
which cannot be denied. It is very
difficult to imagine that in a business relationship of such a long duration
of six years, the petitioner shall not raise its voice by way of issuing
notice or disconnecting the signals, to realize the outstanding amount. In the counter affidavit respondent has
annexed a letter of 1st June,2006 from the petitioner which
indicates that the respondent’s connectivity for 450 points @ Rs. 110/- plus
service tax shall be enhanced to 700 points.
In case, there is no confirmation of the same by respondent upto 15th
June, 2006, the feed will be disconnected.
Inspite of this letter which has been submitted by the respondent in
its counter affidavit and without receiving any confirmation from respondent
upto 15th June,06, there
was no disconnection after 15th June, 2006 and the petitioner has
claimed to provide signals to the respondent upto 30th Sept, 2006. We, therefore, hold that the notice raising
a demand for an outstanding amount of Rs. 305689/- upto July, 2006 vide
letter dated 14.8.06 is frivolous and false.
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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. |
…………………….J
(Arun Kumar)
Chairperson
………………….
(J.S. Sarma)
Member
………………….
(G.D. Gaiha)
Member