TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th May, 2009
Petition Nos. 267(C)
of 2006
Hathway Nashik Cable
Network ……….. Petitioner
2nd Floor,
Shiledar Bhawan,
Opp. Fire Brigade
Office, Shingada Talao,
Vs.
Vickey Cable Network,
N3L-95, Old Cidco,
Nashik – 422 003. ……….. 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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1. |
By
this petition the petitioner has claimed an amount of Rs. 421650/-upto Sept,
2006 alongwith interest @ 18% per annum
from the respondent, who is a Cable TV Operator operating in the city
of |
|
2. |
The
case of the petitioner is that it has raised monthly invoices on the
respondent for the subscription charges.
The invoices dated 1st Aug, 2005 up till 1st Sept,
2006 are placed on record. These
invoices from 1st Aug, 2005 up till 1st Dec, 2005 have
been raised on a connectivity of 400 points @ Rs. 110/- per point, exclusive
of taxes. Thereafter, from 1st
Jan, 2006 up till 1st Sept, 2006, the invoices have been raised
for a connectivity of 470 points @ Rs.110/- per point exclusive of
taxes. The petitioner has claimed that
the respondent was in default of an amount of Rs. 305594/- 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 could
not be delivered, because consignee refused to accept the shipment. |
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3. |
The
petitioner has claimed that after adding the subscription amount @ Rs. 58,028.08 per month (inclusive of statutory taxes) for
Aug, 2006 and Sept, 2006 the total outstanding till Sept,2006 is Rs. 421650/-. 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.305594/- upto July, 2006 on the basis of the running
ledger account of the petitioner. This figure has increased to Rs. 421650/-
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. |
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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 470. This
letter also 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 joined the petitioner’s cable network from 7th
March, 2002 and since the beginning
there were two sub-operators working under Vickey Cable Network namely Yogesh
Cable Network and Zite Cable Network.
The respondent alongwith its two sub-operators were paying the monthly
bill regularly through the respondent.
However, since Dec, 2005 the petitioner started providing direct
connectivity to aforesaid cable operators and was accepting payments directly
from the sub-operators. In the month
of Dec, 2005, the respondent has admitted to receive the bill including that
of the sub-operators, though the sub-operators were directly making their
payment. The petitioner has issued common bill to the answering respondent in
the month of Dec, 2005. The answering
respondent since then, started making payments of its share after deducting
the subscription amount proportionate to the connections of the
sub-operators. Respondent has also
annexed the monthly cable billing for M/s. Yogesh Cable Network (sub-cable
operator) for the month of Nov, 2005 as Rs. 10,304/- and similarly for M/s.
Zite Cable Network as Rs. 14,077/- for the month of October, 2005. The net amount payable by the respondent
for its own network is, therefore, left out to be Rs.24,107/- per month, in
case we consider that the payment for a connectivity of 400 points as per the
invoice is Rs. 48,488/-, inclusive of all statutory taxes. As per the bank statement annexed with the
counter affidavit, we find that the respondent has claimed to have paid Rs. 25,000/- on 1st
March, 2006, Rs. 20,000/- on 12th April, 2006, Rs. 28,486/- on 3rd
May, 2006, Rs. 29,000/- on 31st May, 2006, Rs. 30,000/- on 1st
July, 2006, Rs. 14000/- on 1st Aug, 2006, Rs. 15000/- again on 12th
Aug, 2006. As per this statement, the total sum paid by the respondent is Rs.
161,486/- by cheque. The respondent
has annexed the copies of the receipts dated 31.1.2006 and 31.12.2005 also
showing a payment of Rs. 28,486/- and Rs. 48,488/- respectively and as
admitted by the respondent’s witness during cross examination, these receipts
again reflect on account payment. These amounts can also be added to the
credit of the respondent, making the total payment made by respondent as Rs.
2,38,460/- from 1st Dec, 2005 till 31st July, 2006,
paid upto 12th Aug, 2006.
The respondent’s case is that since Dec, 2005 the petitioner was
accepting payment directly from the said two sub-operators, however, it
included the bill of the said two sub-operators in the bill of the
respondent. The respondent claims to
have protested against this and from Dec, 2005 onwards paid for his share
only after deducting the subscription charges for the connections of the
sub-operators. The respondent also
claims that as per the bank statement the entire payment against the
bills/voucher has been made upto July, 2006 and the claim of outstanding dues
on the basis of the alleged ledger account of the petitioner is
unsustainable. It is also the case of
the respondent that the respondent shifted to another MSO after July,
2006. This contention of the respondent
is supported by the letter of the petitioner to Star TV dated 14.8.2006 in which the respondent’s
name figures at Sl. No. 3 under the heading ‘Operators migrated to Broadband
Cable Netowork (Panchvati Cable Network)’.
This fact has also been admitted during cross examination of the
petitioner’s witness. The respondent
has claimed that the petitioner for the first time has claimed the
outstanding dues of Rs. 305594/- upto July, 2006, that too without any basis
of calculation for the said amount except with the support of the running
ledger account, which has neither been submitted with the petition nor with the
rejoinder. This running ledger account
has been filed for the first time alongwith the affidavit of evidence, which
cannot be taken into account. It is
also a fact that the respondent did not have any opportunity to specifically
deny the correctness of the ledger account. It is beyond stretch of any imagination
that the petitioner would not claim the outstanding dues for 4 years and will go on maintaining the accounts
without sending any notice to 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
respondent claims to have paid all the charges regularly to the petitioner, since
in case there was any delay in making the payment, the petitioner used to
disconnect the signals. The respondent
contends that, it shifted to other Multi System Operator since 1st
Aug, 2006 and made payments to the petitioner upto 31.7.2006. The payments in response to the bills
raised have been made by cheque till 12th Aug, 2006 except two payments of Rs. 28,486
/- and Rs. 48,488/- for which receipts
dated 31.1.2006 and 31.12.2005 have been annexed in the counter affidavit but
there is no mention of these amounts in the bank statement submitted by
respondent. However, these amounts
figure in the alleged ledger account of the petitioner submitted alongwith
the affidavit by way of evidence as paid by cheques. If we go by the ledger
account, we find that since Dec, 2005 the following cash payments, as
admitted, have also been received by the petitioner: i)
Rs. 5000/- vide receipt no.
2350 dated 1st Feb, 2006 ii)
Rs. 10000/- vide receipt
no. 2351 dated 1st Feb, 2006 iii)
Rs. 4500/- vide receipt no.
2353 dated 2nd Feb, 2006 The
total cash payment of Rs. 19500/- is over and above the cheque payment of Rs.
238460/- thereby making the total payment made by the respondent from 1st
Jan, 2006 till 31st July, 2006 as Rs. 257960/-, after deducting
the subscription fee of the two sub-operators which is claimed by the
respondent to have been paid directly to the petitioner by the sub-operators
since Dec, 2005. In case we take the
subscription fee of the respondent as Rs. 24,107/- ( Rs. 48,488- Rs. 10304/-
(of Yogesh Cable Network )- Rs. 14077/- (of Zite Cable Network)) for total
400 points of the respondent and the two sub-operators, the total amount
payable by the respondent works out to
Rs. 168749/- ( Rs.24107 x 7), which is less than the amount already paid and
admitted by the petitioner from the respondent from 1st Jan, 2006
to 31st July, 2006. Since
all the payments are on account, we will not like to go into the exercise of
tallying the amounts on both sides, however, we are inclined to conclude that
there is no outstanding against the respondent as claimed by the petitioner
exclusively on the basis of the ledger
account. The
respondent has also denied the receipt of the letter of 14.8.2006 sent by the
petitioner claiming an outstanding amount of Rs. 305594/- upto July,
2006. 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 March, 2002 till July,2006 and the letter for raising demand has been
sent for the first time vide letter dated 14.8.2006 i.e. after the respondent
has shifted to another MSO. It is
beyond 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. |
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7. |
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 four years relationship between the petitioner and
respondent 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 four 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? · Whether
the amount paid on account, for the
total period from 31st Dec, 2005 till 31st July, 2006 by
cheque as well as cash i.e. Rs. 2,57960/- compensates the amount payable by
the respondent to the petitioner @ Rs. 24,107/- after excluding the payment
presumed to have been made by the sub-operators to the tune of Rs. 10304/- by
M/s. Yogesh Cable Network and Rs. 14077/- by M/s. Zite Cable Network from the
total billed amount of Rs. 48,488/- for 400 points as composite subscriber
base of the respondent and the two sub-operators. · Whether
the declared points as per the invoices can be considered to be 470 points
from Jan, 2006 till July, 2006 which has been billed @ Rs. 56973.40 per month
as reflected through the invoices as well as in the alleged ledger account. |
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8. |
(a) The 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 subscribers 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 Madhavan, 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 four
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 plus some amount by cash as admitted by the petitioner, 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 about four
years, the petitioner shall not raise its voice by way of issuing notice or
disconnecting the signals, to realize the outstanding amount. We, therefore, hold that the notice raising
a demand for an outstanding amount of Rs. 305594/- upto July, 2006 vide
letter dated 14.8.06 is frivolous and false.
(d) From the alleged statement of account of
the petitioner, as well as the statement of bank account submitted by the
respondent, we find that the respondent has more or less cleared the dues after
deducting the amount payable by the sub-cable operators for which it has
submitted two receipts issued to the sub-cable operators for the amounts paid
by them to it for the part of their billing points as 85 and 110 respectively out of its total
connectivity of 400 points, for which respondent has been billed by the
petitioner. Since the complete
business is based upon oral agreement, we cannot overrule the possibility of
including the sub-operators alongwith the respondent in the beginning for
billing and payment purposes and then segregating them to directly pay to the
petitioner. This point of view also
gets confirmed from the payment pattern as per the alleged statement of
account of the petitioner in which Rs. 48,488/- per month has been shown as
paid by the respondent to the petitioner consistently on 8.8.05, 8.9.05,
1.10.05, 10.11.05, 30.11.05, 13.12.05, 31.12.05. Prior to the above dates, a sum of Rs.
48,488/- has been paid in installments.
The respondent has contended that after 31st Dec, 2005,
there has been a split in the payment by it and the sub-operators paid directly
to the petitioner which has resulted in lesser payment by respondent in the
same proportion in which the points of respondent got reduced. The petitioner has still continued to show the liability of the
respondent as Rs. 48,488/- i.e. even after 1st Jan, 2006 on the pretext
that there was no written communication by the respondent to the petitioner
about the existence of the sub-operators.
Since we are not able to sustain the evidence of the entries in the
alleged ledger account, as per our conclusion in para 8(b) above, we hold
that the petitioner’s point of view of outstanding amount against respondent
is not sustainable. (e) The increase in the number of points
from 400 to 470 simply on the basis of alleged ledger account is also not
tenable and appears to be an afterthought to show outstanding dues against
respondent. |
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9. |
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