TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th
May, 2009
Petition Nos. 259(C)
of 2006
Hathway Nashik Cable
Network ……….. Petitioner
2nd Floor,
Shiledar Bhawan,
Opp. Fire Brigade
Office, Shingada Talao,
Vs.
M.K. Cable Network,
A sole properietory
concern
Represented through
Mr. Milind Kapse,
Having its office at
Shop No.2,
Darshana Apartments,
Indira Nagar, 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. 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. 219573.28 upto
Sept, 2006 alongwith interest @ 18% per annum
from the respondent, who is a Cable TV Operator, operating in the city
of Nashik, Maharashtra. The petitioner
claims to be a Multi System Operator (MSO) 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. The invoices from
July,2005 up till Sept, 2005 have been raised on a connectivity of 350 points
@ Rs.110/- per point, exclusive of taxes.
Thereafter, for Oct, 2005 and
Nov, 2005 the invoices have been raised for a connectivity of 1200 points @
Rs.110/- per point exclusive of taxes.
From Dec, 2005 till June, 2006 invoices have been raised on the basis
of 350 points @ Rs.110/- per point exclusive of taxes. For July, 06, Aug, 06 and Sept,06 the
invoices have been raised at 385 points @ Rs. 110/- per point, exclusive of
taxes. This appears to be a very erratic
way of raising invoices and sudden, abrupt rise and fall in the points shows
the arbitrariness on the part of the petitioner. The
petitioner has claimed that the respondent was in default of an amount of Rs.
1,24,506/- 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 has
been delivered. |
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3. |
The
petitioner has claimed that after adding the subscription amount @ Rs. 47533.64
per month (inclusive of statutory taxes) for Aug, 2006 and Sept, 2006 the
total outstanding till Sept,2006 is Rs. 2,19,573.28. 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.1,24,506.28 upto July, 2006 on the basis of running
ledger account of the petitioner. This figure has increased to Rs. 2,19,573.28
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 385. 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. 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 till Feb, 2000 the respondent was
having Hinduja’s signal. In March,
2000 the respondent entered into an oral understanding with Hathway to obtain
output signals 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 for a period from 5.7.05 till 27.7.06 and
the receipts supporting the contention of the respondent has been annexed in
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 contention of the
petitioner is that, the outstanding shown in the letter dated 24.8.2006 for the sum of Rs. 1,24,506/- is based upon
the running ledger account. The respondent
has contested 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. It is contested that at
the stage of affidavit by way of evidence, 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 March, 2000 till July,2006 except the letter dated 24.8.2006 raising
demand for the first time, 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 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 six years and raising a demand only by a letter
dated 24.8.2006 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 presented at the stage of affidavit by way of evidence 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. We, therefore, hold that the notice raising
a demand for an outstanding amount of Rs.1,24,506/- upto July, 2006 vide
letter dated 24.8.06 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