TELECOM DISPUTES
SETTLEMENT & APPELLATE TRIBUNAL
DATED 11th May, 2009
Petition Nos. 260(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. Habib,
Having its office at
N-44-A/A1/26-6,
Adarsh 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. 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. 211381.60 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 200 points
@ Rs.110/- per point, exclusive of taxes.
The
petitioner has claimed that the respondent was in default of an amount of Rs.
1,61,996/- 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 the consignee’s premises were found closed. |
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3. |
The
petitioner has claimed that after adding the subscription amount @ Rs. 24692.80
per month (inclusive of statutory taxes) for Aug, 2006 and Sept, 2006 the
total outstanding till Sept,2006 is Rs. 211381.60. 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.1,61,996.00 upto July, 2006 on the basis of running
ledger account of the petitioner. This figure has increased to Rs. 2,11,381.60
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 200. 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, M/s. Cidco Cable Network consists of two
operators. One of the operators is the
answering respondent Shri Habib Sheikh and is the sole proprietor, having
connectivity of 100 points and the other operator is Shri Chakradhar Network
of Mr. Dubey who is also having a connectivity of 100 points. The respondent has claimed to be conversant
with the facts and circumstances of the case to the extent of is own network. The respondent has claimed that the present
petition is filed against it, having 50% share in M/s. Cidco Cable Network. It has been pleaded by the respondent that
this petition is not maintainable as the petitioner has failed to implede the
necessary party to the proceeding and, therefore, for non-joinder of
necessary party, the petition deserves to be dismissed at threshold. The respondent has also produced a copy of
the letter dated 16.02.2003 issued by the petitioner company acknowledging
the fact of two separate operators in M/s. Cidco Cable Network. The respondent claims that it has paid all
the charges to the petitioner regularly since the petitioner used to disconnect
the service to the respondent in case of any delay in making the
payment. The respondent also claims
that it had shifted to other Multi System Operator (MSO) since July, 2006 and
it has made payment of all the dues to the petitioner upto 31st
July, 2006. |
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6. |
The
respondent has contended that it had joined the petitioner and entered into
an oral understanding with the petitioner company to obtain signal for random
connection @ Rs. 80/-, Rs.100/- , or Rs. 110/- per connection as prevailing
rates. The petitioner used to raise
the bills in advance for every month through the invoices as per the points
at the rates agreed upon and, the respondent used to pay the bills by the end
of the month by cheques. The said oral
understanding continued till July,2006 and the answering respondent paid the
entire bills through cheque till July,2006, except for the month of March and
April, 2006 to the extent of Rs.12,000/- per month, which adds up to a total
liability of Rs. 24,000/- only. The
respondent has annexed the copy of the bank statement w.e.f. 4th
April, 2003 till 2nd Dec, 2006 and the payments have been shown to
the petitioner in this bank statement as follows: |
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Sl. No. |
Date |
Cheque No. |
Amount (Rs.) |
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1. |
3.5.2003 |
40019 |
20000.00 |
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2. |
13.6.2003 |
40020 |
20000.00 |
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3. |
1.7.2003 |
776441 |
10000.00 |
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4. |
31.7.2003 |
776452 |
10000.00 |
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5. |
8.9.2003 |
776458 |
10000.00 |
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6. |
1.10.2003 |
776459 |
10000.00 |
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7. |
1.11.2003 |
411962 |
10000.00 |
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8. |
1.12.2003 |
411965 |
10000.00 |
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9. |
1.1.2004 |
411968 |
10000.00 |
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10. |
30.1.2004 |
420781 |
10000.00 |
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11. |
1.3.2004 |
420782 |
10000.00 |
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12. |
2.4.2004 |
420788 |
10000.00 |
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13. |
30.4.2004 |
426092 |
10000.00 |
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14. |
26.05.2004 |
426093 |
10000.00 |
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15. |
29.06.2004 |
426095 |
10000.00 |
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16. |
29.07.2004 |
426097 |
10000.00 |
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17. |
30.08.2004 |
815311 |
10000.00 |
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18. |
07.10.2004 |
815313 |
10000.00 |
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19. |
1.11.2004 |
815314 |
10000.00 |
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20. |
1.12.2004 |
815317 |
10000.00 |
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21. |
31.12.2004 |
Illegible |
10000.00 |
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22. |
2.2.2005 |
824693 |
10000.00 |
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23. |
1.3.2005 |
824696 |
10000.00 |
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24. |
2.4.2005 |
824700 |
10000.00 |
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25. |
3.5.2005 |
829701 |
10000.00 |
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26. |
2.7.2005 |
829705 |
11000.00 |
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27. |
2.8.2005 |
829707 |
10000.00 |
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28. |
1.9.2005 |
829710 |
11000.00 |
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29. |
3.10.2005 |
843134 |
12120.00 |
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30. |
3.11.2005 |
843138 |
12120.00 |
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31. |
2.12.2005 |
843139 |
12000.00 |
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32. |
2.1.2006 |
132004 |
12000.00 |
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33. |
1.2.2006 |
132008 |
12120.00 |
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34. |
1.3.2006 |
132010 |
12120.00 |
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35. |
1.6.2006 |
140743 |
12120.00 |
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36. |
1.07.2006 |
140746 |
12800.00 |
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37. |
1.08.2006 |
140748 |
12340.00 |
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7. |
After
the above payments to the petitioner, the respondent has made payment to
another MSO, Nasik C.T.T.V in Sept, Oct, Nov & Dec, 2006 Rs.11200/-, Rs.11225/-, Rs.11220/- &
Rs.11,200/- respectively. The
statement in para-6 above, clearly indicates that since May, 2003 till July,
2006 all payments have been made by cheques and the same have been
acknowledged by the petitioner without any demur. Some of the corresponding receipts which
have been issued by the petitioner, are placed by the respondent in its
counter affidavit. It is also clear
that since Aug, 2006 the respondent has switched over to another MSO and it
has paid subscription for four months as per the bank statement to other MSO. The respondent has contended that after
July, 2006 there was no oral understanding between the petitioner and the
answering respondent and it discontinued taking signals from the petitioner. It has also been brought to our notice that
in the letter dated 14.8.2006 addressed to the Star TV Pay Channel, the
petitioner has admitted the migration of the respondent before 14th
Aug, 2006 to another MSO. The amount
which has been shown as per the statement of account as due to the respondent
is based upon the invoices which indicate 200 points on a continuous basis
from 1st July, 2005 till 1st Jan, 2006 and 450 points
in Feb, 2006 and from March onwards again 200 points up till Sept, 2006. The
petitioner has already admitted in Feb, 2003 vide its declaration that the
network of M/s. Cidco Cables consists of two operators having 100 points
connectivity by each one of them and, therefore, raising a demand of 200
points on one operator, who has been made as a respondent in this case is not
sustainable. Moreover, the receipt of
subscription for 100 points for a period of more than three years without
raising any objection and accepting the cheques without any demur and also
without issuing any notice to indicate an outstanding amount against the
respondent, establishes a tacit approval and admission on the part of the
petitioner, that there is no outstanding against the respondent. The statement of account and invoices
raised, therefore, do not support the case of the petitioner. |
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8. |
The
submission made by the petitioner’s witness does not give any credence to the
fact that the respondent owes an outstanding of Rs.1,24,506.28 upto July,2006
on the basis of the alleged running ledger account statement. No opportunity has also been given to the
respondent to comment upon the correctness of the alleged ledger account
statement except at the stage of cross examination on the basis of the
evidence by way of affidavit submitted by the petitioner. It is beyond the stretch of any imagination
that the petitioner would not claim the outstanding dues for more than five 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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9. |
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 a relationship of more than five years 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 during the period of
understanding and raising a demand only by a letter dated 24.8.2006 after about more than five years can be considered as a credible evidence for
deciding outstanding amount in favour of the petitioner? |
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10. |
(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 Apex
Court’s decision in Chandradhar Vs. Gauhati Bank, AIR 1967 SC 1058 is
relevant. “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 more than five 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.1,61,996/- upto July,
2006 vide letter dated 24.8.06 is frivolous and false. However, as per the admission of the
respondent in the counter affidavit that it has not paid dues for March &
April, 2006 resulting in an outstanding amount of Rs.24000/- is sustainable
inspite of the statement of respondent that it had paid all dues till
July,2006. In the state of payment by
cheque by respondent in para-6 above, there is a gap of two months payment
around the period of March, 2006 , April,2006 and, therefore, we hold that
the respondent owes a sum of Rs. 24,000/- to petitioner and same should be
paid in two weeks time. |
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11. |
The
petition is partially allowed as mentioned herein above and we direct the
respondent to make a payment of Rs. 24000/- to the petitioner in two weeks. Since the petitioner has raised a false a
frivolous claim of Rs. 1,61,996/- on the basis of the alleged statement of
account, we do not allow any interest to be paid on Rs. 24000/- which is
payable by respondent to the petitioner. The
petition is dismissed. |
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…………………….J
(Arun Kumar)
Chairperson
………………….
(J.S. Sarma)
Member
………………….
(G.D. Gaiha)
Member