TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
DATED 17th
April 2009
Petition No. 321(C) of 2006,
R.G. Rupta
& Sons
C/o Choice of
Century
A-1, Kadma
Market,
Kadma,
Jharkhand.
Through its
proprietor
Shri B.M.
Gupta ……….. Petitioner
Versus
M/s. Sunny
Cable TV Network
Shastri Nagar,
Kadma,
Purbi
Singhbhum – 831005. ……….. Respondent
Petition No. 322(C) of 2006
R.G. Rupta
& Sons
C/o Choice of
Century
A-1, Kadma
Market,
Kadma,
Jharkhand.
Through its
proprietor
Shri B.M.
Gupta ……….. Petitioner
Versus
M/s. Manjoj
Cable Network
Q.No. 59, RD
No.-3,
New Rani
Kudar,
Purbi
Singhbhum – 831005
Jharkhand.
Through its
sole proprietor Mr. U.N. Thakur ……….. Respondent
Petition No. 323(C) of 2006
R.G. Rupta
& Sons
C/o Choice of
Century
A-1, Kadma
Market,
Kadma,
Jharkhand.
Through its
proprietor
Shri B.M.
Gupta ……….. Petitioner
Versus
M/s. Jay Shree
Interprises,
E.C.C. Flat,
F. No. 323(A)
Uliyan, Kadma,
Purbi
Singhbhum – 831005.
Through its
sole proprietor Ms. Jarina Devi ……….. Respondent
BEFORE :
HON’BLE MR. JUSTICE ARUN KUMAR, CHAIRPERSON
HON’BLE MR. G.D. GAIHA, MEMBER
For Petitioner : Mr. Navin Chawla, Advocate
For Respondents in all cases : Mr. Arun Kathpalia,
Mr. Vibhav Srivastava,
Mr. Virender Singh Thakur, Advocates
O R D E R
These are three petitions which
have been filed by the petitioner for recovery of alleged dues of feed charges
to M/s. Sunny Cable TV Networks, M/s.
Manoj Cable Network and M/s. Jayshree Enterprises. R.G.Gupta & Sons, the
petitioner claims to be a Multi System Operator (MSO) re-transmitting various
free to air and pay channels to its direct subscribers as well as through other
cable operators in
2. The
petitioner has pleaded that as per the Regulations, the applicant
distributor/Local Cable Operator (LCO) of TV channel intending to get the
signal feed from any Multi System Operator (MSO) other than the present
affiliated MSO, or from any agent/any other intermediary of the broadcaster/MSO,
or directly from broadcasters, shall produce alongwith their request for
service, a copy of the last monthly invoice showing the dues, if any, from the
presently affiliated MSO or from their agent/any other intermediary of the
broadcaster/MSO, who collects the payment for providing TV channel
signals. The petitioner has submitted
that since the respondents are owing the outstanding amounts as mentioned
above, the respondents may be restrained from obtaining signals from any other
MSO, LCO and broadcasters as per the terms of clause 3.2 of the Interconnect
Regulations. The respondents have
referred to the claims made by the petitioner as above and have pleaded their
case. The pleadings of the respondents
alongwith our findings in each of the three cases is as follows:
A. Petition
No. 321(C) of 2006
1. In
this case the petitioner has filed several invoices and according to it these
invoices have not been paid. The
petitioner has also filed several receipt memo which he issued to the
respondent against the payment made.
According to the petitioner it had given a 21 days notice of
disconnection vide notice dated 19th October, 2006 to the respondent
and had also sent copies of this notice to various service providers.
2. The
respondent has completely refuted the claim of the petitioner and has contended
that the petitioner in order to exploit the monopolistic situation would
threaten disconnection time and again and levy unreasonable subscription
charges to disconnect the signals of the respondent. Respondent has further claimed that the
petitioner did not raise any bill or invoice till date and all the invoices
annexed to the petition are false and fabricated. Respondent has further
contended that the payment of Rs. 20000/- has been made to the petitioner vide
receipt no. 1022 dated 25.8.2006 while this amount has not been accounted for
by the petitioner in its statement of account.
The respondent has also claimed that it was paying the agreed
subscription fee of Rs. 10000/- per
month from June, 2003 to March, 2005 and since April, 2005 Rs. 15000/-, which
was unilaterally increased by the petitioner.
The respondent has claimed that the petitioner has made a bogus claim of
Rs. 216738/- on the basis of forged invoices which have not been served on him.
No proof of service has been submitted by the petitioner inspite of notice
under Order XII Rule 8 of CPC which was served by the learned counsel of
respondent. Even during cross
examination, petitioner has ommitted to produce the proof of service which has
not been produced on record. A perusal
of the invoices annexed in the petition also clearly indicates that vide
invoice no. FH-SR-1 dated 1st July, 2006 the current period
subscription charges alongwith the previous outstanding charges have been shown
while the regulation requiring the invoices on this basis came into force
subsequently i.e. on 4th September, 2006. During the cross examination the proprietor
of the petitioner has admitted that he was not issuing invoices to the
respondent before the Regulation requiring invoices to be served came into
force and it has only started issuing invoices only after the requirement of
issuing invoices was mandated vide Regulation dated 4th September,
2006. This shows the fallacy in issuing
the invoice as mandated by the subsequent regulation much before the regulation
came into force.
3. In
the statement of account it has been contended by the respondent that the
petitioner has applied the principle of double accounting. The respondent contends that the service tax
of 10.2% was introduced in June, 2005 but respondent did not pay the service
tax till December, 2005 and requested the petitioner to adjust the service tax
within the subscription charges i.e. Rs. 15000/-. The respondent in his reply has expressed
that he was shocked and surprised to know from the statement of account annexed
with the petition that the petitioner falsely, unilaterally and arbitrarily
increased the monthly charges w.e.f. January, 2005. The statement of account shows that the
respondent continued to pay Rs. 10000/- per month upto June, 2005 and then
Rs.16000/- in July, 2005. In August, 2006 the receipt submitted by the
respondent shows that it had made a payment of Rs. 20000/- for July, 2006. This fact is verified from the receipt
annexed by the petitioner. The respondent has claimed that he was paying the
agreed subscription fee of Rs. 10000/- from June, 2003 to March, 2005 and since
April, 2005 Rs. 15000/-, which was unilaterally increased by the petitioner. In this context the learned counsel for the
respondent has brought to our notice the decision of 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.”
In this case, the statement of
account submitted by the petitioner has been challenged by respondent to be
incorrect and false.
4. We
find that there is no proof of service of the invoices which are annexed with
the petition. We also find that some of
the invoices show the outstanding amount alongwith the current billing prior to
the Regulation of 4th September, 2006 coming into force. The cross examination also confirms the above
fact.
5. From
the perusal of record the monthly
charges of Rs. 10000/- per month is not denied.
This is the amount shown by the petitioner as monthly billing till Dec,
04. The
billed amount shown in statement of account in Jan, 05 and Feb, 05 is
Rs. 16000/- and a sum of Rs. 19000/- for March,05, April,05 and May,05. Rs. 19972.80 billed amount has been shown for
June, 05 and then Rs. 20945/- for July,05 to Feb,06. From March, 06 to June, 06 an amount of Rs.
21325/- per month has been billed. This
is again shown to have been increased as Rs. 21399/- for one month, Rs, 21999/-
for few months and Rs. 22599/- for one month.
The respondent has claimed all these as arbitrary except the one in the
month of Jan,05 for Rs. 15000/-
during cross examination and in its reply admitting an increase in total
billing from Rs. 10000/- to Rs.15000/- in 2005.
However, the respondent has claimed this to be on account of payment,
which is reflected only in the receipt for the month of October,06 and as part
payment for Sept,06 receipts and not in any other receipt. Subsequent increases have been categorically
denied. No invoices have also been
received by respondent as per the records and the same has also been denied by
it. The respondent’s claim, during the
course of cross examination that this was on account of miscellaneous expense
etc. is also not supported by any other evidence.
6. After
going through the pleadings of the
petitioner and the respondent, it is evident that the petitioner’s nett claim
is not sustainable on the basis of the statement of account, absence of any evidence of service of the
invoices, cross examination of the witnesses, payment pattern and adherence of
the Regulation of 4th September, 2006 prior to its issuance as
reflected in the invoices of July, 2006
and August, 2006. The petitioner’s claim is not borne on facts and even the
admission during the cross examination has established that the account
statement and the invoices are fabricated, false and misleading to show
outstanding demand as alleged by petitioner against the respondent to an extent
of Rs. 216738.08. However, on the basis
of the admission during cross examination, reply of the respondent and payment
pattern in the statement of account, the respondent is due to pay to the
petitioner @ Rs. 10000/- per month from June,2003 to Dec, 2005 and @ Rs. 15000/- per month from
Jan, 2006 till 24.1.2007 inclusive of service tax. The net outstanding allegedly claimed by
petitioner as Rs. 216738.08 is false and misleading. We direct the payment of the amount
calculated for the complete period as per above finding to the petitioner after
deducting Rs. 428500/- which has already
been admittedly paid by the respondent.
7.
We hold that respondent has to pay at the rate of Rs.10000/-
p.m. inclusive of all taxes from June, 2003 to Dec, 2005 and Rs. 15000/- p.m.
inclusive of all taxes from Jan, 2006 till 24.1.2007. The already paid amount of Rs. 428500/- has
to be deducted for arriving at the nett payment due to respondent. The claim of Rs. 216738.08 as raised by the
petitioner is false and misleading.
8.
The petition is disposed of accordingly.
B. Petition No. 322(C) of 2006
1. Respondent
has contended that no amount is pending as claimed by the petitioner except the
subscription amount of Rs. 16000/- for the month of September, 2006. He has further contended that the petitioner,
in order to exploit the monopoly, would threat the disconnection time and
again. The respondent has further
pleaded that the petitioner, to achieve its illegal design and motive and to
realize unreasonable subscription charges, used to disconnect the signals. The respondent further contends that the
petitioner did not raise any bill or invoice till date and all the invoices
annexed to the petition are false and fabricated. There is no proof of service of invoices to
the respondent. In response to the notice under order XII Rule 8 of CPC which
was served by the counsel of respondent to petitioner, the petitioner has
failed to submit the proof of service of invoices. The respondent has denied the claim of the
petitioner on the ground that he was paying the agreed subscription fee of Rs.
9775/- per month from April, 2003 to November, 2003 and since December, 2003
Rs. 11,220/- p.m., which was unilaterally increased by the petitioner. The respondent has claimed that the
petitioner has further enhanced the subscription charges to Rs. 16000/- per
month in April, 2005 unilaterally and forced the respondent to accept the same.
2. The respondent has claimed that the invoices are
forged. The petitioner in its cross
examination said that it has issued written notice in respect of increase in
feed charges to the respondent. It is
admitted by the petitioner during cross examination that the same are not on
record but can be produced. From the cross
examination it has come to our notice that the petitioner has admitted the
requirement of issuance of invoices in June/July, 2006, however, requirement of
submission of invoices has come into force from 4th September, 2006. It is quite evident from the cross
examination that the petitioner’s claim of the proof of delivery of invoices to
the respondent is not supported by any documentary evidence.
3. The
receipts have also been earlier issued in the name of Central Cable Television
Network, which is claimed to be the petitioner’s proprietary concern. It has also been admitted by the petitioner
that after imposition of service tax, all the receipts have been issued in the
name of R.G. Gupta & Sons.
4. The
cross examination of Mr. U.N. Thakur, proprietor of the respondent reveals that
the respondent started the cable business in the year 2000 and started taking
signals from the petitioner in the year 2001.
It is also admitted by the respondent that the petitioner has always
issued receipt for the payments given to him and signals have been received by
the respondent from the petitioner upto 30.09.2006. The respondent has claimed to join another
MSO by the name of Badhani Cable Network after 30.09.2006.
5. The
respondent has further contended that as per the admitted position of the
petitioner in the alleged statement of account dated 3rd Dec, 2006,
the petitioner has overcharged the respondent.
The statement of account shows outstanding amount of Rs. 9775/- for the
period 1.4.03 to 30.4.03. The receipt
which has been produced by the respondent shows that the amount of Rs. 9775/-
has been received by the petitioner on 20.5.03 for April, 2003. The respondent appears to have been
depositing the fixed monthly feed charges on time with the petitioner as per
its own statement dated 1st Feb, 2007. The respondent claims that the petitioner
unilaterally and arbitrarily enhanced the feed charges randomly and without any
enhancement in services. The contention
of the respondent is that the last monthly feed charges of the respondent was
Rs. 11525/- inclusive of taxes and respondent was shocked and surprised to know
from the statement of account that the petitioner has falsely, unilaterally and
arbitrarily increased the monthly feed charges for March, 2005 to May,
2005 to Rs. 17480/- and then to Rs.
19264/- for June, 2005 to March, 2006.
From April, 2006 to Jan, 2007 the subscription amount as per the
statement of account has been shown as Rs. 22500/- per month. The respondent claims that it had stopped
taking the feed from 30th September, 2006 and, therefore, all the
claims alleged to have been shown in the statement of account from September,
2006 onwards are false and fabricated.
The respondent has contended that all the receipts for the amount paid
for the feed charges were fabricated by the petitioner. The respondent has come to know for the first
time about a statement of account after the receipt of the petition, which is
clearly an afterthought and manipulation by the petitioner. Another fact which has been brought to our
notice by the respondent is that the invoices annexed in the petition show that
the invoice No. FH-UN-1 is dated 1.7.2006 shows outstanding amount alongwith
current billing. However, the regulation
requiring the invoices showing outstanding amount came into force on a
subsequent date i.e. 4.9.2006. It has
been contended that the invoices with the claim have been prepared on a single
day and signed by the same person on each and every invoice as against the
receipts filed by the respondent has been signed by different persons. Bare
perusal of the alleged statement of account clearly shows that the same is
fabricated on account of the fact that after applying the principle of reverse
accounting, the figures for the monthly subscription have been arrived at. The claim of the petitioner for Rs. 19264/-
actually consist of Rs. 16000/- + (10.2% of 16000) + (10.2% of 16000) = Rs.
16000 + 1632+ 1632 = Rs. 19264/-. This
fact is possible to be verified from the receipts annexed by the petitioner
which shows subscription fee of Rs. 16000/- + service tax in the month of
March, 2006 and the respondent paid the amount vide receipt no. 113 dated
24.4.2006 (Rs. 16000 + Rs.1632 = Rs. 17632),
whereas the petitioner annexed the fabricated statement of account to
press his claim which states that the subscription fee for the month of March,
2006 is Rs. 19264/-. This clearly
indicates the fallacy of statement of account of the petitioner as a receipt
filed by the petitioner shows that the
complete amount received which includes service tax in the month of March, 2006
and is not a part payment. The
petitioner has further asked to pay for the arrears of the service tax which
has not been paid previously and the respondent has accordingly made the
payment of Rs. 22500/- . Thus the
respondent paid the arrears of service tax as previously the respondent had
made the payment without service tax from June, 2005 to December, 2005 and
w.e.f. Jan, 2006 the respondent started clearing the service tax dues of the earlier
period.
6. Another
point which has been raised by the respondent is that the petitioner has no
valid license and hence cannot invoke jurisdiction of this Tribunal. It is a fact that till date the petitioner
has not filed any document on record that it holds valid license to operate
cable TV network. The respondent has
quoted the case, Petition No. 162(C) of 2008 bearing title M/s. Goel TV Network
Vs Ambala Cable TV Network.
It
has been contended by the respondent that the petition is not maintainable as
the petitioner is not a service provider on the date of filing of the petition
since it did not have a valid cable TV registration certificate. It is, however, a fact that the respondent
has received signals from the petitioner for distribution to its subscribers
and, therefore, this contention of the respondent does not have any bearing on
the case.
7. The respondent has strongly resented the action taken by the
petitioner to approach Star India Pvt. Ltd., Kolkata not to provide signal to
the respondent because of alleged non-payment of dues. The respondent has further contended that the
petitioner has approached the broadcasters, even though the dispute is pending
before this Tribunal and it has made false statement that the respondent is a defaulter. The respondent has also claimed that because
of the disconnection of signals by the petitioner, there were various instances
of violence and chaos in the city. The
paper clippings supporting the above claim have been submitted in the reply of
the respondent. The petitioner has also
charged the respondent for the disconnected period and this fact has been
admitted by the petitioner in his cross examination.
8.
After going through the pleadings of the petitioner and the
respondent, it is evident that the petitioner’s claim is not sustainable on the
basis of the statement of account, absence of any evidence of service of the
invoices, cross examination of the witnesses and adherence of the Regulation of
4th September, 2006 prior to its issuance as reflected in the
invoices of July, 2006 and August, 2006. It is evident that the petitioner’s
claim is not borne on facts and even the admission during the cross examination
has established that the account statement and the invoices are fabricated,
false and misleading to show the alleged outstanding demand of Rs. 152299/-
against the respondent. However, as per
the admitted amount owed by the respondent, we allow Rs. 16000/- to be paid to
the petitioner as against its alleged claim of Rs. 152299/- which is found to
be false and misleading.
9.
The petition is
disposed of accordingly.
C. Petition . No. 323(C) of 2006
1. The
petitioner claims to have filed several invoices, which according to the
petitioner have not been paid. The
petitioner also claims to have filed several receipts memos which he used to
issue to the respondent against the payment made. According to petitioner it had also given a
21 days notice dated 8th December, 2006 to the respondent and had also sent copies of
the said notice to various service providers.
2. The respondent
contended that petitioner in order to exploit the monopolistic situation
would threat the disconnection, time and again and at times, to achieve its
illegal design and motives and unreasonable subscription charges would
disconnect the signals creating a vulnerable law and order situation.
3. The respondent has contended that the petitioner did not
raise any bill or invoice till date and all the invoices annexed to the
petition are false and fabricated. The respondent further contended that even
the payment for March, 03, May, 03, January, 05, February, 05 and August, 06
were made to the petitioner vide receipt no. 361 for Rs. 8000/- (for Mar,
03), receipt no. 369 for Rs. 8000/-(for May,03) , receipt no. 1565
for Rs. 8000/- (for Jan, 05), receipt no. 1593 for Rs. 8000/- (for Feb, 05) and
receipt no. nil for Rs. 16000/- (for
Aug, 06). The respondent claims that it
was paying the agreed subscription of Rs. 8000/- per month and since March, 05
Rs. 14000/- per month. (This increase is
pleaded to be an unilateral increase by the petitioner.)
4. The petitioner has not filed any proof of service of
invoices inspite of notice under Order XII Rule 8, which was served by the
learned counsel for respondent on the petitioner. During cross examination the petitioner
promised to produce the same but did not produce the same. The respondent has also contended that the
bare perusal of the invoices annexed with the petition have been prepared on a
single day and signed by the same person on each and every invoice as against
the receipts filed by the petitioner which have been signed by different
persons. The respondent has also
contended that the receipt No. FH-JD-1 for the period from 1.7.06 to 31.7.06
shows not only the current bill but also the previous period arrears. The raising of invoice showing the previous
period outstanding has been made mandatory after the issuance of Regulation
dated 4th September, 2006.
Petitioner during his cross examination, however, admitted that he was
not issuing invoices to the respondent before the Regulation requiring invoices
came into force and started issuing invoices only after the requirement of
issuing invoices came into force. The
statement, therefore, contradicts the invoice which has been issued for July,
2006 as mentioned above. In regard to
service tax, the respondent claims that the petitioner has adopted the
principle of reverse accounting. It has
tried to adjust the service tax within the subscription charges i.e. Rs. 14000/-
. Whereas the petitioner annexed the
manufactured statement of account to press his claim which states that the
subscription fee for the month of November, 2005 is Rs. 16549.83. This clearly indicates the fallacy of
statement of account of the petitioner as the receipt filed by the petitioner
shows that the complete amount was received for the month of November, 2005 and
not a part payment.
5. The petitioner asked the respondent to pay for the arrears
of the service tax not paid previously and the respondent accordingly made the
payment of Rs. 15000/-, Rs. 20000/- etc. just to clear the outstanding of
service tax. This fact can be sustained
on the basis that the receipt no.1146 issued for October, 2006 for Rs. 15000/-
is on account payment and the receipt no. 1101 showing the payment of Rs.
20000/- does not show the month for which it pertains as the amount was
deposited towards the part arrears of the service tax.
6. The respondent also contends that the petitioner has
illegally requested some broadcasters not to give signals to the respondent by
declaring the respondent as defaulter.
The respondent also contends that the petitioner has never claimed any
outstanding amount due to the respondent and no demand has ever been raised by
the petitioner of the same. Receipts
filed by the petitioner for the period for which signals have been availed by
the respondent shows the full payment and not any on account payment.
7. After
going through the pleadings of the petitioner and the respondent, we conclude
that the petitioner’s claim is not sustainable on the basis of the statement of
account, absence of any evidence of service of the invoices, cross examination
of the witnesses and adherence of the Regulation of 4th September,
2006 prior to its issuance as reflected in the invoices of July, 2006 and
August, 2006. It is evident that the petitioner’s claim is not borne on facts
and even the admission during the cross examination has established that the
account statement and the invoices are fabricated, false and misleading to show
an outstanding demand against the respondent.
8.
We hold that as per admitted position during cross
examination the respondent wanted to make payment @ Rs. 16000/- p.m. for the
period from Nov, 2006 till 29.1.2007, however the petitioner refused to accept
this payment. We direct respondent to
make this payment to the petitioner. The
payment as per receipt nos. 1101 and 1148 has been admitted as on a/c payment
in the month of Oct, 2006 and Nov, 2006
for arrears of service tax. For
these months also the balance subscription amount @ Rs. 16000/- per month after
deducting the service tax arrears shall be paid by the respondent to the
petitioner. The inflated nett claim of
Rs. 209351.38 is false and fabricated.
10.
The petition is disposed of accordingly.
…………………….J
(Arun Kumar)
Chairperson
………………….
(J.S. Sarma)
Member
………………….
(G.D. Gaiha)
Member