TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

NEW DELHI

 

DATED 18th December, 2009

 

PETITION No.153(C) OF 2008

 

 

M/s Indian Cablenet Company Ltd.                                

Plot No. – XI

Block – EP & GP

Salt Lake Electronics Complex

Sector-V

Kolkata 700 091                                                                     … Petitioner

 

Versus

 

M/s Satellite Link

Mr.Kaushik Saha

5,  J.N. Tiwari Road

Dum Dum Contonment

Kolkata – 700 028                                                                             …Respondent

      

 

BEFORE:

 

 

HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON

 

 

For Petitioner

:

Mr. Tejveer Singh Bhatia, Advocate

 

 

For Respondent

 

:

 

Mr.Navin Chawla, Advocate

Mr.Sharath Sampath, Advocate

 

 

 

ORDER

 

The petitioner is an MSO.  The respondent is a Cable Operator.  They entered into a subscription agreement on or about 5th November, 2007.  According to the petitioner the respondent defaulted in making payment of the subscription fee upto 30.06.2008 and thus, a sum of Rs.3,87,812/- is owing and due from it.

The petitioner in support of its claim has produced statements of account.  One witness, namely, Shri Arun Kumar Singh was also examined by the petitioner in support of its case.

2.       The respondent, on the other hand, states that the petitioner itself has disconnected  its signals on or about 10.02.2008.  The respondent has also examined one witness in support of its case.   

3.       It appears that the respondent by a fax dated 29.02.2008 addressed to M/s Star Den Media Services Pvt. Ltd. inter alia stated:

“We give full details of operators who have migrated from our network”. 

Serial No.19 of the said communication refers to the respondent herein, the contact person, the address, the name of the city, the pin code , number of subscribers i.e.254 and month of migration(March 2008), which clearly indicates that respondent had already migrated.

4.       The petitioner, however, contends that such a statement was made only with a view to apprise the broadcaster that the cable operators’ named therein were likely to migrate but had not actually migrated.   This contention cannot be accepted in absence of any pleadings of the petitioner in relation thereto.  The respondent in support of its case has produced documents to show that it had been taking signals from another migrator from March 2008. 

5.       So far as the question of payment of the subscription fee is concerned, the statement of accounts filed by the petitioner from November, 2007 to May 2008 is as under:

Statement of Accounts from Nov’07 to May’08

Inv.No.

Month

Date

Particulars

Cheque No

Dr.

Cr.

IM07110393

Nov-07

01/11/2007

Invoice

 

84452

 

 

 

30/11/2007

Payment

190314

 

84451

IM07120354

Dec-07

01/12/2007

Invoice

 

84452

 

 

 

01/01/2008

Payment

190315

 

84451

IM08010326

Jan-08

01/01/2008

Invoice

 

84452

 

IM08020331

Feb-08

01/02/2008

Invoice

 

84452

 

 

 

02/02/2008

Payment

190319

 

84451

IM08030321

Mar-08

01/03/2008

Invoice

 

84452

 

 

 

07/03/2008

Payment

190320

 

34451

I008040117

Apr-08

01/04/2008

Invoice

 

84452

 

I008050121

May-08

01/05/2008

Invoice

 

84452

 

I008060148

Jun-08

01/06/2008

Invoice

 

84452

 

Total

 

 

 

 

675616

287804

Closing Balance

 

 

 

387812

 

 

From a perusal of the aforementioned statement of account, it would appear, that the payments received by the petitioner from the respondent had been given due credit; the last of such payment having been made on or about 07.03.2008 for a sum of Rs.34,451/-.  It has not been denied or disputed that the respondent had been making payments to Kolkata Cable and Broadband Parisewa Ltd. from March, 2008. 

According to it with a view to pay the entire difference in the amount payable to the respondent, it had made the aforementioned payment on 9th March, 2008. 

6.       In this case receipt of the notices as also the invoices by the respondent from the petitioner are not in dispute. 

7.       The petitioner, however, in its rejoinder only for the first time raised the following plea:

“It is denied that the migration of the respondent to another MSO was done with the consent of the petitioner.  It is respectfully submitted that the petitioner had sent monthly invoices as well as written communications to the respondent for making payment of subscription fee, however, the respondent never objected or communicated to the petitioner that it had migrated another MSO.  It is further respectfully submitted that the petitioner though had requested M/s STAR DEN Media Services Pvt.Ltd. to transfer the subscription fee payable by the petitioner towards the respondent however in absence of any such information received by M/s STAR DEN from M/s Kolkata Cable Broadband Parisewa Ltd. no reduction in subscriber bas was given to the petitioner and the petitioner continued to supply its signals to the respondent.”

 

8.       It is, therefore, evident that the principal contention raised by it is that in absence of any information received from M/s Star Den Media Services Pvt. Ltd. from Kolkata Cable and Broadband Pariseva Ltd., the petitioner having been given reduction in the subscriber base. 

The respondent is not concerned with the question as to whether it’s MSO communicated to the broadcaster about its migration or not.  The petitioner has also not raised any grievance as to why the respondent has made a part payment in the month of March, 2009.  In its notice issued in terms of clause 4.1 of the regulation and the public notice published in terms of clause 4.3 thereof, the petitioner did not say that the respondent is liable for non-grant of the benefit of payment by M/s Star Den Media Services Pvt. Ltd. 

It has suppressed the factum of migration of the respondent. 

9.       It is the positive case of the respondent that there has been a settlement amongst all the concerned parties.  The respondent’s witness in categorical terms stated thereabout.   He has not been cross-examined on the said question. 

In Mohd.Naved Vs. Hindustan Petroleum Corporation & Ors. – 2004(1) MPHT 16, stated the law thus:

“Needless to say, as it is well settled in law, that if witness has not been cross-examined on a point stated in the examination-in-chief, the same remains unchallenged and there is no reason why it should not be accepted.”

 

The petitioner has not produced any evidence that the signals continued even after 10.02.2008.  It is also curious to note that petitioner has raised a question of dual feed for the first time in the cross of the respondent’s witness.  It is beyond its pleadings. 

10.     It is also difficult to find any reason as to why the petitioner’s assertion in definitive terms made in its letter dated 24.09.2008 to M/s Star Den Media Services Pvt.Ltd. stating that respondent has already migrated should be given a go bye.  Even in the invoices filed before us, no arrears have been shown.  As noticed heretobefore an odd sum of Rs.84,452/- paid on 7th March, 2008 was accepted by the petitioner without any demur whatsoever, which also in my opinion proves that the contention of the respondent in this behalf is correct.

11.     I have held heretobefore that the petitioner has failed to prove its case and thus, the issuance of some letters or showing some due in its own accounts would not disprove the case of the respondent.

12.     It is true that the respondent did not serve any notice in terms of clause 4.2 of the regulations.  Service of such notice, in my considered opinion, is necessary so as to put the other party to a contract to make an alternative arrangement.  However, the parties by mutual agreement take a consensual decision to waive.

Waiver as is well known is the intentional relinquishment of a right in certain circumstances.

13.     In State of A.P. & Ors. Vs. Pioneer Builders, A.P. – AIR 2007 SC 113, the Supreme Court of India held that the State by not raising a plea in its written statement in regard to requirement to serve on it a notice under Section 80 of the Code of Civil Procedure, would be deemed to have waived the objection.  (See also Bishandayal & Sons Vs. State of Orissa – 2001(1) SCC 555.)

It is now the well settled that a party may waive its statutory right.  (See Babulal Badriprasad Varma Vs. Surat Municipal Corporation  – AIR 2008 SC 2912.)

In the fact of the present case, therefore, the respondent was not obligated to serve a notice in terms of clause 4.2 of the regulations. 

For the reasons aforementioned, there is no merit in this petition.  It is dismissed accordingly with costs.  Advocate’s fee assessed at Rs. 25,000/-.

...…………J

(S.B. Sinha)

Chairperson