TELECOM
DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
DATED
18th DECEMBER, 2009
PETITION NO. 58(C) OF 2008
ESPN Software (I) P.
Ltd.
. Petitioner
Vs.
Bankey Bihari
Communication & Ors.
.
Respondent
BEFORE :
HONBLE
MR. JUSTICE S.B. SINHA, CHAIRPERSON
HONBLE
MR. G.D. GAIHA, MEMBER
For Petitioner : Mr. N. Ganpathy, Advocate
For Respondent : Mr.
Rashmi Sharma, Advocate
ORDER
The petitioner is a Broadcaster.
2. The respondent, a partnership firm, is a
cable operator. It was carrying out its business in transmission of signal since
1995.
The respondent nos.
2 to 4, however, entered into a fresh partnership agreement in the year
2007. Admittedly the respondent no. 2 is
the managing partner of the said partnership firm.
3. Inter-alia on the premise that the
respondent no. 1 did not pay the stipulated subscription fees to the
petitioner, this petition has been filed
inter-alia for recovery of a sum of Rs. 6,69,731/- alongwith interest @
12% per annum from the due date till realisation of the said amount.
4. The respondents do not deny or dispute
that the parties to the said agreement dated 20.07.2007 had been taking signals
for transmission of the channels of the petitioner.
It is admitted that the respondent no.
1 and its subscribers attached to the network enjoyed the services till Jan,
2008. It is also not in dispute that
monthly invoices used to be raised from time to time which are contained in
Annexures P3A to P3G to the petition. It
is furthermore not in dispute that the respondents have made part-payments against
the said invoices from time to time.
The amount claimed
by the petitioner and those paid by the respondents would appear from the
following chart :-
|
Effective Date |
Bill
Amount |
ST |
Payment |
|
23.10.2007 |
1,23,300 |
15,240 |
|
|
23.10.2007 |
1,23,300 |
15,240 |
|
|
23.10.2007 |
1,23,300 |
15,240 |
|
|
23.10.2007 |
1,23,300 |
15,240 |
|
|
25.10.2007 |
|
|
45,000 |
|
20.11.2007 |
1,23,300 |
15,240 |
|
|
23.11.2007 |
|
|
15,000 |
|
28.11.2007 |
|
|
15,000 |
|
28.11.2007 |
|
|
15,000 |
|
20.12.2007 |
1,28,232 |
15,849 |
|
|
31.12.2007 |
|
|
20,449 |
|
21.01.2008 |
1,28,232 |
15,849 |
|
|
Total |
20,60,231 |
2,50,142 |
16,40,642 |
|
Outstanding upto
19.02.2008 |
6,69,731 |
||
5. The petitioner in support of its case had
also filed the statement of account. Receipt of the invoices is however
disputed. The petitioner very fairly has given up its claim against the Respondents
prior to the date of the agreement namely 20.7.2007.
6. The principal contention of the
respondent is that the subscription fee payable to the petitioner was at Rs.82000/-
per month and not Rs. 123300/- as claimed by the petitioner. It has furthermore been contended that the
respondent no. 4 who was a partner of the respondent no. 1, collected the
amount of subscription fee proportionately payable by the respondent nos. 2
& 3 but in collusion and conspiracy with the distributor of the petitioner
has misappropriated the said amount, wherefor
a First Information Report bearing no. 272/2008 under section 406/420 of
IPC has been registered against him.
7. The respondent no. 2 in his evidence
before us has further stated that all payments due to the petitioner have been
made in cash. He, however, accepted that
no receipt therefor has been obtained by him from the petitioner or its
distributor.
8. On the pleadings of the parties before
us, there cannot be any doubt or dispute that there existed a relationship of
the broadcaster and MSO between them.
The respondent no. 2, even assuming for the sake of the argument has
been cheated by the respondent no. 4, the petitioner has nothing to do therewith. Mr.
Ashok Sharma, the witness examined on behalf of respondent no. 2 in his
evidence also admitted that despite the fact that collusion/conspiracy has been
alleged by and between the respondent no. 4 and distributor of the petitioner,
no First Information Report has been lodged against the later.
9. In a matter like the present one, this
Tribunal is not concerned with the criminal case filed by the respondent no. 2
against the respondent no. 4 alone, which has to be decided on its own
merits. Having regard to the admitted relationship
between the parties as well as execution of the agreement having been admitted
there cannot be any doubt or dispute whatsoever that the respondents were
liable to pay a sum of Rs. 123,300/- per month besides taxes amounting to Rs.
138,540/- from 20.7.2007 to 20.1.2008, the details whereof are as under :-
|
Billing
period |
Billing
amount |
Service
tax |
Amount
billed (Incl. Service Tax) |
Amount
paid by respon-dent |
|
20/07/07 19/08/07 |
123,300 |
15,240 |
138,540 |
82,000 |
|
20/08/07 19/09/07 |
123,300 |
15,240 |
138,540 |
138,525 |
|
20/09/07 19/10/07 |
123,300 |
15,240 |
138,540 |
45,000 |
|
20/10/07 19/11/07 |
123,300 |
15,240 |
138,540 |
15,000 |
|
20/11/07 19/12/07 |
123,300 |
15,240 |
138,540 |
15,000 |
|
20/12/07 19/01/08 |
123,300 |
15,240 |
138,540 |
15,000 |
|
20/01/08 22/01/08 |
8,220 |
1,016 |
9,236 |
20,449 |
|
Total |
|
|
840,475 |
330,974 |
|
|
Total
Balance Due |
|
509,501 |
|
|
(Rupees
Five Lakh Nine Thousand Five Hundred & One only) |
||||
10. From the aforementioned chart it would also
appear that only in the month of July, 07 a sum of Rs. 82000/- was paid by the
respondents. There is thus, nothing to
show that contrary to the terms of the agreement the parties novaled the contract so as to modify/alter the terms
and conditions thereof so far as the amount of subscription fee is concerned. We, therefore, are satisfied that the plea of
the respondent no. 2 that the subscription fee
payable was Rs. 82000/- per month is not correct.
11. Furthermore, a partnership firm carrying on
business of such a magnitude is expected to maintain its books of account. No
book of account has been filed by the respondent to prove that the amount of subscription
was Rs.82,000/- per month or for that matter it had made all payments to
the petitioner in cash. Curiously, the
respondent no. 2 in his evidence before us stated that he had paid his share of
the subscription fee to the respondent no. 4.
If that be so, it cannot be said that he had knowledge about the payment
of the entire outstanding dues to the petitioner as stated by him or
otherwise.
The onus of proof that such payments were
made, was upon the respondents. They
have failed and/or neglected to bring on record any receipt showing such
payments or any books of accounts maintained by them to prove their case. We are, thus, not in a position to accept the
plea of payment raised on behalf of the
respondent.
12. We, for the foregoing reasons, are of the
opinion that the petitioner is entitled to a decree for a sum of Rs. 509,501/-
with interest @ 18% per annum from the
date from which it fell due till the date of filing of this petition and @
12% per annum pendelite and future till the date of realisation thereof
with costs.
Counsels fee assessed
at Rs.25,000/-.
,J
(S.B.
Sinha)
Chairperson
(G.D.
Gaiha)
Member