M/s S.S. Cable Network vs M/s Hathway Bhaskar Multinet Pvt Ltd.

Page 1 of 48

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

NEW DELHI

Dated : September 12, 2011

Petition No.368(C) of 2010

M/s S.S. Cable Network …Petitioner

Vs.

M/s Hathway Bhaskar Multinet Pvt Ltd. …Respondent

BEFORE:

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

HON’BLE MR.P.K. RASTOGI, MEMBER

For Petitioner : Mr.Sujeet Kumar Mishra & Mr.

Mahesh Aggarwal, Advocates

For Respondent : Mr.Jayant K. Mehta, Sr.

Advocate with Mr. Nasir

Husain, Advocate

J U D G M E N T

S.B. Sinha

Background facts

1. The petitioner is a Local Cable Operator.

It’s status, however, is not clear.

2. In the Cause Title of the petition it has claimed itself to be a

proprietory concern of Sheikh Sahajad, although in paragraph A at

page 2 of the paper-book it is stated that the said Sheikh Shezad

Page 2 of 48

and Sheikh Amin Sheikh had jointly been operating a cable network

under the name and style of the petitioner.

In the affidavit affirmed in support of the petition, the

deponent thereof Shri Sheikh Sahajad has described himself as a

partner of the petitioner. In the evidence by way of affidavit Shri

Sheikh Sahajad as also the said Shri Amin Sheikh, claimed

themselves to be the co-proprietors of the petitioner concern.

3. With the aforementioned backdrop, we may notice the

factual matrix involved in the matter.

The respondent’s predecessor in interest Bhaskar

Multinet Pvt. Ltd. was a multi service operator.

It entered into a joint venture undertaking with the

Hathway Group of Companies, wherefor a separate company was

incorporated and registered by the name of respondent herein.

4. A `lease agreement’ was entered into by and between

the petitioner and the said predecessor in interest of the respondent

stipulating that petitioner had 1,230 consumers and had been

providing cable television connection at the rate of Rs.50/- per

subscriber and, thus, had been collecting a sum of Rs.61,600/- per

month and having regard to the fact that modernization of

equipments was necessary, the said cable television network was

proposed to be offered on lease for a long period for mutual

benefits. The said agreement was entered into for a period of three

years.

Page 3 of 48

5. The respondent accepted the said offer of the petitioner

to run the network and share the total monthly income in equal

proportion with the petitioner after deducting the overheads and

expenses. The respondent was also to pay all requisite taxes.

6. The said agreement came into force on or about

24.4.2008.

Some of the clauses thereof which are relevant for our

purpose read as under:

“(5) That, in the territory of the operator, to

provide signals use of fiber optic cables, to plan

and used necessary equipments and to establish

them planned amplifiers jointers, tap-offs, power

supply etc. to be established and to effectively

provide signals and for that to receive permissions

and such other investments so that this cable be

profitable keeping in view BML has to take this net

work for at least minimum period of 3 years so as

to become capable to remit effectively.

(8) That, the operator would be having no right

to collect any of the earnings rather it would be

desired on his part that he may provide full

support and guidance for the effect collection by

the boys who work for this collection.

(9) That, the operator hereby assures and

commits to BML that the network in the territory

of the operator is in a good condition and running

condition and the description given about the

consumers in Schedule B, all the cable

connections are in active state and all the

described consumers of Schedule B are regularly

paying monthly charges. If in accordance with

documents of agreement on receiving the cable

net work by BML, if any kind of repairing, comes

to be necessary or some change has to be done in

cable line then this would be deducted by BML

from the amount to be paid to the operator as it

would be taken to be the expenditure of the

Page 4 of 48

operator and BML would have right to deduct the

amount from the money which is to given to the

operator.

(13) That, it will be the duty of the operator to

protect the rights and favours of BML and may not

participate in any such kind of activity by which

the losses may be incurred to the BML regarding

monthly income or losses being incurred to BML at

some other place of his business. Any of the

member of the family of the operator would have

no right to participate or enter into any business

which may be related Cable Television Network

nor, would they have a right to become a

supporter or partner to such kind of business.

(15) That, on till 15th of every month books

would be prepared by BML and would be settled

by the end of the month. The operator would

reconcile every month these books and accounts.

In case of operator not reconciling the books

prepared by BML would be taken as final no

objection would be thereby entertain after the

books and accounts have been settled.

(16) That, on the condition if BML does not pay

to the operator for continuously two month the

operator would have right as per agreement to

produce a notice within 30 days and after which

the agreement can be cancelled.

(17) That, any communication between the

parties would be in written and would be posted

through Registered post to the address mentioned

in this document of agreement in case of change

of address the information of it should be given at

least a month before.

(22) The operator shall not be entitled to execute

any kind of mortgage, loan, etc. on the basis of

this document of the agreement. In this

agreement the operator has practically not given

an undertaking regarding BML and regarding any

practical payment of any amount.

(23) That, the operator would have no right to

sell or transfer any of the part of the Cable

Page 5 of 48

Television net work till this agreement is in

continuance and this can not be done without

written consent of BML. The operator would have

not right to subrogate to any person or body for

Corporate body, this document of agreement.

(24) That, every year in the month of April

review of the Division of the Revenue between

BML and operator would be done and BML as per

his wisdom and as per all the taxes in regulation

may decide on the change of such amount from

the 50 % share. In case if change occur due to

pay channels rate or change in taxes or charges,

change in different department or to launch a new

technical development or change in the laws or

Government Policies (in which use of DTH is also

included on all this BML would have in such a case

right to negotiate regarding the terms and

condition of agreement to be change if need be.

In such a condition above mentioned BML would

have right to produce a notice of one month for

operator regarding this agreement.

(25) That, in such a condition where BML finds

that further development in the net work is not

possible while managing the net work and

operating it on lease then BML would have the

freedom to cancel this agreement after giving a

months notice, and on the expiry of the period of

notice he may in working condition handover the

net work to the operator.

(27) That, the operator would be committed to

written all the equipments which have been

installed by BML within the period of this

agreement, on ending of it. Apart from this it

would be the duty of the operator to written the

equipments in good conditions to BML and if any

loss or damage has been done due to negligence

of operator then it would be the right of BML to

recover the amount of that equipment from the

share of operator.

(28) That, hereby operator has no duty or right

to negotiate subscription agreement without

written permission of BML regarding this, nor he

Page 6 of 48

would commit or propose any sub operator for

anything.

7. According to the petitioner, for the period 24.4.2008

and 23.3.2009, the respondent has paid unto it only a sum of

Rs.2,98,214/-. It is said to have discharged its tax liabilities.

Earlier Proceeding

8. In the month of March, 2009 as the respondent

threatened to stop supply of signals, a petition was filed before this

Tribunal which was marked as Petition No.83(C) of 2009.

By an order dated 17.4.2009, the said petition was

disposed of directing:

“Notice. Mr. Nasir Hussain accepts notice on

behalf of the respondent.

The grievance of the petitioner is that supply of

signals to the petitioner has been discontinued. Mr.

Nasir Hussain, counsel for the respondent submits that

according to his instructions the supply of signals to the

petitioner is continuing. In any case, the respondent

will ensure that supply of signals to the petitioner

continues uninterrupted. Both parties will abide by the

terms of agreement which exists between the parties.”

9. According to the petitioner, despite the said order not

only the respondent did not tender any amount by way of 50% of

its profit, but also started stoppage of supply of signals from time to

time and restoring the same after some time with a view to harass

he petitioner and/or the subscribers.

Page 7 of 48

The petitioner contended that the respondent had also

been issuing receipts to the consumers in different names.

10. A legal notice was served upon the respondent by the

petitioner’s advocate on 24.12.2009 demanding a sum of

Rs.8,32,500/-. Another notice dated 22.2.2010 was also issued

demanding a sum of Rs.17,81,286/-. However, according to the

petitioner, as in September, 2010 the respondent owed it a sum of

Rs.23,77,036/-.

The present proceedings:

11. In this petition the petitioner has prayed for the

following reliefs:

(a) “Pass an order directing the respondent to

pay the sum of Rs. 23,77,036/- (Twenty three

Lacs Seventy Seven thousand and thirty six Only)

with pendentilite and further interest at the rate of

18 % per annum on the decretal amount from

23.09.2010 till realization be passed in favour of

the petitioner and against the respondent;

(b) Direct the respondent to handover the

network in the area of Khazrana, Indore, Madhya

Pradesh, to the petitioner forthwith in good

working condition;

(c) Impose appropriate penalty on the

respondent for their willful failure to comply with

order dated 17.04.2009 passed by this tribunal in

Petition No. 83 (C ) of 2009;

(d) Costs of the petition may also be granted in

favour of the petitioner and against the

respondent; and

Page 8 of 48

(e) Pass such other order as this Hon’ble

Tribunal may deem fit and proper in the interest

of justice.”

12. The respondent in its reply, inter alia, raised a

preliminary objection as regards jurisdiction of this Tribunal.

It furthermore denied and disputed that it had not

shared with the petitioner the amounts collected or delayed settling

of the accounts. According to the respondent the accounts between

the parties stand drawn and settled.

It has furthermore been contended that the petitioner

had been running its business by taking feed from a rival MSO.

13. Questions

In view of the pleadings of the parties hereto, the

following issues were framed by this Tribunal by an order dated

7.1.2011:

“(i) Whether the petition is maintainable?

(ii) Whether the respondent is liable to pay an

amount of Rs. 23, 77,036/- (Twenty

three Lacs Seventy Seven Thousand and Thirty

Six only) with pendente lite interest at the rate of

18% per annum on the decretal amount from

13.09.2010 till realization to the petitioner?

(iii) Whether the Petitioner proves that the

Respondent is in possession of the network in the

area of Khazrna, Indore and if so, whether the

Petitioner proves that the Respondent is required

to handover its possession to the Petitioner?

Page 9 of 48

(iv) Whether the Petitioner proves that the

Respondent is in default of the order dated

17.4.2009 passed in Petition No.83 (c) of 2009

and if so, what would be the consequences of it?

(v) To what relief, if any, the Petitioner is entitled

to?”

14. The question of maintainability of the petition by

way of a preliminary issue was disposed of by an order dated

21.2.2011 observing that the same would be considered at the time

of final disposal of the petition.

Evidence

15. The petitioner in support of its case has examined

Shri Sheikh Shezad and Shri Amin Sheikh, its co-proprietors. It had

also filed affidavits of various persons to prove a CD to show that its

subscribers are getting signals of Bhaskar TV.

Only one of the witnesses, however, has been

examined to prove the said CD viz Mr. Zuber who has also been

cross-examined.

Another witness Mr. Mohd. Shakir Khan has also been

cross-examined on the same point.

The respondent has examined Mr. Jayant Agrawal and

Mr. Farooq Sheikh in support of its case..

Page 10 of 48

Submissions

16. Mr. Sujit Mishra, learned counsel appearing on behalf of

the petitioner, submitted:-

(i) The respondent having failed and/or neglected to traverse

in its reply the contentions raised by the petitioner in the

petition must be held to have admitted the same.

(ii) The respondent, having regard to the `lease

agreement’ was bound to disclose its accounts keeping in view

the admitted fact that it had not only been collecting the

amounts towards subscription charages from the subscribers

but also with a view to avoid its liability to the petitioner, has

been issuing receipts in the name of some other companies

also.

(iii) The petitioner from the very beginning had supplied the

SLR of its subscribers and, thus, the respondent cannot be

heard to say that the number of subscribers was much less.

(iv) Keeping in view the provisions of the agreement, it

cannot be said that the respondent’s job was merely to collect

the amount of subscription fee and share the same with the

petitioner inasmuch as it for all intent and purport had been

running the network in question

Page 11 of 48

(v) In view of the provisions of Sections 91 and 92 of the

Indian Evidence Act, no oral evidence is admissible as regards

term of the Lease Agreement.

(vi) The books of accounts filed by the respondent being hit

by Section 34 of the Indian Evidence Act, cannot be treated

to be proof of any books of account maintained in ordinary

course of business as being sufficient to discharge its onus for

accounts.

(vii) So far as the subscriber list is concerned, from the

evidence of RW-1 itself, it would appear that the original

agreements remained with them and in that view of the

matter it was obligatory on the part of the respondent to

produce the same.

(viii) The weight of the entire equipments for running a

network being only eight kilograms, it can be removed out of

the premises at any point of time which in fact the respondent

did.

(ix) The petitioner had entered into an agreement with Raja

Cable but subsequently having entered into the agreement in

question with the petitioner, they had been litigating and only

when a settlement was arrived at by and between them in

Petition No.251(C) of 2009 to the effect that in the event the

petitioner gets back the network from the respondent, it

Page 12 of 48

would handover the same to it and in that view of the matter

only they have been showing interest in this case and, thus,

no exception thereto can be taken.

(x) From the very beginning, the respondent was to take

over the petitioner’s network with all its subscribers and only

for that purpose, it had prepared the subscriber list and

supplied the same to it in loose sheets which would be evident

from the fact that from page 36 onwards of the paper book,

containing the said list, the name of the respondent company

appears.

(xi) The respondent’s witness RW-2 having admitted his

signatures in the receipts, there cannot be any doubt or

dispute that the respondent had been realizing its subscription

charges from the subscribers of the petitioner.

17. Mr. Jayant Mehta, learned counsel appearing on behalf

of the respondent, on the other hand, urged:

(a) This petition is not maintainable as in terms of the lease

agreement, the respondent was not either to take supply

of signals or give supply of signals and pay nor any

subscription fee was to be paid therefor.

Page 13 of 48

(b) Having regard to the nature of transactions between the

parties as contained in the lease agreement this Tribunal

cannot be said to have any jurisdiction over the subject

matter of dispute only because the parties happened to be

service providers and the subject matter of the agreement

is connected with realization of the subscription fee.

(c) The petitioner itself having terminated the agreement and

having been receiving feed from Digi Cable at least from

February, 2010, although the contention of the respondent

is that since July, 2009 the parties have ceased to have

relationship, no relief as has been prayed for can be

granted.

(d) The witnesses examined on behalf of the respondent

having not been cross examined on the said question the

petitioner must be held to have admitted the same.

(e) If the cause of action for this petition has arisen for

rendition of accounts, the same having nothing to do with

the agreement, this petition is not maintainable inasmuch

as, the lease document being not an inter connection

document, moreover the agreement operated on the

following terms:

1. The possession of the headend remained with the

petitioner.

Page 14 of 48

2. The respondent was supplying signals of channels

of various broadcasters.

3. The only job of the respondent was to attend to

the line faults and repair the machinery.

4. It had installed its own transmitter.
5. It used to collect the monthly subscription fee

along with an employee of the petitioner and for

the aforementioned purpose, the profit was to be

shared on fifty-fifty basis by the parties hereto.

(f) The provisions of the agreement would clearly go to show

that by reason thereof no relationship was created for

providing service.

(g) The petitioner has failed to prove that the list of the

subscribers contained in the petition is the same as

contained in Schedule B appended to the agreement.

(h) The entire case of the petitioner being based on the list of

subscribers, it was obligatory on its part to prove the

same.

(i) The petitioner having migrated to the network of Digi Cable

by taking dual feed from April, 2009, it is not entitled to

any relief as has been prayed for or otherwise.

Page 15 of 48

(j) This petition is an abuse of the process of court as

petitioner’s network has merged with the network of Raja

Cable which would be evident from the fact that it annexed

the same letters which had been filed by way of affidavit

by the same witnesses which were filed in the case of Raja

cable and moreover the father of the proprietor of Raja

Cable admittedly had been accompanying the witnesses of

the petitioner.

(k) PW-1, viz Sheikh Sehjad having not produced the affidavit

of Wahid, no reliance can be placed on the CD produced by

the petitioner. The witnesses of the petitioner viz Zuber

and Shakir, who have been examined by it for the purpose

of proving the recording of CD, cannot be relied upon in

view of the contradictory and inconsistent statements

made by them and moreover the said CD having been

produced at the instance of the police authorities, it is not

admissible in evidence.

(l) This Tribunal is entitled to consider the evidences brought

on record which were adduced in Petition No.83(C) of 2009

and Petition No.251(C) of 2009 as the pleadings in those

cases are admissible in evidence as public documents.

Page 16 of 48

Jurisdiction Issue

18. The fact that the respondent as a Multi Service Operator

had been supplying signals of channels of various broadcasters to

the petitioner’s network is not in dispute.

19. Supply of signals was to be made in a thickly populated

area of the town of Indore, commonly known as Khazrana. Apart

from the respondent, another prominent multi service operator,

having a Pan India presence known as Digi Cable presence, had also

indisputably been operating in the said area. The fact that said Digi

Cable had taken over the network of another local cable operator

known as Raja Cable is also not in dispute.

20. It is, thus, evident that the MSOs for all intent and

purport take over for their own commercial reasons, the networks

of the local cable operators. The terms and conditions of takeover of

such network either directly or indirectly would undoubtedly vary

from case to case.

21. The terms and conditions of the subscription agreement

as also the purported lease agreement dated 24.4.2008 are not in

dispute.

The terms of both the agreements have to be read conjointly.

A literal meaning thereto must be assigned. The terms of the

agreement dated 24.4.2008 stipulate that the petitioner had 1,230

consumers and had been collecting a sum of Rs.50/- per month

from each of them totaling Rs.61,600/-.

Page 17 of 48

22. The agreement was to remain for a period of three

years. The respondent has contended that it was to make

investment by way of installation of equipments. Modernisation of

the network was also felt/necessary. It had to make collections and

only upon adjustment of the expenses incurred, taxes paid, as also

upon deduction of the amount of subscription charges, the 50% of

the remaining amount was to be handed over to the petitioner

herein.

23. Improvement in the technology was also one of the

considerations for entering into the said agreement. Maintenance of

the network was to be taken over by respondent. Clause 5 of the

said agreement provides for supply of signals by use of optic fibre

cables. The interest of the respondent was to be fully protected.

There were several negative covenants against the operator. Not

only the petitioner but any member of its family had no right to

participate or enter into business relating to cable television

network even by becoming a supporter or partner of any such

business.

Maintenance of books of account was the job of the

respondent. The petitioner was not entitled to create any mortgage

or raise any loan on the basis of the said agreement or otherwise.

24. The petitioner had even no right to enter into any

negotiation with a subscriber relating to entering into a

subscription agreement without obtaining any written permission of

Page 18 of 48

the respondent. Even the giving of a proposal in that behalf was

forbidden.

25. For one reason or the other disputes arose between the

parties. There were threatenings of termination of the agreement

and consequent stoppage of supply of signals to the consumers of

the petitioner, whereupon a petition was filed by it which was

marked as petition No.83(C) of 2009.

26. By reason of an order dated 17.4.2009, the said

petition was disposed of as noticed heretobefore.

27. A public notice was issued on 2.7.2009, inter alia, on

the premise that the subscription agreement had not been entered

into and subscription fee had not been paid. It is true that

validity/legality of the said public notice was not challenged, but ex

facie it is difficult to conceive as to how having regard to the terms

and conditions of the aforementioned agreement dated 24.4.2008,

the petitioner was liable to renew the subscription agreement or

could become guilty of non-payment of subscription fee.

28. Enough materials have been brought on record to show

that for all intent and purport, the respondent was not only

supplying signals but also managing the network of the petitioner.

29. The respondent had made investments and the parties

contemplated that a period of three years would be taken by it to

re-coup its costs in terms of Clause 5 of the agreement.

Page 19 of 48

A composite agreement, therefore, was entered into. If

that be so, it is difficult to accept the submission that the network of

the petitioner was owned and controlled by it alone. Both the lessor

and the lessee can claim ownership.

30. The fact that a deed of lease was executed, being not in

dispute, it appears that the same was to be under the control of the

lessee only.

If the relationship between the parties were entered into

merely for the purpose of collection of the subscription amount, it is

difficult to conceive as to why the negative covenants had to be

incorporated in the agreement.

31. A right, subject to compliance of the regulatory

provisions, exists in all operators of a cable network to shift from

one MSO to another.

32. The background in which such an agreement was

entered into also is required to be borne in mind for construction

thereof. Having regard to the dispute amongst the MSOs various

areas of the town of Indore were divided and in respect of each of

the area purported to have been allocated to one MSO or the other

by reason whereof a monopoly was sought to be created.

33. The big MSOs, therefore, intended to have their control

over those LCOs who had a substantial number of subscribers. In

view of the provision of the cable TV Network Act 1995 and, the

rules framed thereunder, the Telecom Regulatory Authority of India

Page 20 of 48

Act, as also the Regulations framed by the TRAI in exercise of its

power conferred upon it under Section 11(1)(b) thereof, there

cannot be doubt or dispute that a service provider would not only

be a person who transmits or retransmits signals but also one who

has a substantial control thereover or in management thereof.

34. Since 2004 when broadcasting and cable services were

brought within the purview of the definition of `Telecommunication

services’, the nature of business has undergone a change. The

relationship is not only between the broadcaster and an MSO or

MSO and Local Cable Operator, both of whom would be distributor

of TV channels, having regard to the enormity of the number of

channels, stupendous increase in the numbers of the subscribers

and/or viewership of different TV channels, necessities must have

been felt by the broadcasters, the MSO and the Cable Operators to

outsource certain component of their essential functions.

35. It is probably in that view of the matter, the

broadcasters have also entered into a business of content

aggregator and have been taking over the net work of the same

MSOs, the MSOs in turn must have been taking over the control and

management of big LCOs.

36. In the aforementioned changing scenario, the meaning/

definition of these words must also be construed having regard to

the ground realities.

Page 21 of 48

37. Although, evasion of the provisions of the statutes

would not be presumed, but the very fact that a big MSO of the

status of the respondent had shown its inclination to take over the

network of a LCO clearly shows that it wanted to have a complete

control over the network of petitioner.

If what is now contended by the respondent is correct, it is

difficult to comprehend as to why in the earlier proceeding, it

accepted that it would continue to supply signals to the petitioner

uninterruptedly and furthermore agreed to abide by the terms of

the agreement.

It is also difficult to conceive as to why a public notice

should be issued which would defeat the very fabric of the

agreement itself. We, therefore, are of the opinion that this

Tribunal has jurisdiction to enter into the merit of the matter.

Subscriber Issue

38. The contents of the said agreement dated 24.4.2008

are not in dispute. The agreement itself specifies that the petitioner

had 1,230 subscribers. The details of the said subscribers are

contained in Annexure B appended thereto.

Before us, a list of subscriber has been produced in

which the name of the respondent finds place and thus presumably

the same was prepared by it. It runs into 22 pages. The list of

Page 22 of 48

subscribers are in two parts; one detailing the subscribers of the

Sheikh Sahajad and the other those of Amin Sheikh.

39. In terms of the said agreement, the respondent was to

employ persons for managing, maintaining etc. the network

subscription, maintaining the equipments, repairing defaults when a

complaint is lodged and to ensure that quality in supply of signal is

maintained as also realisation of the subscription amount.

40. The respondent is a company incorporated and

registered under the Indian Companies Act, 1956. It presumably is

an income tax payee. It is required to furnish/file various returns

before the Registrar of Companies. We, therefore, have no doubt in

our mind that respondent had been maintaining its books of

accounts.

41. Shri Jayant Agrawal RW-1, who is said to be the Direct

Connectivity (DC) Incharge of the respondent, in his affidavit has

furnished two tables; the first one providing for the details of

monthly collections and the share of the petitioner and the second

showing the payments made to the petitioner and his co-proprietor

separately.

In deviation of the terms of the agreement, however,

the said Shri Jayant Agrawal contended that the number of

subscribers of the petitioner was much less, being around 700-800.

42. He, in his cross-examination, stated as under:

Page 23 of 48

“Q: How many subscribers did the petitioner had

at the time of execution of the agreement?

A: As per the record of the petitioner, they had

1230 subscribers.

Vol. In fact there were around 700-800

subscribers only.

Q: Did you inform the petitioner that in reality the

number of subscribers was less?

A: Yes, we have informed them orally.”

It is difficult to accept that such a vital matter would not

be communicated to a LCO by a MSO of the status of the

respondent in writing.

So far as the quantum of the amount collected from the

subscribers is concerned, he stated that the same used to vary from

Rs.75,000 to Rs.80,000/- per month; although he could not specify

the exact amount as regards thereto. When asked as to what was

the amount collected from the petitioner’s network in January-

February, 2009, he could not prove the same stating that it was less

than the amount previously collected as the dispute had started

between the parties.

He, however, admitted that the statement of account

had not been filed with the reply.

43. It is of some interest to notice the following statements

made by him in his cross-examination :

“Q.16: Is it correct that before you started

collection from the customers of the petitioner,

you were introduced to the customers?

A: Out of the 1230 customers of the petitioners,

we were only introduced to 700-800 customers.

Page 24 of 48

Q.17: Did you collect subscription from 700 or

1230 customers?

A: We collected the subscription from about 700-

800 customers only.

Vol. The list that was given to us was for 1230

customers. But the collection was being received

from only 700-800 customers. This was within

the knowledge of the petitioner.

Q.18: Did you inform your higher authorities

about the reasons for not receiving subscriptions

from about 500 customers of the petitioners

network?

A: Yes.”

Why at least the competent authorities of the respondent company

did not take up the matter with the proprietor(s) of the petitionerconcern

is difficult to comprehend.

44. It is also pertinent to notice that despite the contention

that the relationship between the parties came to an end with effect

from April or July of 2009, Shri Agarwal in answer to a query as to

whether the respondents continued to supply signals in the

Khazrana area of the town of Indore, answered in the affirmative in

the following terms:

“Q.36: are you still giving your signals in Khajrana

area?

A: Yes.

Q.37: How many subscribers do you have at

present in Khajrana area?

A: About 1500.

…………………………..

Q.41: Is it correct that the three MSOs operating

in the Indore area have entered into an

agreement not to infringe upon each others

Page 25 of 48

locality after the demarcation mutually between

them?

A: Yes.

Q.42: When this agreement has been entered into

between the MSOs?

A: I cannot say it with certainty. Probably it took

place in April-May 2009.

Re-examination by Mr. Jayant Mehta, Ld.

Counsel for the respondent

Q: How many operators are there in Khajrana

area?

A: There are two major operators apart from the

petitioner. However, there are also small

operators, whose names I am not aware of.

Q: What is the connectivity of these two operators

and to which operator of the two does the

respondent supply signals?

A: Approximately 650-700. Respondent supply

signals to both the operators.”

45. Undoubtedly the respondent had special knowledge not

only with regard to the subscriber base but also of the payments

received from the subscribers disbursed to the petitioner. If it had

any doubt or dispute with regard to the details of the subscribers, it

was expected that it would file not only the original agreement but

also its books of accounts.

46. Mr. Aggarwal in his evidence accepted that the original

agreement is prepared only in one copy and kept with the company,

stating :

“Q: Can you tell as to how many copies of the

agreement are prepared?

A: One copy, original is kept with the company.

Q: Did you hand over the photocopy of the

agreement to the other party?

Page 26 of 48

A: Yes.

Vol. In some cases, when the operator has

insisted we have prepared two original copies of

the agreement, one for us and other for the other

party.

Q: How many copies of the agreement were

prepared in the case of the petitioner?

A: I do not recall.

Q: Do you affix the company’s stamp on the

documents executed by the company?

A: No.

Q: Can you recall the name of the witnesses in

whose presence the agreement was executed with

the petitioner?

A: I am not sure 100 % but may be Mr.

Sudhanshu Nagar and Mr. Farooq Shaikh.”

47. Why the said agreement has not been produced before

this Tribunal to show that the details of the subscribers given by the

petitioner in these proceedings is difficult to comprehend.

48. It should have produced the original agreement. It

should have produced the documents in its power and possession to

show that in fact it had been collecting subscription amount only

from 700 or 800 or at a later stage only from 500 customers.

It could have in the process shown that the petitioner in

violation and/or breach of the covenant of the agreement had been

collecting the same amount from its subscribers directly.

An adverse inference, therefore, must be drawn against the

respondent that had those documents been produced, the same

would have run counter to its contentions.

49. Moreover so far as the stipulations contained in the said

agreement dated 24.4.2008 are concerned, no contentions in

Page 27 of 48

deviation or departure therefrom can be permitted to be raised.

The exceptions provided for in Sections 91 and 92 of the Indian

Evidence Act should have been pleaded and proved by the

respondent in this regard.

We, therefore, are of the opinion that the respondent must be

held to have been realizing subscriber fee from all the 1230

subscribers.

CD Issue

50. With a view to show that the respondent had

continuously been supplying signals to the subscribers of the

petitioners, a CD was produced.

51. The backdrops of events relating thereto may be noticed

in this regard. The fact that petitioner has filed the aforementioned

Petition No.83(C) of 2009 is not in dispute. It appears that one

Raja Cable had also filed a petition wherein the petitioner was a

party. It is contended by the respondent that the network of Raja

Cable and the petitioner have merged Raja Cable filed a petition

before this Tribunal which was marked as Petition No.251(C) of

2009. The petitioner was a party thereto. A settlement was arrived

at therein by and between the said Raja Cable and the petitioner

which was reduced in a Memorandum of Settlement, on the basis

whereof the said petition was disposed of by an order dated

3.11.2010.

Page 28 of 48

52. Reference to the records of the said two petitions were

sought to be made by Mr. Mehta.

According to leaned counsel, the deposition of the

witnesses in the said case are admissible in evidence in this case

also.

We do not agree.

The deposition of a witness in another proceeding would

be admissible in evidence only in term of Section 145 of the Indian

Evidence Act.

Mr. Mehta would contend that the deposition of the

witnesses in the earlier case would be admissible in evidence being

public document within the meaning of Section 74 of the Indian

Evidence Act.

Section 74 of the Indian Evidence Act defining public

document ex facie also do not bring within its purview deposition of

a witness in an earlier case so as to make it admissible per se

although the attention of the concerned witness was not drawn

thereto.

Reliance has been placed by Mr. Mehta on Narsimaha

Ramarao vs. Venkatramanaiya. AIR 1940 Mad 168. With respect

we do not think that the said decision lays down the law correctly.

What would be the public documents have categorically

been specified in Section 74 of the Act. A public document would

ordinarily mean a document which is open to all, capable of being

Page 29 of 48

known or observed by all. It may signify having an interest for

persons in general.

A private document filed in court does not become a

public document.

53. The respondent sought to rely upon the record of the

said cases only while the witness was being cross-examined. Before

the Assistant Registrar the records were called for. They were not

filed in the present proceeding or had been called for earlier.

Neither the parties nor the witnesses had any prior notice

thereabout. A witness before a count of law must be treated fairly.

The said documents have not been proved. Even the certified

copies thereof were not filed.

We may notice the relevant the statements in this

behalf.

“Q. Have you filed any document on the record to

show that as on date, your customers are getting

signals from the respondent?

A.No.

(Witness is shown page 91-F of the paper book in

Petition No.251(C) of 2009)

1. Does this document contain your signatures?

(Ld. Counsel for the petitioner objects on the

ground that document at page 91(F) has not been

filed in the present proceedings or exhibited.)”

54. The learned counsel for the petitioner, we may notice,

has raised a general objection to all the questions relating to Raja

Cable.

Page 30 of 48

We cannot persuade ourselves to agree with the said

contentions.

In Gulab Chand & Ors. vs. Sheo Karan ;Lall Seth and

Ors. AIR 1964 Pat 45 it was held:

“What are public documents are stated in Section

74 of the Evidence Act: Documents forming the

acts or records of the acts of the sovereign

authority, of official bodies and tribunals, and of

public officers, legislative, judicial and executive,

of any part of India or of the Commonwealth or of

a foreign country have been described as public

documents. I cannot see how a plaint filed by a

private person in Court to institute a case against

some others can come within the descriptions of

the documents given in that sub-section. Subsection

(2) of Section 74 can in no way include a

plaint. The plaint is neither an act nor the record

of an act of any public officer. There can be no

strength in the contention that when the plaint is

presented and the Court makes an order

admitting or registering it, the plaint becomes an

act or the record of an act of a public officer

presiding over the Court. At the most, it will

become a part of the record maintained by the

Court in that case after the plaint is admitted and

registered, but that itself will not make it a public

document. If it were, then anything filed in a case

in a court of law either petitions or pleadings,

private communications or documents which a

party would file in a case would become public

documents for the simple reason that they are on

the record of a case in Court.”

See also Jagdishchandra Chandulal Shah vs. State of Gujarat &

Ors. 1989 (095) CRLJ 1724 (GUJ).

55. The petitioner, however, had been taking supply of

signals from Raja Cable from 2007. It had only 58 channels. It

Page 31 of 48

might have started supply of signals of pay channels according to

the said witness around the year 2008 or 2009. It was the said

Raja Cable which had laid the optical fiber cables and the

distribution lines in analogue cables which were being used by the

petitioner for transmission of signals.

It is, however, stated that the respondent had relaid the

cables.

We may notice the following statements of PW1 in his

deposition:

“Q: Do you have any subscribers as on date or

not?

A: No.

Q: Till when you gave subscription charges to B

TV?

A: I have never paid any subscription charges to B

TV .

Vol. In fact, they were to pay me amounts as per

the agreement.

Q: If the cables of petitioner’s network still exist

or pass through your residence?

A: No.

Q: When were the cables removed from your

residence?

A: Around March-April 2009.

Q: Who installed Optical Fibre Cables in your

area?

A: B TV.

Q: At the time, when you were running your

network in 2007-2008, did you install OFC in your

network?

A: OFC was laid by Raj TV. The main line is OFC

and the distributing lines are analog cables. I was

transmitting signals through analog cables.

Q: Are the analog cables still existing in your

network as they were in 2007-2008?

A: No.

VOl. B T V has re-laid the cables.

Page 32 of 48

Q: Have you raised any objection in writing when

B TV was relaying cables?

A: No.

Vol. We told them orally.

Q: When did B TV relay the cables?

A: After our agreement, they made changes.

Q: Have you sought signals from any MSO to

restart your network?

A: No.

Vol. Nobody would give us.

Q: Have you stated about B TV’s relaying of the

cables in these proceedings?

A: Yes.

Q: What is the cost of a transmitter?

A: Approximately Rs. 18,000/- – Rs. 20,000/-.

Q: Have you tried to purchase another transmitter

to restart your network, since you say that the

respondent had taken away your transmitter?

A: No.

Vol. I do not need to purchase another transmitter

since my network is with B TV.

Q: Can you show any document showing that

your network is with BT V as on date?

A: Yes, I have filed a CD.

Q: Do you have any other document except the

CD showing that your network is with B TV as on

date?

A: No.

56. It appears that a criminal case was initiated by Raj TV

Cable.

The police authorities while making investigations

entrusted the matter relating to preparation of CD to two persons

Mr. Zuber (PW-3) and Mohd. Shakir Khan (PW-4).

Mr. Zuber in his evidence sought to prove preparation of

CD stating :

“3. That we also talked with the people where we

did recording they told us that Bhaskar Hathway is

Page 33 of 48

running signals on their TVs and they are making

payment to them.

4. That video shooting was conducted in the

houses of the 1243 connections list handed over

to us by the SHO Khajrana. In all the house

where we went for shooting we found signals of

Bhaskar Hathway running on televisions. We also

talked with people of locality they stated that

signals of Bhaskar hatchway are running on their

television sets.”

We may notice the statements in cross-examination in

extensor to show, even otherwise the said CD has not been proveed

in accordance with law.

He in his cross-examination stated as under:

“(witness is shown para 2 of his affidavit)

Q: Is the order dated 26.2.2010 referred to by

you, in writing?

A: No.

Vol. One policeman had come to my residence and

asked me to report to Police Station.

Q: Were you given anything in writing in the

Police Station?

A: No.

Now says, a list was given.

Q: Are you a cable operator?

A: No.

Q: Who gave you the list, as stated by you above,

in the Police Station?

A: There was a dispute between the petitioner and

Raja Cable and also the respondent.

Q: Who gave you the list?

A: One police official.

Q: What were you told?

A: I was told to verify as to whether the persons

on that list were getting signals from B TV.

Q: Were you given any copy of the complaint/FIR

at that time?

A: No.

VOl. I was told orally.

Page 34 of 48

Q: Whether any police man had accompanied

you?

A: I am not sure. I think one police man in civil

uniform may have gone with us.

Q: Would you remember the name of the police

man who gave you the list?

A: No.

Q: Is it correct that you are not engaged in the

profession of Photography?

A: Yes.

………………………………

Q: Who prepared the CD after the video shoot?

A: I did not prepare it. The camera man made it

at my instructions.

Q: Did you pay any amount to the camera man

for preparation of CD?

A: No.

Q: Where is the video cassette from which the CD

was prepared?

A: It is with the police station.

Q: Where was the CD prepared?

A: I have no idea.

Q: When the CD was prepared?

A: After about a day or so of the video shoot.

Q: Have you signed any other affidavit except for

your affidavit at page 39 of the Evidence Folder, in

any other proceedings before this Tribunal?

A: No.

Q: Were you present at the time of preparation of

CD?

A: No.

Q: Have you filed the list which was given to you

by the police authorities, on the record?

A: I have no knowledge.

Q: Have you prepared any report after

completion of your visit for video shoot?

A: No.

Vol. All of us (including myself) tick marked the

list given to us.

…………………………………….

Q: How many names were there in the list?

A: The list was over 100 pages.

Now says, more than 1,000 names.

Page 35 of 48

Q: Did the list contain the addresses of all the

persons?

A: Yes.

Q: Did you visit all the homes of the persons

contained in the list provided to you?

A: No.

Q: Is it correct that the video shooting was done

only for 4-5 houses?

A: Yes.

Q: Have you recorded the statements of the

persons you visited, in writing?

A: No. Their statements were video recorded.

Q: Does the list bear the signatures of petitioner

or the respondent?

A: I have no idea.

Q: Have you filed the six CDs prepared, on the

record?

A: No.

Vol. CDs were given to different persons.

Now says, that all the CDs were given to the

police persons at the police station.

Q: Did you see any document whereby the names

of the persons contained in the list given to you

were shown as the customers of any particular

cable operator?

A: I saw the list and the list mentioned that they

were customers of the petitioner. I did not see

any other document apart from that list.

Q: Have you filed the receipts collected by you

during the video shoot on the record?

A: I have no idea.

Q: Do you know how many partners are there in

the petitioner?

A: there are no partners.

Q: How many signal providers are operating in

Khajrana?

A: Two-Digi Cable and B TV.

Q: How many cable operators are operating in

Khajrana?

A: Around 4 operators namely Nagar, Raja Cable,

S S Cable and one Nilesh Patedar.

…………………………..

Q: In your affidavit you have stated that the video

shooting was done in 1243 households/customers

while today you have stated that the video

Page 36 of 48

shooting was done only for 4-5 houses. Which of

the fact is correct?

A: We have done video shooting for 4-5 houses

and met about 20-25 persons.”

57. Mohammad Shakir Khan in his evidence stated :

“2. That on 26.02.2010 SHO of Police Station

Khajrana ordered me to become part of camera

team to conduct the home to home video shooting

of TV channels running on Television of the people

of Khajrana area. I got the signals of Hathway

Bhaskar running on televisions. BTV News

Channel was also found running on the

televisions. Live shooting of TV channels in

several houses for about 4-5 hours was conducted

by the cameraman Waheed and he prepared 6

sets of CDs.

3. That we also talked with the people where we

did recording they told us that Bhaskar Hathway is

running signals on their TVs and they are making

payment to them.

4. That video shooting was conducted in the

houses of the 1243 connections list handed over

to us by the SHO Khajrana. In all the house

where we went for shooting we found signals of

Bhaskar Hathway running on televisions. We also

talked with people of locality they stated that

signals of Bhaskar Hathway are running on their

television sets.”

He, however, in his cross-examination to a large extent

contradicted the evidence of Zuber in the matter of preparation of

CD.

“Q: Is it correct that you are not engaged in

the profession of Photography?

A:Yes.

Q: Is the order referred to by you in para 2 of

your affidavit, in writing?

A: No.

Q: When were you called to the police station?

Page 37 of 48

A: On 11.2.2010, after the report of Mr. Wasim

Khan.

Q: Are you aware as to what was the report

filed by Mr. Wasim Khan?

A: Yes. The report was that Raja Cable had

filed a case against B TV and had succeeded in

that case. However, despite the orders of the

courts, B TV’s signals were continuing.

Vol. The SHO told us on 11.2.2010 that all

such persons who are acquainted with Raja

Cable and S S Cable should go and conduct a

verification.

Q: Was any such instruction as referred to by

you in your previous reply in writing?

A: No. It was oral.

Q: Were you paid for your visit?

A: No.

Q: When did you conduct the verification?

A: On 11.2.2010.

Now says, 26.2.2010. I was confused. It was

a slip of tongue.

Q: Were you called in the police station on

26.2.2010?

A: No. I was called only on 11.2.2010.

Q: Who told you to conduct verification on

26.2.2010?

A: Mr. Shezad Amin told us that we have to go

for a video shoot and we mutually decided to

go on 26.2.2010.

Q: Did you meet any police official on

26.2.2010?

A: Yes. One police man accompanied us.

Q: Was the police man in uniform or in civil

clothes?

A: He was in uniform.

Q: Did the police man carry any document with

him?

A: No.

Page 38 of 48

Vol. We were given a list at the police station

of 1243 connections of S S Cable.

Q: Have you counted 1243 connections in the

list given to you?

A: No.

Q: Have you visited all the 1243 houses?

A; No.

Q: How many houses did you visit?

A: Around 40-50 houses.

Q: Have you mentioned about your visit to 40-

50 houses in your affidavit?

A: No. I have mentioned about 20-25 houses

in my affidavit.

Q: How many houses have you video shot?

A: Only 10-12 houses.

Vol. After that there was an electricity failure.

Q: Whether the CD was prepared in your

presence?

A: Yes.

Q: Did you prepare the CD?

A: No.

Q: When was the CD prepared?

A: After about 3-4 days of the video shoot.

Q: In whose possession is the video cassette

on the basis of which CDs were prepared?

A: I have no idea.

Vol. Around 5-6 CDs were deposited in the

Police Station.

Q: Have you filed any of those 5-6 CDs on the

record?

A: We have filed a copy of those CDs on the

record.

Q: Did you prepare the copy of the CD filed on

record?

A: No.

Page 39 of 48

Q: Whether the copy of the CD was prepared

in your presence?

A: Yes.

Q: Who prepared the copy of the CD?

A: It was prepared at a shop. I do not

remember the name.”

58. It is, therefore, difficult to accept that the CD has been

proved in accordance with law. An electronic document must be

proved in terms of the provisions of Section 65B of the Indian

Evidence Act. The person who has prepared the CD must say so

clearly as it pertains to a matter which related to a criminal

proceeding. It was, thus, obligatory on the part of the petitioner to

scrupulously follow the procedures laid down under the law.

59. From the evidence of Mr. Zuber or Mr. Mohd Shakir who

have deposed before this Tribunal, it is evident that there exists

inconsistencies and contradictions with regard to:

(i) the mode and manner in which the CD was prepared;

(ii) at whose instance the same was prepared,

(iii)how many houses were visited,

(iv)how the CD was prepared or copied,

(v) payments made to the persons concerned for preparation of

the CD and/or copies thereof as also the cost of shooting etc.

60. Why PW-3 and PW-4 were entrusted with the said

operation by the police authorities have not been shown. They are

not in the profession of shooting films or preparation of CDs. The

Page 40 of 48

least which could have been done was to summon the records from

the police station and/or if any charge-sheet has been filed, to

produce the same. There are some minor contradictions as to

whether a police officer accompanied the said witnesses in uniform

or was in plain clothes and/or such other minor discrepancies but

having gone through the evidence of the witnesses, we have no

doubt in our mind that the CD in question has not been proved in

accordance with law.

Re: Accounts

61. According to the respondent the petitioner has been

paid the entire amount as stipulated in the agreement. Receipt of

payment of a sum of Rs.2,98,000/- is not in dispute. The petitioner

also does not dispute that a sum of Rs.1,39,801/- has been paid to

Sheikh Sehjad and a sum of Rs.1,45,987/- has been paid to Shri

Amir upto February, 2009.

62. The respondent along with the reply has filed a large

number of receipts being Annexure P-8 thereto. From the said

receipts it appears that varying sums were collected from the

subscribers running from Rs.50 to Rs.200/- although in majority of

the cases the amount collected was for a sum of Rs.100/-.

63. The petitioner contends that it would appear on a

comparison of the receipts granted to one Amin Bhai having a petrol

Page 41 of 48

pump would tally with the name of the subscriber which is at page

41 of the paper book.

64. It furthermore appears that receipts have been granted

either in the name of the respondent or in the name of one P.R.

Enterprises.

We do not know on what basis the statement has been

prepared. The basic documents have not been filed. The tables

appended to the affidavit are not the subject matter of reply. How

much amount the respondent realized from the subscribers had not

been stated. Whether any amount had been collected by the

respondent from March, 2009 from the subscribers of the petitioner

is also not known.

65. It is also difficult to arrive at a firm conclusion that the

accounts between the parties have in fact been settled.

66. The petitioner in the petition has claimed a sum of

Rs.23,77,036/-, inter alia, on the premise that the respondent must

have realized a sum of Rs.150/- per month per subscriber from all

the 1,230 subscribers for the period from 1.5.2008 to 31.4.2009

and 1.5.2009 to 22.2.2010 i.e. at the rate of about Rs.1,84,500/-

per month minus the costs and, thus, the amount received by them

would come to about Rs.2,98,240/-.

67. There was absolutely no reason as to why the

respondent did not file its books of accounts or other documents.

Apart from the fact that it did not file any document along with its

Page 42 of 48

reply, it made only certain vague statements in that regard

contending:

“E&F. The contents of paras E & E are wrong

and denied. It is denied that the Respondent did

not share the details of the amounts collected with

the Petitioner or delayed settling the accounts

with the Petitioner. As a matter of fact, the

accounts between the parties stand drawn and

settled. There are no dues from the Respondent

to the Petitioner. As a matter of fact, the

Petitioner is already running his network by taking

feed from a rival MSO. The migration of the

Petitioner to the rival MSO was without settling

the subscription amounts owed by it to the

previous MSO and as such, it was in deliberate

and intentional disregard of the provisions of the

Interconnect Regulations. The petition does not

establish any dues in favour of the Petitioner or

any amount whatsoever. The petition is vexatious

and filed after dismissal of another petition filed

by M/. Raja Cable qua the Respondent. The reply

verily believes that there is a distinct identity

between the Petitioner and M/s. Raja Cable and

the present petition is a contrivance and the

subterfuge adopted by M/s. Raja Cable in

connivance with the Petitioner. In fact, the

Petitioner and M/s. Raja Cable have engaged in

collusive litigation so as to deny the dues to the

Respondent and the previous MSO and to abuse

the process of law. The Respondent craves leave

to refer to and rely on all such documents.”

68. The reply of the respondent has been verified by one

Shri Ram Prakash. He verified the statements made in the reply as

true to his personal knowledge derived from the official record

maintained in due course.

69. The said Shri Ram Prakash has not been examined.

Even Shri Jayant Agrawal was not even otherwise authorized by any

Page 43 of 48

competent authority. While verifying his statements in his affidavit

he stated that the same were true to his personal knowledge

derived from official records. Both do not go together. We may

notice that the said affidavit was filed on 30.5.2011 i.e. after the

cross-examination of the witnesses of the petitioner was over on

5.3.2011.

70. Moreover, the respondent itself has examined one

Farooq Sheikh. He was working as Collection Executive Technical

with the respondent company. He in his cross-examination

admitted that some other persons including Shri Dinesh had also

been making collections. His attention was drawn to various

documents including the receipts. He accepted and identified his

signature and that of Dinesh as also others on some of the receipts

although refused to identify some of the them.

He, however, did not identify some of the receipts.

According to him the total amount collected by him was only

Rs.38,000/- to Rs.40,000/-.

He accepted that all the amount used to be handed over to

the cashier of the respondent company.

71. It has not been explained by him or by Shri Agarwal as

to why receipts were being issued in the names of two different

entities.

72. We, therefore, are of the opinion that the respondent

has withheld some vital documents. They are bound to render

Page 44 of 48

accounts particularly in view of the fact that they had been

continuously collecting the amount from the subscribers.

Re: Maintainability

73. An issue has been raised as to whether the petition in

the present form is maintainable. Ordinarily we would not have

entertained the petition as the petitioner states that it is not strict

sensu a proprietorship concern but there is another co-proprietor,

namely, Shri Aneesh.

It, however, stands admitted that the respondent was

all along aware of the said fact. The number of subscribers have

been shown to be belonging to two different persons.

74. The respondent had been collecting the subscription

amount from the subscribers directly and distributing the amount to

them separately. Both the joint proprietors of the petitioner

concerned have also been examined before us. They have also

been cross-examined. In that view of the matter keeping in view

the status of the petitioner we are of the opinion that this petition

may not be dismissed on the said technical ground.

Mr. Mehta would contend that the petition should be

dismissed also on the ground that for all intent and purport, the

present litigation is being fought by M/s Raja Cable.

We are, however, of the opinion that it is not the case of

the respondent that for all intent and purport there has been an

Page 45 of 48

assignment of the interest of the petitioner in favour of the said M/s

Raja Cable.

75. Mr. Mehta has, as indicated heretobefore, submitted

that after the Petition No.251(C) of 2009, M/s Raja Cable has taken

over the network of the petitioner.

A settlement was arrived at which is yet to be acted upon and

M/s Raja Cable had been showing interest in this litigation only for

the said purpose.

Equity Issue

76. The relationship between the parties hereto is not in

dispute. Both the parties are obligated to discharge their respective

contractual obligations in terms of the said contract. In fact the

respondent has clearly stated before this Tribunal in Petition

No.83(C) of 2009 that it would do so.

77. We, in this petition, are only concerned with the

enforcement of the contractual obligations between the parties.

The agreement concerns a relationship emanating from the

management of a network, supply of signals to the subscribers and

collection of subscription fees from them as also appropriation

thereof. In that view of the matter the question of dismissal of the

petition only on the ground that the petitioner has arrived at some

sort of settlement with Raja Cable, in our opinion, would not by

Page 46 of 48

itself a ground to deny the reliefs sought for by the petitioner

herein, if it is otherwise entitled thereto.

78. Mr. Mehta would submit that the petitioner is guilty of

delay and latches. It may be so, but then, the petitioner herein has

not claimed any equitable relief. It is not a case where the doctrine

of `delay defeats equity’ can be invoked.

79. The petitioner has served at least one notice upon the

respondent. Whether any other notice has been issued or delivered

in our opinion is wholly immaterial. Submission of Mr. Mehta,

therefore, that the petitioner remain completely inactive till

November, 2010 when the present petition was filed and thus

inaction on the part of the petitioner should be sufficient to deny

any relief to it cannot be accepted.

Conclusion

80. It is also not necessary that the petitioner was obligated

to file the first information report so far as taking over its network is

concerned. We, however, find some justification subject, of course

to the verification thereof that as RW-1 had admitted that the

respondent has 1500 subscribers and there are only two operators

it is possible that the respondent has taken over all the subscribers

of the petitioner which upon termination of the agreement was not

permissible in absence of any evidence to show that the subscribers

Page 47 of 48

have opted to switch over to the network of the respondent

voluntarily.

81. We, therefore, are of the opinion that in the interest of

justice a preliminary decree should be passed directing the

respondent to render accounts.

For the said purpose a Commissioner may be appointed.

The parties shall also produce before the learned Commissioner all

the documents to show as to whether the respondent had continued

to supply signals to the subscribers of the petitioner and if so to

what extent.

82. In the event it is found that the subscribers have not

voluntarily migrated to the network of the respondent upon

termination of the agreement, the amounts which have been

collected by the respondent from the said subscribers with reference

to the rate of subscription fee should also be computed.

83. The learned District Judge, Indore is hereby requested

to appoint a Commissioner for the aforementioned purpose on such

remuneration and on such terms as he may deem fit and proper.

84. The parties hereto shall bear the fees and expenses of

the learned Commissioner in equal proportions.

85. Learned Commissioner is requested to submit a report

before this Tribunal within two months.

Page 48 of 48

Let a preliminary decree be prepared on the

aforementioned basis.

Put up after three months.

(S.B. Sinha)

Chairperson

(P.K. Rastogi)

Member

September 12, 2011

`anu’