Culver Max Entertainment Private Ltd. vs Multicity Digital Consortium Private Ltd. & Ors

This present Petition, under Section 14, read with Section 14A of the Telecom Regulatory Authority of India Act, 1997 (As amended upto date) (hereinafter referred to as “TRAI Act”), has been filed by Petitioner, Sony Pictures Networks India Private Limited, against Multicity Digital Consortium Private Limited & seven Others, Respondents, with a prayer for a decree, against Respondent No. 1, and in favour of Petitioner, for an amount of Rs. 47,39,820/- (Rupees Forty Seven Lakhs Thirty Nine Thousand Eight Hundred and Twenty Only), alongwith interest, @ 18% per annum, for the period of delay in making the payment, with a further mandate that Respondent No. 1 to be not entitled to receive signals from the Petitioner’s channel, and has flouted the license conditions, granted by Ministry of Information and Broadcasting, as well as Regulations of TRAI. Subsequently, vide order of this Tribunal, Respondent Nos. 6 and 7 i.e., Thamizhaga Cable TV Communication Pvt., Ltd., Chennai and V K Digital Network Pvt., Ltd., Chennai, were got deleted from the array of parties.

Subsequently, owing to change of the Petitioner Company, and in compliance of order of this Tribunal, Culver Max Entertainment Private Ltd., was substituted as a Petitioner, at the place of Sony Pictures Networks India Private Ltd.

In brief, the contention of Petition is that, the Petitioner is a Company, registered under the provisions of the Companies Act, 1956, having its registered Office at 4^th Floor, Interface Building No. VII, Off Malad Road Link Road, Malad (W), Mumbai – 400064, having its branch Office at 5^th Floor, DLF Building No. 10, Tower – B, DLF Cyber City Phase – 2, Gurugram – 122002. The Sony Pictures Networks India Private Limited, a Company incorporated under the Companies Act was a broadcaster of its channels, namely, AATH, SONY YAY!, SONY MARATHI, SET MAX, MAX 2, MAX HD, SET PIX, PIX HD, SAB, SAB HD, SET, SET HD, SIX, PAL, SONY BBC EARTH, SONY BBC EARTH HD, TEN 1, TEN 1 HD, TEN 2, TEN 2 HD, TEN 3, TEN 3 HD, SONY WAH & SIX HD.

The Respondent No. 1, is Multi System Operator (MSO), engaged in the business of re-transmission/ distribution of television channels, to its affiliated cable operators, and direct subscribers in Tamil Nadu and Karnataka, under the name, Multicity Digital Consortium Private Limited. Respondent Nos. 2 to 5 are the Directors of this Respondent No. 1. Respondent Nos. 6 and 7, were also Multi System Operators, who had started providing signals to the Local Cable Operators, who were receiving the signals from the Respondent No. 1, without even calling upon the said LCOs to produce a no-dues certificate. Accordingly, Petitioner had sought relief restraining those two Respondents, from providing signals to the LCOs of Respondent No. 1, without due compliance with the provisions of the Regulations. But, as those two Respondents have been deleted from the array of party, hence, this relief against them became infructous.

The present Petition was signed and verified by Ms Sapna Chaurasia of Petitioner Company, who had been duly authorized to sign and affirm legal proceedings, for and on behalf of Petitioner Company, vide the Board Resolution Letter, annexed as Annexure - P1 to Petition.

Both of the parties herein above, are involved in providing broadcast signals to the ultimate subscriber. Hence, they are covered under the scope and ambit of the term ‘Service Provider’ as defined in Section 2(j) of the TRAI Act.

The subscription agreement, dated 25.02.2019, was got entered in between, whereunder the Petitioner authorized the Respondent No. 1 to re-transmit its signals in the DAS notified areas of Tamil Nadu, which was got renewed from time to time, and area was also got expanded for Karnataka too. A copy of the subscription agreement, dated 25.02.2019, signed/executed by and between the parties hereto, along with the acknowledgement of receipt of the subscription agreement by the Respondent, along with renewal letters are Annexure – P2 (colly) to Petition. As Respondent, vide its letter, dated 09.06.2020, requested the Petitioner for expansion of authorized territory, to include Karnataka, the same was got accepted by Petitioner, vide Letter, dated 12.06.2020. This letter of request, written by Respondent, for expansion of territory, dated 09.06.2020, as well as the acceptance letter, dated 12.06.2020, of Petitioner are Annexure – P3 and P4 respectively to Petition.

With effect from 12.06.2020, Respondent began to re-transmit the signals of Television channels of Petitioner in the State of Karnataka, in addition to Tamil Nadu. The Petitioner at all relevant times, continued to provide the signals of its channels to the Respondent, which have been enjoyed by Respondent, without any disruption, in the territories serviced by Respondent. Accordingly, the Petitioner regularly raised invoices on the Respondent towards subscription dues payable on a monthly basis. The said invoices were duly delivered on the Respondent. At no point of time, did the Respondent ever raised any disputes, regarding the invoices so raised by Petitioner. Copies of the invoices, raised by the Petitioner, on the Respondent, for area of Tamil Nadu and Karnataka respectively, and duly received by Respondent are Annexure - P5 (colly) as well as Annexure – P6 (colly), respectively.

Despite receipt of the invoices, raised by the Petitioner, the Respondent has deliberately failed and neglected to clear the dues. Even after repeated requests, the dues were not cleared. In view of the repeated failure of the Respondent to make payments towards the monthly subscription charges, due and payable to the Petitioner, the Petitioner was constrained to issue a disconnection notice, dated February 26, 2021, in terms of the provisions of the Telecommunications (Broadcasting and Cable) Services Interconnection (Addressable System) Regulations, 2017. This disconnection notice is Annexure - P7 to Petition. Despite receipt of the aforementioned disconnection notice, dated February 26, 2021, the Respondent failed to clear the outstanding subscription charges due and payable to the Petitioner. Hence, the supply of signals by Petitioner to the Respondent was got disconnected on April 03, 2021. The outstanding subscription charges, due and payable by Respondent to the Petitioner, for the authorized territory of Tamil Nadu stood, in the tune of Rs. 41,72,109/- (Rupees Forty One Lakhs Seventy Two Thousand One Hundred and Nine Only), and for authorized territory of Karnataka it was Rs. 5,67,711/- (Rupees Five Lakhs Sixty Seven Thousand Seven Hundred and Eleven Only). Hence, the total outstanding subscription charges due and payable by Respondent to the Petitioner stood Rs. 47,39,820/- (Rupees Forty Seven Lakhs Thirty Nine Thousand Eight Hundred and Twenty Only). A copy of Statement of Account, demonstrating the outstanding amounts payable, by Respondent to the Petitioner, for Tamil Nadu and Karnataka respectively are Annexure – P8 and Annexure – P9 to Petition. Vide notice, dated May 06, 2021, the Petitioner once again called upon the Respondent to clear the outstanding dues payable to the Petitioner. But, despite receipt of the said notice, it was not honoured. This subsequent notice, dated 06 May 2021 is Annexure 10 to Petition.

A cause of action, within the jurisdiction of this Tribunal, within period of limitation, for outstanding arrear in the tune of Rs. 47,39,820/- (Rupees Forty Seven Lakhs Thirty Nine Thousand Eight Hundred Twenty Only) had arisen. Hence, this Petition with above prayer.

It is also mentioned that the rights of the broadcaster cannot be allowed to be defeated, by any operator, from whose network, the signals are likely to be disconnected, or have been disconnected, and who is apprehended to seek to unauthorized run the signals. In effect, the broadcaster is the owner of the copyright of the channel and programme, run on the said channel, and as such, without obtaining a license from the broadcaster, being of the owner of the content, the MSO i.e., the Respondent is not entitled to broadcast/ re-transmit/distribute the said channel on its network, in any manner whatsoever, pursuant to the disconnection of the signals, in accordance with law. Thus, the apprehension of the Respondent’s intent to run the said channels unauthorizedly exists and further, the Respondent is aware that it will require the said channels on its network. Hence, in all likelihood of unauthorized indulgence in re-transmission of the Petitioner’s channel, the subsequent relief of mandate restraining the Respondent from indulging in unauthorized and illegal retransmission of signals, has been prayed for. It is also imperative that all the assets, especially the fixed assets, belonging to the Respondent No. 1, alongwith the entire technical equipment, like CAS, SMS, STBs, Viewing Cards, and such like equipment, shall be maintained by the Respondent No. 1, in order to honour the liability, towards the Petitioner. But, in the likelihood of apprehension of defeat of rights of Petitioner, this property may be sold to a third party-MSO, or shy away from the jurisdiction of this Tribunal, in adhering to the orders and decree passed by this Tribunal. Hence, an order, restraining the use of these properties, by any third party MSO, for catering to the same LCOs, as well as subscribers, using the same equipment, is also prayed for.

A reply, for and on behalf of Respondent No. 1, a Company and Respondent Nos. 2 to 5, its Directors, has been filed with contention that this recovery Petition is the abuse of the process of law, because the amount claimed in this Petition is unjustified, illegal, unfair and not tenable in the eyes of law. The Petitioner had concealed a series of facts, ought to be brought before this Tribunal. The few of the emails, on the basis of arbitrary policy of pick and choose, has been annexed with the Petition, which is against the principle laid down by Hon’ble Apex Court in Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC. The Petitioner had failed to provide signals to the Respondent on a non-discriminatory basis, as despite the fact that Section 3.2 of the extant Interconnection Regulations, clearly provides that the broadcaster has to provide signals to the distributor on a non-discriminatory basis, the Petitioner failed to abide by the same. In blatant breach of said legal obligation, the Petitioner offered good deal and executed, fixed fee deals with big rival MSOs, namely Siti Cable Networks Ltd., GTPL etc. As a result, the said MSOs were not required to pay the Petitioner as per subscriber basis and therefore, the said MSOs offered Cable TV Services to LCOs at cut throat cheap rates. As a result, the LCOs of the Respondent, migrated to said MSOs without even clearing the outstanding dues of the Respondent. The Petitioner may be ordered to produce the Interconnection Agreement, signed between it and the said rival MSOs, computer generated MSR reports furnished by said rival MSOs to Petitioner, bank account statements of Petitioner and rival MSOs, and any other agreement executed between the Petitioner and said rival MSOs. From the very perusal of said document, the very contention of Respondent will be brought on record. The Petitioner was involved in selling its channels through a so-called over the top (OTT) platform namely, ‘SONY LIV’ and is providing its channels to the subscribers through SONY LIV at a price less than that at which, Petitioner is giving channels to Respondent, due to which numerous subscribers of the Respondent shifted to OTT platform. SONY LIV platform is with all SONY Channel, in HD quality, available over it at the rate of Rs. 999/- per year. Further, the subscriber is granted access through multiple devices including Mobile Phones, Laptops, Television and I-pad/ Tablets. This scheme, as a screenshot, is Annexure - R/1 with reply. For Rs. 999/- per year subscription plan of SONY LIV, the customer can enjoy all Sony programmes on upto 3 devices simultaneously. Therefore, the effective price of all SONY Channels on ‘SONY LIV’ will be Rs. 333/- per month for each such device, which was much less than the subscription charge imposed upon Respondent. Petitioner was involved in illegal distribution of Live streaming channels belonging to it, as it does not have the permission from Ministry of Information and Broadcasting, to distribute its signals to the ultimate subscribers. Hence, this illegal distribution, by the Petitioner, apart from being threat to the security of our country, as well as the fixed fee agreement, got executed between the Petitioner, and the big rival MSOs, a non-level playing field was got created by Petitioner qua Respondent, and other similarly placed MSOs, causing huge suffering and losses to them, resulting the stoppage of LCOs in making their payments to Respondent and other alike MSOs. This biased and non-level playing field, created by the Petitioner, has led to causing financial hardships for the Respondent, as approximate Rs. 24,00,00,000/- (Rupees Twenty-Four Crores Only), which remained unpaid by LCO to Respondent. This includes outstanding subscription fee in the tune of Rs. 3,00,00,000/- (Rupees Three Crores Only) and cost of STBs unreturned in the tune of Rs. 21,00,00,000/- (Rupees Twenty-One Crores Only). This balance sheet is Annexure - R/2 to reply. Petitioner had also engaged its employee, as well as local sales representative, for door to door marketing of ‘SONY LIV’ amongst to subscribers. As a result of which, the business of Respondent got closed. Hence, the agreement, initially entered, was admitted one, but time to time alleged extension, vide letters, dated 31.01.2020, 20.03.2020, 06.04.2020, 04.05.2020, 01.06.2020, 01.07.2020, 04.08.2020 and 01.09.2020 were disputed. No signals were continued on the Respondent’s network till the alleged date of disconnection i.e., 21.06.2021.

The contention with regard to default of making payment of the subscription agreement, executed between the parties, under the extant of regulatory framework, had been denied by the Respondent. The receipt of the invoices and raising of them had also been disputed. However, the Petitioner itself had flouted the Cable TV Network Regulation, 1995, by directly supplying the signals to the subscribers. Hence, the RIO Agreement between the parties was null and void. Hence, the prayer was to dismiss this Petition.

The replication was with reiteration of the contention of Petition, and having negation of contention of reply with specific contention that from the very perusal of reply, it is apparent that the Respondents have not disputed the fact, that in terms of the subscription agreement, the Respondent No. 1 is liable to pay to the Petitioner, outstanding subscription fee, in the tune of Rs. 47,39,820/- (Rupees Forty Seven Lakhs Thirty Nine Thousand Eight Hundred Twenty Only).

The very contention of migration of LCOs of the Respondent No. 1 to other MSO, without clearing the dues of the Respondent No. 1 is an afterthought, un-tenable, without any basis and with no evidence. At no point of time, any complaint in this regard or with unsatisfactory signal was ever raised by Respondent with Petitioner. Rather, Respondent No. 1 availed the services of Petitioner under the subscription agreement and is liable to pay the outstanding dues in respect thereof.

The very contention regarding SONY Channel on the ‘SONY LIV’ application (OTT Application) by Petitioner, being against the regulation of Ministry of Information and Broadcasting(MIB) is un-tenable, because of the fact that there is no legal impediment on the Petitioner from making available the Petitioner’s Channels on the OTT Application/ Platform, because of the fact that Over-the-Top (OTT) Services by the Petitioner, is outside the purview of TRAI Act, 1997, as well as the Policy Guidelines for Downlinking of Television Channels (Downlinking Guidelines) and accordingly, the Petitioner does not require any license from the Ministry of Information and Broadcasting, for provision of OTT Services, as alleged by the Respondents. The OTT Services is completely different and distinct from re-transmission of signals of television channels by MSOs, such as the Respondent. The broadcast reproduction right granted to it, under Section 37 of the Copyright Act, 1957 (BRR) entitles it to communicate the broadcast signal of its Channels, either itself or through third parties. Accordingly, the making available of its TV Channels on its OTT Application is consistent with the rights granted to the Petitioner under Law. The BRR granted to the Petitioner is absolute and unrestricted, subject only to compliance, with obligations, as may be prescribed. The OTT Services are not included within the scope of ‘broadcasting service’ under the TRAI Act, 1997, or the Regulations of 2017, which are restricted to broadcast signals provided via satellite or cables. The alleged arbitrary manner working, amounting to discrimination amongst MSO, labelled by Respondent, is an afterthought and without any substance. Rather, Respondent had admittedly not issued even a single communication to the Petitioner in this regard, nor such was the situation in the working of Petitioner. The Respondent No. 1 of its own volition entered into a Reference Interconnect Offer (RIO) of the Petitioner. The agreement was got executed, after availing the services, enjoying the benefits of the Subscription Agreement, it is not open to Respondent, to not clear the outstanding dues, payable to Petitioner. Non-discrimination or level playing field qua OTT Services is not maintainable, because of the fact that OTT Services are outside the purview of the extant regulatory framework of TRAI. The alleged contention, regarding the Petitioner’s violation of the provisions of the Cable Television Networks (Regulation) Act, 1995, for providing the signals of its channels, directly to subscribers, is of no avail, because of the fact that there is no restraint on the Petitioner to broadcast signals directly to subscribers. Rather, the only pre-condition imposed on a broadcaster such as the Petitioner, by way of Clause 5.6 of the Downlinking Guidelines is that the provision of the broadcast signals by the Petitioner, by way of signal reception decoders must only be to such distributors, who are duly registered and/ or are duly licensed by the concerned Ministry/ Department, under the relevant rules, framed for such purpose. Hence, the prayer was to make the decree of the Petition.

On the basis of pleadings of both side, following issues were got framed on 28.07.2022:

Beside the documentary evidences, filed as annexure with the pleadings, as well as affidavit, evidence for Petitioner as of affidavit of PW-1 G Ramesh Babu, and of Respondent Nos. 1 to 5, affidavit of K Raja, got filed on record.

Written submission by both side got filed.

Heard Learned Counsels for both sides and gone through the materials placed on record.

The proceeding before this Tribunal is a civil proceeding, as has been given in the TRAI Act, itself. In a civil proceeding, the preponderance of probabilities is the touchstone for making a decision, as against strict burden of proof, required in criminal proceeding.

Hon’ble Apex Court in Anil Rishi Vs. Gurbaksh Singh – AIR 2006 SC 1971 has propounded that onus to prove a fact is on the person who asserts it. Under Section 102 of The Indian Evidence Act, initial onus is always on the plaintiff to prove his case and if he discharges, the onus shifts to defendant. It has further been propounded in Premlata Vs. Arhant Kumar Jain- AIR 1976 SC 626 that where both parties have already produced whatever evidence they had, the question of burden of proof ceases to have any importance. But while appreciating the question of burden of proof and misplacing the burden of proof on a particular party and recording of findings in a particular way will definitely vitiate the judgment. The old principle propounded by Privy Council in Lakshman Vs. Venkateswarloo – AIR 1949 PC 278 still holds good that burden of proof on the pleadings never shifts, it always remains constant. Factually proving of a case in his favour is cost upon plaintiff when he fulfils, onus shifts over defendants to adduce rebutting evidence to meet the case made out by plaintiff. Onus may again shift to plaintiff. Hon’ble Apex Court in State of J & K Vs Hindustan Forest Co. (2006) 12 SCC 198 has propounded that the plaintiff cannot obviously take advantage of the weakness of defendant. The plaintiff must stand upon evidence adduced by him. Though unlike a criminal case, in civil cases there is no mandate for proving fact beyond reasonable doubt, but even preponderance of probabilities may serve as a good basis of decision, as was propounded in M Krishnan Vs Vijay Singh- 2001 CrLJ 4705. Hon’ble Apex Court in Raghvamma Vs. A Cherry Chamma – AIR 1964 SC 136 has propounded that burden and onus of proof are two different things. Burden of proof lies upon a person who has to prove the facts and it never shifts. Onus of proof shifts. Such shifting of onus is a continuous process in evaluation of evidence.

Issue No. 2- This issue was framed by Court of Registrar, on the basis of pleadings of Respondent Nos. 6 and 7, who were subsequently deleted from the array of party, and the contention was that those Respondent Nos. 6 and 7 be restrained from transmitting Petitioner’s signal to Respondent Nos. 1 to 5. Hence, owing to this deletion, this issue had become infructuous. Moreso, there was no Privity of Contract in between Respondent No. 6 and Respondent No. 7 with Petitioner. Hence, relief against it, or related to them were left over by Petitioner and after deletion of same from the array of Party, this issue stood infructuous.

Issue Nos. 1 and 3- These issues were framed by Registrar of this Court, with regard to entitlement of a decree, to the tune of Rs. 47,39,820/- of Petitioner, along with interest @ 18% over it. But, this was challenged by Respondent No. 1 to Respondent No. 5, that owing to violation of the term of license granted, either by Ministry of Information and Broadcasting, or by alleged breach of TRAI Regulation by Petitioner, Respondent Nos. 1 to 5 may not be compelled to make above liability fulfilled. Hence, both of these two Issues 1 and 3 are connected to each other, and are to be dealt with, jointly.

The contention of Petition with regard to Petitioner Company, as well as Respondent No. 1, a Company MSO, through Respondent Nos. 2 to 5 as its Directors, are ‘service provider’, wherein Petitioner is a ‘broadcaster’ and Respondent No. 1 is a ‘MSO’, engaged in the transmission and retransmission of the signals of broadcaster. Hence, this fact is undisputed fact that both of these parties, are ‘service provider’, given in TRAI Act.

The agreement entered, in between, with regard to channels, namely, specified in Petition, written supra, between Petitioner and Respondent No. 1 i.e., broadcaster and Multi System Operator(MSO), engaged in the business of broadcasting and retransmitting/ distributing of Television Channels to its affiliated Cable Operators in the area of Tamil Nadu, subsequently, added with area of Karnataka, under the name of Petitioner Company as Broadcaster and Respondent No. 1, Multicity Digital Consortium Private Limited, MSO, of which Respondent Nos. 2 to 5 are the Directors, vide subscription agreement, dated February 25, 2019, annexed with the Petition, and proved by way of affidavit evidence of Petitioner, as Exhibit PW-1/2 for a period initially of one year from the date of its execution i.e., 25.02.2029 is undisputed fact. Hence, being an undisputed fact, this is a proved piece of evidence. The terms and conditions given in this subscription agreement, dated 25.02.2019 i.e., Exhibit PW-1/2 is undisputed. The subscription dues, the procedure for raising of invoices, the payment within 15 days of the receipt of invoices, the raising of invoices were of monthly basis, the provision of extension of period of this agreement, on the basis of mutually agreed terms, by way of writing, was provisioned therein, with a provision for procedure of termination, qua pre-mature with a provision of force majeure in it. These are undisputed facts. Moreso, once a written documents executed in between, is undisputed, then the terms given in it, are also undisputed and they are to be read in between line, written as it, in it. Hence, the Petition is with all contention in this regard. The period, which was admittedly for one year, from the date of its execution i.e., February 25, 2019, was subject to further extension by way of mutual agreement, in between, either by way of a new agreement, or by addenda to it, and in the present Petition, this has been specifically said in the Petition that this term was got extended on the basis of mutual agreement, for a period upto the date of termination and issuing of the notice of demand by Petitioner, because of the outstanding subscription dues, accrued in the tune of relief claimed against Respondent. This fact has been replied by Respondent Nos. 1 to 5 that dispute with regard to subscription agreement Exhibit PW-1/2 (Colly), for its effective area i.e., one year is not under dispute, and the payment of subscription dues, till this period of operation is also not disputed. Rather, the dispute is with regard to alleged addendum, being said to have been executed, in between, and for which emails have been filed on record by Petitioner, which were not agreed mutually and owing to pick and choose of the emails, all emails have not been filed on record by Petitioner. For this fact, the alleged extension of the period was with a burden of proof, over the Petitioner to prove it beyond all contention of Respondent i.e., to prove on the basis of preponderance of probabilities. At the very first outset, it is being mentioned that Respondent has not filed any email, in contrast to the emails filed by Petitioner, having mention of the extended period, said to be by way of addendum, and from the very perusal of these emails, filed on record, as well as proved by way of affidavit evidence of Petitioner’s witness, it is apparent that right from Page Nos. 120 to 131, the communication with regard to extension for period of coming one month each, before its expiry, for a further one month of the RIO entered, in between, has been sent through email by Petitioner to Respondent and this was specifically written to be, because of the Writ, filed by Petitioner, as well as other broadcasters before Hon’ble High Court of Bombay, against the amendment notification, issued by TRAI. Hence, in response to these repeated emails, extending one month period, there is no reply email, filed on record by Respondent. Rather, an email, given by Respondent to Petitioner, after the expiry of above one year period of original agreement, is with a prayer for extension of area of operation for the area of State of Karnataka, in addition to area of Tamil Nadu, already agreed and being continued for distribution of Sony Channels. Hence, this request of Respondent for expansion of area, was agreed by Petitioner and this request for expansion of area was by email, dated 12.06.2020, agreed for expansion on above date, and this initial subscription agreement was of 25^th February, 2019, for a period of one year i.e., upto February, 2020 and once it was not extended for June, 2020, then how a request for expansion of area could have been made on 09.06.2020? It itself reveals and fully establishes that this original subscription agreement, was got extended for beyond June 9, 2020 and this request for expansion was accepted on 20.06.2020, wherefrom the Tamil Nadu, as well as area of Karnataka were kept under operation by broadcaster Petitioner and MSO -Respondent No. 1, for which subsequent invoices were got raised and the Statement of Account of Respondent No. 1, being maintained by Petitioner, is with mention of those dues, which stood as outstanding for the area of Tamil Nadu as well as area of Karnataka, having their separate heads and total amounting to the alleged outstanding, for which the decree has been claimed. Hence, this expansion of the area as well as extension of the term of the agreement, has been proved by Petitioner, as per all preponderance of probabilities.

The first defence/ reply taken by Respondent Nos. 1 to 5 is non maintaining level playing field by Petitioner broadcaster qua Respondent No. 1, as compared to other MSOs, wherein, the rate fixed with other competitive MSO, were less than the rate fixed in this admitted agreement with present Respondent No. 1, and this led the LCOs, as well as subscribers to shift to those other competitive MSOs, without returning the STBs and making payment of subscription dues to Respondent No. 1, thereby causing a huge loss to Respondent No. 1, in the tune of about 21,00,00,000/- (Rupees Twenty One Crores Only). This has been vehemently denied by Petitioner in its replication cum rejoinder. There was a specific plea taken by Respondent No. 1 to Respondent No. 5 and onus to prove this fact was upon Respondent No. 1 to Respondent No. 5. But, no evidence, either documentary, or oral in this respect, has been brought on record, except the affidavit evidence of Respondent’s witness, having the same narration of reply in it. Though a request was made for directing Petitioner to file on record the RIOs, the subscription agreements, the MSR (The Monthly Subscriber Report), of those big MSOs, the Statement of Accounts of those big MSOs, maintained by Petitioner -broadcaster on record, to prove the contention of Respondent. But, neither any application for summoning these witnesses, or inventory, or request for disclosure of fact in this regard, or an opportunity of cross examination of the witness of Petitioner, on this score was ever made by Respondent, nor Respondent had filed any document to show the alleged discriminatory level playing area operated by Petitioner broadcaster. Merely, by saying it in reply i.e., pleading, it may not be taken as proof. Meaning thereby, there is no iota of evidence on this point of Respondent, placed on record. Whereas, Petitioner had proved its subscription agreement, by way of annexing it with Petition, Affidavit, as well as by a witness, who had deposed for Petitioner. Hence, this contention of reply had not been proved by Respondent.

The second ground is with regard to breach of term of license, required and being said to be there in provision of Ministry of Information and Broadcasting Regulation(MIB), as well as Telecom Regulatory Authority of India Regulation(TRAI) with regard to Over The Top (OTT), provisioning of the Channels. This too was with burden over the Respondent No. 1 to Respondent No. 5 to bring on record, the regulation with regard to OTT, and so the alleged breach of above license. Whereas, no evidence, nor any Regulation in this regard, has been brought on record by Respondent, vis-à-vis the Petitioner in its written submission, as well as deposition on oath had categorically said that Over The Top (OTT) provisioning is beyond the scope of TRAI Regulation, because it is not the Channel Distribution or re-transmission provision. The agreement entered, in between, and which is undisputed one, is with specific provision, of the license granted by Petitioner, by way of this agreement on the non-exclusive basis for provisioning, distribution of re-distribution/ transmission or re-transmission of the Channel of SONY specified in this agreement by Respondent No. 1 to its LCOs or subscribers, for rest of the sphere. There was exclusive right of the broadcaster, having ownership of its channels. Hence, the alleged breach of any term of license with regard to OTT, said to be issued by MIB, was to be proved by Respondent No. 1 to Respondent No. 5, claiming its absolvation of liabilities qua admitted subscription agreement, Exhibit PW -1/ 2. Hence, this defence is also of no force.

The next ground for absolve of alleged liability is of live streaming i.e., direct transmission to ultimate subscribers by Petitioner itself. For this, no statutory prohibition could be placed by Respondent Nos. 1 to 5, whereas, specific pleading as well as Statement on oath, is of Petitioner that there is no bar for direct transmission to subscribers by broadcaster. The only bar is that this decoding is to be made, as per the guidelines and direction of TRAI in this respect, and without it, there can never be a direct transmission.

The consolidated written submission, for and on behalf of Respondent No. 1 to 5, is the repetition of the reply, as well as the Statement of Oath, given by Respondent’s witness. The liability of Respondent No. 2 to Respondent No. 5 in its personal capacity, has been disputed. Whereas, the Petition is with specific mention that it was the Respondent No. 1, a Corporate body, which was engaged as MSO, had entered into agreement with Petitioner, who is a Corporate body, and is a broadcaster, vide undisputed agreement, for transmission of Channel. Respondent Nos. 2 to 5, being the Directors, had been arrayed as a party, because a non-living entity, having the capacity of juristic personality, is to be sued and be sued through a legal living personality, and because of it, this has been made. Hence, nowhere, personal capacity or personal lability of Respondent Nos. 2 to 5, has been prayed to be imposed.

The very contention with regard to non-supply of the signals to the Respondent, as per Clause 3.2 of the extant Interconnection Regulation, has been dealt as above, was with burden of proof and onus to prove by Respondent and it could not be done so. The OTT plat form namely, ‘SONY LIV’ and Petitioner’s providing this to subscribers through ‘SONY LIV’ at a price less than the price given in above subscription agreement, was also to be proved by Respondent and moreso, if it was there, then Respondent was with all liberty to get this agreement terminated, by way of notice prescribed in this agreement, as well as extant Regulation with regard to this transaction. But, till continuation of initial agreement, no exercise was there, nor any complainant in this regard was ever made, nor any email of the Respondent, having complaint of this fact, was placed on record. As against it, a request is for expansion of area of Karnataka, in addition to area of Tamil Nadu, in accordance with the undisputed agreement, which was of date 25.02.2019, with a period of one year i.e., 24.02.2020 only, and this was proved to be extended, by way addendum to it, and subsequently, expansion request was conceded. Hence, the very saying of non-maintaining level playing area or OTT platforming or live streaming of SONY channel, etc., apparently proves to be an after thought. The alleged non payment by the LCO, and non return of STBs is also a question of fact. Either it could have been pleaded, or may be got adjudged in separate Petition by Respondent No. 1 to Respondent No. 5, against those LCOs Respondents, because the alleged non return of STBs is not related with the present cause of action, accrued against Respondent No. 1 to Respondent No. 5.

The Petitioner, vide its evidence affidavit of G Ramesh Babu, a Manager -Distribution Sales, Culver Max Entertainment Pvt. Ltd., had categorically filed its letter of authority, dated 22.09.2022, proved and exhibited as Exhibit PW - 1/1, with an authority to depose for Petitioner Company, which is registered under Companies Act 1956, and with its head office at Mumbai and branch Office at Gurugram. The Petitioner, being a broadcaster of its channels, which are the subject of present dispute had been given in the Para 3 of the affidavit evidence. Respondent No. 1 is a Multi System Operator engaged in the business of re- transmission/ distribution of television channels to its affiliated cable operators, as well as direct subscribers in Tamil Nadu and Karnataka, under the name of Multicity Digital Consortium Private Limited, of which Respondent Nos. 2 to 5 are the Directors. This agreement, dated 25.02.2019, had been said to have been entered, in between, broadcaster and MSO, within their authorized representatives, and had been brought on record as Annexure to Petition, subsequently proved as Exhibit PW-1/2. The expansion of area was result of the request made by Respondent No. 1, letter dated 09.06.2020 by Petitioner Company, vide its letter, dated 12.06.2020 and these two letters have been annexed with Petition, proved by this evidence and made Exhibit PW-1/3, as well as Exhibit PW-1/4 respectively. The resumption of transmission of signals for the expanded area of Karnataka, from the date of 12.06.2020, in addition to Tamil Nadu had been categorically said on oath. The invoices, regularly and properly were raised, and delivered, had been stated on oath, and few of them had been proved and marked as Exhibit PW-1/5 (Colly) for area of Tamil Nadu and Exhibit PW-1/6 (Colly) for area of Karnataka. Despite receipt of these invoices by Respondent No. 1 to Respondent No. 5, payment was not made against them, and which resulted outstanding subscription dues, in the tune of Rs. 41,72,109/-, for area of Tamil Nadu and Rs. 5,67,711/- for the area of Karnataka, and in total Rs. 47,39,820/-, against Respondent No. 1 to Respondent No. 5. This has been shown in the Statement of Account, maintained by Petitioner, for Respondent Nos. 1 to 5, which has been filed with Petition, as its annexure and has been filed as annexure to this affidavit evidence, proved and exhibited as Exhibit PW-1/8 and Exhibit PW-1/9 respectively. It is noteworthy that Respondent No. 1 to Respondent No. 5, had said during the course of argument, that all dues towards subscription agreement, has been by Respondent Nos. 1 to 5. But, when asked for, as to where is the Statement of Account mentioning the invoices received and invoices paid against them, balancing the zero, is there? The reply by Learned Counsel for Respondent was that no Statement of Account, has been filed on record. Learned Counsel for Respondent Nos. 1 to 5 was fair enough to admit this situation that no Statement of Account or a proof of the payment has been placed on record by Respondent Nos. 1 to 5. The connection was got disconnected by notice, dated 26.02.2021 and this disconnection notice, dated 26.02.2021, has been annexed, proved and exhibited as Exhibit PW-1/7, which is with specific mention of disconnection, because of the alleged outstanding dues accruing against Respondent No. 1 to Respondent No. 5. In utter precaution, another notice, dated 06.05.2021, to Counsel for Petitioner, was got issued to Respondent having the specific mention of outstanding subscription dues payable to the Petitioner and this notice has been placed on record by Petitioner, which has been proved by Petitioner’s evidence marked and exhibited as Exhibit PW-1/10. As against this evidence, there was no request for cross examination of this witness by Counsel for Respondent, for getting the fact, pleaded by Respondent, to put as a leading question for getting response of Petitioner to the above fact. The evidence affidavit, filed by Respondent Nos. 1 to 5, as of Mr K Raja is with contention of authorized representative of Respondent Company No. 1, but what was status, as well as source of knowledge of this witness was there to file this affidavit, is not there in this affidavit. This affidavit is the repetition of the contention of reply.

The verification of reply, filed by Respondent No. 1 to Respondent No. 5, is

Meaning thereby as to whether this verification is of Petitioner as has been written in this, or is of Respondent Nos. 1 to 5, for whom this reply has been filed? which are the paras under the personal knowledge and which are on the basis of documents ?, because the places for it are blank. Hence, this verification of reply is not a proper and effective verification of the pleading. The Letter of Authorization, for and on behalf of this K Raja, is also not on record. Rather, Kulandaivelu Raja, Managing Director, named as Respondent No. 2, is being taken as a person admitted to be Managing Director of Respondent Company in Petition itself. Hence, on the basis of discussions made above, and in all preponderance of probabilities, the Petitioner had proved its case with all its cogent evidence, for and amount of Rs. 47,39,820/-, as an outstanding dues, till filing of this Petition accrued against Respondent Nos. 1 to 5 in favour of Petitioner, and it is entitled for it.

The Tribunal in many of the previous decided cases had granted simple interest pendente lite and future, from the date of filing of Petition, till actual payment @ 9% per annum simple interest, and considering the present financial and fiscal scenario, the same is to be provided in present case too. Hence, both of these Issue No. 1 and 3 are being decided as above.

Issue No. 4- Issue No. 4 is with regard to any other relief. Neither any other relief is prayed by Petitioner, nor claimed otherwise.

On the basis of discussions made above, this Petition merits to be decreed as above.

Petition is being decreed with cost. Respondent No. 1, as a Company, through its Directors- Respondent Nos. 2 to 5, is being directed to make deposit in Tribunal, within two months from the date of Judgment, Rs. 47,39,820/- (Rupees Forty Seven Lakhs Thirty Nine Thousand Eight Hundred and Twenty Only), as outstanding subscription dues, alongwith simple interest, over this principal, to be calculated @ 9% per annum, pendente lite and future, from the date of this Petition to actual date of payment, for making payment to Petitioner Company, and in case of default the same will be got realised, as per due process of execution.

Formal decree/ order be got prepared by Office, accordingly.