Fastway Trasmission Pvt. Ltd vs Sethi Cable Network And Anr

Ram Krishna Gautam, Member

This Petition, under section 14, read with 14A, of the Telecom Regulatory Authority of India Act, 1997 (As Amended upto date) hereinafter referred to as TRAI Act, has been filed by Fastway Trasmission Pvt. Ltd., Petitioner, against Sethi Cable Network and Anr., Respondents, with a prayer for a decree to restore the Set Top Boxes (STBs) of the Petitioner, issued for planting at subscribers' premises, swapped with Respondent No.2. A decree of Rs.3,17,689.35/- (Rupees Three Lakh Seventeen Thousand Six Hundred Eighty Nine and Paise Thirty Five only), towards subscription with Rs.71,82,000/- (Rupees Seventy One Lakh Eighty Two Thousand Only) towards STBs, in case of failure to restore the same.

In brief, the Petition contends that Petitioner is Multi System Operator (MSO) involved in the business of Cable Television Service provider, duly registered under the provisions of Cable Television Network Regulation Act, 1995. Respondent No.1, Minnat Cable Network is a Local Cable Operator, involved in the business of receiving encrypted cable signals feed of Television channels from the addressable system of the Petitioner to retransmit the same through its Cable Television Network to the subscribers. Respondent No.2 is a competing MSO involved in the same business.

The Respondent No.1 entered into Interconnect Agreement with Petitioner, wherein 3591 STBs, which were exclusive property of Petitioner, were got issued for placing at subscribers' end. Respondent No.1 was either to restore those STBs to Petitioner or to make payment equivalent to the cost of the same, which amounted to Rs.71,82,000/-. Based upon the terms of Interconnect Agreement executed, in between, Petitioner and Respondent No.1, the Petitioner had raised monthly invoices on the Respondent No.1 for the payment of subscription amount, collected from subscribers as per the books of Petitioner. It failed to make the payment of Rs.3,17,689.35/- (Rupees Three Lakh Seventeen Thousand Six Hundred Eighty Nine and Paise Thirty Five only), towards outstanding subscription charges, as on 16.02.2022. The copy of statement of account, prepared in usual court of business, is annexed as Annexure- P2 to the Petition.

Respondent No.1 entered in conspiracy with Respondent No.2, for swapping the STBs of Petitioner. A demand notice, dated 17.02.2022, Annexure- P3, was got issued to Respondents, for ensuring payment and making compliance of Interconnect Agreement, as well as Regulations for them. But, despite requests and notice sent by the Petitioner, there was no response.

The total of outstanding liability of the Respondent No.1 towards Petitioner, as on 16.02.2022, towards subscription dues, was Rs.3,17,689.35/- (Rupees Three Lakh Seventeen Thousand Six Hundred Eighty Nine and Paise Thirty Five only), and towards Set Top Boxes swapped and not returned was Rs.71,82,000/-.

Repeated requests for those liability were raised by Petitioner, but of no avail. A cause of action had arisen, within the territorial jurisdiction of this Tribunal, within a period of limitation. Hence, this Petition was got filed with above prayer.

Respondents have appeared in the matter. But vide order, dated 23.02.2023, the right to file reply by Respondents was got closed. Subsequently, though Counsel for Respondent appeared, on 18.09.2023, but, neither reply, nor subsequent appearance was there. Hence, matter, as it was proceeding priorly, as ex-parte, was taken.

Evidence by way of Affidavit got filed as of Mr. Peeush Mahajan for and on behalf of the Petitioner Company. A Written Submissions was filed by Petitioner.

Heard, Learned Counsel for Petitioner and gone through material 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 seizes 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 bonus 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.

The Petition is with specific contention of Interconnect Agreement entered, in between, annexed with the Petition and issuance of those number of STBs i.e. 3591 STBs to Respondent No.1 for deploying at the subscribers end, for executing Interconnect Agreement entered, in between, the invoices raised for alleged outstanding dues, as well as activation charges has been said in it. The annexures to Petition are substantiating those facts. The service is very well there. There is no rebuttal of the Petition, nor appearance by Respondents. Ultimately, matter proceeded ex-parte, wherein Evidence by way of Affidavit of Mr. Peeush Mahajan got filed by said witness, as authorised representative of Petitioner Company, wherein reiteration of contention of Petition is there, and those Annexures have been exhibited in Evidence. This fact averred on oath is with no controversion. Uncontroverted Affidavit is substantiating and proving the contentions of Petition. Hence, the same is being accepted as it is. The facts pleaded has been proved by way of Evidence of that witness. Hence, the Petition merits its decree, as against Respondent No.1.

This Tribunal, at many times have held that being there no privity of contract, in between, MSO and competing MSO, regarding the misconduct or defiance of LCO, the Petitioner, MSO, is not entitled for any relief against competing MSO, because of there being no privity of contract, in between.

On the basis of above preposition of law, Learned Counsel for Petitioner, is not claiming any relief against Respondent No.2. Rather his claim is against Respondent No.1, LCO, only. Hence, on the basis of those facts and Evidences placed on record, this Petition merits to be allowed in ex-parte, against Respondent No.1, for those reliefs prayed for.

The interest, being rewarded by this Tribunal, in many Petitions previously decided, on the basis of present fiscal scenario and facts, is of simple interest @ 9% per annum. Hence, the interest to be awarded may be of simple interest of 9% per annum.

On the basis of those discussions, this Petition is to be allowed.

ORDER

This Petition is being decreed against Respondent No.1. Respondent No.1 is being directed to make payment of Rs.3,17,689.35/- (Rupees Three Lakh Seventeen Thousand Six Hundred Eighty Nine and Paise Thirty Five only), towards subscription charges, due against Respondent No.1. He is being further directed to return 3591 STBs, along with accessories, in good and working condition, to Petitioner, within a period of two months and in case of failure, to make the payment of Rs.71,82,000/- towards its depreciated value. Over those calculated money, a simple interest, pendente lite and future, from the date of filing of this Petition to actual date of payment, at the simple interest rate of 9% per annum shall be payable.

No relief against Respondent No.2 is being granted.

Office to prepare the decree/formal order, accordingly.