Hathway Cable & Datacom Limited vs Om Cable TV Network And Anr.

This Petition, under Section 14, read with Section 14A of the Telecom Regulatory Authority of India Act, 1997, (hereinafter referred to as “TRAI Act”), has been filed, by Petitioners– Hathway Cable and Datacom Limited and Hathway Digital Private Limited, against Om Cable TV Network, Respondent No. 1, and M/s CCN Den Network Private Limited, Respondent No. 2, with a prayer for award of a decree of Rs. 18,60,680/-(Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only), towards outstanding subscription dues, alongwith 18% per annum interest over it, with a further prayer for direction to return 600 STBs in good and working condition, or to make payment of the cost of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand Only) @ Rs. 1250/- per STBs.

In brief, the Petition contends that Petitioner, Hathway Cable and Datacom Limited, is a public limited Company incorporated under the provisions of the Companies Act, 1956, having its registered Office at Rahejas, 4 Floor, Corner of Main Avenue & V.P. Road, Santacruz (West), Mumbai 400054, which is a Cable Television Service Provider, duly registered under the provisions of Section 3, of the Cable Television Network (Regulation) Act, 1995, (hereinafter referred to as Cable Television Act). It is an MSO/ Cable Operator, engaged in the business of distribution of Television Channels, including through Analog/ Digital and holds the license to operate, as a Cable Operator, under the Cable Television Network Regulation Act, 1995.

Petitioner No. 2, namely, Hathway Digital Private Limited, is a wholly owned subsidiary Company of Hathway Cable and Datacom Limited. It is also a Company registered under Companies Act, 1956 and is having its Office at 805/ 806, Windsor Off, C.S.T. Road, Kalina, Santacruz (E), Mumbai 400098, with a Regional Office at Plot No. B-1/ G-3, Mohan Co-operative Industrial Estate, Main Mathura Road, New Delhi. It is engaged in the retransmitting the signals of Cable TV to its various operators on PAN India basis. The Cable TV business of Petitioner No. 1, had been assigned to Petitioner No. 2, w.e.f. 01.04.2017, due to internal restructuring of Petitioner No. 1 Company.

The Respondent No. 1, namely, Om Cable TV Network, is a Local Cable Operator, represented through its proprietor, namely, Mr Amit Aggarwal, who had been retransmitting the signals/ services to the subscribers, from the Petitioner and thereby distributing the same in the area of Bhola Nath Nagar, Shahdara and has its Office situated at 257, Gali No. 2, Bhola Nath Nagar, Shahdara, Delhi 110032.

The Respondent No. 2, namely, M/s CCN Den Network Private Limited, is a competitive MSO of the Petitioner, having its Office at B-1/1, Block B, Krishna Nagar, Delhi 110051.

On the request made by Respondent No. 1, the Petitioner agreed to provide its signals/ services to be further retransmitted to the subscribers, in the area of Bhola Nath Nagar, Shahdara, by way of entering into Interconnect Term Sheet/ Agreement, under the terms of which, Respondent No. 1 was liable to pay the monthly subscription charges, enumerated in it. The Interconnect Term Sheet is still valid and subsisting. Though there was a provision for drawing a long form agreement, as mandated under this Sheet, as well as Interconnect Regulations, but, it has yet not been entered by Respondent No. 1. Hence, this agreement term Sheet is in operation. The Petitioner has issued approximately 600 set top boxes to Respondent No. 1 for acting upon the above agreement entered, in between. This agreement Interconnect Term Sheet/ Agreement, executed in between, Petitioner and Respondent No. 1, is Annexure P-1 to Petition. In terms of the aforesaid Interconnect Term Sheet/ Agreement, the Petitioner has issued those 600 STBs to Respondent No. 1, for getting them installed at subscriber’s end.

Petitioner had raised invoices, on Respondent No. 1, which were duly received by him, without any protest or demur, but have been paid in part by Respondent No. 1, and it was the habit since the very inception of the relationship. Respondent had been regular and chronic defaulter in discharging its liabilities. The copies of invoices sent to Respondent No. 1 are appended as Annexure P-2 (Colly) to Petition. Petitioner maintained Statement of Account, in its usual and ordinary course of business, which has been annexed as Annexure P-3 to Petition.

There was an outstanding subscription dues in the tune of Rs. 18,60,680/- (Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only), against Respondent No. 1. Despite requests, follow ups, and reminder from the Petitioner, it was not cleared, except with an assurance to Petitioner, and Petitioner always acted bonafidely, with a hope, that Respondent No. 1 shall honor its contractual obligations, in terms of Agreement entered in between, and is with bonafied intentions.

Petitioner came to apprisal from the market sources that Respondent No. 1, in utter disregard of the Regulations, had migrated to the Respondent No. 2/ competing MSO, namely M/s CCN Den Network Private Limited, without clearing the outstanding subscription dues of Petitioner, and also without returning the Set Top Boxes, which were the exclusive property of the Petitioner. This migration was under the collusive connivance of Respondent Nos. 1 and 2 both. This was against the provisions of Interconnect Regulations of TRAI. Respondent No. 1 was under obligation to issue requisite notice, before disconnecting the services of Petitioner, unilaterally without complying with the Regulations, and at the same time without the permission, consent and approval from the Petitioner to swap the STBs of Petitioner, with Respondent No. 2, and he thereby, caused huge loss to the business of Petitioner.

Petitioner was constrained to sent a notice dated 27.06.2017, to both of the Respondents showing deep anguish and disappointment, with a prayer to make payment of outstanding subscription dues, in the tune of Rs. 18,60,680/-(Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only), alongwith interest due thereon @ 18% per annum, with a further prayer to return 600 number of STBs, which were in unlawful custody of them, in good and working condition, or to make payment in the tune of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand Only) @ Rs. 1250/- per STB, and this legal notice, dated 27.06.2017 is Annexure P-4 (Colly) to Petition.

There was no response by Respondent. This had caused for a cause of action, within the territorial jurisdiction of this Tribunal, within period of limitation. Hence, this Petition with above prayer.

Reply by Respondent No. 2, was that the Petition was with concealed material facts, and ought to be dismissed. There was no Privity of Contract In between Petitioner and Respondent No. 2. There was no relationship in between. No connivance or collusion of Respondent No. 2 was there. Rather, Respondent No. 2 is a competitive MSO, engaged in the same business, in the same operating area, as is of Petitioner. Respondent No. 2 was in business relationship with Respondent No. 1, who is a LCO and there was no obligation against Respondent No. 2 for the conduct of Respondent No. 1. The alleged outstanding subscription dues, as well as delivery of Set Top boxes, said to be made by Petitioner was qua Respondent No. 1, and it may be responsible for it.

Replication cum rejoinder by Petitioner, with same contention of Petition and denial of contention of reply was made.

The proceeding against Respondent No. 1 was ordered to be ex-parte, vide order dated 18.04.2018, and it was specifically mentioned in it, that Respondent No. 1, after being sufficiently served, had chosen not to appear so far, and this was ordered to proceed ex-parte against Respondent No. 1, vide order dated 08.05.2018.

On the basis of pleadings of both side, Court of Registrar framed following issues on 22.05.2018:

Whether the Respondents are liable to pay to the Petitioner an amount of Rs.18,60,680/- along with interest @ 18% per annum towards outstanding subscription dues?

Whether the Respondents are liable to return 600 STBs to the Petitioner or in the alternate pay an amount of Rs.7,50,000/- @ Rs.1250/- per STB to the Petitioner?

Whether R-1 has migrated to the network of R-2? If yes, whether such migration is as per due process of law?

Whether R-2 has any obligation towards petitioner in the absence of any written agreement between the parties?

Evidence by way of affidavit, for and on behalf of Petitioner Company, alongwith certificate, required under Section 65B of Indian Evidence Act, got filed by Hemal Jeet Tamang, authorized representative of Petitioner Company. The evidence by way of affidavit of Ms. Hardeep Kaur, for and on behalf Respondent No. 2, got filed on record.

Written submission by Petitioner, as well as Respondent No. 2 got filed.

Heard arguments of Learned Counsel for Petitioner, as well as Respondent No. 2 at length, and gone through 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. 4 The pleadings and evidences made by Petitioner, is with no obligation, qua Respondent No. 2, towards outstanding subscription dues, said to be due, against Respondent No. 1, in the tune of Rs. 18,60,680/- (Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only). The STBs said to be given for installation at subscriber’s end as of 600 in number, and for which cost of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand Only) has been claimed, were also said to be issued to Respondent No. 1 i.e., LCO for installing at subscriber’s premises, for making interconnect agreement entered, in between Petitioner and Respondent No. 1 fruitful. In the absence of any written agreement, in between, Petitioner and Respondent No. 2, a competitive MSO, there is no Privity of Contract, in between, Petitioner and Respondent No. 2. Learned Counsel for Respondent No. 2 had vehemently argued that, Respondent No. 2 is neither a proper, nor a necessary party in the current case. Since, there is no Privity of Contract in between, Petitioner and Respondent No. 2, as well as precedent laid down by this Tribunal in this regard, no obligation can be imposed against Respondent No. 2. Learned Counsel for Petitioner was fair enough to admit this legal proposition, and he had categorically said in the Court, that he is not claiming any relief against Respondent No.

Under above settled proposition of law, and the factual context of no Privity of Contract, in between, this issue is being decided in favour of Respondent No. 2.

Issue No. 1 In view of the discussions made in Issue No. 4, Respondent No. 2 is not liable to pay to the Petitioner, an amount of Rs. 18,60,680/- (Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only) alongwith interest @ 18% per annum, towards outstanding subscription dues. Rather, the Petitioner by way of its evidence affidavit has filed Exhibit A (Colly), copies of the Broad Resolution, dated 28.07.2017, as well as 19.01.2018, alongwith Authority Letter, dated 01.08.2018, delegating power in favour of authorised person, to file this Petition as well as to file evidence affidavit. Hence, the competence of those who have filed this Petition, and who has filed this affidavit evidence, is very well there. The Interconnect Agreement/ Sheet, which was said in Petition, has been annexed with Petition, as well as is an annexure of affidavit evidence, where PW-1/ 1 Exhibit is the interconnect sheet, having covenants of relationship, in between Petitioner and Respondent No. 1. Exhibit PW- 1/2, are the copies of some of the invoices, sent to Respondent No.

The affidavit evidence, is with annexure of Statement of Account, which was annexed with Petition too, the same is proved and exhibited, Exhibit PW-1/3. The legal notice with a prayer for making payment of outstanding subscription dues, and return of STBs, dated 27.06.2017, issued by Petitioner to Respondent, has been proved and exhibited as Exhibit PW-1/

Hence, the contention of pleading in Petition has been fully proved and reiterated in affidavit evidence, filed by PW-1, the same is with no controversion. The fact pleaded in Petition, had not been controverted by Respondent No. 1. Hence, this has been proved in all preponderance of probabilities. Though with regard to interest, this Tribunal in many previous decided judgements, considering the financial and fiscal scenario of Cable Television business, had repeatedly awarded simple interest @ 9% per annum. Hence, this outstanding subscription dues in the tune of Rs. 18,60,680/- (Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only), is to be awarded with a simple interest @ 9% per annum pendente lite and future from the date of Petition to actual payment date. Hence, this issue is being decided in favour of Petitioner as against Respondent No. 1.

Issue No. 2 Issuance of 600 STBs and non return of same has been pleaded and proved by way of uncontroverted affidavit with no rebuttal by Respondent No. 1 or even by Respondent No. 2, qua Respondent No. 1. Hence, this issue is to be decided in favour of Petitioner. But, this Tribunal had very often decided in many precedents that either STBs are to be returned, in good and working condition, or the depreciated value of same is to be given. In present case, the claim has been made @ Rs. 1250/- per STB, with no depreciation, and admittedly the contract entered and Petition filed in the year 2018, gives span of more than 08 years. Hence, this electronic item, may never be deemed to be good and workable condition. Hence, in the interest of justice, the depreciated value of those 600 STBs, are to be paid @ Rs. 1000/- per STBs, amounting to Rs. 6,00,000/- (Rupees Six Lakhs Only), with simple interest of Rs. 9% per annum. This issue is being decided in favour of Petitioner as above.

Issue No. 3 This contention of migration by Respondent No. 1 to Respondent No. 2, has not been controverted by Respondent No. 1, and existence of business relationship, in between Respondent No. 1 and Respondent No. 2, is also an undisputed fact in reply of Respondent No. 2. Hence, the contention of migration has been pleaded in Petition and proved by uncontroverted affidavit, qua Respondent No. 1. Hence, this issue is being decided in favour of Petitioner.

On the basis of above discussions, this Petition merits to be decreed as against Respondent No. 1, in favour Petitioner with cost. ORDER The Petition is being decreed with cost, against Respondent No. 1, who is being directed to make payment of Rs. 18,60,680/- (Rupees Eighteen Lakhs Sixty Thousand Six Hundred and Eighty Only), as on 20.06.2017 towards outstanding subscription dues, alongwith pendente lite and future interest, @ 9% Simple Interest, from the date of Petition till actual payment of same, within two months of judgment, for making payment to Petitioner. Respondent No. 1 is further being directed to make deposit of Rs. 6,00,000/- (Rupees Six Lakhs Only), alongwith pendente lite and future interest, @ 9% Simple Interest towards cost of 600 STBs @ depreciated value of Rs. 1000/- per STB, within two months of judgment for making payment to Petitioner. Formal order / decree be got prepared by office, accordingly. ….......……………… (Justice Ram Krishna Gautam) Member 28.07.2026 /BN/