Siti Cable Networks Ltd. vs Rakesh Agarwal & 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 Petitioner Siti Cable Network. Ltd. , Through - Mr. V. Suresh Kumar, against Mr. Rakesh Agarwal, Respondent No. 1, and UCN Cable Network Pvt. Ltd., Respondent No. 2, with a prayer for a decree in favour of Petitioner against Respondents, jointly or severely, for an amount of Rs. 92,786/- (Rupees Ninety Two thousand seven hundred eighty six only) towards outstanding dues, recoverable from Respondent No. 1, as on 31.03.2016, and a direction for return of 211 Set Top Boxes along with viewing Cards by Respondents to petitioner or to compensate with Rs. 3,05,191/- (Rupees Three lakh five thousand one hundred and ninety one only) for those 211 STBs, with 18% per annum Interest over above amount, from 31.03.2016 till actual payment of same, as a pendente lite and future interest.

In brief, the Petition contends that M/s Siti Cable Network Ltd., is a Company, registered under the Companies Act 1956, having its registered office at Madhu Industrial Estate 4th Floor, Pandurang Budhkar Marg, Worli, Mumbai -400 01 and it is a leading Multi System Operator(MSO), operating PAN India. Mr. V. Suresh Kumar, is the authorised signatory for the Petitioner Company, competent to file this Petition, as per Board Resolution, dated 25.05.2016, Annexure P-1 to Petition. Petitioner, a Multi System Operator(MSO), has established control rooms/ head ends and network operations for retransmission of various Free to Air and Pay channels signals of various broadcasters to the households/subscribers, through affiliated Local Cable Operators, across the state of Madhya Pradesh, including the area of Jabalpur.

Respondent No.1, Mr. Rakesh Agarwal, is a Local Cable Operator, operating in same part of the recently DAS notified area of Jabalpur, Madhya Pradesh. He runs his business from its office at LIG B 612, Dhanwantri Nagar, Jabalpur, Madhya Pradesh - 482 002. It is a sole proprietorship firm.

Respondent No. 2, namely, UCN Cable Network Pvt. Ltd. is a Multi System Operator, operating on PAN-India basis, like a competing MSO of Petitioner.

Respondent No.1, that is a local cable operator, entered into an agreement, for retransmitting Cable TV channel signals, being transmitted by Petitioner, in DAS notified territory of Jabalpur. He was uninterruptedly taking feed signals of TV channels from the petitioner in order to retransmit/ further supply of the same, to the subscribers in, accordance with an Interconnection Agreement, dated 14.03.2013 it is ANNEXURE P-2 to the Petition. In order to act upon agreement ANNEXURE P-2, a total 211 Set Top Boxes, along with accessories, were taken by Respondents, and where installed at subscribers premises, on a promotional scheme, even without receiving the import cost of such Set Top Boxes/Viewing Cards from, either the Respondent No.1 or from the subscribers. The ownership of the Set-Top-Box remained exclusively of the petitioner.

The statement showing the details of the STBs/VCs numbering 211 issued by the petitioner to the Respondent No.1, is annexed as ANNEXURE P-3 (Colly) to the Petition. Respondent No.1 has continuously availed the uninterrupted supply of digital cable TV signals, through the present petitioner, but had defaulted in paying the subscription fee, as per agreed terms in above agreement. Rather, he migrated illegally to competing MSO Respondent No.2, without making payment of outstanding subscription dues and return of 211 STBs/ VCs, as well as scheduled notice of 21 days, required to be given mandatorily.

Petitioner issued a legal notice, dated 23.02.2016 to the Respondent No.1, but of no avail. This legal notice is ANNEXURE Р-4 to the Petition.

Respondent No.2, a competing MSO, under deliberate connivance of Respondent No.1, had established the relationship and continued the supply of TV Channel Signals to Respondent No.1’s network, even without obtaining 'no-dues' certificate from the petitioner. As per terms of the Regulation 6(4) and 6(5) of the Telecommunication (Broadcasting & Cable Services) Interconnect (Digital Addressable System) Regulation, 2012. Respondent No.1 was duty bound to give notice to Petitioner and make a payment of subscription dues and return of the STBs, then it can migrate to other MSO.

A cause of action, within the Territorial jurisdiction of this Tribunal, within the period of limitation, had arisen. Hence, this Petition with above prayer.

Reply, by Respondent No.2 was with this contention that a written understanding between Respondent No.1 and Respondent No.2 had arrived long back, and it had resulted relationship existed in their business. No illegal migration to respondent no. 2 was there, nor there was any cause of action arisen for Respondent No.2, nor any Privity of Contract in between, Petitioner and Respondent No.2. Hence, the prayer for dismissal of this Petition was made.

This was replied, by way of replication cum rejoinder, by contending the contention of Petition and an illegal connivance and migration by Respondent No.1 to Respondent No.2 and liability arisen separately, as well as jointly, against both of the Respondents.

The proceeding against Respondent No.1 was directed to be ex parte in terms of order, dated 11.04.2018, passed by this Tribunal and it was again mentioned by Court of Registrar in order, dated 08.05.2018.

On the basis of pleadings of both side following issues were framed on 22.05.2018 :-(1) Whether the Respondents are jointly and severally liable to return the STBs and clear the dues of the Petitioner as claimed in the Petition? (2) Whether R-2 has acted in contravention of the interconnect Regulations of TRAI on account of its admission that it is supplying signals to R-1? (3) Whether R-1 has acted in contravention of the interconnect Agreement by migrating to the network of R-2 without clearing the outstanding dues and return of STBs in favour of the Petitioner?

Evidence by way of Affidavit for or on behalf of Petitioner as of Mr. V. Suresh Kumar, was got filed.

Written Submission by Petitioner got filed.

Heard Learned Counsel for Petitioner as well as Respondent No.2 and gone through material placed on record. 17.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. 18.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. 1 - This Tribunal, in previously decided cases had specifically laid down that because of being no Interconnect Agreement or contract, in between Petitioner, an MSO with competitive MSO, there may never be Privity of Contract, in between, two Multi System Operators (MSOs) and because of no contractual obligation, no relief against competing MSO, may be awarded. The alleged migration by LCO - Respondent No.1 has been said by Petitioner. The outstanding subscription dues, if any, had been said to be outstanding against LCO, that is Respondent No.1 and his failure to make payment of same, resulting a cause of action, is to be heard and awarded against him only. The STBs as well as Viewing cards, were said to have been issued to Respondent No.1-LCO, for their installation at the subscribers’ premises and return of same ought to be from above LCO. The migration by the above LCO, to competitive MSO, without observing the mandatory provision of 6(4) and 6(5) of the Interconnect Agreement Regulation, 2012 has also been levelled against Respondent No.1 only, and in the present case, Respondent No.1, even after sufficient service and opportunity, had chosen not to appear or contest in this Petition. There is no reply, nor any Evidence by Respondent No.1. Hence, the joint liability, against Respondent No.2 is not established by Petitioner. Accordingly, issue no.1 is decided in favour of Respondent No.2 and against Respondent No.1. 20.Issue No. 2 - On the basis of discussion made in issue no.1 and there being no Privity of contract, in between Petitioner and Respondent No.2. The business relation, in between, Respondent No.1 and Respondent No.2 is not of any avail to Petitioner because Petitioner himself as admitted in his Petition that Respondent No.2 is a PAN India basis MSO, duly licensed for it. That is Respondent No.2 being a competitive MSO, having the area operation at Jabalpur, Madhya Pradesh is undisputed fact. Hence, by this fact Respondent No.2 may not be fastened with any liability. Accordingly, this issue is being decided in favour of Respondent No.2.

Issue No.3 - The Petitioner, in its Petition had categorically written the competence of Petitioner Company, its license, its resolution, authorizing Mr. V Suresh Kumar, its agreement entered with Respondent No.1, its outstanding subscription dues, in the tune of Rs.92,786/- (Rupees Ninety Two thousand seven hundred eighty six only), existing against Respondent No.1, as per Annexure P-9 at page no.56 of the Petition, the issuance of 211 STBs along viewing cards to Respondent No.1, in action of Interconnect Agreement, Annexure P-2 and a proof as Annexure P-3. This being not returned as yet by Respondent No.1. The facts written in this Petition has been reiterated in the Affidavit Evidence of Mr. V Suresh Kumar filed a Evidence in Chief on oath, with no cross-examination or controversion. There is no Evidence, no reply, no pleading, by Respondent No.1. Hence, the fact pleaded has been proved by way of Evidence Affidavit, having no controversion and no iota of Evidence against it by Respondent No.1. Hence, the entire burden of proof laid upon Petitioner had been duly proved by it in all preponderances of probabilities. The facts have been proved by Petitioner, as against Respondent No.1.

The Petition is to be decreed for above outstanding subscription dues, as on date 31.03.2016, with simple interest of 9% per annum, which is being awarded by this Tribunal in most of the decided precedents considering the financial and fiscal scenario of Cable TV business pendente lite and future, on the date of accrual to the date of actual payment. The mandate to return those 211 STBs, along with viewing cards in good and workable condition is to be given. But admittedly, the agreement was of 2013 and Petition is of 2018. Hence, after lacks of this more many 8 years, an electronic item may never be good and workable condition. Hence, in the interest of justice that is to be compensated by way of depreciated cost of those 211 STBs and it will come to be about Rs.1,000/- per STB, as has been in many precedents. Then total comes to be 211*1000 = Rs. 2,11,000/-. Accordingly, Petition is to be decreed against Respondent No.1. ORDER The Petition is being decreed with cost against Respondent No. 1., Mr. Rakesh Agarwal, who is being directed to make payment of Rs.92,786/-(Rupees Ninety Two thousand seven hundred eighty six only), towards outstanding subscription dues, as on 31.03.2016, and along with pendente lite and future interest @ 9% per annum Simple Interest, from above date to actual payment, within the two months of Judgment in the Tribunal for making payment to Petitioner. He is being further directed to make return of 211 STBs along with Viewing Cards, in good and working condition to Petitioner, or to make deposit, within two months towards the cost of same and in the tune of Rs.2,11,000/- @ Rs.1,000/- per STB, for making payment to Petitioner and in case of failure, the interest, pendente lite and future, @ 9% S.I. per annum, will be payable over above calculated cost. Formal order / decree be got prepared by office, accordingly. ….......……………… (Justice Ram Krishna Gautam) Member 30.07.2026 /NC/