Technobile System Pvt Ltd vs Trimurti International Network & Anr

Heard learned counsel for the decree holder and learned counsel for the judgement debtor and also perused the original report of the learned

Advocate Commissioner dated 12.01.2021 and the supplementary report filed on 16.2.2021 in terms of a subsequent order passed on 11.2.2021.

The supplementary report shows that in the second round, in view of order dated 11.2.2021, some more STBs have been tested and accepted. As a

result, liability of the judgment debtor - Manoranjan Cable TV Network in E.A.No. 12 of 2019 has been further reduced.

Now in principle, there is no issue or objection pending against the report of learned Advocate Commissioner except some minor issues which have

been raised by learned counsel for the parties today more by way of error apparent on the face of report or an error in calculation.

Mr. Sampath, learned counsel for decree holder has raised an issue with respect to rates of three accessories that is AV cord, remote and adapter.

The decree holder had given the rates on the basis of costs and the same has been noted in the earlier order passed on 3.12.2020. The rate of AV

cord, remote and adapter was claimed to be Rs. 30/-, Rs. 65/- and Rs. 90/- respectively and additionally GST at the prevailing rate of 18% was also

claimed. Learned Advocate Commissioner in his report has noted the aforesaid rates in para 12 of the Supplementary report and in para 13, he has

recorded the rates which he could obtain on the ground level from three different shops. There was reluctance on the part of the shopkeepers in

showing GST separately and in preparing bills accordingly. In para 14, learned Advocate Commissioner has recorded that subject to final approval of

this Tribunal, the medium range of the cost of the accessories should be considered for determination of the amount payable by the judgment debtor

for the accessories. Accordingly, he has proposed the following rates :

AV Cord - Rs. 25/- + GST

Remote - Rs. 55/- + GST and

Adaptor-Rs. 80/- + GST

In E.A. No. 12 of 2019, the total liability on the basis of order dated 3.12.2020 has been worked out in a chart in para 17. That chart also contains

columns showing liability (excluding GST) not only as per order dated 3.12.2020 but also as per above recommendation of the learned Advocate

Commissioner.

The difference in the final figures under the two columns is approx. Rs. 2 lakh. The parties are ad-idem that there is a calculation error in

calculating the total cost of the accessories because the missing number has been calculated not on the basis of number of STBs returned but on the

basis of total no. of STBs required to be returned. Hence, on correcting that error not only in E.A. No. 12 of 2019 but also in E.A. No. 11 of 2019 and

E.A. No. 13 of 2019 wherein also similar errors had crept in, the figures of final liability have changed.

The exact figures would be indicated below but after considering the two issues raised on behalf of the decree holder. The first issue as per

submission relates to cost of three accessories. Mr. Sampath wants the cost quoted by the decree holder to be accepted in place of the rates

recommended by the learned Advocate Commissioner.

Considering the entire facts and circumstances and the situation in which a liberty was given to the learned Advocate Commissioner to find out the

rates from the market in case of dispute between the parties, it is deemed just and proper to accept the rates recommended by learned Advocate

Commissioner.

The other issue is that of GST. As noted earlier in this order, learned Advocate Commissioner has in paragraph 14 indicated the cost of Rs.

25/-, Rs.55/- and Rs. 80/- and had also allowed GST to be added, but subsequently, he did not recommend for GST on the basis of ground reality that

the shopkeepers were not willing to quote GST separately and even in the best scenario, they were willing to indicate GST separately only for 50%

of the purchase.

In the considered opinion of this Tribunal, such an undesirable situation in the market should not be the reason for depriving the decree holder of just

compensation which should include GST if he has to buy fairly the accessories in question for being shown in its records.Â

Such purchase is subject to GST as per law. Hence, the claim for GST should have been included in the calculations.

Allowing that error also to be corrected, the final figures for the liability of the judgment debtor in EA Nos. 11, 12 and 13 of 2019 is calculated to be

as follows :

EA No. 11 of 2019 -Â Rs. 5,12,272/-

EA No. 12 of 2019 -Â Rs. 64,46,454/- and

EA No. 13 of 2019 -Â Rs. 2,71,375/-

The aforesaid re-worked out figures are after correcting the calculation error and after adding the claim of the GST over the accessories whose

rates have been accepted as per recommendation of the learned Advocate Commissioner. The aforesaid figures shall be the figures arising out from

the report of the learned Advocate Commissioner as accepted by this Tribunal after hearing the parties. The parties must meet their liability as per

orders of this Tribunal without any delay. Mr. Sampath submits that the liability has to be met by 23rd February, 2021.

A minor issue with regard to calculation and payment of interest by the judgement debtors in terms of order of this Tribunal dated 3.12.2020 has been

flagged by Mr. Sampath to which a very fair reply has been given by learned counsel for the judgment debtors that he may communicate the

calculations and difference claimed which shall be duly considered and if any error is there, the shortfall will be met within a reasonable time. If there

is any shortfall found, that should be met promptly without any delay.

The parties are expected to work out this issue by exchange of e-mails.

Last but not the least is the issue of payment of remuneration to the learned Advocate Commissioner, who has done a wonderful job in most difficult

situation. The tasks relating to the assets, STBs and accessories at the ground level can never be an easy job. The Tribunal thanks him for undertaking

and completing such difficult task. The supplementary report of 16.2.2021 discloses an unfortunate situation. The remuneration of learned Advocate

Commissioner as accepted by the Tribunal and directed to be paid within a time frame, has not been paid in full even till date. Only part payment

appears to have been made. Learned Advocate Commissioner is satisfied with the stand taken by judgment debtor in EA No. 12 of 2019 for

working out the basis for apportioning among the Judgment Debtors the cost of the Advocate Commissioner as communicated through an email. The

other parties / judgment debtors should follow similar principle and must ensure that the entire outstanding fees of the learned Advocate Commissioner

is paid within one week from today against acknowledgement by learned Advocate Commissioner, otherwise penalty on account of deliberate

disobedience of this Tribunal's orders shall be imposed on daily basis after one week.

Post the matter under the same head on 25.2.2021.