HATHWAY DIGITAL LTD Vs SRISTI TELEVISION PVT. LTD

1. This Petition, under Section 14A (1) read with Section 14 (a) (ii) of the Telecom Regulatory Authority of India Act, 1997, (hereinafter referred to as “TRAI Act”), has been filed, by Petitioner Hathway Digital Ltd., earlier known as Hathway Digital Private Limited, a registered Company, MSO, against Sristi Television Private Limited, Kolkata, Respondent, a broadcaster Company, with a prayer for a decree in the tune of Rs. 21,75,000/- (Rupees Twenty One Lakhs Seventy Five Thousand Only), due towards Channel promotion dues in favour of Petitioner against Respondent, with a further prayer of interest @ 24% per annum.

2. In brief, the Petition contends that Hathway Digital Limited, Petitioner is a Company, incorporated under the provisions of the Companies Act, 1956, having its Registered Office at 805/806 Windsor, 8th Floor of CST Kalina Road, Santa Cruz (East), Mumbai – 98, and is engaged in retransmitting the signals of Cable TV to its various operators on PAN India basis i.e., an MSO engaged in the business of Distribution of Television Channels, under the License under Cable Television Networks Act. This Company was previously known as Hathway Digital Private Limited and it was subsequently renamed as present one, w.e.f., 03.06.2020.

3. Respondent Sristi Television Private Limited is a Company incorporated under the Companies Act, 1956, having its registered Office at B.K Tower, 2nd Floor, 170A, A.J.C Bose Road,

Kolkata - 14 and is a broadcaster/ Channel Provider, which distributes the channel namely “Sristi TV”.

4. Respondent, being desirous to promote its channel, and its content thereof on the Petitioner’s network, had approach with a request for same and it was accepted by Petitioner. Accordingly, a memorandum of understanding, was got entered in between, on 08.02.2019, under the terms and conditions written in it, for promoting the said channel of Respondent, for a payment of Rs. 28,80,000/- (Rupees Twenty Eight Lakhs Eighty Thousand Only), plus applicable taxes per annum, to be paid as monthly advance, for a period commencing from 01.02.2019 to 31.01.2020 for the area of West Bengal, and this Memorandum of Understanding (MOU) is Annexure P-1 to Petition.

5. This MOU, dated 08.02.2019, expired, by efflux of time, on 31.01.2020. But, Respondent verbally requested the Petitioner to continue with the arrangement/ understanding, subject to renewal of this undertaking, because of the prevailing COVID 2019 pandemic situation. But, even after enjoying the services of Petitioner, Respondent without any protest or demur, failed to make payment of invoices made and raised against it. Rather it made part payments only, since the very inception of agreement. The invoices sent to Respondent are Annexure P-2 (Colly) to Petition. The Statement of Accounts, being maintained by Petitioner, in its ordinary course of business, is appended/ Annexed P-3 to Petition. The Respondent was irregular in making payment and was violating the terms and conditions of MOU, dated 08.02.2019. Petitioner requested to clear all dues, but of no avail. Subsequently, many emails were written and those emails dated 12.03.2020, 21.03.2020, 18.04.2020, 28.04.2020, 04.05.2020, 13.05.2020 and 09.06.2020 are Annexure P-4 (Colly) to Petition. But, owing to failure to make the compliance and payment, or entering into a subsequent agreement, a notice dated 14.07.2020, requesting for clearing the outstanding dues amounting Rs. 21,75,000/- (Rupees Twenty One Lakhs Seventy Five Thousand Only), was sent and it was got served over Respondent, but no response was there. This notice is Annexure P -5 (Colly). Ultimately, the notice for disconnection Annexure P-6 (Colly), dated 20.07.2020, was issued and subsequently, the disconnection was made of Respondent, from its Platform on 12.08.2020, on the ground of Non-Payment of outstanding dues. A cause of action had arisen within the territorial jurisdiction and Period of limitation of this Tribunal. Hence, this Petition with above prayers.

6. Reply was with denial of contention regarding the facts, post MOU period, which expired on 31.01.2020. As per contention, the MOU was entered, in between, the amount written in it was agreed, payment was being made, but a balance in the tune of Rs.4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only) was there, but, owing to COVID-19 pandemic, it could not be paid. But, no agreement was in existence after the end of previous MOU. For the alleged claim, there is no dues beyond Rs.4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only), against Respondent. The invoices raised are the emails written, may not be of any effect for revival of agreement, unless agreed by Respondent. No services were availed by Respondent for the said period.

7. The disconnection notice or cessation of relationship, is not a correct one. Rather, relationship ended by the efflux of time, regarding the MOU entered, in between. Hence, the prayer is for dismissal of this Petition with regard to amount other than Rs.4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only).

8. Rejoinder cum replication is with same contention of Petition, and negation of contention of reply.

9. Learned Registrar of this Tribunal framed following issues on 28.02.2022, on the basis of pleadings of both side: 1. Is the Petition maintainable in its present form? 2. Whether the Respondent is liable to pay to the Petitioner a sum of Rs.21,75,000/- towards channel placement charges along with interest @ 24% p.a.? 3. To what other relief / reliefs the Petitioner is entitled to?

10. Petitioner filed its evidence, by way affidavit of Mr Rajeev Sengupta and Respondent filed its evidence of Mr Ashok Aggarwal.

11. Heard Learned Counsels for both side and gone through materials placed on record.

12. 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.

13. Issue No. 1 - From the very perusal of pleading, it is apparent that Memorandum of Understanding, existence of relationship, both of the parties being Telecom Service Provider, the relationship in existence, in between, Statement of Account of Petitioner, and the existence of dues, in the tune of Rs. 4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only), in favour of Petitioner, as against Respondent, is not a disputed fact. Hence, this Petition is very well maintainable, in its form, for the cause of action arisen, in between. Hence, this issue is being decided in favour of Petitioner.

14. Issue No. 2 - The dues, as on 30.01.2020, in the tune of Rs. 4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only), is not being disputed. Rather, the Statement of Account filed by Respondent on record, is with the same mention of dues, on above date of cessation of previous admitted MOU. Whereas, the Statement of Account filed by Petitioner, is of the same fact and calculation, wherein the dues has been shown to be of Rs. 4,75,800/- (Rupees Four Lakhs Seventy Five Thousand Eight Hundred Only), on above date. Hence, till 30.01.2020, the Statement of Account, is in consonance with each other. The dispute is with regard to that period till alleged disconnection, and which has been said to be in the tune of Rs.16,99,200/- (Rupees Sixteen Lakhs Ninety Nine Thousand Two Hundred Only). For this the burden of proof was upon Petitioner to prove its case, and for this, Petitioner’s evidence, as an affidavit, coupled with the certificate, required under Section 65B, of evidence Act, is on record. The Statement of Account, maintained during ordinary course of business, has been filed, and it substantiates the contention of pleading.

The affidavit filed in examination in chief is uncontroverted. Neither an opportunity for cross examination was requested, not availed, for testing the testimony of witness, upon anvil of cross examination. Hence, an uncontroverted affidavit is to be taken as it is. The same is in full reiteration of the contention of Petition. Hence, the very basic burden of proof of its case was exhausted by Petitioner. Now, the onus shifts towards Respondent to prove otherwise, that there was no relationship after the cessation of MOU i.e., 31.01.2020, in between. But, the emails appended with the Petition, as well as with affidavit evidence had not been replied by Respondent. The same is in full consonance with the contention of Petition. The bald denial by Respondent is there in its reply, and the same has been said by its witness in its affidavit filed in evidence. Whereas, the emails specified in the Petition, as well as appended with the evidence, are with specific proof of above facts. This civil proceeding is to be decided on the basis of preponderance of probabilities and when both sides have availed their opportunity, of filing their evidence, then the evidence is to be judged on above principle of preponderance of probabilities, and on the basis of same, the case of Petitioner has been fully proved.

15. Learned Counsel for Respondent has pressed the law laid down by Hon’ble High Court of Delhi in 2009 (109) DRJ 126(DB)(SN) Harish Mansukhani Vs Ashok Jain, wherein, the Principle of Sales of Goods Act, 1930, has been discussed. The facts and law involved in present Petition is entirely other than the facts of above alleged precedent. More so, the placement of a channel is never required to be by any specific mandated written agreement, as has been propounded by this Tribunal, in many previous decided cases. The placement of a channel may be in compliance of oral agreement too, which is to be inferred from conduct of the parties. Here, the agreement started by way of written Memorandum of Understanding; it was undisputed till its end by efflux of time. The dispute is with regard to subsequent six months’ relationship. Both side have advanced their argument that this occurred owing to COVID-19 pandemic. The Petitioner continued to place the channel of Respondent and Respondent didn’t make the payment, even for the pre-existing MOU period i.e., in the tune of Rs. 4,90,960/- (Rupees Four Lakhs Ninety Thousand Nine Hundred Sixty Only). Hence, the relation was not extinct by efflux of time, rather, it was in continuation and no account was closed by both side. Under above circumstances, the case of Petitioner had been fully proved. This Issue No. 2 is being decided in favour of Petitioner.

16. Issue No. 3 - The rate of Interest was made a question in Issue No. 2. But this Tribunal in many previous decided Judgments, under the fiscal scenario and considering the COVID-19 pandemic period, had awarded a Simple Interest of 9% per annum. Hence, the facts and circumstances of this case, permits award of interest, as a Simple Interest @ 9% only. Accordingly, this Petition merits to be allowed.

ORDER

This Petition is being decreed with a direction to Respondent to make deposit within two months of the date of Judgment, the amount of Rs. 21,75,000/- (Rupees Twenty One Lakhs Seventy Five Thousand Only), towards outstanding promotion/ placement charges, for making payment to Petitioner, alongwith a Simple Interest, pendent lite and future, till the date of actual payment, @ 9% per annum. Formal order / decree be got prepared by the office, accordingly.

….......……………… (Justice Ram Krishna Gautam) Member 08.07.2026 /NC/