HINDUJA GLOBAL SOLUTIONS LIMITED Vs NEW NAGPUR CABLE NETWORK ASIF SHEIKH

1. 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 IndusInd

Media and Communications Ltd., against Asif Sheikh, proprietor of New Nagpur Cable Network, Nagpur, Respondent No. 1, and Siti Cable Network Limited, Worli, Mumbai, Respondent No. 2, with a prayer to direct Respondents to pay an amount of outstanding subscription fees to the tune of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred Fifty Nine Only), billed upto 31.03.2015, with pendente lite and future interest, @18% per annum, till realization, with a further prayer for a direction to make payment of Rs. 8,17,600/- (Rupees Eight Lakhs Seventeen Thousand Six Hundred Only), towards cost of 584 Set Top Boxes (STBs), alongwith interest @ 18% over it.

2. In brief, the Petition contends that Petitioner is a Company, registered under the Companies Act, and carrying on business of receiving of signal from broadcasters of various television channels, either by satellite or terrestrial means, free to air or encrypted and diffusing or redistributing, such channel by means of co-axial cable and/or optical fiber cable, and associated equipment, to its affiliated/ controlled/ franchise cable networks, for reception by multiple subscribers, i.e., the Petitioner is a Multi System Operator(MSO), operating PAN India and having one of its networks in the city of Nagpur, Maharashtra. Mr Devender Singh Thakur, is the authorised representative of the Petitioner Company, vide Board Resolution, dated 21.05.2015, Annexure P-1 to Petition, who had filed this Petition, for and on behalf of Petitioner Company.

3. Respondent No. 1 is a proprietary firm of Mr. Asif Sheikh Cable Network, running Cable business in Nagpur City, as a Local Cable Operator (LCO) of the Petitioner, for retransmitting the signals provided by Petitioner to its subscribers.

4. Respondent No. 2, M/s Siti Cable Network Limited, is a part of the Essel Group and is India’s prominent Multi System Operator(MSO), operating in the area of Nagpur, Maharashtra.

5. Respondent No. 1 had executed the Standard Technical and Commercial Interconnect Agreement (DAS), dated 01.01.2014, with the Petitioner, governing the rights and obligations, in respect of subscription and distribution of Cable TV Signals, being transmitted by Petitioner to Respondent No. 1, and this agreement, dated 01.01.2014 alongwith its schedule, is Annexure P-2 to Petition.

6. Pursuant to the said agreement, dated 01.01.2014, Petitioner had supplied 584 Set Top Boxes (STBs) to the Respondent No. 1, for installing the same with its subscribers, and it was brand new Set Top Boxes, with a purchase cost of Rs. 1400/- per STB. The Invoice Cum Delivery Challan of the STBs, provided by the Petitioner to the Respondent No. 1, is there. But, in utter defiance of clause 6.4 and 6.5 of DAS Regulations, 2012 and without clearing outstanding subscription dues, to be paid to Petitioner by Respondent No. 1, Respondent No. 1 migrated to Siti Cable Network Ltd. i.e., Respondent No. 2 gradually from the month of February, 2015 onward, without giving 21 days’ mandatory notice, required under Clause 6.4 and 6.5 of the Interconnection DAS Regulations, 2012 and without clearing the subscription outstanding dues of the Petitioner. This came to the notice of Petitioner, in the 1st week of April 2015, when all the STBs were swapped by Respondent No. 1, with Respondent No. 2, by 31.03.2015. Hence, both of the Respondents, are severally as well as jointly, liable to make the payment of cost of all 584 STBs, i.e. Rs. 8,17,600/- @ 584 * Rs. 1400/-.

7. Petitioner had raised regular monthly computer generated invoices for subscription dues to Respondent No. 1, seeking payment of the monthly subscription amount, and these invoices were hand delivered to Respondent No. 1. The copy of the last invoice of month of March, 2015, handed to Respondent No. 1, in the month of April, 2015 is Annexure P-3 to Petition. The Respondent No. 1 was very irregular in making payment towards outstanding subscription dues, rather, it was being paid in part. Inspite of several oral requests, the outstanding subscription dues, in the tune of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred Fifty Nine Only), due upto March, 2015, was not paid by Respondent No. 1. A copy of Statement of Account of Petitioner is Annexure P-4 to Petition.

8. A legal notice, from the Office of Collector, Nagpur was received by Petitioner on 01.04.2015, with a direction to not connect the Local Cable Operator, Respondent No. 1, to its network without obtaining ‘No Objection Certificate’ from Collector’s Office in respect of payment of arrears of entertainment tax. This notice is Annexure P-5 to Petition. Ultimately, Petitioner had issued a notice, dated 22.04.2015, to both of the Respondents, to pay the outstanding subscription fees of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred Fifty Nine Only) with an interest @18%, calculated on monthly basis, from the date of default in realization, as well as to return STBs or to make the payment of cost of STBs, amounting Rs. 8,17,600/- (Rupees Eight Lakhs Seventeen Thousand Six Hundred Only) alongwith interest @18% per annum over it, within 04 days of the receipt of this notice. This notice, served through R.P.A.D. is Annexure P-6 to Petition. Neither payment was made, nor STBs were returned by Respondent. The notice of Petitioner dated 22.04.2015 was neither replied by Respondent No. 1, nor by Respondent No. 2 i.e., the fact of illegal swapping of Petitioner’s 584 STBs has not been rebutted by both the Respondents. Respondents have disconnected signals of Petitioner, without making compliance of agreement, Regulations from February, 2015 onwards. A cause of action, within a period of limitation, within territorial jurisdiction of this Tribunal, in between, three service providers had arisen. Hence, this Petition with above prayer.

9. Owing to change of name of Petitioner Company, from IndusInd Media and Communication Limited, the present name and status Hinduja Global Solutions Limited, had been brought on record, and this was with permission of leave by this Tribunal, in judicial side.

10. Reply, for and on behalf of Respondent No. 1, was with denial of the contention of Petition, in whole, subject to contention that it was the Petitioner, who had disconnected the TV Channel Signals to the network of Respondent No. 1 in an arbitrary, high handed manner, without any notice, as mandated by the Regulations, without assigning any reasons for such disconnection, and it is the Petitioner, who had caused to this Answering Respondent No. 1, irreparable loss as subscribers left the network of Answering Respondent, owing to illegal and arbitrary disconnection by Petitioner in February, 2015.

11. Respondent No. 1 had not indulged in any alleged swapping, rather, Petitioner had not come forward to claim and collect the STBs, which in any event, after disconnection of signal by Petitioner, are redundant for any purposes, to this Answering Respondent No. 1. It was the Petitioner, who illegally required the Respondent to swap its own Set Top Boxes with those of other MSOs, which was refused by this Respondent, resulting promptly deactivating the signals of Respondent, with a raising of bogus, imaginary and fabricated claims of alleged outstanding subscription dues, in its notice, dated 22.04.2015.

12. Petitioner, being one of the major Multi System Operator, in the country, having strong dominance and monopolistic power, pressurized LCOs, including present Respondent No. 1, to agree one sided terms, for the supply of digital signals, on arbitrary rates, upon its Cable Operators, by failing to adopt transparent business practices in the market. He took blank signed cheques, as a mandatory pre-condition for doing this business, and subsequently, threatened to utilize the same in criminal complaints. The said Interconnect Agreement was not supplied to Respondent No. 1. No invoices were ever raised, nor were ever due. Rather, Respondent No. 1 was compelled to make payment, on a unilateral and whimsical basis, @ Rs. 55/56 per subscriber, since 2014 and this money was being recovered forcibly with no outstanding at any moment. 584 STBs, being said to be of brand new, were never supplied to Respondent No. 1. The alleged cost of Rs. 1400/- per STB, and the alleged invoice cum delivery challan, is also forged and fabricated. Rather, 580 number of STBs were supplied to Respondent No. 1 by the Petitioner, in a staggered manner, as and when required by Respondent No. 1, from time to time, and that too only after deposit of a varying amount of Rs. 700 to Rs. 1200 per STB, as refundable security deposit. The Petitioner also too blank signed cheques, as security from this Respondent No. 1. The alleged Statement of Accounts, filed by Petitioner, is disputed and denied. Respondent has made all concerned payments to the Petitioner and there is absolutely no outstanding subscription fee payable by it to the Petitioner. Hence, the Petition was prayed to be dismissed.

13. Replication cum rejoinder by Petitioner is with the denial of the contention of reply and reiteration of the contention of Petition.

One additional fact was given in this part of pleading, that Tribunal, vide its interim order appointed, Mr. Kunal Tandon, as a Court Commissioner, with a direction for ensuring the return of STBs, and the report filed by this Advocate Commissioner and the actual factual position, not being disputed by this Petitioner, was that out of 584 STBs, being claimed in Petition, 580 STBs were returned by this Respondent No. 1. Thereby, the number of STBs remained to be pending with Respondent No. 1 were 04. Hence, the claim in this head was prayed for 04 STBs only.

14. On the basis of pleadings of both side, following issues were framed by Registrar of this Tribunal on 01.12.2017 (Order Dated 11.05.2017 in BP No. 279 of 2015):

1. Whether Petitioner is entitled to claim amount towards outstanding subscription fees and cost of Set Top Boxes along with interest from Respondent No. 1 and 2 as claimed in the respective Petition? 2. Whether signals of the Petitioner were disconnected by Respondent No. 1 in compliance of TRAI Regulations?

3. Whether Respondent No.1 is entitled to refund of security fee towards Set Top Boxes from the Petitioner? 4. Whether Petitioner can claim any relief against Respondent No. 2 for alleged irregularities committed by Respondent No. 1?

15. Petitioner filed its evidence by way of affidavit of Harish Kalyani. Respondent No. 1 filed its affidavit admitting 580 STBs were supplied by petitioner.

16. Written submission by Petitioner and Respondent No. 2 got filed. On the date of hearing, none appeared for Respondent No. 1, and owing to failure to appear by Respondent No. 1, on repeated dates, the proceeding took as ex-parte against Respondent No. 1.

17. Heard arguments of Learned Counsel for Petitioner, as well as Respondent No. 2 at length, and gone through materials placed on record.

18. 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.

19. 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.

20. Issue No. 2

The Petition is with specific contention that in the month of February, 2015 Respondent No. 1 was LCO, of Petitioner-MSO, migrated to Respondent No. 2, a competitive MSO, without giving statutory notice of 21 days, required under Regulation 6.4 and 6.5 of Interconnect Regulation, 2012, and making payment of outstanding subscription dues to Petitioner. Whereas, Respondent No. 1 in its reply had clearly admitted the disconnection from February, 2015, and ultimately, its migration to Respondent No. 2, for protecting its business. But, this was said to be unilateral disconnection by Petitioner itself. Hence, the issue had been framed by Registrar, as to whether signals of Petitioner were disconnected by Respondent No. 1, in compliance of TRAI Regulations i.e., there is no contention by Respondent No. 1, that it disconnected the Petitioner’s signal in compliance of TRAI Regulations. Meaning thereby, this issue was never raised on the basis of pleadings of both side. The issue which had arisen in this context is as to whether Respondent No. 1, migrated to Respondent No. 2, without observing those provisions of TRAI Regulation, as is being said by Petitioner, or it was the Petitioner itself, who had disconnected its signal to Respondent No. 1. The very burden of proof, was upon Petitioner, that the migration was by Respondent No. 1 to Respondent No. 2, then this onus shifts over Respondent No. 1 to prove, that migration was not there of Respondent No. 1 to Respondent No. 2; rather, it was disconnection by Petitioner itself. But, end of the relationship from the month of February, 2015, in between, two parties to above Interconnect Agreement is undisputed. Now, the Petitioner, vide its evidence in affidavit, had reiterated its contention that it was the migration i.e., illegal swapping by Respondent No. 1 with MSO-Respondent No. 2, started from February, 2015 and completed in March, 2015, and for this evidence, there is no cross examination or request of cross examination by Respondent, for having an opportunity to test this witness, on the anvil of cross examination. Rather, the very contention of Petition has been substantiated by this uncontroverted affidavit of Petitioner. Hence, the burden to prove, that it was Petitioner, who had deactivated the signals, against the Interconnect Agreement, was upon Respondent No.

1 and Respondent No. 1 opted not to contest this Petition, resulting ex-parte proceeding against it. The proprietor of Respondent No. 1 in its affidavit had admitted that 580 STBs were supplied by petitioner. Appointment of Advocate Commissioner, Mr. Kunal Tandon, was made in compliance of Interim Order of this Tribunal. Whereas, the agreement itself was with clear mention that these STBs were the property of Petitioner, MSO. The moment relationship ceased, in between, there was every responsibility to return these STBs to Petitioner. Hence, this issue is being decided against Respondent No. 1.

21. Issue No. 1 The Petitioner in its Petition had said that computer generated invoices were raised and handed over to Respondent No. 1, for making payment of the same, and it was the part payment, very irregularly, was being made by Respondent No. 1. The Statement of Account, being maintained in usual ordinary course of business by Petitioner had been filed on record, and it had been annexed with evidence affidavit, with a certificate, required under Section 65B of Evidence Act, with a specific mention that it was drawn from the computer, being operated by a computer in charge, having the data, stored in it, in the usual course of business from where it was drawn and filed on record as data evidence. This affidavit had been allowed, in evidence and taken in evidence by this Tribunal. Meaning thereby, this Statement of Account is with clear mention of the outstanding subscription dues, in the tune of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred fifty Nine Only), due till March, 2015 against Respondent No. 1. As against this contention, the reply of Respondent No. 1 is with specific mention, that nothing remained as due, towards subscription dues, rather, the subscription dues were being paid by Respondent No. 1. Now, this burden shifts upon Respondent No. 1 to prove the payment of subscription dues, as has been said by it.

Petitioner had said that subscription dues was outstanding and the Statement of Account, maintained in the ordinary course of business, had been annexed with the Petition, as well as evidence affidavit, alongwith certificate, required under Section 65B of Evidence Act, with full assertion of the contention of this and dues outstanding towards subscription amount. Hence, this burden which was the onus of proof over Petitioner, had been fully discharged by this Petitioner. Now, the reply of Respondent No. 1 is of this contention that it had made the entire payment towards subscription dues. Hence, this onus to prove this fact shifts over Respondent No. 1 and for this Respondent No. 1 was under duty to prove its contention that it had made the payment of subscription dues to Petitioner, till the cease of the relationship, in between. But, no Statement of Account or cogent evidence has been filed by Respondent No. 1 on record. Merely, the contention of the same vague fact of payment in affidavit evidence is there. Hence, under all preponderance of probabilities, the burden of proof lying upon Petitioner had been exhausted and proved the outstanding subscription dues till March, 2015 in the tune of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred fifty Nine Only), against Respondent No. 1. Hence, for this, Petitioner is entitled to receive from Respondent No. 1. The 04 STBs are also to be taken back from Respondent No. 1, but, Respondent No. 1 in its reply had specifically said that remaining STBs to be redundant one.

Hence, they are of no avail, hence, the depreciated value @ Rs. 1000/-per STBs, for 04 STBs are to be awarded against Respondent No. 1, in favour of Petitioner. Accordingly, the total outstanding subscription dues, in the tune of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred fifty Nine Only) alongwith the cost of depreciated value/cost of 04 STBs @ Rs.1000/-, amounting to Rs. 4,000/- (Rupees Four Thousand only) is also to be awarded in favour of Petitioner. The pendente lite and future interest, as has been previously awarded by this Tribunal, in many of the Judgments, decided under the present fiscal and financial scenario @ S.I. 9% is to be awarded in favour of Petitioner against Respondent No. 1, for those amounts. So far as Respondent No. 2 is concerned, admittedly, there is no Privity of Contract in between, Petitioner and Respondent No. 2. Petitioner and Respondent No. 2 are competitive MSO, having no contractual obligation, in between. And no evidence of connivance in alleged migration, rather, specific denial by Respondent No. 1 towards migration, and the law laid down by this Tribunal, in many previously decided cases, is of no liability towards this claim.

More so, Learned Counsel for Petitioner, in its argument, has admitted that he is not making any claim against Respondent No. 2, because of there being no privity in between and the law settled by this Tribunal in this regard. Accordingly, this issue is being decided, as above, in favour of Petitioner, as against Respondent No. 1 only.

22. Issue No. 3 The very contention of making payment of security amount, by Respondent No. 1, for issue of those 584 STBs is not substantiated because of the return of 580 STBs by Respondent No. 1, through Advocate Commissioner to Petitioner. More so, the alleged covenant of security etc., is not there in the agreement, nor it has been proved by any cogent evidence. Hence, this issue is being decided against Respondent No. 1.

23. Issue No. 4 On the basis of decision of Issue Nos. 1 and 2, this Issue No. 4 is being decided in favour of Respondent No. 2.

24. On the basis of above discussions, this Petition merits to be decreed as against Respondent No. 1.

ORDER The Petition is being decreed as against Respondent No. 1. Respondent No. 1, Asif Sheikh, is being directed to make deposit of Rs. 8,82,559/- (Rupees Eight Lakhs Eighty Two Thousand Five Hundred fifty Nine Only), towards outstanding subscription dues, upto 31.03.2015 and Rs. 4,000/- (Rupees Four Thousand Only) towards depreciated cost of 04 STBs with pendente lite and future interest, from the date of Petition till actual realisation @ 9% per annum Simple Interest, within the two months of Judgment in the Tribunal for making payment to Petitioner and in case of failure, the same is to be got executed as per procedure of execution. Formal order / decree be got prepared by office, accordingly.

….......……………… (Justice Ram Krishna Gautam) Member 23.07.2026 /BN/