INDUSIND MEDIA & COMMUNICATIONS LTD. Vs SAI KRUPA CABLE

This petition has been filed by the petitioner, which is a Multi Service Operator for recovery of the arrears of subscription fees due from the respondent herein.

2. The petitioner is a company registered and incorporated under the Indian Companies Act, 1956.

It is engaged in the business of providing Cable Television Services under the provisions of the Telecom Regulatory Authority of India Act, 1997 (The Act) within the territory of Mumbai and its suburbs and other towns of India.

3. The respondent is a Local Cable Operator and has been operating its cable business within the territory of Dahisar, Mumbai in the State of Maharashtra.

4. On a subscriber base of 157 (points), the parties hereto entered into an agreement.

As agreed to by and between the parties hereto, the respondent was under an obligation to pay a sum of Rs. 31,752.94/- per month calculated @ Rs. 180 per point per month excluding the applicable taxes towards subscription charges i.e. upto 30.04.2008. Invoices are said to have been raised and handed over to the respondent personally every month.

5. According to the petitioner, the respondent has been making payments as per its convenience, and not as per the invoices raised by it in terms of the said agreement. The outstanding amount which has become payable by the respondent to the petitioner is said to be Rs. 3,46,990/- upon adjustment of payments received from it upto 30.04.2008.

6. The petitioner contended that as per the agreed terms between the parties an amount of Rs. 2,03,565/- upto Aug 2010, towards interest calculated at the rate of 24% p. a. on the said outstanding amount is also due totalling Rs. 5,50,555/- is also payable by the respondent to the petioner. It is stated that the respondent without any notice as envisaged under Clauses 4.2 and 4.3 of the Interconnetion Regulations disconnected the feed/signals from the petitioner’s network which it came to know sometimes in November, 2008.

7. The petitioner in this petition has, interalia, prayed for the following reliefs:

“(a) The respondent be ordered and directed to pay the complainant amount of Rs. 5,50,555/- as on 31st August 2010 with further interest @ 24% p.a. compoundable till realization.

(b) That the Petitioner has transmitted the signals to the Respondent even after 30.04.2008. Hence subscription fees for 21 days @31,752.94 p.m. be granted.

(c) The Respondent be restrained by passing an order of injunction from taking the signals from any other MSO and transmitting the signals to their subscribers, till the outsatnding due amount has been paid to the petitioner.

(d) Hold the said disconnection by the respondent as illegal, violative of the TRAI’s Regulation.

(e) Pass ad-interim/ interim/ex-parte orders(s) in terms of above prayer (f) Award the cost of this Petition in favour of the Petitioner and/or (g) Pass such other/further Orders as this Hon’ble Tribunal may deem fit and appropriate in the facts and circumstances of the present case.”

8. The respondent despite service of notice did not appear. Apart from the notices issued by the Registry of this Tribunal, the petitioner’s advocate has also sent a copy of the petition by speed post on 20.12.2010. The respondent was also informed of the date(s) fixed in the matter from time to time.

9. The status of service of summons/notice sought to be effected upon the petitioner is as under:- ‘ 1. Affidavit of service has been filed by the petitioner with regard to return of packet with the remarks ‘not known sent on 04.01.11. 2. Copy of the petition sent by registry on 28.11.2010 and packet returned with remark ‘unclaimed’. 3. Copy of the petition sent by advocate by speed post on 20.12.2010 receipt available on record. 4. Order dated 20.01.2011 sent by speed post and packet returned on 25.02.2011 with remark “not known” 5. Publication is done in free Press Journal and Nav Shakti on 19.03.11.’ 10. The petitioner has filed the following documents:- (i) Copy of some invoices;

(ii) Copy of the Legal notice dated 09.09.2009;

(iii) Copy of the Ledger Account for the petitioner from 01.04.1996 to 16.04.2008;

11. Shri Sanjeev Ahuja, Head- Legal of the petitioner company has affirmed an affidavit in support of the petitioner’s claim.

12. The said deponent in his affidavit stated as under:- “4. I say that the respondent was having 150 points from the commencement of business transactions till 30.04.08 and the rate was fixed from time to time by the Petitioner. That in the year 2008, the rate was Rs. 180/- per point and the Respondent was liable and responsible to pay towards Free To Air Franchise package amounting to Rs. 28,260/- per month plus Service Tax per month i.e Rs. 3,391.20 plus Education Cess @ 3% on Service Tax i.e Rs. 101.74. Thus, the total amount payable every month was Rs. 31,752.94. The invoices were handed over to the Respondent personally every month. The Respondent has been making payments as per its convenience, and not as per the invoice to the Petitioner. Hence, a running account of the Respondent’s name was maintained in the Petitioner’s account. The outstanding amount of the Rs. 3,46,990/- as on 30.04.2008, plus interest @ 24% from April 2008 to August 2010 amounting to Rs. 2,03,565/-which is total amounts to Rs. 5,50,555/- is payable by the Respondent to the Petitioner. 5. I say that without giving due notice as required under law, the Respondent has abruptly discontinued feed/signals from the Petitioner’s network. The Petitioner came to know about the discontinuation only somewhere in November 2008.”

It was also stated:- “6. I say that as per the statement of account in the Petitioner’s book of accounts, the Respondent is liable and responsible to pay Rs. 3,46,991/- as on 30.04.2008 plus interest @ 24% from April 2008 to August 2010 amounting to Rs. 2,03,565/- which in total amounts to Rs. 5,50,555/-. The certified true copy of the Statement of claim amount as in the books of the Petitioner is annexed in the List of Documents.”

13. In this case the Ledger account starts from 01.04.1996 showing a balance of Rs. 3,46,990/-. The first transaction is said to have taken place on 30.05.1996. On or about 15.02.2008 the respondent is said to have made two payments one for a sum of Rs. 28,260/- and the other for a sum of Rs. 3,454/-.

14. This petition having been filed on 10.11.2010 the petitioner would be entitled for a decree only for a period of three years that is for the period 10.11.2007 to 09.11.2010, i.e. for a sum of Rs 63,662/- only.

15. The petitioner would also be entitled to interest @ 9% per annum till they fell due till the date of filing this petition i.e for a sum of Rs. 14,730/-. The petitioner shall also be entitled to interest for pendente lite and future at the said rate.

This petition is allowed in part and to the extent mentioned hereinbefore. In view of the fact that the respondent has not appeared, there shall be no order as to costs.

……………… (S.B. Sinha) Chairperson

/AS/