KABLE FIRST INDIA PVT. LTD Vs MEDIA PRO ENTERPRISE INDIA PVT. LTD.

The Petitioner is a Multi Service Operator (MSO) operating in the town of Bangalore in the State of Karnataka.

The Respondent is a content aggregator and transmits signals of Star group of channels as also Zee group of channels. Admittedly, the Petitioner had entered into an agreement with Star Den Media Services Pvt. Ltd., which was a content aggregator of Star group of channels, on 25.6.2011 and with Zee Turner Ltd. the then content aggregator of Zee Group of channels, on 30.7.2010.

Terms and conditions of the said agreements need not be referred to by us as no controversy with regard thereto exists.

It is, however, not in dispute that the Respondent herein by reason of a joint venture agreement has been appointed as the content aggregator in respect of both Star group of channels and Zee group of channels w.e.f. 1.7.2011.

Inter alia on the premise that a huge amount has remained outstanding from the Petitioner as also on the allegation of piracy, the Respondent herein on or about 11.12.2011, issued a notice purported to be in terms of Clause 4.1 of Telecommunication (Broadcasting and Cable Services) Interconnect Regulations, 2004 as amended from time to time (the Regulations).

By reason of the said notice the Petitioner was intimated that a sum of Rs.1,19,08,149/- is owing and due to it. A public notice in terms of Clause 4.3 of the said Regulations has been published in two newspapers, on the grounds of default and piracy.

This petition was filed on 15.12.2011. The matter was listed before this Tribunal on 16.12.2011, on which date a contention was raised by Ms.Singh that the Petitioner owes to the Respondent the aforementioned amount of Rs.1.19 crores.

Learned counsel appearing on behalf of the Petitioner was directed to seek instructions with regard thereto.

Mr.Bhagat, learned counsel appearing on behalf of the Petitioner would contend that from the ledger accounts maintained by it, it would appear that as on 9.11.2011, a sum of Rs.7,17,455.50 paise was due sofar as Zee group of channels is concerned and if therewith the stipulated amount of subscription fee of Rs.22,17,443.18/- is added, the Respondent would be entitled only to a sum of Rs.29,34,898.50 paise/-.

Sofar as, however, the Star group of channels is concerned, Mr.Bhagat urged that although, as on 9.11.2011, a sum of Rs.31,96,233.53 paise was payable to the Respondent herein, however, having regard to the fact that the Petitioner upon due service of notice of Regulation 4.2 as also a public notice under Regulation 4.3 dated 10.6.2011 and 15.6.2011 respectively, discontinued to take supply of signals of Bouquet II of Star channels, an excess payment of about Rs.16,35,363.53 paise had been made and in that view of the matter taking into consideration the amount of subscription fee payable for the month of December, namely, Rs.19,22,308/- a sum of Rs.2,86,945.53 paise only is due and payable.

Learned counsel would contend that from the letter of Star Den dated 30.6.2011, it would, furthermore appear that as on that date no amount was payable by the Petitioner to it.

The said letter reads as under :- “ 30.6.2011 To Kable First India Pvt. Ltd (CRN 10036043) No.29/4, Trade Centre, 4th Floor Race Course Road Bangalore – 560 001 Sub : Balance Confirmation as on 30.6.2011 for (CRN 10036043) Dear Customer,

With reference to above subject, we confirm you that as per our books there is NIL balance or outstanding payable to us as of June 30,2011 for Kable First Bangalore Account CRN -10036043 subject to clearing of Cheque No.031375 dated 29.6.2011 for Rs.80,74,674/- (Rupess Eighty lakh seventy four thousand six hundred seventy four). The balance confirmation also include the PPD amount settled till June 2011 and also the TDS certificate of Rs.312,008/- to be submitted by Kable First Bangalore. Kindly acknowledge the same. Thanking you, Yours sincerely Sd/-“

Mr.Bhagat would also contend that the Petitioner had not indulged in commission of piracy in regard to the Bouquet II of the channels as has been alleged by the Respondent or otherwise.

A short reply has been filed by the Respondent only today, a copy whereof has been served upon Mr.Bhagat.

The following contentions have been raised by Ms.Pratibha M. Singh:- (i) From the statement of accounts of the Respondent, it would appear that the Petitioner owes to it a sum of Rs.1,25,93,697/-.

(ii) From the Respondent’s letter dated 30.6.2011, it would furthermore appear that the contents thereof tally with the Petitioner’s statement of account. (iii) There being no controversy with regard to the amount of subscription fee in respect of Zee group of channels but there being a controversy with regard to the subscription fee of Star group of channels, namely, whether the same is Rs.19,23,308/- or Rs.25 lakhs, there is absolutely no reason as to why the Petitioner should not be directed to pay the demanded amount. (iv) Admittedly, the Petitioner owes a huge amount on its own showing to the Respondent; be it around Rs.82 lakhs or Rs.86 lakhs. (v) The Petitioner has not returned the IRD boxes in respect of bouquet II of Star group of channels and indeed it had been raising carriage fee for carrying the said channels by raising invoices for the period 15.11.2011 to 14.11.2012 and 15.8.2011 to 14.11.2012, for a sum of Rs.13,23,600/- each, for the quarters in question and cheques in respect to such bills have been issued. (vi) The Petitioner has indulged in piracy.

(vii) The Petitioner having not approached this tribunal with a pair of clean hands is not entitled to any equitable relief.

The fact that the Petitioner entered into a subscription agreement with Star Den and Zee Turner is not in dispute.

The original amount of subscription fee payable to Star Den is also not in dispute. The principal controversy between the parties herein revolve round the question as to whether the Petitioner had returned the IRD boxes in respect of bouquet II of the channels of the Star group or not.

The short reply having been filed only today by the Respondnet wherewith a copy of the CD has been attached, it is necessary that some time be granted to the Petitioner to respond thereto.

Sofar as the question of arrears of subscription fee is concerned, we have noticed heretobefore that the controversy between the parties lies in a narrow compass.

Ms.Singh has correctly contended that the letter of the Respondent dated 30.6.2011 addressed to the Petitioner showing a nil balance tallies with the statement of account filed by the latter.

We have also noticed hereteobefore that the question as to whether the Petitioner has returned the IRD boxes and thus had in fact been retransmitting the signals of Bouquet II of Star Group of channels is in controversy.

We, therefore, are of the opinion that for the present the Petitioner may not be granted any credit as has been claimed for by it for the months of January to June 2011, for a sum of Rs.16,35,363.53 paise.

In that view of the matter the Respondent may prima facie be held to a sum of more or less Rs.85 lakhs being a sum of Rs.30 lakhs in respect of the Zee channels, Rs.20 lakhs, Rs.32 lakhs for the Star Group of Channels and about Rs.19 lakhs towards the disputed amount.

We have directed the Petitioner to pay the said amount by 31.12.2011 by our order dated 22.12.2011. These are our reasons in support of the said order.

(S.B. Sinha) Chairperson (P.K. Rastogi) Member January 3, 2012 `ns’