KOLKATA CABLE & BROABAND PARISEVA LTD Vs S.M ZEE VISION
- Case No.BROADCASTING PETITION/37/2010
Ratio decidendi
The rule this decision rests on
Where a respondent fails to appear and the petitioner's claim is supported by an affidavit of a director, invoices delivered by hand, a ledger maintained in the regular course of business, and reminders with proof of postal delivery, and that evidence is not rebutted, the petitioner's claim to the outstanding subscription dues is established, and a decree for the principal sum with interest at 12% until payment follows. The absence of acknowledgment of hand-delivered invoices, which the court records as the prevailing practice in Kolkata, does not defeat proof of the charges where the invoices are supported by the petitioner's regularly maintained books of account. A franchisee cable operator that takes signals from another MSO without giving the notice required under the Interconnect Regulations is acting illegally, and the court declares accordingly.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1. In the present petition the petitioner seeks to recover the dues owed by the respondent to the petitioner for availing the transmission of signals of various pay and free to air channels from the petitioner. The outstanding amount has accumulated because of the non-payment of the subscription amount by the respondent. The petitioners also apprehends that the respondent may switchover to other Multi System Operator (MSO) without complying with the provisions of the Explanation to Clause 3.2 of the Interconnect Regulations as amended on 4th September, 2006, of obtaining a no dues certificate from the petitioner and/or without following the Regulations as per Clause 4.2 and 4.3 of the Interconnect Regulations requiring the cable operator to give a prior 21 days notice before migrating to another multisystem operator.
2. Despite service of notice, nobody appeared on behalf of the respondent and, therefore, the petition has been heard ex-parte.
3. Petitioner is operating in the city of Kolkata. It receives signals from various free to air and pay channels from the broadcasters at its headend and thereafter retransmits the same to the franchisee cable operators affiliated to it for onward transmission of the signals to their respective subscribers.
4. The respondent is a franchisee cable operator affiliated to the petitioner herein and retransmitting the signals to its subscribers after obtaining them from the petitioner.
5. An agreement has been indisputably signed by and between the parties on 30th October, 2008.
6. The petitioner raised regular invoices on the respondent seeking payment of the monthly subscription amount which were hand delivered each month to the respondent. However, as is common practice prevailing in Kolkata no acknowledgement for the same is given by the cable operators. The copies of the invoices have been placed with the petition.
7. The petitioner claims that the respondent was totally irregular in making payments of the monthly subscription amount resulting in a built-up of arrears of Rs. 3,08,000/- as on 30.01.2010.
8. The petitioner has submitted a complete statement of account of the respondent alongwith the petition. The ledger account, computer printout being maintained by the petitioner in the regular course of the business is also placed with the petition.
9. The petitioner claims that inspite of repeated requests to the respondent, it did not clear its dues owed to the petitioner and petitioner has also expressed his apprehension that the respondent is planning to leave the petitioner without clearing outstanding amount and start taking signals from some other MSO in the city.
10. The petitioner has sent a notice dated 1.8.2009 to the respondent with copies marked to the other MSOs calling upon it to clear its dues as also not to take signals from some other MSO without first clearing dues owed to the petitioner.
The delivery of the said notice has also been made through courier and has been received on 4th August, 2009 as per the photocopy of the receipt placed with the petition.
Another reminder was sent by the petitioner to the respondent on 11.09.2009 and this was followed up by reminders on 15.10.2009 and 16.12.2009, which have also been placed with the petition.
The proof of delivery through Department of Post, of these reminders has also been placed alongwith the petition.
11. The learned counsel for the petitioner would contend that as per the explanation to Clause 3.2, which is reproduced below, the respondent is supposed to produce the copy of the latest monthly invoice showing the dues, if any, from the presently affiliated MSO at the time of approaching the other MSO for getting signals. “Explanation – The applicant distributor of TV channels intending to get signals feed from any multi system operator other than the presently affiliated multi system operator, or from any agent/any other intermediary of the broadcaster/multi system operator, or directly from broadcasters shall produce along with their request for services, a copy of the latest monthly invoice showing the dues, if any, from the presently affiliated multi system operator, or from any agent/any other intermediary of the broadcaster/multi system operator who collects the payment for providing TV channel signals.”
The learned counsel would further contend that the respondent has not followed the Regulation.
The learned counsel for petitioner would further contend that the respondent has also not given 21 days notice under clause 4.2 of the Interconnect Regulations as well as the public notice under Clause 4.3 before moving to the other MSO.
12. The petitioner has submitted an affidavit by way of evidence on behalf of the petitioner by one Mr. Avijit Manna. Shri Manna is a Director of the petitioner company and in that capacity he has affirmed the following on affidavit :
i) Petitioner is an MSO operating in the city of Kolkata. It receives signals of various free to air and pay channels from the broadcasters at its headend and thereafter retransmits the same to the franchise cable operators affiliated to it for onward transmission to their respective subscribers.
ii) The outstanding dues for providing signals to the respondent are Rs. 3,08,000/- upto 30.1.2010. iii) Apprehension of the respondent shifting to the other MSO without clearing the dues of the petitioner; iv) The petitioner has regularly submitted the invoice and the monthly subscription fee is Rs. 22000/- per month inclusive of relevant taxes w.e.f. November, 2008. The invoices have been served by hand as per the prevailing practice in Kolkata without obtaining any acknowledgement for the same. v) The petitioner maintains regular books of accounts in the course of business and the statement of accounts exhibits the outstanding as mentioned in the petition and owed by the petitioner from the respondent for transmitting signals. vi) The delivery of the various reminders of 11.9.2009, 15.10.2009 and 16.12.2009 have also been affirmed.
13. We are satisfied that the petitioner has made out a case for passing a decree for a sum of Rs. 3,08,000/- along with interest of 12% till the date of actual payment by the respondent. We order accordingly and also declare that in case the respondent takes signals from another MSO without giving appropriate notice as per Regulation, it will be illegal.
The petition is disposed of accordingly.
……………… (G.D. Gaiha) Member
……………… (P.K. Rastogi) Member
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