R.K.CABLE Vs MEDIA PRO ENTERPRISE INDIA PVT. LTD.

2. We will, hereinafter describe M/s R.K. Cable as ‘Petitioner’ and the Media pro as the ‘Respondent’.

3. Petitioner herein has filed this petition inter alia questioning the notices issued by the Respondent under Clause 4.1 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 (hereinafter called and referred to for the sake of brevity as the ‘Regulations’) as also a public notice as envisaged under Clause 4.3 thereof.

4. Respondent in the aforementioned notices inter alia alleged that the Petitioner who had entered into a subscription agreement with it in relation to Jagdhari, Yamuna Nagar Area, committed piracy by extending its services to the customers of the entire Yamuna Nagar District.

5. On an interim prayer made by the Petitioner the matter was heard by this Tribunal.

6. An offer was made by the Petitioner itself that it, without prejudice to its rights and contentions, shall pay a sum of Rs.16 lakhs per month in stead and in place of Rs.2.5 lakhs per month as payable in terms of the agreement. Respondent, however, made a counter offer to the effect that the Petitioner should pay the subscription fee for a sum of Rs.16 lakhs p.m. besides service taxes from July, 2011, wherewith the Petitioner agreed.

7. In that view of the matter the interim order was passed on the above terms subject to any other or further order and subject to adjustment of the said amount found payable in future as also without prejudice to the rights and contentions of the parties.

8. Petitioner filed an application for modification of the said order inter alia on the premise that so far as the other broadcasters are concerned against whom also it had filed petitions before this Tribunal, being P. No. 324 C/2011 and P.No.405 (c)/2011 and this Tribunal by interim orders having directed that the Petitioner should furnish an undertaking that it would confine its area of operation within the town of Yamuna Nagar only; similar orders should be passed.

9. The said application came up for consideration on 20.12.2011 and by an order of the said date it was directed as under:- “However, if the contention of the Respondent is correct, prima facie, we see no reason as to why the Petitioner at this stage should not be held to be bound by the acceptance of the said counter offer. It is contended by learned counsel for the Respondent that except for a sum of Rs. 1.50 lakhs per month paid for the months of July, 2011 to October, 2011, no other or further sum has been paid unto the Respondent, subject of course to other or further order which may be passed by the Tribunal that the Petitioner has made out a case for modification of the interim order dated 13.10.2011. We prima facie see no reason as to why the Petitioner would not be directed to pay the amount to which it undertook to pay, albeit without prejudice to the rights and contentions at the final stage of hearing. We, therefore, are of the opinion that the matter may be adjourned to 20.1.2012 subject to the petitioner’s depositing a sum of Rs. 72,05,199/- in two equal instalments; the first instalment whereof should be paid within two weeks from date and the second instalment may be paid within two weeks thereafter. “ 10. It is not in dispute that the Petitioner has not complied with the said order.

11. On the aforementioned premise M.A.No.91/2012 was filed by the Respondent praying inter alia for the following reliefs :- (a) injuncting the Petitioner from distributing the signals of the Applicant/Respondent, in any manner whatsoever, in any part of the city of Yamuna Nagar or anywhere else forthwith; (b) directing the Petitioner to pay to the Applicant/ Respondent the amount of Rs. 96,08,265,66/- forthwith; and (c ) for closing the right of the Petitioner in any further hearing in the present proceedings before this Hon’ble Tribunal in the absence of immediate payment of this amount to the Applicant/Respondent (in terms of prayer (b) above); (d) dismissal of the present petition for deliberate non-compliance with the violation of the orders passed by this Hon’ble Tribunal and direction for restitution of the rights of the Applicant/Respondent; and 12. Petitioner despite several opportunities granted did not file any reply to the said application. It was, however, contended that the averments made in the Petitioner’s application marked as MA No.320 /2011 should be treated to be reply in the said proceedings.

Mr. Bhatia appearing for the Petitioner submitted:- (i) Keeping in view the situation as was obtaining at the point of time when the interim prayers of the Petitioner was considered by this Tribunal, it had no other option but to agree to the counter offer made on behalf of the Respondent. (ii) Having regard to the fact that in the cases filed by the Petitioner against the other broadcasters, the Petitioner was constrained to confine its area of operation in the town of Yamuna Nagar only, it was impossible for it to pay the subscription fee of Rs.16 lakhs p.m. plus taxes. (iii) Equity demands that the Petitioner be directed to pay a sum of Rs.16 lakhs + taxes only from October, 2011 to date of filing of the M.A. and not from July, 2011. 13. Mr. Maninder Singh, learned Senior Counsel appearing on behalf of the Respondent, on the other hand urged:- (a) On a plain reading of the Memorandum of Understanding (MOU) entered into by and between the Petitioner M/s Zee Turner Ltd., the Petitioner could not have extended its area of operation; and (b) Petitioner having failed to abide by its own undertaking has committed contempt of this Tribunal and/or otherwise also is not entitled to an opportunity of hearing.

14. Admittedly the Petitioner had entered into two agreements; one with the Star Den Media Ltd. and the other with Zee Turner LTd. Whereas the agreement with Zee Turner expired on 31.3.2011, the one with Star Den Media was valid upto 31.12.2011.

When this petition was filed thus, no agreement between the Petitioner and M/s Zee Turner subsisted.

15. The issue of passing an interim order on the prayer made by the Petitioner arose in the following situations:- (i) It’s agreement with Zee turner expired; (ii) It was accused of committing acts of piracy;

(iii) It has expanded its area of operation to the entire District of Yamuna Nagar, and, thus, transgressed its area of operation unauthorisedly. (iv) The offer to pay the subscription fee @ Rs.16 lakhs + tax amended from the Petitioner itself; (v) Respondent made a counter offer precisely on the premise that the Media Pro Enterprises India Pvt. Ltd. Came into be w.e.f. 1.7.2011.

16. No material has been brought on record to show that the Petitioner was coerced to accept the said offer. In fact the offer and the counter offer were made in the court.

It appears from the record that the Petitioner for the months of July to October 2011 had paid only a sum of Rs.1.50 p.m. As on 13.10.2011, thus, a sum of Rs.76 lakhs became payable to the Respondent. It was in the aforementioned situation the order dated 20.12.2011 was passed directing the Petitioner to pay a sum of Rs.72,05,199/- payable upto 17.11.2011.

17. As the petitioner did not comply with the said order, it is contended that in the aforementioned situation the Respondent was constrained to discontinue the supply of signals to the Petitioner’s network on 12.1.2012.

18. In this petition the outstanding has been claimed only upto 12.1.2012. As this Tribunal proceeded on the basis of the acceptance of the counter offer of the Respondent by the Petitioner, the interim order was passed on the premise that an agreement had been entered into by and between the parties, pursuant whereto and in furtherance whereof, the Petitioner became entitled to operate in the entire District of Yamuna Nagar in stead and in place of the town of Yamuna Nagar.

19. If the Petitioner was unable to continue with the said arrangement, it should have approached the Respondent for novation of the contract. It should have surrendered the IRD boxes.

20. The interim order having been passed on the consent of both the parties, it could ordinarily be varied or modified with the consent of both the parties except in exceptional situations.

21. We, therefore, see no reason as to why the order dated 13.10.2011, should be varied or modified.

22. Mr. Bhatia contends that such an offer having been made without prejudice to the rights and contentions of the parties, these applications should be considered only at the final hearing.

By obtaining an interim order from this Tribunal by way of an agreement between the parties or otherwise, the Petitioner in our considered view, is bound to restitute the benefits obtained by it thereunder. The reasonable amount of compensation to be considered on that aspect of the matter should be the amount, which the petitioner itself offered.

23. If a contract, subject to the agreement between the parties is given a retrospective effect and retroactive operation, the terms thereof must be given effect to. This Tribunal was not informed that the Petitioner in fact had been not carrying on its operation in the District of Yamuna Nagar from July, 2011 as allegedly it was committing acts of piracy.

24. It, on its own, volunteered to restore the benefits to the Respondent to the extent of losses/damages suffered by it keeping in view the fact that the other MSO who was operating in the entire district had been paying a sum of Rs.16 lakhs p.m.

25. We, therefore, direct the Petitioner to pay a sum of Rs.96,08,265.66paise as has been prayed for by the Respondent being the amount outstanding in terms of the said order dated 13.10.2011 upto 12.1.2012.

26. The Petitioner must pay the said amount within a period of two months from date failing which appropriate order shall be passed by this Tribunal.

27. We, as at present advised, do not intend to dismiss the entire petition or direct that the Petitioner shall not be heard in the matter.

28. These applications are disposed of with aforementioned directions.

(S.B. Sinha) Chairperson (P.K. Rastogi) Member

K.D.