VARIETY ENTERTAINMENT PVT LTD Vs ORISSA TELEVISION LTD

An application has been filed by the applicant herein inter-alia for a direction upon the respondent to accept a sum of Rs. One lakh twenty thousand and provide signals of its channel “TARANG” to it.

The basic fact of the matter is not in dispute.

The petitioner has filed the petition inter-alia for direction upon the first respondent to provide it the signals of its channel on non-discriminatory terms.

The applicant had filed an application for grant of an interim order directing the respondent to provide the said signal. Indisputably, a joint survey was offered by the petitioner. It, however, appears that the respondent had carried out survey in respect of the subscribers of the petitioner unilaterally. In an almost a similar matter being Petition No.177 (C) of 2009, M/s Variety Entertainment Pvt. Ltd. Vs. M/s Star Den Media Services Pvt. Ltd., inter-alia on the premise that subscribers base of the petitioner was 4,000, this Tribunal directed as under:- “(i) The petitioner shall pay a sum of Rs.7lakhs to the respondent. On receipt of such amount the signals may be supplied within 24 hours thereafter. (ii) The subscriber base for the future for the purpose of calculation of the amount of subscription fee, shall be based on 4000. The subscriber base shall be subject to reconciliation and the same would be without prejudice to the rights and contentions of the parties in any future proceedings including this proceeding. (iii) For arriving at a correct subscriber base, if the parties so desire, may conduct a joint survey…...”

On an application filed by the petitioner for similar relief two of us by an order dated 31.5.2010 relying on or on the basis of the aforementioned order dated 31.5.2010 in petition No. 177 (C) of 2009, directed as under:- “In this particular case based on the same terms and conditions, we direct the respondent to provide signals within 48 hours and the joint survey to commence w.e.f. 7th June, 2010 and to finish within 15 days time i.e. by 22nd June, 2010.”

The contention of the petitioner in this application, shortly stated, is that having regard to the rate of the channel of the respondent being Rs.10.00 per month, per person; the petitioner was required to furnish a security for subscription fees for a period of three months, which comes to Rs.1.20 lakhs being @ 40,000 per month and in the event the petitioner is asked to deposit a sum of Rs.7 lakhs, the same would amount to furnishing of a security for a period of 18 months, which was not contemplated by this Tribunal while passing the aforementioned order dated 31.5.2010.

We may in this behalf notice some correspondences which had passed between the parties.

The petitioner made an offer of joint survey to the respondent by its letter dated 7.6.2010. It offered a sum of Rs.1.29 lakhs asking the respondent to provide IRD boxes to it in terms of this Tribunal’s order dated 31.5.2010. The respondent, however, vide its letter dated 9.6.2010 alleged gross under declaration in the SLR furnished by the petitioner as per its survey stating :- “For provisioning of services in compliance of order and subject to our earlier contentions immediately make a deposit as per direction and give undertaking to pay subscription amount on interim base and further undertaking to pay subscription with retrospective effect as per joint survey result.” The petitioner however by its letter dated 15.6.2010 stated as under:- “We draw your attention to the subject and reference cited above vide reference No.3 an amount of Rs.1,29,200/-towards subscription amount @Rs.10.00/- per subscriber per month on an interim subscriber base of 4000 nos as paid to “M/s Star Den Media Services” which is approximately three months subscription amount, i.e. on the same terms and conditions as per the para 13 of the Interim order dated 31.5.2010. As per Para No.5 point No. 11 of the interim order dated 31.5.2010 the list of cable operator along with the SLR were provided and we confirm that the same list was provided to the Broadcaster also. We have complied with the directions by remitting the subscription amount vide reference no. 3 above, that in spite of receipt of the said amount on 11.6.2010 as per the proof of delivery vide receipt No. 12809430023 you have not provided us the activated boxes of TARANG channel within 48 hours as per the order dated 31.5.2010. We sincerely request you to provide us the said IRD Boxes enabling us to star catering / providing “TARANG” channel and thereupon come forward in conducting the joint survey under prior intimation of 24 hours enabling us to depute our survey team for conducting joint survey as stated earlier vide reference no.2 you may contact Mr. Sesha Sai, Asstt Manager representing us in the joint Survey.”

Respondent, however, vide its letter dated 17.6.2010 called upon the petitioner to make full payment of Rs.7 lakhs and cooperate with it for survey of subscriber base in compliance of this Tribunal aforementioned order dated 31.5.2010. The petitioner responded thereto by its letter dated 22.6.2010 stating:- “We still await the activated signals of “TARANG” channel inspite of personal follow up, to our Control Room at Bhubaneswar and to commence Joint Survey, there upon. Any delay to take necessary directions from TDSAT, from you end is providing the activated signals of the said channel would drive us including for non-compliance of interim orders passed by Hon’ble Tribunal which we feel can be avoided in mutual business interest. We sincerely hope you appreciate ours situation and provide us Tarang channel forthwith. Our representative Mr. Nageswara Rao would meet you personally to collect the IRD Box.”

Mr. Balaji Srinivasan, learned counsel for petitioner submitted that the respondent has illegally refused to provide signal of its channel to the petitioner despite tender of the payment of sum of Rs.1.29lakhs in letter and spirit of this Tribunal’s order. According to the learned counsel, the petitioner had never gone back on its offer of joint survey and in that context the plea of under declaration raised by the respondent on the basis of purported survey made by it must be held to be illegal. Mr. Gopal Jain, learned counsel for respondent on the other hand, urged:- (i) The petitioner in terms of this Tribunal’s order dated 13.5.2010 should have filed the evidence of its witnesses for cross-examination by way of affidavit for cross-examination today and it having not been done so. It should not be permitted to file any affidavit of its witnesses. (ii) The petitioner having not complied with the order of this Tribunal dated 31.5.2010 nor having filed any application for modification thereof must be held to have violated the same. (iii) The petitioner having not undertaken a joint survey despite the offer of the respondent, he is not entitled to any interim relief. For the purpose of disposal of this petition, it is not necessary for us to consider the events which took place before filing of the petition and till passing of the aforementioned order dated 31.5.2010. We have noticed hereto before that this Tribunal had passed an interim order in favour of the petitioner in the case of Star Den. In its order dated 31.5.2010, the subscriber base arrived at was 4000 which was directed to be maintained. It was not and could not have been the intention of this Tribunal to pass an order which should run contrary to the letter and spirit of the order passed in case of the Star Den. It was not pointed out by the counsel for the parties the differences in the amount of subscription fee in the case of the Star Den vis-a-vis the respondent, i.e. rs.50/- per channel in the case of Star Den and only Rs.10/- per channel so far as the respondent is concerned. This Tirbunal indisputably intended to protect the interest of the respondent and for that purpose only directed the petitioner to make certain payments which would cover the subscription fees for three months.

This Tribunal by directing the petitioner to deposit a sum of Rs.7lakhs could not have treated nor intended to treat two unequals equally.

The mistake committed by this Tribunal, in our opinion, is capable of being rectified and for the said purpose, keeping in view the nature of jurisdiction exercised by this Tribunal, even a formal application for modification of the said order 31.5.2010 is not necessary. It is a well settled principle of law that no person can suffer owing to a mistake committed by a Court of law (Actus curaie nemenim gravabit). Applying the said principle, we are of the opinion that we can suo-moto rectify our mistake and modify our order dated 31.5.2010.

We, therefore in modification of our order dated 31.5.2010 direct the respondent to accept a sum of Rs.1.20 lakhs and activate the decoders so as to enable the petitioner to re-transmit the signals of its channel “TARANG”. The supply of signals must be effected within 24 hours of the tender/retender of the amount. The parties may, however, take the recourse to the exercise of joint survey for ascertaining the actual subscriber base of the petitioner and negotiate the quantum of subscription fee on a declared subscriber base.

Other terms of the order dated 31.5.2010 shall however remain the same.

This application is disposed of with the aforementioned directions.

We furthermore direct the petitioner to file evidence of its witnesses by way of affidavit within two weeks. The respondent likewise shall file affidavits of its witnesses within one week thereafter.

Put up for cross-examination of the witness of the petitioner on 03.8.2010.

.. .…………….., J (S.B.Sinha) Chairperson

……………..... (G. D. Gaiha) Member

…………….. (P.K. Rastogi) Member

HKC/7th July, 2010