HATHWAY CABLE AND DATACOM LTD. vs GANGA ENTERPRISES on 14 September 2023

JUDGMENT

1. This Petition, under Sections 14 and 14A (1) and 14(a) (ii) of the Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as “TRAI Act”) has been filed by Hathway Cable and Datacom

44,83,200

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3. The Respondent, Ganga Enterprises is a proprietor firm, engaged in the business of inter alia, distribution of its channel namely “Cinema TV” for the consumers/ subscribers through Television, having its registered office at 103, 104 Urvashi Complex, Dehradun Road, Rishikesh, Uttrakhand – 249201.

4. Respondent approached Petitioner for placing its channel namely “Cinema TV” and its content over Petitioner’s network for getting promotion, as well as maximum coverage to its subscribers. A Memorandum of Understanding (MOU), having terms and conditions, written in it, and agreed, in between, both side, was got executed on 30.10.2012. It was agreed therein that in lieu of placing the said channel, Respondent would pay an amount of Rs. 1,20,00,000/- (Rupees One Crore and Twenty Lakhs only) plus taxes as per the terms of understanding. This payment was to be made by Respondent on quarterly basis, in advance, upon receipt of invoice from Petitioner. The period of understanding was since 01.12.2012 and was valid for one year.

5. The Memorandum of Understanding was Annexure P-1 to Petition. This was acted upon by Petitioner and as per Memorandum of Understanding. Petitioner raised invoices over Respondent, which were duly received, without any protest or demur. But Respondent made part payments only and C

6. In spite of repeated request, as well as follow-ups and reminders, from Petitioner to Respondent, for making payment of Outstanding dues, Respondent withheld the payment of placement charges to Petitioner and as on date, he was liable to pay Rs. , alongwith interest @ 21% p.a., to the Petitioner.

7. jurisdiction of this Tribunal, had arisen in favour of Petitioner against

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10. Court of Registrar, vide order dated 31.03.2016, framed following issues, on the basis of pleadings of Petitioner and Respondent:

(1) Whether there has been a material breach of terms and conditions of the MOU by the Petitioner?

(2) Whether the Respondent is entitled to an adjustment in the placement charges, if yes to what extent?

(3) Whether the channel of the Respondent was placed in accordance with the terms of the MOU?

(4) Whether the Respondent is liable to pay carriage fee/ placement charges to the Petitioner?

(5) What relief, if any, the Petitioner is entitled to?

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13. Respondent filed the evidence of Shri Ajay Kumar Singh, in its evidence.

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15. Heard arguments of learned Counsel for Petitioner and gone through materials placed on record.

16. of probabilities is the touchstone for making a decision, as against

17. Hindustan Forest Co. (2006) 12 SCC 198

18. Both of these issues are connected. Hence, are being decided together. This Petition, for and on behalf of Petitioner Company, for recovery of packaging/ tiering and Placement Charges, in the tune of Rs. 44,83,200/- (Rupees Forty Four Lakhs Eighty Three Thousand and Two Hundred Only), due as on 31.10.2014, alongwith with pendentelite and future interest, @21% per annum, was filed by Mr

Ram Prakash s/o Late Karan Singh. The Memorandum of Understanding with the Respondent, entered on 30.10.2012, in between Petitioner and Respondent Company, for the territory of Mumbai and Delhi, for placing the channel, namely ‘Cinema TV’, on the agreed frequencies, for a fee amounting Rs. 1,20,00,000/- (Rupees One Crore and Twenty Lakhs only), for a period of 01.12.2012 to 30.11.2013, i.e., Annexure P-1 to Petition, was said to be the basis of this dispute. The execution of this MOU, terms and conditions written therein, were not disputed in reply filed by Respondent. But the dispute was with regard to non-performance of obligations by Petitioner itself. The other dispute was with regard to non-adjustment of the payment made in the tune of Rs. 10,00,000/- (Rupees Ten lakhs only) as well as Rs. 20,00,000/- (Rupees Twenty lakhs only). Hence, the very burden of proof of the fact that liabilities, incurred by Petitioner Company, was very well fulfilled by it, whereas, it was defaulted by Respondent, lied upon Petitioner Company and once the contention of pleading, which was being denied, was proved than the burden will shift over defendant/respondent to prove its contention. But, in present Petition, the witness examined by Petitioner Company is Mr. Rajkishor Pathak. It was written in Para-1 of testimony that “the deponent has been duly authorized, vide Resolution of Board of Directors of Petitioner Company, dated 11.03.2015, to act, sign, depose, present the affidavit, appoint Lawyers and do all necessary acts for all intents and purposes”. But no such Resolution of Board of Directors of Petitioners Company has been filed on record. Rather, in cross-examination, in Answer to Question No. 4 witness had said that said Resolution has not been exhibited in affidavit, by way of evidence. He has further been confronted with the Board Resolution dated 11.03.2015, filed alongwith the Petition, which is kept it Part-II of the Original Record, marked as Mark-A and the witness replied that it is correct that as per above Resolution, this witness was having no mention of his name, authorized to represent the Petitioner in any capacity before this Tribunal. In Answer to Question No. 6, this witness had categorically admitted that there is no document on record, authorizing this witness to depose in present Petition. Hence, literally there is no evidence, for and on behalf of Petitioner Company, to discharge its burden of proof.

For the sake of discussion, though of no avail, it is apparent that it was admitted by this witness that placement was not for entire period under this dispute, of Respondent’s channel, by Petitioner

Company, in territory of Mumbai. Rather, there was no placement or carriage for 7 – 10 days, owing to technical glitches. But nowhere it was pleaded or specified. A third party report regarding running of channel by a technical support team for substantiating placement of Respondent channel is being said to be with Petitioner Company, but has not been placed on record, as has been answered in Question No. 13, 14, 15 respectively. Hence, the very contention of Petition couldn’t be proved by Petitioner. There is no question of preponderance of probabilities under above circumstances. Requirement of certificate, as per Section 65 (b) of Evidence Act, for taking into consideration the emails, statement of accounts, legal notice etc is also lacking. Hence, literally there is no iota of admissible evidence in this Petition, for and on behalf of Petitioner Company. Hence, both of these two issues are being decided against the Petitioner.

19. Issue Nos. 1 and 2 Burden of proving these two issues were upon Respondent. But none appeared to place its arguments or to press these issues. Nor there is any proof of payment of ’s

20. Issue No. 5 On the basis of above discussions, this Petition fails.

Order

Petition is being dismissed.

..…………….. (Justice Ram Krishna Gautam) Member

14.09.2023 /BN/