KALESH KUMAR K & OTHERS vs DEN NETWORK LTD on 10 October 2017

**ORDER**

The petitioner is an association of Local Cable Operators operating in the state of Kerala. The respondent is a Multi System Operator. The LCOs who are members of the petitioner association have been receiving signals from the Respondent since 2009 and entered into an Interconnection Agreement with the JV partner of the respondent. Respondent issued disconnection notices dated 21-03-2016 and 27-04-2016 on the members of the petitioner seeking *inter alia* payment of outstanding dues. Aggrieved by this, the petitioner has filed this petition dated 17-05-2016 with the following prayers:

- (a) Restrain the respondent from giving effect to its impugned disconnection notice dated 27.4.2016 or in any manner interfering / disrupting or disconnecting the signal services being provided to the area of operation of the members of petitioner.

- (b) Direct the respondent not to arbitrarily increase the monthly subscription charges payable by the members of the petitioner association.

- (c) Direct the respondent to replace the faulty set top boxes of the subscribers of petitioner's members and to resolve the issues pertaining to quality of signals transmitted by it.

- (d) Direct the respondent to hold negotiations for execution of a subscription agreement with the petitioner in a reasonable and non-discriminatory manner and to issue monthly invoices to the members of the petitioner.

- (e) Direct the respondent to provide replacement towards faulty set top boxes by issuing stand by boxes during the period of repair of faulty set top boxes.

- (f) Direct the respondent to provide software support and not to remove any of the channels from the existing package of channels being offered unilaterally and without holding discussions with the petitioner's members.

- (g) Pass an ad-interim ex-parte order in terms of prayers (a), (b) and (c) made above.

- (h) Direct the respondent to pay damages to the petitioner towards illegal acts as towards loss of goodwill and business The petitioner was granted interim protection against the disconnection notice vide our order dated 26-7-2016. On 30-9-2016, we recorded the following observations *"Mr. VibhavSrivastava, learned counsel for the respondent submits that according to the rejoinder the petitioner has been receiving signals from the respondent since 2009 and had entered into interconnect agreement with JV partners mentioned below:*

- A. Den Kattakada Telecasting and Cable Services Private Ltd. S J Tower, TC 14/588 2^nd Floor, Paris Road, Bakery Jn. Trivandrum, Kerala

- B. Skyline Cable Network

*Sithara, Mylottoozhoy, Trivandrum, Kerala.*

**C. Connecttelecommunications Private Limited**

*T/C 23/678 (3), Temple View Tower, Mahadeva Temple, East Nada Paliyasala, Chala P.O., Trivandrum – 695036.*

**D. Den Malabar Cable Vision Private Limited**

*Tirur Road, Puthenathani, Puunathala P.O., Malappuram – 676 552, Kerala.*

**E. Den Sariga Communications**

*Sunaina Building, Moonampadi, Malappuram P.O. Malappuram District – 676 505*

**F. Den Malayalam Tele Net Private Limited**

*3rd Floor, Parapilly Building, Panampilly Nagar, Manorama Junction, Kochi – 682 036.*

**G. Star Vision Cable TV Networks**

*Krishnapriya Buildings, Kidangoor South Post, Kottayam – 686 583, Kerala.*

**H. Cab-I Net Communications Private Limited**

*Panchayath Shopping Complex, Ponkunnam, Kerala.*

*He submits that the respondent has no objection if the petitioner continues to receive signals from these entities and extant respondent is discharged.*

*In order to arrive at a definite and appropriate decision, it is essential to look at the agreements with entities mentioned in the rejoinder.*

*The petitioner is directed to supply the copy of the agreements within a week from today.*

*The interim protection granted vide order dated 26.7.2016 shall continue till the next date. It is also directed that the member LCOs of the petitioner association shall not migrate to any other MSO nor any other MSO is permitted to supply signals to them in the impugned service areas."*

The petitioner was directed to file on affidavit the agreements entered into by member LCOs with the respondent. Further in this regard, we observed the following on 20-01-2017

*"Mr. Nittin Bhatia, learned counsel appearing on behalf of the petitioner has filed the affidavits as directed on 4.1.2017.*

*We have perused the interconnect agreements filed on affidavit; as well as the affidavits filed by some of the LCOs claiming that they have not been supplied copy of the interconnect agreement. We find that out that 81 LCOs claimed to be the members of the petitioner association, as submitted by the learned counsel for the petitioner, 17 LCOs have not filed any affidavit and 4 LCOs have filed affidavits wherein it is not clear as to with whom they have agreement since para 2 of the said affidavit does not mention the name of the concerned MSO. We also find that all these agreements are with an entity which is supposedly Joint Venture of the respondent company. Till date it has not been clarified by the petitioner as to before the Tribunal why these Joint Venture entities with whom he member LCOs of the petitioner association claimed to have interconnect agreement, have not been made parties."*

On 13-02-2017, we have heard Mr. Nittin Bhatia, learned counsel for the petitioner and Mr. Vibhav Srivastava, learned counsel for the respondent with regard to the issue of impleadment of JVs (in which the respondent is one of the share-holder) as well as the issue raised in the disconnection notice i.e. outstanding as well as the interconnect agreement between the parties and the respondent.

Mr Bhatia has argued that DEN (respondent) has issued the disconnection notice as well as public notice and therefore can not say that there was no business relationship earlier between them. He also questions the unilateral increase in the subscription fee. Mr Vibhav Srivastava points out that these JVs were functioning in the non-DAS areas. Mr. Vibhav Srivastava says that from 1-1-2016, DEN has been supplying the signals and had asked the petitioner members to enter into an interconnection agreement with it. Earlier agreements from 1-10-2013 with the JVs were valid for 12 months only and therefore no further rights under that agreement can accrue to the petitioner members. He further submits that the petition is not maintainable as well.

After hearing both the parties, we make the following observations

- (a) Besides the issue of maintainability, we find that it is a messy situation accounting for 81 agreements with 8 JVs. It is necessary to find an efficient way of handling the petition.

- (b) We are concerned that there is no written agreement between the parties and such an interim arrangement should not be allowed to continue for long.

- (c) We need to consider the applicability of B.P. No. 449 of 2015 (Karnataka State Digital Cable TV Operators Welfare Association Vs. Siti Cable Networks Ltd.) in this case also.

In view of the above, we direct that the case be listed before the main bench for "directions" to consider the above aspects. No further orders are required till then.

Put up the matter on 29-11-17 under the head "directions".

..... (B.B. Srivastava) Member

..... (A.K.Bhargava) Member