DISCOVERY COMMUNICATION INDIA vs ALL DIGITAL NETWORK INDIA LTD on 2 June 2016

**ORDER**

**By Aftab Alam, Chairperson** – M.A No.21 of 2016 is an application under order 12 rule 6 filed on behalf of the petitioner seeking a direction to the respondent "to pay to the petitioner a sum of Rs.67,01,292/- (Rupees Sixty Seven Lac One Thousand Two Hundred and Ninety Two only) i.e. the amount due and payable by the respondent to the petitioner."

The application is based on two emails from the respondent to the petitioner in which, according to the petitioner, the respondent clearly makes an admission of its dues to the petitioner as claimed and quantified by the petitioner.

The petitioner has filed this petition for recovery of Rs.67,01,292/- (along with interest *pendent lite* and future interest @ 18% per annum) as dues of monthly subscription charges for the supply of TV signals to the respondent. It is the case of the petitioner that the two sides executed an interconnect agreement for the period 1.4.2014 to 31.3.2015. In terms of the interconnect agreement, the respondent was liable to pay the monthly subscription fee of Rs.4,76,000/- for the supply of the petitioner's TV signals to its network. The respondent defaulted in making the monthly payments and as a result the arrears of subscription fee accumulated to the sum as claimed in the recovery petition as on 20.7.2015, the date on which the petitioner discontinued the supply of its signals to the petitioner.

The respondent has filed its reply denying any liability for making payments to the petitioner.

The petitioner then filed the present application under order XII rule 6 claiming a decree for the sum claimed in the main petitioner (Rs.67,01,292/-) on the basis of emails sent to it by the respondent, which the petitioner construes as an unambiguous admission of its dues against the respondent. The respondent has filed a reply to this application as well in which it has denied all the claims of the petitioner. The petitioner then filed an affidavit enclosing a revised Statement of Account in which its claim is lowered down to Rs.59,82,891/- which, according to the petitioner, is the amount due as on 30.6.2015. In other respects, the contents of this affidavit reiterate the petitioner's claim made in M.A. No.21 of 2016. It needs here to be clarified that the slight reduction in the amount of claim appears to have been necessitated on account of some recent decisions of the Tribunal in which it is held that no claim for recovery of dues may be entertained by the Tribunal normally beyond the term of the interconnect agreement in writing. However, in case the petitioner is able to establish by evidence that after the expiry of the earlier agreement, the parties were in negotiation in regard to the terms of the fresh agreement, the claim for recovery may be extended to a point three months beyond the expiry of the previous agreement.

The respondent has filed its response to the affidavit which is a reiteration of its denial of the petitioner's claim.

Heard Ms. Payal Kakra, learned counsel for the petitioner and Mr. Manikya Khanna, learned counsel appearing for the respondent.

Ms. Kakra strongly argued that the petitioner's case is fit to be decreed in terms of order XII rule 6 on the basis of the admission of the claim by the respondent. She submitted that the respondent though taking the plea that the interconnect agreement, forming the basis of the petitioner's claim was *void ab initio*, does not deny or dispute the execution of the agreement on behalf of the petitioner. She further submitted that the supply of the TV signals by the respondent to the petitioner on the basis of that agreement is not even denied and that in itself creates the respondent's liability for payment of the monthly subscription fee as per the petitioner's Statement of Account submitted along with the petition and the amended Statement of Account submitted along with the affidavit dated 2 February 2016.

In regard to the respondent's admission of the petitioner's dues, Ms. Kakra primarily relied upon two emails sent by the respondent to the petitioner; one is dated 27 June 2015, a copy of which is at Annexure P-8 (at page 88 of the main petition). The email reads as under:

" WITHOUT PREJUDICE "

Dated 27/06/2015

To

M/s. Discovery Networks Asia Pacific-(India) Unit No.602, 6^th Floor, Barton Centre, #84, M.G. Road Bangalore -560001

*Subject: Notice under Clause 6.1 dated 26.05.2015*

Dear Sir,

This is in reference to your Notice under Clause 6.1 dated 26.05.2015 against our Network and our ongoing negotiations and discussions regarding renewal of the Subscription Agreement. As you are aware that the Public Notice has expired, however, we are yet to conclude our negotiations which are at an advanced stage. In view of the same, I request you not to disconnect the signals of your channels to our Network and withdraw the Notice's. We assure you that we will hold a meeting in the first week of July, 2015 to continue our negotiations for renewal of the Subscription Agreement. **Furthermore, we request you to reconcile accounts, so that we can make payments of our outstanding dues. We assure you that we will make payments our outstanding dues before end of July 2015.**

Warm Regards,

Sd/-

(For All Digital Network India Ltd.)"

(emphasis added)

From the above email, it is impossible to infer that the respondent admitted its liability for payment of any specified amount to the petitioner much less the specific amount claimed by the petitioner in its petition, later amended by the affidavit dated 2 February 2016.

Ms. Kakra next relied upon the email dated 25 September 2015. The email reads as under:

"Date: 19^th Sept'2015

To

Discovery Communications India Building No.9A, 9^th Floor, DLF Cyber City, Gurgaon – 122002. Haryana.

Sub: Change of Name.

Dear Sir,

This is to inform you that we have entered into a strategic alliance with GTPL-Hathway, Ahmedabad. Based on the alliance, we hereby inform you to change the name of our company All Digital Network India Ltd. – Bangalore to GTPL Hathway Pvt. Ltd. as MSO in your records with effect from 01.08.2015. Please make changes in your records, and if required send us the documents necessary to authorize the above change. Henceforth, all transactions would be in the name of GTPL Hathway Pvt. Ltd.

**We also have confirmed reconciled outstandings as on 31^st July 2015 as per our books of accounts to GTPL-Hathway Pvt. Ltd and they shall be clearing the outstandings to you.** Enclosed is a letter from GTPL-Hathway confirming the above mentioned position.

Fyi, the contact person is Mr. Rupesh Shah of GTPL-Hathway, Ahmedabad.

Yours truly,

For All Digital Network India Ltd.

Sd/-

Authorized Signatory."

(emphasis added)

She also referred to an email dated 9 September 2015, received from GTPL Hathway Pvt. Ltd., in which the strategic alliance with All Digital Network India Ltd. (the respondent in the proceedings) was confirmed. The email further went on to say as under:

"Effective 1^st August 2015, all transactions would be in favour of GTPL-Hathway Pvt Ltd and GTPL Hathway Pvt Ltd. shall make payments towards outstandings as per the reconciled amounts lying in the books of All Digital Network India Ltd as on 31^st July 2015."

In the email dated 19^th May 2015, there is indeed an admission of certain outstanding dues of the petitioner in respect of which it is stated that the payment would be made by GTPL Hathway Pvt. Ltd. It is, however, evident that the admission is not to the effect that the respondent owes to the petitioner the specified amount as claimed by the petitioner and on the basis of that email, it would not be possible to make any decree as claimed by the petitioner.

Ms. Kakra in support of her submissions relied upon a Supreme Court decision in *Uttam Singh Dugal & Co. Ltd. Vs. Union Bank of India & Ors*¹. In that decision the defendant had admitted to owing a definite amount to the plaintiff which was lower than the amount claimed by the plaintiff. The Court held that the plaintiff's claim was fit to be allowed under order XII rule 6 for the amount admitted by the defendant. In this case that is not the position.

Ms. Kakra next relied upon a decision of the Supreme Court dated 18.1.2001 in *J.C Budhraja Versus Chairman, Orissa Mining* [Appeal (Civil)1971-1973 of 2000]. The decision in *Orissa Mining* was rendered on facts that are quite dis-similar to facts of the present case and the decision has no application to the case of the petitioner.

Ms. Kakra also relied upon the decision of the Tribunal dated 18 June, 2012 in Petition No. 144 of 2012. The passages from the decision on which reliance is placed by the learned counsel deal with the legal principles concerning order XII rule 6, which are well settled.

---

¹ MANU/SC/0485/2000

On hearing counsel for the parties, we are satisfied that the claim of the petitioner cannot be allowed under order XII rule 6 of the CPC. M.A. No.21 of 2016 is accordingly dismissed.

Put up on 17.08.2016 for framing issues.

(Aftab Alam) Chairperson

(B.B. Srivastava) Member

/pkb/