Hathway Cable And Datacom. Ltd, ... vs Star Den Media Services Pvt. Ltd, ...

on 21 May, 2010
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI

DATED 21ST MAY,2010 PETITION No.26(C) OF 2010

Hathway Cable and Datacom Petitioner Vs. Star Den Media Services Pvt. Ltd. Respondent BEFORE:

HONBLE MR. JUSTICE S.B.SINHA, CHAIRPERSON HONBLE MR.G. D. GAIHA, MEMBER HONBLE MR. P.K.RASTOGI, MEMBER

For Petitioner : Mr. S. Ganesh, Senior Advocate Mr.Arun Kathpalia,Advocate Mr.Nasir Husain,Advocate Mr.Vikram Mehta,Advocate Mr. Abhinav Agnihotri, Advocate

For Respondent : Mr. Ramji

Srinivsan, Senior Advocate Mr.Gaurav Juneja, Advocate Mr. Prateek Kumar, Advocate Ms.Garima Sharma, Advocate

JUDGMENT S.B. Sinha This petition is for all intent and purport is connected with Petition No. 189(c) of 2008. We have passed a separate judgment in that case having regard to the fact that the same was heard out separately. The petitioner has filed this petition praying interalia for the following relief :

A. Direct the respondent to consider the request dated 19.03.2009 of the petitioner for supply of signals of Star Bouquet of Channels (Bouquet Networks) and supply signals on reasonable and non-discriminatory terms.

As the fact involved

in the matter and the principal contention of the parties had already been noticed by us in Petition No. 189 (c) of 2008, the same in our opinion, need not be repeated herein once again. We would, however, notice the factual matrix involved herein to the extent necessary.

The petitioner entered into an Asset Transfer Agreement with Star Vision Cable Network (SVCN) on or about 26.02.2008. It informed thereabout to the respondent and furthermore requested it for transfer of IRD boxes in its own name. It did not receive any response thereto. It shifted the head-end from Viram Khand, Gomti Nagar, Lucknow to another area on 16.06.2008 in respect whereof allegedly an intimation was given to the respondent.

The petitioner contends that shifting of its head-end was necessary as it intended to retransmit the signals of the channels of the respondent in the entire town of Lucknow for which according to it, no protest was made by the latter. It is furthermore not in dispute that prior thereto, the Regional Manager of the respondent had offered Bouquet II to the petitioner herein, at a monthly subscription charges of Rs. 25,001.60 on or about 02.06.2008, which was accepted by it. The petitioner had allegedly entered into a subscription agreement with the respondent in respect of the entire town of Lucknow on 28.06.2008, which according to it is a forged and fabricated document. By reason of a letter dated 19.03.2009, the petitioner, while calling upon the respondent to renew the said purported agreement made an alternative request which is to the following effect : Without prejudice to our rights and contentions in Petition No. 189(c ) of 2008, wherein you have challenged the validity of the Agreement dated 28.06.2008, we would request you to treat this also as a request under regulation 3.2 of the said regulations for supply of Bouquets 1 and 2 of Star Network to us for the city of Lucknow.

3 on or about 20. in which M/s Den Networks has 50% share and one Mr. the respondent should be directed to perform its statutory obligations in terms of Regulation 3.2 of the Regulations.2008. who is also a sole proprietor of M/s Universal Cable has 50%. 189(c) of 2008 was filed before this Tribunal. Omeshwar Singh. Petition No. S. Mr. the High Court of Delhi on a Writ Petition filed by the petitioner restrained the respondent from disconnecting the supply of signals of the petitioner. The respondent has been acting malafide having been patronizing a MSO. learned senior counsel appearing on behalf of the petitioner would contend : 1. As the petitioner has offered higher subscriber base as also additional fees in a progressive manner and thus there being no problem either on the subscriber base or additional fee.2008 informing it that the agreement had expired due to efflux of time on 30. The said order has been directed to be continued having regard to the pendency of this petition before us.2008.2008 and furthermore appointed one M/s Universal Cable as its distributor and issued a notice under Regulation 4. 2.1 as also public notice under 4. having been appointed as a distributor and this is clearly violative of the . on the premise that the respondent had issued a notice on or about 25. Ltd. the Managing Director of Enjoy Cable Networks Pvt.08.07. Gomti Nagar by an order dated 10. although this Tribunal directed the petitioner to restrict its activity within Viram Khand.09.However. Ganesh. Admittedly.06.

(6) The petitioner having been operating under the orders of the Delhi High Court for a long time. the petitioner cannot be directed to confine its activities in the area of Gomti Nagar alone. would urge : .. Versus Sea TV Network Limited & Anr. (3) Clause 3. Ramji Srinivasan.decision of the Supreme Court of India in Star India (P) Ltd.2 of the Regulations should be interpreted on broad terms and directed to be implemented it its letter and spirit and in that view of the matter. (2007) 4 SCC 656. on the other hand. the learned senior counsel appearing on behalf of the respondent. there cannot be any earthly reason as to why the petitioner should be deprived of the benefits of supply of signals to the entire town of Lucknow.2 of the regulations. which would be an anathema to Clause 3. the petitioner should be allowed a level playing field with the said M/s Universal Cable. (5) One of its distributors should not be allowed to be treated as its blue eyed boy of the broadcaster. (4) Monopoly being frowned upon by this Tribunal as also by Supreme Court of India. Mr. (7) The petitioner having been operating on an all India basis. it would be equitable to allow the petitioner to continue with the existing arrangement particularly having regard to the offer made by it for payment of additional subscriber fees and on a higher subscriber base in a progressive manner.

1.2 of the Regulations. 3. (iii) and (iv) of clause (b) of subsection (1) of Section 11 of TRAI Act. A fresh application is required to be filed by the petitioner for compliance with the provisions of the interconnect regulations of 2004 and in particular clause 9. TRAI in exercise of its jurisdiction purported to be under section 36 read as the sub. The scope of this petition is limited as the alternative prayer made by the petitioner must be read in context of its prayer for renewal of the agreement dated 28. 4.clauses (ii). 2. The respondent. and if so read. the Respondent is be entitled to invoke clause 3.2008. 1997 (the Act) made regulations known as The Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004 (13 of 2004) (The Regulations). Clause 3. this petition is not maintainable. this petition is not maintainable.2 thereof. The petitioner being guilty of commission of piracy which is one of the grounds for refusal of supply of signals as would appear from para 14 of Explanatory Memorandum issued by TRAI. having not entered into an Asset Transfer Agreement as it did not insist on due diligence which was required to be done in terms of its own red herring prospectus.2 of the Regulations and the proviso appended thereto read as under :- .06.

The Regulations were amended by Regulation No. multi system operator. which may include.2 Every broadcaster shall provide on request signals of its TV channels on nondiscriminatory terms to all distributors of TV channels.3. Provided further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request. on a non-discriminatory basis to cable operators.2. 10 of 2006 in the year 2006 in terms of a notification issued by TRAI on 04. the following explanation and the entries relating thereto shall be inserted:Explanation The applicant . In clause 3 of the Principal Regulation (a) after the second proviso to sub-clause 3.09. but be not limited to a cable operator. Multi system operators shall also on request re-transmit signals received from a broadcaster. We may notice the same so far as the same are relevant for our purpose: 3. Provided that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment. direct to home operator. head ends in the sky operator.2006.

or from any agent/ any other intermediary of the broadcaster/multi system operator who collects the payment for providing TV channel signals. or from any agent/ any other intermediary of the broadcaster/multi system operator. who collects the payment for providing TV channel signals to any distributor of TV channels. a copy of the latest monthly invoice showing the dues. (b) after sub-clause 3. if any. or directly from broadcasters shall produce along with their request for services.2 and the entries relating thereto.2 which prescribes the requirement for the first time operates reads as under : .distributors of TV channels intending to get signal feed from any multi-system operator other than the presently-affiliated multi system operator. from the presently-affiliated multi system operator. the following new sub clause and the entries relating thereto shall be inserted as sub-clause 3.3. whereas clause 9 mandates for fixation of subscriber base at the time of first agreement.3 Any broadcaster/multi system operator or any agent/ any other intermediary of the broadcaster/multi system operator. Clause 8 provides for renewal of the existing agreement. namely:- 3. The monthly invoice shall clearly specify the arrears and current dues along with the due date for payment of the same. Clause 9. Explanation Any claim for arrears should be accompanied by proof of service of invoices for the period to which the arrears pertain. shall issue monthly invoices to the distributor of TV channels.

the said agreement has come to an end. For the consumers proposed to be directly served by the multi system operator. The parties to the agreement shall take into account the subscriber base of cable operators connected to the multi system operator while negotiating the subscriber base of the multi system operator. while executing an interconnection agreement for the first time between a multi system operator and a broadcaster. .2 In non-addressable systems. There cannot be any doubt or dispute that such a must provide clause which is in effect and substance an exception to the general law of contract should be given a broad meaning.1 of this regulation shall be followed. The same would not. mean that this Tribunal would direct the implementation of the said provision mechanically. however. the multi system operator shall furnish a list of the cable operators who will be getting signals from its network along with their subscriber base. was being made only on the basis of interim orders passed by the Delhi High Court.9. In that view of the matter. The relationship of the parties has validly come to an end with the service of the termination notice. The supply of signals. the procedure as laid down in sub-clause 9. 189(c) of 2008 has arrived at a conclusion that no agreement was entered into on or about 28. the core question which arises for our consideration is whether the alternative prayer can be granted to the petitioner herein. This Tribunal in Petition No. There was nothing to show that the parties were even at negotiating terms and. therefore. It furthermore. thus. does not bear the signatures of the respondent on the said agreement. The exception.06.2008. which is provided in the said regulation as also in the explanatory memorandum appended to the main regulation must also be given its full effect.

If the petitioner has taken recourse to illegality. a bare perusal of which would show that the main thrust thereof is attribution of malafide on the part of the respondent in creating a monopoly. 189(c ) of 2008 and even in para 1 of this petition. has proceeded on two different premises.2 of the Regulation has also taken into consideration this aspect . which although in a given situation may not be held to be contrary in terms. Gomti Nagar. TRAI. admittedly. When the Delhi High Court has passed an interim order. in respect of the default as envisaged in the Proviso to clause 3. Its activity of retransmission of signals of the channels of the respondent was therefore. therefore. It is not countenanced in law. but the same in our opinion. SVCN. the said provision has been invoked only as an alternative request by the petitioner in the aforementioned letter dated 19. which was subject to judgment of this Tribunal. in the peculiar facts and circumstances of this case. cannot be permitted. Indisputably. presumably while making its regulations. it cannot be permitted to take advantage of its own wrong. in our opinion. it has proceeded on the basis that the petitioner was seeking direction from this Tribunal to the respondent to renew the said agreement only and in the alternative clause 3. it appears that despite the fact that the petitioner had made a similar prayer in Petition No. the same. The petitioner. would amount to giving premium to illegality.2009.2 has been invoked.03. the area of operation whereof was confined to ViramKhand. By reason of the Asset Transfer Agreement the petitioner did not derive any legal right to transgress its area of operation. if any relief in terms thereof is granted in favour of the petitioner. clearly illegal.From para 1 of the petition. entered into an agreement.

for the aforementioned purpose have proceeded on the basis that there was no valid agreement between the parties hereto. Compensation to the respondent is. Even in that sense the petitioner would be a defaulter. in our opinion. on an agreed subscriber base which is determined by mutual negotiation. it is not necessary for us to enter into the larger questions with regard to construction of Regulation 3. If the petitioner is guilty of piracy in respect of a very large area.2008 is valid and thus could be subject to renewal. Ganesh or otherwise. For the views we have taken. the petitioner was bound to pay subscription charges and even if the agreement was not valid. although.06. it was bound to pay increased subscription charges as also damages. however. thus. We. The petitioner. . in a case of this nature. requires some computations.of the matter. If that be so. thus. The Doctrine of Restitution. was. therefore. not to be paid by way of damages. legally entitled to refuse to supply the signals to the petitioner. is squarely attracted. as indicated hereinbefore on the premise that the agreement dated 28. If it was a valid agreement. cannot direct continuation of supply of signals to the petitioner by the respondent at least at this stage unless the parties may enter into an agreement. the same. has filed this petition. this Tribunal.2 of the Regulations in the manner suggested by Mr. The respondent. the petitioner was bound to re-compensate the respondent having regard the principles of quasi contract as envisaged under Section 70 of the Indian Contract Act.

it is well settled. is found wholly irrelevant and in that view of the matter it is not necessary for us to determine the same. in our opinion. Maharashtra State Electricity Board (2007) 8 SCC 1.2 in the manner in which it has been prayed for in this petition or otherwise only on the basis of the interim order passed by the Honble Delhi High Court . We. Level playing filed.2008 had been entered into by the parties thereto in violation of the petitioners red hearing prospectus.02. The submission of Mr. come on the way of the petitioner to file a fresh application in terms of Regulation 3. is a facet of Article 14 of the Constitution of India.2008. do not find any merit in this petition. grant liberty to the respondent to take appropriate action for realisation of its dues which according to it is owing and due from the petitioner including the period during which interim order passed by this Tribunal as also Delhi High Court was subsisting subject of . however. Srinivasan that the Assets Transfer Agreement dated 26. We must also observe that the submissions of Mr.02. therefore.2 of the Regulations.There cannot be any doubt or dispute that if the petitioner had requested the respondent to supply signals to it for the first time as it is a separate juristic person vis-is SVCN and on that basis that it had stepped into its shoes by reason of the Assets Transfer Agreement dated 26. Ganesh that the respondent is bound to act bonafide in a matter of this nature may not be of much controversy having regard to the decision of the Supreme Court of India in Sea TV (Supra) as also the principles contained in Regulation 3. We furthermore. Respondent shall be at liberty to disconnect the supply of signals. in our considered opinion. It is dismissed accordingly. it cannot be permitted to invoke clause 3. This order shall not.2 of the Regulations as a separate juristic person upon furnishing all the requisite details as per regulations. as has been held by the Supreme Court of India in Reliance Infrastructure V.

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MEMBER …Respondent … For Petitioner : Mr. Nasir Husain. G. CHAIRPERSON HON’BLE MR. Star Den Media Services Pvt. . Senior Advocate Mr. GAIHA. Senior Advocate Mr. Sinha The first petitioner is a Multi Service Operator (MSO). Advocate For Respondent : JUDGMENT S. Ltd.B. S.Ganesh. Advocate Mr. Advocate Mr. Gaurav Juneja. Advocate Mr.47.12. & Anr.SINHA. Petitioners Vs. Prateek Kumar.2006 on a negotiated subscriber base of 1495 on a monthly subscription fee of Rs.Ramji Srinivasan. It had entered into a subscription agreement with the respondent on or about 27.50p. D.Abhinav Agnihotri.Petition No. The second petitioner (SVCN) is also a MSO. Advocate Mr. JUSTICE S. BEFORE: HON’BLE MR. Advocate Ms.Garima Sharma.B. Vikram Mehta.Vinoba Bhoopathy.189(C) of 2008 Hathway Cable & Datacom Pvt. Ltd. Advocate Mr. for Bouquet-I channel only.989.

2008.25001. The petitioner accepted the said offer by its e-mail on the same date.25.60 by an E-mail dated 2. Please make a payment of Rs. It is stated that both the petitioners informed the respondent thereabout and requested it to transfer the IRDs in the name of the first petitioner with effect from 01.” 6.000. 2. Kindly confirm by return mail as to the signing of the agreement and payments. It. Please note that the same can be given at a monthly subscription of Rs. 3. 4.the area of operation being Viram Khand. stands admitted that the Regional Manager of the respondent offered the first petitioner its Bouquet 2 channels at a monthly subscription of Rs. A purported Asset Transfer Agreement was entered into inter se between the petitioners herein in terms whereof the first petitioner took over „SVCN‟ network including its rights under all the agreements entered into by it with various broadcasters. stating: “This is regarding your required for PK 2 of STAR DEN channels for your recently acquired Lucknow unit.2008.for IRDs charges. Gomti Nagar in the town of Lucknow for the period 01. It reads as under: “This refers to your below mentioned mail. 5.2007 and 31.60/(excluding service tax) for the current area served by your Lucknow unit). .01.03.6. however.12.4500/.2007. Admittedly the said request was not complied with by the respondent.

11. You are requested to kindly give and activate the IRDs for package 2 on immediate basis.546/-. As our signing authority Mr.07.71. Indo Gulf Fertilizers Building. A purported subscription agreement was entered into by and between the first petitioner and the respondent on or about 28. stating : .2008 issued a notice to the petitioner that SVCN had unauthorisedly been retransmitting its signals outside the authorized area. Lucknow which fact is said to have been communicated to the respondent by an e-mail dated 16. indisputably the said request was not complied with. The first petitioner shifted its headend from Viram Khand to 3 rd Floor. Alok Govil is out of country. 12. 9.2008 and 31. It is alleged that the stamp paper was also purchased in the name of the respondent herein.2008.” 7.12. Again. Kindly do the needful. Park Road. The respondent.03.2008.06. 10.2008.We are OK with this.6. contends that the said purported agreement is a forged and fabricated document. The respondent on or about 24. The agreement for the same will be signed along with the other agreements for North once he is back in India. however. It was to remain valid for the period 01. It was also requested to sign the new agreement. for the town of Lucknow for both Bouquet I and Bouquet II at a negotiated number of subscribers of 2490 on a monthly subscription fee of Rs. Thapar Premises. 8. 14A/5.

As you are aware. Without prejudice to the foregoing we state that we had verbally agreed that Hathway Cable & Datacom Pvt. 1. As per our market information. Gomti Nagar only in Lucknow city. the authorized area of operation/territory is Viram Khand. Cable Adarsh Nagar.Kamil Muztba Wariz Ganj and Gola Gunj 2.e. in terms of the Agreement signed with SVCN. Therefore. As informed we state that the Subscription Agreement with M/s Star Vision Cable Network (“SVCN”) cannot be assigned without express authorization from us. execution of subscription agreement in the name of HCDPC for the same Area as declared in the earlier Agreement signed with SVCN. Alamabagh Mr. M/s Gupta Cable N/w Mr. you or for that matter SVCN can also not change the location/ installation address the IRDs without our specific approval. Further.Toney/Sardar Sarab Jeet Singh 3. M/s T. Ltd. It has now come to our knowledge that SVCN/you are illegally retransmitting signals of our Channels to sub-operators/consumers in Unauthorized Areas. you have illegally extended the retransmission of our channels to the following operators in the below mentioned Unauthorized Areas. (HCDPL) may take over SVCN provided all formalities (i.) are completed in respect of all the STAR DEN channels. etc.“We would like to bring your attention to the discussion that we have had on this subject matter.Sunil Gupta Subhash Nagar. Alambagh . M/s Sansar Video Vision Mr.N. we immediately call upon you to relocate the IRDs to the installation address as per Subscription Agreement under confirmation to us.

Alambagh. We state that you cannot unilaterally and without prior written permission of STAR DEN Media Services Private Limited extend your area of operation. Adarsh Nagar. A notice under clause 4. M/s Abhishek Cable N/w Mr.Vikky/Ajay Talwar 6. Gola Ganj. Alambagh We state that your action of providing the signals of our Channels in above stated Unauthorized Areas is adversely affecting our commercial interests. re-transmitting the signals or our channels to the subscribers and sub-operators in the territory of Wazirganj. M/s J Sons Cable Ms Preeti Srivastava Indra Lok. 14. . Subhash Nagar.1 of the Interconnect Regulation was issued by the respondent addressed to the petitioner No. Chitragupt Nagar (“unauthorized territory”) also. M/s Talwar Cable Dish N/w Mr. Vinay Nagar. Krishna Nagar Chitragupt Nagar. It is not in dispute that the petitioner did not respond thereto. stating as under: “It has come to our knowledge that you are. 2. therefore. Vinay Nagar. Krishna Nagar Indra Lok. call upon you to refrain from providing signals of our channels to Unauthorized Areas immediately failing which we shall be constrained to initiate appropriate action (including but not limited to disconnection of signals to your network).4.” 13. We. Krishna Nagar. Indra Lok.Harish Negi 5. unauthorisedly and without entering into any agreement with us.

Hungama. against which we are entitled to initiate appropriate legal (civil/criminal) action.08. and the Copyright Act. 1957. The reason for deactivation is unauthorized retransmission of signals by the following cable operator(s). We further state that your action of encroaching upon Unauthorised Territory without any prior agreement with us is also affecting our commercial interests as it has a direct bearing on our negotiations basis on which your subscriber base and fees were fixed. CNN-IBN and CNBC Awaaz) are likely to be disconnected three weeks‟ from today to the following cable operator(s). Zoom. STAR Gold. It “This is to inform consumers that signals of some of the Channels (comprising of STAR Movies. STAR World. STAR One. STAR Plus. reads as under: .2008. Times Now. The Disney Channel. 1995 (as amended). Furthermore. The History Channel. you have continued the same which besides in violation of the said Agreement also amounts to violation of the provisions of the Cable Television Networks (Regulation) Act.” 15. CNBC. TV18. STAR Vijay. National Geographic Channel. Toon Disney Channels. A public notice was also issued by the respondent on or about 20.We note that despite our various requests to you to abstain from the unauthorized cable casting. Channel [V]. your action of providing the signals of our Channels in unauthorized territory without any agreement is also adversely affecting our commercial interests since we have existing commercial agreements with other operators/affiliates for these areas.

Declare the said Public Notice dated 20. Uttar Pradesh. CNN-IBN and CNBC Awaz for the area of Lucknow on the cable television network of the Petitioner No. Channel V CNBC-TB 80. Patrakar Chauraha.” 16.09. Toon Disney channels. null and void and/or B. It was marked as W. National Geographical channel.2008 claiming inter alia the following reliefs: “A. The petitioner filed a Writ Petition before the Delhi High Court questioning the legality of the said order. 1/70. Star Plus.6643 of 2008. Gomti Nagar. 18. Viram Khand.P. Lucknow.2008 appearing in „Dainik Jagran‟ at Lucknow to be illegal. Star Vijay Hangama. History channel.(C) No. This petition has been filed by the petitioners on 05. All the areas serviced by the Operator(s) and its franchisees will be affected.09. Star One. Disney channel. 19.2008: . Lucknow.M/s Star Vision Cable Network. A learned judge of the said Court passed the following order on 10.2008 restraining the respondent from acting pursuant to or in furtherance of the said public notice subject to the petitioner‟s restricting its area of operation to Viram Khand.1. Gomti Nagar. This Tribunal passed an interim order on 08.” 17. Zoom. Restrain the Respondent from switching off/disconnecting the signals for Star movie. Times Now.8.09. Star world.

the following order was passed by the TDSAT:ORDER Notice. which appeared in the Dainik Jagran on 20th August. It is contended by the learned Senior Counsel appearing for the petitioners that initially the respondent had entered into an agreement with petitioner no. 2008 with the respondents. List on 26th November. if any. Gomti Nagar. the petitioners entered into a fresh agreement dated 28th June. Ms. Aggrieved by the public notice. 2008.“Issue notice to the respondent to show cause why the petition be not admitted. Gomti Nagar. Lucknow.8.” In the meanwhile. On 8th September. a copy of which has been filed on page 29 of the paper book and as per Annexure-B. the respondent will not act in pursuance of the public notice dated 20. 2008. 2008. Mamta Tiwari accepts notice on behalf of the respondents and requests for a short adjournment to file reply. the petitioners had approached the TDSAT. Subsequently. Lucknow.2 for the said two areas. The present petition is directed against the order dated 8th September. . Rejoinder. be filed within a week thereafter. 2008 by virtue of which the area of operation of the petitioners has been restricted to Viram Khand.2008 subject to petitioner restricting its area of operation to Viram Khand. Let the reply along with supporting documents be filed within a week. the area as shown is entire Lucknow City.

the first petitioner has still been retransmitting the signals for the channel of the respondent in the entire town of Lucknow. by an order dated 09.6.per month only. shall remain stayed. Pursuant to or in furtherance of the said order. List on 20th October. The petitioners will take steps to serve the respondents. the subscription is being received by the respondent from the petitioner No. Copy of this order be given DASTI under the signatures of Court Master. to show that the respondent was dealing directly with the petitioners based on the agreement dated 28.2010. However. another learned judge of the said court disposed of the said petition noticing: . 2008 and the part of the order dated 8th September. Taking into consideration the averments made by the learned Senior Counsel for the petitioners. which has been filed along with the writ petition. the operation of the public notice dated 20th August. Counsel further submits that in pursuance of the agreement.per month while the subscription fee being paid by the petitioner No. 2008 restricting the rights of the petitioners to the areas of Gomti Nagar and Viram Khand.2008.1 herein in the sum of Rs.Learned Senior Counsel for the petitioners further submits that a copy of the agreement was handed over by the respondents to the petitioners and the petitioners have signed this agreement and returned the original to the respondents. till the next date of hearing. In support of her submissions learned Senior Counsel relies upon a communication.71. 2008.546/. Lucknow.2 was approximately Rs.000/.” 20.50.02. 21.

have also adduced oral evidence. 2 although. had been supplying signals to its customers throughout the town of Lucknow. The petition stands disposed of. has affirmed an affidavit on behalf of the petitioner no. Piyush Mahajan. In that view of the matter. 2. Gomti Nagar. in violation thereof.6. was the signatory to the aforementioned . The parties have. 23. Learned counsel for the respondent states that the main matter is listed for hearing before the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) on 23rd February 2010. We may place on record that the said Piyush Mahajan inter alia alleged that one Mr. 1. nor decoders were recorded in its name. in terms of original agreement dated 27. 1. 1 was not changed on its records. No witness has been examined on behalf of the petitioner no. The petitioner is permitted to urge before the TDSAT all the points raised in this Petition. It was furthermore contended that the petitioner No. were to carry out its operations only within the areas of Viram Khand. 24. documentary evidence. 2. He states that till the disposal of the matter by TDSAT there will be no disconnection carried out by the Respondent and that all points urged in the present petition can be urged before the TDSAT. 22. One Mr.12. 3. Amit Misra. who was the authorized representative of the respondent. it contended that the name of the petitioner no. the Star Den not only denied and disputed the execution of the purported agreement dated 28.06.“1.08 by and between it and the petitioner No. General Manager (Operations) for North India. it. besides. no further directions are required.” In its reply.

6.agreement dated 28.09. the expenses incurred by the said witness were reimbursed.K. in support of its case.08. the petitioners sought to recall Mr. examined one Mr. the respondents herein filed a sur-rejoinder. If the answer to the issue No. Mr.1 is in affirmative. The said witnesses were examined by this Tribunal. 25.11.2008 is legal. whether the agreement dated 20. valid and operative between the parties? 3. Whether the Star Den can appoint a sole distributor who is also a stake holder in the largest MSO in Lucknow? 4. He. However. In the aforementioned factual backdrop of events. We may notice that Shri Kapur was merely summoned to produce some documents but he even made attempts to prove the contents thereof. Whether the petitioner is entitled to signals on reasonable terms of parity? . On receipt of the said summons. In that view of the matter. the petitioners expressed its intention to examine the said Amit Misra also. we may notice that this Tribunal by an order dated 24. pursuant to an application filed by the petitioner. Manoj Kumar Singh. Whether the agreement dated 20. I. Kapur.11.6. No reason whatsoever for the said stand was assigned. They are as under: “1. was asked to appear before this Tribunal on 27. After the examination of Shri Piyush Mahajan.6. whereupon. Amit Misra was discharged. Piyush Mahajan and also summoned Mr. As execution of the said agreement was denied and disputed by the respondent.2008 is genuine and has been executed by both the parties? 2. although he had no personal knowledge thereabout. The respondent. Shri Amit Misra appeared before us. We were informed that he would not be examined.09 framed a large number of issues.

the same being not pertaining to any act on the part of the petitioner no.1 are Gomti Nagar. Mr. . 1.5. the said notice must be held to be bad in law.2? 7. Lucknow.2. S. Whether the petitioners are entitled to any relief?” 26.1 and 4. 2 on or about 26. Whether the petition is otherwise maintainable as interalia no affidavit has been affirmed on behalf of the petitioner No. who had taken over the network of the petitioner no. 1 has not been mentioned.08. (the agreed area)? 9. valid? 8. Whether the petitioner had been operating beyond Viramkhand in Whether the notice issued to the petitioner under clause 4. a broadcaster is required to assign reasons and as the only reason assigned therein was unauthorized transmission. Whether the petitioner in any event has violated the terms of the agreement by relocating decoders from one place to another? 10. Whether the sole distribution agreement would be entered into by the distributor of the Respondent on its behalf? 6. Ganesh appearing for the petitioners contended:(i) The public notice issued by the respondent suffers from a factual error as therein the name of the petitioner No.1 of the Interconnect Regulations. (ii) In terms of Regulation 4.3 of the Interconnect Regulation having been addressed to the Petitioner No.

the impugned actions on the part of the respondent must be held to be invalid in law.08 and in the alternative having asked it to supply its signals in terms of clause 3.08 it would appear that the blanks contained therein have been filled up by the same person. the same must be held to be illegal in view of the decision of the Supreme Court of India in Star India Pvt. Ltd. (iv) During the pendency of this petition.6.2 of the Interconnect Regulations and such signals having not been supplied within a period of 60 days from the date of the making of the request. namely Shri Amit Misra. as is mandatorily required. the petitioner having served a notice on the respondent to renew its agreement dated 28.V. Amit Misra was sent to Lucknow by Mr. (b) On comparison of the said agreement dated 28. Piyush Mahajan. in his deposition having categorically stated that Mr. (c) PW-1.12.6.(iii) The respondent is guilty of appointing the Den Network as its distributor who in turn has appointed one Mr. (v) The agreement entered into by and between the petitioner no. Network Ltd. Sea T. 1 and the respondent is genuine. which would appear from the following circumstances:(a) The stamp paper was purchased in the name of the respondent. [2007(4) SCC 656]. v. and the latter being the Director of the Den Network. with whom he had discussions on telephone. Arora of Biswas Enterprises. Mr. the . Omeshwar Singh as its Multi System Operator (MSO).08 with that of 27.

respondent ought to have examined Shri Arora.08 which having been accepted by the respondent. the impugned public notice is wholly unsustainable and the respondent should be directed to renew the agreement. (h) The very fact that the respondent had entered into an agreement of pay channel with the petitioner no. (f) From the chronology of events it would appear that the dispute between the parties started only after Mr. by itself cannot lead to the conclusion that the agreement was a forged and fabricated one.8. Omeshwar Singh was appointed which would clearly show the malafide on the part of the respondent. having not been returned after their signatures. the usual practice of the agreement being filled up and signed by the MSO at the first instance. 1 is also . (d) Although the agreement in question had not been signed by the respondent. if it intended to deny or dispute the said statements made by the petitioner. which are sent to the broadcaster for their signatures was followed but the same. (e) The details of the particulars contained in the said agreement were known only to the respondent and in that view of the matter. the petitioner must be held to have brought on record enough evidence to establish the genuineness of the said agreement. in this case also. (g) Payments having been made even on 30.

a pointer to show that it had all along the requisite knowledge of the Assets Transfer Agreement dated 26. 2. Mr. (b) Although both the petitioners have joined together in this petition. urged:(a) The original prayers made in the petition cannot be granted to the petitioner at this stage. appearing on behalf of the respondent. Cable Network. on the other hand. 1 which would also show that it had taken over the network of the petitioner no.02. (j) This Tribunal may direct the respondent to conduct a joint survey with the petitioner for the entire town of Lucknow and on the basis thereof. the petition is not maintainable.08 by and between the petitioners herein. the subscription fee may be directed to be paid by the petitioner to the respondent with retrospective effect from August. no affidavit having been affirmed by or on behalf of S. the respondent having offered bouquet-II in favour of the petitioner no. . (i) Yet again. 2008 which will be about 3 to 4 times of the current subscription fee but the same shall be carried out in a graded manner. 27. Ramji Srinivasan.V.

6. 1. (e) Having regard to the provisions contained in the agreement.1 and the publication of notice in terms of 4. 2 could transfer its undertaking in favour of the petitioner No. cannot be held to be bad in law as the same could not be issued/published in the name of the petitioner No.3 of the Regulations. nor the decoders could have been removed from the premises in which the headend was located. service of notice in terms of clause 4.(c) The petitioner having propounded the agreement purported to be dated 28. 2 and sent to the address recorded in its records which must be within the knowledge of the petitioner No. Piyush Mahajan. bills. the petitioner No. no credence can be given to his evidence. Mr. as the same admittedly pertained to the concerned network and in view of the fact that the invoices were being received at the said address and payments were being made on the basis thereof. 2. (d) The witness examined on behalf of the petitioner. (f) As the system recognized only the name of the person with whom the formal agreement had been entered into. 1 without obtaining the permission of the respondent. being not aware of the area as also other vital aspects of the matter. the onus of proof was on it not only to prove the genuineness but also the validity thereof. and having accepted that despite taking over of the network of the petitioner No. invoices and notices had rightly been raised in the name of the petitioner No. 1 had not personally been operating the same but only a consultant had been doing so. 1. neither the petitioner No. it being not on the records of the . (g) In any view of the matter.08 before this Tribunal.

shown to be payable in the purported agreement dated 28.6. and. however. and (2) Whether the respondent was bound to give effect to the Assets Transfer Agreement entered into by and between the petitioners inter se. (i) Bouquet-II channel of the respondent having been offered to the petitioner No. Although a large number of issues have been framed by this Tribunal.2 paise. as noticed heretobefore.71.08 is genuine and valid.respondent and in that view of the matter. who.8. we may notice some of the provisions of the agreement entered into by and between the parties hereto. (3) Whether the public notice dated 20.000/. 18.6. Amit Misra by the petitioner. Before. although summoned. the following principal questions arise for our consideration in this petition :(1) Whether the agreement dated 28. 25001.2008. would show the manner in which the document has been fabricated.1 at Rs. must be held to be a conscious act on the part of the petitioner for which an adverse inference should be drawn.61 paise calculated for 601 subscribers at the rate of Rs. 29.2008 is valid. adverting to the rival contentions of the parties. in our opinion. the amount of Rs. the petitioner no. 30. 1 cannot be said to have been prejudiced thereby. (h) Non-examination of Mr. The first agreement was entered into on or . having been working with M/s Digi Cable and not the respondent. at the material point of time.

12. however.32. Clause 6 of the said agreement reads as under:“(a) Affiliate shall. then STAR shall be entitled to terminate the Agreement and disconnect/deactivate the Scheduled Channels in addition to any other legal or equitable remedies available to it. Gomti Nagar.2006 by and between the petitioner no.07 and 31. place on record that the Telecom Regulatory Authority of India Limited (TRAI) in the year 2007 had allowed enhancement of the subscription fee to the extent of 4%. The said agreement was valid for the period 1. The Affiliate shall be reasonable.07. In the event the Affiliate fails to curb piracy. at its own cost and expense. 2 and the respondent.12. We may. after taking written approval from STAR.about 27. . take appropriate remedial actions to curb piracy in the Area.1. will. the said rate had been fixed by the respondent herein on an all India basis. at its own cost. Indisputably. The number of subscribers mentioned therein was 1495 and the rate per subscriber per month was fixed at Rs. (b) The Affiliate shall take all necessary action to prevent any unauthorized access to the Subscribed Channels in the Area and shall regularly obtain and provide to STAR updated piracy reports. The Affiliate. for obtaining all Licenses and permits necessary for the foregoing.10 paise.” 31. The area of operation stipulated therefor was Viram Khand. cause the Subscribed Channels to be received only from the designated satellite(s) as notified by STAR from time to time. and shall ensure distribution throughout the Area through its Distribution System on a separate dedicated channel(s) for reception by all Subscribers. at its sole cost and expense.

the network could not have been transferred by the party to the agreement without the formal consent of the broadcaster and the headend also could not have been shifted from the place noted in the agreement to another place without the prior consent. 2.1 by the respondent in its e-mail dated 2.10 paise but the 4% increase allowed by TRAI has not been taken into consideration.18260/as compared to Rs. we may notice the broad features thereof:(1) The agreement in question is almost in identical terms and appears to be in the handwriting of the same person. namely. that the trouble started only after Universal Cable was appointed as its distributor by the respondent on 25. 22 per subscriber per month for which the monthly subscription fee payable was Rs. As the genuineness of the agreement dated 28. 1 on the same date.6. the rate had been shown as Rs. namely.62 paise. We may also place on record one of the pleas raised by the petitioner. The negotiated number of subscribers has been raised only to 1660 for Bouquet-I and is fixed at 830 for Bouquet-II. 1 and the respondent herein is in question. In relation to Bouquet-II.25001. (3) It is beyond any doubt or dispute that the prohibitions contained in the agreement were known to the petitioners.32.08 purported to have been entered into by and between the petitioner no. No such plea was originally raised in the . to which reference has been made by us heretobefore. (2) The customer reference is also the same.6. the petitioner No.32.08 and accepted by the petitioner no. whereas the rate for Bouquet-I was shown again at Rs. Admittedly Shri Amit Misra represented the MSO and not the Respondent. which had been offered to the petitioner no. namely.08.7.

Had the parties been on negotiating terms. Keeping in view the fact that ordinarily. 2 had unauthorisedly been transmitting the signals outside the authorized area.08. It.12. Omeshwar Singh who is said to be the Managing Director of Enjoy Cable Networks Pvt. We have . the petitioner raised the said plea. notice that according to the petitioner.8.6. should not be allowed to be raised in the rejoinder. Both the notices under Regulation 4. the Interconnect Regulations provide that the agreement shall remain valid for a further period of 90 days on same terms and conditions in term of clause 8.08. Only in its rejoinder.08. stating that its distributor agreement has expired on 30. Ltd. however. the parties should be asked to go on trial either on the basis of their original pleadings and such a new plea. if any occasion arises therefor.2 of the Regulation. We may. Vishwas Enterprises. at a later stage of this judgment. was valid only up to 31. It furthermore issued a termination notice to its distributor.6. It could not have been done. notice that the agreement dated 28. Universal Cable is a sole proprietorship concern of Mr.4. as noticed heretobefore. Although we may consider the merit of the matter at some details. We would consider the effect of the said statement. There is nothing on record to show that the petitioners have been on negotiating terms.3 were issued on 20. we may at this stage. the respondent had issued a notice dated 27. 33. namely. which would have a very vital bearing on the ultimate result of the petition. Immediately after the said purported agreement was executed.petition.08 has come to an end.08 contending that the petitioner no. It is further stated that the Den Enjoy is a joint venture and „Den‟ and „Enjoy‟ which is the largest operating MSO in the territory of Lucknow.1 and the notice under Regulation 4.

09.3. Even if the said agreement is held to be legal and valid. can be granted to the petitioner no. the petitioner had served notice upon the respondent asking it to renew the agreement and/or treat the same to be a request within the meaning of the provisions of clause 3. which is one of the wards of the Lucknow Municipal Corporation.08. notice that during the pendency of this petition. no relief on the basis thereof. the same brought about an end to the relationship between the parties hereto.1 and the public notice issued under Regulation 4.3 are held to be invalid. a part of Gomti Nagar. If the termination notice is otherwise valid. Even if the said notice was issued under Regulation 4. In absence of such a contractual relationship. the agreement. We would deal with the said alternative plea of the petitioner while considering that petition independently. however. Similarly. .6. in our opinion. There does not exist any contractual relationship between the parties. the question of directing the respondent to renew the agreement would not arise.noticed the said fact at the outset only for the reason that the chronology of events would go to show that there was no scope for any negotiation. by and between the parties. As the said request has not been acceded to by the respondent. We may. the petitioners do not deny or dispute that it had been retransmitting signals throughout the town of Lucknow although its original area of operation was only Viram Khand.26 (C) of 2010. as admittedly. the petitioner no. after expiry of the tenure of the said purported agreement dated 28. 1 has filed another petition before this Tribunal which has been marked as Petition No. has come to an end. 34. it is not possible for us to grant any relief in favour of the petitioners herein. 1 in this petition.2 of the Regulations of 19. for the sake of completion of record.

3. is as to whether the notice issued under Regulation 4. but to its conduct and provided it kept its operations within the stipulated area.2008 did not obtain any written permission of the respondent. its . 1 furthermore could have been granted some relief. The petitioner No. became aware thereof.35. 38. We may proceed on the assumption that the respondent by reason of the said correspondences and/or otherwise. the same was not done at the level of the respondent.2008 in terms whereof request has been made to the respondent herein for transfer the IRDS in the name of the petitioner no. No such case has been made out. What would be the effect thereof is the question? The stipulations contained in the agreement between the parties are contractual in nature.e.2. It is also neither in doubt nor in dispute that the petitioner no. on the part of the petitioners herein to insist on the respondent to transfer the IRDS in favour of the Petitioner No. We.1 w. 37.1 as also to see that invoices are raised in its name.2. The next question. Furthermore. in our opinion. It is not denied or disputed that despite intimation by the petitioners herein in regard to Assets Transfer Agreement dated 26. which arises for consideration. 36. however.3 thereof are valid.1 of the Regulation and the public notice under Regulation 4.2008. But the fact remains that neither the IRDS allotted to the Petitioner No. are not oblivious of the fact that while the same was pending with the respondent. 39. it was obligatory. 2 before entering into the aforementioned agreement dated 26. 1. The parties to the contract were bound to comply therewith save and except in some extraordinary situation. 1.f.2 were transferred nor any invoice was raised and issued in the name of the petitioner no.

Ganesh that although in the records of the respondent the name of the petitioner no. they became vitiated in law.2006 was a non-existent entity.2008. difficult for us to accept the submission made by Mr. We may. in absence of any other material having been brought on record. . the notice having not been addressed to the petitioner No. The privity of contract was by and between the petitioner no. 1 on or about 2. 1 is concerned. 40. It is. it for bouquet-1 which referred to the subscription agreement dated 27.1 and the public notice issued under Regulation 4. 2 and the respondent herein. 2 appeared and invoices and other notices were issued to it. 2.12. So far as the petitioner no. notice that even according to the petitioners immediately thereafter namely in the month of July. difficult for us to accept that in absence of the name having been mutated in the records of the respondent.2008 which was accepted. 2008 an allegation was made that the petitioner No. contained only in the name of the petitioner No. It never came to an end.6. therefore. The programme which was available in the system of the respondent was to generate invoices.3 would be illegal. 1 or its name having not been referred to in the public notice. the notice issued under Regulation 4. however. 41. therefore. A termination notice was also issued by the respondent to its authorized distributor that its distributorship agreement had expired due to efflux of time on 30.1 of the Regulation and the public notice soon followed. The notices under Regulations 4. It is furthermore accepted that M/s. But the same by itself. 2 had unauthorisedly been retransmitting signals outside the allotted area.6. cannot be a ground to arrive at a decision that the respondent had waived its right in relation thereto. Universal Cable was appointed as a distributor.General Manager offered Bouquet–II to the petitioner no. It is. notices etc.

In a case of this nature. Its subscribers and/or viewers were also entitled to come to know of the said fact that the retransmission of the signal would be disrupted on the expiry of 21 days from the date of issuance of the notice under Regulation 4.3 provides that the notice as also the public notice must be issued in the name of the entity which had de facto been operating the network whether legally or otherwise. Neither Regulation 4. It is presumed that the things which have started in terms of an agreement would continue unless altered. It is presumed in law that the parties would be acting in terms of the agreement. 44.1 nor Regulation 4. in our opinion. The purpose and object of issuance of such notice must be fulfilled but that would not mean that the law would presume that the same would be to the benefit of one party and not the other.3. we have noticed heretobefore the . 1 cannot be said to have been prejudiced thereby. 43. whichever is later. It was entitled to a notice. 45. So far as the question of genuineness of the purported subscription agreement dated 28. In any view of the matter the petitioner no.42. the petitioners should have shown that they are prejudiced in any manner.6.1 and/or public notice under Regulation 4.2008 is concerned. The same would have been necessary provided there existed a privity of contract. do not become nullities in the eyes of law automatically. A provision made by way of a subordinate legislation only with a view to let third parties know about certain things happening or would happen in future.

The respondent in its reply.71.08 for the Star Bouquets 1 and 2 at the negotiated subscriber base of 2490 subscribers with subscription fees of Rs. it can be seen that monthly subscription fees has been shown as Rs. on the other hand.03. however.389.and that Sales Tax and Education Cess are to be calculated (@ 12. It is submitted that from the Agreement placed on record by the Petitioners. It is further submitted that no payment was made in July 2008 by the Petitioner No. 1 relies upon.08. Piyush Mahajan on which alone the petitioner No.08. the Petitioner and the Respondent entered into a Subscription Agreement dated 28.71. one of Rs.546/. What has been pleaded in the petition reads as under: “That thereafter.6.546/. 1 had approached the respondent for the purpose of execution of the agreement.389. We may.to demonstrate that the alleged Subscription Agreement had in fact been executed is false and baseless. From the pleadings of the parties furthermore it does not appear that any case has been made out that the petitioner no. refer thereto.payable monthly. Ganesh in this behalf.60. We have noticed the statements of Mr. This shows that the monthly subscription fees payable by Petitioner No.80.2008 for the period from 1. 2 was not in picture. Admittedly at that point of time the petitioner No. The said Subscription Agreement contained an “Annexure B” specifically mentioning the area served as the entire Lucknow City.1 will be Rs.925/.546/.36%) over and above the subscription fees thus totaling to Rs.1 on a single payment of Rs. averred: “That the reliance placed by Petitioner No.80.546/.” 46.2008) and the second of .1 and it is for this reason that two payments were made in August 2008.(on 18.71.71.08 and not Rs.as falsely suggested.submissions made by M.

Having regard to those averments in mind. Vishwas Enterprises. Piyush Mahajan must be held to have made certain statements which completely make himself unreliable. I was in Lucknow. 48. Statement of Account of Petitioner for the period 01.Rs.2008.” 47.(on 31. 2008. The negotiations in this regard were concluded by the third week of June. who was the distributor of the Respondent Company came to my hotel in Lucknow i.6. We find substance in the said contention. Mr.08).546/. We may notice the relevant portion of his deposition which are as under: “That I had negotiations in respect of the said Agreement with Mr. Mr. Mr. Vivek Arora agreed to the same and he instructed his distributor to complete the formalities in respect of the said Agreement. Amit Mishra from M/s. On 28. We may furthermore notice that various contentions have been raised in the said reply as to why the said subscription agreement dated 22.2008. if the Subscription Agreement could be signed as the accounts department of the Petitioner Company required an Agreement to start making payment directly to the Respondent.08.01.2008 should not be relied upon. He filled up the Agreement Form in my presence and asked me . when I telephonically requested Mr. Gemini International Hotel.71.6. Vivek Arora who represented the Respondent.6.2008 till September 2008 is annexed hereto and marked as Annexure-R/4. Vivek Arora who more than once in Delhi as a part of the negotiation process and also spoke to him several times in this regard telephonically. I personally met Mr. On 28.e. Vivek Arora.

1 Company would give growth to the Respondent as it expanded its operations in the city of Lucknow. The Agreement was signed for the city of Lucknow for a monthly subscription fees of Rs. taken by the Board of Directors to takeover „Star . which were as per the final negotiations held between me and Mr. Mr. Amit Mishra got a photocopy made of the said Agreement and gave it to me and kept the original with himself. No report was submitted to the said witness by him.plus service tax for bouquets 1 and 2 of the Respondent. Rajesh Bansal the Consultant of the petitioner no. 1. as it appears from his evidence. The witness also did not ask the Consultant to verify as to whether the petitioner no. even according to Mr. however. After checking the same I signed the said Agreement and affixed my photograph to the said Agreement. Although the area.to sign the same and attach a photograph of mine to the same. he did not either know the area covered by the agreement nor did he remember the number of subscribers. 50. is very relevant for the purpose of the agreement. Mahajan.546/. 2 had any agreement with the four LCOs who were operating under it. according to the same witness by Mr. was being looked after. It was merely a verbal order on telephone. According to him a due diligence had been carried out. The matter. That the subscriber base for the bouquet 1 was negotiated at 1660 subscribers and for bouquet 2 was negotiated at 830 subscribers. Amit Mishra. Vivek Arora on which there was agreement between us. I checked the details regarding the area and the subscription amount filled up by Mr. That it was agreed between me and Vivek Arora that the Petitioner No. It is difficult to accept the evidence of the said witness.” 49.71. There was no decision.

which he had not been keeping. 2 had been operating. it is difficult to believe that the network could be taken over at its instance without any resolution having been passed by the Board of Directors or at least without the concurrence of one of its Directors. 51. he would have known as to which areas the petitioner no.6. He in his evidence furthermore accepted that it was necessary for the first petitioner to have an agreement in his favour from the respondent to enable it to transmit signal in an authorised manner. according to him. If the parties had met in a hotel. Vishwas Enterprises had been summoned by this Tribunal for examining him.Vision‟. in view of the points raised by the respondent. for the purpose of execution of the agreement. further corroborative evidence should have been brought on record. We have noticed heretobefore that on the relevant date no explanation was offered as to why he would not be examined. He even did not recollect whether the requirements of clause c of Section 21 of exhibit PW1/6 were fulfilled. Furthermore Mr. He. He being merely an employee of the company. Shri Alok Govil did not examine himself. Even no such case has been made out in the petition. he would not be examined. on his own admission merely supplied one photograph. Alok Govil. His handwriting although was . only because they were asked for from him. He even could not say that Mr. Amit Mishra alone could have proved his handwriting in the draft proforma. Mr. He on 22. Govil is said to have informed him about the development although entering into an agreement with the respondent was crucial in nature. It is also difficult to believe that despite the fact that Shri Amit Mishra from M/s. He would not have left everything to his alleged Consultant. He produced the said document. He did not say who had asked him thereabout. who had gone abroad.2008 even did not have any authority to sign the agreement. was visiting which country at the relevant time. If he was having any personal knowledge with regard to the operation of the network.

1 would give growth to the respondent as it expanded its operation in the city of Lucknow does not find support from the pleadings of the petitioner.3 had been issued. it has expired. 52. the respondent having not signed the purported agreement. His statement that it had been agreed between him and Mr. for the whole of the town of Lucknow. no contract came into being and on that ground too. The said notice. namely Viram Khand the petitioner no. we have held heretobefore is valid in law. 2 had 1495 subscribers. Vivek Arora that the petitioner No. the respondent would agree for a negotiated base of subscribers of 1660 for Bouquet-1 and only 830 subscribers for Bouquet-II. Even assuming that the said agreement was a genuine one. In any view of the matter. in our opinion. apart from various grounds stated by the respondent herein. It is. the said agreement does not exist and thus the question of its being renewed would also not arise. 54. A notice under 4. 53. difficult for us to arrive at a conclusion that the agreement in question is a genuine one.questioned by the respondent in the cross-examination. . the question of renewal thereof would not arise. If that be so. It is also difficult to accept that although in respect of a part of the Gomti Nagar. the same has not been sent for verification to a Handwriting Expert. We would also assume for the aforementioned purpose that the public notice is bad in law but even then no relief can be granted to the petitioner as it does not have any existing legal right to continue to operate in the town of Lucknow.

the correctness whereof is open to question. the Petitioner No.Furthermore. Ganesh submitted that the amount though tendered to the respondent had not been accepted by it. Mr. When questioned. Ganesh himself had made an offer before us that the petitioner would be increasing the subscription fee on a progressive basis and is ready and willing to pay the same with retrospective effect on the subscriber base which may be found out on a joint survey. We have noticed heretobefore that Mr. 2008 admittedly no payment has been made to the respondent. the petitioner no. 56. that a Court of law and/or a judicial tribunal has an inherent power to put the parties to the same position as if the order of injunction granted in favour of one party and against the other had been complied with. We are informed at the bar that the amount towards the subscription fee from Sept. It is now a well settled principle of law. 1 must restitute the amount it has earned during pendency .1 was to make payments. 1 should be put to terms for carrying on its operation in terms of the interim order passed by this Tribunal as also the Delhi High Court. 57. It obtained an order from Delhi High Court on certain premise. even the admitted amount has not been paid. The first petitioner could not have expanded its area of operation without a valid agreement. If such an assumption is to be made. Thus. 2008 had been tendered. In terms of the order passed by this Tribunal. the petitioner no. It is difficult to believe the said statement. From the month of September.1 is guilty of unauthorized transmission of signals. 55. One of the questions which has been argued for our consideration is as to whether the petitioner no.

The first petitioner is said to be a reputed company and has a network throughout India.of this proceeding.D. ……………. Such an order can be passed by this Tribunal in exercise of its inherent power. If that be so.2. 59. 1956 that the petitioner is statutorily required to maintain the books of account and get the same audited by the Statutory Auditors. Gaiha) Member . 60. 58. There cannot furthermore be any further doubt or dispute that even under the Companies Act. (2008 (4) SCC 791 at 796).1 shall pay to the respondent the requisite payment at its earliest.000/ -.B. there cannot be any doubt whatsoever. Counsel‟s fee assessed at Rs. It is expected that the petitioner No. that it would be maintaining its books of account.00. The petition is dismissed with cost. Sinha) Chairperson ……………… (G.J (S. We dismiss the petition with liberty granted to the respondent to file an appropriate petition for recovery of the amount it is entitled to recover.

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