Den Network Ltd vs Sahara India TV Network

Ram Krishana Gautam, Member

This Petition, under Section 14, read with Section 14A, of the Telecom Regulatory Authority of India Act, 1997 (as amended upto date) (hereinafter referred to as TRAI Act), by the petitioner company - Den Networks Ltd., has been filed against respondent company, Sahara India TV Network, with a prayer to direct the respondent to pay the petitioner, a sum of Rs. 2,41,57,402/- (Rupees Two Crore Forty One lakhs Fifty Seven Thousand Four Hundred and Two only), towards the placement charges, with a further direction to make the payment of interest, on the above outstanding placement charge, @ 18% p.a., or the rate, which Tribunal deems fit.

In brief, the contention of petition, is that petitioner is a cable television service provider, duly registered under the provisions of Section 3, of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as "Cable Television Act"), and is carrying on business of Multi System Operator [hereinafter referred to as "MSO business"]. The Respondent, being a Broadcaster, as per TRAI Regulations, has been distributing satellite channels-Sahara One & Sahara Filmy, under the name and title, as stated in the cause title of this petition - Sahara India TV Network. The petitioner, on oral understanding, with effect from 1st April 2013, had started placement of the channels Sahara One & Sahara Filmy, being broadcasted by respondent, on its Digital platform, as mentioned in agreement, dated 7.10.2013, subsequently, entered, in between(hereinafter referred to as "the Agreement"). Counter-signed copy of the agreement was not received by the petitioner. A copy of the agreement, dated 7.10.2013, is Annexure P-1 to the petition. Based upon the terms of written agreement, annexure P-1, the petitioner raised the invoices on the respondent for the placement charges, due against it. The statement of account of respondent, prepared in usual course by petitioner, as a copy of same, is Annexure P-2 to the petition. Petitioner demanded outstanding placement fees from respondent, which was promised to be paid soon, petitioner wrote a letter, dated 11.03.2014, to the respondent, demanding the placement fees. This letter is annexure P- 3 to the petition. Thenafter, repeatedly, demand was made by the petitioner to the respondent, but of no avail. Whereas, service of placement was availed by respondent, and its channels - Sahara One and Sahara Filmy, were placed by petitioner, for the agreed placement charges. Thus, the total outstanding liability of the respondent, under the agreement, was Rs. 2,41,57,402/-. The respondent, is also liable to make the payment of interest, @ 18% p.a., over above accrued outstanding placement charge. Though promise was being extended by the respondent, for ensuring payment of entire outstanding dues, but it was not paid so. A cause of action, within the territorial jurisdiction of this Tribunal, within the limitation period prescribed for, had arisen in favour of petitioner.

Hence, this petition, through Mr. Rajiv Tiwari, General Manager of petitioner's company, duly authorised to file this petition, vide Board Resolution dated, 9.8.2012, is Annexure P-4 to petition, got filed.

Reply, alongwith affidavit, for and on behalf of respondent, Sahara India TV Network, got filed with this contention that Shri Mahesh Prakash Bende, is the authorised representative of respondent, who has verified and signed the reply, as well as accompanying affidavit, and this authorisation is Annexure 1 to reply. This petition is not maintainable, because of being devoid of facts. Petitioner and respondent never entered into any agreement, whatsoever, as submitted by petitioner herein, nor there was any oral understanding, in between. No cause of action had ever arisen, nor relief prayed, is awardable. The alleged agreement, said to be entered, in between, does not bear the sign, seal and stamp of respondent company. Rather, it is unilateral, arbitrary contention and calculations, made by petitioner, for filing this petition. The entire contention of petition is a concocted one, that too, without any proof. Hence, this petition be got dismissed with cost.

There was a replication cum rejoinder, for and on behalf of petitioner, with categorical denial of reply and reiteration of the contentions of petition, as well as the prayers made therein.

On the basis of pleadings of both sides, the Court of Registrar, made the following issues on 29.10.2014:

Whether the MOU/ Agreements in respective Petitions are binding on the parties?

Whether the Respondent is liable to pay the respective carriage fees/ placement charges as prayed for in the respective Petitions?

Any other issue/ relief as deemed fit by the Hon'ble Tribunal?

The evidence, by way of affidavit of Shri Vivek Nanda, the then authorised representative of petitioner company was got filed, in chief. But owing to change of authorised representative, the evidence affidavit for and on behalf of petitioner, of Shri Parneet Singh Bhalla, Senior Manager (Carriage and Content) was got filed by the petitioner company and this was with affidavit filed under section 65B of the Indian Evidence Act, 1872. Again affidavit of Shri Umakant Gupta, General Manager (Carriage and Content) of petitioner company, being the authorised representative of petitioner company, got filed as a substituted one and this witness got cross examined by learned counsel for respondent. The evidence by way of affidavit of Shri Prakash Chandra Tripathi, authorised representative of respondent company got filed by respondent.

Written submissions by both sides were got filed.

Heard arguments of learned counsel for both the sides and gone through material placed on record.

Hon'ble Apex Court in Anil Rishi v. Gurbaksh Singh-AIR 2006 SC 1971 has propounded that onus to prove a fact is on the person who asserts it. Under Section 102 of The Indian Evidence Act, initial onus is always on the plaintiff to prove his case and of the discharges, the onus shifts to the defendant. It has further propounded in Premlata Vs. Arhant Kumat Jain- AIR 1976 SC 626 that where both the parties have already produced whatever evidence they had, the question of burden of proof ceases to have any importance. But while appreciating the question of burden of proof and misplacing the burden of proof on a particular party and recording of findings in a particular way will definitely vitiate the judgement. The old principle propounded by Privy Council in Lakshman v. Venkateshwarloo- AIR 1949 PC 278 still holds good that burden of proof on the pleadings never shifts, it always remains constant. Factually proving of a case in his favour is cost upon plaintiff when he fulfils, onus shifts over defendants to adduce rebutting evidence to meet the case made out by plaintiff. Onus may again shift to plaintiff. Hon'ble Apex Court in State of J & K Vs. Hindustan Forest Co. (2006) 12 SCC 198 has propounded that the plaintiff cannot obviously take advantage of the weakness of defendant. The plaintiff must stand upon evidence adduced by him. Though unlike a criminal case, in civil cases there is no mandate for proving fact beyond reasonable doubt, but even preponderance of probabilities may serve as a good basis of decision, as was propounded in M Krishan Vs. Vijay Singh- 2001 CrLJ 4705. Hon'ble Apex Court in Raghvamma Vs. A Cherry Chamma- AIR 1964 SC 136 has propounded that burden and onus of proof are two different things. Burden of proof lies upon a person who has to prove the facts and it never shifts. Onus of proof shifts. Such shifting of onus is a continuous process in evaluation of evidence.

This Petition, before this Tribunal, is a civil proceeding and in civil proceeding, the preponderance of probabilities, is the touchstone for making a decision, as against strict burden of proof, required in criminal proceeding.

Issue No. 1 - Under above proposition of law, as well as TRAI Act, the proceeding before this Tribunal is of civil case proceeding, and the petition is a plaint, the reply is written statement of same, rejoinder is replication of same, and all these three parts, is conjointly, 'a pleading'.

The petition is with specific contention, made by authorised representative of petitioner company, by annexing Board Resolution, authorising this person for this purpose, that petitioner is a cable TV service provider, duly registered under the provisions of Section 3, of the Cable Television Networks (Regulation) Act, 1995, and is carrying on business of Multi Systems Operation. Whereas, the Respondent - Sahara India TV Network, is a Broadcaster, under TRAI Regulations, distributing its satellite channels- Sahara One & Sahara Filmy, for its placement on Digital platform of MSO for transmission of its signals to ultimate end user. There was an oral agreement, in between, effective from date 1.4.2013, for placing those Sahara One & Sahara Filmy, at a particular placement by petitioner company, and this was subsequently, entered into a written agreement, dated 7.10.2013, which is Annexure P-1 to the petition and this agreement was complied with by petitioner, wherein, those channels were placed at their given place, by petitioner MSO.

This was replied by defendant / respondent / Sahara India TV Network, disputing this fact and this reply was filed by one Shri Mahesh Prakash Bende, authorised representative of the respondent. This has further been written in para 6 of this reply, that this reply has been verified and signed by above Shri Mahesh Prakash Bende, who had put his signatures in its affidavit too. This letter of authorisation is Annexure P-1 to reply. From the very perusal of this reply, it is apparent that it is with no signature of any person, for and on behalf of respondent company. Rather, is with signature of Shri Biresh Kumar, Registrar, while exhibiting it i.e. this reply is with no signature of authorised representative or of any verification clause, or with any endorsement about its veracity. The affidavit filed with it, is of Shri Mahesh Prakash Bende, which was with attestation of the Oath Commissioner, New Delhi on 5.8.2014, but this Shri Mahesh Prakash Bende, is nowhere authorised representative of respondent company.

Rather, the authorisation letter annexed with this affidavit reveals to be executed by some TRILOGIC DIGITAL MEDIA LIMITED with following words:

"Certified true copy of the resolution passed at the meeting of the Board of Directors of Trilogic Digital Media Limited on Saturday 29th May 2014, at the Corporate Office of the Company.

Resolved that Mr Mahesh Prakash Bende is hereby authorized to enter, sign, execute documents & other legal documents in channel distribution matter of Sahara India TV Network (Before the Hon'ble Telecom Settlement and Appellate Tribunal, New Delhi).

// Certified true copy//

For TRILOGIC DIGITAL MEDIA LIMITED

Director with seal and sign"

The petition has been filed against Sahara TV India Network. The authorisation is being made by the Board of Resolution, of Trilogic Digital Media Limited, i.e., no power is for and on behalf of this Sahara TV India Network, vide its Board of Directors. And when asked for in cross examination, this has been admitted by the witness of respondent. Not only this, the learned counsel arguing for respondent company had plainly and honestly admitted in his argument that the reply filed is with no signature, no verification, no authorisation by Board of Resolution of respondent company. But the plaintiff / petitioner is to stand on its own legs, to prove its case. It may not get the benefits of defects of defendant / respondent, for which arguments have been advanced.

Meaning thereby, the plaint has not been replied by defendant/respondent. The person who has filed reply is not putting his signature, over reply, nor verification clause is there, nor he was with any authority for respondent company. The very contention of the petition has been reiterated in the affidavit, filed in support of the petition, as well as evidence affidavit of petitioner company. Mr Umakant Gupta in its affidavit, filed in evidence of Petitioner, has reiterated the contention of Petition and had exhibited Annexure P-1 to the Petition i.e., Agreement dated 07.10.2013, as exhibit PW-1/1. The Statement of Account, which was Annexure P-2 to Petition as exhibit PW-1/2 in the evidence. The demand notice, for the due placement fee, dated 11.03.2014, sent by Petitioner to Respondent, is Annexure P-3 to Petition and it has been proved and exhibited as exhibit PW-1/3. The Respondent had admitted its liability to the above outstanding amount, by acknowledging the co-operation between the Petitioner and Respondent, through its email, exchanged, in between, and Annexed as Annexure A to rejoinder/ replication, which has been proved and exhibited as Exhibit PW-1/4.

The Channel Placement Report of Respondent's Channel has been proved as Exhibit 1/5, and the authorization letter, executed in favour of present witness, has been proved as Exhibit 1/6. This witness has been put under cross examination, wherein, specific contention has been made "I have seen my affidavit dated 11.1.2017, tendering evidence. It bears my signatures at Page Nos. 13 to 15. I hereby, tender my affidavit alongwith documents in evidence."

A leading question has been put to this witness by learned counsel for respondent itself, in question no. 3 that "I sit correct to say that the Den Networks Ltd is claiming an amount of Rs. 2,41,057,402/-, towards placement fees for the financial year 2013-2014?" The reply is "yes".Meaning thereby, the claim with regard to the period, as well as the amount is very well known to learned counsel for respondent, who has put this suggestive leading question to this witness, and has been positively replied by this witness. The main thrust was the unilateral agreement, having no signature of respondent company. This has been specifically mentioned in petition, as well as affidavit filed in support of it that counter signed agreement was not sent back by respondent company. Rather, it was withheld. And this is the contention in cross-examination of this witness too. The emails, exchanged, in between, establishing the above relationship, as well the assurance, has not been with any material variance in the cross examination of this witness of petitioner company.

The examination in chief of Mr. Prakash Chandra Tripathi, respondent's witness was with cross examination made by counsel for petitioner, wherein, the witness had categorically answered in question No. 26 that he does not remember the name, who had signed the reply, filed for the respondent. But when asked for in subsequent question, as to whether it is with any signature of anyone, it was replied to be in negative i.e. there is no signature of anyone over this reply. In a subsequent question, this witness has categorically stated that the "yes there is no verification of the contents of the reply". "Yes, there is no Board Resolution in favour of Mr Mahesh Prakash Bende, executed by respondent i.e. Sahara India TV Network or Sahara India Commercial Corporation Ltd." When a specific question has been put to this witness as to whether he is personally aware of the facts in dispute, for which he is in witness box, in reply to question no. 30, this witness had categorically replied :-

"Q.Is it correct that you were not present in the dealings i.e. execution of agreement, correspondences between the parties etc. of petitioner and respondent ?

Ans. Yes, I was not present and have no idea of any execution of agreement."

Meaning thereby, this witness is with no idea about the facts, for which he had been put under the witness box. This witness, in answer to question nos. 6 and 7, has stated about the domain name of Sahara- One.Com to be of email id with Mr Bakulish through given email, and Mr. Gautam Sarkar, Mr Ramit Kundu, Mr. Sashidhar N Kotian, who were looking after the distribution of news channels, belonging to Sahara India TV Network., a unit of Sahara India Commercial Corporation Ltd. A specific question was put to this witness regarding the deduction of TDS, concerning the alleged payment made to the petitioner company, for which Form 26AS of the petitioner company, relating to Financial Year 2013-14 regarding TDS, was shown to this witness and thenafter were put under question. But, a blatant denial was made by this witness, i.e. not aware of these things.

A specific question, with regard to correspondence done between the petitioner and respondent, regarding the agreement, dated 7.10.2013, and outstanding dues thereunder, was put under question no. 23, and it was replied that"Iam not aware regarding those correspondences." Hence, the petitioner had exhausted its burden of proving of the fact pleaded in its petition. The deduction of TDS towards the alleged dues has been shown in Form 26AS regarding the petitioner company for the relevant year. Hence, the very contention of respondent is of no avail. Hence, in the same fact and situation, BP No. 262 of 2014 (Den Network Ltd. Vs. Sahara India TV Network), which was previously connected with present petition and subsequently, was got separated by this Tribunal, was heard and decided, vide judgment, dated 13.10.2022 passed, in favour of petitioner company. Hence, the Memorandum of Understanding/agreement, proved as exhibit PW 1/1, which was annexure P-1, to petition is of binding nature over the parties.

Issue No. 2 - As discussed above, in Issue No. 1, outstanding placement charges, towards placement agreement, in the tune of Rs. 2,41,057,402/-, was outstanding and due, as per Statement of Account, Annexure P-2 to the petition, payable by respondent to the petitioner. The perusal of same, reveals that the provision of Annexure P-1, was with provision for payment of placement charge vis-à-vis subscription charge, wherein placement charges were to be made by respondent, for placement of its signals by the petitioner, and the subscription charges were payable by the petitioner, for having those signals for placement. This was mentioned by learned counsel for petitioner that the amount due towards placement charges, for which this claim was filed, was to be adjusted, with those subscription charges. Hence, there was direction for calculating the same. Though, the respondent had never raised anything about subscription charges, but it was only the petitioner, who had mentioned it.

Hence, additional written submission was taken on this point, wherein, it was specified that Rs. 29.67 lakhs (inclusive of taxes), was payable to respondent, by the petitioner with respect of agreement, dated 7.10.2013, but, since no payment was received for the placement, therefore, no payment was made towards subscription. However, as a prudent accountancy, deposited by the petitioner, amounting to Rs. 2.58 lakhs, towards TDS with Income Tax Department, of respondent's PAN number. Therefore, as per agreement, dated 7.10.2013, on account of subscription fee, Rs. 27.09 lakhs, remained to be payable by the petitioner to the respondent.

Hence, the claim of outstanding placement charges made for a decree in Rs. 2,41,57,402/- is to be adjusted with liability towards subscription charges in the tune of Rs. 29.67 lakhs (Rs. 27.09 lakhs plus Rs. 2.58 lakhs, paid by respondent towards TDS). Hence, it amounted to Rs. 2,41,57,402/- minus Rs.29,67,000/- = 2,11,90,402/-, rounded to be Rs. 2,11,90,400/-, for which this petitioner is entitled towards placement charges. This issue is being decided, as above, in favour of petitioner.

Issue no. 3 - This Tribunal, in many cases, decided previously, has awarded 9% Simple Interest per annum, but considering the facts and circumstances of present case, and previously decided alike petition, BP no. 262 of 2014, decided on 13.10.2022, a 7% Simple Interest per annum, pendente lite and future, till the date of actual payment, has been awarded. Hence, the same interest of 7% Simple Interest per annum, towards pendente lite and future, from the date of petition, till the date of actual payment, is just and equitable interest, and is to be awarded over above amount.

Accordingly, this petition merits to be allowed with cost.

ORDER

Petition is being decreed against respondent. Pending M.As, if any, shall stand disposed of. Sahara India TV Network is being directed to make the deposit of Rs. 2,11,90,400/- (Rupees Two crores Eleven lakhs Ninety Thousand Four Hundred only), towards placement charges, due in favour of petitioner and against respondent, alongwith a simple interest, payable @ 7% p.a. to be due, as a pendente lite and future, from the date of filing of petition, till the actual date of payment, by the respondent to the petitioner, within two months from the date of judgment, in this Tribunal for making payment to petitioner.

Formal order/decree be got prepared by office accordingly.