DEN Networks Limited vs Bacchu Cable Network

Ram Krishana Gautam, Member

The present Petition, under Section 14, read with Section 14A of the Telecom Regulatory Authority of India Act, 1997 (As amended from time to time) (hereinafter referred to as "TRAI Act") has been filed on behalf of the above Petitioner Company, against the Respondent, a Local Cable Operator, Bacchu Cable Network, bearing LCO code 1287370979 in the Petitioner's system, for direction to the Respondent, to return total 107 Set Top Boxes, in good and working condition, which has been issued to Respondent, or in lieu of the same, pay a total amount of Rs.2,13,893/- (Rupees Two Lakhs Thirteen Thousand Eight Hundred Ninety Three Only), @ 1999/- per set top box. Petitioner also requested the Tribunal to pass such orders, as it may deem fit and appropriate, in the facts and circumstances of the present case, in favour of the Petitioner, and against the Respondent, alongwith cost of the Petition, in accordance with law.

In brief, it was contented that the Petitioner is a cable television service provider, duly registered under the provision of the Cable television Networks (Regulation) Act, 1995 (hereinafter referred to as"Cable Television Act"). The Petitioner is carrying on Distributor Platform Operator [herein referred as "DPO"] business. The Respondent, is a Local cable operator (LCO), and has been receiving encrypted Cable signal feeds of television channels from the addressable system of the Petitioner, to retransmit the same through its cable television network to the subscribers. The Respondent has entered into a Model Interconnect Agreement on 31st August 2020 (herein after referred to as "Agreement") with petition for obtaining Cable signal feed. Copy of the agreement dated 31.08.2020, is annexed herewith and marked as Annexure-P1 to the Petition.

It has been submitted that Respondent has migrated to the competitor DPO of the Petitioner, without giving any notice & complying with the TRAI regulations. It has been mentioned in the Petition that these above 107 STBs are the exclusive property of the Petitioner and has been mentioned in the Agreement, executed between the Parties. The Petitioner stated that the Respondent has taken undue advantage of the Petitioner. It is stated that on the basis of the terms of written agreement, executed between the parties, Set Top Boxes were supplied to respondent. Inventory details of STBs is Annexure-P2 to the petition.

Petitioner has discharged its obligation under the said agreement, but Respondent has failed and neglected to perform its obligations and migrated to the network of rival DPO, without complying the provisions of TRAI Regulations. Respondent has defaulted in meeting its obligations, as laid down under the agreement. Hence, a cause of action arose on 11.06.2021, when petitioner issued a cease and desist notice to respondent. A copy of that notice issued by the Petitioner Company is annexed herewith and marked as Annexure-P3 to the petition.

Hence, the Petitioner, has filed this petition, through Mr. Siddharth Priya Srivastava, Manager, who is duly authorised to file this petition, vide Board Resolution, which is annexed herewith and marked as Annexure-P4 to the petition, for appropriate directions in the interest of justice.

The Tribunal has the jurisdiction to entertain and try the present petition under the provisions of the TRAI Act, and it has been field within the limitation period.

It has been contented that on many occasions, the Petitioner orally requested the Respondent to refrain from swapping of STBs, but respondent migrated to rival DPO, without returning STBs, which are exclusive property of the petitioner. Respondent paid no heed to request of the Petitioner, and continued to swap the petitioner's set top boxes.

Mr. Siddharth Priya Srivastava, Manager of the Petitioner's Company is duly authorised to file this petition vide Board Resolution dated 15.01.2019. A copy of the said Board Resolution is annexed herewith and marked as Annexure-P4 to the petition.

After giving sufficient opportunities to the respondent, neither appearance, nor any reply got filed. Hence, on 25.02.2022, the Respondent was proceeded ex-parte.

Evidence by way of affidavit, dated 06th April 2022, was filed by Mr. Harsh Singh of petitioner's Company, reiterating the contents of the petition in totality and based on the terms of written agreement the Petitioner issued the Set Top Boxes to the Respondent for deployment at subscriber's place for which the Inventory List of 107 Set Top Boxes by the Petitioner Company herein, the evidence affidavit which reflects the number of Set Top Boxes issued by the Petitioner to the Respondent. Copy of the Inventory List is exhibit hereto and marked as EXHIBIT-PW1/2 to the evidence affidavit. No evidence, either oral or documentary, for and on behalf of Respondent, could be filed, by Respondent.

Petitioner also filed written arguments in this Petition specifying the details of the amount to be awarded to the petitioner.

Heard learned counsel for the Petitioner and gone through the material place 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 he discharges, the onus shifts to the defendant. It has further propounded in Premlata Vs. Arhant Kumat Jain- AIR1976 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.

Since, during the proceeding before this Hon'ble Tribunal, the respondent chose not to appear, not filed their reply, nor participated, hence, there is no negation of contents of petition. Hence, this petition merits its allowance with costs. Further Petitioner's evidence affidavit is with reiteration and the contents of petition, wherein the interconnect agreement has been made annexure to the affidavit, and it was not controverted by the respondent. Issuance of 107 STBs, along with VCs, in compliance of Model interconnect agreement, in between, petitioner and respondent, has been stated in uncontroverted affidavit along with the details of the STBs. The price per STB, is given as Rs.1,999/-, and total amount, as a cost of these STBs as well as VC has been calculated to be Rs. 2,13,893/-. Whereas as per the agreement entered, in between, the compensation for STBs, ought to be depreciated value of STB and this Tribunal, very often has decided depreciation of 15% for the value of purchase (BP No. 267 of 2019- Hathway digital Private Limited Vs. Jaipur cable Network). Hence, Rs.1999/-, has been claimed as the value of per STBs, and with depreciated value, it will come to Rs. 1699/- per STB. Hence, the amount payable in case of failure to restore the STBs and VCs, will come to Rs.1,81,793/- (Rs.1699*107 STBs).

Unrebutted affidavit of Petitioner is in fully reiteration and corroboration of Petition. These facts have been fully proved by Petitioner, by way of uncontroverted affidavit. Hence, Petitioner had proved its case with all precise and cogent evidence.

The Petition merits to be allowed for return of 107 STBs in good and working condition or in lieu of that to be directed to pay an amount of Rs.1,81,793/- (Rs.1699*107 STBs) (Rupees one Lakh Eighty one Thousand Seven Hundred and Ninety Three Only) to the petitioner by respondent.

ORDER

Petition is being allowed with the cost. Respondent, is being directed to make return of 107 Set Top Boxes alongwith accessories, in good and working condition, within two months, from the date of judgement. In case of failure, to make deposit of Rs.1,81,793/- (Rs.1699*107 STBs). (Rupees one Lakh Eighty one Thousand Seven Hundred and Ninety Three Only), @1699/- per Set Top Box, for making payment towards petitioner. In case of failure, the above principal amount shall be payable, with 9% Simple interest, for future period of defiance, from the date of judgement, till actual payment.

Formal order/ decree be got prepared by office, accordingly.