DEN Networks Limited vs Shri Balaji Communication

Ram Krishna 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- Den Networks Ltd., against the Respondent, a Local Cable Operator, Shri Balaji Communication, with a prayer for award of Rs. 18,33,439/- (Rupees Eighteen Lakhs Thirty Three Thousand Four Hundred and Thirty Nine Only), as on 30th April 2019, as outstanding subscription dues alongwith @ 18% p.a. interest, pendente lite and future, with a further direction to the Respondent, to return total 1301 Set Top Boxes, alongwith accessories, in good and working condition, issued to Respondent, for installation at subscriber's premises, or to make payment in lieu that amount, @ Rs.1999/- per Set Top Box.

In brief, petition contends that the Petitioner is carrying on Multi Systems Operation business and is a cable television service provider, duly registered, under the provision of Section 3, the Cable television Networks (Regulation) Act, 1995 (hereinafter referred to as "Cable Television Act"). The Respondent - Shri Balaji Communication, is a Local Cable Operator (LCO), as per TRAI Regulations, who receives encrypted Cable signal feeds of television channels, from the addressable system of the Petitioner, to retransmit the same through its cable television network to end user subscribers. The respondent ran two parallel networks to supply signals received by it from the petitioner, and for this purpose, two separate LCO codes, LCODL254 and LCODL821, were allocated to the respondent, by the petitioner, with effect from April 2013, for which two agreements, one for each LCO, were entered and executed, in between the parties, and accordingly, STBs alongwith accessories, were got issued and those agreements are annexed herewith and marked as Annexure-P1(colly) to the Petition.

As per petitioner's record, a total number of 1301 STBs, alongwith accessories, were got issued to the respondent, for deployment at subscribers' end, which were the exclusive property of petitioner's company. Each of the STB is worth Rs. 1999/-, and were liable to be restored to the petitioner, in the case of no relationship. Based upon the terms of interconnect agreements, the Petitioner had raised invoices on the Respondent, for the payment of subscription amount, collected from subscribers, and those invoices are annexed as Annexure-P2(colly) to the petition. The statement of accounts, maintained by the Petitioner Company, for the respondent's network, is Annexure-P3 (colly) to the petition.

Petitioner requested the respondent to make clear the outstanding subscription amount, but of no avail, except a false assurance for clearing the same very soon. Petitioner came to know from the ground report that the respondent is indulged in swapping the STBs in connivance with other MSO. Hence, a demand cum cease notice, with a direction to desist from above activities, dated 28.03.2019, was got issued to respondent, which is Annexure-P4 to the petition. But inspite of repeated requests and service of same, respondent did not come forward to clear the outstanding dues of the Petitioner, nor stopped swapping the petitioner's set top boxes, without complying with the provisions of TRAI regulations i.e providing three weeks' notice to the petitioner. The total outstanding liability of the respondent, as per agreement executed, in between, stood at Rs. 18,33,439/-, as on 30.04.2019. Petitioner is also entitled for an interest, @ 18% p.a., over it. Inspite of repeated demand and persuasion, no payment was made. Rather, promises were extended, for making the payment very soon. Hence, a cause of action, within the jurisdiction of this Tribunal, as per Law of Limitation, had arisen. Hence, this petition with above prayers, by the Petitioner, through its authorised representative, Mr. Siddharth Priya Srivastava, Manager of the Petitioner's Company, authorised, vide Board Resolution, dated 06.06.2014. Annexure-P5 to the petition, was got filed with interim prayer, for restraining the swapping by respondent.

The court passed interim restraint order, on the very first day of hearing, restraining respondent, from swapping with the STBs of competitive MSO. Inspite of sufficient service, held by this Tribunal, vide order, dated 16.9.2019, and grant of time to respondent company - Shri Balaji Communication, vide order dated 17.10.2019, neither vakalatnama, nor reply got filed. But after a long gap of covid period, matter was listed for hearing. Hence, in utter precaution, service through Police Mode was directed by previous court, wherein same was got ensured, but none appeared. Hence, an affidavit of service, coupled with deliberate avoidance by respondent got filed, and ultimately, vide order dated, 12.12.2024, effected the proceeding ex-parte.

Evidence by way of affidavit, by petitioner's authorised representative was got filed on record, as of Siddharth Priya Srivastava, reiterating the contents of the petition, was with no rebuttal by other side.

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.

Mr. Siddharth Priya Srivastava, in whose favour, there is power of authorisation, authorised by Board Resolution, and same had been annexed with the petition in its affidavit. He has proved interconnect agreement, dated, 1.7.2016, and it has been exhibited as Exhibit PW 1/1. The issuance of 1301 Set Top Boxes to the Respondent for deployment at subscriber's end and the same, being the exclusive property of petitioner, was with a worth value of Rs. 1999/-, had been said on oath. Issuing of invoices, in view of interconnect agreement, executed in between, and copy of same is exhibited as EXHIBIT-PW1/2 (colly) and annexed with the petition, as Annexure P-2 (colly), has been proved. The Statement of Account, being maintained by petitioner company, has been annexed with the petition as Annexure P-3, proved by this witness on oath got marked as EXHIBIT PW 1/3. An email dated 18.6.2018, sent to respondent has been proved by this witness. The same has been exhibited as Exhibit PW 1/4. Cease and desist notice, dated 4.7.2018, has been proved and exhibited and marked as Exhibit PW 1/5.

11.In petition, the claimed amount has been written to be of Rs. 18,33,439/-, as on 30.04.2019, but in evidence affidavit, in para 9, it has been specifically said that "I state that the total outstanding liability of the respondent as per agreement executed between the parties is Rs. 5,36,331/- (Rupees Five lacs Thirty six thousand Three Hundred and Thirty one only) as on 31.07.2018. It is submitted that the petitioner is also entitled to recover from respondent an interest at the rate of 18% p.a. on such outstanding amount from the date, it became due till the date of realisation."

12.The illegal swapping, without observing provisions of interconnect agreement, has been said in this uncontroverted affidavit. Hence, the very contention of petition is substantiated by annexures, annexed with the petition and this has been proved on oath, by way of evidence affidavit, filed by authorised representative of Petitioner, with no controvertion by other side. Hence, the very contention of petition has been proved by this witness, in its uncontroverted affidavit evidence.

13.No evidence, either oral or documentary, for and on behalf of Respondent, could be filed, by Respondent.

14.Petitioner also filed written arguments in this Petition.

Hence, this petition is to be allowed as above, along with pendente lite and future interest, @9% p.a., simple interest, an interest, which is being very often awarded in present fiscal scenario, by this Tribunal in other decided petitions.

ORDER

Petition is being allowed. Respondent-Shri Balaji Communication, through its executive representative, is being directed to make payment of Rs. 5,36,331/- (Rupees Five lacs Thirty six thousand Three Hundred and Thirty one only), towards outstanding subscription dues, as on 31.07.2018, with a simple interest @ 9% p.a., from the date of 31.07.2018, till actual date of payment, as pendente lite and future interest, in the Tribunal, for making to petitioner. It is further being directed to return 1301 Set Top Boxes, alongwith accessories, in good and working condition, to the petitioner, within two months, from the date of judgement, and in case of failure or in lieu thereof, to make deposit of Rs.22,10,399/- (Rupees Twenty Two Lakhs Ten Thousand Three Hundred and Ninety Nine Only), at the depreciated value of Rs. 1699/- per Set Top Box, i.e. 15% depreciation, at worth cost Rs. 1999/-, for making payment to petitioner, and in case of failure, future interest over above amount, with simple interest, @ 9% p.a., be payable over it.

Interim order or MAs, if any, stood disposed of.

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