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2016 Supreme(Online)(TDSAT) 23
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Dr. Kuldip Singh, J, Bipin Bihari Srivastava, J
Digicable Network (India) Pvt. Ltd. – Appellant
Versus
Sai Prasad Media Pvt. Ltd. – Respondent
Broadcasting Petition No.342 of 2013
For the Appellants/Petitioners: Mr. Diggaj Pathak, Ms. Shweta Sharma
For the Respondents: None
Amicus Curiae: Mr. Vibhav Srivastava
The tribunal affirmed that a party's failure to meet contractual obligations under a digital agreement negates recovery, while compliance under an analogue agreement warrants payment.
Headnote:(A) Broadcasting Act, 1990 - Channel Placement Agreements - Recovery of dues - The petitioner sought recovery of Rs.2,73,39,000/- as channel placement charges; Claims supported by two agreements detailing obligations and payments; Respondent claimed violations of agreements and stopped payments; Tribunal allowed claim under analogue placement agreement and awarded Rs.63,03,058/- with interest. (Paras 7, 8, 22, 23)
(B) Examination of Claims - The tribunal found it difficult to fully accept the claims under the digital agreement due to operational failures cited by the petitioner; Allowed claims under analogue agreement where petitioner complied with terms. (Paras 11, 15)
Facts of the case:
The petitioner, a MSO, filed for recovery of dues as the respondent defaulted in payments despite executing channel placement agreements. The petitioner alleged it transmitted the respondent's channels following the contract’s terms. (Paras 3-6)
Findings of Court:
The court allowed the claim under the analogue agreement, awarding Rs.63,03,058/- with interest, rejecting claims under the digital agreement due to failure of performance by the petitioner. (Paras 18, 21)
Issues: The primary issues included the execution of agreements and obligations fulfilled by both parties with respect to transmission quality and areas. (Paras 10, 12)
Ratio Decidendi: The court ruled the claimant failed to meet obligations under the digital agreement due to operational shutdowns, while established compliance under the analogue agreement warranted the allowed claim. (Paras 16, 24)
Result: The claim of the petitioner is accordingly allowed in the sum of Rs.63,03,058/- with interest.
ORDER
By Aftab Alam, Chairperson –
The petitioner is a Multisystem Operator (MSO) engaged in the transmission of TV signals of different broadcasters. It has filed this petition for recovery of Rs.2,73,39,000/- as dues of channel placement charges from the respondent, Sai Prasad Media Pvt. Ltd., which is a broadcaster, for carrying its channel, namely, News Express on it s digital as well as analogue cable TV networks. The aforesaid amount is claimed along with interest @ 18% per annum from the date the payment was due upto the date of payment.
The claim of the petitioner is based on two Channel Placement Agreements. The first one is in respect of areas as enumerated in the agreement where the petitioner had a digital cable network. This agreement was executed on 16.07.2012. It was for the period 16.07.2012 to 15.07.2013. In the agreement after the initial recitals, in clause (D) it was stipulated as under:
“AND WHER EAS the Operator has agreed and accepted to place above Channel supplied by Broadcaster at the specified frequency on the Cable Network owned by the Operator and operating in the area/s as per Annexure A , on the terms and as are hereinafter mutually agreed to between the Parties, only for the digital platform as agreed upon mutually.
Annexure-A referred to in the aforesaid clause is as under: News Express will be retransmitted only by Digital mode/platform for areas mentioned hereunder:
1. Municipal Delhi and New Delhi
2. Uttar Pradesh
3. Rajasthan
4. Madhya Pradesh
5. Chhattisgarh
6. Hyderabad
7. Maharashtra
8. Kolkata
The said News Express channel will be re-transmitted on digital mode/platform in the area mentioned here above. Also the said News Express channel will be re-transmitted on all such headed/centres where Digital mode/platform is used by Digicable in future. The said arrangement is only for the term/period commencing from 16 th July, 2012 to 15 th July, 2013.”
Clause 3 of the agreement dealt with consideration and provided as under:
“3. Consideration In consideration and subject to due adherence to the terms and conditions of this Agreement by the Operator, News Express shall pay to Operator a sum of Rs.2.5 crore plus taxes as per applicable (Rupees two crore fifty lakhs only) for the period of 16 th of July 2012 to 15 th July 2013. The consideration shall be payable on quarterly basis upon receipt of invoice from the Operator. The broadcaster agrees to pay three months (i.e. on quarters placement charges) due s as advance fee.”
The second agreement is for certain areas where the petitioner was doing transmission in analogue mode. This agreement was executed on 09.08.2012 and it was for the period 09.08.2012 to 08.08.2013. In the agreement after the usual recitals, it is stipulated in clause (D) that the petitioner would place the broadcaster’s TV channel, namely, News Express on S -band of its network operating in the areas as shown in Annexure-A. Annexure-A to the agreement reads as under: News Express will be retransmitted only by Analogue mode/platform for areas mentioned hereunder:
1. Madhya Pradesh: a. Indore b. Bhopal c. Jabalpur d. Gwalior e. Burhanpur f. Sagar g. Itarsi h. Vidisha
2. Rajasthan Jaipur
3. Chhattisgarh a. Raipur b. Bilaspur c. Bhilai d. Korba e. Jagdalpur
The said News Express channel will be re-transmitted on Analogue mode/platform in the area mentioned here above. The said arrangement is only for the term/period commencing from 9 th August, 2012 to 8 th August, 2013. ” Clause 3 of the agreement dealing with consideration provided as under:
“3. Consideration In consideration and subject to due adherence to the terms and conditions of this Agreement by the Operator, News Express shall pay to Operator a sum of Rs.2.30 Crores plus taxes (Rupees two crore thirty lakhs only) for the period of 9 th of August, 2012 to 8 th August 2013. The consideration shall be payable on quarterly basis upon receipt of invoice from the Operator. The broadcaster agrees to pay three months (i.e. one quarters
