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2015 Supreme(Online)(TDSAT) 38
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
MR. KULDIP SINGH, MEMBER, MR. AFTAB ALAM, CHAIPERSON, MR. B. B. SRIVASTAVA, MEMBER
M/s. Manthan Broadband Services Pvt. Ltd. – Appellant
Versus
INX News Private Ltd. – Respondent
Petition No. 139(C) of 2013
For the Appellants/Petitioners: Mr.Navin Chawla
For the Respondents: Mr. Karthik K.R.
An agreement can be established by the conduct of the parties, even without a formal written contract, if they have acted upon the agreement's terms.
Headnote:(A) The Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 - Placement agreement - Breach of contract leading to recovery of placement charges amounting to Rs. 95,76,798/- along with interest - While the respondent denies the existence of agreement, evidence of conduct and partial payments established the agreement’s existence. (Paras 1-23)
(B) Contract Law - Agreement by conduct - An agreement can arise through the conduct of the parties even if no formal contract was executed. Evidence showed the understanding reached through e-mails and the performance of contractual obligations on part of the petitioner. (Paras 23-28)
Facts of the case:
The petitioner, a Multi System Operator, sought recovery of placement fees agreed for broadcasting “INX News” channel. Despite partial payments, respondents defaulted on further installments, disputing the existence of any agreement.
Findings of Court:
The tribunal found a binding agreement had been established by the conduct of the parties, supported by correspondence and partial payments, leading to the conclusion that the petitioner is entitled to recover dues respondent.
Issues: The main issue addressed was whether an agreement existed between the petitioner and the respondent based on the conduct and performance of the parties in relation to placement fees.
Ratio Decidendi: The tribunal ruled that the respondent could not deny the contract based on conduct showing acceptance through actions, reinforcing that even in the absence of a formally signed contract, an agreement can be implied by the parties' conduct.
Result: Petition allowed. Respondent no.1 is directed to pay outstanding dues to the petitioner.
JUDGMENT
Kuldip Singh: By way of the present petition, the petitioner seeks to recover placement charges amounting to Rs. 95,76,798/- along with interest at the rate of 24% per annum from the respondents for the placement of its channel namely “INX News” across the areas covered by the headend of the petitioner installed at Kolkata.
The petitioner is a Multi System Operator/ Cable Operator operating in West Bengal, Jharkhand and other states. Respondent No. 1 is a company incorporated in India and is a broadcaster in terms of The Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004.
As per the petitioner, respondent no. 2 is the distributer and agent of respondent no.1 and as such has been dealing with the petitioner on behalf of respondent no.1. As respondent no.1 was desirous of placing its channel on the network of the petitioner, it approached the petitioner through respondent no. 2 for the same. Thereafter a meeting was held on 6.5.2011 at the petitioner’s office at Kolkota during the course of which it was agreed that the petitioner would place the channel “INX News” (herein after also referred as “the channel”) of the respondent no.1 on UHF (Ultra High Frequency) band. As per the petitioner, after some discussion and exchange of e-mails between the parties, it was agreed that for placing the channel “INX News” of the respondent no.1 , the petitioner will be paid Rs. 1.15 crores plus taxes for the period 01.06.2011 to 31.05.2012. It was also agreed that the petitioner would be paid this amount in advance in three equal installments. The petitioner, in support of its averments, has annexed copies of the e-mails dated 06.05.2011 and 15.05.2011 as Annexure P-1 (Colly).
As per the petitioner, it placed the channel in UHF band from 21.05.2011, although the term of the agreement was to commence from 01.06.2011. It is further case of the petitioner that though it commenced placement of the channel, the respondents failed to share the agreement copy against it. as well as to remit payments as agreed. After exchange of some further e- mails, a draft agreement was shared with the petitioner, who after finding the same in order, signed and sent the same to respondent no.1. However, despite several requests, the respondents failed to share a signed copy of the same with the petitioner. The petitioner has annexed copies of e-mails dated 17.06.2011 , 29.06.2011 and 30.06.2011 as Annexure P-2 (Colly) and
AnnexureP-3. A copy of the agreement signed by it, and the proof of service of same to respondent no. 1, is annexed as Annexure P-4.
The petitioner further submitted that though as per the agreement, the placement fee was to be paid in three equal installments, it agreed for the payment in four equal installments of Rs. 31,71,125/- (inclusive of all taxes) as requested by the respondents. It accordingly raised the first invoice on 19.07.2011 for the period 01.06.2011 to 31.08.2011 for Rs. 31,71,125/- which was paid by respondent no. 1 on 08.09.2011. Thereafter, though it continued to place the channel as per the agreement and raised invoices from time to time, the respondents failed to make the payments in spite of several reminders as well as assurances given by the respondents to the petitioner.
Respondent No. 1, however, denies any agreement with the petitioner for placement of its channel. It denies that it approached the petitioner through respondent no. 2 for the same or that the parties met together on 06.05.2011 at the petitioner’s office. Respondent No. 2 did not appear before the Tribunal despite due notice and, therefore, the case proceeded ex-parte
The petitioner in support of its averments, adduced evidence by way of affidavit of Mr. Gurmeet Singh Jaspal, working as director with the petitioner company. The witness reiterated the averments made by the petitioner. He also identified copies of the e-mails dated 06.05.2011 and 15.05.2011 as Exhibits PW-1/1 and PW-1/2, copy of e-mail of respondent no.
