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2015 Supreme(Online)(TDSAT) 45
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Dr. Kuldip Singh, J
Asianet Satellite Communication Ltd. – Appellant
Versus
Sathyadhara Communications Pvt. Ltd. – Respondent
Petition No. 201(C) of 2013
For the Appellants/Petitioners: Ms. Shirin Khajuria
For the Respondents: Mr. Amer Mustaq Salim
No enforceable contract existed due to lack of acceptance and ongoing negotiations; partial payments did not imply agreement.
Headnote:(A) Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 - Recovery of carriage fees - Claim for Rs. 1.30 crores for carriage fees and interest - Dispute arose post expiry of a carriage agreement - Allegation of existence of an oral contract not supported by definitive acceptance - No concluded contract reached as no acceptance of offer was established. (Paras 12-13)
(B) Contract Law - Absence of formal acceptance by the respondent in correspondence - Good faith service continuance does not equate to contractual agreement - Silence coupled with dialogue does not indicate acceptance under Section 70 of the Indian Contract Act. (Paras 11, 14)
(C) Contractual terms - Negotiations indicated substantive differences over pricing and channel placement - Preliminary agreements discussed but not finalized.Precedents cited differed on facts and applicability. (Paras 15-18)
Facts of the case:
The petition involves a recovery claim for unpaid carriage fees by a multi-system operator from a broadcaster following the expiration of a formal carriage agreement and subsequent negotiations that failed to yield a new contract.
Findings of Court:
The court found that despite ongoing negotiations, there was no binding agreement due to failure of acceptance; thus, the claim was dismissed.
Issues: The essential issues centered on the existence of a contract following negotiations and the liabilities arising from purported service.
Ratio Decidendi: The court concluded that without unequivocal acceptance of terms by the respondent, no contractual obligation existed; mere negotiation and partial payments did not establish an enforceable contract.
Result: Petition dismissed.
JUDGMENT
Kuldip Singh:
This petition is a recovery petition for a sum of Rs. 1.30 crores allegedly payable by the respondent towards balance of carriage fees for the year 2012-13. A further sum of Rs. 20,47,500/- has also been claimed as interest @ 18% p.a. for the delay in payment of the carriage fees.
The petitioner is operating both as a Multi System Operator (MSO) and a Local Cable Operator(LCO), in terms of “T he Telecommunication (Broadcasting and Cable Services) Interconnection Regulation 2004”(as amended from time to time), in the State of Kerala. It distributes signals of various TV channels directly, as well as through other cable operators, to individual subscribers. The respondent is a broadcaster having TV channel by the name of “Darshana TV”.
A carriage agreement dated 8.8.2011 was signed between the parties.
This agreement was valid for one year from 1.9.2011 to 31.8.2012. As per the agreement, the petitioner was to carry and retransmit signals of “Darshana TV” channel of the respondent. For the carriage of this channel, the respondent was to pay an amount of Rs. 60 lakhs per year exclusive of taxes, for the period of the agreement. This agreement or the payment under it are not in dispute.
The dispute pertains to a period starting from 1.9.2012 till the disconnection of carriage of signals by the respondent on 20.11.2013. It is the case of the petitioner that though the agreement dated 8.8.2011 expired on 31.8.2012 by efflux of time, both the parties were desirous of continuing relationship in terms of the clause 8.2 of the same. As per this clause the agreement may be renewed for a further period, on terms and conditions mutually acceptable to the parties.
On 17.10.2012 the petitioner addressed a letter to the respondent asking it to make a formal request for continuation of the telecast of its signals so that the terms of renewal agreement could be discussed. This letter of the petitioner was replied by the respondent on 19.10.2012. In this letter, it drew attention of the petitioner towards some problems in the petitioner’s network and also problems in regard to the positioning of the respondent’s channels. It asked for the resolution of these problems so that the parties could go for a renewal of the carriage agreement. This letter of the respondent is as under:
“We received your letter asking for renewal of channel carriage agreement. We highly thankful to your continued support to carry our channel in your cable networks.
In this regard we are inviting your serious attention towards the problem which are still in your network and also towards the problem of channel position. We mailed you several times about the same. But the problem still continues.
We received so many complaints as no signal or signal strength week from the areas like Pathanathina(Pantahanapuram), Kottayam(Kanjeerapally), Thrissur(Chavakkad, Kunnakulam, Andhatode) Kannur(Thalassery), Mallappuram (Othukumagal), Kozhikodeparmbil Bazar, Utteri), Wayanad(Manathavadi).
And also you are placed our channel at spiritual group although we are in general entertainment mood. This made a huge lose in our advertisements.
So please mind to solve the remaining problems as soon as possible and then we can go for the renewal of the carriage agreement.
Hope you will solve it asap”
On 28.2.2013, the petitioner sent an email to the respondent referring to a telephonic conversation with the chairman of the respondent company and enclosing a draft agreement. As per this draft agreement, the period of which was to be from 1.9.2012 to 31.8.2013, the respondent was required to pay a sum of Rs. 1.50 crore plus applicable taxes, per year. This e-mail of the petitioner was replied by the respondent on the same day acknowledging the receipt of the agreement copy. The respondent suggested some modifications in the agreement and also asked that its channel should be placed between position 100 and 112 in the petitioner’s digital network and before position 25 in its analogue netw
