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2015 Supreme(Online)(TDSAT) 29
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Kuldip Singh, J
Tata Sky Ltd. – Appellant
Versus
Brand Value Communications Ltd. – Respondent
Petition No.357(C) of 2013
For the Appellants/Petitioners: Ms. Mamta Tiwari
For the Respondents: Mr. Jayant K. Mehta, Mr. Kunal Singh
The tribunal reinforced contractual obligations in commercial agreements, emphasizing adherence to terms despite claims of service deficiencies.
Headnote:(A) Telecommunications Act, 1997 - Access Agreement - Claim for recovery of dues - The petitioner claims total dues of Rs.4,12,29,171/- based on an Access Agreement with the respondent. The agreement provided for payments, rights of termination, and indemnification but no specified frequency for broadcasting. Failure to substantiate service deficiencies and resultant claims by the respondent was noted. (Paras 1, 16, 30, and 33)
(B) Legal Standards of Commercial Agreements - The tribunal emphasized the binding nature of the Access Agreement terms and the obligations thereunder. The respondent failed to establish losses from alleged deficiencies in service. (Paras 14, 19, and 34)
(C)
Findings of Court:
The agreement's terms favored the petitioner, thus obligating the respondent to meet the financial commitments. The respondent's claims of service failure were not supported by substantial evidence. (Paras 17 and 35)
(D)
Issues: The primary questions involved the nature of the agreement, the obligation of the parties, and adherence to terms regarding payments and service delivery. The tribunal determined that execution of the contract did not relieve the respondent from payment obligations. (Paras 16 and 28) (E)
Ratio Decidendi: The tribunal upheld that the terms of agreements must be honored unless overwhelming evidence justifies non-compliance, which was not demonstrated here. The petitioner was found entitled to recover the claimed amount with interest. (Paras 22, 33, and 36) (F)
Result: The petition is allowed with the respondent liable to pay the petitioner Rs.4,12,29,171/- along with interest @ 10%. (Paras 33 and 36)
ORDER
By Aftab Alam, Chairperson –
The petitioner is a direct-to-home (DTH) operator and it is a distributor of TV channels under the broadcasting regulations. The respondent is a broadcaster of TV channels.
The petitioner has filed this petition against the respondent seeking recovery of Rs.4,12,29,171/- as dues of carriage fee. It has computed its dues as under: (i) the principal outstanding - Rs.3,65,17,000/- (ii) interest @ 18% per annum on unpaid dues for the period 07.11.2011 till 21.08.2013 - Rs.23,68,795/- (iii) interest @ 18% per annum on unpaid dues for the period 07.10.2012 to 31.08.2013 - Rs.16,54,000/- (iv) TDS deducted by the respondent on a certain invoice - Rs.6,89,375/- Total - Rs.4,12,29,171/- According to the petitioner, it entered into, what is called as an ‘ Access A greement’ with the respondent on 11.11.2010. Under the agreement, the respondent is called as the ‘P rogrammer ’ and it is stipulated that Tata Sky would provide access to the Programmer in respect of its Bengali language programme service known as “Rupashi Bangla”. The term of the agreement was for the period 07.10.2010 to 06.10.2013. Clause 6 of the agreement dealt with Bandwidth Support Fee and provided as under:
“The Programmer shall pay Tata Sky a Bandwidth Support fee of Rs.Seven Crore (7,00,00,000) plus service tax for the Term.
The Bandwidth Support Fee breakup is as follows:-
| Years | Carriage Fee | Payment Terms |
| Year 1 | 2.5 Cr + Service Tax | 100% in Advance |
| Year 2 | 2.5 Cr. + Service Tax | 4 Equal instalments quarterly in Advance |
| Year 3 | 2.0 Cr. + Service Tax | 4 Equal instalments quarterly in Advance |
In the 2 nd and 3 rd year, the DD/at par cheques for each quarters should be sent within one week of commencement of each quarter in advance.
The Bandwidth Support Fee is an admitted debt on the Programmer and payable in full by the Programmer unless: (i) there is a breach of the Agreement by Tata Sky and the agreement is terminated by the Programmer in which case, no further bandwidth support fee shall be payable; and (ii) in case of pre-mature termination by Tata Sky as stated in Clause 21, in which case, any pro rata advance shall be refunded to the Programmer and no further bandwidth support fee shall be payable.”
The agreement did not prescribe any specified band or frequency on which the respondent’s channel was to be carried. It rather gave Tata Sky full rights in this regard by providing, in clause 11 as under:
“Tata Sky shall always have full flexibility in terms of packaging the Channel in any of its Consumer Offerings/Packages/tiers.
Tata Sky shall retail, distribute, package the Channel in any tier/package/bouquet for its subscribers on the Tata Sky DTH platform.”
Clause 18 contained indemnification clause that obliged each party to keep the other indemnified against losses etc. resulting from any breach or non- performance by the concerned party. The provision for termination of the contract under clause 21 gave the right to termination to Tata Sky alone and provided as under:
“Tata Sky will have the additional right to terminate t he agreement at any point, with an advance one month’s written notice and shall also comply with the relevant provisions of the existing regulatory laws in this respect. In this case, any advance received from the Programmer shall be refunded pro rata to the Programmer and no further bandwidth support fee shall be payable.”
Clause 23 of the agreement dealing with Dispute Resolution provided that any dispute, difference or claim unless resolved through the respective CEOs of both sides would be finally settled on the application of either party by the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) on any other such Tribunal or court as may be prescribed under the TRAI Act 1997 or any subsequent laws.
It is the case of the petitioner that in full and complete discharge of its obligation under the agreement, it carried the respondent’s channel Rupashi Bangla on its DTH platform until it terminated the agreement for non-paym
