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2015 Supreme(Online)(TDSAT) 28
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
Parties are bound by the terms of the Access Agreement, and failure to fulfill obligations results in liability for dues.
Headnote:(A) Broadcasting Regulations - Access Agreement - TDSAT Jurisdiction - The petitioner, a DTH operator, claimed dues of Rs.4,12,29,171/- against the respondent, a broadcaster, based on the Access Agreement. The respondent failed to prove deficiencies in service or any grounds to deny payment. (Paras 1, 32)
(B) Dues and Payment Obligations - The respondent entered a binding agreement detailing payment terms and default consequences, establishing its liability to pay the claimed dues. (Paras 6, 34)
Facts of the case:
The petitioner sought recovery of dues under an Access Agreement, asserting the respondent's non-payment despite acknowledging debts in correspondence. (Paras 1-11)
Findings of Court:
The petitioner fully executed its obligations under the agreement while the respondent defaulted on payment. (Paras 28, 30)
Issues: The main issues included the adjudication of service deficiencies and the responsibility for payment under the Access Agreement. (Paras 25-27)
Ratio Decidendi: The court held that the respondent’s claims of service deficiencies were unsubstantiated and that it is liable for outstanding dues per the Access Agreement. (Paras 34, 35)
Result: The petition is allowed and the respondent ordered to pay Rs.4,12,29,171/- plus interest.
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-payme
