ORDER
1. The Petitioner claims to be a Multi System Operator in Jabalpur catering to its subscribers with signals of various channels of broadcasters including that of the 1st Respondent until the present dispute arose between them. It is stated that the Petitioner entered into a Subscription Agreement dated 05.10.2004 for receipt of signals of the 1st Respondent/broadcaster and accordingly it was provided seven decoders for redistribution of signals of Star bouquet of channels. It is contended in the Petition that copy of the Agreement dated 05.10.2004 has not been furnished to the Petitioner till date. It is also stated that at the time Petitioner entered into an Agreement with the 1st Respondent, it had supplied a list of its subscribers to the 1st Respondent, a copy of which is annexed to this Petition as Annexure ‘D’. It is also contended that the Petitioner had deposited a sum of Rs. 17,500/- as security with the 1st Respondent towards the decoders supplied to it and the Petitioner had agreed to pay a monthly subscription at the rate of Rs. 1,25,000/- which it did for the month of October, 2004. The Petitioner further contends that it was compelled to pay a sum of Rs. 9,67,290.48 as advance by the 1st Respondent which payment was made by the Petitioner, the receipt for all of which are produced as Annexure ‘D’, ‘E’ & ‘F’ to the Petition.
2. The Petitioner contends that the 2nd Respondent is a distributor and local agent of 1st Respondent at Jabalpur. It is also alleged that the 2nd Respondent is run and managed by a network called ‘M//s. Bhaskar Television Network’ who tried to compel the Petitioner to merge itself with the 2nd Respondent. The Petitioner had turned down this merger proposal, consequent to which there were disputes between the Petitioner and the 2nd Respondent. Hence, the Petitioner was compelled to write a letter to the 1st Respondent asking it to stop the illegal acts of the 2nd Respondent of poaching its cable operators as per its letter dated 13.10.2004 annexed to the Petition as Annexure ‘G’. There are other allegations in the Petition as to various disputes the Petitioner has with the 2nd Respondent, which the Petitioner contends it has brought to the notice of the 1st Respondent. The Petitioner alleges that the 1st Respondent, for reasons better known to them, is discriminating between the Petitioner and the 2nd Respondent. The Petitioner then contends that on 05.11.2004 at about 7.00 PM, the 1st Respondent disconnected its signals without affording any opportunity to the Petitioner to know the reasons for such disconnection. The Petitioner contends that a Show Cause Notice of the 1st Respondent dated 03.11.2004 was received by the Petitioner only on 12.11.2004 and in that it was alleged that Petitioner was indulging in illegal transmission of signals beyond the area specified in the Agreement, which the Petitioner contends is wholly false and is only a ruse to disconnect the signals to the Petitioner so that 2nd Respondent can take over the business of the Petitioner.
3. The Petitioner also contends that the amount of Rs. 9,67,290.48 deposited with the Respondent is still being retained by the Respondent without Petitioner deriving any benefit from the 1st Respondent.
4. It is in the above background that the Petitioner has sought a direction from this Tribunal for the supply of signals of Star channel and has stated that it is ready and willing to enter into a fresh agreement with the Respondent. It has also prayed for payment of Rs. 50 lacs as compensation for arbitrary and illegal disconnection of signals from 05.11.2004 and also for illegally retaining the money belonging to the Petitioner, among other incidental prayers. The 1st Respondent in its reply has generally denied the allegations made against it but has admitted that there was an Agreement between the Petitioner and the Respondent dated 05.10.2004 for transmitting signals to a limited area on a monthly subscription of Rs. 1.6 lacs which has been paid by the Petitioner. It has denied that there was any coercion from its side but has admitted that a sum of Rs. 9.67 lacs was deposited with it by the Petitioner as an advance for future payment of subscription. It has also admitted that the Petitioner has deposited a sum of Rs. 17,500/- as security towards the decoders supplied to it. It has, however, not denied the allegation made by the Petitioner that the copy of the Agreement dated 5.10.2004 has not been furnished to the Petitioner except stating that Petitioner did not demand the copy of the Agreement.
5. The 1st Respondent has denied the fact that no notice was given to the Petitioner before disconnection of signals and has asserted that the notice dated 03.11.2004 was issued to the Petitioner. It has admitted that the Petitioner’s signals were disconnected by it on 05.11.2004 pursuant to the Show Cause Notice dated 03.11.2004 for retransmission of signals to unauthorized territories.
6. The 2nd Respondent has filed its reply and has denied the various allegations made by the Petitioner against it.
7. Before we proceed to discuss the points that arise for consideration in this Petition, we must notice that in regard to sum of Rs. 9,67,290.48 a statement was made on behalf of the 1st Respondent that the same has been returned to the Petitioner by way of a Demand Draft but said statement was controverted by the learned counsel for the Petitioner stating that what was received was only a photocopy of the Demand Draft and not the actual Demand Draft. Therefore, this Tribunal directed the 1st Respondent to get a fresh Demand Draft for the said sum and return the same to the Petitioner on its giving a letter of indemnity protecting the interest of the 1st Respondent. In the said order of this Tribunal dated 6th October, 2005, the right of the Petitioner to claim interest for belated return of this sum of Rs. 9,67,290.48 was reserved to be considered in the final hearing of the matter. So, this is one of the points which will have to be considered in this Petition.
8. We have noticed that there are certain allegations of coercion, threat and other illegal acts alleged by the Petitioner against the Respondents, we do not think that it is necessary for us to go into these facts for deciding this Petition, more so because other proceedings are pending between the parties in regard to the same. Therefore, we have desisted from giving our findings in regard to these allegations since we think that this Petition can be decided on a very narrow compass as recorded herein above.
(a) was the 1st Respondent justified in disconnecting the signals of the Petitioner on the ground of unauthorized transmission beyond the territory allotted to the Petitioner in the Agreement?; and
(b) if the same is not justified, what is the relief the Petitioner is entitled to in this Petition?;
9. It is to be noted that the Petitioner and the 1st Respondent entered into a Subscription Agreement dated 05.10.2004 wherein the Petitioner agreed to pay a monthly subscription of Rs. 1.25 lacs (though the 1st Respondent claims the same to be Rs. 1.26 lacs). It is also an admitted fact that a sum of Rs. 9,67,290.48 was taken by the 1st Respondent as deposit apart from a sum of Rs. 17,500/- towards security deposit for the decoders. Therefore, there was sufficient fund available with the 1st Respondent to protect itself from any financial default that might have been committed by the Petitioner. In this background, we will have to examine the reasons as to why within one month of the signing of the Agreement the 1st Respondent decided to disconnect the signals to the Petitioner. According to the 1st Respondent signals were disconnected because the Petitioner was indulging in illegal transmission. Therefore, we will have to examine whether this allegation of illegal transmission can be accepted on the facts of this case. It is seen from the pleading in this case that soon after the Subscription Agreement was signed, the Petitioner has been complaining about the interference by the 2nd Respondent and the Petitioner had also written a letter not to take into consideration the allegation that is being made by the 2nd Respondent against it. It is in this background that on 05.11.2005, the Petitioner’s signals were disconnected. The notice purported to have been given on 03.11.2004, according to the Petitioner, was received by it on 12.11.2004. This fact has not been denied by the 1st Respondent and there is no other material to show that this letter was actually received by the Petitioner earlier or there was any intimation of the so called illegal activity by way of any earlier letters or paper publication. Even in the letter dated 03.11.2004, a copy of which is on record, the 1st Respondent has not given any particulars of the so called illegal transmission i.e. the areas where the Petitioner is illegally transmitting. What is stated is:-
You have re-transmitted/distributed the Subscribed Channels outside the Area contained in the Subscription Agreement, without the prior written permission of Star India.
10. If this was a genuine ground, then in the notice of 03.11.2004, which is termed as a ‘Show Cause Notice’, particulars of the area would certainly have been mentioned so that Petitioner could reply suitably. This coupled with fact that a copy of the Subscription Agreement has not been given to the Petitioner, which we have stated earlier is not denied, shows that the Petitioner could not have known what is the area entered in the Subscription Agreement. As our experience shows it is not uncommon that the broadcasters and other signals providers get signatures on blank printed agreement forms and retain the same without filling the said forms or without giving a copy of the agreement to the other party. Be that as it may, since no particulars have been given in the Show Cause Notice dated 03.11.2004 of the areas of unauthorized retransmission and the fact that the Petitioner has alleged that this notice was received by it only on 12.11.2004 while the disconnection took place on 5th November, 2004 at about 7.00 PM certainly gives rise to a reasonable inference that the 1st Respondent’s ground for disconnection is unacceptable. Consequently, the disconnection of the signals cannot be sustained.
11. In spite of our finding that the disconnection of the Petitioner’s signals cannot be justified, relief as prayed for by the Petitioner cannot be granted because of the coming into force of the Register of Interconnect Agreements (Broadcasting and Cable Services) Regulation, 2004. As per above Regulation, it is mandatory for the parties to enter into a prior subscription agreement. In the instant case, Subscription Agreement dated 05.10.2004 has come to an end by efflux of time. Therefore, we direct the Petitioner to approach the 1st Respondent for receipt of signals on agreed terms. The Respondent shall supply signals on terms which are not unreasonable without discriminating the Petitioner against similarly situated persons. While doing so, the 1st Respondent would bear in mind the subscription base of the Petitioner and the rate at which it has been given to other similarly situated parties as also the area that was being serviced by the petitioner before the disconnection.
12. It is an established fact that the 1st Respondent had retained with it a sum of Rs. 9,67,290.48 which legitimately ought to have been given back to the Petitioner after the 1st Respondent disconnected its signals and the same was returned only pursuant to Order of this Tribunal dated 06.10.2005, therefore, we think that the Petitioner is legitimately entitled to a reasonable rate of interest which we compute at twelve per cent per annum on a sum of Rs. 9,67,290.48 from the date of disconnection i.e. 05.11.2004 till the date of return as per the orders of this Tribunal dated 6th October, 2005.
13. Though the Petitioner has asked for compensation of Rs. 50 lacs, no evidence or material has been produced to show as to how this sum has been quantified. Therefore, we do not accede to this prayer of the Petitioner.
14. For the reasons stated above, this Petition succeeds and the Petitioner is directed to approach the Respondent for the supply of its signals of channels on negotiated terms which settlement will be arrived by the parties within 30 days after the Petitioner approaches the 1st Respondent for the same and the 1st Respondent shall bear in mind the requirements of clause 3.1 and 3.2 of the Telecommunications (Broadcasting and Cable Services) Interconnection Regulation 2004 as also the directions issued hereinabove as to the prevailing rate of subscription. A copy of the Agreement so signed shall be registered by the 1st Respondent before the authority designated under the Register of Interconnect Agreements (Broadcasting and Cable Services) Regulation, 2004. The Petitioner shall be entitled to the interest as computed hereinabove on the amount retained by the 1st Respondent.
15. The Petition is allowed as above.