ESPN SOFTWARE INDIA PRIVATE LIMITED Vs. INTERMEDIA CABLE COMMUNICATION PRIVATE LIMITED

JUDGEMENT

(1.) THE Petitioner, ESPN Software India Pvt.Ltd., is the distributor of ESPN and Star Sports channels in India. THE Respondent M/s Intermedia Cable Communications Pvt Limited is a Multi Systems Operator (MSO) engaged in the business of distributing Cable TV services to various households and other cable operators in the city of Pune.

(2.) An agreement was entered into between the Petitioner and the Respondent dated 5-12-2003 for the period 5-12-2003 to 4-12-2004 wherein the respondent agreed to pay subscription fee of Rs. 15,78,075 per month in respect of 39,750 subscribers at the rate of Rs. 39.70 per subscriber (also mentioned as new rate in the agreement). It is also mentioned in the agreement, photocopy of which is Annexure P1 with the Petition, under the heading "Subscription Fee" that it is 'subject to recovery from ground.' It appears that the Respondent did not pay the subscription fee at the 'new rate' and made "on account" payments for the period 5-12-2003 till 4-7-2004. According to the Petitioner, for the period beginning 5-7-2004, it was agreed with the Respondent that the latter would pay at the old rate of Rs.32 per subscriber per month a sum of Rs. 12,72,000 per month and the Respondent did pay at this rate for the period 5-7-2004 to 4-10-2004 whereafter he discontinued making payments although signals were continued to be availed of by the Respondent. When the matter was taken up by the Petitioner with the Respondent the following "on account" payments are stated to have been made:

(3.) THE facts in regard to the written subscription agreement are not denied by the Respondent. It appears that relations between the Petitioner and the Respondent got strained by the alleged disconnection of signals by the Petitioner for four days in January 2004 at the time of the India -Australia Cricket Series and another disconnection made in June 2004 for two days at the time of the Euro Soccer Football matches even though according to the Respondent excess subscription amounts had been made to the Petitioner. THE Respondent states that it paid subscription w.e.f 5-12-2003 at the old rate despite not being able to collect the amounts from the ground. However, for the period beyond 4-12-2004 the Respondent has taken the stand that no fresh agreement was entered into after the expiry of the agreement dated 5-12-2003 and the Petitioner is therefore not entitled to make any claim for the period 5-12-2004 to 5-6-2005. THE Respondent has in its counter affidavit further stated that this Tribunal has no jurisdiction to entertain this petition; that the service contract dated 5-12-2003 provides for Arbitration, and that the Petitioner even though a company incorporated in India is in reality foreign controlled, as such, it has no right / locus standi to enter into agreement with any of the companies in India without a permission from the Government of India. According to the Respondent, the Petitioner is not entitled to claim any reliefs as prayed for.