INFO CABLE ENTERTAINERS PVT LTD THROUGH ITS MANAGING DIRECTOR Vs. INDUS IND MEDIA AND COMMUNICATIONS LIMITED BY ITS MANAGING DIRECTOR

JUDGEMENT

(1.) THE petitioner, Info Cable Entertainers Private Limited, ('ICE TV'), is a limited company operating as a multi-system operator (MSO) in Bangalore City providing Cable TV service to a vast area in Bangalore. THE 1st respondent, Indus-Ind Media and Communications Limited (In-cable) is an MSO in Bangalore city and 2nd Respondent, Aerolex is a distributor of TV channels, whereas the 3rd respondent is the managing partner of 2nd Respondent. It is stated by the petitioner that Respondents No. 1 & 3 have offices in the same building at 99/2 & 3, N.R. Road, First Floor, New Raja Building, Bangalore. Respondent No. 4, SET Discovery Private Limited, is a broadcaster providing programmes of TV channels under the caption "One Alliance".

(2.) The petitioner had entered into an agreement with the 4th Respondent during the year 2002, which originally was for five channels for a period of one year and was renewable subsequently. It is contended by the petitioner that they had about 100 cable operators affiliated to it with a subscriber base of about 3,500. According to the petitioner, the said agreement envisaged payment of monthly subscription on the basis of number of subscribers, referred to as points and the amount per point was fixed and could not be changed without prior notice or consent. The petitioner stated that it does not possess a copy of the said agreement. The petitioner contends that subsequently more channels were added to their bouquet. It also states that while there were no problems till May 2004, it is w.e.f. 1st June 2004 that when Respondent No. 4 appointed the 2nd Respondent as a distributor for "One Alliance" bouquet that the problems and difficulties arose in its day-to-day working. It contends that Respondent No. 2 started raising baseless demands on ICE TV which were unreasonable, arbitrary and unjustified and it made fanciful claims in respect of subscription amounts. Respondent No. 2 disconnected the signal w.e.f. 14th June 2005 without any notice. That compelled the petitioner to file this petition. The dispute basically pertains to the number of subscribers and the subscription amount to be paid by the petitioner to Respondent No. 2 and the petitioner has prayed as under: -

(3.) THE petitioner contends that it had entered into a scheme called the Six Plus One Scheme with Respondent No. 4, wherein the respondent had agreed that starting from December 2003 the payment of the monthly subscription would be made for six months between December 2003 and May 2004 and the ensuing month, i.e. June, 2004 was to be a free month. It further states that soon after that when Respondent No. 2 was appointed as the distributor it sought subscription charges even for the month of June, 2004. THE respondent, however, contended that allegations by Petitioner are misleading and baseless since the scheme of Six Plus One entered into by it with Respondent No. 4 as stated by the petitioner was very much honoured by Respondent No. 2 and was fully availed of by the petitioner. THE Respondent No. 2 contended that the petitioner has approached TDSAT with unclean hands with totally misleading statements and figures. It further stated that the agreement between the parties was for 7,000 points for the operating period of the Scheme. It stated that consequent to increase in the subscriber base of the petitioner both the parties had mutually agreed for increase of the same by 800 points w.e.f. March, 2004. It referred to validation form dated 1.3.2004 at Annexure R-5 of the Reply Affidavit which was signed by the Petitioner, wherein subscriber base of 7800 was mentioned. It further quoted from letter written on the letter head of One Alliance and signed on behalf of the fourth respondent, the same being at Annexure P-4 with the petition, wherein the respondents have stated that Six Plus One Scheme at monthly subscription of Rs.3,85,000/- (7000 subscribers at the rate of Rs.55/-) for the duration from 1st December 2003 to 31st May 2004 is confirmed by them as available to the petitioner. It is also mentioned in the same letter that subscriber base, w.e.f. March, 2004 was increased by 800 points making the subscription base as 7,800 subscribers per month. Respondent No. 2 contended that accordingly, it forwarded a statement of accounts to the petitioner charging for 800 subscribers only for the month of June 2004 and not for 7,800 subscribers, i.e., only the increased number of 800 over and above the original 7,000 subscribers as agreed upon in 6 plus 1 scheme. For July 2004 petitioner has been charged for subscriber base of 7,800 and for the months of August and September 2004 for a subscriber base of 9,900 at the rate of Rs.61/- per subscriber. This statement of account was forwarded vide respondent no. 2's letter of 6th September 2004 and is at Annexure P-5 of the petition. THE petitioner challenged this during the arguments and said that the subscriber base was increased arbitrarily and the rate was also increased from Rs.55/- to Rs.61/- per subscriber arbitrarily. THE petitioner also contended that on receipt of the statement, the petitioner had approached the Respondent No. 2 through its letter dated 10th September 2004 informing it about some cable operators who had left their group and therefore asked for reduction of 125 points per operator. It further stated that Respondent No. 2 did not agree for the said reduction. THE Respondent, however, stated that the petitioner was misquoting the figures. It stated that there is no arbitrariness in either subscriber figures or the rates. Respondent No. 2 stated further that the Petitioner had accepted subscriber base of 7,800 w.e.f. 1st March 2004 as seen in Validation Form at Annexure R-5 and as 9,900 w.e.f. 5th August 2004 as seen in Validation Form at Annexure R-7. Both validation forms were signed by the Petitioner. THE respondent stated that the petitioner knowing fully well of these increased numbers, had suppressed the facts from the Tribunal. It further said that there was no question of arbitrary increase when the petitioner had signed the documents and agreed for these figures which were factually correct. It further stated that despite all this, the Respondent accommodated the petitioner every time to help it. THE Respondent contended that the Petitioner never disclosed additional subscribers consequent to additional cable operators joining it but always represented for down gradation. It further said that Petitioner vide letter dated 10th September 2004 had asked for down gradation of 125 subscribers per cable operators. This letter at Annexure P-6 of the petition is however unsigned. It said that knowing fully well that these were inflated figures for down gradation, it organised a meeting to resolve the issue. From the pleadings we are rather surprised to observe that while the petitioner contends that initially it had 100 operators with 3,500 subscriber base which amounts to 35 points per cable operator on an average and during this period of 2004 it had subscriber base of 7,000, i.e. 70 subscriber per cable operator on an average, while asking for reduction it is asking for downgradation at the rate of 125 points per operator. Be that as it may, we were shown the minutes of meeting held on 23rd November 2004 between the Respondent No. 4, Respondent No. 2 and the Petitioner. THEse minutes found at Annexure P-8 to the petition are duly signed by the three parties. THE extracts of these minutes are as under: