Delhi High Court

Digicable Network India Pvt. Ltd. vs Star Den Media Services Pvt. Ltd. on 16 April, 2009

Author: S.Ravindra Bhat

26.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Decided on: 16.04.2009

+                       W.P. (C) 8112/2009


      DIGICABLE NETWORK INDIA PVT. LTD.                 ..... Petitioner
                    Through: Mr. Rajiv Nayyar, Sr. Advocate
                    with Mr. Yoginder Handoo and
                    Mr. Tejveer S. Bhatia, Advoates.

                   versus


      STAR DEN MEDIA SERVICES PVT. LTD.                  ..... Respondent

Through: Mr. Ramji Srinivasan, Sr. Advocate with Mr. Gaurav Juneja and Ms. Vartika Sahay, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

% Heard the counsel.

2. The petitioner is aggrieved by order dated 1.4.2009 issued by the

Telecom Disputes Settlement & Appellate Tribunal (hereafter referred to as

TDSAT). By the impugned order, the Tribunal varied its previous interim

order, made on 6.3.2009 whereby it had directed the suspension of the

public notice dated 15.2.2009 issued by the first respondent.

3. Briefly the facts are that the petitioner took over an existing cable

network which was fed by the first respondent's signals in July, 2008.

Concededly, the existing agreement covered certain areas and was to end

on 31.12.2008. The petitioner felt aggrieved by the notice issued by the first

respondent, proposing to suspend the services. In its Petition, before the

Tribunal, the present petitioner contended that pursuant to negotiations an

understanding reached between the parties on 31.12.2008, evidenced by

letter dated 31.12.2008, 13.1.2009 and 11.2.2009, whereby the period of the

agreement was to be extended, as well as the area. On the strength of these

and other averments, the petitioner approached the Tribunal claiming

substantive reliefs, as well as an interim order for suspension of operation of

the public notice dated 15.2.2009 issued by the first respondent.

4. The TDSAT by its order dated 6.3.2009 directed as follows: -

"Notice. Mr.Gaurav Juneja accepts notice on behalf of the respondent and requests for time to seek instructions.

Post this matter for further directions on 16.3.09. In the meanwhile, the respondent will not give effect to the Public Notice dated 15.2.09.

Counsel for the respondent submits that the petition filed by the petitioner is supported by an affidavit dated 21.2.09 which is, on the face of it, false as petition bears the date 5.3.09 and on 21.2.09 the deponent could not have stated what he has stated in para-2 of the affidavit."

5. On the next date of hearing, the order was extended in the following

terms: -

"Notice on M.A. No.32 of 2009. Mr. Akshat Hansaria accepts notice. It is submitted on behalf of the respondent that its counsel are not available today. Request is made for adjournment which is not opposed. List again on 30.3.2009 under the category of "direction' matters."

6. As is evident, the above order was in context of an application moved

before the Tribunal. The matter was again listed on 1.4.2009 when the order

impugned in the present proceedings was made. The said order reads as

follows: -

"Learned counsel for the respondent has pressed for clarification of the interim order dated 6.3.2009 because according to him the petitioner has unauthorisedly extended to areas which are outside the agreement under the cover of the said interim order. Our attention has been drawn to the existing agreement between the parties as per which the petitioner is authorised to give signals in specific areas mentioned in letter dated 23.2.09 from respondent at page-36 of the paper book. In view of this, we clarify that the interim order dated 6.3.2009, directing that the Public Notice dated 15.3.2009 shall remain stayed, is subject to the petitioner confining to the areas mentioned in the letter referred to above.

Reply be filed within two weeks as prayed by the learned counsel for the respondent. Rejoinder thereto may be filed within two weeks thereafter. List for hearing on 15.5.2009.

M.A.No.32 of 2009

This application is not opposed. Accordingly, the fresh affidavit filed by the petitioner is taken on record. The M.A. stands disposed of."

7. The petitioner contends that a conjoint reading of the concerned

letters i.e. dated 31.12.2008, 11.2.2009 as well as the letter of the first

respondent dated 23.2.2009 would disclose that an agreement existed

between the parties regarding the continuation of the arrangement as well

as the extension of the area. It was submitted that in these circumstances,

the Tribunal committed an error in varying the interim order made earlier on

6.3.2009. It was contended by learned senior counsel for the petitioner that

the essential premise of the impugned order is that the petitioner had

unauthorizedly extended the areas which were over and above the areas

(covered by the agreement) under cover of the interim order. Counsel

emphasized that the Tribunal was not presented with any application or even

reply, and that in the circumstances by varying the terms of interim order

which subsisted since 6.3.2009 the TDSAT overstepped it limits. Learned

counsel relied on the correspondence between the parties as well as the

notice issued by the first respondent on 15.2.2009.

8. Learned senior counsel for the respondents, appearing on advance

notice resisted the submissions and relied on the letters written in reply to

the petitioner's correspondence on 12.2.2009 and 23.2.2009. It was

submitted that the first respondent always consistently maintained that the

petitioner had unauthorizedly sought to extend the area from what was

permitted under expired agreement. He particularly relied upon para 4 of

the letter dated 23.2.2009. He submitted that the TDSAT's order was based

on the materials on record, and made within its jurisdiction.

9. The above discussion would show that the petitioner's grievance is in

respect of the order of the TDSAT by which it varied the terms of a previous

order. The ground urged principally is that in the absence of pleadings or

any application, TDSAT could not have varied or changed the terms of the

order as it did. According to the submissions, the TDSAT was made aware of

whatever materials were to be taken into consideration, which persuaded it

to adopt the course as it did on 6.3.2009. There was no change in the

circumstances or new development to which the petitioner was put to notice,

that could have led to the restricting the terms of the subsisting interim

order.

10. The petitioner's arguments, may be divided into two parts. The first

deals with what may be termed as the premise of the impugned order. This

in turn stems out of the earlier order. No doubt the tenor of the Tribunal's

order is that the respondent (first respondent - service provider) had

contended for clarification because according to it, the petitioner had

unauthorizedly extended the areas under cover of the interim order. Had the

order been based solely on that submission, the petitioner may have been

correct. However, one cannot ignore entirety of the order; it records the

existence of the agreement as well as the letter dated 23.2.2009. In the

circumstances, to say that the Tribunal was made to believe that the

petitioner had extended the area due to the interim order only on the basis

of counsel's submission is not accurate. The recording of the order may lead

to such impression; this Court is clear that such was not the intention and

that the Tribunal did what it did on an overall conspectus of the facts.

11. As far as the second, perhaps more substantial objection to the

impugned order is concerned, the petitioner contends that without any

application for variation or reply on the record, the Tribunal could not have

varied the interim order. A copy of the petition before the TDSAT has been

placed on the record of this Court. In that, the present writ petitioner

mentions about an agreement having been entered into whereby the tenure

and the area was supposed to have been extended. No doubt, this letter

was a part of the record; whether the Tribunal's notice was specifically drawn

to each of these letters or not is not borne out from the initial order dated

6.3.2009. However, what is clear from a reading of the impugned order is

that the Tribunal specifically took note of the letter of the first respondent

dated 23.2.2009; the same refers to the petitioner's letter dated 11.2.209.

In that letter (i.e. 11.2.2009), the petitioner alluded to the respondent's letter

dated 2.2.2009, also mentioning that the substantive agreement had expired

on 31.12.2008 and to a meeting whereby it claims that party had agreed to

the terms of the new agreement and that the renewal would be on an

increased fee of 25%. The final paragraph stated as follows: -

"We state that we till now have completely adhered to the terms of the agreement and had not extended our area of operation. This is evident from the fact that we have requested for your permission when we were willing to extend out area of operation. Be that as it may, now both the parties have negotiated and agreed on defined terms for executing the agreement and this question of illegally extending the area is without any substance."

We request you to execute the agreed subscription agreement for the year 2009 and oblige."

12. The letter of the first respondent dated 23.2.2009, inter alia, states as

follows: -

"By your letter dated 24.12.2008 you had tendered your

request for extension of area. In this regard we wish to draw your attention to our letter dated 02.02.09 by which we had conveyed our willingness and requested you to provide us requisite details in terms of Clause 9 of Regulations. By said letter we had made it very clear to you that you cannot unilaterally and without any written agreement with us, extend your area of operation. We had further informed you that your action of unauthorized cable casting affects our commercial interest since we have existing commercial agreements with other operators/affiliates for those areas. Hence we had requested you to stop and immediately refrain from illegal transmission of signals in the area not specifically authorized to you under the Agreement".