World Media Ltd. vs Prasar Bharti
2009 Latest Caselaw 3266 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: August 10, 2009
                                                 Date of Order: August 20, 2009

+OMP 96/2009
%                                                             20.08.2009
    World Media Ltd.                                   ...Petitioner
    Through: Mr. T.K. Ganju, Sr. Adv. with Mr. Sanjeev Malhtora, Advocates

      Versus

      Prasar Bharti                                            ...Respondent
      Through: Mr. Rajeev Sharma, Advocate


      JUSTICE SHIV NARAYAN DHINGRA

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

2.    To be referred to the reporter or not?

3.    Whether judgment should be reported in Digest?


      JUDGMENT

1. By this petition, the petitioner has assailed an interim award passed by

learned arbitrator based on the admissions of petitioner as available on

record.

2. The claim of respondent and the counter claim of petitioner are subject

matter of arbitration before the arbitrator. During arbitration proceedings,

respondent prayed for an interim award on the basis of letter dated 8th March

2001 wherein the petitioner had categorically admitted its liability of

Rs.83,83,157/- to respondent under the contract in response to a demand of

balance due amount by respondent which was much higher than

Rs.83,83,157/-. Despite admitting this liability, the petitioner neither paid this

amount nor paid other amount and thus disputes arose between the parties

and referred to the arbitrator.

OMP 96/2009 World Media Ltd. v.Prasar Bharti Page 1 Of 5

3. It is submitted by counsel for petitioner that the learned arbitrator

wrongly passed an interim award presuming that there was an arbitration

agreement. There was no arbitration agreement between the parties. The

other objection taken by the petitioner is that even if it is believed that there

was an arbitration agreement, the matter referred to the arbitrator was

beyond the scope and ambit of arbitration agreement as the contract in

question was not covered by the arbitration agreement. It is also submitted

that grant of 18% interest by the arbitrator was quite exorbitant and such an

exorbitant rate of interest could not have been allowed.

4. In nutshell, the facts relevant for the purpose of deciding this petition

are that the petitioner was an accredited agent listed with the respondent

which entitled the petitioner to 15% commission on advertisements and other

related bills and also entitled the petitioner to have 45 days credit i.e. to

make payment after 45 days of raising the bill. Respondent runs several TV

Channels such as DD1, DD2 and DD Sports etc. Respondent entered into an

MOU with Living Media India Limited (LMIL), a sister concern of petitioner for

telecast of daily current affairs programme in Hindi titling 'Aajtak' on DD2

Channel. The respondent gave an option to LMIL either to enter into a direct

contract with it or to enter into the contract through accredited agent for

telecast of the programme on sponsorship basis. The LMIL did not enter into

direct contract and rather asked the petitioner to enter into the contract with

respondent since the petitioner was an accredited agent and was entitled to a

credit of 45 days and a commission of 15% of the telecast charges. The

agreement in respect of accredited agent categorically provides that the

accredited agent shall be jointly and severally liable for telecast charges of

the programme and in case of non-payment of telecast charges, it would be

OMP 96/2009 World Media Ltd. v.Prasar Bharti Page 2 Of 5 liable to pay 18% interest per annum on delayed payment.

5. The programme was telecasted under the contract entered into

between petitioner and respondent on sponsored basis. However, the

schedule of telecast was varied during continuation of the contract which

gave rise to a dispute. While the petitioner claimed that due to variation in

the schedule, the petitioner was not liable to pay full contracted amount, the

respondent claimed the telecasting charges according to the contract. A

correspondence ensued and vide letter dated 8th March 2001, the petitioner

admitted that it was liable to pay Rs.83,83,157/- only as against the claim of

respondent and assured payment of this amount. Vide another letter dated

26th March 2001, the petitioner again admitted its liability as per its books of

account to the tune of Rs.83,83,157/-. It is this amount for which the learned

arbitrator passed the interim award and allowed interest @ 18% per annum.

6. The contention of petitioner about the arbitration clause not being

there has been considered by the learned arbitrator in detail even in the

interim award and turned down. Similarly, the other contentions that the

subject matter was not covered under the arbitration clause have also been

turned down by the learned arbitrator.

7. Learned counsel for petitioner argued that under the Accreditation

Agreement, parties covered only advertising. The letter and spirit of

agreement pertained to advertisements procured by the agent for respondent

and the agreement was not applicable in respect of Serials telecasted on the

Channels. The petitioner acted only as an accredited agent of LMIL and the

principal liability to pay the amount was only of LMIL. Learned counsel for

OMP 96/2009 World Media Ltd. v.Prasar Bharti Page 3 Of 5 petitioner, however, during arguments failed to point out a single clause from

the entire contract wherein the petitioner had been described as an Agent of

LMIL. The contract entered into between petitioner and respondent was a

contract independent of LMIL. The petitioner has nowhere been described as

an agent of LMIL. When the terms of the contract are in writing, this Court

cannot read a clause in the contract which is actually not there. The

correspondence ensued between respondent and LMIL was prior to entering

into the contract with the petitioner. The petitioner being the sister concern of

LMIL was very well aware of the MOU and could have refused to sign the

contract if it was not recorded in the contract that the petitioner was an agent

of LMIL. Moreover, in the contract entered with the petitioner, there was no

reference of LMIL or the MoA. Nor the contract with the petitioner has made

subject of MoA between respondent and LMIL. I, therefore, consider that the

plea of the petitioner that he was only an agent of LMIL must fail.

8. The other plea that the Accreditation Agreement covered only

advertisement is also baseless. All sponsored programmes telecasted on TV

channels are in the nature of advertisements. These days, sponsored news

appear in newspapers, sponsored programmes in TV Channels and sponsored

events take place. Sponsored news items, sponsored TV Serials and

sponsored events are nothing but advertisements and they cannot be treated

anything else other than advertisement. In every sponsored programme, the

responsibility is of the sponsor to meet all expenditures of the programme.

Only those companies sponsor programmes who want their brand names to

be publicized when people watch the programmes. The sponsoring

programme is another mode of advertising the brand names and sponsored

programme are to be treated as advertisement only.

OMP 96/2009 World Media Ltd. v.Prasar Bharti Page 4 Of 5

9. The interest of 18% awarded by arbitrator is also justified in view of the

fact that petitioner has availed 15% commission on the amount apart from

credit facility.

10. In view of my above discussion, the objections raised by the petitioner

against the interim award are hereby dismissed.

11. The petition stands dismissed.

August 20, 2009                                   SHIV NARAYAN DHINGRA J.
rd




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