Delhi High Court
A To Z Productions vs Prasar Bharti And Anr. on 27 February, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: January 22, 2024
Decided on: February 27, 2024
+ W.P.(C) 5505/2013
A TO Z PRODUCTIONS .... Petitioner
Through: Ms. Radhika Arora,
Advocate.
V
PRASAR BHARTI AND ANOTHER ..... Respondents
Through: Mr. Rajeev Sharma, Senior
Advocate with Mr. Uddyam
Mukherjee, Mr. Swapnil
Pattanayak and Mr. Agnibha
Chatterjee, Advocates for
R-1.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The petitioner filed the present writ petition under Article 226
of the Constitution of India for issuance of appropriate writ thereby
directing the respondents to process the proposal of the petitioner.
2. The factual background of the case as stated by the petitioner
is that the petitioner submitted a proposal for 26 episodes of half an
hour programme, namely, Gosha-e-Tiflan vide letter dated
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27.12.2007 under the acquisition category vide Key no.
318090712110 dated 28.12.2007 in pursuance of proposal invited by
the respondent no. 1 from television producers/right holders for short
term acquisition of fresh and repeat programmes in Urdu in the year
2007 with last date for submitting the proposal as 28.12.2007. The
petitioner also submitted further details and documents including
balance sheets for last three years vide letter dated 19.09.2008 in
pursuance of letter dated 15.09.2008 issued by the respondent no. 1.
The petitioner vide letter dated 25.03.2009 again submitted the
documents in compliance of the respondent's letter dated 20.03.2009.
The respondent no. 1 vide letter dated 24.04.2009 issued approval for
off-the-shelf Short Term Acquisition of the programme of petitioner
for the satellite Channel (DD Urdu) for a total sum of Rs.6.50 lacs i.e.
13 episodes @ Rs.50,000/- per episode and the petitioner was to
deposit the programme within 45 days from the date of the letter. The
approval also indicated release of full and final payment after review
of each episode and approval thereof.
2.1 The petitioner vide letter dated 08.06.2009 submitted 13
episodes of half hour programme Gosha-e-Tiflan under the
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acquisition category in the format desired by the respondent no.1 but
the petitioner did not receive further communication from the
respondent no 1. The petitioner followed the matter with the office of
the respondent no.1 and had written various communications
including letters dated 07.07.2010, 20.07.2010, 21.07.2010,
26.7.2010, 11.08.2011 and 23.08.2011 but the respondent no.1 did
not respond to any of the communications. The petitioner in August,
2011 met the Director General of the respondent no.1 to present its
case and was assured by the Director General that the case of the
petitioner would be processed soon. The petitioner on 16.09.2011
received a vague reply from office of the respondent no. 1 whereby
the respondent no. 1 without giving any details and assigning any
reason refused to accede to the request of the petitioner. The
petitioner came to know from a reliable source about approval of the
proposal submitted by the petitioner and passing the technical
preview but still the payments were withheld. The petitioner sent
letters dated 30.01.2012 and 16.03.2012 to the office of the
respondent no.1 for processing of the file of the petitioner but without
any reply. The petitioner had invested huge amount and submitted
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documents in compliance of the communications received from the
office of the respondent no. l but the respondent no. 1 despite receipt
of the documents and due approval of the programmes submitted by
petitioner did not remit Rs.6.50 lacs to the petitioner. The
software/DVC Pro-50 Tapes of the petitioner are still in possession of
the respondent no. l.
2.2 The petitioner sent a legal notice dated 16.04.2013 which was
replied by the respondent no.1 vide reply dated 24.05.2013 wherein it
was informed that the further processing of the proposal has been
stalled vide letter dated 25.05.2010 as the petitioner had failed to
furnish the audited balance sheet for the assessment year 2006-2007
and 2008-2009 despite the request made vide letter dated 16.03.2010
which was stated to be returned by postal authority with the remark
"No such person". The petitioner sent another reply dated 01.07.2013
and again sent another set of balance sheets for three years i.e. 2006-
2007, 2007-2008 and 2008-2009 to the respondent no.1 with request
to process the proposal. The petitioner in reply also stated that the
petitioner never received any communication seeking ITR returns for
the assessment year 2006-2007 and 2008-2009. The respondents
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without giving a fair opportunity have stalled the proposal of the
petitioner. The petitioner as per guidelines of acquisition submitted
various documents such as three years balance sheet, ITRs, Pan
Number etc., to the respondents along with the proposal and stated
that the proposal could not have been submitted without these
documents. The petitioner to avoid any further delay again sent the
ITRs for the assessment years 2006-2007, 2007-2008 and 2008-2009
with request to process the proposal of the petitioner expeditiously.
The respondent no. 1 vide letter dated 19.07.2013 replied to the
request of the petitioner wherein stated that the proposal of the
petitioner was carefully examined but the competent authority did not
find feasible to accede to the request of the petitioner. The petitioner
being aggrieved filed the present petition with following prayer:-
(A) issue a writ of mandamus or any other appropriate writ
or direction thereby directing the respondents to process
the proposal of the petitioner;
(B) direct the respondents to give the petitioner an
opportunity to fulfill any other requirement of the
respondents as may be found deficient;
(C) direct the respondent to release the payment of Rs.6.50
lacs (Rupees Six Lacs Fifty Thousand only) along with
interest as approved vide letter dated 24.04.2009 to the
petitioner; and
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(D) any further order or direction as this Hon'ble Court
may deem fit and proper may kindly also be passed in the
facts and circumstances of the case.
3. The respondent no. 1 filed reply in response to the present
petition wherein in the preliminary submissions stated that the
petition is barred by principles of delay and latches as the writ
petition is filed in the year 2013 to agitate an issue concerning
acquisition of programmes in the year 2007. The petitioner had
applied in response to an advertisement issued by the respondent no.1
in the year 2007 for short term acquisition of existing shelf
programmes but the initial application submitted by the petitioner
was found to be deficient by the respondent no.1 and accordingly,
certain documents were called for. The petitioner was asked to
submit its audited balance sheet for the assessment years 2006-2007
and 2008-2009 vide letter dated 16.03.2010 but said letter was
returned by the postal authorities with the remarks "No such person".
The respondent no. 1 again sent another letter dated 25.05.2010 to
inform the petitioner about return of previous letter dated 16.03.2010
and installing of process of the proposal. The respondent no. 1 did
not receive any response from the petitioner and hence the proposal
was not processed further. The respondent no.1 as such addressed
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two communications to the petitioner out of which one
communication came back and the second communication was not
answered by the petitioner. The execution of a formal contract was
required for acquisition of a programme but no contract was executed
between the petitioner and respondent no. 1 and the petitioner cannot
claim any right to receive consideration in the absence of a contract.
The programme offered by the petitioner with the passage of time has
lost its relevance and it would not be expedient to consider that
programme today. The respondent no. 1 on merit also denied other
allegations of the petitioner. The petitioner did not submit affidavit
and documents such as the audited balance sheets, profit and loss
account reports, etc. in pursuance of letter dated 15.09.2008 issued by
the respondent along with letter dated 19.09.2008. The approval
dated 24.04.2009 was one of the steps in the processing of the
proposal and did not give final approval to cause a binding contract
between the petitioner and the respondent no. 1 and the further
processing was stalled due to non-submission of important
documents and not due to any mala fide intention. The respondent
prayed that the present petition be dismissed.
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4. The petitioner filed a rejoinder wherein stated that the petition
is not barred due to delay and latches. The respondent no. 1 as per
standard practice used to take inordinately long time in processing
the proposals. The application submitted by the petitioner was not
deficient as the petitioner had already provided balance sheets for the
assessment year 2006-2007 and 2008-2009 along with the proposal.
The petitioner in pursuance of letter dated 15.09.2008 issued by the
respondent no. 1 for furnishing few details duly submitted the details
to the respondent no. l vide letter dated 19.09.2008. The issuance of
letter dated 16.03.2010 by the respondent no. 1 to the petitioner
seeking balance-sheets is false. The letter dated 25.05.2010 was not
sent to the petitioner. The respondent no. 1 stalled the proposal
submitted by the petitioner was absolutely illegal and unjustified. The
petitioner was asked by the respondent no. 1 to submit 13 episodes of
programmes which was duly complied on 08.06.2009. The
respondent no. 1 vide letter dated 15.09.2008 has demanded
documents and affidavits, income-tax clearance certificate and the
audited balance-sheets, etc. for the last 3 years from the petitioner
and the petitioner vide letter dated 19.09.2008 had submitted the
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required documents including the audited balance-sheets. The
respondent no. 1 after submission of these documents on 20.03.2009
only objected regarding notarized affidavit not being in prescribed
format and did not raise any objection regarding the alleged non-
furnishing of the balance-sheets. The formal execution of the contract
was also not required for acquisition of a programme. The petitioner
also denied other allegations as mentioned in reply and reaffirmed
and reasserted its pleas as stated in the petition.
5. It is reflecting that the petitioner submitted proposal for 26
episodes of half an hour programme namely Gosha-e-Tiflan vide
letter dated 27.12.2007 in pursuance of proposal invited by the
respondent no. 1 for short term acquisition of fresh and repeat
programmes in Urdu in the year 2007. The petitioner also submitted
further details and documents vide letters dated 19.09.2008 and
25.03.2009. The respondent no. 1 vide letter dated 24.04.2009 issued
approval for off-the-shelf Short Term Acquisition of the programme
of petitioner for a total sum of Rs.6.50 lacs i.e. 13 episodes @
Rs.50,000/- per episode. The petitioner vide letter dated 08.06.2009
submitted 13 episodes of half hour programme Gosha-e-Tiflan under
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the acquisition category in the desired format. The petitioner vide
letter dated 16.03.2010 was asked to submit its audited balance sheet
for the assessment years 2006-2007 and 2008-2009 but said letter
was returned with the remarks "No such person". The respondent
no.1 sent another letter dated 25.05.2010 to inform the petitioner
about return of previous letter dated 16.03.2010 and stalling of
process of the proposal. The petitioner had written various
communications to the respondent no 1. The petitioner on 16.09.2011
received a reply from the respondent no. 1 whereby the respondent
no. 1 refused to accede to the request of the petitioner. The petitioner
sent a legal notice dated 16.04.2013 which was replied by the
respondent no.1 vide reply dated 24.05.2013. The respondent no. 1
vide letter dated 19.07.2013 informed the petitioner that the proposal
of the petitioner was examined but the competent authority did not
find feasible to accede to the request of the petitioner.
6. The counsel for the petitioner besides referring events in
chronological order argued that the petitioner submitted the necessary
documents as required by the respondent no.1 and the respondent
no.1 after being satisfied issued approval letter dated 24.04.2009 and
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sought tapes of the 13 episodes from the petitioner on 24.04.2009.
The petitioner and the respondent no.1 as such entered into a
contractual relationship and a purchase order/approval letter was
issued by the respondent no.1 in favour of the petitioner. The counsel
for the petitioner further argued that when the petitioner demanded its
dues in terms of the approval letter, then the respondent no.1 raised
objections and sought for balance sheets of the petitioner which were
already previously submitted. The respondent no. 1 never raised any
objection as to quality of the programme or tapes submitted by the
petitioner. The counsel for the petitioner also argued that the approval
letter is in the nature of purchase order which was duly accepted by
the petitioner resulting into legally binding contract between the
petitioner and the respondent no 1. The counsel for the petitioner
argued that the present petition be allowed and relief as prayed for be
granted in favour of the petitioner.
7. The counsel for the respondent no. 1 argued that the present
petition is barred by delay and latches as the programme was
proposed in the year 2007 while present petition was filed in the year
2013. The proposal submitted by the petitioner was found to be
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deficient and accordingly the respondent no.1 vide letter dated
16.03.2010 asked the petitioner to submit audited balance sheets for
the assessment years 2006-2007 and 2008-2009 but said letter was
returned with the remarks „No such person‟. The respondent no. 1
also sent another letter dated 25.05.2010 sent to the petitioner to
inform about the earlier letter dated 16.03.2010 and stalling of
processing of proposal of the petitioner but the petitioner did not
respond to letter dated 25.05.2010. The petitioner has not annexed
Income Tax documents at the first instance and perusal of letter dated
19.09.2008 reflected that the petitioner has not filed any of the
documents purportedly to have been submitted by it to the respondent
no 1. The petitioner admitted that the petitioner due to renovation of
office had missed correspondence from the respondent no 1.
7.1 The counsel for the respondent no. 1 further argued that final
formal contract completing the process of acquisition was never
executed between the petitioner and the respondent no. 1. The letter
dated 24.04.2009 was not indicative of any concluded contract as the
tapes were called only for processing and as such it cannot be
construed as a concluded contract. There was no absolute offer and
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acceptance in terms of letter dated 24.04.2009. The counsel for the
respondent no. 1 relied on PSA Mumbai Investments Pte. Limited
V Board of Trustees of the Jawaharlal Nehru Port Trust and
another, (2018) 10 SCC 525 and Padia Timber Company Private
Limited V Board of Trustees of Visakhapatnam Port Trust,
(2021) 3 SCC 24.
7.2 The present petition involves several disputed questions of
facts as such the petitioner is not entitled to any relief as sought for.
The counsel for the respondent no. 1 relied on South Indian Bank
Ltd. & others V Naveen Mathew Philip and another, 2023 SCC
OnLine SC 435 and Shubhas Jain V Rajeshwari Shivam &
others, Civil Appeal No. 2848 of 2021.
8. It is not disputed that the petitioner submitted a proposal for 26
episodes of half an hour programme namely Gosha-e-Tiflan vide
letter dated 27.12.2007 in pursuance of proposal invited by the
respondent no. 1 in the year 2007 and the respondent no. 1 issued
approval letter dated 24.04.2009 for off-the-shelf Short Term
Acquisition of the programme. The petitioner vide letter dated
08.06.2009 had submitted 13 episodes of half hour programme
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Gosha-e-Tiflan. The respondent no. 1 vide letter 16.09.2011 refused
to accede to the request of the petitioner. The petitioner also sent a
legal notice dated 16.04.2013 which was replied by the respondent
no.1 vide reply dated 24.05.2013. The issue which needs judicial
consideration is that whether the letter dated 24.04.2009 is sufficient
to constitute binding contract between the petitioner and the
respondent no. 1.
8.1 The letter dated 24.04.2009 is perused. The letter dated
24.04.2009 is approval of programme under Short Term Acquisition
Category for the satellite Channel (DD Urdu) as per details
mentioned in the letter dated 24.04.2009 itself. It was also mentioned
in letter dated 24.04.2009 that the programme shall be accepted and
full and final payment shall be released only after preview of each
episode and approval thereof. The relevant portion of the letter dated
24.04.2009 is verbatim reproduced as under:-
For the above sanctioned programme an amount of RsFifty
Thousand only per episode will be payable for acquiring
multiple telecast rights on DD (Urdu) for a period of 3
years. In addition, Doordarshan will reserve the right to
telecast the programme on any/all of its National/Regional
Language Terrestrial/Satellite Channels without any extra
payment.
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The tapes containing the full details of the programme
should be in fresh DVC-Pro-50 format and all telecast
masters of the programme and all telecast masters of the
programme may be deposited within 45 days from the date
of issue of this letter in Room No. 924 (Tower-B),
Doordarshan Bhawan, New Delhi during working hours
upto 5:30 pm on working days.
Programmes should meet ITU-R specification for video and
chrominance levels Typically Maximum luminance 1 volt
PP 07 volts of video and 03 volts of sync pulse Maximum
Chrominance saturation=100% (colour difference
signal=07 volts) Audio level of the programme should be
within the range of -5 db to + 4 db.
The per episode duration of the final programme should
not be less than 28 ½ minutes for one episode. The credit
line should not exceed 30 seconds and should confine to the
creative team. You will submit bills and vouchers duly
vetted by Chartered Accountant/Auditor. However,
Doordarshan/Prasar Bharti's commitment would be
limited to the cost estimate/budget estimates sanctioned.
The programme shall be accepted and full & final payment
released only after preview of eachepisode and approval
thereof.
8.2 As detailed hereinabove, the counsel for the petitioner argued
that the approval letter dated 24.04.2009 constituted a contractual
relationship by the respondent no.1 in favour of the petitioner. The
approval letter dated 24.04.2009, which was in the nature of purchase
order, was duly accepted by the petitioner resulting into a legally
binding contract between the petitioner and the respondent no. 1.
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The counsel for the respondent no. 1 argued that the final formal
contract completing the process of acquisition was never executed
between the petitioner and the respondent no. 1 and the letter dated
24.04.2009 was not indicative of any concluded contract and cannot
be construed as a concluded contract. There was no absolute offer
and acceptance in terms of the letter dated 24.04.2009.
8.3 The Supreme Court in PSA Mumbai Investments Pte.
Limited V Board of Trustees of the Jawaharlal Nehru Port Trust
and another, 2018 10 SCC 525 as referred by the counsel for the
respondent no. 1 observed that the acceptance must be absolute and
unqualified in order to convert a proposal into a promise. The
Supreme Court in this case also referred Dresser Rand S.A V
Bindal Agro Chem Ltd, 2006 (1) SCC 751 wherein it was held as
under:-
32. Parties agreeing upon the terms subject to which a
contract will be governed, when made, is not the same as
entering into the contract itself. Similarly, agreeing upon
the terms which will govern a purchase when a purchase
order is placed, is not the same as placing a purchase order.
A prelude to a contract should not be confused with the
contract itself.
8.3.1 The counsel for the respondent no. 1 also cited Padia Timber
Company Private Limited V Board of Trustees of
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Visakhapatnam Port Trust, 2021 3 SCC 24wherein it was held as
under:-
56. It is a cardinal principle of the law of contract that the
offer and acceptance of an offer must be absolute. It can
give no room for doubt. The offer and acceptance must be
based or founded on three components, that is, certainty,
commitment and communication. However, when the
acceptor puts in a new condition while accepting the
contract already signed by the proposer, the contract is not
complete until the proposer accepts that condition, as held
by this Court in Haridwar Singh v. BagunSumbrui and
Ors., AIR 1972 SC 1242. An acceptance with a variation is
no acceptance. It is, in effect and substance, simply a
counter proposal which must be accepted fully by the
original proposer, before a contract is made.
8.4 The respondent no. 1 vide letter dated 24.04.2009 only
conveyed approval for off the shelf Short Term Acquisition of the
programme for the satellite Channel (DD Urdu) with further
stipulation that Rs. 50,000/- shall be payable per episode for said
sanctioned programme for acquiring multiple telecast rights on DD
(Urdu) for a period of 3 years. The respondent no. 1 also reserved
right to telecast the programme on any/all National/Regional
Language Terrestrial/Satellite Channels without any extra payment.
The respondent no. 1 also conveyed to the petitioner that the
programme shall be accepted and full and final payment shall be
released only after preview of each episode and approval thereof. The
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letter dated 24.04.2009 does not convey that the respondent no. 1 has
finally accepted the proposal of the petitioner vide letter dated
27.12.2007. The respondent no. 1 in letter dated 24.04.2009 only set
out terms and conditions for acceptance of proposal of the petitioner
submitted vide letter dated 27.12.2007. The petitioner never
conveyed acceptance of terms and conditions as set out in letter dated
24.04.2009. There was no absolute and unqualified acceptance on
part of the respondent no. 1 in order to convert a proposal into a
promise as per letter dated 24.04.2009.The letter dated 24.04.2009
cannot be accepted as binding contract between the petitioner and the
respondent no. 1. The binding contract was never executed between
the petitioner and the respondent no. 1 regarding proposal submitted
by the petitioner vide letter dated 27.12.2007. There is no force in
argument advanced by the counsel for the petitioner that a contractual
relationship was constituted by the respondent no. 1 in favour of the
petitioner in pursuance of letter dated 24.04.2009 and the approval
letter dated 24.04.2009 was in the nature of purchase order resulting
into legally binding contract between the petitioner and the
respondent no. 1. Even submission of 13 episodes of half hour
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programme Gosha-e-Tiflan by the petitioner vide letter dated
08.06.2009 is not good enough to presume contractual obligations
between the petitioner and the respondent no. 1. The counsel for the
petitioner was legally justified in arguments that the final formal
contract completing the process of acquisition was never executed
between the petitioner and the respondent no. 1 and the letter dated
24.04.2009 was not indicative of any concluded contract and cannot
be construed as a concluded contract.
9. The counsel for the petitioner also stated and argued that the
petitioner has submitted necessary documents as required by the
respondent no. 1 and also submitted further details and documents
including balance sheets for last three years vide letters dated
19.09.2008 in pursuance of letter dated 15.09.2008and 25.03.2009 in
compliance of the letter of dated 20.03.2009.
The counsel for the respondent no. 1 argued that the proposal
submitted by the petitioner was found to be deficient and accordingly
the respondent no. 1 vide letter dated 16.03.2010 asked the petitioner
to submit audited balance sheets for the assessment years 2006-2007
and 2008-2009 but the said letter was returned with the remarks „No
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such person‟ and thereafter the respondent no. 1 also sent another
letter dated 25.05.2010 to inform the petitioner about the earlier letter
dated 16.03.2010 and stalling of processing of proposal of the
petitioner but the petitioner did not respond to letter dated
25.05.2010. It is stated that the petitioner also admitted that the
petitioner due to renovation of office had missed correspondence
from the respondent no. 1.
9.1 The respondent no. 1 issued letter dated 16.03.2010 whereby
informed the petitioner that the petitioner has not furnished audited
balance sheets for the assessment years 2006-2007 and 2008-2009
and asked the petitioner to furnish these balance sheets within a
week. It was also communicated to the petitioner that further
processing on the proposal will be stalled in case balance sheets are
not furnished to the respondent no. 1. The respondent no. 1 also filed
the returned envelope of letter dated 16.03.2010 with remarks "No
such person". There is no reason to disbelieve the plea of the
respondent no. 1 that letter dated 16.03.2010 was sent to the
petitioner. The petitioner in letter dated 19.09.2008 submitted
documents and affidavit regarding genuineness of the Right holder,
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audited balance sheets, profit and loss account reports for the last
three years and affidavit on non-judicial stamp papers. The letter
dated 19.09.2008 does not reflect that audited balance sheet for
assessment year 2008-2009 was also sent as said letter was issued on
19.09.2008. The petitioner in letter dated 20.07.2010 which was
referred by the counsel for the respondent no. 1 also admitted that at
relevant time of issuance of letter dated 16.03.2008, the office of the
petitioner, which is stated to be part of residential converted
commercial property and is having other offices in same building,
was under renovation.
9.2 The respondent no. 1 also issued another letter dated
25.05.2010 whereby the petitioner was informed about stalling of
processing of proposal of the petitioner due to failure on part of the
petitioner to submit audited balance sheets for assessment years
2007-2008 and 2008-2009. The petitioner did not dispute issuance
and receipt of said letter and also did not plead that letter dated
25.05.2010 was responded by the petitioner. It is appearing that the
petitioner did not supply requisite documents to the respondent no. 1
in pursuance of letter dated 16.03.2010 and due to this reason, the
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respondent no. 1 was justified in stalling the processing of the
proposal of the petitioner as reflected from letter dated 25.05.2010.
The said action of the respondent cannot be equated as arbitrary and
unreasonable.
10. The counsel for the respondent no. 1 argued that the present
petition is not maintainable as it involves disputed facts and is also
barred by delay and latches. The pleas as raised on behalf the
respondent no. 1 are without any legal basis under given facts and
circumstances of case, hence rejected.
11. The present petition along with pending application, if any, is
accordingly dismissed and the petitioner is not entitled to any relief
as claimed in the present petition.
DR. SUDHIR KUMAR JAIN
(JUDGE)
FEBRUARY 27, 2024
J/AK
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