SREE KONARK DIGITAL SYSTEMS v. MSM DISCOVERY PVT. LTD., Telecom Disputes Settlement And Appellate Tribunal, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

BROADCASTINGPETITION/828/2012

Disposition

Judges

HON BLE MR. P.K.RASTOGI
MEMBER

Acts

Section 69 (2) of the Indian Partnership Act
Section 69 of the Indian Partnership Act
Section 69 of the Indian Partnership Act, 1932

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Smart Summary

Factual and Procedural Background

The petitions involve multiple Multi Service Operators (Petitioners) and a Broadcaster/Content Aggregator (Respondent). After prolonged negotiations, the parties executed a Subscription Agreement dated 14.9.2012, valid from 01.10.2012 to 31.12.2012. The Petitioners paid an advance subscription amount for three months at the time of execution. IRD boxes were supplied to the Petitioners (except in one petition) and payment for these boxes was made. However, the Respondent did not activate the decoder boxes. The Petitioners filed these petitions seeking directions for activation of the decoder boxes, provision of counter-signed copies of the agreement, and entering into a fresh agreement on the same terms after expiry of the current one. The Respondent contested the activation on grounds including lack of a signed agreement and issues regarding the validity of Postal Registration Certificates and partnership firm registrations.

Legal Issues Presented

Whether the Respondent is obligated to activate the IRD decoder boxes supplied to the Petitioners despite the agreements not being counter-signed by the Respondent.
Whether the Petitioners are entitled to receive counter-signed copies of the Subscription Agreements.
Whether the Petitioners are entitled to enter into fresh agreements on the same terms after expiry of the current agreement period.
Whether Section 69 of the Indian Partnership Act, 1932 applies to the partnership firms among the Petitioners for activation of IRD boxes.
Whether the validity or expiry of Postal Registration Certificates affects the Petitioners' entitlement to activation of the IRD boxes.

Arguments of the Parties

Petitioners' Arguments

The Subscription Agreement dated 14.9.2012 was duly executed by the Petitioners and establishes the commercial terms and period of validity.
Payment of subscription amount for three months was made in advance by post-dated cheques, and IRD boxes were supplied accordingly.
The Respondent failed to activate the IRD boxes despite reminders sent on 5.11.2012 and 12.11.2012.
The Petitioners are willing to submit valid Postal Registration Certificates wherever expired.
Section 69 of the Indian Partnership Act is not applicable to these cases as the definition of distributor includes individuals, groups, firms, and organizations, not requiring registration of partnership firms for activation.
Precedents from this Tribunal indicate that Section 69 is not applicable for supply of signals to cable operators.

Respondent's Arguments

The Subscription Agreements have not been signed by the Respondent and thus are not binding.
In several petitions, the Petitioners do not possess valid Postal Registration Certificates, which is a prerequisite for activation.
Some Petitioners are partnership firms without registered partnership deeds, and under Section 69 of the Indian Partnership Act, registration is mandatory for such firms to be entitled to activation.
The Respondent reserved the right to activate IRD boxes only for Petitioners with valid Postal Registration Certificates and objected to activation for unregistered partnership firms.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Judgment dated 27.7.2011 in Petition No. 67 (C) of 2009	Section 69 of the Indian Partnership Act is not applicable for supply of signals to cable operators.	The court relied on this precedent to hold prima facie that Section 69 does not apply to the Petitioners.
Judgments dated 14.8.2012 in Petition Nos. 50 (C) of 2012 and 51 (C) of 2012	Same as above, confirming non-applicability of Section 69 for supply of signals to cable operators.	These precedents reinforced the Tribunal's view that registration under Section 69 is not mandatory for activation of IRD boxes to the Petitioners.

Court's Reasoning and Analysis

The Tribunal observed that although the Subscription Agreements were not signed by the Respondent, the Petitioners had paid the subscription amount in advance and the IRD boxes were supplied and received. The Respondent's objection based on lack of counter-signature and validity of Postal Registration Certificates was noted. The Tribunal examined the contention regarding the applicability of Section 69 of the Indian Partnership Act to partnership firms among the Petitioners. Relying on its earlier judgments, the Tribunal held prima facie that Section 69 is not applicable in cases involving supply of signals to cable operators, and thus partnership firms are not required to be registered under this provision for activation. Considering these factors, the Tribunal directed the Respondent to activate the IRD boxes supplied to the Petitioners who have valid Postal Registration Certificates, within three days, subject to rights and contentions of the parties and without prejudice to further orders.

Holding and Implications

The Tribunal directed the Respondent to activate the IRD boxes supplied to the Petitioners within three days from the date of the order.

This order applies on an interim basis and is without prejudice to the rights and contentions of the parties or any further orders that may be passed. The Tribunal reaffirmed that Section 69 of the Indian Partnership Act does not apply to the Petitioners in these matters. The direct effect is that Petitioners with valid Postal Registration Certificates will receive activation of their IRD boxes, while issues relating to registration and agreement execution remain reserved. No new precedent beyond the reaffirmation of prior judgments was established.

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SREE KONARK DIGITAL SYSTEMS v. MSM DISCOVERY PVT. LTD.

TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL

NEW DELHI

Dated 3^rd December, 2012 Petition No. 827 (C) of 2012

Sree Devi Digital Systems (Anakapalle) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 828 (C) of 2012

Sree Konark Digital Systems (Srikakulam) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 829 (C) of 2012

Sree Devi Digital Systems (Tuni) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 830 (C) of 2012

Sree Devi Digital Systems (Vizianagaram) …Petitioner

Page 1 of 8

Vs. MSM Discovery Pvt. Ltd. …Respondent

Petition No. 831 (C) of 2012

Sree Devi Digital Systems (Rajahmundry) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 832 (C) of 2012

Eswara Communications (Vijaywada) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 833 (C) of 2012

Vijay Communications (Krishna) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Petition No. 834 (C) of 2012

Sree Devi Enterprises (Kakinada) …Petitioner Vs.

MSM Discovery Pvt. Ltd. …Respondent

Page 2 of 8

BEFORE:

HON'BLE MR. P.K.RASTOGI, MEMBER

For Petitioner : Mr. Jayant K. Mehta, Advocate Mr. Sharath Sampath, Advocate

For Respondent : Mr. A.C. Mishra, Advocate Ms. Vidya Prabhakaran, Advocate

ORDER

Petitioners in these petitions are a Multi Service Operators and the Respondent is a Broadcaster/Content Aggregator as described under the Regulations.

2. Petitioners claimed that after the long process of negotiations between the parties, the commercial terms of the Subscription Agreement were settled and the parties entered into a Subscription Agreement dated 14.9.2012 for the period 01.10.2012- 31.12.2012.

3. On 25.9.2012, the IRD boxes were supplied to the Petitioner in all matters except in Petition No. 833 (c) of 2012 and the payment for IRD Boxes was also made to the Respondent on 11.10.2012. According to the

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Petitioner, an advance of Subscription Amount of three months for the months of October, 2012, November, 2012 and December, 2012 was paid on 14.9.2012 at the time of execution of the agreement but the Respondent has not yet activated the IRD boxes. Therefore, the Petitioner has filed these petitions inter-alia for the following reliefs:-

(i) Direct the Respondent to activate the decoder boxes of its channels issued to the Petitioner;

(ii) Direct the Respondent to provide counter signed copy of the Agreements.

(iii) Direct the Respondent to enter into a fresh agreement with the Petitioner from the date of expiry of the period of three months on the same terms and conditions.

4. In its interim prayer, the Petitioners requested to direct the Respondent to activate the decoder boxes of its channels pending final hearing in the matter.

5. The Respondent asked time to seek final instructions and time to file a short reply. When the matter was called for hearing on the interim matter on 23.11.2012, the Respondent did not file the reply, however, he argued on the interim matter.

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6. Mr. Jayant Mehta, learned counsel appearing on behalf of the Petitioner brought to our notice the copy of the agreement signed on 14.9.2012. The agreement shows the document number as well as period of validity starting from 01.10.2012 to 31.12.2012. The validation form shows the monthly amount to be paid to the Respondent.

7. However, Mr. A. C. Mishra, learned counsel appearing on behalf of the Respondent pointed out that these agreements have not been signed by the Respondent. It is noticed that these agreement have been signed only by the Petitioners. The counsel has shown the payment of subscription amount dated 14.9.2012 for three months by way of post-dated cheques of 31.10.2012, 30.11.2012 and 31.12.2012 for an amount of Rs.54,836/- in Petition No 827 (C) of 2012. This paper is at page 31 of the paperbook, which shows that the distributor of the Respondent has received the same. Similarly a document dated 25.9.2012 has been shown which shows that IRD boxes has been supplied to the Petitioner where the distributor of the Respondent as well as the Petitioners have signed.

8. The Petitioner has reminded the Respondent on 5.11.2012 wherein the Respondent was requested to activate the IRD boxes as well as return the counter-signed copy of the agreement signed between the parties on

14.9.2012.

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9. The Respondent was reminded again on 12.11.2012. The Respondent has produced a chart before us about these petitions. We may reproduce the letter dated 5.11.2012 as under:-

S.No.	Petition No.	Nature of Firm	Status of P&T Certificates
1.	827 (C) of 2012	Sole Proprietary	Expired on 31.7.2012
2.	828 (C) of 2012	Partnership	Expired on 13.6.2012
3.	829 (C) of 2012	Sole Proprietary	Expired on 15.7.2012
4.	830 (C) of 2012	Sole Proprietary	Valid till 2.3.2013
5.	831 (C) of 2012	Sole Proprietary	Valid till 16.3.2013
6.	832 (C) of 2012	Partnership	Expired on 27.10.2012
7.	833 (C) of 2012	Partnership	Valid till 18.6.2013
8.	834 (C) of 2012	Partnership	Expired on 09.10.2012

10. Mr. A.C. Mishra, learned counsel contends that the subscription amount has not been signed by the Respondent, therefore, the agreement copy produced by the Petitioner is not binding on it. In Petition No. 827 (C) of 2012, No. 828 (C) of 2012, No. 829 (C) of 2012, No. 832 (C) of 2012 and Petition No. 834 (C) of 2012, there is no valid postal certificate as on date. Similarly, the Petitioners in Petition Nos. 828 (C) of 2012, 832 (C) of 2012, 833 (C) of 2012 and 834 (C) of 2012 are the partnership firms but registered partnership deal has not been filed. Therefore, the Petitioners are not entitled for the activation of the IRD boxes.

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11. Mr. Mehta, learned counsel has pointed out that although these petitions has been filed on 19.11.2012, the Respondent has chosen to send an e-mail to the Petitioner on 22.11.2012 after filing of these petitions. This e-mail does not mention anywhere that the agreement between the party has not been executed. The Respondent has raised an issue of Postal Registration Certificate for the first time. Mr. Mehta, submits that he is ready to submit the Postal Registration Certificate immediately to the Respondent wherever period of registration has expired.

12. Mr. Mishra, learned counsel later agreed that the Respondent will activate the IRD boxes of the Petitioners in the petitions having valid Postal Registration Certificates. However, he has a strong objection for activation of those IRD boxes wherever the partnership firm has not been registered as according to him, it is necessary that partnership firm should be registered as required under Section 69 of the Indian Partnership Act, 1932.

13. Mr. Mehta, has brought to our notice that Section 69 of the Indian Partnership Act, 1932 is not applicable in these cases, as the distributor of TV channel means any person including an individual and group of persons, public or body corporate firm or any organization.

Page 7 of 8

14. Mr. Mehta has also brought to our notice a judgment of this Tribunal dated 27.7.2011 in Petition No. 67 (C) of 2009 and in judgement dated 14.8.2012 in Petition No. 50 (C) of 2012 and 51 (C) of 2012 wherein it was held that Section 69 of the Indian Partnership Act is not applicable for supply of signals to the cable operators.

15. In view of our clear findings in various judgements, prima-facie, I am of the view that Section 69 (2) of the Indian Partnership Act is not applicable in these cases, where the Petitioners seek signals of the Respondent.

16. Therefore, in view of the aforementioned reasons by way of interim order, it is directed that Respondent will activate the IRD Boxes supplied to the Petitioner within a period of three days from the date. However these orders will be without prejudice to the rights and contentions of parties and is subject to any other or further orders.

…..……….. (P.K. Rastogi) Member

HKC/

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SREE KONARK DIGITAL SYSTEMS v. MSM DISCOVERY PVT. LTD.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

SREE KONARK DIGITAL SYSTEMS v. MSM DISCOVERY PVT. LTD.

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