TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
DATED 13TH APRIL, 2011
Petition No.119 (C) of
Kansan News Pvt. Ltd. Petitioner
Transmission Pvt. Ltd. & Ors. Respondents
MR. JUSTICE S.B.SINHA, CHAIRPERSON
MR. G.D.GAIHA, MEMBER
MR. P.K.RASTOGI, MEMBER
Mr. Tejveer Singh Bhatia, Advocate
Mr. Maninder Singh,
Mr. Navin Chawla,
Mr. Sharath Sampath, Advocate
By an order dated 22.02.2011 while admitting this petition, we have refused to pass an order of interim injunction in favour of the petitioner herein.
The reasons in support thereof now are being assigned.
2. The petitioner herein is a broadcaster. It entered into an agreement with the Respondent Nos. 1, 2 and 3 separately for carriage of its channels in their network.
By reason of a notice dated 25.12.2010, the said agreement was sought to be terminated.
3. Mr. Bhatia, the learned counsel appearing on behalf of the petitioner urged that from a perusal of the impugned notices, it would be evident that they are identical in nature and as such, there cannot be any doubt or dispute that the Respondent Nos. 1 to 4 herein were acting to cause loss to the petitioner conjointly and committed breach of the provisions of the agreement. The learned counsel would contend that keeping in view the conduct of the respondents, the only conclusion which can be arrived at, is that having regard to the disputes and difference between the parties in relation to the programmes it carry, the same should be held to be malafide. It was pointed out that whenever the news against the Government was aired, the MSOs refused to broadcast the channel.
4. Mr. Maninder Singh, the learned Senior Counsel appearing on behalf of the respondent, however, contended that having regard to the fact that notice of 30 days has been served in terms of the agreement, the petitioner is not entitled to any order of injunction.
5. We may at the outset notice the relevant clauses of the agreement dated 01.8.2010 entered into by and between the respondent No.1. In terms of the said agreement, the channel Day & Night News with the allocated band-width was to be carried by the Respondent Nos. 1 to 3 for one year on a consideration of Rs.14,36,32,000/-.
provision relating to termination of contract is contained in sub-clause (d) of Clause 8.
6. On the premise that the signals of Day & Night News was not being aired, a request was made to the Deputy Commissioner, Gurdaspur, Punjab to ensure an enabling environment for the dissemination of diverse news and views and check any interference by anyone at any point of time.
A request was, therefore, made to intervene in the matter and prevent the interference with the signals of Day & Night News in the interest of freedom of speech and expression. A copy of the said letter was also sent to the Chief Secretary, Government of Punjab.
Indisputably, several other complaints were made in relation thereto by the petitioner to the authorities of both the State Government and the Central Government.
7. By a notice dated 19.01.2011, the said contract was terminated. It reads as under :-
We write with reference to the channel placement agreement dated 01.08.2010 executed by and between Fastway Transmission Pvt. Ltd. (Company) and M/s. Kansan News Pvt. Ltd. for placement of channel.
2. We stated
that by virtue of the above said agreement your channel namely The Day and Night News had been placed on our network at the agreed frequency. We wish to mention here that we had always complied with the terms and conditions of the said agreement and there was no lapse of any provision of the agreement.
though the agreement was for a period of one year commencing from 01.08.2010 to 31.07.2011 clause 8 (d) of the same provided as under :
Both the parties may terminate this Agreement without cause and without any liability whatsoever by giving the other party thirty (7) days notice. Both the parties shall not have any claim or demand, whatsoever, against each other in this regard.
4. That in
exercise of the power vested in clause 8 (d), we hereby give you the notice of 30 days is being though according to us only 7 days notice was required, however as there was no signature on the correction made on the agreement. We have been advised to give a notice of 30 days as present.
notice may also be treated as notice under Clause 4.2 of the Interconnected Regulations expiring with 30 days period as mentioned above.
8. As the other notices issued by the other concerned respondent are identical in nature, it is not necessary to notice the same.
A public notice was issued by the concerned respondents. It reads as under :-
This is to inform the consumers/public that after the expiry of thirty days, M/s. Creative Cable Network Pvt. Ltd. shall not retransmit the channel Day and Night News. M/s. Creative Cable Network Pvt. Ltd. has entered into channel placement agreement dated 01.08.2010 for receiving and distributing the signals of Day and Night News channel through its cable service in analogue mode on the agreed band/frequency. Clause 8(d) of the agreement provide as under :
Both the parties
may terminate this Agreement without cause and without any liability whatsoever by giving the other party thirty (7) days notice. Both the parties shall not have any claim or demand, whatsoever, against each other in this regard.
In exercise of the power vested under the above clause a notice of dated 19.1.2011 has been issued to M/s Kansan News Pvt. Ltd. the broadcaster of the above channel, terminating the contract w.e.f. 20.2.2011.
This notice is to be treated as a notice under Clause 4.3 of the Interconnected Regulations as amended from time to time informing the public that the signals of the above channel shall not be available at our network w.e.f. 20.2.2011.
Issued in Public Interest by :
Creative Cable Network Pvt. Ltd.
301, Major Sham Singh Road, Opp. Distt. Court, Ldh.
9. Indisputably, the petitioner filed a Writ Petition before the Punjab & Haryana High Court, which was marked as CWP No. 2003 of 2011. A learned Judge of the Bench of Haryana High Court passed an order of interim injunction.
The respondents herein raised an objection in regard to the jurisdiction of the High Court on the ground that is available to the petitioner i.e. an efficacious alternative remedy to file a petition before this Tribunal under section 14 of the Telecom Regulatory Authority of India Act, 1997. The learned Judge, by an order dated 08.01.2011, opined as under :-
7. It is urged on behalf of the respondent-caveators that the petitioner has got an efficacious alternative remedy to approach the Appellate Tribunal constituted under Section 14 of the Telecom Regulatory Authority of India Act, 1997 (for short the 1997 Act). They have referred to the notification dated 9.1.2004 to contend that the broadcasting and cable services have also been brought within the adjudicatory jurisdiction of the Tribunal though it is maintained on behalf of the petitioner that the phrase Service Provider as defined under Section 2 (i) of 1997 Act, means the Government as a service provider and includes a licensee only and a Multi System Operator apparently does not fall within the same.
9. In this view of the matter and as agreed to by learned counsel for the petitioner also but without expressing any views on the merits of the rival contentions. I deem it appropriate to dispose of this writ petition at this stage with liberty to the petitioner to approach the Appellate Tribunal constituted under Section 14 of the 1997 Act, within a period of two weeks from the date of receiving a certified copy of this order. Respondent Nos. 3 to 6 may also put in their appearance before the Tribunal on the very first date of hearing, if so advised. Owing to the fact that the agreement(s) between the parties are valid till July 31, 2011 unless renewed, the Tribunal, which is statedly headed by a former Honble Judge of the Honble Supreme Court, is requested to make an endeavour to decide the matter at the earliest subject to its convenience and/or the priority of other urgent matters.
12. Dasti on the same day.
10. The matter relating to broadcasting of a channel is governed by Cable Television Network (Regulation) Act, 1995 and the Telecom Regulatory Authority of India Act, 1997.
Broadcasting & Cable Service, by a notification issued on 09.01.2004, has been directed to be considered to be Telecommunication Services. Soon thereafter, the Telecom Regulatory Authority of India (TRAI) made a regulation known as Telecommunication (Broadcasting & Cable Services) Interconnection Regulations, 2004 (Regulations).
10. Clause 3.2 of the said Regulation reads thus :-
broadcaster shall provide on request signals of its TV channels on non-discriminatory terms to all distributors of TV channels, which may include, but be not limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator; [HITS Operators and multi system operators shall also, on request re-transmit signals received from a broadcaster, on a non-discriminatory basis to cable operators].
that this provision shall not apply in the case of a distributor of TV channels having defaulted in payment.
further that any imposition of terms which are unreasonable shall be deemed to constitute a denial of request
[Provided also that the provisions of this sub-regulation shall not apply in the case of a distributor of TV channels, who seeks signals of a particular TV channel from a broadcaster, while at the same time demanding carriage fee for carrying that channel on its distribution platform.]
applicant distributors of TV channels intending to get signal feed from any multi-system operator other than the presently-affiliated multi system operator, or from any agent/ any other intermediary of the broadcaster/multi system operator, or directly from broadcasters shall produce along with their request for services, a copy of the latest monthly invoice showing the dues, if any, from the presently-affiliated multi system operator, or from any agent/ any other intermediary of the broadcaster/multi system operator who collects the payment for providing TV channel signals.
2. The stipulation of placement frequency or package/ tier by the broadcaster from whom the signals have been sought by a distributor of TV channels, as a pre-condition for making available signals of the requested channel(s) shall also amount to imposition of unreasonable terms.
11. It is not disputed that whereas the Must Provide Clause contained therein would be governed by the said regulations, the Must Carry Clause is not governed thereby.
12. Mr. Bhatia, as noticed heretobefore, submits that for the said reason as the petitioner rests its case on breach of contract of the said agreement on the part of the concerned respondents.
13. Whether an order of injunction can be passed in regard to breach of a contract is the question.
14. A similar question came up for consideration before this Tribunal in Petition No. 220 (C) of 2010 Viacom 18 Media Pvt. Ltd. Vs. MSM Discovery Pvt. Ltd. wherein it was held that keeping in view the provisions contained in Section 14 (1) (a) and Section 41 (e) of the Specific Relief Act, 1963, no injunction can be granted.
question came to be considered by the Delhi High Court in MSM Discovery Pvt. Ltd. Vs. Viacom 18 Media Pvt. Ltd. (W.P. (C) No. 5109 of 2010) and by an order dated 01.8.2010, a learned Judge of the said Court upon analysing the clause relating to termination of contract therein opined :-
In the circumstances, it is not possible to hold that the interlocutory order passed by the TDSAT is one which suffers from any material irregularity calling for interference.
15. In support of the said opinion, the learned Judge interalia relying on a decision of the Supreme Court of India in Indian Oil Corporation Ltd. vs. Amritsar Gas Service, held :-
After surveying the earlier decisions in Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co. Ltd. (1967) 2 SCR 378, Gujarat Bottling Co. Ltd. v. Coca Cola Co. AIR 1995 SC 2372 and Superintendence Company of India v. Krishan Murgai (1981) 2 SCC 246, the Supreme Court concluded that no case was made out by Percept for compelling Zeheer Khan to appoint Percept as his agent in perpetuity. It was observed (AIR @ p. 3438) :
59. ..In view
of the personal nature of the service and relationship between the contracting parties, a contract of agency/management such as the one entered into between the appellant and respondent No.1 is incapable of specific performance and to enforce the performance thereof would be inequitable. Likewise, grant of injunction restraining first respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance.
16. A similar question was decided by this Tribunal in Petition No. 422 (C) of 2010, MSM Discovery Pvt. Ltd. Vs. New Delhi Television Ltd. & Anr.
By an order dated 16.12.2010, the prayer of the content Aggregator to pass an order of injunction was rejected. The legality and/or validity of the said order was also questioned by the broadcaster therein by filing a Writ Petition being W.P. (C) No. 8585 of 2010. By an order dated 22.12.2010, the writ petition was dismissed.
MSO in question preferred a Letters Patent Appeal before the Division Bench of the Delhi High Court marked as LPA No. 44 of 2011, which by an order dated 21.02.2011, was dismissed.
17. We may notice that in Classic Motors Ltd. Vs. Maruti Udyog Ltd. reported in 65 (1997) Delhi Law Times page 166, Dr. M. K. Sharma, J. framed various questions and it was opined that the defendant therein was entitled to terminate the agreement without assigning any reason by giving 90 days notice or upon the happening of an event without giving prior notice of 90 days, as provided for under Clauses 21 and 22 therein.
On the question of interpreting the meaning of the expression without assigning any cause, the learned Judge held as under :-
On an overall view of the entire matter, it appears to me that the present agreement was never intended to be permanent and that in respect of dealership sales agreements between private parties such agreements could never be held to be perpetual unless so intended by the parties and specifically stated in the agreement itself. On a reasonable construction of the agreement in hand I hold that other party to the agreement was entitled to terminate the contract without assigning any reason by giving 90 days notice or even without giving any notice upon the happening of an event. Termination without cause in common law is a valid power which the parties may give to themselves.
18. In the Ansons Law of Contract, 29th Edition page 471, the law is stated as under :-
More often a provision is inserted making the contract terminable at the option of one or both of the parties upon notice. This right of termination may be exercisable upon a breach of the contract by one party (whether or not the breach would amount to a repudiation of the contract), or upon the occurrence or non-occurrence of a decided event other than breach, or simply at the will of the party upon whom the right is conferred. For example, the contract may be terminable by 3 months notice in writing on either side. A similar provision may be incorporated by implication, or by the usage of trade. At common law, for instance, a contract of employment may be terminated by reasonable notice by either party, the length of the notice depending upon the nature of the employment and the intervals at which remuneration is to be paid. Moreover, even where the duration of a written contract is one the fact of the instrument indefinite and unlimited, such a provision may sometimes be implied.
19. Yet again, in Pollock & Mullas Indian Contract & Specific Relief Acts, at page 1260, it is stated :-
If a contract contains a provision that one of the parties thereto may determine the contract by notice at the option of one of the parties or either of the parties, and may be made exercisable upon breach of contract by one of the parties (whether the breach amounts to repudiation or not) or on occurrence of any other specified event, or without requiring any reason simply at the will of such party entitled, such provisions may be express, or may be implied in the contract, or incorporated by usage or custom of trade.
20. We would assume that the termination of contract was malafide, but therefor the petitioner may be held to be entitled to damages and not an order of injunction. This case rests only on issues arising out of a contract qua contract.
matter might have been different if the contract was governed by a statute. The matter might have been different if there was a negative covenant which could have been invoked for the purpose of obtaining an order of injunction.
21. Having regard to the fact that the contract has been terminated in accordance with the law, namely upon service of 30 days notice, we are of the opinion that it is not a fit case where an order of ad-interim injunction can be passed.
22. We assign these reasons in support of our order dated 22.02.2011.
(G. D. Gaiha)