Bangalore District Court
O.S./3630/2014 on 2 March, 2021
/1/ O.S.No.3630/2014
THE COURT OF XXXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 2nd day of March, 2021.
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 3630/2014
Plaintiff :-
M/s.Modern Satellite Vision, No.87,
2nd Main, 6th Block, 3rd Phase,
Banashankari 3rd Stage,
Bangalore - 560 085.
Represented by its Proprietor
Sri.Sunilkumar D.P.
[By Sri. K.P.B., Advocate]
/ VERSUS /
Defendants :-
1. M/s.Vinayaka Enterprises.
Represented by its Proprietor,
Sri.T.G.Guruprasad.
2. T.G.Guruprasad S/o. T.S.Gundurao,
Major.
Both are R/o.No.12, 5th Cross,
Kamakya Layout, 5thBlock, 4th Phase,
Banashankari III Stage,
Bangalore -560 085.
[By Sri.V.M., Advocate]
/2/ O.S.No.3630/2014
Date of Institution of the
: 14.05.2014
suit
Nature of suit : Injunction suit
Date of commencement
of evidence : 06.03.2015
Date on which the
judgment is pronounced : 02.03.2021
Duration taken for Years Months Days
: 06 09 19
disposal
***
JUDGMENT
The plaintiff has filed the suit against the defendants for the relief of permanent injunction to restrain the defendants, their staffs and henchmen or any person claiming through or under them from any way interfering with the network business in the network area consisting of Banashankari III Stage, Bengaluru centered in their licenced office at No.87, 2 nd Main, 6th Block, 3rd Phase, Banashankari III Stage, Bengaluru - 85.
2. The case of the plaintiff in brief is as under :
That, the plaintiff is the proprietory firm registered under the name and style M/s.Modern Satellite /3/ O.S.No.3630/2014 Vision. The plaintiff is engaged in the cable TV satellite network business having its principal place of business at No.87, 2nd Main, 6th Block, 3rd Phase, Banashankari III Stage, Bengaluru - 85. The said business was originally carried out by one Smt. Saroja Panicker. During June 2007 the entire business of plaintiff was transferred/ handed over to Sunil Kumar D.P. who is the present proprietor of plaintiff - company. The plaintiff company is running by obtaining necessary certificates from the competent authority. The plaintiff has got sufficient expertise in Cable TV Satellite Network business. During the year 2001 the defendant No.1 was carrying cable TV satellite network business. During the said period defendants were facing severe problems in running the cable network business due to lack of qualified technical staff. As such the defendant No.1 refreshed the plaintiff to run the business realising that the prevailing situation was detrimental to their business. In the circumstances /4/ O.S.No.3630/2014 the defendant No.1 through its partners Smt.Thungamma Gundurao and P.S.Gundurao had requested the plaintiff to run, manage, upgrade and maintain the existing network business of defendant No.1. Accordingly, plaintiff and defendant No.1 have entered into maintenance agreement dated 1.6.2001. As per said agreement the defendant No.1 shall hand over the total charge of technically, administratively running, managing, upgrading and maintaining network business to the plaintiff herein along with subscribers of the defendant No.1 and in turn plaintiff herein had agreed to pay a consolidated sum of Rs.60,000/- p.m. Accordingly the defendant No.1 has handed over the said business and the plaintiff has paid consolidated sum of Rs. 60,000/- p.m. to the defendant No.1. The plaintiff has honoured its commitments promptly. Since there were certain issues between plaintiff and defendants, the defendants had arbitrarily terminated the maintenance agreement /5/ O.S.No.3630/2014 dated 1.6.2001. The plaintiff had challenged the said termination by filing O.S.No.6481/2007 on the file of Additional City Civil Judge, Bengaluru. During the pendency of said suit the telecom regulatory authority of India, being a statutory body for regulation of telecom services for orderly and healthy growth of tel- communication infrastructure apart from protection of consumer interest had prescribed a regulation i.e., Standards of Quality of Service (Digital Addressable Cable T.V. Systems) Regulations, 2012. By virtue of said notification the Union of India, Ministry of Information and Broadcasting, New Delhi had made it obligatory on every cable operator to transmit or retransmit programmes of any channel in any encrypted form through a digitable addressable system in the City of Bangalore with effect from 1.4.2013. As per the said regulation, every customer was required to subscribe for set-top boxes and only those customers who have subscribed the set-top boxes /6/ O.S.No.3630/2014 were entitled to have access to digital cable TV services. On account of said change in law, the transmitting of network through analog connections was impossible and as such the very maintenance agreement dated 1.6.2001 got frustrated under the said regulations the customers were given option to subscribe set-top boxes at their price from any of the service providers. As per said regulations the various customers had availed set-top boxes of their choise and have also subscribed to DTH Connections. At the request of the customers the plaintiff had taken initiative to seed set-top boxes by incurring huge expenditure. On account of advent of new law governing cable TV networking, the agreement dated 1.6.2001 got frustrated and the plaintiff had no obligation to pay any maintenance charges. Hence, the plaintiff has not paid the said maintenance charges to the defendant.
The customers of the plaintiff have subscribed to the service of the plaintiff and the plaintiff at the cost of /7/ O.S.No.3630/2014 customers has installed the set-top boxes. The plaintiff network business is in the network area consisting of Banashankari III Stage, Bengaluru centered in their licence office at No.87, 2nd Main 6th Block, II Phase, Bengaluru - 85. The plaintiff is running his business by obtaining necessary licence from the competent authority. During February 2014 the defendants along with their henchmen have started interfering with the business of the plaintiff and have made futile attempts to collect the subscription charges from the customers of the plaintiff. The plaintiff resisted the acts of the defendants and have approached the jurisdictional police for their intervention, but the police authorities have refused to interfere in the matter by contending that the dispute is in civil nature. The defendants without any right have obstructed the plaintiff's business. Hence, prayed for decreeing the suit.
/8/ O.S.No.3630/2014
3. The defendants appeared through their counsel and have filed their written statement by denying the claim of the plaintiff. The defendants contended that the present plaintiff has filed O.S.No.3731/2007 against the present defendants and has obtained temporary injunction. During the pendency of the said suit the present defendants have filed O.S.No.4346/2007 against the present plaintiff. The said suit came to be dismissed for non-prosecution. In the meanwhile the present plaintiff filed O.S.No.6481/2007 on the file of 37 th Additional City Civil Judge, Bengaluru against the present defendants for the relief of declaration and injunction. The said suit came to be dismissed on 22.4.2014. the plaintiff has suppressed the material facts and has filed the present suit. While passing the Judgment and Decree in O.S.No.6481/2007 the Hon'ble Court was pleased to observe that the plaintiff herein had undertaken the maintenance of the network on the condition mentioned /9/ O.S.No.3630/2014 in the agreement dated 1.6.2001. As per said agreement the plaintiff was liable to pay the monthly consolidated amount of Rs.60,000/- to the defendants. The plaintiff without paying the said amount has filed the present suit. The plaintiff itself admitted that the agreement dated 1.6.2001 is terminated and frustrated. The plaintiff is in due of Rs.64,11,822/- towards signal fees/charges and Rs.21,47,144/- towards royalty. The plaintiff without making the payment has filed the present suit. As per agreement dated 1.6.2001 the plaintiff is debarred from running the cable business. Even then plaintiff is running its business in the suit schedule property since 22.4.2014. The defendants never obstructed the plaintiff's business. Per contra, plaintiff and its henchmen have obstructed the defendants' business. The plaintiff has filed the present suit only with an intention to harass the defendants. Hence, prayed for dismissal of the suit.
/ 10 / O.S.No.3630/2014
4. On the basis of the pleadings and documents produced by both the parties, my predecessor in Office has framed following issues on 19.7.2016 :
(1) Whether the plaintiff proves the alleged interference with the plaintiff networking business in the network area shown in the suit schedule by the defendants ?
(2) Whether plaintiff is entitled for the reliefs as prayed for ?
(3) What order or decree?
5. The proprietor of the plaintiff viz., Sunil Kumar D.P. has been examined as P.W.1 and got marked the documents as Exs.P.1 to P.5. Though sufficient opportunity has been provided to the defendants for adducing evidence on their behalf, even then the defendants failed to adduce evidence. Hence, the defendants' evidence is taken as nil on 16.1.2020.
/ 11 / O.S.No.3630/2014
6. Heard.
7. My findings to the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : As per final order, for the
following:
REASONS
8. Issue No.1 :- That, the plaintiff filed the
present suit for the relief of permanent injunction restraining the defendants from interfering with the network business in the network area consisting of centered in their licenced office at No.87, 2nd Main, 6th Block, 3rd Phase, Banashankari III Stage, Bengaluru - 85.
9. The counsel for the plaintiff argued that the plaintiff is running the business in the suit schedule property by obtaining necessary licence as per Exs.P.3 and P.4. Ex.P.5 are the customers details. The defendants are no way concerned with the plaintiff's business. Even / 12 / O.S.No.3630/2014 then they are obstructing. Hence, prayed for decreeing the suit. Though sufficient opportunity has been provided to the defendants for arguing the matter, even then the defendants have failed to argue the matter. Hence, defendants' arguments is taken as nil.
10. In order to substantiate its claim, the proprietor of the plaintiff has been examined as P.W.1. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. In order to establish its case, plaintiff has produced Exs.P.1 to P.5. Ex.P.1 is the certified copy of the Judgment in O.S.No.6481/2007. Ex.P.2 is the certified copy of the Maintenance Agreement dated 1.6.2001. Ex.P.3 is the C/c of Registration Certificate issued by Head Post Office, Bangalore. Ex.P.4 is the certified copy of the Registration Certificate issued by Superintendent of Central Excise of Bangalore. Ex.P.5 is the copy of details of customers availing service [totally 403 sheets].
/ 13 / O.S.No.3630/2014
11. P.W.1 deposed that plaintiff - company is running its business in the suit schedule property by obtaining necessary permission from the competent authorities. The defendants are no way concerned with the plaintiff's business, even then they are obstructing, hence, prayed for decreeing the suit.
12. The counsel for defendants cross-examined P.W.1 in length, but nothing worth has been elicited from the mouth of P.W.1. The counsel for defendants much cross-examined P.W.1 on Ex.P.1 - Judgment and Decree passed in O.S.No.6481/2007. Witness admitted the suit filed by the plaintiff i.e., O.S.No.6481/2007 which came to be dismissed on 22.4.2014. P.W.1 further admitted that as per agreement dated 1.6.2001 plaintiff-company has agreed to pay Rs.60,000/- to the defendants. Though the counsel for defendants cross-examined P.W.1 in length, but there is no suggestion as regards to the alleged obstruction. Even there is no suggestion regarding the / 14 / O.S.No.3630/2014 licence obtained by the plaintiff from the competent authority for running the cable network business. On perusal of Ex.P.1 it reveals that the present plaintiff has filed O.S.No.6481/2007 for the relief of declaration and injunction. The said suit came to be dismissed. On perusal of Ex.P.2, it reveals that the plaintiff and defendant No.1 have entered into maintenance agreement on 1.6.2001 in respect of cable network business. As per said maintenance agreement the period of agreement has been elapsed. The plaintiff in the present suit is not claiming the relief on the basis of Ex.P.2 - Maintenance Agreement. Plaintiff is claiming the relief on the basis of Exs.P.3 and P.4 - Registration Certificates issued by Postal Department and The Superintendent of Central Excise (Tech) Service Tax Division, B-III, Commissionerate, Bengaluru. After obtaining the licence from the competent authority, the plaintiff is running his cable network business in the suit / 15 / O.S.No.3630/2014 schedule property. Ex.P.5 are the copies of details of customers availing service from the plaintiff - company. All these documents clearly establish that plaintiff is running the cable network business independently. The business run by the plaintiff is no way concerned with the defendants. The defendants in their written statement admitted that the plaintiff is running cable TV satellite network business in the suit schedule property. The defendants claimed that plaintiff is in due of Rs.85,58,966/- towards the arrears of maintenance charges. If at all plaintiff is in due of said amount, the defendants can very well file a suit for recovery of said amount. Without resorting the remedy as provided under the law they cannot interfere with the plaintiff's business. Admittedly, it is the suit for bare injunction. In this case Court will not decide the validity of maintenance agreement dated 1.6.2001 or the arrears of maintenance charges as claimed by the defendants.
/ 16 / O.S.No.3630/2014
13. Besides, as discussed supra, this Court has granted sufficient opportunity to the defendants to adduce evidence on their behalf, but they failed to adduce their evidence. As such, the contention raised in their written statement cannot be considered. The said proposition of law is supported by the Hon'ble Apex Court decision reported in AIR 1999 SC 1341 (Eshwar Bhai C.Patel Bachchu Bhai Patel Vs. Harihara Behara and another) wherein it is held that, "If a party to the proceedings does not enter into witness box to make a stand on oath in support of his pleadings, then an adverse inference is to be drawn against him to the effect that whatever stated in written statement was not correct." In this case also, defendants have not led evidence to prove their defence. As such, an adverse inference is drawn as against the defendants. The said decision is aptly applicable to the case in hand.
/ 17 / O.S.No.3630/2014
14. Hence, by considering the pleadings and evidence of P.W.1, it clearly goes to show that the plaintiff is in possession of the suit schedule property and is running cable network business in the suit schedule property. It is well settled law that, once the plaintiff establishes its possession over the suit schedule property, its possession has to be protected. Accordingly, I answer Issue No.1 in the affirmative.
15. Issue No.2 : - That, the defendants have not denied the possession of plaintiff over the suit schedule property and even they have not denied the cable TV satellite network business run by the plaintiff. P.W.1 clearly deposed that defendants are interfering with plaintiff's cable TV satellite network business. The defendants have not denied the alleged obstruction. It is well settled law that where there is merely an interference with plaintiff's lawful possession or threat of dispossession it is sufficient to sue for injunction. There is / 18 / O.S.No.3630/2014 no material to disbelieve the version of plaintiff. The plaintiff has proved its possession and enjoyment over the suit schedule property and also running the cable TV satellite network business in the suit schedule property as on the date of filing the suit and further proved the interference by the defendants. Hence, the plaintiff is entitled to the relief of permanent injunction as sought in the suit. Hence, I answer Issue No.2 in the affirmative.
16. Issue No.3 :- For the forgoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed with costs.
The defendants, their staff and henchmen or any person claiming through or under them are hereby permanently retrained from any way interfering with the plaintiff's network business in the network area consisting of Banashankari III Stage, / 19 / O.S.No.3630/2014 Bengaluru centered in their licenced office at No.87, 2nd Main, 6th Block, 3rd Phase, Banashankari III Stage, Bengaluru - 85. Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 2nd day of March, 2021.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Sunil Kumar D.P.
2. List of documents exhibited for plaintiff:
Ex.P.1 : C/c of Judgment in O.S.No.6481/2007 Ex.P.2 : C/c of maintenance agreement dated 1.6.2001.
Ex.P.3 : C/c of Registration Certificate issued by Head Post Office, Bangalore.
Ex.P.4 : C/c of registration certificate issued by Superintendent of Central Excise of / 20 / O.S.No.3630/2014 Bangalore .
Ex.P.5 : Copy of details of customer availing service [totally 403 sheets]
3. List of witnesses examined/documents produced by defendants :-
- NIL -
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 21 / O.S.No.3630/2014
02/03/2021
Judgment pronounced in the open Court
(Vide separate Judgment) :
ORDER
Suit of the plaintiff is hereby decreed with costs.
The defendants, their staff and henchmen or any person claiming through or under them are hereby permanently retrained from any way interfering with the plaintiff's network business in the network area consisting of Banashankari III Stage, Bengaluru centered in their licenced office at No.87, 2nd Main, 6th Block, 3rd Phase, Banashankari III Stage, Bengaluru - 85.
Draw decree accordingly.
(KHADARSAB) XXXIX ACC & S Judge, Bangalore City.