Karnataka High Court
Sri T S Kamal Kumar vs Sri V Renukesh on 20 March, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
C.R.P.NO.98/2012
BETWEEN:
SRI T.S.KAMAL KUMAR,
AGED 45 YEARS,
S/O LATE SUDARSHAN,
PARTNER OF ICE T.V. PVT. LTD.,
HAVING ITS OFFICE AT NO.507,
2ND FLOOR, EAST END MAIN ROAD,
9TH BLOCK, JAYANAGAR,
BANGALORE - 560 061.
... PETITIONER
(BY SRI H.S.SAMNATH AND ASSTS., ADVS.,)
AND:
1. SRI V.RENUKESH,
AGED ABOUT 53 YEARS,
S/O B.VEERABHADRAPPA,
C/O KOLLEGALLA CABLE NETWORK,
AKN BUILDINGS,
DR. RAJKUMAR ROAD,
KOLLEGALLA - 571 440.
2. SRI RAMESH,
AGED ABOUT 38 YEARS,
PARTNER, ICE T.V. PVT. LTD.,
NO.507, 2ND FLOOR, EAST END
MAIN ROAD, 9TH BLOCK, JAYANAGAR,
-2-
BANGALORE - 69.
3. SRI. RAVI
AGED ABOUT 38 YEARS,
PARTNER, ICE T.V. PVT. LTD
NO.507, 2ND FLOOR, EAST END
MAIN ROAD, 9TH BLOCK,
JAYANAGAR, BANGALORE -69.
4. SRI. BRAHMA RAJ
AGED ABOUT 38 YEARS,
MANAGER, ICE T.V. PVT. LTD
NO.507, 2ND FLOOR, EAST END
MAIN ROAD, 9TH BLOCK,
JAYANAGAR, BANGALORE-69.
5. SRI. SATHISH
AGED ABOUT 35 YEARS,
EXECUTIVE, ICE T.V. PVT. LTD
NO.507,2ND FLOOR,EAST END
MAIN ROAD, 9TH BLOCK,
JAYANAGAR, BANGALORE-69.
6. SRI MUDAPPA
AGED ABOUT 45 YEARS,
CHAMARAJESHWARA CABLE NETWORK,
HARSHA TELECOMMUNICATIONS
HOUSING BOARD COLONY,
CHAMARAJANAGARA -7.
7. SRI. SHIVAKUMAR
AGED ABOUT 43 YEARS,
GUNDLUPET CABLE OPERATOR,
MAIN ROAD, GUNDLUPET,
CHAMARAJANAGARA DISTRICT - 571 111.
8. SRI.N.S NAGESH SHAMARAO KALBURGI
AGED ABOUT 45 YEARS,
MAIN PARTNER, G-4 ENTERTAINMENT
& COMMUNICATIONS
NO.20, 1ST FLOOR, A.M.LANE, CHICKPETE,
BANGALORE - 560 053.
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9. SRI. SUDARSHAN
AGED ABOUT 35 YEARS,
NISARGA ELECTRONICS, (OPP TO
MARI TEMPLE) NEAR OLD BUS STOP
BHUJANGESHWARA LAYOUT,
CHAMARAJANAGARA -7.
10. SMT.MANJULA
AGED ABOUT 47 YEARS,
C/O. SRI. M.C. PRAKASN,
CHOWDESHWARI CABLE NETWORK,
C-4, MANJUNATHANAGAR,
KOLLEGALA-11.
11. SRI. M.C. PRAKASH
AGED ABOUT 51 YEARS,
PUMP OPERATOR, KABINI WATER
DEPARTMENT, RESIDING AT C-4
MANJUNATHANAGAR, KOLLEGALA-11.
... RESPONDENTS
(R1 - PARTY -IN-PERSON,
R2 TO R5 ARE DELETED VIDE ORDER DT.14.03.13
R6-R11 ARE SD.,)
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDERS DATED:24.01.2012 PASSED ON I.A.NO.4 IN
O.S.190/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC, KOLLEGALA, REJECTING THE I.A.NO.4 FILED U/O-7,
RULE-11(d) OF CPC.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
First defendant in OS.No.190/2011 on the file of Civil Judge (Jr.Dn), Kollegal, has come up in this petition impugning the order dated 24.1.2012 in rejecting his application, IA.4 filed -4- under Order 7 Rule 11(d) of CPC on the ground that dispute between the parties will have to be decided before TDSAT under the provisions of Telecom Regulatory Authority of India Act 1997 (TRAI ACT for short) since dispute is between service provider and a cable operator.
2. Brief facts leading to this Revision Petition are as under:
The Revision Petitioner herein is multi system operator, the first respondent is a cable operator. There appears to be certain dispute between them with reference to Signal provided by appellant to first respondent to service connection provided to the consumers/TV viewers. It is stated that there are several differences between the plaintiff in original suit and defendants therein. According to plaintiff, the said differences has resulted in financial loss to him and the same is required to be quantified in the suit filed by him against the appellant herein and also other defendants in the said original suit. In the said original suit written statements are filed by defendants. It is at the stage of framing of issues.-5-
3. It is seen that an application is filed by 1st defendant in the said suit under Order 7 Rule 11(d), CPC seeking rejection of plaint on the ground that dispute between the parties is governed by the provisions of TRAI Act 1997 and there is specific bar under Section 15 of the said Act ousting the jurisdiction of Civil Court to decide the dispute between the parties in that behalf. The said application came to be dismissed by the court below. Being aggrieved by the same the present Revision Petition is filed by the first defendant.
4. The learned Counsel for Revision Petitioner while reiterating the grounds urged in the application filed by him before court below tried to substantiate his contention with reference to Section 14 and 14(a) of the TRAI Act, wherein it provides for the disputes that the appellate authority can decide ie., the dispute between; (i) licensor and licecee, (ii) between two or more service providers and (iii) between a service provider and a group of consumers. The learned counsel for Revision Petitioner took this court through the definition of the words, 'licensor', 'service providers', 'cable operators' as defined in Telecommunication (Broadcasting and -6- Cable Service) Inter Connection Regulations 2004, wherein in Section 2 the word 'broadcaster' is defined under clause (e), 'broad casting service' is defined under clause (f), 'cable operator' is defined under clause (g) and that of 'multi system operator' is defined under clause(m). By taking this court through aforesaid definition and provisions of law Revision Petitioner tried to convince this Court that the dispute between first respondent (plaintiff before the court below) and Revision Petitioner (first defendant before court below) would come under the provisions of TRAI Act 1997, the competent authority to decide the same would be TDSAT and not City Civil Court in view of the ouster of jurisdiction under Section 15 of the TRAI Act.
5. Per contra, first respondent, who is party-in-person in this matter tried to substantiate the rejection of application on the ground that the dispute between revision petitioner and himself is not covered under the provisions of Section 14 of the TRAI Act, inasmuch as, he being a cable operator, the right of TDSAT to adjudicate the disputes as provided under Section 14 would not cover the disputes that arise between multi system -7- operator and cable operator as could be seen from the relevant section itself.
6. In support of his case, the learned counsel for Revision Petitioner rely upon the judgments of Apex court in the matter of Union of India -vs- Tata Teleservices (Maharashtra) Ltd., reported in 2007(7) SCC 517, in the matter of Music Broadcast Private Limited and Ors., -vs- Union of India (UOI) and Ors., reported in 2005(4) CompLJ 565 (Del), Akash Cable T.V.Network Private Limted rep.by Managing Director -vs- Telecom Dispute Settlement and Appellate Tribunal & Ors., reported in 2006(4) ALD 707 and an unreported judgment rendered by Madras High Court in the matter of M/s.Sun TV Network Ltd., -vs- M/s.Royal Cable Vision.
7. On going through the aforesaid judgments, it is seen that the Apex court in the matter of Union of India -vs- Tata Teleservices (Maharashtra) Ltd., at paragraph 6 has reverted to Section 14 and 14(a) and has dealt with Section 15 of the TRAI Act in respect of disputes that could be decided by appellate tribunal established under the TRAI Act i.e, TDSAT. On going -8- through the same it is seen that essentially all those disputes are disputes between service provider and its customer as contemplated under Section 14 of the Act. Obviously it is made clear that the dispute which is between the Revision Petitioner and the first respondent does not come under the provisions of Section 14 and therefore, filing of suit by first respondent herein in seeking rendition of accounts regarding service fee received from respondents 1, 2, 3, 4, 6 and 7, with respect to signal transmitted to them for the benefit of their respective customers that is consumers/TV viewers and also regarding permanent injunction restraining respondents 1, 2, 3, 4 and 5 from disconnecting signal provided to him vide order of Deputy Commissioner dated 5.7.2011 and other related reliefs is just and proper.
8. Further, on going through the reliefs sought in original suit it is clearly seen that said dispute is outside the purview of TDSAT and it is within the domain of Civil Court where factual position regarding the transaction between parties will have to be decided by allowing them to submit their evidence with regard to the transaction that is entered in to -9- between them with respect to signals provided by the first defendant to the plaintiff and others and also regarding the amount received there from and further the balance payments that is required to be paid by the first defendant. Those are the matters which can be decided only in full fledged trial that will have to be conducted in the court below. In that view of mater, the contention of the Revision Petitioner does not stand to reason.
9. In support of his contentions the first respondent relied upon the judgments, in the matter of North Delhi Cable Network Pvt.Ltd., & Anr., -vs- M/s. Master Cable Network and in the matter of Silver Line Broadband Services Pvt.Ltd., -vs- Star Den Media Services Pvt.Ltd., which are decided by TDSAT. It is seen in North Delhi Cable Network Pvt.Ltd., it is observed by TDSAT that where question of fact is required to be decided the parties are required to approach Court of law instead of TDSAT. In Silver Live Broadband Services Pvt.Ltd., it is further observed that interest of justice would be sub-served if a direction is issued for carrying out a joint survey for the purpose of arriving at a subscriber base so as to enable the
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parties to negotiate on the basis thereof and execute an agreement for supply for signals to the network of the petitioner. In that view of mater, it is made clear that the contention urged by the Revision Petitioner that the dispute between the Revision Petitioner and the first respondent would come within the domain of TDSAT proved to be incorrect in view of the observations made by TDSAT in the aforesaid two judgments where the dispute was between the cable operator and service provider.
10. It is further seen that the Apex Court in the matter of Union of India -vs- United Telecom Service Providers of India, reported in (2011) 10 SCC 543 has held as under:
"Ss.14(a)(i), 2(e) and (ea) - TDSAT's power to decide any dispute between licensor and licensee, held, restricted only to interpretation of terms of telecom licence, but not their validity - Word "any" in S.14(a)(i) - Import of - Definitions of "Licensor" in S.2(e) and "licensee" in S.2(ea), held, are exhaustive, hence, TDSAT can adjudicate dispute between licensor and a licensee only after a person had entered into a licence agreement and become a licensee - Hence, TDSAT has no jurisdiction to
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decide upon validity of terms and conditions incorporated in licence of a service provider - It has jurisdiction only to decide "any" dispute on interpretation of terms and conditions of licence, (2011) 10 SCC 543-F"
11. In the light of aforesaid observation of the Supreme Court, if the Revision Petitioner is seeking exclusion of the jurisdiction of Civil Court in deciding the suit, he should furnish an agreement/undertaking entered in to between himself and first respondent herein to substantiate that there is a clear agreement between the parties submitting themselves to the jurisdiction of TDSAT. Unless such agreement is there, it is not open for Revision Petitioner to insist that dispute between himself and first respondent herein will have to be submitted to TDSAT.
12. In the light of aforesaid judgments if order impugned is looked in to, it is clearly seen that the court below has rightly rejected the application filed by Revision Petitioner after going through the provisions of law and also judgments rendered by Apex court and various other courts in that behalf.
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13. Accordingly, on going through the order impugned it is seen neither there is irregularity nor illegality which calls for interference of this Court in this Revision Petition, hence, the same is dismissed.
Sd/-
JUDGE nd/-