Bangalore District Court
M/S.Vinayaka Enterprises vs M/S.Modern Satelite Vision on 28 October, 2016
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY:
(CCH.18)
Dated this the 28th day of October, 2016.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.7596/2014
PLAINTIFFS: 1. M/s.Vinayaka Enterprises
No.12, 1st Cross, Kamakya
Layout, 1st Block, 4th Phase, BSK
III stage, Bangalore-560 085.
Rep. by its Propritix,
Smt.Tungamma Gundu Rao
2. Smt.Tungamma Gundu Rao
W/o.Late T.S.Gundu Rao
Aged about 82 years
R/a.No.12, 1st Cross, 1st Block,
4th Phase, BSK III stage,
Bangalore-560 085
(By Sri.V.Manjunath, Advocate)
-VS-
DEFENDANTS : 1. M/s.Modern Satelite Vision
No.87, II Main, 6th Block, III
Phase, BSK III Stage,
Bangalore-560 085. Rep. by its
Proprietrix Smt.Saroja Panicker
2 O.S.No.7596/2014
2. Smt.Saroja Panicker
W/o.Lae Dhamodher Panicker,
Aged about 90 years
3. Mr.Sunil Kumar.D.P.
S/o.Late Dhamodar Panicker
Aged about 54 years
4. Sri Sudhish Kumar.G.S.
S/o.Sri P.Gopinathan
Aged about 42 years
Defendants No.2 to 4 having
Residential address No.87, II
Main, 6th Block, III Phase, BSK
III Stage, Bangalore-85.
(By Sri.S.S., Advocate)
Date of Institution of the suit : 9.10.2014
Nature of the Suit : Money Suit
Date of commencement of recording
of evidence : 31.05.2016
Date on which the Judgment was
pronounced : 28/10/2016
Year/s Month/s Day/s
Total Duration : 00 02 19
3 O.S.No.7596/2014
JUDGMENT
Plaintiffs have filed this suit for the recovery of Rs.85,58,966 with court costs, current and future interest @ 12% p.a. from the date of suit till realization, for relief of permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of plaintiffs over suit schedule property.
2) The case of plaintiffs in nutshell is that plaintiff No.1is the proprietary concern engaged in cable TV Satellite network business, and plaintiff No.2 is its proprietrix. During 2001, defendants approached plaintiffs and obtained Maintenance Agreement dtd:01.06.2001 in respect of cable T.V. network i.e. suit schedule property pertaining to network business in network area consisting of Banashankari III Stage, Bangalore, centered at No.12, 1st Cross, Kamakya layout, 5th Block, 4th phase, BSK III Stage, Bangalore. Defendants approached the plaintiff to assist her cable network business for commission and created this 4 O.S.No.7596/2014 agreement, which was only a sham document and as such it was not acted upon by plaintiffs at any point of time. Defendant No.4 was in the custody of created documents. Hence, plaintiffs were constrained to terminate the same formally in accordance with law. 1st Defendant filed O.S.No.3731/2007 on 22.05.2007 against the plaintiffs and others and obtained an order of temporary injunction against the plaintiffs. During pendency of the said suit, the present plaintiffs filed O.S.No.4346/2007 in respect of the same subject matter of the suit. But it was dismissed for non- prosecution. In the meanwhile, defendants filed another suit in O.S.No.6481/2007 against the plaintiffs and others for the relief of declaration and permanent injunction in respect of same subject matter of the suit. The said suit was contested and dismissed on merits on 22.4.2014. In the said suit, an observation was made that defendants agreed to undertake the maintenance of cable network on the conditions mentioned in the agreement dtd:1.6.2001. As per the said agreement, defendants were liable to pay 5 O.S.No.7596/2014 monthly consolidated amount of Rs.60,000/- to plaintiffs. It was also agreed that the defendants have to pay the amount regularly for cost of main signal changes, technical and administrative costs, and maintenance charges, etc., as per clause (9) of the agreement. It was also agreed that defendants have to spend every month for improving and upgrading the present network to ensure reaching quality satellite signals to all its members. However, defendants ultimately failed to fulfill said condition and failed to pay the consolidated charges of Rs.60,000/- regularly. Since May, 2007 they have not paid the said charges. As on 3.12.2010, the defendants were due a sum of Rs.3,32,986/- to plaintiffs. In view of observations made in O.S.No.6481/2007 and specific admission made by defendant in O.S.No.3630/2014, the contract between the plaintiff and defendants dtd:1.6.2001 is terminated and frustrated and hence non-est in the eye of law. In view of non fulfillment of contractual obligations by defendants, M/s.INDUSIND MEDIA & COMMUNCIATIONS LTD., had issued demand notice to 6 O.S.No.7596/2014 plaintiffs. The Entertainment Tax Officer, 3rd Circle, Bangalore also issued notice claiming entertainment charges from 2006 to 2011. The authorities have also invoked Karnataka Entertainment Tax Act, 1958 and issued notice on demand under section 6(a) of the said Act. Thus, plaintiffs have violated the terms and conditions and for the said reason, O.S.No.6481/2007 was dismissed. The defendants are due a sum of Rs.64,11,822/- towards signal fee charges and Rs.21,47,144/- towards royalty. On 20.8.2014, plaintiffs approached defendants to pay the above said amount but they refused to pay it. Under these circumstances, defendants are not entitled to continue the cable business with plaintiffs no more and as such plaintiffs are terminating business on their own in the suit schedule property since 22.4.2014. However, defendants tried to interfere with peaceful possession and enjoyment of the network business of plaintiffs. On 30.8.2014 at about 4.00 p.m., defendant came near suit schedule property and made illegal attempts to collect subscription charges from customers by making 7 O.S.No.7596/2014 false claim. Plaintiffs have adhered to the Regulations, 2012 imposed by the Government of India. Plaintiffs resisted the illegal act of defendants; however, the defendants threatened plaintiffs that they will visit again at any time and forcibly take away the network business from plaintiffs. Hence, the suit for appropriate relief.
3) The defendants filed their written statement wherein they admitted the Maintenance Agreement dtd:1.6.2001 and its clauses. They also admitted about filing of suits between parties and results of those suits. However, they contended that the suit is not maintainable either in law or on facts. The suit is bad for mis-joinder of parties. The claim of the suit is barred by law. They denied all other averments made in the plaint. However, admitted that the agreement between parties is frustrated due to the change in law and thereby it is terminated. They further contended that from 2006 to 2011, defendants have not availed signals from M/S.Indusind Media And 8 O.S.No.7596/2014 Communications Ltd., but availed signals from different services and even it is within the knowledge of plaintiffs. The defendants suffered heavily due to the disturbances and nuisance created by the plaintiffs at the work place by damaging the property. After digitalization, the Maintenance Agreement said to have been entered between the parties got frustrated. Defendants suffered huge loss subsequent to digitalization and invested substantially towards services on its customers after digitalization. Plaintiffs never approached defendants and plaintiffs are not entitled for any money from defendants. This suit is only a counter-blast to the suit filed by 1st defendant against the 1st plaintiff and the son of 2nd plaintiff in O.S.No.3630/2014. It is only an after though and only with an intention to compel defendants to succumb to illegal demands of plaintiffs. The 1st defendant being aggrieved by the illegal acts and illegal meddling of plaintiffs has filed O.S.No.3630/2014 against the plaintiffs for the relief of permanent injunction. Plaintiff is carrying out the business at suit schedule property as pleaded in the plaint. 9 O.S.No.7596/2014 Defendant No.2 & 4 are in no way concerned with the business of 1st defendant. 3rd defendant is its proprietor. Hence, suit against defendant No.2 & 4 is not all maintainable. Hence, prayed for dismissal of suit with costs.
4) From the above facts, following issues were framed:
ISSUES
1. Whether plaintiffs prove that the maintenance agreement dated 01-06-2001 is a sham document and thus it was terminated by plaintiff in accordance with law?
2. Whether plaintiffs prove that defendants have not made monthly consolidated charges of Rs.60,000/- from May 2007 and totally they were due a sum of Rs.3,32,986/- as on 03-12-
2010?
3. Whether plaintiffs further prove that defendants are due a sum of Rs.64,11,822/-
towards Signal fees/charges and Rs.21,47,144/- towards Royalty?
4. Whether plaintiffs are entitled for interest at 12% p.a. as prayed in the plaint?
10 O.S.No.7596/2014
5. Whether defendants prove that suit is bad for mis-joinder of defendant No.2 and 4 as parties to the suit?
6. Whether suit is barred by limitation?
7. Whether plaintiffs prove that they are in lawful possession of suit schedule property as on the date of suit?
8. Whether plaintiffs further prove the alleged interference from defendants?
9. Whether plaintiffs are entitled for suit claim?
10. Whether plaintiffs are entitled for the relief of permanent injunction as prayed in the plaint?
11. What order or decree?
5) On behalf of Plaintiffs, 2nd plaintiff who is the proprietrix of 1st plaintiff is examined as P.W.1, got marked Ex.P.1 to Ex.P.7 and closed her side. On behalf of defendants, 4th defendant is examined as D.W.1, 3rd defendant is examined as D.W.2, got marked Ex.D.1 to Ex.D.3 and closed their side.
11 O.S.No.7596/2014
6) Heard arguments of both sides.
7) Findings of this Court on the above issues are as under for the following:-
Issue No.1: - In the negative; Issue No.2: - In the negative; Issue No.3: - In the negative; Issue No.4: - In the negative; Issue No.5: - In the negative; Issue No.6: - Partly in the affirmative; Issue No.7: - In the negative; Issue No.8: - In the negative; Issue No.9: - In the negative; Issue No.10: -In the negative; Issue No.11: - As per final order for the following:-
REASONS
8) Issue No.6:- This issue is considered first, as it touches with the point of limitation.
9) Plaintiffs have filed this suit for recovery of Signal charges and Royalty from May, 2007 to May, 2014 i.e., for a period of seven years. The admitted facts are that there was 12 O.S.No.7596/2014 a Maintenance Agreement dtd:1.6.2001 was came into existence between plaintiffs and defendant No.1 represented by defendant No.2. Plaintiff has produced certified copy of said agreement as per Ex.P.1. In this agreement, as per Clause No.2, plaintiff is entitled for Rs.60,000/- as Consolidated amount every month by cheque on or before 15th during life time of both parties network business. As per clause No.3, this agreement can be revised on mutually agreed terms after the period of ten years from the date of agreement. In Clause No.4 of this agreement, the plaintiff was entitled to terminate the agreement if there is default of payment of consolidated amount continuously for three months.
10) Even in Clause No.13 it is further stated that this agreement shall remain in force till the life time of both business network business.
11) Thus, apparently as per the clause No.2 of the agreement, plaintiff is entitled for consolidated amount of Rs.60,00/- every month through cheque and she should 13 O.S.No.7596/2014 receive it on or before 15th of the month. Hence, it is very clear that every month, the amount of Rs.60,000/- was due to plaintiff and if said amount has not paid to plaintiff, on or before 15th of the month; then it becomes due.
12) Based on this, plaintiff has filed a Tabular column in the plaint at para No.6 and calculated the Royalty amount due to her from May, 2007 and also calculated interest at 1% per month on the said amount and calculated the compound interest on the amount due to her from May 2007 onwards till May, 2014 totally amounting to Rs.21,47,144/-.
Hence, it is to be held that every month 15th, the amount become due to plaintiff. If plaintiff has to claim this amount on May 2007 of Rs.60,000/- which is due on or before 15th May 2007, then, plaintiff has to file the suit for its recovery on or before 14th May, 2010.
13) The learned counsel for the plaintiff submitted that the Article 1 of the Limitation Act applies. However on perusal of Article 1 of the Limitation Act, this court noticed that said Article applies only if there is mutual, open and current 14 O.S.No.7596/2014 account between the parties where there have been reciprocal demands between the parties. However, there are no such reciprocal demands in the instant case and here there is no mutual, open and current account between the parties. Hence, this court holds that Article 1 of the Limitation Act is not applicable to the facts on hand.
14) Learned counsel for plaintiff further submitted arguments that Section 14 of the Limitation Act would come into rescue of plaintiff. He has submitted that there was series of suits between the parties i.e. O.S.No.3731/2007 and O.S.No.6481/2007 were filed by the defendants against plaintiffs and others in respect of the same subject matter and plaintiffs have filed O.S. No.4346/2007 in respect of same subject matter against some defendants.
15) Learned counsel for plaintiffs submitted that the judgment and decree passed in O.S.No.6481/2007 is only on 22.04.2014. Plaintiff was prosecuting those suits in due diligence with good faith. Hence, the period spent in prosecuting those three suits is to be excluded while 15 O.S.No.7596/2014 computing the period of limitation and thus, the suit filed by plaintiffs is well within limitation.
16) In this regard, plaintiffs' counsel relied on the citation reported in AIR 2003 SC 4106 between Arm Group Enterprises V/s. Waldorf Restaurants and AIR 2004 Kerala 91 Mac N Hom Systems V/s. Vaidya Ratnam. The facts and circumstances of the present case and said citations are entirely different.
17) Plaintiffs' counsel further relief on another citation reported in AIR 1995 Karnataka 366 Revanasiddppa V/s Malkajappa and Others. Said ruling is come into existence pertaining to obtaining certified copies of judgment and decree. However, that is not at all the situation in present suit.
18) To apply Section 14 of the Limitation Act, plaintiffs have to establish that they were prosecuting with due diligence in another civil proceedings against defendants in respect of the same relief in good faith and the matter in issue in that suit and proceedings should be the same in 16 O.S.No.7596/2014 issue in the present suit. Then only, the period spent in prosecuting the earlier suit or proceedings shall be excluded. But in the instant case, the two suits were filed by the defendants against plaintiffs in O.S.No.3731/07 & O.S.No.6481/07 for the relief of permanent injunction; Declaration and permanent injunction respectively and the issues in those suits are definitely not the same issues in the present suit.
19) Plaintiff's counsel has produced certified copy of Judgment and Decree of O.S.No.6481/07 and on perusal of it, this court noticed that except the issue regarding limitation and mis-joinder of parties; all other material issues framed in said suit are entirely different from the issues of present suit.
20) O.S.No.3731/07 was filed by defendants for the relief of permanent injunction against second plaintiff and others; first plaintiff was not party in that suit. Further, as per order passed in MFA No. 11500/07 dated 14.12.2007, said suit was withdrawn on or before 05.01.08. Issues 17 O.S.No.7596/2014 framed in said suit are not produced in this suit. Even otherwise, within 3 years from the date of dismissal of said suit, the present suit was not filed.
21) Likewise the suit filed by the present plaintiff was in O.S.No.4346/07 and it was dismissed for default. Plaintiffs have not produced any documents pertaining to the said suit filed by them to show that what was the relief claimed in that suit and when it was dismissed. Under these circumstances, the suit filed by the plaintiff in O.S.No.4346/2007 cannot come into the aid of plaintiff to rescue her from the clutches of limitation and plaintiff cannot take shelter U/S.14 of the Limitation Act. Furthermore, the suits filed by the defendants are for the different reliefs.
22) Furthermore, while passing interim orders in O.S.No.6481/2007 on 4.6.2009 at page No.23 at para No.16, it was held as follows;
"On the basis of the details furnished by the plaintiffs regarding 18 O.S.No.7596/2014 payment of amount it goes to show that from November 2008, the defendants are receiving the cheques sent by the plaintiffs. If the defendants have got any grievances about the arrears of the amount which was sent by the plaintiffs and not claimed by the defendants they can take steps for recovery of the said amount before the proper forum."
23) Thus, even there is specific direction given to present plaintiffs to approach proper forum for recovery of money. Under these circumstances, at any stretch of imagination, this S.14 of the Limitation Act will not come to the aid of plaintiff. Hence, above two rulings relied by plaintiffs' counsel are not helpful for plaintiff to prove that the suit is well within limitation.
24) Learned counsel for plaintiff further submitted his arguments that S.18 of the Limitation Act will rescue the plaintiffs and that would save the period 19 O.S.No.7596/2014 of limitation. S.18(1) of the Limitation Act reads as follows:-
"S.18. Effect of acknowledgement in writing (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of
liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed."
25) According to this provision of law, within the prescribed period of limitation, defendants ought to have given acknowledgement of debt in writing in favour of plaintiffs. However, there is no such acknowledgement of 20 O.S.No.7596/2014 debt forthcoming. Hence, the above submission of plaintiff's counsel is not tenable.
26) Article 27 of the Limitation Act is applicable to the facts of the case. According to Article 27 of the Limitation Act, the period of limitation is three years when the time specified arrived for the compensation for breach of a promise to do anything at a specified time. Thus, according to Ex.P.11, the specified period of time i.e., on or before 15th of every month, defendants agreed to pay Rs.60,000/- to plaintiff. Hence, the suit for recovery of consolidated amount of Rs.60,000/- for May, 2007 ought to have been due on or before 14th May, 2007. However, the suit is filed on 9.10.2014. Hence, the payments claimed by the plaintiffs towards Royalty from May, 2007 to September, 2011 is clearly barred by limitation.
27) For October, 2011 plaintiff could have filed the suit on or before 15th October, 2014 and this suit is filed on 9.10.2014. Hence, the suit for recovery of amount from October, 2011 to May, 2014 is not barred by limitation. 21 O.S.No.7596/2014
28) Likewise, plaintiff has also prayed for signal charges from May 2007 to May 2014 amounting to Rs.52,272/- per month. There is no mention in agreement that plaintiff is entitled for receipt of signal charges. However, in the cross-examination at para No.11, it is suggested to P.W.1 that after commencement of Agreement; from 2001 to May 2006, 1st defendant used to pay signal fee charges of services to her and she was paying it in turn to M/S.Indusind Media And Communications Ltd., But suit of plaintiff is barred by limitation even for this relief from May, 2007 till September, 2011. Hence, plaintiff can claim her relief only from October, 2011 till May 2014 as claimed in plaint.
29) The relief of permanent injunction is being recurring cause of action and even according to plaintiff, cause of action for the relief of permanent injunction arose only in the month of August 2014 and she has filed this suit during October 2014. Hence, the suit for the relief of permanent injunction is not barred by limitation. 22 O.S.No.7596/2014 Accordingly, Issue No.6 is answered partly in affirmative.
30) Issue No.1:- Plaintiff contended in para No.3 of the plaint that defendants approached the plaintiffs in 2001 to assist her cable network business for commission created an agreement dtd:1.6.2001 claiming as maintenance agreement which was only a sham document and as such not acted upon by plaintiff at any point of time and hence plaintiffs were constrained to terminate the agreement formally in accordance with law.
31) To substantiate the above contention of plaintiff, plaintiff has stated the above said facts in her affidavit evidence at para No.3. However, plaintiff has not produced any document to show that when and how plaintiff terminated the said agreement.
32) It is to be noted here that it is an admitted fact that defendants have filed O.S.No.6481/2007 against plaintiffs for the relief of declaration and permanent injunction. Plaintiff has produced certified copies of 23 O.S.No.7596/2014 judgment and decree passed in the said suit as per Ex.P.6 &
7. They reveal that present defendants have filed said suit against one of the present plaintiffs and others for the relief of declaration and permanent injunction. An observation made in said judgment at para No.22 at page No.39. It is as follows;
"when the plaintiff No.1 company has acted against the terms and conditions of Ex.P.1, under such circumstances, the defendants have got right to revoke that agreement.
That on 18.7.2008, the defendant company got issued a legal notice to the plaintiffs stating that the plaintiff No.1 company has not performed his part of contract as agreed under Ex.P.1. So, it has informed that it is going to terminate its agreement dated 1.6.2001 immediately".
33) The office copy of said notice is not produced in this suit. But only from the above observation of the learned 24 O.S.No.7596/2014 judge in O.S.No.6481/2007, it can be inferred that plaintiff has issued legal notice on 18.7.2008 to defendants and terminated the agreement. Whether said agreement was validly terminated by the plaintiffs or not cannot inferred because its copy is not produced in this suit. It appears that office copy of the said legal notice was not produced in the said suit also.
34) Defendants in this suit have produced certified copies of orders passed in O.S.No.6481/2007 on I.A. No.V, VI & VII as per Ex.D.1 and also produced certified copy of orders passed on I.A.No.IX in O.S.No.6481/2007 as per Ex.D.2. While passing orders on I.A.No.V, VI & VII at para No.4, page No.18, it is observed that the termination notice by present plaintiffs was issued on 29.5.2007 and agreement was determined/terminated in April 2007. Even in said orders, it is observed that termination notice was issued on 18.07.08 also. When termination notice is not produced by present plaintiff and when there are different dates of termination as observed by the learned judge while passing 25 O.S.No.7596/2014 orders on Interim applications and while passing judgment in O.S.No.6481/2007, it cannot be said that on which date actually the plaintiffs terminated the agreement with defendants.
35) Except in para No.3, in all subsequent paragraphs in plaint and also in the evidence, the plaintiffs categorically relied on the Maintenance Agreement as per Ex.P.1 and only based on the said agreement, plaintiffs claim Rs.60,000/- per month as consolidated amount payable to plaintiffs by defendants. Under these circumstances, this Court holds that plaintiffs failed to prove that the Maintenance Agreement dtd:01.06.2001 is a sham document and also failed to prove that plaintiff has validly terminated this agreement. Accordingly, Issue No.1 is answered in negative.
36) ISSUE NOs.2 & 3:- These issues are taken together as they require common discussion. Plaintiff contended that from May, 2007, defendants have not paid consolidated charges of Rs.60,000/- and thus there is due of Rs.3,32,986/- as on 3.12.2010. In this regard, plaintiffs 26 O.S.No.7596/2014 mainly rely upon the Tabular column made in the plaint and P.W.1 also stated it in her affidavit evidence. According to this Tabular column, up to December, 2010, the amount due from defendants towards Royalty is Rs.10,38,193/-. But plaintiff stated in her plaint and also in her affidavit evidence that there is an observation by the Court in O.S.No.6481/2007 that as on 3.12.2010, Rs.3,32,986/- is due by the defendants. But it appears that there is no such specific finding given in the judgment and decree passed in O.S.No.6481/2007. Anyway present plaintiffs have not claimed recovery of said amount in that suit. Hence, even if there is any such observation in the said judgment that cannot be considered here. Plaintiffs have to establish their case independently in this court.
37) Plaintiffs have produced the certified copies of 175 receipts issued by second plaintiff as per Ex.P.4. These receipts were issued by the plaintiffs to defendants whenever they received money from defendants. These receipts are issued from 30.4.2002 till 12.12.2006. 27 O.S.No.7596/2014
38) Earlier defendants have filed O.S.No.3731/2007 and against the interim order passed on 31.8.2007 in the said suit, the present plaintiff No.2, her husband and her son had preferred MFA No.11600/2007 and in the said MFA, the present defendants who were plaintiffs in O.S.No.3731/2007 have filed memo that they are going to withdraw the suit itself and in view of that undertaking given by them, said MFA was disposed off with a direction to them to withdraw O.S.No.3731/2007 on or before 5.1.2008.
39) The present plaintiffs have filed memo in the said MFA because they have already filed suit in O.S.No.6481/2007. Hence, in the said MFA, present defendants have not given any admission in favour of present plaintiffs.
40) Defendants in this suit have produced certified copies of orders passed in O.S.No.6481/2007 on I.A. No.V, VI & VII as per Ex.D.1 and also produced certified copy of orders passed on I.A.No.IX in O.S.No.6481/2007 as per Ex.D.2.
28 O.S.No.7596/2014
41) Except producing these receipts, plaintiffs have not produced any other documents to show that from May, 2007 onwards defendants have not paid the consolidated amount to plaintiffs. There is a stray observation in para No.14 of page No.21 while passing order on I.A.No.V, VI & VII in O.S.No.6481/2007 that from November, 2008 to May, 2009, present defendants have paid cheques which were encashed by the present plaintiffs. Under these circumstances, when no document is produced by the plaintiff, it cannot be said that plaintiffs have proved that since May, 2007 defendants have not made payment of consolidated amount of Rs.60,000/-.
42) D.W.1 is 4th defendant in the present suit and is the Manager in defendant No.1 firm. He has stated in his cross-examination at para No.24 that they have paid this consolidated amount of Rs.60,000/- p.m., to plaintiffs regularly and might paid up to 2001. He has also deposed in the same paragraph that usually they were making payments through cheques but some times, payments were 29 O.S.No.7596/2014 also made through cash. He further deposed that 1st defendant is an income tax assessee. But he does not know whether payments made by plaintiff were reflecting in Income Tax Returns of defendants. As D.W.1 does not know several transactions, 3rd defendant who is the proprietor of 1st defendant firm who is well versed about facts was again examined as D.W.2.
43) D.W.2 has deposed in his cross-examination at para No.22 that in the year 2011 they made last payment towards maintenance charges levied as per Ex.P.1. He has also deposed that they were making payments through cheques and cash and whenever they made payments through cash plaintiff was issuing receipts and he can produce those receipts and bank statement to prove the payments made to plaintiff through cheques. He denied the suggestion that since May, 2007 they have not made payments to plaintiffs.
44) In the further cross-examination at para No.26, again D.W.2 has deposed that after filing of this suit, they 30 O.S.No.7596/2014 have not made any payments to plaintiffs. He has deposed that after Telephone Regulatory Authority of India Regulation, 2012 came into existence, defendants have not made payments to plaintiffs and defendants are forbidden to make such payments.
45) In para No.27 again DW-2 has deposed that till June or July, 2013, they made payments to plaintiff. He has deposed that he has not made any efforts to get fresh agreement with plaintiffs after termination of the agreement of 2001.
46) While discussing issue No.6, this Court already held that the suit of plaintiff from May, 2007 till September, 2011 is barred by limitation and plaintiffs' claim only from October, 2011 till May, 2014 could be considered.
47) As per Clause No.2 of the Maintenance Agreement, "both parties agreed that defendants shall pay every month an amount of Rs.60,000/-by cheque on or before 15th during life time of both parties network business". In clause No.3, it is further stated that "it is mutually agreed 31 O.S.No.7596/2014 between both the parties that this agreement can be revised on mutual agreed terms for a period of 10 years from the date of this agreement". Even in Clause No.13, it was stated that "this agreement shall remain in force till life time of both the parties network business".
48) On perusal of these clauses, it is crystal clear that this agreement shall be in force during life time of both parties when they are doing this network business. If this network business is not being done by any of these parties, then it amounts to an end to the agreement.
49) As per amended provisions of Cable T.V. Network Commission Act, 1995 w.e.f 25.10.2011 as per the Act 21 of 2011 earlier Section 4 of the Act was substituted. This Section 4 of the amended Act is to be looked into to decide the present case. It read as follows;
4. Registration as cable operator - (1) Any person who is desirous of operating or is operating a cable television network may apply for registration or renewal of registration, as a cable operator to the registering authority. 32 O.S.No.7596/2014 (2) The cable operator shall fulfill such eligibility criteria and conditions as may be prescribed and different eligibility criteria may be prescribed for different categories of cable operators (3) On and form the date of issue of notification under Section 4-A, no new registration in a State, city, town or area notified under that section shall be granted to any cable operator who does not undertake to transmit or re-transmit channels in an encrypted from through a digital addressable system.
(4) An application under Sub-Section (1) shall be made in such form and be accompanies by such documents and fees as may be prescribed.
(5) On receipt of the application, the registering authority shall satisfy itself that the applicant has furnished all the required information prescribed under sub-section (4) and on being so satisfied, register the applicant as a cable operator and grant him a certificate of registration or renew its registration, as the case may be subject to such terms and conditions as may be prescribed under Sub-Section (6);
33 O.S.No.7596/2014
Provided that the registering authority may, if it is satisfied that the applicant does not fulfill the eligibility criteria and conditions prescribed under Sub-Section (2) or the application is no accompanies by necessary documents or fees as prescribed under Sub-Section (4) and for reasons to be recorded in writing, by order, refuse to grant its registration of renewal, as the case maybe, and communicate the same to be applicant;
Provided further that the applicant may prefer an appeal against the order of the registering authority refusing grant or renewal of registration to the Central Government.
(6). Without prejudice to the compliance of eligibility criteria for registration of cable operators, the Central Government may prescribe, having regard to the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, foreign relation or contempt of court, defamation or incitement to an offence, such terms and conditions of registration including additional criteria or conditions to be fulfilled by the cable operator. 34 O.S.No.7596/2014
(7) The central Government may suspend or revoke the registration granted under sub- section (5) if the cable operator violates one or more of the terms and conditions of such registration.
50) The plain reading of this section reveals that all the cable operators shall register themselves before Registering Authority to continue as cable operators or to become cable operators.
51) It is not in dispute that as on the date of execution of agreement as per Ex.P.1, plaintiff was the licensee to run cable operating business and hence had executed this Maintenance Agreement in favour of defendant No.1 and hence defendant No.1 was obliged to pay Rs.60,000/- p.m. to plaintiff. However, when once this substituted section 4 of the Cable T.V. Network Commission Act, 1995 (herein after called as the Act), the cable operators should register themselves before the registering authority to continue to 35 O.S.No.7596/2014 become a cable operators and they should have renew the registration.
52) In the instant case, it is not the case of plaintiffs that at any point of time after the amended Act came into existence i.e., after 25.10.2011, plaintiffs have made any efforts to get registration under this amended Section 4 of the Act or atleast renewed the earlier license issued to the plaintiff. When plaintiff is not the registered license holder to run the cable operating business, there was no occasion for defendants to pay the consolidated amount of Rs.60,000/- to plaintiff from 25.10.2011 onwards. Thus, the agreement as per Ex.P.1 became frustrated.
53) Plaintiffs contended that defendants are due a sum of Rs.64,11,852/- towards signal free/charges. In the tabular form at para No.6 in the plaint, 2nd plaintiff stated that from May 2007 at the rate of Rs.53,272/- is due to plaintiff towards signal fee/charges. Plaintiff has also added interest at 1% p.m. to this amount and compounded the interest quarterly and ultimately arrived at the figure that 36 O.S.No.7596/2014 defendants are due a sum of Rs.64,11,022/- towards signal fee/charges. P.W.1 has deposed the same facts in her affidavit evidence in the same tabular form.
54) To substantiate the above contention, plaintiffs have not produced any document. In the cross-examination, P.W.1 has deposed that she does not know that after May 2006, 1st defendant has changed service provider to Amogha Network. She is not in possession of any receipt for payment of signal fee/charges for M/S.Indusind Media And Communications Ltd. She volunteered that due to heavy rain in the year 2007, some of the documents in her house were ruined. She has deposed that she does not know whether she is in possession of any documents to show that M/S.Indusind Media And Communications Ltd., has supplied signals to the above area for cable networking or not. She has not enquired with M/S.Indusind Media And Communications Ltd., or with 1st defendant for giving duplicate receipts or any other documents to show that the signals were received even after May, 2006 and she has not 37 O.S.No.7596/2014 made payment to M/S.Indusind Media And Communications Ltd. She denied the suggestion that during 2006 itself, she was aware that 1st defendant has changed the service provider to Amogha Networking. Since 2007 to 2011 she has not demanded 1st defendant to pay signal fee/charges and maintenance charges to her.
55) As discussed earlier, plaintiff has produced certified copy of the judgment and decree passé in O.S.6481/2007 as per Ex.P.6. Annexure to this judgment reveals that son of present P.W.1 was examined as D.W.1 in the said suit and he had produced notice dtd:28/3/2011 as per Ex.D.1. In the judgment at para No.15 at page No.24, it is discussed that said Ex.D.1 is the notice issued from M/S.Indusind Media And Communications Ltd., to present P.W.1. Said document is not produced in this suit and hence, this court cannot analyze the recitals of said notice. Hence, as it is, it is to be held that plaintiffs have not produced any document to show that M/S.Indusind Media And Communications Ltd., had issued notice to plaintiffs 38 O.S.No.7596/2014 claiming signal fee/charges of Rs.53,272/- p.m. and further, it does not reveal that whether present plaintiff has paid the amount to M/S.Indusind Media And Communications Ltd.
56) While discussing the issue No.6, this court had already held that all claims of plaintiffs up to September, 2011 even for signal fee/charges is also barred by limitation. Plaintiffs would claim signal fee/charges only from October 2011 till May 2014. But, even for this period also, plaintiffs are not entitled said amount, because, plaintiffs have not produced any document to prove that there is such demand from M/S.Indusind Media And Communications Ltd., and plaintiffs paid said amount towards signal fee/charges to M/S.Indusind Media And Communications Ltd.
57) It is the specific contention of defendants that they have changed the service provider from M/S.Indusind Media And Communications Ltd., to DEN Networks Ltd. and its trade name is Amogha Network. In this regard, as discussed earlier, P.W.1 has deposed that she does not know such changes. Hence, defendants have produced 39 O.S.No.7596/2014 Ex.D.3-letter dtd:15/6/2016 issued by the authorized signatory of DEN Networks Ltd. According to this document, from June 2006, this Den Network Ltd., is providing cable TV signals to defendant No.1 for suit schedule property. It also further reveals that since from 2013 onwards as per TRAI Rules, they are transmitting signals to their authorized Digital Box Members Registered with them and Modern Satellite (defendant No.1) is servicing and maintaining their cable TV signals. These facts show that plaintiff's claim from June, 2007 towards Signal fee/charges is not maintainable and plaintiffs cannot claim said amount, because, defendants have not at all taken Signals from M/S.Indusind Media And Communications Ltd. If signals were taken from M/S.Indusind Media And Communications Ltd., and if plaintiff had paid said amount to M/S.Indusind Media And Communications Ltd., then, only, she can claim from defendants towards said amount, but plaintiff failed to prove this fact.
40 O.S.No.7596/2014
58) The above discussion further reveals that since from the inception of cable TV network in 1995, i.e., from 25/10/2011 onwards, plaintiffs are not entitled to claim any amount from defendants towards signal fee/charges or towards royalty, because, plaintiff is not registered under S.4 of Cable Television Networks (Regulation) Act, 1995. Hence, this court holds that plaintiffs failed to prove that defendants have not paid cable charges of Rs.60,000/- from May, 2007 onwards and defendants are due a sum of Rs.3,32,986/- as on 3/12/2010 and thus, plaintiffs are not entitled for any Royalty or signal fee/charges from the defendants as claimed in the plaint. Accordingly, the Issue No.2 & 3 are answered in negative.
59) Issue No.4:- In view of findings on issue Nos.1 to 3 & 6, this court holds that plaintiffs are also not entitled for interest at 12% as prayed in the plaint. Accordingly, Issue No.4 is answered in negative.
60)Issue No.5:-Defendants contended that defendant Nos.2 & 4 are in no way connected to defendant No.1 and 41 O.S.No.7596/2014 hence, suit against defendant Nos.2 & 4 is not maintainable and thus, suit is mis-joinder of defendant Nos.2 & 4.
61) It is to be noted here that there was an agreement executed between plaintiff and defendant No.1 as per Ex.P.1 in the year 2001; at that time, defendant No.2 was the proprietor of defendant No.1; from that date and even prior to that date, defendant No.4 is the manager of defendant No.1. Defendant No.4 has signed the agreement as witness and he admitted this fact in his cross- examination. Further, in the suit filed by defendants in O.S.No.6481/2007, all the present defendants are parties as plaintiffs. Even at that time, defendant No.3 was looking after the defendant No.1 firm, he made his mother as plaintiff No.2 in that suit and also present defendant No.4 as plaintiff No.4 in that suit. Hence, this court holds that suit against defendant No.2 & 4 is not mis-joinder of parties and thus, defendant Nos.2 & 4 are also proper parties in the suit. Accordingly, Issue No.5 is answered in the negative. 42 O.S.No.7596/2014
62) Issue No.7:- Plaintiffs contended that they are in lawful possession of suit schedule property as on the date of suit. Further, while discussing issue Nos.2 & 3, this court already held that as per Amended Cable Television Networks(Regulation) Act, 1995, plaintiffs are not registered before the appropriate registering authority and thus, they are not entitled to do cable network business. Hence, contention of plaintiffs that they are in possession of suit schedule property and they are running business independently from defendants and they terminated the agreement with defendants cannot be considered as true. Hence, plaintiffs failed to prove that they are in lawful possession of suit schedule property as on the date of suit. Accordingly, issue No.7 is answered in negative.
63) Issue No.8:- When plaintiffs failed to prove issue No.7, there is no question of proving alleged interference from defendants. Even otherwise, plaintiffs have not produced any documentary proof or oral evidence to prove that defendants are forcibly collecting subscription fee from the 43 O.S.No.7596/2014 customers of plaintiff and interfered with their business over the suit schedule property. Accordingly, issue No.8 is answered in negative
64) Issue No.9:- In view of findings on issue Nos.1 to 4 & 6, this court holds that plaintiffs are not entitled for suit claim. Accordingly, issue No.9 is answered in negative.
65) Issue No.10:- In view of findings on issue Nos.7 & 8, plaintiffs are not entitled for the relief of permanent injunction as prayed for. Accordingly, issue No.10 is answered in negative
66) Issue No.11:- In view of findings on issues Nos.1 to 10, this court proceeds to pass the following:-
ORDER The suit is dismissed with costs.
(Dictated to the Stenographer, transcribed and computerized by her, corrected by me in computer and then pronounced by me in the open Court on this the 28th day of October, 2016).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.44 O.S.No.7596/2014
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiffs' side :
P.W.1 - Smt.Tungamma Gundu Rao
(b) Defendants' side :
D.W.1 - Sudhish Kumar.G.S. D.W.2 - Sunil Panicker II. List of documents exhibited on behalf of :
(a) Plaintiffs' side :
Ex.P.1 to Certified copies of maintenance Ex.P.3 agreement, plaint and written statement Ex.P.4 Certified copies of 175 receipts Ex.P.5 Judgment in MFA.11600/2007 Ex.P.6 & Certified copies of Ex.P.7 judgment and decree in O.S.No.6481/2007
(b) Defendants' side :
Ex.D.1 Certified copy of order sheet in
O.S.No.6481/2007
Ex.D.2 Certified copy of order
dtd:23/11/2007 in
O.S.No.6481/2007
Ex.D.3 Original letter dtd:15/6/2016
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
45 O.S.No.7596/2014
Judgment pronounced in
open court vide separate detailed
judgment with the following
operative portion:-
ORDER
The suit is dismissed with costs.
(K.B.GEETHA)
XIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
BANGALORE CITY.