Punjab-Haryana High Court
News Television India Ltd. vs World Vision on 2 April, 2002
JUDGMENT M.M. Kumar, J.
1. This order shall dispose of two cross Civil Revision Petition Nos.5809 of 2001 and 6793 of 2001 one filed by defendant-petitioner namely News Television (India) Ltd. (now known as STAR India Ltd.) and the other filed by the plaintiff namely World Vision. Gurgaon a registered Cable Operator firm. Reference to the facts and details have been made mainly from Civil Revision No.5809 of 2001.
2. Defendant-petitioner has filed the present revision petition against the order dated 7.8.2001 passed by the Additional District Judge, Gurgaon partially affirming the order dated 19.7.2001 passed by the Civil Judge (Junior Division) Gurgaon. The Civil Judge vide his order dated 19.7.2001 while deciding the application under order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity 'the Code') has held that there is a prima facie case against the defendant petitioners and in favour of plaintiff-respondent. The balance of convenience was also held to be in favour of the plaintiff-respondent. It was further held by the Civil Judge that the plaintiff-respondent would suffer irreparable loss because the customers to whom the plaintiff-respondent has been providing the service of beaming various Television channels would hire services of other cable operators. The defendant-petitioner was also restrained from transmitting any programme/advertisement in violation of the programme code / advertisement code as defined under the Cable Television Network Rules 1994 (for brevity 'the Rules') and or in violation of the provisions of the Cable Television Network Regulatory Act, 1995 (for brevity 'the Act'). The Civil Judge also restrained the defendant-petitioner from switching off Star TV channels hired by the plaintiff-respondent subject to the terms and conditions of the agreement in question during the pendency of the suit.
3. Brief facts of the case are that the plaintiff-respondent filed a suit for mandatory injunction and also prayed for consequential relief of permanent injunction alleging that the plaintiff-respondent is a registered cable operator providing cable service to the residents of Palam Vihar, Gurgaon under the name and style of M/s World Vision, Gurgaon. In the suit a direction for mandatory injunction against the defendant-petitioner has been sought to supply a copy of the agreement entered into between the defendant-petitioner and the plaintiff-respondent and to clarify all the queries raised by the plaintiff-respondent in its letter. Further direction sought was that the defendant-petitioner shall furnish an affidavit to the plaintiff-respondent stating that the programme/advertisements transmitted through the plaintiff-respondent on State TV Channels with the recorders and viewing cards do not violate the programme code and the advertisement code of the Rules or any other provision of the Act or any other law of the land. A decree for permanent injunction restraining the defendant-petitioner from transmitting any programme/advertisement involution of the programme code/advertisement code in accordance with the afore mentioned enactments was also sought. Another prayer made was that the defendant-petitioner be restrained from switching off Star TV channels hired by the plaintiff-respondent subject to the terms and conditions of the agreement in question. Alongwith the suit an application under Order 39 Rules 1 and 2 of the Code was filed for ad interim injunction restraining the defendant-petitioner from transmitting any programme/advertisement in violation of the programme code/advertisement code and also from switching off the Star TV channels during the pendency of the suit. The Civil Judge vide its order dated 19.7.2001 allowed the application and granted injunction as has been prayed. On appeal filed by the defendant-petitioner, the Add], District Judge modified the order of injunction but still maintained the restrained order injuncting the defendant-petitioner from switching off transmission of the Star TV Channels during the pendency of the civil suit. Further direction issued by the Civil Judge restraining the defendant-petitioner from transmitting any programme which is against the provisions of the Rules or the Act was not maintained on the ground that there was no mechanism with the defendant-petitioner to stop the programme being telecast from Hong Kong. The order of the Additional District Judge proceeds on the following basis:-
a) the defendant-petitioner has failed to place on record a copy of the agreement entered into between the parties.
b) the defendant-petitioner also failed to put forward clearly the revised rates of transmission because from the record it was clear that quaterly charges of Rs.22,500/-were being paid. The plaintiff-respondent has produced on record a receipt bearing No. 80957 dated 11.2.2000 showing the quarterly charges of Rs.22.500/-. However, the stand taken before the Courts below appears to be that the calculations used to be on the basis of counting per television which was earlier fixed at Rs. 12.50P. and it was alleged to have been raised to Rs.15.75P. per television.
c) that as per Clause 9.3 of the agreement executed between the parties, the agreement was determinable with a notice of 30 days but there was no allegation by the defendant-petitioner that the right to determinate the agreement under the aforementioned clause was ever exercised.
d) the allegation of the defendant-petitioner that the Courts at Gurgaon do not have the jurisdiction also did not find favour in the absence of the agreement which was required to be prima facie proved before the plaintiff-respondent could be denied the relief on this plea. The agreement executed between the parties having been not brought on record, it was not possible to conclude that the parties opted for jurisdiction in case of dispute at a place other than Gurgaon.
e) In so far as the question whether the agreement between the parties could be specifically enforced, the Addl. District Judge observed that no persona! qualification for transmitting the beam of Star television was required. The agreement was simply for beaming STAR TV programme on the basis of regular payment and compliance with the terms and conditions of the agreement. Therefore, it was concluded that no personal service was required to be tendered which may be a hurdle for passing a decree for specific performance of the contract.
f) The only reason apprehended for the stoppaged of beaming of STAR TV channels was the dispute with regard to revised rates. The payment on the basis of unrevised rates was being effected. Yet the Additional District Judge did not conclude that it would amount to termination of contract as there was no overt act on the part of the defendant-petitioner to determine the contract.
4. On the basis of the afore mentioned facts, the Addl. District Judge passed an order restraining the defendant-petitioner from switching off the bea(sic)ing of STAR TV programmes to the plaintiff-respondent. However, it did not hold defendant-petitioner responsible for any violation of the Rules or the Act and hence the restraint order to that extent was modified and the appeal was allowed.
5. I have heard Shri Ashok Aggarwai, learned Senior counsel for the petitioner in Civil Revision Petition No. 5809 of 2001 and for respondent in Civil Revision No.5809 of 2001 and for respondent in Civil Revision No.6793 of 2001 and Shri Arun Jain, Advocate for the petitioner in Civil Revision No.6793 of 2001 and Shri Puneet Bali, Advocate for the respondent in Civil Revision No.5809 of 2001 and have gone through the record with their assistance.
6. On behalf of the petitioner it has been argued that in accordance with Clause (c) of Section 14 of the Specific Relief Act, 1963 (for brevity 'the 1963 Act') a contract which in its nature is determinable cannot be specifically enforced. The learned counsel has also referred to Section 16 of the 1963 Act to argue that the specific performance of contract cannot be enforced in favour of a person who would not be entitled to recover compensation for its breach. It has further been pointed out that the plaintiff-respondent is guilty of concealment of material facts as it failed to disclose that it filed a complaint before the District Consumer Forum being Complaint No. 11 of 1999 wherein interim order was granted in May, 1999. The suit has been filed six months later. In support of his submission, the learned counsel has placed reliance on a Full Bench judgment of this Court in the case of Financial Commissioner v. Charanjit Lal, (1978) 80 P.L.R. 111.
7. The other arguments advanced on behalf of the petitioner are that no difference would be made, if the contract entered into between the parties has not been produced because the contract is entered into on a standard from. Referring to the standard form, which is produced on record as Annexure R/5, the learned counsel has contended that the contract was only for one year and even before the expiry of one year, the contract was determinable by giving 30 days notice. It has been urged that the Addl. District Judge committed a grave error by allowing the appeal on the ground that merely because notice was not given, therefore, the contract was not determined. In any case, validity to give notice would not necessarily result into the grant of injunction of the nature issued by the Addl. District Judge. In support of his argument, the learned counsel has placed reliance on a judgment of the Supreme Court in the case Indian Oil Corporation Ltd. v. Amritsar Gas Service and Ors. J.T. 1990(4) S.C. 601 and argued that if there was any defect in determination of the contract if would not result into granting injunction. The only remedy available to the plaintiff-respondent in such a situation is to file a suit for damages. He has drawn my attention to the observations made in paragraphs 12,13 and 14 in the case of Indian Oil Corporation (supra). He has further argued that the contract was to come to an end in accordance with Clause 9.1 of the standard form unless it was renewed. On the question of jurisdiction also, he refers to Clause 10 of the standard form to argue that the Courts at Delhi alone would have the jurisdiction and the jurisdiction of the other courts have been specifically excluded.
8. Shri Arun Jain, learned counsel for the petitioner in C.R. No.6793 of 2001 has drawn my attention to the provisions of Section 10 of the 1963 Act and has pointed out that specific performance of transmitting agreement in respect of a beaming of Television channel can be ordered. According to the learned counsel no standard exists for ascertaining the actual damage caused by the non beaming of various television programmes nor the non performance of obligation by the NEWS Television (India) Ltd. defendant-petitioner could be compensated in terms of money. He has further pointed out that the Courts must presume in favour of ordering specific performance unless contrary is shown. He has then referred to various letters dated 1.3.2000, 2.4.2000 and 17.4.2000 to argue that despite queries made by the plaintiff-respondent no reply was sent which would also raise a presumption that they had no justifiable response to those letters.
9. Shri Puneet Bali, learned counsel for the plaintiff-respondent controverted the argument of the defendant-petitioner and submitted that under Section 115 of the Code no revision petition would be maintainable unless it is shown that the petitioner would suffer failure of justice and the order against which revision has been filed would cause irreparable loss to him. Relying on a judgment of the Supreme Court in the case of Managing Director (MIG) Hindustan Aeronautics Ltd., Balancat and Anr. v. Ajit Prasad Tarway, A.I.R. 1973 S.C. 76, the learned counsel has submitted that the petitioner did not fulfill the basic requirements of maintaining the revision petition and has failed to show that if the order under revision is allowed to stand would occasion failure of justice or would cause him irreparable loss. He has further submitted that the defendant-petitioner has failed to produce copy of the agreement before the Court for its inspection and production of standard form would not be a sufficient substitute to the original agreement executed between the parties because it would be only then that it could be established that the contract was determinable or it was for a specified period. Therefore, the nature of the contract whether it is determinable or not is still in a fluid situation. Explaining the preliminary objection raised by the defendant-petitioner that there is active concealment of material facts, the learned counsel submitted that the complaint filed before the District Consumer Forum was only confined to STAR NEWS and not to, the other programmes of the STAR PLUS. STAR WORLD and STAR MOVIES. He has also referred to a judgment of the Bombay High Court rendered in Arbitration Petition No. 539 of 2001 ( ESPN Software India Ltd. v. Star Satelite Network decided on 31.10.2001 wherein a similar controversy in respect of Sports Channel has arisen before the Court and the interim order passed in favour of the plaintiff-respondent. He has also placed reliance on a judgment of the Supreme Court in the case of Ashok Kumar Srivastava v. National Insurance Co. and Ors., 1998(4) S.C.C. 361. While drawing my attention to the observations made in paragraphs 18 and 19 of the judgment, the learned counsel has argued that Section 14 of the 1963 Act is subject to the provisions of Section 34 of the Act. Therefore, it cannot be said that the contract which was even determinable having not been determined, could not be enforced under Section 34 of the Act.
10. I have thoughtfully considered the arguments raised by the learned counsel for the parties and am of the considered opinion that both revision petitions are devoid of merit and deserves to be dismissed because the defendant-petitioner has not even exercised the option of serving a notice and determine the contract. Although the agreement executed between the parties has not been placed on record, yet on the basis of the terms and conditions contained in Clause 9.1 and 9.3 of the Standard Form, the defendant-petitioner has failed to determine the contact. It has also not been shown that what was the method of assessing the rates. From the record, it is not clear whether the rates were quarterly payable as claimed by the plaintiff-respondent by relying on a receipt No. 80957 dated 11.2.2000 which shows that payment of Rs. 22,500/- had been made. It has also not been shown that how the transmitting of beam from Hong Kong to the cable operator for further transmission to the subscriber is a cataract of personal service. It does not require any personal qualification nor any artisan. It is only a mechanical process which may result into transmitting the beam to a subscriber. Moreover, the real effected party is the subscriber and not the plaintiff-respondent. It is also worthwhile to mention that despite numerous letters written by the plaintiff-respondent seeking clarification about the rates as well as regarding other matters, nothing was told to him by the defendant-petitioner. The effort of the defendant-petitioner in withholding the agreement executed between the parties cannot be appreciated. The provisions of Section 41 of the 1963 Act would not apply as the provisions are not applicable to the applications filed under Order 39 Rules 1 and 3 of the Code.
For the reasons recorded above, Civil Revision Petition Nos.5809 of 2001 and 6793 of 2001 fall and are accordingly dismissed.