Judgment:
S.B. Sinha
The Petitioner is a Local Cable Operator. It is the proprietory concern of Ms. P. Maharajothi. Her husband used to run a network as distributor of the respondent’s channel under the name and style of Vinveli Thodarpu. According to the petitioners, after her husband became the distributor of the respondent, she intended to start a separate local cable network, for which she applied for and was granted a contract for supply of channels of the respondent namely KTV, Sun News, SCV, Gemini TV, Teja TV as also Sun TV.
According to the petitioner, it for the aforementioned purpose, she filled up the Registration Form on a subscriber base of 500. A sum of Rs.4,500/- being the price of the decoder boxes as also a sum of Rs.1000/- towards connection charges were also paid.
According to the petitioner, the format of the agreement, as prescribed by the respondent herein, was supplied to it through the distributor, Vinveli Thodarpu, which she filled up and sent to the respondent for the signature of its authorised representative, but the same had not been granted.
The petitioner contends that in the said agreement, the decoder numbers as also the viewing card numbers had specifically been mentioned.
The petitioner’s specific case is that pursuant thereto or in furtherance thereof, five decoder boxes had been supplied to it, which were activated on 01.3.2004 but de-activated on 06.3.2004.
It is furthermore the contention of the petitioner that in December, 2006 Sun TV became a pay channel, whereafter it filled up an Affiliate Registration Form and also for obtaining decoder boxes of the same channel on or about 16.11.2006 which contained the subscriber base of 500 points.
The respondent, however, raised an invoice for 625 points, which was illegal. It, however, appears that on 16.6.2007, a letter was sent to the petitioner by the respondent stating that the decoder boxes for Sun News, SCV, Gemini and Teja have been deactivated and no step was taken for their re-activation despite requests made in that behalf.
The petitioner contends that no response thereto was given by the respondent. It is also contended that decoder boxes of Sun News, Sun Music were deactivated on 10.10.2008, which remained as such up to 29.11.2008, whereafter it was switched off. Indisputably, the new technology, MPEG-4 technology, was introduced by the respondent, as a result whereof the MPEG2 decoder boxes became obsolete and unusable. According to the petitioner, a sum of Rs.3,665/- was paid by it for the purchase of decoder boxes for Sun TV. Such a payment was made on 14.5.2009 but the same was not supplied.
According to the petitioner, a telegram was sent by it on or about 10.7.2009 contending non-activation of the channels as also non-refund of the amount of Rs.3665/-, as the new decoder boxes were being issued free of cost. A copy of the said letter was also sent to the Telecom Regulatory Authority of India (TRAI), which was entertained. In response thereto, the respondent having been called by TRAI, sent a reply on 31.7.2009, contending :-
(a) Payment of the said sum of Rs.3,665/- had been made towards subscription charges and not towards the price of the decoder boxes;
(b) Respondent had sent a telegram on 2.7.2009 and a letter on 4.7.2009 requesting the petitioner to collect the decoder boxes but it had not come forward;
(c) The petitioner was liable to pay a sum of Rs.45,003/- which has not been paid;
(d) The petitioner indulged in piracy of the signals of its channels.
We may notice that the petitioner sent two letters, one being dated 22.8.2009 (Exhibited PW 1/9) and another dated 9.11.2009 (Exhibited PW 1/11) to TRAI.
The respondent also sent a letter to TRAI on or about 20.10.2009 (Exhibited PW 1/10).
As according to the petitioner, TRAI did not redress its grievances and thus the petition had to be filed.
In this Petition, the following prayers have been made :
“a) declare that the actions of the Respondent in switching off the signals of KTV Bouquet I and Sun TV and in failing to provide the IRD boxes for the said channels to the Petitioner is illegal;
b) direct the Respondent to rectify its accounts and invoices to reflect the true and correct subscriber base of the Petitioner.”
The respondent, on the other hand, in its reply apart from taking the plea of maintainability of the petition, inter-alia contended :
(i) The petitioner appointed Mr. Cheran as a distributor of the respondent operating in the name of Vinveli Thodarpu and some documents might have been created by him in collusion and conspiracy with his wife including the agreement dated 20.1.2004 which is a false and fabricated document;
(ii) The respondent has never supplied the decoder boxes for KTV bouquet;
(iii) The petitioner had supplied only the decoder box of Sun TV to the petitioner in December, 2006;
(iv) The petitioner in connivance with Mr. Cheran collected subscription charges from many operators and did not deposit the same with the respondent;
(v) A written complaint has been filed against Mr. Cheran on or about 17.12.2009;
(vi) A sum of Rs.36,454/- is outstanding from the petitioner.
Along with its reply, the respondent annexed the invoices for the period 01.10.2008 and 30.6.2009.
The respondent in its reply in regard to payment for the bouquet stated as under :-
“The contents of para 15 are false and denied. It is stated that the area executive of the Respondent Mr. Abdul Malik visited the Petitioner on 14.5.2009. It is stated that the Petitioner has paid a sum of Rs.3,665/- to the Respondent as an ad-hoc and part payment against the subscription dues for Sun TV channel. In this regard it is stated that the Respondent in 2009 charged a sum of Rs.1,500/- per decoder box. So the averment of the petitioner that the Respondent asked for a payment of Rs.3,665/- for issue of decoder boxes is blatantly false and incorrect and denied. It is false and denied that the executive of the Respondent has obtained the signature of the Petitioner on any blank agreement. The Petitioner should be put to strict proof of the same. It is false and denied that Mr. Abdul Malik obtained signature of the Petitioner on unfilled agreement stating that the same would be filled up later and that a countersigned copy of the same will be provided to the petitioner. It is stated that the Respondent has not executed any written agreement with the Petitioner in May 2009.”
It may be noticed that the petitioner in its rejoinder, has averred as under :-
“Further, apropos the allegation of the Respondent that the mention of ‘Vinveli Thodarpu’ in the Agreement dated 20.1.2004 makes it a fabricated document, it is submitted that this is a completely dishonest plea. Originally, well to the knowledge of the Respondent, the Petitioner and her husband were jointly operating under the name of ‘Vinveli Thodarpu’. However, in 2004, the husband of the Petitioner was appointed as a distributor and thereafter it was considered appropriate to operate the business of the Petitioner in a different name and at that time the name ‘Space Link’ was adopted. The Respondent was well aware of this fact. Its own communications to the husband of the Petitioner are shown in the name of ‘Vinveli Thodarpu’ while its communications to the Petitioner are under the name of ‘Space Link’.
A rejoinder thereto was filed by the petitioner inter alia contending :
(1) The petitioner had been operating its business independently;
(2) Mr. C. Cheran and the respondent have a dispute in regard to the payment of commission, for which an Original Suit has been filed in the Court of District Judge, Karur for recovery of a sum of Rs.6,30,935/-;
(3) So far as the agreement dated 20.01.2004 is concerned, it is not a fabricated document.
(4) The name of Vinveli Thodarpu was discontinued after the petitioner’s husband was appointed as a distributor of the respondent.
(5) The books of accounts do not show the payment of a sum of Rs.9,428/- made by the petitioner to the respondent.
(6) From the invoice received from the petitioner, it would appear that the petitioner had been making the payments;
(7) The petitioner has made payments of a sum of Rs.10,000/- by way of a Banker’s cheque dated 20.11.2004 drawn on Laxmi Vilas Bank, Karur.
On the aforementioned pleadings of the parties, this Tribunal by an order dated 19.4.2010 framed a large number of issues, some of which appear to be not relevant for disposal of the present matter.
We may, however, notice that the petitioner, in support of its case, has examined PW-1, Ms. P. Maharajothi, proprietress of the petitioner concern, Shri C. Cheran, her husband, the distributor of the respondent and Shri P. Shanmugaboopathi, employee of the petitioner.
The respondent, on the other hand, in support of its case, has examined Mr. Samuel Rajan. Along with his affidavit, the respondent has filed certain documents for the first time, to which objection has been raised by the learned counsel for the petitioner.
Mr. Jayant Mehta, learned counsel appearing on behalf of the petitioner, in support of the petition, would urge :
(i) The parties had entered into a valid agreement pursuant whereto supply of signal was given only in respect of Sun TV, a part of KTV Bouquet and as five decoder boxes and viewing cards were also supplied to the petitioner, it is entitled to the reliefs sought for herein;
(ii) It is incorrect to suggest that the agreement in question or any other document was forged and fabricated by the petitioner in collusion with her husband, as alleged or otherwise;
(iii) The Petitioner had not lodged any formal complaint with TRAI but only forwarded a copy of its representation made to the respondent through it;
(iv) TRAI having taken suo motto cognizance thereupon, it cannot be said that it is guilty of suppression of any fact;
(v) The invoice, genuineness whereof is in question, requires examination by an expert;
(vi) So far as the allegation that the petitioner’s husband has been collecting a huge amount from the 3rd parties and has not been making payments therefor, the respondent has filed a Civil Suit in the Court of District Judge, Karur and in any event all allegations having been made against Mr. Cheran and not against the petitioner, this Tribunal shall hold the same to be irrelevant;
(vii) All the documents containing allegations against her husband related to the purported activities of the distributor only and not of the petitioner and, thus, the petition should be allowed.
(viii) The Police complaint filed against her husband is not conclusive.
(ix) Although the respondent stated that a sum of Rs.36,954/- is due, the amount of Rs.29,000/- paid by the petitioner has not been accounted for.
(x) If a proper calculation is made as regards the amount said to be due from the petitioner, on the basis of subscriber base of 500, both for Sun TV and KTV, it will be evident that the petitioner has made excess payments;
(xi) Assuming that the ‘Subscription Agreement’ and ‘Affiliation Registration Form’ are fabricated, it was necessary for the respondent to establish the terms on the basis of which the decoder of Sun TV had been supplied and as to on what basis the subscriber base of 625 was arrived at;
(xii) The oral evidence adduced by the parties would clearly show that the respondent has failed to prove its case although in respect of a large number of issues, the onus of proof was on the respondent.
(xiii) The respondent herein has filed a CD to prove piracy which having been produced without obtaining the leave of this Tribunal, the same is not admissible;
(xiv) In any event, the said electronic evidence having not been proved in accordance with law, as the makers thereof having not been examined, no reliance can be placed thereupon.
We may furthermore notice that Mr. Mehta, on or about 23.7.2010 produced before us five decoders and five viewing cards contending that if they are examined by this Tribunal or by the respondent, it would be evident that the same belonged to the respondent which would also demolish its case that no decoder has been supplied to the petitioner.
As Ms. Sibal strongly objected to adduction of any evidence at that stage, an application has been filed by the petitioner in this behalf, which we intend to dispose of along with this petition.
Before proceeding further, we may place on record that keeping in view the prayer made by the petitioner herein in a rejoinder to the reply filed by the respondent to adduce further evidence, which was declined at that stage.
Ms. Sibal, the learned counsel appearing on behalf of the respondent, on the other hand, would urge :
(i) The petitioner, having approached this Tribunal with unclean hands having filed forged documents being an agreement purported to be dated 20.01.2004, an invoice dated 6.11.2008 and an Affiliate Registration Form is not entitled to any equitable relief.
(ii) The respondents having never issued the decoders to the petitioner and no payment having not been made by it in respect thereof, it is not entitled to any relief, whatsoever.
(iii) Certain statements having been made by the petitioner in its rejoinder for the first time and the respondents having not been allowed to file any sur-rejoinder thereto, any evidence adduced by the petitioner should be disregarded.
(iv) The petitioner having not filed proof of the details of the alleged payment made, cannot be said to have established payment of a sum of Rs.29,000/- in all as also the alleged payment of a sum of Rs.10,000/- per month for KTV bouquet must be held to be not entitled to any relief from this Tribunal.
(v) The purported payment made by the petitioner being a sum of Rs.33,665/- in May 2009 being towards supply of decoder boxes and being ad hoc payment of subscription charges, no reliance can be placed thereupon.
(vi) The petitioner having been in collusion and in connivance with the distributor, which is a concern of her husband, and both of them having been operating from the same office having same address, it must be presumed that the format of the agreement, the Affiliate Registration Form and other documents being with Shri Cheran, the same were being used for the purpose of committing forgery.
(vii) The petitioner approached TRAI and as the said fact was suppressed in this petition, this petition is not maintainable.
(viii) The petitioner is guilty of piracy as although the decoder of Sun TV was switched off in July, 2009, the petitioner had been supplying the signals to various persons.
(ix) The respondent having filed proof of piracy in the form of a CD recording illegal transmission carried out by the petitioner as also having regard to the Police complaint, the same shall be taken into consideration for directing any relief to it.
The principal questions, which arise for consideration in this petition, having regard to the rival contentions of the parties, are as under :-
1. Whether in the facts and circumstances of the case, the petitioner is entitled to any direction upon the respondent for supply of any decoder for the Sun TV and KTV bouquet-1, as has been prayed for or otherwise?
2. Whether in the facts and circumstances of the case, the petitioner has been able to prove the genuineness of the agreement dated 20.1.2004, the invoice dated 6.11.2008 as also the Registration Form dated 5.2.2009?
3. Whether in the situation where the petitioner has taken recourse to the suppression of the documents is entitled to any equitable relief?
4. Whether the respondent has been able to prove any collusion and conspiracy between the petitioners inter-se?
Before, however, we advert to the said questions, we may place on record that the petitioner has filed an application before us marked as M.A. No. 233 of 2010 whereby and whereunder a prayer has been made for taking evidence of 5 decoder boxes and 5 viewing cards to show that the same have been supplied by the respondent itself. We may deal with the said question at the outset.
Indisputably, the said application has been filed before us after the petitioner closed its evidence. The petitioner does not deny or dispute that the said decoder boxes as also the viewing cards were not exhibited. It although had an opportunity to confront the respondent’s witnesses in this behalf, for reasons best known to it, it failed and/or neglected to do so. Such a prayer was made for the first time on 23.7.2010 at the stage of final arguments.
Mr. Jayant Mehta, the learned counsel appearing on behalf of the petitioner contended that this Tribunal has the requisite jurisdiction to take into consideration the aforementioned additional evidence in exercise of its jurisdiction under Order VI Rule 9, Order VII Rule 14 and Order XVIII Rule 18 of the Code of Civil Procedure.
Order VI Rule 9 of the Code of Civil Procedure provides for making statement with regard to effect of document. The petitioner had not pleaded or produced the agreement dated 20.01.2004 so as to contend that the numbers given to the said decoders and viewing cards have been mentioned therein.
We may, however, notice that the petitioner itself relies upon the definition of ‘documents’ contained in Section 3 of the Indian Evidence Act, 1872 to submit that the aforementioned decoder boxes and/or viewing cards would not be a document within the meaning of the said provision.
Order VII Rule 14 of the Code of Civil Procedure provides for production of documents on which the plaintiff places reliance.
Mr. Mehta would contend that such documents were not possible to be filed along with the plaint.
Lastly, as noticed heretobefore, the petitioner relies upon the provisions of Order XVIII Rule 18 of the Code of Civil Procedure to contend that a Court of law is entitled to inspect the property.
We may notice that the Parliament made the Code of Civil Procedure Amendment Act, 1976 with a view to avoid delay in disposal of cases by taking additional evidence after the party closes its evidence in certain situations by inserting therein Order XVIII Rule 2 (4) and Order XVIII Rule 17A.
The said provisions read as under :-
“ Notwithstanding anything contained in this rule, the court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.”
“Where a party satisfies the court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.”
The said provisions, however, were omitted by the Amending Act of 2002 w.e.f. 1.7.2002.
The Parliament, therefore, in its wisdom thought that the parties after closure of evidence of its case should not be permitted to adduce any fresh evidence by way of additional evidence or otherwise.
We, however, are not oblivious of the fact that while the question of validity of the Code of Civil Procedure Amendment Act, 1999 vis-Ã -vis the Amending Act of 2002 was questioned before the Supreme Court of India in Salem Advocates Association Vs. Union of India (2005 (6) SCC 347) it while upholding the validity of the said provisions, opined that in a given situation, the Court of Law would still have power to take additional evidence.
We may, at the outset, consider two aspects of the matter. The first is that ordinarily and subject to just exceptions, a Court of law should interpret the provisions in such a manner so as to give effect to the intent of the Parliament. Even assuming that the Court of Law will still have a power to take additional evidence, the same must be held to come within the inherent power of the Court and not otherwise. Has such a case made out, the question might have been different.
We may, however, notice that the decision of the Supreme Court in Salem Advocate Association wherein the law has been laid down in the following terms:
“On deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just.”
We are of the opinion that the source of jurisdiction of a Court of Law as also this Tribunal to take additional evidence are not and cannot be found in Order VI Rule 9, Order VII Rule 14 or Order XVIII Rule 18 of the Code of Civil Procedure.
We would assume that as the petitioner could not file the aforementioned documents with plaint, a statement, however, was required to be made in the Petition itself that the said viewing cards and decoder boxes have been supplied by the respondent herein before or after entering into the purported agreement dated 20.01.2004. The same could have also been produced separately.
Electronic evidence within the meaning of the term “evidence” having been defined under the Indian Evidence Act, the decoder boxes and/or viewing cards would also come within the purview thereof. Even if the electronic evidence is an evidence, the same is required to be proved in terms of the provisions of Section 65A, Section 65B as also other provisions contained in the Indian Evidence Act.
Mr. Mehta, however, would merely say that this Court should itself undertake the process of doing an experiment to find out as to whether the said decoder boxes and viewing cards were handed over to the petitioner by the respondent or not?
In a broad term, viewing card or a decoder box would come within the purview of the definition of term “property”. The question, which arises for consideration, is as to whether the same would come within the purview of the Order XVIII Rule 18 of the Code of Civil Procedure or not? The said provision only empowers the Court of Law to inspect any property or things concerning which any question may arise.
It may be that the decoder boxes and viewing cards would come within the purview thereof, but assuming that when they are produced before us, we would have a look into the said properties, but a mere look at the said evidence by itself in a case of this nature is not sufficient. This Tribunal is required to do something more meaning thereby carry out certain investigating jobs to find out as to whether the numbers given therein contained in it and those in a document which is said to be an agreement dated 20.01.2004 are the same.
We may, therefore, must at the outset, consider the said document. We have no other alternative but also to consider at the same time two other documents namely the Affiliation Registration Form filed by the petitioner and invoice dated 6.11.2008 are genuine documents or not?
Let us first have a look at the purported service contract. The applicant’s name is said to be Ms. Maharajothi Cheran. The name of Vinveli Thodarpu appears just below the said name being the name of the concern. Indisputably Ms. Vinveli Thodarpu was a partnership concern, in which the husband of the petitioner, Shri Cheran was a partner and who became the distributor of the respondent. According to the Petitioner thereafter another concern was created which was the proprietory concern of the Petitioner.
When the respondent pointed out that the petitioner has no concern therewith and the said Vinveli Thodarpu was itself a proprietary concern, a story was invented that the same was a partnership concern of the husband and wife and became a separate entity later on after the distributorship agreement came into being. The relationship between the husband and wife, however, continued. It never broke up. On the basis of the materials placed on record by the parties hereto, indisputably that business of both Vinveli Thodarpu and the petitioner concern are being carried out from the same premises. The Headend of the petitioner is said to be installed in the same premises. The agreements etc. have also been handed over to the petitioner only by her husband. It is also evident that the decoder boxes are available in the market. Of-course, the viewing cards would not be available. The statement of ‘Vinveli Thodarpu’ is itself suggestive of the fact that the petitioner never carried on in business as a local cable operator, at least after her husband became a Distributor. It is not a case of the petitioner whether she at the given point of time or at least on the date on which the service contract was said to have been entered into, had anything to do with the aforementioned decoder boxes. It is, however, not disputed or denied that although the said documents were filled up by the petitioner, but admittedly, the same were not signed by the respondent. As it was not a concluded contract, we are of the opinion that the contents thereof are not admissible in evidence and, thus, the purported number of the viewing cards and/or decoder numbers stated therein would also not be admissible in evidence. If that be so, there does not exist any material brought on record before us to compare the number of viewing cards or decoder numbers vis-Ã -vis the purported evidences produced before us.
In any event assuming that this Tribunal having regard to Section 16 of the Act is not bound by the provisions of the Code of Civil Procedure and even otherwise would be entitled to take additional evidence despite the fact that the petitioner has closed its case, having regard to the decision in Salem Advocates Association (Supra), it would appear that even such an inherent jurisdiction on the part of a Court of Law and/or Tribunal must be exercised keeping in view the principles contained in Order XVIII Rule 17A of the Code of Civil Procedure and it stood thus.
According to the petitioner itself, at all material times, the petitioner was aware of the number of the said decoder boxes and thus, there was absolutely no reason as to why it not only could file the same before this Tribunal along with the affidavit of its proprietories and/or along with the affidavit of her husband, Mr. Cheran. It could also have confronted the witness of the respondent i.e. Mr. Samuel Rajan while he was being cross examined, being permissible in law. (See T.V. Mohana Vs. Kanner reported in AIR 1986 Mad 14).
It is not and cannot be in controversy that the case of the respondent namely it had never supplied the said decoder boxes to the petitioner were known to it from the time it received a copy of the reply. It, therefore, even while drafting its rejoinder could not only take such a plea but also produce the same before this Tribunal. Either the petitioner herself or at least her husband and/or her employee could have shown by leave of this Tribunal that the said viewing cards demonstrably had been issued by the respondent. We may proceed on the premise that ordinarily the viewing cards are handed over to the distributor by the broadcaster and/or the content aggregator. How some viewing cards came in possession of course has not been explained by the respondent, but as it has been suggested by Ms. Sibal, the learned counsel for the respondent that this Tribunal cannot forget that the husband of the petitioner was a distributor and in that capacity some viewing cards might have come in his possession.
For the reasons aforementioned, we are of the opinion that it is not possible for us to take the said decoder boxes and/or viewing cards as additional evidences at this stage.
The controversy surrounding the present case must be considered from a broad point of view.
The genuineness of the agreement is in question. We have noticed the history so far as the network is concerned.
The agreement indisputably is on the formatted contract. It is purported to be signed only by the proprietoress of the petitioner-concern and not by the respondents. The affiliate’s name has although correctly been mentioned, the name of the concern has been mentioned as Vinveli Thodarpu i.e. concern of her husband, who had been appointed as the distributor.
The purported agreement is between the husband and wife. It is not the case that an officer of the respondent has filled up the form. Only because the numbers of decoders and viewing cards have been mentioned, which cannot be verified in absence of any evidence brought on record, as in our opinion in a case of this nature, the contract cannot be said to be a concluded one, nothing turn on the same.
Even at the foot of the said agreement, the affiliate’s name has not been mentioned as ‘Space Link’ but ‘Vinveli Thodarpu’. There is furthermore no proof that it was even sent to the respondent. In absence of any concluded contract having been entered into by the parties, and in particular the manner in which the form of agreement has been filled up, it is difficult for us to place any reliance thereupon. It is not a concluded contract. Even otherwise it has not proved any meeting of the mind between the parties took place and, thus, it is difficult for us to hold that contentions of the petitioner are correct.
So far as the purported agreement dated 20.01.2004 is concerned, when the discrepancies have been pointed in the reply by the respondent, the petitioner in its rejoinder for the first time created a new story that both husband and wife were working together and that was the reason why the said defects appear in the documents. There is nothing on record to show that although the petitioner is said to have been taking supply of signals from the respondent, she or her husband at any point of time informed the respondent about the change of name of the firm. In fact, the petitioner in her cross examination categorically admitted that no such information had been supplied. Since the petitioner and her husband were said to have been working in the partnership, they must have been maintaining some accounts. They could have shown that in fact certain payments have been made on the basis of the agreement or otherwise.
We, for the reasons stated herein, cannot accept the said statement.
We have noticed heretobefore that the respondent had denied receipt of the aforementioned amount.
From the record it appears that the name of ‘Space Link’ came only in one of the letters purported to have been issued being dated 16.6.2007. In the said letter itself, reference had been made that the decoder boxes had been de-activated on 07.3.2004. Why the petitioner did not take any step in this behalf for a period of more than three years, is difficult to comprehend.
We may also notice the purported invoice. A sum of Rs.8,707.90 has been shown in all the bills including the bill dated 01.10.2008 to 31.10.2008. We may notice the purported invoice being dated 06.11.2008. We may compare the aforementioned invoice with the invoice filed by the petitioner, which is at page 42 (Annexure P-4). In the invoice filed by the petitioner, the address where headend has been installed, has been shown as K.K. Puthur, which is not the address mentioned in the purported agreement 2000. The petitioner has shown her address in the cause title of the petition as 7/2, Theresa Nagar, Gandhigramam Road, Karur.
The petitioner in her cross-examination, moreover, stated :-
“In 2003 my control room was 7/2, Theresa Nagar, Gandhigramam Road, Karur”.
In the said invoice, subscription of the channels Sun TV, KTV, Sun Music, Sun News had been mentioned and in stead and in place of 625 subscribers, 500 subscribers have been mentioned.
The Affiliate Registration Form bears only the seal of the distributor.
A sum of Rs.4,500/- for one decoder and a sum of Rs.1000/- towards activation charges was said to have been paid to Novatron Broadband Pvt. Ltd. and not to the respondent. The petitioner, however, claims that the aforementioned amount of Rs.4,500/- has wrongly been collected by the respondent.
In the invoice filed by the respondent at page 124, which has been noticed earlier, it has been shown that the amount due was Rs.1,71,094.68.
The husband of the proprietress only signed the same and the name of Mrs. Maharajothi appears for the first time.
In the said invoice, the billing cycle has been mentioned for 01.11.2008 to 31.11.2008. The month of November contains only 30 days and not 31 days. The said bill shows an amount of Rs.8,707.90. Along with the KTV bouquet, a subscriber base of 625 has been shown. We may notice heretobefore that the respondent has categorically contended that the said channel has never been given to the petitioner and in that view of the matter it is difficult to accept that the same would form part of the invoice. For KTV bouquet, Rs.9,750/- was shown to be subscription charges and Rs.7,750/- for Sun TV, which was the actual amount. Net amount payable has been shown as Rs.19,663/-. However, in the next column, the balance amount of Rs.19,197.42 is mentioned. The petitioner has not submitted the Balance Sheet and such sum appears to have been taken from the invoice of the respondent, although payment of a sum of Rs.2 lacs had been made, in fact there is nothing on record to show that the petitioner had been taking supply of signals of KTV bouquet also. If it had been so doing, it was required to pay much more. Although, no payment has been made, instead of a sum of Rs.19,663/- under the column ‘Current Bill’, only Rs.8,707.90 has been shown and the amount due has been shown to be (-) Rs.11,489.52.
It has furthermore been contended that there is a technical difference in invoices, which was the creation of the respondent itself.
There appears to be some truth in the submission of Ms. Sibal that the petitioner’s husband had somebody in the office of the respondent, who could manufacture certain documents. Be that as it may, we are satisfied that the petitioner had not been able to show payment for KTV bouquet for the period February 2007 to September 2007.
At this juncture, we may notice certain correspondences. The petitioner’s husband had issued several letters to various LCOs that payment should be made directly to ‘Vinveli Thodarpu’ and not to the respondent.
On 30.5.2006, Tamilnadu Newsprint and Papers Ltd. had paid sums of Rs.1,20,000/- and Rs.14,688/- to ‘Vinveli Thodarpu’. It again by a letter dated 5.2.2007 raised a bill for a sum of Rs.1,01,016/- on the said company. Similar further correspondences have been placed on record. The petitioner’s husband could not have collected the amount directly from the subscribers. The cheques were to be drawn in the name of the respondent only. Admittedly, a First Information Report was lodged against Shri Cheran.
There cannot be any doubt or dispute that the agreement in question or the Business Affiliation Form having regard to the large number of discrepancies, cannot be held to be genuine documents.
It was for the petitioner to prove the genuineness thereof in view of categorical stand taken by the respondent in this behalf. In our opinion, even Business Affiliation Agreement is not a genuine having regard to the fact that it does not bear the seal of the company and the Headends having been shown to be located somewhere else. No reliance, thus, can be placed thereupon. We may reiterate that for the self same reasons, which are relevant in regard to the agreement, shall apply also so far as the Business Affiliation Agreement is concerned.
We may furthermore notice that nothing has been brought on record to show that Shri Cheran had the requisite authority to enter into a contract with a third party on behalf of the respondent.
Another aspect of the matter may also be noticed. Had there been a genuine transaction by and between the parties hereto, as has been contended by the petitioner, there was no reason as to why the decoders would be activated on 01.3.2004 and deactivated on 06.3.2004.
The respondent does not deny or dispute that from 2006 onwards the petitioner became its affiliate, after the Sun TV became a pay channel. If the petitioner’s contention is correct that the subscriber base is only for 500, we do not see any reason as to why the petitioner itself, despite receipt of the invoice showing the subscriber base of 625, would not protest thereagainst.
The petitioner at her convenience, has been raising story of activation and de-activation of various channels, the last being that the respondent had activated decoder boxes of KTV, Sun TV, Sun News, Sun Music on 10.10.2008 and de-activated only on 29.11.2008. The petitioner, as noticed heretobefore, despite a averments made in the petition/rejoinder that it had paid a sum of Rs.3,665/- for purchase of 4 decoder boxes, had failed to prove the same. In fact, the amount paid by the petitioner was different.
It appears that contention of the respondent that the petitioner has been authorised by it to transmit Sun TV channels only from December, 2006 is correct. Had the assertion of the petitioner, that they had been paying a sum of Rs.10,000/- per month for KTV channels was correct, we do not see any reason as to why the respondent would not raise any invoice in order to show the dues in respect thereof in its statement of accounts. The respondent in its books of accounts has shown that payments have been made from 2006 to 2009. According to the petitioner, however, two other payments have been made, which the respondent deny and dispute. In any event, the same does not show that the petitioner has been making payment of Rs.10,000/- per month from 2004.
It has made out for the first time in the rejoinder that the fact Mr. Cheran had collected money from the operators, address at which money is said to have been collected and appropriated, is the same as that of the petitioner.
For converting ‘Vinveli Thodarpu’ to ‘Space Link’, no specific date has been mentioned as to when the same was done. The inference, which can be made is that the petitioner and her husband having been operating from the same premise, erected a large number of documents for the purpose of raising a frivolous plea.
The petitioner in her evidence stated :-
“I do not go to make collections myself but I send my employees. In 1993 I did not have any channel with me. I was only transmitting movie through video.
I have not taken any decoder from my broadcaster till 2003 when I approached Channel Plus. I went to Trichy Office of Channel Plus in December 2003 to seek decoders.”
She, therefore, admits that the decoders have been given to her by her husband. She has also not been able to show any document that any Demand Draft was drawn in the name of Channel Plus. It is also difficult to believe that she has seen the Manager of Channel Plus at Trichy. She in her cross-examination admitted that viewing cards had also been given to her by her husband.
She made a wrong statement that she had made payments for the decoder boxes in the name of Channel Plus. She admits that a copy of the agreement was given to her by her husband. However, in the next sentence, she states that the agreement copy was given by the Channel Plus office.
She admitted that her husband has been sending various amounts to Channel Plus but she has never asked for a copy of the agreement. According to her, she had written many letters but she did not remember the dates of the letters in regard to their decoders. We have noticed heretobefore that the only letter, which was allegedly written, was on 16.6.2007. She, despite her assertion that she might have sent some other letters, none has been produced. She, thus, has failed to bring on record any evidence that other various correspondences personal between the parties.
According to her, she had 500 points in the form from the very beginning. If that be so, there was no reason as to how she could be billed for 625 points. Again, according to her own statement, she had objected to the invoices not in writing but only through telephone.
In answer to a question, as to whether she in her affidavit stated the share paid for Sun TV at 500 points, PW-1 could not point out the same. We may notice that nothing has been brought on record in relation thereto.
It is difficult to accept her statement that every month, some person used to come from Trichy Office to whom the payments were to be made as her husband would have collected the same as a distributor only.
So far as the giving of decoder boxes in 2008 is concerned, admittedly she had not been given any gate pass nor has she any documentary proof with regard to delivery of the decoder boxes to her.
According to her, even in 2008 she had 5 decoder boxes. We have noticed heretobefore that her categorical statement was that she had been given five decoder boxes in 2004 and one in 2006 i.e. six in total. However, according to the respondent, only one decoder box had been given to her. She in her evidence accepted that she was unable to show for what purpose a sum of Rs.3,665/- was given. She has accepted that all the letters to TRAI were written by her husband.
We may also notice the evidence of Shri Cheran, husband of Mrs. Maharajothi, PW-1. In answer to the very first question in cross examination, he stated that he had been supplying signals of KTV in Karur in April, 2009. If he had not been operating, it is difficult to understand how was he supplying signals? Although according to him, all proof of payments made have been on record but in fact, even he accepted, did not inform the respondent with regard to the change of the name of Vinveli Thodarpu to Space Link.
Ms. Sibal would contend that in a case of this nature, the doctrine of Alter Ego may be applied. Strong reliance has been placed on a decision in Talbot Vs. Fresno Pacific Corporation 181 California 425.
The said decision has no application in the instant case. In fact, the nature of Alter Ego doctrine is ordinarily relatable to a role of a Corporation developed as a principle of equity under the common law. We are not oblivious of the fact that ‘alter ego’ can be a very powerful in the business litigation arsenal. See. ‘alter ego’ liability by Jay D. Fullman – Nature of Alter Ego Liability.
We may also notice in this behalf the decision of the Guwahati High Court in R.S. Sodhi and Anr. Vs. Partha Pratim Saikia reported in 2009 (151) Company Cases page 583, stating the law, thus :
“The courts, in Canada, have developed, in respect of a person, who acts as the mind of a Corporation, a doctrine popularly known as the alter ego. Briefly put, the doctrine of alter ego implies that in order to make a body corporate liable for the actions of its officers and employees, the officer or employee, who physically commits offence, must be the centre of the corporate personality, the chief organ of the body corporate, its directing will and mind and, therefore, the alter ego of the body corporate. The doctrine of alter ego came to be clearly established by the decision of the Canadian Supreme Court, in Canadian Dredge and Dock Co. v. The Queen reported in (1985) 11 RCSC 662.”
We, however, do not think that in a case of this nature and in particular the findings arrived at by us heretobefore, we need to consider the same in details.
Mr. Mehta would urge that equity is in his favour. We do not subscribe to the said view. Equity may not have stricto sensu any role to play in a case of this nature. If the petitioner is not entitled to any relief in absence of any legal right, the question of giving any relief to her on the basis of equity does not arise.
The petitioner is guilty of fabricating the documents. She is, therefore, not entitled to any equitable relief or otherwise.
In S.P. Chengalvaraya Naidu V. Jagannath 1994 (1) SCC page 5 Supreme Court has stated :-
“5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went hay wire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”
Yet again in Arunima Baruah V. Union of India 2007 (6) SCC page 120, it was stated :
“12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.”
For the reasons aforementioned, there is no merit in this petition. It is accordingly dismissed.
The petitioner shall pay and bear the cost of the respondent. Counsel’s fees assessed at Rs.50,000/-.