The petitioner has filed this petition, inter alia, for the following reliefs:
?(a) direct the Respondent to supply signals of its ten channels as requested for in Petitioner?s letter dated 29.06.2009 (Annexure P-3 above) and sign the subscription agreement with the Petitioner for supply of the same to Paradip Port Trust area on such terms and conditions as maybe found to be non-discriminatory and reasonable by this Hon?ble Tribunal;
(b) pass an ad-interim ex-parte order directing the Respondent to supply signals of its ten channels as requested for in Petitioner?s letter dated 29.06.2009 (Annexure P-3 above) for the Paradip Port Trust area on such terms and conditions as may found just and proper in the facts and circumstances of the case.?
The basic fact of the matter need to be noticed for the purpose of passing an interim order as has been prayed for, is as under.
The Paradip Port Trust, a statutory organization, had called for tenders for providing cable TV connections to the residents of the said Port wherein apart from the petitioner, M/s Modent Antena Pvt. Ltd. and M/s Ortel Communications Pvt. Ltd. submitted bids.
The Paradip Port Trust by a letter dated 27.06.2009 accepted the bid of the petitioner and asked it to commence its work at the earliest as per the terms and conditions of the tender. The petitioner was asked to commence the work within 7 days and from the date of receipt of Letter of Intent. Before, however, the petitioner could act in terms thereof, the aforementioned M/s Modent Antena Pvt. Ltd. and M/s Ortel Communications Pvt. Ltd. filed two writ petitions before the High Court of Orissa. Indisputably, an order of status quo was passed therein. However, after hearing the parties, the High Court of Orissa by an order dated 12.05.2010 disposed of the writ petitions opining that no illegality has been committed by the Paradip Port Trust in accepting the tender of the petitioner.
We may, however, notice that the petitioner as far back as in 2009 applied for supply of signals of the channels of the respondent to which it responded by its letter dated 22.04.2009 in the following terms:
?To Who So Ever It is Concerned.
We shall provide our decoders to you retransmitting Star Den channels in the area of Paradip Port Trust subject to the following terms and conditions:
1) The area of operations will be limited to the area of Paradip Port Trust specified by Paradip Port Trust.
2) Submission of Allotment Letter or Authorisation Letter from Paradip Port Trust stating authorization to provide Cable TV services.
3) Final verification and approval of your authorized area and systems by our authorized distributor.
4) Upon completion of the commercial deal with us, as per the guidelines of Telecom Regulatory Authority of India.?
The petitioner had applied for decoders of 10 channels of the respondent on 29.06.2009 out of which decoders in respect of 7 channels were given, but the same were not allegedly activated.
According to the respondent, however, no decoder had been supplied to the petitioner but we need not dilate thereon at this juncture.
The petitioner after passing of the final order of the High Court sent an E-mail to the respondent on or about 14.05.2010 stating:
?Sub : Providing Cable TV connection at Paradip Port, Paradeep.
Ref : Judgment of Hon?ble Orissa High Court, Cuttack in this regard.
This has reference to the above.
It is to say that, we are going to start Cable TV services at Paradip Port, Paradip (Orissa) immediately.
In this context, we sincerely request you to kindly provide active signals for Star Den bouquet of channels at our Control room situated in PPT premises, Paradip.
For your reference, at your local office we are submitting a copy of Judgment of Hon?ble High Court of Orissa, Cuttack in the matter of W.P. (C) No. 9134 of 2009 regarding the petition filed before them in the matter of Tender process on Cable TV connections at Paradip Port, Paradeep.
Your instant cooperation in this regard is highly solicited in the interest of larger mutual interest.?
The respondent, however, asked for a soft copy of the judgment of the High Court which was also complied with immediately. According to the petitioner, the veracity whereof again need not detain us for the time being, allegedly were assured of supply of signals by the representative of the respondent.
The Paradip Port Trust, however, by a letter dated 01.06.2010, in terms of the observations made by the High Court asked the petitioner to comply with the same in the following terms:
?Sub : Providing Cable TV connection at Paradip Port, Paradeep.
Ref : (1) Our letter of intent vide No. AD/MS/1-90/2008/ 2504 dated 27.06.2009
(2) Your letter No. Nil dated 15.05.2010 regarding Judgment of Hon?ble High Court of Orissa in the matter of WP (C) No. 9134/ 2009 & 10386/2009.
As per the judgment of Hon?ble High Court of Orissa on 12.05.2010 in the matter of aforesaid writ petitions you are hereby permitted to start the work of telecasting/transmitting all the 60 (40 pay + 20 free to air) channels.
You are further directed to submit within 10 days on receipt of this letter that you have the permission of telecasting all the channels as per the Tender Call Notice vide T.O. No.AD/MS/1-90/2008(PT-VI)/1322 dt. 01.04.2009.
In the event you fail to satisfy Paradip Port Trust within 10 days from the date of receipt of this letter that you have the permission to telecast all the channels as per the aforesaid TCN, then this work order will be annulled and no agreement shall be executed for the work as per the orders of the Hon. High Court of Orissa.?
It, however, appears that on or about 02.06.2010, the petitioner again had asked for activation of the decoders.
Mr.Navin Chawla, the learned counsel appearing on behalf of the petitioner would submit that keeping in view of the peculiar facts and circumstances of this case and particularly, the observations of the High Court vis--vis the letter dated 01.06.2010 of Paradip Port Trust, the petitioner would suffer immensely unless the respondent is directed to supply signals of its channels to the petitioner forthwith. It was submitted that the petitioner without prejudice to its rights and contentions and keeping in view of the fact that the Paradip Port Trust itself has estimated the number of subscribers at 3000, is ready and willing to pay the subscription fees to the respondent which is being paid by M/s Ortel Communications Pvt. Ltd. which is said to be supplying signals to the residents of Port Trust area.
Mr.Gopal Jain, the learned counsel appearing on behalf of the respondent on the other hand would contend that the petition is premature in as much as even the commercial terms by and between the parties had not been fixed in terms of aforementioned letter dated 22.04.2009 and in that view of the matter the respondent should be given some time to consider the offer of the petitioner wherefor the parties may enter into negotiations within a few days.
We have noticed heretobefore that the Paradip Port Trust in its letter dated 01.06.2010 asked the petitioner to satisfy it that the petitioner had permission to telecast all the channels as per the tender conditions. It is true that ordinarily the commercial terms are required to be settled between the parties. There also exists a dispute as to whether the subscriber base is 3000 or 8000.
It was, however, submitted by Mr.Chawla that M/s Ortel Communications Pvt. Ltd. is a sister concern of the distributor of the respondent and in the event, this Tribunal does not pass an order in mandatory terms in favour of the petitioner, as has been prayed for, Paradip Port Trust will have no other option but to cancel the petitioner?s Letter of Intent and continue to take services of M/s Ortel Communications Pvt.Ltd. at a higher rate.
We were furthermore informed at the Bar that whereas the rate fixed by the petitioner is Rs.123/- as per its offer to the Paradip Port Trust whereas M/s Ortel Communications is charging @ Rs.156/- per subscriber.
It is not in dispute that except fixing the commercial terms other conditions of the letter of the respondent dated 222.04.2009 are
Please Login To View The Full Judgment!
satisfied. Keeping in view the peculiar facts and circumstances of this case and we are prima facie satisfied that the petitioner has a strong prima facie case in view of the orders passed by the High Court of Orissa and, thus, we as an exceptional measure, we direct the respondent to supply signals of its channels to the petitioner on its undertaking that it shall comply with the commercial terms of M/s Ortel Communications with the respondent, subject of course, to the final determination thereof at the final hearing and adjustments of equities between the parties. The petitioner shall furthermore pay the monthly subscription fees to the respondent on the aforementioned basis. Reply may be filed within three weeks. Rejoinder thereto, if any, may be filed within two weeks thereafter. Put up the matter for further direction on 27.07.2010. Liberty to apply for variation and/or modification of this order.