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Espn Software India Pvt. Ltd. and Another Vs. Wire and Wireless India Limited and Another - Court Judgment

LegalCrystal Citation
CourtTelecom Disputes Settlement and Appellate Tribunal TDSAT
Decided On
Case NumberPetition Nos. 51(C) OF 2010, 300(C) OF 2010
Judge
AppellantEspn Software India Pvt. Ltd. and Another
RespondentWire and Wireless India Limited and Another
Advocates:For Petitioners: Mr. N. Ganpathy, Advocate. For Respondents: Mr.T.S. Bhatia, Advocate.
Excerpt:
s.b. sinha these two petitions being inter-related were taken up for hearing together and are being disposed of by this common judgment. the basic fact of the matter is not in dispute. the parties hereto had entered into an agreement for supply of signals of the channels of the respondent on or about 29.7.2008, pursuant to and in furtherance whereof, wire and wireless ltd. (hereinafter called and referred for the sake of the brevity as `the respondent) became liable to pay annual subscription fees for a sum of rs.11,747,520/- or rs.9,78,960/-per month, excluding taxes. `the respondents’ in terms of the said agreement were to retransmit signals to their consumers in the city of hyderabad. espn (hereafter referred to as `the broadcaster’) filed petition no.51(c)/2010 inter.....
Judgment:

S.B. Sinha

These two petitions being inter-related were taken up for hearing together and are being disposed of by this common judgment.

The basic fact of the matter is not in dispute.

The parties hereto had entered into an agreement for supply of signals of the channels of the respondent on or about 29.7.2008, pursuant to and in furtherance whereof, Wire and Wireless Ltd. (hereinafter called and referred for the sake of the brevity as `the respondent) became liable to pay annual subscription fees for a sum of Rs.11,747,520/- or Rs.9,78,960/-per month, excluding taxes.

`The respondents’ in terms of the said agreement were to retransmit signals to their consumers in the city of Hyderabad. ESPN (hereafter referred to as `the Broadcaster’) filed petition

No.51(C)/2010 inter alia for recovery of a sum of Rs.71, 70,457.14 paise before this Tribunal on 8.3.2010. It is, however, not in dispute that on or about 7.5.2009 the signals of the channels of the petitioner transmitted to the respondent were deactivated.

During pendency of the said petition the representatives of the parties with a view to resolve their disputes and differences met on 3.5.2010.

A memorandum of understanding was entered into.

We may notice the same.

“MEMORANDUM OF UNDERSTANDING

MINUTES OF THE MEEETING HELD ON 3RD MAY 2010 AT THE OFFICE OF ESPN SOFTWARE PVT LTD, HYDERABAD

IN THE PRESENCE OF

MR.K.SIVA RAMA KRISHNA, MR.I.S. RAMAKRISHNA, MR. MANISH JETLEY, MR. CH.SRINIVAS and MR. MANOJ DUBEY

IT IS HERE BY MUTUALLY AGREED BETWEEN ESPN SOFTWARE INDIA PVT LTD AND WIRE and WIRELESS INDIA LTD., THAT

• M/S WIRE and WIRELESS INDIA PVT. LTD., HYDERABAD WILL PAY A SUM OF RS.60.00 LACS TOWARDS SETTLEMENT OF OLD OUTSTANDING TO ESPN SOFTWARE INDIA PVT. LTD.

• RS.60.00 LACS (RUPEES SIXTY LAKHS ONLY) WILL BE CLEARED IN 3 INSTALMENTS ALONG WITH THE MONTHLY SUBSCRIPTION FEES AS PER THE DETAILS MENTIONED BELOW

DATE OUSTANDING BILLING TOTAL

• 16TH MAY’10 - RS.20.00 LACS 4.41 LACS 24.41 LACS

• 16TH JUNE’10 - RS.30.00 LACS 4.41 LACS 34.41 LACS

• 16TH AUG’10 - RS.10.00 LACS 4.41 LACS 14.41 LACS

• POST DATED CHEQUES WILL BE ISSUED TILL AUGUST 10 TOWARDS THE SETTLEMENT OF OLD ARREARS ALONG WITH THE MONTHLY SUBSCRITPION FEES AS PER THE DETAILS MENTIONED BELOW

CHEQUE NO. DATE AMOUNT BANK

1. 16.05.2010 24.41 LACS

2. 16.06.2010 34.41 LACS

3. 16.08.2010 14.41 LACS

• REGULAR SUBSCRITPION FEE OF RS.4,41,200 (RUPEES FOUR LACS FORTY ONE THOUSAND TWO HUNDRED ONLY) INCLUDING SERVICE TAXES WILL COMMENCE FROM 3RD MAY 2010 ONWARDS FOR THE TWIN CITIES OF HYDERABAD and SECUNDERABAD.

• SERVICES WILL BE ACTIVATED IN THE NAME OF WWIL AND SUBSEQUENTLY WILL BE CHANGED IN THE NAME OF SITI VISION DIGITAL MEDIA PVT LTD, AND THE NEW AGREEMENT WILL BE IN FORCE TILL JANUARY 2011.

• CHANGE IN NAME WILL BE DONE IN THE COMPANY RECORDS AFTER SUBMITTING THE VALID DOCUMENTS

• IN CASE OF DEFAULT IN THE ABOVE UNDERSTANDING, ESPN SOFTWARE INDIA PVT LTD RESERVES THE RIGHT TO DE-ACTIVATE ITS SERVICES ON WWIL PLATFORM WITH OUT ANY PRIOR INTIMATION AND THE UNDERSTANDING BECOMES NULL and VOID WITHOUT ANY LIABILITIES ON ESS FOR PAYBACKS AND ALL OTHER TERMS and CONDITIONS REMAIN UNCHANGED.

From a bare perusal of the said memorandum of understanding, it would appear that Mr. Manish Jetley, Mr. C.H. Srinivas, and Mr. Manoj Dubey represented `ESPN’ who are said to be the incharge of its Hyderabad office, whereas the respondent was represented by Mr. K. Siva Rama Krishna and Mr. I.S. Rama Krishna.

By reason of an E-mail sent at 9.48 p.m. on 3.5.2010 addressed to Shri I.S. Rama Krishna, Mr. C.H. Srinivas attached a copy of said MOU for his information.

Mr. I.S. Ram Krishna within a few minutes i.e. at about 10.17 p.m. on the same date acknowledged the receipt thereof.

By another e-mail of the same date sent at 10.20 p.m. Mr. Srinivas requested Mr. I.S. Rama Krishna to close the same immediately. The respondent, however, by its letter dated 16.8.2010 addressed to the broadcaster forwarded three cheques to it.

The petitioner thereafter by its letter dated 25th August, 2010

returned the said cheques, stating :

“At the outset we must state that contents of your letter are completely incorrect, misleading and do not portray correct picture. Just to reaffirm that the contents of MOU enclosed by you have been modified to the draft we had proposed in May’ 10, therefore, this MOU is not acceptable to us. Further, we are also returning the said cheques enclosed by you in your letter.”

We may notice that the respondent along with its letter dated 16.8.2010 apart from the cheques also annexed a purported copy of the said MOU, the relevant portion whereof reads thus:

• M/S WIRE and WIRELESS INDIA PVT. LTD., HYDERABAD WILL PAY A SUM OF RS.60.00 LACS TOWARDS SETTLEMENT OF OLD OUTSTANDING TO ESPN SOFTWARE INDIA PVT. LTD.

• RS.60.00 LACS (RUPEES SIXTY LAKHS ONLY) WILL BE CLEARED IN 3 INSTALMENTS ALONG WITH THE MONTHLY SUBSCRIPTION FEES AS PER THE DETAILS MENTIONED BELOW

DATE OUSTANDING BILLING TOTAL

• 16TH MAY’10 - RS.20.00 LACS 4.41 LACS 24.41 LACS

• 16TH JUNE’10 - RS.30.00 LACS 4.41 LACS 34.41 LACS

• 16TH AUG’10 - RS.10.00 LACS 4.41 LACS 14.41 LACS

• POST DATED CHEQUES WILL BE ISSUED TILL AUGUST 10 TOWARDS THE SETTLEMENT OF OLD ARREARS ALONG WITH THE MONTHLY SUBSCRITPION FEES AS PER THE DETAILS MENTIONED BELOW

CHEQUE NO. DATE AMOUNT BANK

1. 090946 16.05.2010 24.41 LACS ICICI

2. 090947 16.06.2010 34.41 LACS ICICI

3. 090948 16.08.2010 14.41 LACS ICICI

• REGULAR SUBSCRITPION FEE OF RS.4,41,200 (RUPEES FOUR LACS FORTY ONE THOUSAND TWO HUNDRED ONLY) INCLUDING SERVICES TAXES WILL COMMENCE FROM 3RD MAY 2010 ONWARDS FOR THE TWIN CITIES OF HYDERABAD and SECUNDERABAD.

• SERVICES WILL BE ACTIVATED IN THE NAME OF WWIL AND SUBSEQUENTLY WILL BE CHANGED IN THE NAME OF SITI VISION DIGITAL MEDIA PVT LTD, AND THE NEW AGREEMENT WILL BE IN FORCE TILL JANUARY 2011.

• CHANGE IN NAME WILL BE DONE IN THE COMPANYRECORDS AFTER SUBMITTING THE VALID DOCUMENTS

• IN CASE OF DEFAULT IN THE ABOVE UNDERSTANDING, ESPN SOFTWARE INDIA PVT LTD RESERVES THE RIGHT TO DE-ACTIVATE ITS SERVICES ON WWIL PLATFORM WITH OUT ANY PRIOR INTIMATION AND THE UNDERSTANDING BECOMES NULL and VOID WITHOUT ANY LIABILITIES ON ESS FOR PAYBACKS AND ALL OTHER TERMS and CONDITIONS REMAIN UNCHANGED.

K. SIVA RAMA KRISHNA MANOJ DUBEY

JV PARTNER AREA MANAGER

WIRE and WIRELESS INDIA LTD ESPN SOFWARE INDIA PVT. LTD.

I.S. RAMA KRISHNA CH SRINIVAS

DY. GENERAL MANAGER SR. MANAGER

WIRE and WIRELESS INDIA LTD ESPN SOFWARE INDIA PVT. LTD.

MANISH JETLEY

ASSOCIATE DIRECTOR

ESPN SOFTWARE INDIA PVT LTD.”

The short question which arises for consideration in these petitions is as to whether any agreement had been arrived by and between the parties hereto and as to whether the respondent has complied with the terms thereof, in the event, the answer to the first question is rendered in the affirmative.

Mr. Bhatia, the learned counsel appearing on behalf of the respondent would contend that the materials brought on record would clearly go to show that the contention of the Broadcaster that modification was made to the original MOU dated 3.5.2010 is wholly incorrect inasmuch as from a bare perusal thereof it would appear that except the number of the cheques and the amount which had been stated in the revised MOU, no significant change has been effected.

It was urged that keeping in view the materials brought on record, the evidence of Shri P.A. Sunil Ganpathy (PW1) must be discarded as he had no personal knowledge in relation thereto.

The learned counsel further submits that it is not a case where the respondent had withdrawn its offer after 3.5.2010. Drawing our attention to the evidence of Mr. Sunil Ganpathy, the witness examined on behalf of the petitioner, Mr.Bhatia submitted that therefrom it will be apparent that immediately after the said MOU was entered into, three post dated cheques were tendered to the respondent in person. Again in the month of August, the said cheques were tendered at the Hyderabad office of the petitioner which having not been accepted, by the said letter dated 16.8.2010 together with the MOU as also three cheques had been sent.

Mr. Ganpathy, the learned counsel appearing on behalf of the broadcaster, on the other hand, would urge:-

(A) The petitioner has not adhered to the terms and conditions agreed upon by and between the parties hereto.

(B) Assuming that the term agreement had been entered into on or about 3.5.2010 it would be evident that there were reciprocal obligations to be performed and the respondent having failed to perform its part of contract, the petition filed by it cannot be allowed.

(C) Having regard to the provisions contained in Section 52 of the Indian Contract Act the respondent is not entitled to any relief.

(D) The services of the petitioner were to be provided for the period 3.5.2010 till January, 2011, and the said period being almost over no decree in favour of the respondent should be passed by this Tribunal in view of the provisions of Section 20 of the Specific Relief Act, 1963.

(E) The respondent having accepted its liability of Rs.60 lakhs as arrears of subscription fee in terms of their letter dated 16.8.2010, the petition of the broadcaster should be allowed.

Before adverting to the rival contentions of the parties we may also notice some statements made by the respondent in its petition being Petition No.300(C)/2010 which read as under:

“8. It is submitted that the aforesaid Agreement between the parties was duly recorded by Mr. C.S. Srinivas of ESPN and was mailed to Mr. I.S. Ramakrishna vide e-mail dated 03.05.2010. Copies of the e-mails dated 03.05.2010 alongwith the MOU dated 03.05.2010 are annexed herewith as ANNEXURE P-1 (Collly). It is respectfully submitted that there after the petitioner continuously tried to meet the respondent and hand over a duly signed copy of the MOU containing detailed agreement terms mailed to the petitioner by the respondent alongwith the cheques for payments towards the consideration agreed in the MOU, after incorporating the details of Cheque no. and the bank as per follow:

(i) Ch. No.090946 dtd 16/5/10 drawn on ICICI Bank for Rs.24.41 lacs comprising of monthly subscription fee of Rs.4.41 lacs and Rs.20.00 lacs towards old outstanding dues.

(ii) Ch. No.090947 dtd 16/6/10 drawn on ICICI Bank for Rs.34.41 lacs comprising of monthly subscription fee of Rs.4.41 lacs and Rs.30.00 lacs towards old outstanding dues.

(iii) Ch. No. 090948 dtd 16/8/10 drawn on ICICI Bank for Rs.14.41 lacs comprising of monthly subscription fee of Rs.4.41 lacs and Rs.10.00 lacs towards old outstanding dues.

However, the respondent avoided to receive the same for the reasons best known to the respondent. The same is evident from various orders passed by this Hon’ble Tribunal dated 21.05.2010 and 29.06.2010 and 16.07.2010 in petition no.51(c) of 2010, wherein, it is clearly recorded that the parties have arrived at an Agreement, however, implementation of the same was awaited. Copy of orders dated 21.05.2010 and 29.06.2010 and 16.07.2010 in petition no.51(C) of 2010 is annexed as ANNEXURE P-2 (Colly.)

9. It is respectfully submitted that the petitioner once again visited the office of the respondent on 09.08.2010 at Hyderabad to handover a duly signed copy of the MOU along with the cheques for payments towards the consideration agreed in the MOU. It is however, respectfully submitted that the respondent again refused to receive the duly signed MoU alongwith the cheques on the pretext of non-receipt of necessary instructions/ advice from its Head Office. It is respectfully submitted that the petitioner has always been ready and willing to honour the agreement between the parties arrived at on 03.05.2010. It is respectfully submitted that the petitioner in its bonafide has sent duly signed the MOU dated 03.05.2010 and has also sent the three cheques as detailed above for the agreed amount to the Respondent vide letter dated 16.08.2010. Copies of letter dated 16.08.2010 sent to the Respondent alongwith duly signed copy of the MOU dated 03.05.2010 and three cheques as per the MOU are annexed herewith as ANNEXURE P-3 (COLLY.).”

The petitioner in its reply to the said paragraphs stated as under:

“9. The contents of paragraph 9 as stated are denied. It is submitted that the representative of the petitioner visited the office of the Respondent at Hyderabad but during such visit they did not bring anything as claimed by them. In this context it is submitted that there was no agreement between the parties either with regard to the previous outstandings, or the monthly subscription fee or for the area to be serviced. The petitioner had sent the MOU and the cheques by three letter dated August 16, 2010 addressed to the respondent but the same was returned by the Respondent vide their letter dated August 25, 2010 as mentioned hereinabove. Furthermore, without prejudice to this contention it is submitted that the respondent had made their offer on May 3, 2010 and the petitioner took over three months to respond to the respondents’ offer (assuming through not admitting that the officer made by the respondent was the same as claimed by te petitioner) by which time the ground dynamics had changed and the respondent was no longer interested in dealing with the terms unilaterally put forward by the petitioner. The petitioner did not pay to the respondent amounts which as per their own showing was payable for the months of May and June, 2010. A party in default cannot claim specific performance.”

As noticed heretobefore the petitioner in support of its case has examined Shri PA Sunil Ganpathy and the respondent has examined Mr. I.S. Ram Krishana.

Mr. Ganpathy although was incharge of the Hyderabad branch of the petitioner, indisputably Mr. Manoj Dubey was the Area Manager whereas Mr. C.H. Srinivas was the Senior Manager and Mr. Manish Jetley was the Associate Director and, thus, they were fully competent to represent the respondent.

Mr. Ganpathy did not have any personal knowledge with regard to the MOU in question.

From his evidence it is evident that even the aforementioned three officers of the petitioner were not required to report to Mr. Ganpathy, so far as the follow up action on the said MOU is concerned, as the same was required to be reported only to the Head Office.

From a bare comparison of the two MOUs there cannot be any doubt or dispute that apart from the name of Banks and some other details no substantial changes had been made therein.

It is in the aforementioned factual backdrop, the legal position has to be considered.

The provision of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 provides for a compromise and recording of the same by a competent court of law and in the event the same is accepted, a decree may be passed on that basis. It reads as under:

“xxxx

3. Compromise of suit - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]

1 [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]

[Explanation - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]

[3A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

Xxxx”

Thus, there was a doubt or dispute with regard to the genuineness or legality of the settlement arrived at by and between the parties during pendency of the petition, the same should be decided by this Tribunal itself.

However, in this case there appears to be some confusion with regard to the terms of the settlement.

From the order sheet dated 11.11.2010 it would appear that the matter between the parties had been negotiated but no agreement could be arrived at as the parties have still been endeavoring to settle their dispute by mutual discussions.

We may also notice the following orders:

Order dated 29.6.2010

“Put up the matter on 16.07.2010 for further directions as it is stated that parties have already settled their disputes and differences and only implementation is awaited.”

Order dated 16.7.2010

“It is sated by Mr. Tejveer Singh Bhatia, learned counsel appearing on behalf of the respondent that as the authorized representative of the respondent has gone abroad, the agreement between the parties could not be signed.

As prayed for, put up the matter on 2nd August, 2010 for directions.”

Order dated 2.8.2010.

“It is stated by learned counsel for the respondent that the parties are meeting at Hyderabad for settlement. If no settlement is arrived by the next date of hearing, the respondent may file its reply.”

Order dated 11.8.2010.

“It is stated that terms of settlement have been arrived at but it appears that some complication in relation thereto have arisen. Mr. Bhatia, the learned counsel for the respondent states that if the parties do not settle their disputes and differences within one week, the respondent shall file its reply. Rejoinder, thereto, if any, be filed within two weeks thereafter.

Put up the matter on 03.09.2010 for framing of issues.”

Evidently, according to the parties no final settlement had been arrived at which could be worked out. Probably in that view of the matter only the respondent herein has filed a petition praying for specific performance of the contract in terms of the said purported settlement being Petition No.300(C)/2010.

A fresh petition for the said purpose was not maintainable [see Jeet Enterprise vs. MSM Discovery Ltd.; Petition No.49(C) of 2009 disposed of on 4.2.2011]

The question which arises for our consideration is as to whether the memorandum of understanding, was given effect to or not.

From a perusal of memorandum of understanding dated 3.5.2010 it would appear that not only the outstanding amount of Rs.60 lakhs was to be paid in three instalments for a sum of Rs.20 lakhs, Rs.30 lakhs and Rs.10 lakhs payable on 16.5.2010, 16.6.2010 and 16.8.2010 on the dates specified therefor, the respondent was also required to deposit post dated cheques till August, 2010 towards the settlement of old arrears along with monthly subscription fees as specified therein.

It is not in dispute that for the purpose of obtaining supply of signals of the channels of the petitioner for the towns of Hyderabad and Secunderabad the respondent was to pay a sum of Rs.4.41 lakhs by way of subscription fee each month. Thus, on the dates specified therein and as noticed heretobefore, the respondent was to pay a sum of Rs.4.41 lakhs apart from the amount of Rs.60.00 lakhs for payment towards outstanding. If the subscription fee had also become payable, the respondent was bound to tender the same.

The respondent contends that it tendered a sum of Rs.24,41,000/- together with two post dated cheques for a sum of Rs.34,41,000/- and a cheque dated 14,41,000/-.

Shri I.S. Rama Krishna, examined on behalf of the respondent in his affidavit, stated as under:

“6. I state that the aforesaid Agreement between the parties was duly recorded by Mr. C.S. Srinivas of ESPN and was mailed to Mr. I.S. Ramakrishna, the deponent herein vide e-mail dated 03.05.2010. Copies of the e-mails dated 03.05.2010 alongwith the MOU dated 03.05.2010 are exhibited as EXHIBIT RW1/1 (COLLY.) (Pages 64-66 of the paper book). I state that thereafter I continuously tried to meet the officers of ESPN and hand over the duly signed copy of the MOU containing detailed agreement terms mailed to WWIL by ESPN alongwith the cheques for payments towards the consideration agreed in the MOU after incorporating the details of Cheque no. and the bank as per following details:

(i) Ch. No.090946 dtd 16/5/10 drawn on ICICI Bank for Rs.24.41 lacs comprising of monthly subscription fee of Rs.4.41 lacs and Rs.20.0 lacs towards old outstanding dues.

(ii) Ch. No.090947 dtd 16/6/10 drawn on ICICI Bank for Rs.34.41 lacs comprising of monthly subscription fee of Rs. 4.41 lacs and Rs. 30.00 lacs towards old outstanding dues.

(iii) Ch. No. 090948 dtd 16/8/10 drawn on ICICI Bank for Rs.14.41 lacs comprising of monthly subscription fee of Rs.4.41 lacs and Rs.10.00 lacs towards old outstanding dues.

I state that ESPN avoided to receive the same for the reasons best known to ESPN.

7. I state that I once again visited the office of ESPN on 09.08.2010 at Hyderabad to hand over the duly signed MOU along with the cheques for payments towards the consideration agreed in the MOU. I state that officers of ESPN refused to receive the duly signed MOU along with the cheques on the pretext of non-receipt of necessary instructins/advice from its Head Office. I state that WWIL has always been ready and willing to honour the agreement between the parties arrived at on 03.05.2010. I state that WWIL in its bona fide has sent duly signed the MOU dated 03.05.2010 and has also sent the three cheques as detailed above for the agreed amount to ESPN vide letter dated 16.08.2010. Copies of letter dated 16.8.2010 sent to ESPN alongwith duly signed copy of the MOU dated 03.05.2010 and three cheuques as per the MOU are exhibited as EXHIBIT RW1/2(Colly) (pages 67-74) of the paper book.)”

Whereas paragraph 6 of the said affidavit has been verified by the said deponent as true to his personal knowledge, paragraph 7 has been verified as true to his knowledge as derived from the records of the company maintained in normal course of business.

It is, therefore, difficult to appreciate the statements made by the said witness. The verification of the said statements does not meet the requirements of law.

If those cheques were signed, it is difficult to comprehend as to why he had continuously been trying to e-mail the officers of the petitioner at Hyderabad. If the duly signed copy containing the detailed agreed terms with the cheques were tendered and not accepted, they could have been sent by post.

No reliance can be placed on the evidence of Shri Rama Krishna. The said statements appear to us to have been made by way of afterthought.

From a bare perusal of the MOU it would be evident that timely tender of the aforementioned amounts was sine qua non for giving effect thereto. The respondent could not have tendered the cheques in August, 2010.

Mr. Bhatia urged that the petitioner has not given any suggestion to the said witness that the cheques were not tendered. We do not agree. The evidence of RW1 reads as under:

“Attention of the witness is drawn to Para 6 of his affidavit

Q. You have stated in the said para that you continuously tried to meet the officials of the ESPN and hand over a copy of the signed MOU alongwith the cheuques. Is there any correspondence or any communication issued by you in this regard to ESPN?

A.Yes.

Q. Is there any correspondence and communication in this regard issued by WWIL to ESPN before 16.8.2010?

A. We were only approaching them with signed MOU from our side along with the cheques.”

It is well known that even if no suggestion has been given to a witness, it is for the courts to weigh his evidence. Furthermore if the witness of the respondent went to Hyderabad office of the petitioner on 7.8.2010, there was absolutely no reason as to why he waited for a week to send the cheques under registered cover with acknowledgment due, particularly when time was expiring.

It would have been the normal course of conduct of a prudent businessman particularly reputed business company like the respondent to send a letter to a broadcaster when connections have not been given upon receipt of cheques or the cheques were refused to be accepted despite being tendered.

The cheques could have even been sent through courier service or speed post.

The affidavit does not specify as to when the respondent’s office received the cheques. There is absolutely no reason as to why the cheques were not tendered immediately. The deposition of the said witness, thus, in our opinion appears to be inherently improbable.

The respondent has prayed for in its petition a decree for specific performance of the said agreement dated 3.5.2010.

However, it was not a concluded contract but was a conditional one.

The performance of the contract was dependent upon tendering of the amounts on the dates specified therefor i.e. from May, 2010 to August, 2010. The promises between the parties were reciprocal. In view of the provisions contained in Section 52 of the Indian Contract Act, the settlement was a comprehensive but a conditional one. They were required to be performed as expressly stipulated under the MOU. The respondent has failed to do so. In other words, the contract between the parties by way of settlement was to be performed as parts of an overall settlement. It cannot be enforced piecemeal.

The Supreme Court of India in NathuLal vs. Phoolchand 1969(3) SCC 120 stated the law thus:

“12. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform the two conditions only after the amount of Rs. 21,000 was paid is plainly contrary to the terms of the agreement. By virtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms, of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier.”

(see also Digital Infotainment Pvt. Ltd. Mumbai and Ors. Vs. M/s Anush Satellite Network Karnatka and Ors.; Pettion No.150(C) of 2009 disposed of on 7.2.2011)

In that view of the matter too, no decree for specific performance of contract which is discretionary in nature as envisaged under Section 20 of the Specific Relief Act, 1963 should be granted in favour of the respondent. Even otherwise the petitioner should have invoked the proviso appended to Order XXIII Rule 3 of the Code of Civil Procedure, 1908.

More significantly the services were to be activated in the name of the respondent and subsequently the same was to be changed in the name of Siti Vision Digital Media P. Ltd. Neither we have been informed nor any material has been brought on record before us to show as regards the relationship between the respondent and the said Siti Vision Digital Media P. Ltd.

A new agreement was executed by the parties. The same was to remain in force till January, 2011. The said period has also expired. Thus, even if, the respondent’s petition is allowed, no fruitful purpose would be served by passing a decree as prayed for.

We, therefore, are of the opinion that no case has been made out to allow the petition of the respondent herein.

The respondent has admitted its liability to the extent of a sum of Rs.60 lakhs.

It has stated so in the following terms;

(i) M/s Wire and Wireless India Ltd., Hyderabad will pay a sum of Rs.60 lacs towards full and final settlement of old outstanding dues of ESPN Software India Pvt. Ltd. (ESPN) for which the above mentioned petition has been filled by M/s ESPN, way of three installments as per following details:

16th May 2010 Rs.20 lacs

16th June 2010 Rs.30 lacs

16th August 2010 Rs.10 lacs

In view of the aforementioned admission alone, the petition of the Broadcaster should be allowed, inasmuch as no evidence has been brought on record by the respondent to show as to why the action put forth by it should be dismissed.

However, keeping in view the fact that the broadcaster has gone to the extent of denying execution of the said MOU and raised contentions that the terms thereof were modified by the respondent which is not correct, we are of the opinion that interest of justice would be subserved if the rate of interest is fixed at 9% per annum not only till the date of filing of the petition but also pendente lite and future.

However, there is no doubt in our mind that keeping in view the past relationship between the parties, they shall enter into a new agreement on such term or terms as they may deem fit and proper.

In the facts and circumstances of the case there shall be no order as to costs.


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