1. The Petitioner, ESPN Software India Pvt.Ltd., is the distributor of ESPN and Star Sports channels in India. The Respondent M/s Intermedia Cable Communications Pvt Limited is a Multi Systems Operator (MSO) engaged in the business of distributing Cable TV services to various households and other cable operators in the city of Pune.

2. An agreement was entered into between the Petitioner and the Respondent dated 5-12-2003 for the period 5-12-2003 to 4-12-2004 wherein the respondent agreed to pay subscription fee of Rs. 15,78,075 per month in respect of 39,750 subscribers at the rate of Rs. 39.70 per subscriber (also mentioned as new rate in the agreement). It is also mentioned in the agreement, photocopy of which is Annexure P1 with the Petition, under the heading "Subscription Fee" that it is 'subject to recovery from ground.' It appears that the Respondent did not pay the subscription fee at the 'new rate' and made "on account" payments for the period 5-12-2003 till 4-7-2004. According to the Petitioner, for the period beginning 5-7-2004, it was agreed with the Respondent that the latter would pay at the old rate of Rs.32 per subscriber per month a sum of Rs. 12,72,000 per month and the Respondent did pay at this rate for the period 5-7-2004 to 4-10-2004 whereafter he discontinued making payments although signals were continued to be availed of by the Respondent. When the matter was taken up by the Petitioner with the Respondent the following "on account" payments are stated to have been made:

The signals were discontinued by the Petitioner on 8-6-2005 after a public notice was issued in this regard on 31-5-2005. According to the Petitioner, for the period 5-7-04 to 4-1-05 the Respondent was liable to pay @ Rs.12,72,000/- per month and for the period 5-1-2005 to 4-6-2005 @ Rs.13,61,040/- (inclusive of 7 % increase as per TRAI guidelines) which would add up to Rs. 1,44,37,200/-. Against this liability the Respondent had paid only a sum of Rs. 67,11,881/- leaving a balance of Rs. 77,25,319/- as outstanding. Petitioner states that it has not calculated for ease of calculation any amounts for the 4 days from 5-6-05 to 8-6-2005. Petitioner has attached a statement of accounts at Annexure P4.

The Petitioner also states that even though the agreement had expired on 4-12-04, it continued to provide the services, based on the assurances of the representative of the Respondent, one Mr. Razzaq Khan that fresh contract would be signed.

3. Petitioner has made the following prayers:

(a) The Respondent be directed to pay to the Petitioner a sum of Rs. 77,25,319/- along with interest @ 12% per annum or any other rate of interest as may be determined by this Tribunal from the due date till realization by the Petitioner herein

(b) Pass such other or further order(s) as this Tribunal may deem fit and expedient to the interest of justice.

4. The facts in regard to the written subscription agreement are not denied by the Respondent. It appears that relations between the Petitioner and the Respondent got strained by the alleged disconnection of signals by the Petitioner for four days in January 2004 at the time of the India -Australia Cricket Series and another disconnection made in June 2004 for two days at the time of the Euro Soccer Football matches even though according to the Respondent excess subscription amounts had been made to the Petitioner. The Respondent states that it paid subscription w.e.f 5-12-2003 at the old rate despite not being able to collect the amounts from the ground. However, for the period beyond 4-12-2004 the Respondent has taken the stand that no fresh agreement was entered into after the expiry of the agreement dated 5-12-2003 and the Petitioner is therefore not entitled to make any claim for the period 5-12-2004 to 5-6-2005. The Respondent has in its counter affidavit further stated that this Tribunal has no jurisdiction to entertain this petition; that the service contract dated 5-12-2003 provides for Arbitration, and that the Petitioner even though a company incorporated in India is in reality foreign controlled, as such, it has no right / locus standi to enter into agreement with any of the companies in India without a permission from the Government of India. According to the Respondent, the Petitioner is not entitled to claim any reliefs as prayed for.

5. In its rejoinder the Petitioner has stated that in regard to the contention of the Respondent that no agreement was entered into after the expiry of the agreement dated 5-12-2003, at no point of time did the Respondent inform the Petitioner that it was not interested in receiving the services of the Petitioner. It was also reiterated, in the light of the objections taken by the Respondent, that the Tribunal had the jurisdiction to decide on this matter.

6. We have heard the learned Counsels. As regards the objections taken by the Respondent in its counter affidavit regarding jurisdiction of the Tribunal, these were not pressed by the counsel for the Respondent at the time of arguments. It was conceded that the legal position had been made clear in an earlier order of this Tribunal {Aircel Digilink India Ltd. v. UOI and Anr. (2005) 3 CLJ 461 (TDSAT) that arbitration is barred in respect of the matters which are within the exclusive jurisdiction of the TDSAT under the provisions of the TRAI Act. Also it was conceded that following the observations of the Tribunal in Sea TV Network Ltd v. Star India Pvt. Ltd 2005 5 CLJ 462 (TDSAT) distributors of TV Channels, like the Petitioner in this case will have to be considered as service providers, and TDSAT would have the jurisdiction to adjudicate on this dispute. During the course of arguments learned Counsel for the Petitioner stated that since signals were continued beyond the date of termination of the agreement and the Respondent did not ever state that it does not want the same, his client was willing to concede that the subscription fee for this period may be kept at the old rate namely, Rs.32 per subscriber. This would mean a monthly subscription of Rs. 12,72,000/- per month for the period 5-12-2004 to 4-6-2005 which the Respondent also admits of not having paid. Learned Counsel for the Respondent in reply stated that as against dues of Rs. 36.61 lakhs as on 30-11-2004, as brought out in the statement of accounts submitted Along with the counter affidavit (page 61) "on account" payment of Rs. 40,27,200/- had been paid subsequently in four installments, the last payment being of 12-4-2005, as such, an extra amount had been paid to the Petitioner. In regard to the services provided after 5-12-2004 it was argued that these were provided suo moto by the Petitioner, hence Respondent was not liable to pay any amount.

7. We have in this regard examined the evidence on record as brought out through the pleadings and the affidavits in support of the same as the parties did not choose to examine any witnesses in support of their respective contentions. We have taken note of the letter dated 21-4-2005 (Annexure P 6 to the rejoinder of the Petitioner) which clearly brings out that negotiations were on between the parties and that a request was made for reconciliation of accounts and an assurance was given by the Respondent that outstanding dues would be settled immediately on recovery from ground. It is also clearly stated therein "However the amount payable to ESPN / Star Sports is disputed and is under negotiation and hence it is needless to mention, since this is not a default there is no question of disconnection of services." meaning thereby that the amount to be paid is under negotiation and that the Respondent expected the signals to be continued. Based on the facts and circumstances brought out in the case, we are of the view that the Respondent is liable to pay for the signals to the Petitioner for the period 5-12-2004 to 4-6-2005 during which it enjoyed the signals of the Petitioner. The terms of payment put across by the Petitioner making the old rate applicable namely, that prevailing before coming into force of the agreement of 5-12-2003 i.e, Rs.12,72,000/- per month, in our view is a very reasonable offer. From the statement of accounts it appears that on this basis the amount due would be Rs.72,80,119/- (vide Annexure P4, page 23). Another way of computation would be to calculate the liability for the six month period 5-12-2003 to 4-6-2005 @ Rs.12,72,000/- which would come to Rs.76,32,000/- and after taking into account the excess payment which the Respondent states it has made against the liabilities as on 30-11-2005, the amount payable would come to Rs.72,21,000/- For the sake of resolving the matter we hold the Respondent liable to this lower figure of Rs.72,21,000/-. Since it has been mentioned that there is a problem of recovery of money from the ground, which has not been denied by the Petitioner and it finds mention in the agreement dated 4-12-2003 and also in the correspondence dated 21-4-2005, although the Respondent has had ample time to recover the dues from the ground we direct in the special circumstances of the case that this amount be paid in three equal monthly instalments payable on the 1st of June, July and August respectively. This will give more than adequate time to the Respondent to recover the said dues from the ground. If there is any delay in the payment of the instalments, the Respondent would be liable to pay interest at 12% per annum to the Petitioner for the period of delay.

8. We accordingly allow the petition in terms of our above directions with no order as to costs.