IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.04.2010 Coram: The Hon'ble Mr.Justice D.MURUGESAN AND The Hon'ble Mr.Justice M.SATHYANARAYANAN Original Side Appeal Nos.425 to 428 of 2009 O.S.A.Nos.425 and 426 of 2009 M/s. Jak Communications Pvt. Ltd. 1st Floor, No.402, J.K.Complex, Appellant in CTH Road, Avadi, Chennai-600 054. ... both the OSAs Versus 1. M/s. Sun TV Network Limited rep. by its Manager (Programming) Mr.L.Jotheeswaran, No.4, Norton Road, Mandaveli, Chennai-600 028. 2. M/s. Channel Plus (Unit of Kal. Comm. P. Ltd., rep. by its authorized signatory, Mr.C.P.Yuvaraj, No.4, Norton Road, Mandaveli, Respondents in Chennai-600 028. ... both the OSAs O.S.A.Nos.427 and 428 of 2009 M/s. Temple City Network, rep. by its Proprietor, Mr.Krishnamurthy, No.16-A, Sengazhu Neerodai Street, Appellant in Kancheepuram – 631 502. … both the OSAs Versus 1. M/s. Sun TV Network Limited rep. by its Manager (Programming) Mr.L.Jotheeswaran, No.4, Norton Road, Mandaveli, Chennai-600 028. 2. M/s. Channel Plus (Unit of Kal. Comm. P. Ltd)., rep. by its authorized signatory, Mr.C.P.Yuvaraj, No.4, Norton Road, Mandaveli, Respondents in Chennai-600 028. ... both the OSAs https://hcservices.ecourts.gov.in/hcservices/ Original Side Appeals filed under Order XXXVI Rule 9 of O.S.Rules, read with Clause 15 of the Letters Patent. O.S.A.No.425 of 2009 is filed against the order dated 3.11.2009 made in A.No.5777 of 2009 in C.S.No.963 of 2009. O.S.A.No.426 of 2009 is filed against the order dated 3.11.2009 made in A.No.1111 of 2009 in C.S.No.963 of 2009. O.S.A.No.427 of 2009 is filed against the order dated 3.11.2009 made in A.No.5778 of 2009 in C.S.No.973 of 2009. O.S.A.No.428 of 2009 is filed against the order dated 3.11.2009 made in A.No.1119 of 2009 in C.S.No.973 of 2009. Mr.R.Krishnamoorthy, Senior Advocate for Mr.V.Ayyathurai for the Appellants in O.S.A.425 & 426/2009 Mr.R.Muthukumarasamy Senior Advocate for Mr.V.Ayyathurai for the Appellants in O.S.A.427 & 428/2009 Mr.P.S.Raman, Senior Advocate assisted by Mr.J.Ravindran for the Respondents in O.S.A.425 & 426/2009 Mr.Vijay Narayan, Senior Advocate for Mr.B.K.Girish Neelakandan for the Respondents in O.S.A.427 & 428/2009 JUDGMENT D.MURUGESAN, J. The controversy arising in these appeals is as to whether this Court is having jurisdiction to entertain a suit in respect of dispute/disputes relating to the infringement of copyright and piracy in the wake of Section 15 of the Telecom Regulatory Authority of India Act, 1997, which bars the civil Court to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal constituted under Section 14 of the Act would be empowered to determine. 2. The following are the few facts that are necessary for the disposal of these appeals. For convenience, the parties are referred to as arrayed in the civil suits. 3. The pleadings in C.S.No.963 of 2009 are as follows. M/s Sun TV Network Limited (hereinafter referred to as “the first plaintiff”) is a leading Television Network in South India. Sun TV is one of its channels and is the number one channel in Tamil Nadu when it comes to viewership. The first plaintiff also runs other https://hcservices.ecourts.gov.in/hcservices/ channels in Tamil, namely, K.TV, Sun Music, Sun News, etc. The first plaintiff had devised the system of uplinking various programmes to satellite and facilitate the downloading of such programmes by authorized Multi System Operators (MSOs). In order to download the signals of the first plaintiff’s channels, they had authorized persons in various areas across the whole of India through the second plaintiff, namely, M/s Channel Plus (hereinafter referred to as “the second plaintiff”) and for that purpose, subscription agreements were entered into. Only such subscribing persons were entitled to receive the signals of the first plaintiff’s channels for onward transmission to the cable TV operators. Any other person who receives such signals and/or uses it for further broadcast/transmission would be deemed to have infringed their copyright and is also liable for prosecution for the offences under the provisions of the Copyright Act, 1957 and other relevant statutes, apart from payment of damages and penalty. 4. The first defendant, namely, M/s Jak Communications Private Limited had entered into a settlement agreement dated 8.7.2009 with the second plaintiff and in pursuance of the said settlement, the second plaintiff handed over decoders to the first defendant for distribution of the signals in Kancheepuram Town. Thereafter, the first defendant stopped making payments and returned the decoders issued to them alleging that the second plaintiff did not comply with the terms of the settlement agreement. Having returned the decoders for Kancheepuram, the first defendant had been supplying the signals to its operators illegally not only in Kancheepuram Town, but also to the other operators in Kancheepuram and Tiruvannamalai Districts, the areas/districts which were not even covered under the agreement. Hence the second plaintiff issued notice to the first defendant and in spite of the same, the first defendant continued to distribute the signals illegally. On the ground that the first defendant had been illegally pirating the signals from their Avadi head-end to the other areas of Kancheepuram and Tiruvannamalai Districts by using the decoder boxes and cards and that the other defendants viz.,2 to 97 were only cable operators who did not have any subscription agreement with the plaintiffs and/or with their distributors to tap/receive the signals of the channels, both the plaintiffs filed the above civil suit for a judgment and decree of permanent and prohibitory injunction restraining the defendants/its agents and attached cable operators, head-ends, or anyone from taking link from them and their partners or proprietors and all others in capacity of principal or agent acting for and on their behalf from in any manner violating and infringing the Broadcast Reproduction Rights as well as the Copyright in the programmes telecast by the first plaintiff by illegally tapping/receiving/recording the signals of Sun TV, KTV, Sun Music, Sun News, Gemini TV and Teja TV and transmitting/telecasting the same or communicating the same to their Cable Operators, customers/subscribers/end users, without the https://hcservices.ecourts.gov.in/hcservices/ permission, license or consent of the plaintiffs. Along with the civil suit, they also filed O.A.No.1111 of 2009 for an ad-interim prohibitory injunction restraining M/s Jak Communications Private Limited and 96 others from in any manner violating and infringing the Broadcast Reproduction Rights as well as the Copyright in the programmes telecast by the first plaintiff by illegally tapping/receiving/recording the signals of Sun TV, KTV, Sun Music, Sun News, Gemini TV and Teja TV and transmitting/telecasting the same or communicating the same to their Cable Operators, customers/subscribers/end users, without the permission, license or consent of the applicants, pending disposal of the suit. 5. Almost with similar pleadings, both the plaintiffs viz., M/s Sun TV Network Limited and M/s. Channel Plus also filed another suit in C.S.No.973 of 2009 and O.A.No.1119 of 2009 against the first defendant-M/s Temple City Network and 79 others for a similar relief of injunction. 6. By order dated 28.10.2009, ad-interim prohibitory injunction was granted by this Court. The first defendant in C.S.No.963 of 2009 namely, M/s Jak Communications Private Limited filed Application No.5776 of 2009 seeking to vacate the ad-interim injunction. They also filed Application No.5777 of 2009 to reject the plaint in C.S.No.963 of 2009 primarily on the ground that in terms of Sections 15 and 27 of the Telecom Regulatory Authority of India Act, 1997, there is a statutory bar for this Court to entertain the suit. Likewise, the first defendant in C.S.No.973 of 2009, namely, M/s Temple City Network also filed Application No.5778 of 2009 to reject the plaint on the very same ground. 7. All the applications were heard and disposed of by a common order dated 3.11.2009 by the learned single Judge holding that the dispute pertains to transmission of signals to other areas not covered by the agreement and therefore the suits were maintainable. He has also relied on an order of the Division Bench of this Court in New Galaxy Netcom v. S.C.V., (2009) 4 MLJ 909. He dismissed the applications filed by the defendants for rejection of plaint. The learned Judge also extended the interim order of injunction granted against the first defendant until further orders and ordered ex parte injunction as against the other defendants. 8. Questioning the above orders, both M/s Jak Communications Private Limited and M/s Temple City Network have preferred the present original side appeals. 9. We have heard Mr.R.Krishnamoorthy, learned senior counsel appearing for M/s Jak Communications Private Limited, the first defendant in C.S.No.963 of 2009, Mr.R.Muthukumaraswamy, learned senior counsel appearing for M/s Temple City Network, the first defendant in C.S.No.973 of 2009, Mr.P.S.Raman, learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel for M/s Sun TV Network and M/s Channel Plus, the first and second plaintiffs in C.S.No.963 of 2009 and Mr.Vijay Narayan, learned senior counsel for M/s Sun TV Network and M/s Channel Plus, the first and second plaintiffs in C.S.No.973 of 2009. 10. Mr.R.Krishnamoorthy, learned senior counsel would submit that M/s Jak Communications Private Limited applied on 20.2.2008 for Conditional Access System (CAS) for Chennai Metropolitan area, where the plaintiffs are acting as Multi System Operators and the Ministry of Information and Broadcasting granted permission on 5.8.2008. In the meantime, due to business competition, the second plaintiff issued statutory notice followed by publication of notice in the newspaper as required under Regulation 4.1 and 4.2 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 (for short, “the Interconnection Regulations”). Hence M/s Jak Communications Private Limited filed a petition under Section 14 of the Telecom Regulatory Authority of India Act (for short, “the TRAI Act”) before the Telecom Disputes Settlement and Appellate Tribunal (for short, “the TDSAT”). Therefore, both the plaintiffs issued another disconnection notice for the alleged non- payment of charges and on the alleged ground of piracy as per Regulation 4.1 and 4.2 of the Interconnection Regulations, which necessitated M/s Jak Communications Private Limited to again move TDSAT with another application. As the permission for Conditional Access System for Chennai area was granted, that order added fuel to the fire. In the meantime, the TDSAT after negotiations directed the settlement to be entered between M/s Jak Communications Private Limited and M/s Channel Plus and accordingly, a service contract agreement dated 8.7.2009 was entered into between the plaintiffs and M/s Jak Communications Private Limited for Avadi and other areas. Another agreement dated 16.7.2009 was also entered into for Kancheepuram District for the period upto 16.10.2009. These papers were unfilled, but signed on behalf of M/s Jak Communications Private Limited. In the meantime, M/s Jak Communications Private Limited withdrew the pending case in Petition No.112(C) of 2008 and M.A.No.80 of 2008 as per the terms of settlement agreement dated 8.7.2009. Thereafter, the plaintiffs failed from their promise to grant Multi System Operator for the Kancheepuram District and restricted only for Kancheepuram Town. In violation of the terms of the settlement agreement, it suspended the settlement agreement and also took steps to restore the case in Petition No.112(C) of 2008. Again M/s Channel Plus issued another disconnection notice dated 25.10.2009 under Regulation 4.9 and 4.3 alleging that M/s Jak Communications Private Limited was transmitting signals to unauthorized areas namely, Kancheepuram Town by illegally using its head-end facility at Avadi. 11. He would therefore submit that only under the said circumstances, the suit came to be filed. It is his contention that having defended those petitions before TDSAT, the plaintiffs cannot https://hcservices.ecourts.gov.in/hcservices/ now file the suit on the ground that the dispute does not fall under Section 14 of the TRAI Act. The learned senior counsel also submitted that there is express bar under Section 15 of the TRAI Act for a civil Court to entertain and try a suit which is covered under Section 14 of the Act. M/s Jak Commmunications Private Limited is a service provider as defined under Section 2(1)(j) of the TRAI Act and Regulation 2(n) of the Interconnection Regulations. He would submit that the telecommunication service is defined under Section 2 (1)(k) of the TRAI Act, which includes other service to be telecommunication service. In that event and by virtue of the proviso to that section, the Central Government may notify and such notification may further include broadcasting service as well. That proviso came into force only with effect from 24.1.2000 and a notification was also issued by the Central Government on 9.1.2004 declaring broadcasting services to be telecommunication services within the meaning of Section 2(1)(k) of the TRAI Act and therefore the issue relating to telecommunication service is covered under the TRAI Act and the said Act being a later enactment, it would prevail over the provisions of the Copyright Act. Inasmuch as the dispute is between the service providers, the plaintiffs should only approach the TDSAT in terms of Section 14, especially when Section 15 bars the civil Court’s jurisdiction in respect of any matter which the appellate Tribunal is empowered to adjudicate and determine. 12. Mr.R.Muthukumaraswamy, learned senior counsel appearing for M/s Temple City Network would also submit that Section 14 of the TRAI Act would cover all disputes except what is stated in the proviso to the said Section. Such proviso does not include the dispute relating to copyright. The suit is not maintainable, as the plaintiffs should approach only the TDSAT. He would submit that Section 2(1)(j) of the TRAI Act and Regulation 2(n) of the Interconnection Regulations should be read to mean that the broadcasting service also includes service provider. Interconnection Regulations were framed in exercise of the powers conferred under Section 36 of the TRAI Act and those regulations have statutory force. In that event, the dispute between the plaintiffs and defendants should certainly fall under Section 14(a) (ii) of the TRAI Act and the TDSAT alone will have power to determine the dispute. He would also submit that Chapter VIII of the Copyright Act comprising Sections 37 to 39-A was inserted by Amendment Act 1994 which speaks of broadcast reproduction rights only and that enactment being earlier in point to TRAI Act, the later enactment which is a special Act shall alone prevail. In any case, the plaintiffs are not licensees under the Telegraphic Act and they are only broadcaster, TV channel distributor and multi system operator respectively. These points were not considered by the earlier Division Bench in the judgment in New Galaxy Netcom case reported in (2009) 4 MLJ 909. Hence the learned senior counsel would submit that the suit is not maintainable and the plaint is https://hcservices.ecourts.gov.in/hcservices/ liable to be rejected. 13. Mr.Vijay Narayan, learned senior counsel appearing for the plaintiffs would submit that the issue is covered by the order of the Division Bench of this Court in New Galaxy Netcom v. S.C.V., (2009) 4 MLJ 909. He would submit that the TRAI Act deals with telecommunication service and it provides an appellate forum which is a high profile body with certain specific functions under Section 11 of the TRAI Act. The disputes covered under Sections 11 and 12 of the TRAI Act alone can be the subject matter of appeal under Section 14. However, the Copyright Act is an enactment for reconciliation of the law relating to copyright. Section 37 deals with violation of copyright which is known as ‘Broadcast Reproduction Right’. In terms of Section 39, no broadcasting reproduction right or performer’s right shall be infringed and for such infringement, civil remedies are available under Section 55 of the TRAI Act. Inasmuch as the suit is laid on the ground of infringement of copyright and piracy, the provisions of Section 14 of TRAI Act are not applicable and the suit is well within the provisions of Section 55 of the Copyright Act. While two enactments are considered, the relevant provisions should be interpreted in the context of the object and reasons. He would submit that the Court should strictly construe that the provision of civil law remedy is generally available unless it is specifically ousted. He would also submit that the defendants are not service providers within the meaning of Section 2(1)(j) of the TRAI Act and therefore they cannot claim that the power of the TDSAT can be traced to Section 14(a)(ii) of the TRAI Act. His further contention is that the disputes pending before the TDSAT and the participation of the defendants in those proceedings cannot be construed to be an estoppel and the parties cannot waive their right to oust the jurisdiction of civil Court unless such waiver is supported by law. As regards the submissions as to the application of Interconnection Regulations, he would submit that the Regulations cannot control the provisions of the Act and in case of any conflict, the Act shall prevail. Inasmuch as the defendants cannot be considered to be service providers in terms of Section 2(1)(j) of the TRAI Act, the disputes in question shall not fall under Section 14(a)(ii) of the TRAI Act. He would further contend that in any case, the judgment of the Division Bench in New Galaxy Netcom case (supra) is normally to be followed unless there are strong and compelling reasons to disagree. 14. Mr.P.S.Raman, learned senior counsel for the plaintiffs would also submit that going by the plaint, the Court would be entitled to entertain a suit in terms of Section 9 of the Civil Procedure Code and in that regard, Section 14 of the TRAI Act is not applicable. He would submit that the exclusion of civil Court jurisdiction is not general, as it is only an exemption. According to the learned counsel, the Copyright Act creates a pre-existing right and those rights are not specifically excluded in the TRAI https://hcservices.ecourts.gov.in/hcservices/ Act. He would further submit that a dispute for the purpose of both the appellate remedy or civil rights should be considered with reference to the objects of the Act. He would submit that when two enactments are put in issue, the provisions of these enactments should be read in consonance with the object and reasons for which the enactments were made and any interpretation to defeat that purpose of the particular enactment would defeat the very purpose of the Act itself. He would submit that by no stretch of imagination it can be contended that the TRAI Act could take away the right of the High Court to entertain a suit for infringement of copyright, especially when those disputes are not covered under Section 14 of the TRAI Act. He would reiterate that the defendants are not service providers. He would further submit that the subscription agreement did not cover certain areas where M/s Jak Communications Private Limited had illegally pirated and transmitted the signals from their Avadi head-end to the other areas. That apart, the agreements themselves were later on terminated and hence the defendants cannot claim that the above dispute could be brought under Section 14 of the TRAI Act. 15. We have given our anxious consideration to the submissions made by the respective learned senior counsel. In the wake of the above factual scenario, three questions arise: (i) Whether the jurisdiction of the civil Court to entertain a suit in respect of matters covered in Chapter VIII of the Copyright Act is excluded, in view of the provision of Section 15 of the TRAI Act? (ii) Whether the defendants are service providers in terms of Section 2(1)(j) of the TRAI Act and Regulation 2 (n) of the Interconnection Regulations? and (iii) Whether the plaintiffs are estopped from filing the suits, as they had defended the petitions filed by the defendants before TDSAT? 16. For deciding the questions, the relevant provisions of the TRAI Act, Interconnection Regulations, Copyright Act and the Civil Procedure Code need a reference and they are extracted hereunder:- “TRAI Act: Section 2(1)(e) defines “license” which means, any person licensed under sub-section (1) of Section 4 of the Indian Telegraph Act, 1885 for providing specified public telecommunication services. Section 2(1)(i) defines “regulations” which means regulations made by the Authority under this Act. Section 2(1)(j) defines “service provider”, which means the Government as a service provider and includes a https://hcservices.ecourts.gov.in/hcservices/ licensee. Sub-section (2) of Section 2 says the words and expressions used and not defined in this Act but defined in the Indian Telegraph Act, 1885 and Indian Wireless Telegraphy Act, 1933 shall have the meanings respectively assigned to them in those Acts. Chapter III of the TRAI Act speaks about the powers and functions of the Authority. Section 11 (1) states that notwithstanding anything contained in the Indian Telegraph Act, 1885, the functions of the Authority shall be to – … … Revocation of license for non-compliance of terms and conditions of license; Chapter IV deals with Appellate Tribunal. The said Chapter inserted by amending Act 2 of 2000 with retrospective effect from 24.01.2000. Section 14 reads as follows:- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement Appellate Tribunal to – (a) adjudicate any dispute -- (i) between licensor and a licensee; (ii) between two or more service providers’ (iii) between a service provider and a group of consumers: Section 14-A speaks about Application for settlement of disputes and appeals to Appellate Tribunal. Sub-section (2) of Section 14-A says that the Central Government or a State Government or a local authority or any person aggrieved by any direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal. Section 15 says that: No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empowered…………………… https://hcservices.ecourts.gov.in/hcservices/ Section 36 grants power to the Authority to make regulations. The Authority in exercise of powers conferred upon under Section 36 and other provisions and notifications has framed Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004. The said regulations shall cover arrangements among service providers for interconnection and revenue share, for all Telecommunication (Broadcasting and Cable Services) throughout the territory of India. Interconnection Regulations: Regulation 2 deals with definition and it starts with the words “unless the context otherwise requires”. Regulation 2(f) defines “broadcasting services”. Regulation 2(m) defines “multi-system operator” meaning any person who receives a broadcasting service from a broadcaster and/or their authorized agencies and re- transmits the same to consumers and/or re-transmits the same to one or more cable operators and includes his/her authorized distribution agencies. Regulation 4 speaks about Disconnection of TV channel signals and it reads as follows:- 4.1 No broadcaster or multi-system operator shall disconnect the TV channel signals to a distributor of TV channels without giving one month notice indicating the brief reasons for the proposed action; Provided that in case a distributor of TV channel is re-transmitting signals for which he/she is not authorized and thereby affecting the commercial interest of the concerned broadcaster or multi-system operator, the notice period shall be two working days giving reasons to the concerned distributor of TV channel for such action. Explanation:- A distributor of TV channels is said to be authorized if there exists any agreement between the broadcaster, including his/her agents permitting the distribution of the broadcasting service by the said distributor of TV channels, either through a written agreement or through an oral agreement. Consequently no notice would be required if there is no agreement, written or oral, permitting the distribution of the https://hcservices.ecourts.gov.in/hcservices/ broadcasting service. 4.2 Broadcaster/multi-system operator shall inform the consumers about the dispute to enable them to protect their interests. Accordingly, the notice to discontinue signal shall also be given in two local newspapers in case the distributor of TV channels is operating in local area and in two national papers in case the distributor of TV channels is providing services in a wide area. Alternatively consumers can be informed through scroll on the concerned channel(s). Where a Broadcaster or a Multi-System Operator decides to give this notice through a scroll in the concerned channel (s). Explanatory memorandum is also appended to the said Regulation, which explains the reasons for framing of the above said regulations and relevant portion is extracted below:- TRAI Act 1997 came to be amended by Act 2 of 2000. The said amendment came into being by virtue of the recommendation made by the Group of Telecom and IT Convergence under the