BUDHA FILMS PRIVATE LIMITED Vs. PRASAR BHARATI

JUDGEMENT

(1.) The respondent Prasar Bharati Broadcasting Corporation of India (hereinafter to be referred as 'Prasar Bharati' for short) has made DD Sports Channel as and encrypted or pay channel. Earlier to this it was free to air channel. This encryption of DD Sports Channel by Prasar Bharati has become cause of grievance to the appellant viz. Buddha Films Pvt. Ltd. According to the appellant this goes contrary to the Agreement dated 17/02/2000 entered into between appellant and Prasar Bharati as per which there was an assurance given to the appellant that DD Sports Channel would remain free to .air channel. The controversy surrounds the following actual matrix:

(2.) The Board of Control for Cricket in India (for short 'BCCI') entered into contract dated 25/09/1999 with Prasar Bharati. As per this contract Prasar Bharati was given exclusive and full terrestrial (free to air or encrypted) and satellite (free to air or encrypted) rights and licences to telecast all domestic and international cricket matches played in India conducted by BCCI during the term of contract which is up to 30th September, 2004. In turn Prasar Bharati invited bids for marketing of air time in India and overseas of the cricketing events conducted by the BCCI in India for the period from 1-1-2000 to 30-9-2004. The appellant also gave its bid. Bid of the appellant was accepted by Prasar Bharati vide letter dated 4/02/2000. It culminated into formal agreement dated 17/02/2000.

(3.) It is not in dispute that as per the recitals to the Agreement dated 17th February, 2000, terms and conditions contained in bid documents i.e. Tender Enquiry were made part of this Agreement between the parties. It is also not in dispute that the DD Sports Channel was free to air at the time when this Agreement was entered into between the parties fact there is a specific mention thereof in the Tender Documents. By the Agreement dated 17/02/2000 Prasar Bharati has granted to the appellant the rights for exclusive marketing of air time in the Territory' in respect of all cricketing events conducted by BCCI during the period 1-1-2000 to 30-9-2004. Territory is defined in the Agreement to "mean and include within the Territory of Union of India". The Agreement stipulates that domestic matches and test matches would be telecast live only on DD Sports (a satellite channel with a limited two hours live telecast of all test matches on DD 1 the National Channel which is both terrestria and satellite). The highlights of the test matches shall also be telecast twice by Prasar Bharati on DD-1. In consideration for the award of the rights for exclusive marketing of air time, the appellant is to pay to Prasar Bharati a minimum guaranteed revenue of Rs. 450.00 crores. Clause 8.1 while mentioning this consideration also stipulates the manner in which this amount is to be paid. It is also specified in this clause that if there are extra additional matches, how net revenue in excess of instalments of Minimum Assured Revenue (MAR) is to be paid. Provision is also made for reducing the MAR in the event countries named in the said clause are not able to participate or the series is not played due to any reason. Thus genesis of the Agreement is that appellant has to book advertisement by marketing air time and generate revenue therefrom. It has to pay MAR of Rs. 450.00 crores to the Prasar Bharati for this purpose.