TRIVENI MEDIA LTD Vs. ZOOM COMMUNICATIONS LTD

JUDGEMENT

(1.) BY this order, I shall dispose of the above two petitions made by the parties against each other. In OMP 165 of 2009, petitioner made a prayer that Zoom Communication Ltd (ZCL) should be restrained by this Court from forcibly or by coercive methods removing machines, equipments installed/ commissioned at the business premises of the petitioner bearing No.A-37, Sector-60, Noida being operated by the employees of the petitioner or restrain the removal of machines and equipment by ZCL in any manner without following the due process of law. In OMP 195 of 2009, ZCL made a prayer that this Court should give interim orders/ directions directing respondent Triveni Media Limited (TML) to handover to ZCL possession and custody of equipments detailed in List-A enclosed with the petition which were installed at the TML premises bearing number A-37, Sector 60, Noida by ZCL and restrain TML or its agents and servants in any manner using the said equipments till the time the entire amount due and payable to the petitioner under Facility Agreement was paid. A prayer was made that TML, its agents, employees or servants be restrained from damaging the equipments in any manner. A further prayer was also made that TML should be directed to arrange a security to the tune of Rs.27.84 crore (Rs.9.74 crores towards pending dues and Rs.18.10 crore towards the original costs of the equipments which continues to be installed and utilized) and TML be directed to continue to pay the additional sum of Rs.76,36,719.00 per month to ZCL. A request was also made for appointment of a Local Commissioner to visit the TML premises and prepare a list of equipments installed by ZCL.

(2.) BRIEF facts relevant for the purpose of deciding these two petitions are that TML wanted to enter into business of running satellite channels. It advertised to outsource supply of entire equipments and to set up necessary infrastructure for running satellite channels. ZCL responded to the advertisement and the parties entered into a Facility Agreement on 12th September 2007. In terms of the said agreement, the installation of equipments was to be done by ZCL within 90 to 120 days from the date of the agreement and the receipt of advance. The base cost of the equipments to be installed at the premises of TML by ZCL was to be Rs.30 crore. TML was to pay annual rent of Rs.13.50 crores (divided in 12 equal monthly installments) and which was calculated on the basis of 45% of total base costs and the applicable taxes. After five years of the installation of the equipment, TML was to become owner of the equipment on paying 15% of the base costs of the equipments. As per the agreement, the annual rental was to increase or decrease on the basis of additions or subtractions of equipments. The rental was to be calculated on the basis of 45% of the base costs. The agreement expressly provided that there shall be no delay in payment of monthly rentals. In case of delay of more than 30 days from the due date, the rent installment was to attract an interest @ 18% per annum. It was also agreed that delay beyond 20 days of due date, shall be termed as an event of default. It was agreed that after installation of equipments, the equipments was not to be removed from TML 's site during the continuation of agreement (5 years period) without prior written authorization of TML except in the event of default. However, in the event of default, ZCL was free to take possession of the equipment and remove the same from the premises of TML to a location of its own choice. The agreement provided that this removal, in the event of default, was unconditional and without any recourse to TML or any other entity.

(3.) THE agreement contained an arbitration clause according to which the disputes between the parties was to be resolved through arbitration at Delhi.