Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2016 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (4) TMI 1445 - HC - Indian LawsValidity of interim award - interim award does not contain reasons - nature of default award for non-compliance with the orders passed on the application under Section 17 - plea of equitable set of raised by Nimbus India not addressed - Nimbus India's application for inspection was still pending - the issue of limitation not adjudicated - Invocation of doctrine of equitable set off. HELD THAT:- An adjudication has to have three necessary elements, namely: a hearing; recording of conclusion based on material available; and reasons in support of the conclusions - all three elements are satisfied in the instant case. It is not a case where Nimbus India was not given a hearing. Recording of conclusion based on evidence - HELD THAT:- A definite conclusion recorded by the Arbitral Tribunal in its order dated May 06, 2014, to the effect that the material on record and the letters of Nimbus India and Nimbus Singapore themselves establish the claim of Prasar Bharati that the amount of ₹ 22,77,67,422/- was due to it. Before recording the said conclusion, the Tribunal had set out the respective stands of the parties. The order spanning 6 pages records the respective submissions in the first three pages, a brief capturing the important letters containing the admissions followed by the conclusion. To invoke the doctrine of equitable set off, the cross demands should arise from the same transaction or should be so connected that they can be looked upon as part of the same transaction. Admittedly, in this case, there were four different series and it cannot be said that cross demands arise out of the same transaction. The said demands were not so connected that they could be looked upon as part of one transaction. Further, the accounting between Prasar Bharati was independent with Nimbus Singapore and with Nimbus India. The claim of Nimbus India was that Nimbus Singapore had assigned the debts and the claims to it and thus with respect to the transactions between Prasar Bharati and Nimbus Singapore vis-a-vis those between Prasar Bharati and Nimbus India the question of inter-se equitable set off would inherently not arise. Further, Nimbus India could not raise for purposes of its counter claim any issue concerning India-England 2006 Series because the transaction between the said parties was not a subject matter of the arbitration proceedings - Just because Nimbus India in its letter dated May 16, 2009 sought to make adjustments by clubbing together all the series would not make them so inter-connected. Set off is like a cross suit or cross action. It is well settled that even a counter claim can be ordered to be tried by way of a separate suit. Its hearing can also be deferred. Pendency of a counter claim does not bar the Tribunal from making an interim award to the extent of admissions - It is well settled that in the case of breach of contract, pecuniary liability arises only after adjudication. Prior to that, there is no liability and no obligation to pay. A decree on admissions is to be passed if it is impossible for the party making the admission to succeed in the face thereof. In this case the admissions made are judicial admissions which cannot even be retracted. Time limitation - HELD THAT:- The set off was claimed on May 16, 2009. The arbitration agreement between the parties is dated August 31, 2011. There is no scope to argue that the claim was barred by limitation. We must frown upon the attitude of Nimbus India and Nimbus Singapore who are in utter breach of their respective obligations to secure the amounts by furnishing bank guarantees and to execute formal agreements. The two did not furnish the bank guarantee or deposit the amount directed by the Arbitral Tribunal nor complied with similar directions passed in the appeal. Whereas Nimbus Singapore has no asset in India, the assets of Nimbus India also appear to be nil. That is the reason why order dated October 31, 2014 passed by the learned Single Judge in AA No. 30/2014 requiring Nimbus India to file an affidavit detailing its assets located in India was not complied with. The appeal is accordingly dismissed imposing cost in sum of ₹ 50,000/- against Nimbus India and in favour of Prasar Bharati.
|