TMI Blog2016 (4) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as the said Act) was deemed to have come into force with effect from November 11, 2005, as per Sub- Section (3) of Section 1 of the said Act. As per sub-Section (1) of Section 3 of the Act, no content rights owner or holder and no television or radio broadcasting service provider could carry a live television broadcast on any cable or Direct-to-Home network or radio commentary broadcasting in India of sporting events of national importance, unless it simultaneously shared the live broadcasting signal, without its advertisements, with Prasar Bharati to enable Prasar Bharati to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified. As per sub-Section (2) of Section 3, the terms and conditions under sub-Section (1) of Section 3 were to provide that the advertisement revenue sharing between the content rights owner or holder and Prasar Bharati shall be in the ratio of not less than 75 : 25 in case of television coverage and 50 : 50 in case of radio coverage. 2. In exercise of the power conferred by Section 7 of the Act, the Sports Broadcasting Signals (Mandatory Sharin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either gave bank guarantees nor executed any contract and the result was the jural relationship between the parties concerning said sporting event being in terms of the Act and the Rules framed thereunder; sans any arbitration clause. For facility of reference, we put in a tabular form the six sports events referred to in paragraph 4 above. They would be as under:- Sr. No. Series Marketed by i. India - Bangladesh, 2007 Nimbus India ii. India - Australia, 2007 including T-20 Match Nimbus Singapore iii. India - Pakistan, 2007 Prasar Bharati iv. India - England, 2008 Nimbus Singapore v. India -Bangladesh-Pakistan, 2008 Nimbus India vi. India - Sri Lanka, 2009 Nimbus India 6. Since the interim award, challenge whereto by Nimbus India has failed before the learned Single Judge, concerns the dispute only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher of the two. 8. We simply highlight that the admitted position would be that a sum of ₹ 22,77,67,422/- would admittedly be payable to Prasar Bharati. 9. Pertaining to the India-Pakistan Series 2007, the bid by Prasar Bharati was ₹ 81.25 crores, of which 75% had to be paid to Nimbus India and this would translate to ₹ 60,93,75,000/- (Rupees Sixty Crores Ninety Three Lacs and Seventy Five Thousand only). Admittedly Prasar Bharati paid said amount to Nimbus India and as per Prasar Bharati the revenue which it generated from this series was ₹ 83,10,74,358/- and 75% thereof would be ₹ 62,33,05,768/-. Thus, qua this series only ₹ 1,39,30,768/- further are payable by Prasar Bharati to Nimbus India. 10. The position therefore would be that if no further dispute was raised, Nimbus India and Nimbus Singapore would be liable to pay to Prasar Bharati ₹ 22,77,67,422/- less ₹ 1,39,30,768/-. 11. Nimbus India and Nimbus Singapore did not pay any money to Prasar Bharati and on May 16, 2009 raised the issues as under:- (i) That a sum of ₹ 1,32,99,139/- was due to Nimbus India from Prasar Bharati for the India-England Series, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangladesh Pakistan Series, 2008 5. India England Series, 2008 6. India Sri Lanka Series, 2009 14. Prasar Bharati filed a statement of claim praying therein that the opposite party be directed to render a complete statement of account concerning the series where marketing rights were taken by it on account of it being the higher bidder. Prasar Bharati highlighted breach of the Rules by not opening an escrow account in which the revenue realized was credited and from which payments to be made to third parties were made. Prasar Bharati highlighted that Rules were breached inasmuch as an audited statement from a Chartered Accountant was not furnished. Prasar Bharati claimed the minimum guaranteed amount with the higher sum payable for the India-Sri Lanka 2009 Series inasmuch as Nimbus Singapore had admitted generating higher revenue above the minimum guaranteed. To put it pithily Prasar Bharati claimed ₹ 22,77,67,422/- being the admitted amount payable with a plea that if on rendition of accounts a higher amount became payable the same be awarded in its favour. Interest on the outstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had nothing to hide. Nimbus India raised a dispute on March 08, 2014 alleging that complete inspection was not given. It filed another application praying that Prasar Bharati be directed to give full inspection. 20. On May 02, 2014 the Arbitral Tribunal heard arguments on the applications filed by Prasar Bharati under Section 17 of the Arbitration and Conciliation Act, 1996 i.e. to secure the sum claimed by Prasar Bharati as also to pass an interim award. By a split verdict, two Arbitrators passed an order dated May 06, 2015 directing Nimbus India to furnish bank guarantee in favour of Prasar Bharati in sum of ₹ 20 crores. The minority Arbitrator held that this was not the stage to pass any interim order because counter claim by Nimbus India had to be adjudicated and thus primacy could not be given to the fact that Nimbus India, which claimed to have taken over the rights of Nimbus Singapore, owned over ₹ 22 crores to Prasar Bharati. 21. The order dated May 06, 2014 was challenged by Nimbus India vide A.A. No. 15/2014 in this Court in which notice was issued. Vide order dated August 26, 2014 this Court clarified that there was no stay in the arbitration proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal did not address itself to the plea of equitable set of raised by Nimbus India. (d) Nimbus India's application for inspection was still pending. (e) The Tribunal did not adjudicate the issue of limitation. 27. 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. 28. In our opinion all three elements are satisfied in the instant case. It is not a case where Nimbus India was not given a hearing. 29. In so far as the recording of conclusion based on evidence is concerned, we find 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be established and warranted recording of evidence. 37. 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 as was held in the decision dated February 08, 2008 in FAO (OS) No. 507/2007 Numero Uno International Ltd. Vs. Prasar Bharati. These are matters of discretion. The Arbitral Tribunal exercised the discretion based on the facts and circumstances of the case and gave cogent reasons for that. 38. In the counter claim an amount of ₹ 19,86,82,487/- has been claimed. How it is calculated is not stated with clarity. A sum of ₹ 21,19,81,626/- has been claimed as per particulars annexed, but we find no particulars being annexed. A sum of ₹ 3,53,44,126/- is claimed as per the particulars annexed, and we find no particulars being annexed and thus one is left scratching ones brain to fathom the basis of the said amount. 39. As regards the plea that till inspection was completed the interim award should not have been pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. vs. United Bank of India Ltd. Ors. lays down that the scope of Order 12 Rule 6 of the Code of Civil Procedure should not be unduly narrowed down. 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. 43. On the subject of limitation we note:- i. The dealings between the parties took place from 2007 to 2009. ii. The purported adjustment was conveyed by letter dated May 16, 2009. The letter by itself contains admission of liability. iii. In view of the decision dated December 11, 2009 by a learned Single Judge of the High Court of Judicature at Madras in OA No. 1078/2008 Gammon India Vs. Sankaranarayana Construction (Bangalore) an attempt to adjust/set off is by itself an admission/acknowledgement for extending limitation. We note that appeal against said decision was dismissed by a Division Bench against which Petition seeking Special Leave to Appeal (C) No. 12891/2012 was dismissed in limine by the Supreme Court on May 08, 2012. iv. The explanation to Section 18 of the Limitation Act, 1963 provides ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
