TaxTMI 
TaxTMI 
2016 (4) TMI 1445
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....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 Sharing with Prasar Bharati) Rules 2007 were promulgated. Rule 4 whereof required a sealed bid procedure to be adopted inter-se the rights owner or holder and Prasar Bharati concerning marketing of commercial time generated by the re-transmission on the Prasar Bharati's channel. Needless to state the higher bidder was entitled to undertake the marketing of commercial time. The bid amount was the minimum guaranteed amount. The party obtaining the marketing rights was to give a bank guarantee to the other party for an amount equal to the other party's share of guaranteed revenue. The said party was....
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....d, 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 pertaining to India-Australia, 2007 Cricket Series including a T-20 Match played on October 20, 2007, the India-England 2008 Series, India-Sri Lanka 2009 Series and India-Bangladesh-Pakistan 2008 Series, in respect of which series, as noted above, for two Nimbus India was the higher bidder and for two Nimbus Singapore was the higher bidder, we note in a tabular form the bid amount, Prasar Bharati's entitlement of 25% of the bid amount as the minimum guaranteed revenue, the net revenue claimed to be generated by Nimbus India and Nimbus Singapore and 25% thereof, with amount due to Prasar Bharati being 25% of the minimum bid amount subject to increase if revenue generated was in excess. The tabular statement would read as under:- Series Bid of Nimbus Singapore/Nimbus India Entitlement of Prasar Bharati as per Bid (25 %) of Net Revenue Earned as per Nimbus Singapore/ Nimbus India....
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....dia had made an adjustment as a result whereof Prasar Bharati's claim in sum of Rs. 13,53,75,000/- had been adjusted against Nimbus India's claim of Rs. 21,19,81,626/- thereby leaving a net balance of in sum of Rs. 7,66,06,626/- payable to it. (v) That Prasar Bharati was entitled to Rs. 2,52,50,000/- and Rs. 1,75,50,000/- from Nimbus Singapore for the India-Pakistan-Bangladesh and India-Sri Lanka Series and it owed Rs. 15,37,500/- to Nimbus Singapore for the India Bangladesh Series 2007. Thus the net amount payable to Nimbus Singapore is Rs. 4,12,62,500/-. (vi) That Nimbus India had procured from Nimbus Singapore the mandate to adjust the said amount against Rs. 7,66,06,626/- owned by Prasar Bharati. 12. Obviously a dispute arose. As noted above, only one agreement was executed concerning the Indo-Pak Series 2007 and thus Nimbus India invoked the arbitration agreement and nominated their arbitrator. Prasar Bharati nominated its arbitrator and the two nominated the third. The Arbitral Tribunal came into existence. 13. The nature of the claim by Nimbus India, as would be evident from hereinabove had the element of adjustments inter-se Nimbus India and ....
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.... had earned extra revenue, and for which it demanded Rs. 19,86,82,487/- on said account. Needless to state while admitting extra seconds utilized for which extra revenue could be generated Prasar Bharati claimed that as a matter of fact extra revenue generated was as indicated in para 9 above. 16. Pursuant to the directions of the Tribunal revenue generations statements was filed by the parties. The revenue generation statements filed by Nimbus India and Nimbus Singapore contained an admission of liability towards Prasar Bharati. 17. On July 17, 2013, Prasar Bharati filed an application under Section 17 of the Arbitration & Conciliation Act, 1996 for an order directing Nimbus India to secure the amount in dispute. On September 13, 2013, Prasar Bharati filed an application for an interim award. Immediately, Nimbus India filed an application to amend its reply and counter claim. The proposed amendment seeks to embrace an alleged dispute concerning India- England Series 2006, in respect of which we simply highlight that the arbitration agreement between the parties does not encompass said series and prima-facie any claim concerning the same would be barred by limitation. 18. ....
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.... by Nimbus India. The majority held that amounts due to Prasar Bharati were admitted and the amounts claimed by Nimbus India required an adjudication. The defence was one of adjustment and validity thereof had yet to be established at the trial. The direction was that if within the given time sum of Rs. 22,77,67,422/- was not deposited an interim award shall follow automatically and since compliance was not made, on December 11, 2014 a formal order was passed declaring that an interim award had come into effect on the date when order dated September 16, 2014 was not complied with. Issue of interest was left open, to be decided at the final stage. 23. The amount as directed to be deposited vide order dated September 16, 2014 was not deposited. The order dated September 16, 2014 was challenged by Nimbus India by way of AA No. 30/2014. By an order dated October 31, 2014 passed in the said proceedings, the learned Single Judge directed Nimbus India to file an affidavit regarding its unencumbered assets in India. The affidavit was never filed. 24. On December 11, 2014 the Arbitral Tribunal clarified that on account of the failure of Nimbus India to deposit the amount as per order ....
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....s 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. 33. The fact that for the India-Pakistan 2007 Series the dealings were between Prasar Bharati and Nimbus India and for two other series the dealings were between Prasar Bharati and Nimbus Singapore shows that the dealings were not arising from the same transaction or connected therewith. 34. The series were spread over from 2007 to 200....
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....e is no liability and no obligation to pay. In the decision reported as MANU/MH/0115/1954MANU/MH/0115/1954 : AIR 1954 Bom 423 Iron & Hardware vs. Firm Shamlal & Bros. it was held that a party considering itself entitled to a certain amount cannot unilaterally appropriate it. It has to make a claim in a court of law and till such time the claim is adjudicated and found to be tenable, it remains only a claim. 41. In contending that the interim award was an award based on default on non-compliance of the order under Section 17 of the Arbitration and Conciliation Act, 1996, we find that Nimbus India is taking advantage of indulgence granted to it by the Tribunal on two prior occasions. The applications under Section 17 and the application for passing an interim award were heard together. In the order dated May 06, 2014 the Tribunal has recorded in categorical terms that it was a fit case to pass an interim award, but for the time being was granting an opportunity to Nimbus India to furnish a bank guarantee. Subsequently, the application was further heard. The Tribunal again recorded that it was a fit case to pass an interim award but made a direction to Nimbus India to deposit the a....