TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 1381
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....ough the various documents executed and exchanged in the present case, thus: (i) It appears that, since some time earlier, programs of the respondent were being distributed and shown on the petitioner's Platform. On 24th February, 2020, the respondent, under the brand name "The Viral Fever (TVF)" confirmed that it would provide six shows, to be hosted on the petitioner's Platform in 2020-2021. The communication read thus: "Hi Aaron, As discussed and confirmed: TVF will provide 6 shows in 2020-21 * Immature S2 - 5 Episodes of 20 min each - 3 yr exclusive + 1 year non exclusive * UPSC S1 - 5 Episodes of 20 min each - 3 yr exclusive + 1 year non exclusive * Flames S3 - 5 Episodes of 20 min each - 3 yr exclusive + 1 year non exclusive * 3 more shows 5 Episodes of 20 min each - 3 yr exclusive + 1 year non exclusive - TBD All the other clauses remain the same from last time. All masters will be cleaned / without sponsorship. Deal Value - 21 cr + taxes Payment Terms: 35% Advance 65% on Delivery Look forward to a great partnership. PS - mark my finance/legal. @ Megha - pl initiate contract. Best Rahul Sarangi Global Head Business & Content The Vi....
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....exclusive basis ("Distribution Period")." (b) Clause 4 of the Agreement provided for "Exclusivity", and sub-clause 4.1, thereunder, reads thus: "4.1 Each of the Programs shall be provided by the Company to the Distributor as per the delivery schedule mentioned in Annexure land shall be first released solely on the Platform. All Rights granted by the Company to the Distributor hereunder, in respect of the Program, shall be available to the Distributor on an exclusive basis for a period of 3 (three) years from the Effective Date, and thereafter on a non- exclusive basis for a period of 1 (one) year. Accordingly, the Company shall ensure that no part of the Program is released or distributed anywhere in the Territory through any means or modes of distribution including such modes or mediums which use satellite as the means of transmission, prior to the same being released on the Platform. The Parties further agree that, subject to Clause 4.2, during the exclusivity period of the Programs, the Company shall not and shall not cause each such Program or any parts thereof, whether independently or through any platform or mode of distribution owned or operated by the Company, to be emb....
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....any shall raise all invoices towards all amounts of Minimum Guarantee in USD and the foreign exchange rate shall be calculated as of the date of the relevant invoice. Further, all payments to be paid by Distributor, shall be paid in USD, such that the amount received by the Company shall be the exact INR of Minimum Guarantee as agreed hereinabove under clause 8.1, without any loss as a result of the exchange rate and applicable withholding or any other taxes, to the Company. In case of occurrence of such loses, the Distributor shall make good of the same to the Company." (d) The Agreement provided for its termination, by the petitioner or by the respondent. Clause 14 dealt with termination by the respondent, and sub-clauses 14.1 and 14.2 thereof read thus: "14.1 The Company shall be entitled to terminate this Agreement in respect of any Program by giving a prior written notice of 30 (thirty) days to the Distributor, in the event the Distributor fails to make payments towards the Minimum Guarantee in respect of any Program in accordance with this Agreement, and fails to remedy such default within 30 (thirty) days of being notified by the Company of the occurrence of such default....
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....ed by the Company, and the 2 (two) arbitrators so appointed by the Parties respectively, shall appoint the third arbitrator who shall be the presiding arbitrator for the purpose of the arbitration proceedings. 19.3 The arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The language of arbitration proceedings shall be English. Each Party shall bear its own cost. The venue of arbitration shall be New Delhi. 19.4 This Agreement shall be governed by the laws of India. Subject to the foregoing, courts in New Delhi shall have the exclusive jurisdiction on all matters arising out of or in connection with this Agreement." (g) Annexure-1 to the Agreement set out the details of the various Programs and their delivery schedule, in the following tabular form: "Annexure-1 Delivery Materials and Delivery Schedule Sr. No. Programs Total No. of Episodes Apportioned value in INR 1. Immature season 2 (Program 1) 5 4,00,00,000/- 2. Aspirants (Tentative title) season 1 (Program 2) 5 5,00,00,000/- 3. FLAMES season 3 (Program 3) 5 3,00,00,000/- 4. ______(Program 4) 5 3,00,00,000/- 5. ______(Program 5) 5 3,00,00,....
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....2. TVF to share concepts/show ideas for the other 3 shows in the Agreement which the Mx team can evaluate and respond Also pls do respond on: 1. The addendum to the last Agreement 2. Digital signature for the final paperwork since we've some audit requirements Regards Vijay Koshy" (Emphasis supplied) (viii) On 15th July, 2020, the petitioner wrote to the respondent, requesting for "update on the timelines" of the three shows which they had selected. The respondent, vide reply mail dated 16th July, 2020, agreed to share the timelines by the next day. Accordingly, vide e-mail dated 17th July, 2020, the respondent wrote, to the petitioner, thus, regarding the timelines for the three selected programs: "Hi Team Mx, As per my mail last evening, sharing the timelines across various stages of the 3 shows that have got locked with Mx this year. They are as follows: UPSC: Pre Production: 25th July to 15th October '20 Shoot: 16th October to 30th November Post Production: December, January, Feb '21 Delivery: End of February '21 Immature S2: Pre Production: 1st December '20 to 15th January ' 21 Shoot: 16th January to 15th February '21 Post Production: Mi....
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....cceptable to the respondent, and was further reflected by the following e-mail, dated 21st September, 2020, from the latter to the former: "Hey Aaron, Thanks for taking our time the other day to hear our point of view on the proposed arrangement. Like we spoke, starting with the new Title and then deciding on subsequent seasons of established titles puts us in a very tricky spot. Do let us know your thoughts on how can we proceed and make this a win above-mentioned for both TVF and MXP. Looking forward to hearing from you. Cheers Sherry" (Emphasis supplied) (xiv) On 23rd September, 2020, the petitioner wrote to the respondent, stating that it would "like to re-look at the episodic count for the shows and overall minutes". The respondent, vide e-mail of the next day i.e. 24th September, 2020, requested the petitioner to discuss the matter at 4 PM. (xv) On 5th October, 2020, the following e-mail was addressed by the petitioner to the respondent: "Hi Vijay, Trust this mail finds you well. Wanted to circle back on our conversation from last week. I would like to reiterate our intent to work around the situation and move ahead with this deal with a revised structure....
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....second "First Amendment" proposed by the petitioner, after the first amendment proposed on 4th June, 2020.) Clause 1 of the proposed "First Amendment" envisaged the following amendments, to the Agreement dated 18th March, 2020: "1.1 The term "Program(s)" as defined under Clause 1.1.24 of the Principal Agreement shall stand revised and replaced as follows: "Program(s)" means the shows that are being distributed under this Agreement namely as below: i. Immature - season 2 (Program 1) ii. UPSC- season 1 (Program 2) iii. FLAMES -season 3 (Program 3) 1.2 The term "Minimum Guarantee" as defined under Clause 1.1.18 of the Principal Agreement shall stand revised and replaced as follows: "1.1.18 "Consideration" means the amount payable in respect of each Program as specified in Annexure 1 hereto aggregating to INR 12,00,00,000/- (Indian National Rupees Twelve Crores Only) for the Programs, by the Distributor to the Company in accordance with this Agreement." 1.3 The Annexure 1 of the Principal Agreement shall stand revised and replaced with the Annexure 1 attached herein under this First Amendment.. 1.4 Clause 8.1 under the Principal Agreement shall stand revised and repla....
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.... the Programs, in any sequence, from Program 2 and/ or Program 3 subject to successful submission of concept development and preproduction deliverables of the respective Programs by the Company to the satisfaction of the Distributor. 1.8 The Company shall deliver the Programs to the Distributor as per the timelines mutually agreed between the Parties and in accordance with the technical specifications as stated in Annexure 2 of this First Amendment." (xix) It is apparent, from a bare reading of the preceding correspondence, with the "First Amendment" forwarded by the petitioner to the respondent, on 28th October, 2020, that the petitioner did not sign the original Agreement dated 18th March, 2020, which was signed by the respondent and forwarded to the petitioner for signature, the petitioner forwarded, on 28th October, 2020, the aforesaid "First amendment" suggesting amendments to be made in the original Agreement dated 18th March, 2020. (xx) Vide e-mail, dated 2nd November, 2020, the petitioner acknowledged the receipt of confirmation, from the respondent, regarding adjustment of US $ 1,10,000. This fact was also reflected in the following e-mail, dated 3rd November, 2020, ....
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.... 1.2 The term "Minimum Guarantee" as defined under Clause 1.1.18 of the Principal Agreement shall stand revised and replaced as follows: "1.1.18 "Consideration" means the amount payable in respect of each Program as specified in Annexure thereto aggregating to INR 12,00,00,000/- (Indian National Rupees Twelve Crores Only) for the Programs, by the Distributor to the Company in accordance with this Agreement." 1.3 The Annexure 1 of the Principal Agreement shall stand revised and replaced with the Annexure 1 attached herein under this First Amendment. 1.4 Clause 8.1 under the Principal Agreement shall stand revised and replaced as follows: 8.1 In consideration of the Rights granted by the Company to the Distributor under this Agreement, in respect of the Program(s) and subject to compliance of the terms of the Agreement by the Company, the Distributor shall pay to the Company, the aggregate Consideration of the USD equivalent to an amount of INR 12,00,00,000/- (Indian National Rupees Twelve Crores Only) in accordance with Clause 8.1.1 below, 8.1.1 The Company shall be entitled to receive the Consideration from the Distributor against valid invoices raised on the Distributo....
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....revised business discussion as and when proposed by MX and so far have received three different proposals over the last two months, as shared by MX team. We assure you that we are committed to offering our best to MX considering the existing partnership. Looking forward to discussing the new combination of deliverables and commercials (including the latest proposed arrangement) with the MX team, which is mutually agreeable to both of us. Let's set up a time for a call, to take this ahead. Does 1500 tomorrow work for the same?? Warm Regards Vijay Koshy President The Viral Fever" (xxv) The petitioner responded, on 15th December, 2020, thus: "Dear Vijay, Getting this email from you is rather surprising since we have been in constant touch and MX has at all times expressed its desire to work with TVF. With regards to the execution of the Agreement- Yes there have been delays due to covid & we had suggested modifications in the term keeping in mind the variables & the moving pieces as the teams & talent at your end also went through a change after this contract was signed. In spite of that MX has honoured the equation and also made the initial payment to TVF. The 3....
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.... 1.52 cr. (an amount, approx. equivalent to advance license fee for one show)], as received under the principal Agreement. Accordingly, parties can conclude the current discussion and start altogether a fresh business arrangement. We request that this loop of discussions be brought to closure soon, post which parties can start a new partnership and do something great together. Looking forward to hearing from you." (xxviii) Three weeks elapsed before the petitioner chose to respond, on 19th January, 2021, seeking to contend that the "principal understanding, as recorded in the Agreement dated March 18, 2020" stood "concluded", and that it was only on the basis of such "concluded" understanding that the petitioner had paid advance of US $ 2,00,000 to the respondent on 23rd April, 2020. Reliance was also placed, in the said communication, on the e-mail dated 17th July, 2020, from the respondent to the petitioner, communicating the delivery timelines and schedules of the three programs and also stating that the show titled "UPSC" would be delivered by the end of February, 2021, with the remaining two shows being delivered by the end of April, 2021. It was also asserted that the com....
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....uary, 2021, the petitioner, by e-mail to the respondent, requested for a confirmation that the balance payable by the petitioner to the respondent as on 31st December, 2020, was US $ 1,73,222. The respondent replied, vide e-mail dated 28th February, 2021, that no amount was due from the petitioner, but that it was due to refund, to the petitioner, the amount of US $ 3,10,000 paid by the petitioner. (These documents do not form part of the record filed by the petitioner, and were tendered, across the bar, by Mr. Jayant Mehta, learned Senior Counsel for the respondent. They were not, however, denied or traversed by learned Senior Counsel for the petitioner.) (xxxi)On 5th March, 2021, the respondent again wrote to the petitioner, stating that, for want of any response from the petitioner regarding its earlier e-mail dated 6th February, 2021, whereby the respondent had exercised the option (offered by the petitioner) to walk away from the Agreement and return the amount paid by the petitioner, it was presumed that the petitioner did not want to discuss the matter any further. Confirming that it had to refund the amount of US $ 3,10,000 paid by the petitioner, the respondent requested....
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....also been filed by the learned counsels. Learned Senior Counsels were agreeable to the petition being disposed of, on the basis of the oral submissions advanced at the Bar and the written submissions tendered. Rival submissions 7. Mr. Amit Sibal, arguing on behalf of the petitioner, submitted thus: (i) The contention, of the respondent, that there was no concluded contract between the parties, was not correct, as was apparent from the following: (a) The e-mails dated 24th February, 2020 and 25th February, 2020, from the respondent to the petitioner [Refer para 4(i) (supra)] confirmed the understanding between the petitioner and the respondent in relation to the programs of the respondent to be broadcasted on the petitioner's Platform. (b) The respondent had signed the Agreement dated 18th March, 2020 and forwarded it to the petitioner and the inability of the petitioner to sign the said Agreement was owing to circumstances beyond its control. (c) The petitioner and the respondent had acted upon the terms of the Agreement, as was apparent from the following: (i) On the very day after the signing of the Agreement, i.e. 19th March, 2020, the respondent raised an invoice, ....
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....xchanged between the petitioner and the respondent, from 24th August, 2020 to 14th October, 2020, would bear out this position. (vi) Undue advantage was being sought to be taken, by the respondent, of the three "options" suggested by the petitioner in its e-mail dated 5th October, 20205 . Mr. Sibal submitted that, in the light of the further e-mails exchanged between the petitioner and the respondent, "option three", proposed in the e-mail dated 5th October, 20205 , was no longer available for exercise by the respondent. (vii) A contract, in order to be legal, valid and binding among the parties thereto, was not required, necessarily, to be signed by all parties. Reliance was placed, for the said purpose, on the judgment of the Queens Division Bench of High Court of U.K. in Reveille Independent LLC v. Anotech International (UK) Limited [[2015] EWHC 726 (Comm)] , the judgment of the Court of Appeal, in appeal therefrom, as reported in [2016] EWCA Civ 443, as well as the judgments of the Supreme Court in Trimex International FZE Limited, Dubai v. Vedanta Aluminium Ltd. [(2010) 3 Supreme Court Cases 1] and Kollipara Sriramulu v. T. Aswatha Narayana [(1968) 3 SCR 387] . (viii) In....
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....lowing contentions: (i) There was no concluded contract between the parties. The contract, as signed by his client, had been forwarded to the petitioner as far back as on 18th March, 2020. Till date, the signed contract has not been sent back, by the petitioner to the respondent. Rather, the petitioner started suggesting one amendment after the other, without responding to the repeated entreaties, of the petitioner, to return the signed contract. The communications exchanged between the respondent and the petitioner clearly indicated that the petitioner was unwilling to abide by the covenants of the contract as originally forwarded by the respondent to the petitioner, and desired to alter various aspects, including a change from a "3+3" to a "1+1+1" regimen, change in the advertisement slots and alterations in the consideration governing the contract. The respondent, for its part, had never acquiesced to any of these changes. There being no concluded contract between the petitioner and the respondent, no case for specific performance thereof, could at all lie. Clearly, there was no consensus ad idem between the parties, regarding the covenants of the Agreement. (ii) In the anti....
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....scribed the Court from granting any injunction, towards enforcement of such a contract[2] Analysis and Conclusion 10. To my mind, it is clear, from a bare reading of the correspondence between the parties, that no relief, whatsoever, can be granted to the petitioner, at least in exercise of the jurisdiction vested in this Court by Section 9 of the 1996 Act. 11. The troika of a prima facie case, balance of convenience, and irreparable loss, it is trite, apply as much to Section 9 of the 1996 Act, as to Order XXXIX of the Code of Civil Procedure, 1908, apart from the issue of whether grant of interim protection would be "just and convenient". [Refer Adhunik Steels Ltd v. Orissa Manganese & Minerals Pvt Ltd, (2007) 7 SCC 125, Transmission Corporation of A.P. Ltd v. Lanco Kondapalli Power Pvt Ltd, (2006) 1 SCC 540] 12. The petitioner has, in my considered opinion, been unable to make out a prima facie case for grant of the reliefs sought. As such, no occasion arises to consider the issues of balance of convenience and irreparable loss, the troika considerations requiring cumulative, not alternative, satisfaction. The "concluded contract" conundrum 13. The tone and tenor of the ....
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....para 4(xv) (supra)] , in which the petitioner transparently, stated that it desired to "move ahead with this deal with a revised structure of a 1 + 1 + 1 approach wherein we greenlight the 2nd show post the launch of the previous based on the output delivered". This intent was again reflected in the following passage from the subsequent e-mail dated 14th October, 2020 [Refer para 4 (xvii) (supra)]: To capture the broad understanding, the current deal would be structured as a 1 + 1 + 1 with MX greenlighting the subsequent shows post the launch of the previous based on the output delivered. This would mean that the amount paid to TVF as a signing fee would be against the 1st show which we chose, which I would confirm to be Immature 2. The Agreement dated 18th March, 2020, as signed by the respondent, did not contemplate any "greenlighting", by the petitioner, of the second show, based on the "output delivered" on the first. It envisaged, clearly, three shows, namely Immature, Aspirants and Flames, being delivered by the respondent to the petitioner, for broadcasting on the petitioner's platform. The remaining three shows were optional. The Annexure to the Agreement, too, did not ....
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....er to the respondent. The belated suggestion, by Mr. Amit Sibal, during arguments in Court, that the petitioner be permitted to deposit the balance payment in Court, cannot advance its case an inch, or make out any case for grant of interim protection by this Court. 22. Even otherwise, given the number of aspects on which there has been want of meeting of minds between the petitioner and the respondent, it can hardly be said that consensus ad idem existed between them. 23. The petitioner proposed as many as three amendments to the Agreement dated 18th March, 2020. The respondent, by its communications to the petitioner, clearly expressed its difficulties in agreeing to the amendments proposed by the petitioner. The respondent has never acquiesced, either expressly or by necessary implication, to any of the amendments, suggested by the petitioner. 24. Mr. Sibal also sought to contend that if there was no concluded contract, the parties would never have explored the possibility of addenda or amendments thereto. This submission, on the face of it, merits rejection. In the present case, the suggested contract, as signed by the petitioner and forwarded to the respondent, was never co....
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....e Court in Trimex Internationa [Refer para 4 (xvii) (supra)] and Kollipara Sriramulu [(1968) 3 SCR 387] can be of no avail to the petitioner. Trimex International [(2010) 3 Supreme Court Cases 1] held, unexceptionably, that "once (a) contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initialed by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initialled". (Refer para 49 of the report) Similarly, Kollipara Sriramulu [(1968) 3 SCR 387] dealt with a situation in which the agreement, on the basis of which the parties had acted, contemplated execution of a "future formal contract". The Supreme Court held that, in such circumstances, the existence of a binding contractual relationship between the parties could not be denied merely because the "future formal contract" had not been executed. There is no parallel, whatsoever, between the issue in controversy in that case, and that in controversy in this. 27. The legal position, rather, is against the petitioner, as reflected by the judgment in U. P. Rajkiya Nigam Ltd v. Indure Pvt L....
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....validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. In that case a sub-contract was signed and executed by the Managing Director of the appellant-Company but part of the contract was altered subsequently since counter-proposal was given by the respondent. This Court had held that one such case is where a part of the offer was disputed at the negotiation stage and the original offeree communicated that fact to the offeror saying that he understood the offer in a particular sense; this communication probably amounts to a counter-offer in which case it may be that mere silence of the original offeror will constitute his acceptance. Where there is a mistake as to the terms of the documents as in that case, amendment to the draft was suggested and a counter-offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document; to wit, the letter and the cable. It can, therefore, be stated that where the contract is in a number of part....