{"id":216863,"date":"2011-05-05T00:00:00","date_gmt":"2011-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/radha-krshna-films-ltd-vs-2-motion-pictures-association-on-5-may-2011"},"modified":"2017-10-16T10:01:58","modified_gmt":"2017-10-16T04:31:58","slug":"radha-krshna-films-ltd-vs-2-motion-pictures-association-on-5-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/radha-krshna-films-ltd-vs-2-motion-pictures-association-on-5-may-2011","title":{"rendered":"Radha Krshna Films Ltd vs 2 Motion Pictures Association on 5 May, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Radha Krshna Films Ltd vs 2 Motion Pictures Association on 5 May, 2011<\/div>\n
Bench: Anoop V.Mohta<\/div>\n
                                                 1                        arbp276.07.sxw\n\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                  ORDINARY ORIGINAL CIVIL JURISDICTION \n\n\n\n\n                                                                                \n                   ARBITRATION PETITION NO. 276 OF 2007\n\n\n\n\n                                                       \n    Radha Krshna Films Ltd.\n    A Company registered under the Provisions\n    of the Companies Act, 1956, \n\n\n\n\n                                                      \n    having its registered office at \n    Kamala Cottage, 6, Juhu Tara Road,\n    Mumbai-400 049.                                              ....Petitioner.\n\n\n\n\n                                           \n          Vs.\n\n    1\n                            \n          Jyoti Film Distributors Pvt. Ltd.,\n          A company registered under the \n                           \n          provisions of the Companies Act,\n          1956, having its registered office\n          at Kamala Cottage, 6, Juhu Tara Road,\n          Mumbai-400 049.\n          \n\n\n    2     Motion Pictures Association,\n       \n\n\n\n          52\/55, Mangal Market,\n          Bhagirath Palace, Chandni Chowk,\n          Delhi-110 006.                                         ....Respondents.\n\n\n\n\n\n    Mr.   Nikhil   Sakhardande   with   Mr.   Pratik   Pawar   i\/by   M\/s.   AZB   & \n    Partners for the Petitioner.\n    Ms. Neeta Jain i\/by Mr. Vikash Kumar for Respondent No.1.\n    None for Respondent No.2.\n\n\n\n\n\n                           CORAM       :  ANOOP V. MOHTA, J.\n<\/pre>\n
          JUDGMENT RESERVED ON       :  21st APRIL, 2011.\n          JUDGMENT PRONOUNCED ON :  5th   MAY, 2011.\n\n\n    JUDGMENT:- \n\n\n<\/pre>\n
          The   Petitioner   (Original   Respondent)   has   challenged   award <\/p>\n
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\n                                                      2                        arbp276.07.sxw<\/p>\n
    dated 05\/01\/2007 passed by the Joint Tribunal of the Film Makers <\/p>\n
    Combine (for short, FMC) and the Motion Pictures Association (for <\/p>\n
    short, MPA).  The basic directions as per the award are as under:-\n<\/p>\n
         “Awarded   that   Rs.2,50,000\/-   be   paid   by   the   Defendants,
\n         M\/s. Radha Krshna Films Ltd., Mumbai in clear violation  <\/p>\n
         of their own agreement by disposing H.V. Rights prior to six
\n         months & for retaining 10 prints of the Distributor, M\/s.
\n         Jyoti Film Distributors Pvt. Ltd. without payment of any
\n         consideration amount.\n<\/p><\/blockquote>\n
         The   said   amount   of   Rs.2,50,000\/-   shall   be   paid   to   the
\n         Distributors   i.e.   M\/s.   Jyoti   Film     Distributors   Pvt.   Ltd.\n<\/p><\/blockquote>\n
         Delhi within 30 days from the date of communication of
\n         decision failing which, the awarded amount will carry an
\n         interest @18% per annum till the date of making the final
\n         amount.”\n<\/p><\/blockquote>\n
          The relevant facts are-\n<\/p><\/blockquote>\n
    2     On   18\/12\/2003,   both   the   parties   filed   a   form   with   the   MPA <\/p>\n
    seeking registration of a motion picture “Woh Tera Naam Tha” (the <\/p>\n
    “Film”).\n<\/p>\n
    3     On 07\/01\/2004, the Petitioner and Respondent No.1 enter into <\/p>\n
    an   Agreement   of   License   for   distribution   of   the   Film.   (The <\/p>\n
    Agreement).     An affidavit filed on behalf of the Petitioner, declaring <\/p>\n
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\n                                                       3                        arbp276.07.sxw<\/p>\n
    inter alia that the Video, Cable TV and TV rights of the Film have not <\/p>\n
    been sold or parted with by the Petitioner.  Clause (iv) of the Affidavit <\/p>\n
    stated   that   the   Petitioner   would   not   give   out   the   Film   for   telecast <\/p>\n
    through television for a period of five years.\n<\/p>\n
           Two letters  from  the  Petitioner to  Respondent  No.1 informing <\/p>\n
    that Clause (iv)  of the Affidavit  was incorporated at  the  request  of <\/p>\n
    Respondent No.1, to meet the MPA requirements at Delhi and shall <\/p>\n
    not be binding on the Petitioner, and they shall be free to telecast the <\/p>\n
    Film on satellite television after six months of the release of the Film.\n<\/p>\n
    The letters was signed as being ‘Agreed And Confirmed The Above’ by <\/p>\n
    Respondent No.1.\n<\/p>\n
    4      On 28\/01\/2004, a Power of Attorney  executed by the Petitioner <\/p>\n
    in   favour   of   Respondent   No.1   for   the   purposes   of   protecting   the <\/p>\n
    copyrights of the Film in the specified territory. The date of release of <\/p>\n
    the Film was 30\/01\/2004.\n<\/p>\n
    5      On 05\/02\/2004, an agreement between the Petitioner and Mr. <\/p>\n
    Sanjay   Jumani   proprietor   of   M\/s.   Sunstone   Entertainment <\/p>\n
    (“Sunstone”) whereby Petitioner granted various copyrights in respect <\/p>\n
    of   all   countries   in   the   world   excluding   India,   Nepal,   Bhutan   and <\/p>\n
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\n                                                        4                         arbp276.07.sxw<\/p>\n
    Sikkim.     A   declaration   was   made   by   the   Petitioner   accordingly.\n<\/p>\n
    Unfortunately, the film was flopped in the box office.\n<\/p>\n
    6      On 12\/02\/2004, a letter from Respondent  No.1 to the Petitioner <\/p>\n
    with   the   details   of   the   investment   in   the   Film   to   the   tune   of   Rs.\n<\/p>\n
    44,92,045  and that  Respondent  No.1  had recovered only about Rs.\n<\/p>\n
    15,00,000\/-.   Respondent   No.1   requested   the   Petitioner   to <\/p>\n
    ‘sympathetically consider’ sharing the deficit\/loss.\n<\/p>\n
    7      On 18\/02\/2004 and 21\/02\/2004, two letters from Respondent <\/p>\n
    No.1 to the Petitioner with railway receipt showing dispatch of two <\/p>\n
    lots of five prints of the Film, and requested the Petitioner to receive <\/p>\n
    the prints.\n<\/p>\n
    8      On   11\/03\/2004,     a   letter   from   MPA   to   Respondent   No.1 <\/p>\n
    registering the Film in their name as per the Producers’ Distributors”\n<\/p>\n
    Certificate dated 18th December, 2003.\n<\/p>\n
    9      On 16\/03\/2004, a letter by Respondent No.1 to the Petitioner <\/p>\n
    giving the details of the investments and the losses allegedly suffered <\/p>\n
    in the distribution of the Film and requested the Petitioner to share <\/p>\n
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\n                                                    5                        arbp276.07.sxw<\/p>\n
    the   alleged   loss   ‘on   humanitarian   grounds’   to   the   extent   of <\/p>\n
    Rs.22,60,000\/-.   Respondent No.1 stated that the Film be telecasted <\/p>\n
    on Satellite Channels prior to the six months and such revenues be <\/p>\n
    shared with Respondent No.1 to minimize Respondent No. 1’s loss.\n<\/p>\n
    10    On   18\/03\/2004,   an   agreement   between   the   Petitioner   and <\/p>\n
    Sunstone.     Sunstone   was   granted   the   license   of   the   copyright   in <\/p>\n
    respect of the Home Video rights of the Film by the Petitioner within <\/p>\n
    India, Nepal, Sikkim and Bhutan.  There was no assignment of the TV <\/p>\n
    or satellite rights of the Film by the Petitioner, which was amended on <\/p>\n
    19\/03\/2004 to include Bangladesh.\n<\/p>\n
    11    On 18\/05\/2004, a letter from Respondent No.1 claiming a loss <\/p>\n
    of Rs.25,74,753.40 allegedly recoverable from the Petitioner as an un-\n<\/p>\n
    recouped investment on the Film.\n<\/p>\n
    12    On 08\/06\/2004, a fax from the Petitioner to Respondent No.1 <\/p>\n
    stating that the Petitioner is in the process of assigning the satellite <\/p>\n
    rights   of   the   Film.     The   Petitioner,   accordingly,   sought   permission <\/p>\n
    under Article 31 of the Agreement.\n<\/p>\n
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                                                   6                        arbp276.07.sxw\n\n\n    13    On   11\/06\/2004,   a   letter   from   Respondent   No.1   about   their \n\n<\/pre>\n
    consent for the pre-mature release of the Film and the release of its <\/p>\n
    VCD.\n<\/p>\n
    14    The alleged losses of Rs.25,39,041.40 were again claimed from <\/p>\n
    the Petitioner.\n<\/p>\n
    15    On   20\/07\/2004,   18\/08\/2004   and   17\/09\/2004,   letters   from <\/p>\n
    Respondent No.1 to the Petitioner.   Respondent No.1 threatened, in <\/p>\n
    case the amount so demanded not paid within fifteen days, the matter <\/p>\n
    would be referred to the MPA for the realization of the alleged dues.\n<\/p>\n
    16    On   20\/09\/2004,   the   claims  made   by   Respondent   No.1   before <\/p>\n
    the Acquiring Sub Committee of the MPA giving details pertaining to <\/p>\n
    the losses allegedly suffered in distribution of the Film.   Respondent <\/p>\n
    No.1 requested the MPA to issue an interim circular of caution against <\/p>\n
    the Petitioner in view of the alleged claims of Respondent No.1.\n<\/p>\n
    17    On   23\/09\/2004,   a   letter   from   the   Petitioner   in   response   to <\/p>\n
    Respondent   No.1’s   letter   dated   18th  August,   2004.     The   Petitioner <\/p>\n
    denied all the claims made by Respondent No.1 and also the liability, <\/p>\n
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\n                                                    7                        arbp276.07.sxw<\/p>\n
    by referring to various provisions of the Agreement.\n<\/p>\n
    18    On   06\/10\/2004,   Respondent   No.1   denied   the   contents  of   the <\/p>\n
    Petitioner’s letter and stated that they filed a complaint with the MPA <\/p>\n
    and requested the Petitioner to submit their reply to the Association.\n<\/p>\n
    19    On   08\/10\/2004,   an   agreement   between   the   Petitioner   and <\/p>\n
    Sunstone, whereby the rights in the Film that were previously granted <\/p>\n
    to Sunstone were subsequently relinquished by Sunstone in favour of <\/p>\n
    the Petitioner.\n<\/p>\n
    20    On   02\/11\/2004,   an   interim   Circular   issued   by   the   Acquiring <\/p>\n
    Sub.   Committee   of   the   MPA   to   the   members   of   MPA   stating   that <\/p>\n
    Respondent  No.1   had  raised  a  claim  amounting  to  Rs.25,22,091.40 <\/p>\n
    with   interest   @   24%   per   annum,   plus   claim   fee   and   circulation <\/p>\n
    charges of Rs.5,300\/- against the Petitioner and two of its directors-\n<\/p>\n
    Mr. V.P. Singhania and Mr. P.R. Jain (“Directors”).\n<\/p>\n
    21    On   04\/11\/2004,   a   letter   that   the   Agreement   was   not   that   of <\/p>\n
    partnership   and   Respondent   No.1   was   not   liable   for   all   costs   and <\/p>\n
    expenses in relation to the distribution of the Film.\n<\/p>\n
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                                                    8                        arbp276.07.sxw<\/p>\n
          The Petitioner entered into an agreement for  granting the TVB <\/p>\n
    rights of the Film with M\/s. SET India Pvt. Ltd.\n<\/p>\n
    22    Respondent   No.1   stated   that   since   the   matter   is   subject   to <\/p>\n
    arbitration, all the claims would be decided by the Arbitral Tribunal.\n<\/p>\n
    23    On 14\/12\/2004, a letter from MPA to the Petitioner informing <\/p>\n
    them   about   circular   dated   2nd  November,     2004   and   the   claims   of <\/p>\n
    Respondent No.1.\n<\/p>\n
    24    On 10\/01\/2005, a letter from the Advocates for the Petitioners <\/p>\n
    to MPA in response to the latter’s letter dated 14th  December, 2004.\n<\/p>\n
    The   claims   made   by   Respondent   No.1   were   denied   and   it   was <\/p>\n
    reiterated   that   the   Agreement   was   not   a   partnership   and   that   the <\/p>\n
    Petitioner is not liable for any loss suffered by Respondent No.1.\n<\/p>\n
    25    On 13\/01\/2005, a letter from MPA to Respondent No.1 referring <\/p>\n
    to   the   10th  January,   2005   letter   and   the   Agreement   and   solicited <\/p>\n
    comments of Respondent No.1 in this regard. <\/p>\n
\n\n\n\n    26    On 19\/01\/2005, Respondent No.1 stated that as the matter was \n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 17:15:12 :::<\/span>\n                                                      9                       arbp276.07.sxw\n\n\n<\/pre>\n
    before the Joint Arbitral Tribunal as per the terms of the Agreement <\/p>\n
    (Article 32 of the Agreement) all claims be taken up before them.\n<\/p>\n
    27     On   19\/01\/2005,   Respondent   No.1   sent   a   letter   to   MPA   for <\/p>\n
    placing   the   matter   before   the   Joint   Tribunal,   as   the   claimants <\/p>\n
    application   was   already   sent   to   the   Producers   by   letter   dated <\/p>\n
    06\/10\/2004.  On 29\/01\/2005, the first telecast of the Film took place.\n<\/p>\n
    28     On 31\/01\/2005, the Petitioner and Respondent No.1 agreed for <\/p>\n
    the arbitration before the Tribunal.\n<\/p>\n
           A   letter   from   the   Petitioners   to   Respondent   No.1   giving   a <\/p>\n
    parawise reply to Respondent No.1’s letter dated 19th  January, 2005.\n<\/p>\n
    The authority of MPA to issue the abovementioned circular was also <\/p>\n
    challenged.\n<\/p>\n
    29     On   31\/01\/2005,   before   the   Joint   Tribunal   of   FMC   and   MPA, <\/p>\n
    both   the   parties   in   writing   agreed   to   submit   for   the <\/p>\n
    reference\/adjudication   of   the   dispute   of   the   Film   (Woh   Tera   Naam  <\/p>\n
    Tha)  in terms of clause 9 of the Arbitration Agreement as recorded in <\/p>\n
    the   Producers’   Distributors’   Certificate   for   registration   of   the   Film.\n<\/p>\n
    The   time   was   sought   by   the   Petitioner’s   advocate   and   it   was <\/p>\n
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\n                                                   10                       arbp276.07.sxw<\/p>\n
    accordingly adjourned also.\n<\/p>\n
    30    On 03\/02\/2005, a letter of the Advocates for the Petitioners to <\/p>\n
    Film Maker’s Combine placing on record the Petitioner’s reply dated 1st <\/p>\n
    February,   2005   (above)   along   with   an   application   of   the   Directors <\/p>\n
    dated 2nd February, 2005 filed under Section 16 of the Arbitration and <\/p>\n
    Conciliation Act, 1996, praying that there was no arbitrable dispute <\/p>\n
    between   the   Petitioner   and   Respondent   No.1   and   alternatively <\/p>\n
    challenging the jurisdiction of the Tribunal.\n<\/p>\n
    31    On   17\/02\/2005,   a   letter   from   Respondent   No.1   stating   that <\/p>\n
    submissions were made to the wrong tribunal.\n<\/p>\n
    32    On 01\/03\/2005, a letter from the MPA to the Petitioner referring <\/p>\n
    to the premature telecast of the Film and stating that action as a gross <\/p>\n
    violation   of   the   undertaking  contained  in   the   acquiring  form  dated <\/p>\n
    18th December, 2003 and the Affidavit.\n<\/p>\n
    33    On   02\/03\/2005,   the   Petitioner’s   reply   to   Respondent   No.1’s <\/p>\n
    statement   of   claim   before   Tribunal   denying   all   claims   made   by <\/p>\n
    Respondent No.1 by stating the material terms of the Agreement.\n<\/p>\n
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                                                      11                        arbp276.07.sxw<\/p>\n
           The   Directors   file   an   application   under   Section   16   of   the <\/p>\n
    Arbitration and Conciliation Act, 1996 (for short the Arbitration Act) <\/p>\n
    before   the   Tribunal   stating   that   there   is   no   arbitrable   dispute   and <\/p>\n
    alternatively   challenged   the   Tribunal’s   jurisdiction   to   entertain   the <\/p>\n
    claim of Respondent No.1.\n<\/p>\n
    34     On 02\/03\/2005, affidavit of reply filed by Respondent No.1.  On <\/p>\n
    10\/03\/2005, letter from the Petitioner to the MPA in reply to its letter <\/p>\n
    dated 1st March, 2005.\n<\/p>\n
    35     On 14\/03\/2005, the Petitioner by its letter informed Respondent <\/p>\n
    No.1 that the ten prints were sent out of their own will without being <\/p>\n
    called upon to do so by the Petitioner and that the Petitioner could <\/p>\n
    only   remit   Rs.20,000\/-   from   the   sale   of   two   of   the   ten   prints   on <\/p>\n
    account of Respondent No.1.   The Petitioner reiterated that the said <\/p>\n
    prints were lying with the Petitioner on Respondent No.1’s account.\n<\/p>\n
    36     Respondent No.1 inter alia called upon the Petitioner to make <\/p>\n
    payments   in   respect   of   the   ‘un-recouped   investment’,   which   was <\/p>\n
    denied again on 08\/04\/2005.\n<\/p>\n
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                                                  12                        arbp276.07.sxw\n\n\n    37    On 07\/05\/2005, based upon the written joint agreement dated \n\n<\/pre>\n
    22\/04\/2005,   the   matter   was   adjourned   for   filing   documents <\/p>\n
    pertaining to Cable, Video and Satellite rights including Home Video <\/p>\n
    Rights.\n<\/p>\n
    38    On 11\/05\/2005 a letter from the Petitioner whereby they agreed <\/p>\n
    to pay Rs.20,000\/- for two prints referring to stock of 10 prints held-\n<\/p>\n
    up by them.\n<\/p>\n
    39    On   17\/08\/2005   and   19\/11\/2005,   it   was   again   adjourned   for <\/p>\n
    clarification from the Petitioner and the same was again signed and <\/p>\n
    recorded jointly.\n<\/p>\n
    40    On 20\/12\/2005, a letter from Respondent No.1 to the Petitioner <\/p>\n
    forwarding   to   them   the   business   statement   for   the   Month   of <\/p>\n
    November, 2005.\n<\/p>\n
    41    On   28\/03\/2006,   affidavit   filed   by   Mr.   P.R.   Jain   before   the <\/p>\n
    Tribunal seeking dismissal of Respondent No.1’s claim.<\/p>\n
\n\n\n\n    42    On 05\/01\/2007, the Petitioner placed its submissions on record \n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 17:15:12 :::<\/span>\n                                                         13                        arbp276.07.sxw\n\n\n<\/pre>\n
    before   the   Tribunal.   The   Tribunal   passed   the   impugned   award, <\/p>\n
    awarding   Respondent   No.1   a   sum   of   Rs.2,50,000\/-.     Hence   this <\/p>\n
    Petition.\n<\/p>\n
           THE JOINT TRIBUNAL HAS JURISDICTION<\/p>\n
    43     The   Clause   32   and   33   of   the   agreement   between   the   parties <\/p>\n
    dated 7th January, 2004, with regard to the Arbitration is as under:-\n<\/p>\n
           32.    It   is   agreed   between   the   parties   hereto   that   any  <\/p>\n
                  dispute\/s   arising   out   of   this   LICENSE   it   shall   be
\n                  referred to the Joint Arbitration of the PRODUCERS  <\/p>\n
                  Association   and   Distributors   Association,   and   their
\n                  decision shall be binding on both the parties.\n<\/p><\/blockquote>\n
           33.    It   is   agreed   between   the   parties   hereto   that   the  <\/p>\n
                  appropriate Associations and Courts in Mumbai shall
\n                  have the jurisdiction to entertain and try any suit or  <\/p>\n
                  matter in dispute between them relating to or arising
\n                  from this LICENSE.”\n<\/p><\/blockquote>\n
    44     The parties even otherwise agreed and appeared before the Joint <\/p>\n
    Tribunal and submitted to its jurisdiction for all the purposes.\n<\/p>\n
    45     In   view   of   this,   I   am   not   inclined   to   accept   the   case   of   the <\/p>\n
    Petitioner   that   the   Joint   Tribunal   has   no   jurisdiction   to   decide   the <\/p>\n
    issue.  In view of above clauses and conduct of the parties itself, this <\/p>\n
    court has a jurisdiction to entertain the present petition and the Joint <\/p>\n
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\n                                                      14                       arbp276.07.sxw<\/p>\n
    Arbitral Tribunal has jurisdiction to decide the dispute arising out of <\/p>\n
    the agreement, apart from the signed documents from time to time by <\/p>\n
    the parties before the joint Tribunal.\n<\/p>\n
           UNREASONED AWARD- UNSUSTAINABLE<\/p>\n
    46     The purpose of recording above events is to emphasis that, for <\/p>\n
    want of details and disputed facts in the award passed by the Arbitral <\/p>\n
    Tribunal,   and   as   submissions   are   made   by   the   counsel   for   the <\/p>\n
    Petitioner, the award is liable to be interfered with, also for want of <\/p>\n
    specific reasoning with regard to the lump sum amount, as awarded.\n<\/p>\n
    It is unclear, how this amount is arrived at, and under which clause of <\/p>\n
    the agreement, specially when the Petitioner has denied every demand <\/p>\n
    so   raised   by   Respondent   No.1,   from   its   inception   stating   it   to   be <\/p>\n
    beyond   any   agreement\/contract.     No   amount   can   be   awarded   in <\/p>\n
    commercial   contract,   unless   agreed   otherwise,   on   the   basis   of <\/p>\n
    “sympathetic consideration” or on assumption and presumption.\n<\/p>\n
    47     From   the   material,   as   well   as,   correspondences   as   exchanged <\/p>\n
    and as events show that there were settlement between the parties <\/p>\n
    based upon which 10 prints were with the Petitioner but the finding is <\/p>\n
    given, without referring to the said settlement, against the Petitioner <\/p>\n
    by the Arbitral Tribunal.   It is not made clear that on what basis the <\/p>\n
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\n                                                    15                        arbp276.07.sxw<\/p>\n
    composite award of Rs.2,50,000\/- was passed against the Petitioner <\/p>\n
    referring it to be in violation of the agreement of H.V. rights prior to <\/p>\n
    six months and for retaining 10 prints of the Distributor.  There were <\/p>\n
    no details whatsoever provided on record by Respondent No.1 before <\/p>\n
    claiming   such   amount.     The   Arbitrator   also   failed   to   provide   any <\/p>\n
    actual supporting details\/accounts for assessing such amount.\n<\/p>\n
    48    It   is   necessary   for   the   Arbitral   Tribunal,   though   constituted <\/p>\n
    under the respective terms and conditions of the Associations and\/or <\/p>\n
    practice   and   usage   to   provide   details   while   granting\/awarding   the <\/p>\n
    amount   against   any   party,   basically   when   such   award   is   not   final, <\/p>\n
    unless   it   has   gone   through   the   procedure   as   contemplated   under <\/p>\n
    Sections 34 and\/or 37 of the Arbitration Act.   Normally, as per the <\/p>\n
    agreement and the procedure so adopted by the parties and as per the <\/p>\n
    practice and usage, award may be unreasoned but there is no such <\/p>\n
    procedure   and\/or  rules  pointed  out   and\/or  adopted  by  the   parties.\n<\/p>\n
    Therefore,   the   Joint  Arbitral  Tribunal  is  bound  to  provide  and  give <\/p>\n
    reasons while passing the award.\n<\/p>\n
    49    In a case like this, where various detailed facts are denied  and <\/p>\n
    because of alleged losses suffered, though not part of any terms and <\/p>\n
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\n                                                       16                        arbp276.07.sxw<\/p>\n
    conditions,   it   is   essential   for   the   parties,   to   place   on   record   the <\/p>\n
    material,   as   well   as,   for   the   Joint   Arbitral   Tribunal   to   assess   and <\/p>\n
    analyse   the   material  and  pass  detailed  reasoned  order   of   awarding <\/p>\n
    monetary compensation and\/or award against any party.\n<\/p>\n
           THE QUANTUM OF DAMAGES = PROVED OR UNDISPUTED  <\/p>\n
           EVIDENCE<\/p>\n
    50     The   Arbitral   Tribunal   is   bound   by   the   terms   and   conditions <\/p>\n
    between   the   parties   and   the   substantive   and   the   procedural   law.\n<\/p>\n
    Though   the   Civil   Procedure   Code   and   the   Evidence   Act   are   not <\/p>\n
    applicable, yet the principle of natural justice, equity and fair-play do <\/p>\n
    apply even in such proceedings as, by the award the Tribunal decides <\/p>\n
    the   rights   for   and   against   the   parties.     I   have   already   observed   in <\/p>\n
    Indian   Oil   Corporation   Ltd.   Mumbai   Vs.   M\/s.   Kadbrotee  <\/p>\n
     Engineering Industries, Navi Mumbai  1 that-\n<\/p>\n
         “12. In view of Section 19 of the Act and the provisions of the
\n              Code of Civil Procedure, and\/or the Evidence Act, are not
\n              strictly   applicable, still the basic requirement of proof of
\n              documents, as it goes to the root of the matter,  just cannot  <\/p>\n
              be overlooked specially when the parties nowhere agreed to
\n              follow   such   procedure   while   leading   the   evidence.   The
\n              Arbitrator, therefore, need to consider the basic principle of
\n              awarding the damages or compensation as provided under
\n              the Contract Act.\n<\/p><\/blockquote>\n
    51     In the judgment  Anindya Mukherjee Vs. Clean Coats Private
\n    1 2011(2) Mh.L.J. 659<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 17:15:12 :::<\/span>
\n                                                      17                       arbp276.07.sxw<\/p>\n
     Limited,  1  I have observed that:-\n<\/p>\n
                    “18 The   Arbitrator   needs   to   consider   the   basic  <\/p>\n
                    laws   while   assessing   and   granting   any   kind   of
\n                    damages\/   compensation.     The   Apex   Court   in   the  <\/p>\n
                    STATE   OF   RAJASTHAN   &   ANR.   VS.   FERRO
\n                    CONCRETE CONSTRUCTION PRIVATE LIMITED,
\n                    (2009) 12 SCC 1, has observed in paragraph No.
\n                    55 as under:-\n<\/p><\/blockquote>\n
                    “55. While   the   quantum   of   evidence   required   to
\n                    accept   a   claim   may   be   a   matter   within     the
\n                    exclusive jurisdiction of the arbitrator to decide, if  <\/p>\n
                    there was no evidence at all and if the arbitrator  <\/p>\n
                    makes   an   award   of   the   amount   claimed   in   the
\n                    claim statement, merely on the basis of the claim
\n                    statement without anything more, it has to be held  <\/p>\n
                    that the award on that account would be invalid.
\n                    Suffice it to say that the entire award under this
\n                    head is wholly illegal and beyond the jurisdiction of
\n                    the arbitrator, and wholly unsustainable.”<\/p><\/blockquote>\n
           THE   SPECIALISED   ARBITRAL   TRIBUNAL=   REASONED  <\/p>\n
           AWARD<\/p>\n
    52     It is important to note that , when the parties agreed to settle <\/p>\n
    the disputes through a specialized Arbitral Tribunal, based upon their <\/p>\n
    agreements and adopt  its practice and procedures, it is necessary for <\/p>\n
    such   specialized   Arbitral   Tribunal   to   give   sufficient   reasons   while <\/p>\n
    passing   any   awards   unless   agreed   otherwise.   The   relevant <\/p>\n
    trade\/commerce laws though are relevant, apart from practices and <\/p>\n
    usages,   yet   for   a   proper   adjudication   of   such   disputes   the   basic <\/p>\n
    principle of natural justice and fair-play definitely play important role
\n    1 2011(1) Mh.L.J. 573<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:15:12 :::<\/span>
\n                                                       18                       arbp276.07.sxw<\/p>\n
    in such matters.   All this is not because the specialized Tribunal has <\/p>\n
    taken decision which is final and binding between the parties, but it is <\/p>\n
    necessary  for  proper   appreciation   of  the   decision   so  taken,   as  such <\/p>\n
    award is enforceable subject to the provisions of Arbitration Act.\n<\/p>\n
    53     The expertized\/special Arbitral Tribunal, just cannot expect that <\/p>\n
    the   decision   so   given   by   the   expert   or   specialized   mind,   but   not <\/p>\n
    reflected   through   sufficient   reasons,   that   itself   is   sufficient   for   the <\/p>\n
    Court not to interfere with the order.\n<\/p>\n
    54     The Court under Section 34 of the Act, even otherwise, bound to <\/p>\n
    see and record the reasoning in case of commercial matters and\/or <\/p>\n
    any such general matters to maintain or to modify or to set aside the <\/p>\n
    award, within the framework of law and the record.\n<\/p>\n
    55     In view of this and as there are no reasons given to the rival <\/p>\n
    contentions raised by the parties and how the amount so claimed falls <\/p>\n
    within the framework of the agreement between the parties and it is <\/p>\n
    within the scope of reference.\n<\/p>\n
    56     Therefore,   in   view   of   the   above   facts   and   circumstances   as <\/p>\n
    already recorded and as there are no supportive reasoning reflected <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:15:13 :::<\/span>
\n                                                       19                       arbp276.07.sxw<\/p>\n
    in   the   short   award   though   passed   by   the   specialized   Joint   Arbitral <\/p>\n
    Tribunal,   in   my   view,   is   liable   to   be   interfered   with   for   want   of <\/p>\n
    reasons.  The award of the Joint Arbitral Tribunal is in violation, the <\/p>\n
    contract   terms   and   as   it   is   beyond   the   power,   authority   and <\/p>\n
    jurisdiction.  (Oil   and   Natural   Gas   Corporation   Vs.   Wig   Brothers  <\/p>\n
     Builders and Engineers Private Limited)  1 <\/p>\n
    57     I   am   inclined   to   interfere   with   the   order.     However,   I   am <\/p>\n
    remanding   the   matter   back   to   the   Joint   Arbitral   Tribunal   for   re-\n<\/p>\n
    hearing and to pass reasoned award in accordance with law.\n<\/p>\n
           THE RESULT<\/p>\n
    58     Resultantly, the Petition is allowed.  The impugned award dated <\/p>\n
    5th  January 2007, is quashed and set aside.   However, the liberty is <\/p>\n
    granted   to   the   parties   to   appear   before   the   Joint   Arbitral   Tribunal <\/p>\n
    within 4 weeks for the directions. The Joint Arbitral Tribunal to pass <\/p>\n
    award within 4 months, after hearing both the parties.\n<\/p>\n
    59     The Petition is allowed in terms of prayer clause (a), with the <\/p>\n
    above directions.  No order as to costs.\n<\/p>\n
                                                        (ANOOP V. MOHTA, J.)
\n    1 (2010) 13 S.C.C. 317<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:15:13 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Radha Krshna Films Ltd vs 2 Motion Pictures Association on 5 May, 2011 Bench: Anoop V.Mohta 1 arbp276.07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 276 OF 2007 Radha Krshna Films Ltd. A Company registered under the Provisions of the Companies Act, 1956, having […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-216863","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRadha Krshna Films Ltd vs 2 Motion Pictures Association on 5 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/radha-krshna-films-ltd-vs-2-motion-pictures-association-on-5-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Radha Krshna Films Ltd vs 2 Motion Pictures Association on 5 May, 2011 - 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