carbpl.6451.2020 bcci.

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Digitally signed
by ANJALI
ANJALI TUSHAR
TUSHAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ASWALE
Date:
ASWALE 2022.03.16
18:18:39 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION(L) NO. 6451 OF 2020

World Sport Group (India) Private Ltd ..Petitioner

Vs.

Board of Control for Cricket in India ..Respondent

WITH
INTERIM APPLICATION (L)NO.6456 OF 2020
IN
COMMERCIAL ARBITRATION PETITION(L) NO. 6451 OF 2020

World Sport Group (India) Private Ltd ..Applicant

(Orig. Petitioner)
IN THE MATTER BETWEEN

World Sport Group (India) Private Ltd ..Petitioner

Vs.

Board of Control for Cricket in India ..Respondent

Mr. Aspi Chinoy, Senior Advocate a/w Mr. Rajat Taimni, Mr. Saurajay
Nanda, Mr. Anubhav Dutta i/b Tuli & Co, for the Petitioner/Applicant.

Mr. Rafiq Dada, Senior Advocate a/w Mr. Indranil Deshmukh, Ms. Gathi
Prakash, Mr. Rishabh Malaviya i/b Cyril A. Mangaldas, for the Respondent.

CORAM :- B. P. COLABAWALLA, J.

Reserved on : 18th March, 2021.

Pronounced on : 16th March, 2022.

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J U D G E M E N T :-

1. At the outset, I must mention that arguments in the above

matter were concluded on 18th March 2021 and parties had also tendered

detailed written submissions. However, due to the third wave of the

COVID-19 pandemic and also other exigencies of work, there was a delay

in pronouncing judgment in the above matter. I had, therefore, placed

the matter on Board today (i.e. 16th March 2022) at 2:30 pm in chambers

under the caption “FOR DIRECTION/PRONOUNCEMENT OF

JUDGEMENT”. I did this because almost a year has elapsed since the

judgment was reserved, and I wanted to inquire from the parties if they

wanted to make any further submissions. In these circumstances, I asked

Mr. Chinoy, the learned senior counsel appearing on behalf of the

Petitioner, as well as Mr. Dada, the learned senior counsel appearing on

behalf of the Respondent, if they wanted to make any further submissions

or whether I should proceed to pronounce judgment in the above matter.

Both counsels stated before me that notwithstanding the delay, they do

not want to make any further submissions and I should proceed for

pronouncing the judgment. Accordingly, I have pronounced the

judgment today.

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2. The above Petition is filed under Section 34 of the

Arbitration and Conciliation Act, 1996 (for short “the Arbitration Act”)

seeking to set aside the Majority Award of the Arbitral Tribunal dated 13th

July 2020. The Majority Award is passed by Mrs. Justice Sujata Manohar

(Retd.), a former Judge of the Supreme Court of India and Dr. Justice

Mukundakam Sharma (Retd.), also a former Judge of the Supreme Court.

The dissenting Award dated 20th July 2020 is given by a former Judge of

the Supreme Court of India, Mr. Justice S. S. Nijjar (Retd).

3. By the Majority Award, the Petitioner’s challenge to the

Respondent’s rescission of the Petitioner’s 2nd Media Rights License

Agreement dated 25th March 2009 (for short, the “2nd BCCI-WSGI

MRLA”) was rejected. Under the 2nd BCCI-WSGI MRLA, the Petitioner

was granted Media Rights in relation to the Indian Premier League

(for short the “IPL”) for the “Rest of the World” (“RoW”) territories (i.e.

all territories other than the Indian Sub-Continent), for the period 2009-

2017. In the Majority Award, the Arbitrators upheld that the said

rescission of the 2nd BCCI-WSGI MRLA by accepting the Respondent’s

contention that the said MRLA was part of a fraudulent composite

transaction. Since the said MRLA was part of a composite fraud, the

Respondent's rescission of the said MRLA was upheld by the Majority

Award.

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4. Before I advert to the facts of the case, it would be necessary

to set out the description of the parties. The Petitioner, World Sports

Group (India) Private Limited (for short “WSGI”) is a company

incorporated under the provisions of the Companies Act, 1956. It was part

of the World Sports Group of companies which was subsequently

acquired by the Lagardere Group which is engaged in the business of

sports marketing, event management and media rights, specifically in

relation to cricket, golf, and football. The Respondent, the Board of

Control for Cricket in India (for short “BCCI”) is a society registered

under the provisions of the Tamil Nadu Registration of Societies Act, 1975

and is the governing body for the sport of cricket in India. In fact, BCCI

organizes cricket matches in India and abroad. For the sake of

convenience, I shall refer to the Petitioner as “WSGI” and the

Respondent as “BCCI”.

5. The facts to be noted to decide the present controversy are

this. In September 2007, BCCI conceptualized and decided to launch the

Indian Premier League (for short the “IPL”) which was the first of its

kind, franchise-based, 20-over cricket tournament. The format of the IPL

differed from the then existing structure of either the 5-day TEST

MATCHES or the ONE-DAY INTERNATIONAL MATCHES. The IPL was

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to be administered by a sub-committee of BCCI known as the IPL

Governing Council. Mr. Lalit Kumar Modi was appointed as the

Chairman of the IPL Governing Council. To facilitate all this, a

Memorandum of Understanding dated 13th September 2007 was

executed between BCCI and the International Management Group (UK)

Ltd. (“IMG”) to provide specialist Media Rights services to BCCI inter

alia in relation to negotiation, review, and execution of contracts for the

IPL.

6. On 30th November 2007, BCCI floated an invitation to

tender inviting bids from broadcasters and/or media marketing agencies

to acquire a license for the IPL Media Rights for a period of 10 years

starting from 2008 to 2017. The tender contemplated IPL Media Rights

(i) for the Indian Sub-Continent (consisting of India, Pakistan, Sri Lanka,

Bangladesh, Nepal, Bhutan, and the Maldives) and (ii) for the “Rest of the

World” (for short “RoW”) territories.

7. Pursuant to the aforesaid tender, WSGI bid for and was

awarded the contract for the Global Media Rights Package of the IPL for

a period of 10 years (2008-2017) for the approximate value of USD One

Billion. Since WSGI (the Petitioner/Claimant) was not a broadcaster but

only a trader in Media Rights, it entered into pre-bid negotiations with

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MSM Satellite (Singapore) Pte. Ltd. (for short “MSM”) which had a

broadcasting network in India. Though the Claimant/WSGI was the only

successful bidder for the IPL Global Media Rights Package for the entire

period (2008-2017), MSM, for its own commercial reasons, instead of

entering into a sub-licensing Agreement with WSGI, desired to enter into

a direct Media Rights License Agreement (MRLA) with BCCI for the

Indian Sub-Continent (hereinafter referred to as the “India Rights”) for

the period 2008-2012. To facilitate this process, MSM, with the consent

of WSGI, entered into a Media Rights License Agreement dated 21st

January 2008 with BCCI (for short the “1st BCCI-MSM MRLA”) for the

period 2008-2012 for USD275.40 Million. This 1st BCCI-MSM MRLA was

only for the India Rights for the period 2008-2012.

8. On the same day i.e., 21st January 2008, a composite Media

Rights License Agreement was also executed between BCCI and WSGI

(for short the “1st BCCI-WSGI MRLA”) for (i) the India Rights for the

period 2013-2017 for a sum of USD 550 Million (Approximately Rs.2,200

crores); and (ii) the RoW Media Rights (i.e. excluding India Rights) for

the period 2008-2017 for USD 92 Million. Accordingly, the aggregate

amount receivable by BCCI for the India Rights for the period 2008-2017

was USD 824.50 Million (USD 274.50 Million from MSM + USD 550

Million from WSGI) which was equivalent to Rs.3301.60 crores. In

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addition to this, an amount of USD 92 Million was also payable by WSGI

to BCCI for the RoW rights.

9. Since MSM had only acquired India Rights for the period

2008-2012, an Option Agreement dated 21st January 2008 was also

entered into between WSGI and MSM whereunder MSM was given the

option to acquire the India Rights for the period 2013-2017 from WSGI

by making a payment of a sum of up to USD 60 Million to WSGI. This

was in addition to the License Fee of USD 550 Million which was payable

to BCCI by WSGI under the 1st BCCI-WSGI MRLA. For the sake of

convenience, all the aforesaid agreements are hereinafter collectively

referred to as “the MRLAs of 2008”. The MRLAs of 2008 are

unquestioned and neither party has challenged the validity of these

Agreements.

10. The first season of the IPL was conducted between April and

May of 2008 and was a resounding success. After the first season of the

IPL, disputes arose between BCCI and MSM which lead to BCCI

terminating the 1st BCCI-MSM MRLA (which was for the India Rights for

the period 2008-2012) on 14th March 2009. Being aggrieved by this

termination, MSM filed a petition in this Court under Section 9 of the

Arbitration Act and sought interim relief against BCCI from acting on the

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aforesaid termination. The aforesaid Section 9 Petition was slated to be

heard on 15th March 2009.

11. Since BCCI had terminated the 1st BCCI-MSM MRLA on 14th

March 2009, BCCI became entitled to re-auction the India Rights for the

period 2009-2012. However, given the resounding success of the IPL,

BCCI wanted to substantially increase the License Fee receivable for the

India Rights not only for the period 2009-2012 but also for the period

2013-2017 (which belonged to WSGI under the 1st BCCI-WSGI MRLA

dated 21st January 2008). In other words, BCCI was desirous of re-

auctioning and concluding a new Media Rights Agreement for the India

Rights for the entire period of 2009-2017 as a single package.

12. To take this further, BCCI requested WSGI to agree to a

mutual termination of WSGI’s Composite Media Rights License

Agreement dated 21st January 2008 (the 1st BCCI-WSGI MRLA) so that

BCCI could unbundle the India Rights for the period 2013-2017 and

aggregate the same with the India Rights for the period 2009-2012 and

then re-auction them as a single package for a substantially higher

amount. To achieve this objective, BBCI would enter into a fresh MRLA

with WSGI or its affiliate World Sport Group (Mauritius) Limited (for

short “WSGM”), granting it the India Rights for the period 2009-2017.

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Additionally, BCCI would also enter into a fresh MRLA with WSGI for the

RoW rights for the period 2009-2017. It is not in dispute that at that

relevant time (i.e. in March 2009), there were no disputes whatsoever

between BCCI and WSGI regarding the MRLAs of 2008.

13. According to WSGI, it agreed to a mutual termination of the

1st BCCI-WSGI MRLA dated 21st January 2008 only in order to enable

BCCI to receive an enhanced License Fee for the India Rights for the

period 2009-2017 on the condition (i) that the India Rights for the period

2009-2017 would be licensed to WSGI, or its nominee – WSGM, thereby

enabling WSGI to realize a premium for relinquishment of its India

Rights for the period 2013-2017; and (ii) that BCCI would reinstate

WSGI’s RoW Rights for the period 2009-2017 by entering into a fresh

MRLA with WSGI on the same terms and conditions as was recorded in

the 1st BCCI-WSGI MRLA dated 21st January 2008.

14. To facilitate this entire process, BCCI, WSGI and WSGM

entered into a Deed of Mutually Agreed Termination dated 15th March

2009 (for short the “DMAT”). On the same date, i.e. 15th March 2009,

BCCI also entered into an Media Rights Licensing Agreement (MRLA)

with WSGM for licensing/ sub-licensing the India Rights for the period

2009-2017 for a substantially increased sum of Rs.4791.89 crores (for

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short the “BCCI-WSGM MRLA”). Both the aforesaid Agreements were

entered into at 3 AM on 15th March 2009. It is to be noted that the India

Rights for the period 2009-2017 under the MRLAs of 2008, were licensed

for a consideration of Rs.3,000 crores. In other words, BCCI licensed the

India Rights for the period 2009-2017 for an additional sum of Rs.1791

crores. One of the terms of this MRLA was that WSGM was required to

enter into a sub-license Agreement with a broadcaster within 72 hours.

Since BCCI and WSGM had entered into the BCCI-WSGM MRLA on 15th

March 2009, an affidavit was filed by Mr. Lalit Modi on behalf of BCCI in

the Section 9 Petition (filed by MSM before this Court) stating that an

MRLA was already executed between WSGM and BCCI on 15th March

2009. In this light, arguments were heard by this Court in MSM’s Section

9 Petition and was reserved for orders.

15. According to WSGI, in view of the pending Court litigation,

the 72-hour period as prescribed by the BCCI-WSGM MRLA was

extended first till 21st March 2009 and then till 24th March 2009. The

Bombay High Court passed an order in MSM’s Section 9 Petition on 23rd

March 2009. By the said order, this Court refused interim reliefs to MSM

inter alia on the basis that the India Rights of the IPL for the period 2009-

2017 had already been granted to WSGM under the BCCI-WSGM MRLA

dated 15th March 2009.

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16. Since WSGM was not a broadcaster but only a trader in

Media Rights, according to WSGI, between 15th March 2009 and 19th

March 2009, WSGM was approached by MSM and several other

broadcasters who were desirous of securing the India Rights for the

period 2009-2017. For securing the India Rights for the period 2009-

2017, MSM (i) was willing to match the amount payable by WSGM to

BCCI under the BCCI-WSGM MRLA (i.e. pay Rs.4791 crores to BCCI for

the period 2009-2017); and (ii) since MSM was insistent on a direct

agreement with BCCI and not as a sub-licensee of WSGM, it was also

willing to pay an additional amount of Rs.425 crores to WSGM for giving

up its India Rights.

17. According to WSGI, to facilitate the aforesaid arrangement,

it was agreed between WSGM, MSM and BCCI that WSGM would allow

its rights under the BCCI-WSGM MRLA dated 15th March 2009 to lapse

and BCCI would thereafter enter into a direct MRLA with MSM for the

India Rights for the entire period of 2009-2017 on the same terms i.e. by

paying BCCI Rs.4791 crores. In addition thereto, MSM would pay WSGM

an additional fee/premium of Rs.425 crores under a separate Agreement.

Accordingly, and to facilitate this entire arrangement, the BCCI-WSGM

MRLA dated 15th March 2009 was allowed to lapse and a letter dated 25th

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March 2009 was executed by WSGM and BCCI confirming that the BCCI-

WSGM MRLA had lapsed on 25th March 2009. This gave way for MSM to

enter into a MRLA directly with BCCI for the India Rights for the period

2009-2017. Accordingly, on 25th March 2009, MSM entered into a direct

agreement with BCCI for the India Rights for the period 2009-2017 for

an amount of Rs.4791.89 crores (for short the “2nd BCCI-MSM

MRLA”). On the same day (i.e. 25th March 2009), WSGM and MSM also

executed a “Deed for Provision of Facilitation Services” (for short the

“Facilitation Deed”) which inter alia recorded that WSGM had

assisted MSM in finalising the 2nd BCCI-MSM MRLA and that MSM had

agreed to pay a Facilitation Fee of Rs.425 crores to WSGM in return for

such Facilitation Services. It is the case of WSGI that though the BCCI-

WSGM MRLA is dated 15th March 2009, inadvertently the same was

referred to as being dated 23rd March 2009 in the Facilitation Deed. Be

that as it may, under this entire arrangement, BCCI received an

additional amount of Rs.1791 crores for the India Rights for the period

2009-2017 i.e. Rs.4791 crores minus Rs.3000 crores [for the same period

under the MRLAs of 2008].

18. In order to restore/reinstate WSGI’s RoW rights and which

were given to it under the 1st BCCI-WSGI MRLA, BCCI also executed a

fresh/2nd Media Rights License Agreement with WSGI on 25th March

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2009 for the RoW rights for the period 2009-2017 w. e. f. 15th March 2009

(for short the “2nd BCCI-WSGI MRLA”). This MRLA had the same

terms and conditions as stipulated in the 1st BCCI-WSGI MRLA dated 21st

January 2008 save and except that the 2nd BCCI-WSGI MRLA contained

Clause 27.5 which inter alia stipulated that upon BCCI receiving a notice

regarding the non-payment of the Facilitation Fee Amount from MSM,

BCCI would either terminate the 2nd BCCI-MSM MRLA or pay the

amount owed by MSM to WSGM.

19. It is the case of the WSGI that the arrangement set out above

and all the Agreements entered into in 2009 (to give effect to the above

arrangement), were all prepared by Paul Manning of IMG. To put it in a

nutshell, it is the case of WSGI that the aforesaid arrangement, which

culminated into all the Agreements executed in 2009:

(i) enabled BCCI to re-auction the India Rights for the period
2009-2017 for an increased License Fee of Rs.4791 crores in
comparison to the original License Fee of Rs.3000 crores (i.e.
an increase of Rs.1791 crores). BCCI was able to get this
increased amount by re-auctioning the India Rights for the
entire period of 2009-2017 only because WSGI agreed to the
termination of its 1st BCCI-WSGI MRLA and thereby giving up
its India Rights for the period 2013-2017 to BCCI as recorded
in the DMAT;

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(ii) WSGI, who was entitled to the India Rights for the period
2013-2017, relinquished the same to BCCI under the DMAT
only to enable BCCI to re-auction the same by clubbing it with
the India Rights for the period 2009-2012 which accrued to
BCCI pursuant to the termination notice issued by BCCI to
MSM on 14th March 2009. This relinquishment was subject to
BBCI entering into a fresh MRLA with WSGI or its affiliate –
WSGM, granting it the India Rights for the period 2009-2017;
and

(iii) WSGI’s RoW Media Rights for the period 2009-2017 were
restored and reinstated w.e.f. 15th March 2009 on the same
terms and conditions as the 1st BCCI-WSGI MRLA, with the
exception of insertion of Clause 27.5, which inter alia
stipulated that upon BCCI receiving a notice regarding non-
payment of the Facilitation Fee amount by MSM, BCCI will
either terminate the 2nd BCCI-MSM MRLA or pay the amount
owed by MSM.

20. According to WSGI, during the 2nd and 3rd seasons of the IPL

(i.e. the IPL held in 2009 & 2010), all parties acted on the Agreements

entered into in 2009. In other words, MSM dealt with the India Rights

and agreed to pay the enhanced License Fee of Rs.4791 crores to BCCI

while WSGI dealt with the RoW rights. According to WSGI, during the

course of the 3rd season of the IPL, there were reports of disputes between

Mr. Lalit Modi and other office bearers of the BCCI. As there were media

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reports alleging irregularities over the acquisition of Media Rights from

BCCI, MSM, on 23rd April 2010, issued a press statement about the

circumstances in which it had entered into the contract for payment of

the Facilitation Fee to WSGM. The aforesaid press release inter alia

stated:

(i) MSM’s intent to secure the India Rights from WSGM, who
had acquired said Rights under the BCCI-WSGM MRLA dated
15th March 2009;

(ii) that MSM had been insistent on getting a direct contract

with BCCI rather than a sub-license from WSGM who had
these rights under the BCCI-WSGM MRLA dated 15th March
2009; and

(iii) the Facilitation Fee of Rs.425 crores was payable to

WSGM for giving up its India Rights under the BCCI-WSGM
MRLA dated 15th March 2009.

21. Be that as it may, according to WSGI, on 25th June 2010,

MSM, acting contrary to the aforesaid press statement and at the instance

of BCCI, issued an Advocate’s Notice to WSGM purporting to rescind the

Facilitation Deed on the ground that WSGM had falsely represented that

WSGM had executed an Agreement dated 23rd March 2009 with BCCI

whereunder WSGM had been granted unfettered Global Media Rights,

including the India Rights and that the said rights were subsisting with

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WSGM at the time of execution of the Facilitation Deed on 25th March

2009. According to WSGI, MSM at the instance of BCCI, sought to take

wrongful advantage of the fact that the Facilitation Deed had

inadvertently / erroneously referred to the BCCI-WSGM MRLA as being

dated 23rd March 2009 instead of 15th March 2009. According to WSGI,

MSM’s said allegations were ex-facie contrary to and belied by its own

press statement dated 23rd April 2010 which referred only to the BCCI-

WSGM MRLA dated 15th March 2009 and made absolutely no reference

to any alleged MRLA dated 23rd March 2009.

22. Be that as it may, on 25th June 2010, a further Agreement

was entered into between BCCI and MSM amending the 2nd BCCI-MSM

MRLA dated 25th March 2009. This Agreement inter alia deleted Clause

10.4 of the said 2nd BCCI-MSM MRLA which stipulated that upon BCCI

receiving a notice from WSGM for non-payment of the Facilitation Fee,

BCCI would terminate the 2nd BCCI-MSM MRLA.

23. Thereafter, on 28th June 2010, BCCI issued a notice to WSGI

alleging that the 2nd BCCI-WSGI MRLA dated 25th March 2009 (and

which related only to the RoW rights for 2009-2017) was on the face of it

vitiated by fraud since the Facilitation Fee of Rs.425 crores payable to

WSGM were amounts actually due to BCCI. In these circumstances, BCCI

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purported to rescind the 2nd BCCI-WSGI MRLA “due to the all-pervasive

fraud that you have perpetrated on the BCCI”.

24. The allegations made by BCCI, through its termination

notice dated 28th June 2010, were responded to by WSGI vide its letter

dated 30th June 2010. Thereafter, WSGI filed a Section 9 Petition seeking

interim relief against BCCI’s termination of the 2nd BCCI-WSGI MRLA.

A learned Single Judge of this Court rejected the said Section 9 Petition

on 20th December 2010. Being aggrieved by the aforesaid rejection, an

Appeal was filed before a Division Bench of this Court. The Division

Bench in Appeal, by order dated 23rd February 2011, allowed the Appeal

and restrained BCCI from creating any third-party rights in relation to

the Media Rights for the RoW (“Rest of the World”).

25. Being aggrieved by the order of the Division Bench, BCCI

preferred an SLP before the Hon’ble Supreme Court. The Hon’ble

Supreme Court, by its order dated 21st April 2011, disposed of the SLP

filed by BCCI by giving the following directions:

“(a) BCCI shall be entitled to award any of the unawarded sub-

licence media rights (to which respondent was entitled under the
agreement dated 25.3.2009), by following the standard tender
procedures. BCCI will be entitled to take all decisions, and do all
acts, that could have been taken or done by the respondent under
the agreement dated 25.3.2009, if it had been operational.

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(b) All amounts/deposits/licence fees received by BCCI as

consideration in respect of sub-licence or by the agreements
entered by the respondent, or by the BCCI after the termination,
shall be remitted to an Escrow Account with a Nationalized Bank.

(c) Out of the amounts so remitted to the Escrow Account, BCCI

shall be entitled to draw every year, an amount equivalent to the
license fee it would have received from the respondent under the
agreement dated 25.3.2009 (if the said agreement had not been
terminated), without prejudice to its rights and contentions.

(d) The net annual income (that is the difference between the total
of amounts remitted to the Escrow Account every year less the
amount equivalent to the licence fee that is drawn by BCCI in terms
of agreement dated 25.3.2009) shall be kept in a fixed deposit for a
term of one year. Such fixed deposits shall be renewed yearly till
the final adjudication of the disputes between the respondent and
the appellant by a competent court or arbitral tribunal (if the
remedy of arbitration is available or agreed) as the case may be.

(e) BCCI shall file yearly accounts (after furnishing a copy thereof to
the respondent) in regard to the amounts received, the amount
remitted to the Escrow Account, amounts drawn by BCCI
(equivalent to the licence fee under the agreement dated
25.3.2009) and the net amount invested in fixed deposits.

(f) In regard to the amounts to be received and accounted for by

BCCI as aforesaid, the BCCI shall be deemed to be a Receiver
appointed by this Court. Such deemed Receivership will end
automatically, on final decision by the Court/Tribunal before which
the disputes are raised, or on 31.1.2017, whichever is earlier.”

26. Thereafter, arbitration commenced between the parties and

WSGI filed its Statement of Claim before the Arbitral Tribunal on 7th June

2016. On 13th July 2016 BCCI filed its Statement of Defence. Thereafter,

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and on 22nd February 2017, BCCI filed its amended Statement of Defence

incorporating the ground that the arbitration was not maintainable in the

absence of proper and necessary parties being WSGM and Mr Lalit

Kumar Modi. WSGI filed its additional Rejoinder on 16 March 2017.

Thereafter, the matter went to trial and the impugned Majority Award

dated 13th July 2020 was passed and which is challenged in the present

Petition.

WSGI’s SUBMISSIONS:

27. In this factual backdrop, Mr. Chinoy, the learned senior

counsel appearing on behalf of WSGI, submitted that the Majority Award

is ex-facie perverse and vitiated by patent illegality in as much as it totally

fails to advert to or consider the crucial undisputed fact / evidence that

BCCI was able to receive from MSM an increased License Fee of Rs.4791

crores for the India Rights for the period from 2009-2017 by virtue of the

Agreements entered into between BCCI, WSGI, WSGM and MSM in the

year 2009. Mr. Chinoy submitted that pursuant to all the Agreements

entered into between the period 15th March 2009 to 25th March 2009

(including the DMAT), WSGI, relinquished its India Rights for the period

from 2013-2017 to BCCI so as to enable BCCI to aggregate these rights

with the India Rights for 2009-2012 (which reverted to BCCI pursuant to

the termination of the 1st BCCI-MSM MRLA dated 21st January 2008),

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and then re-sell/re-auction the India Rights for the entire period of 2009-

2017 (as a single package) for a substantially higher License Fee. Mr.

Chinoy submitted that failure of the Tribunal to note this enormous

benefit/gain which had inured to BCCI as a consequence of the aforesaid

Agreements entered into between 15th March 2009 and 25th March 2009

(the composite transaction) was material because:

(i) as a result of having received and retained this

enormous monetary benefit, BCCI had necessarily

approbated and affirmed the said composite

transaction (i.e. the Agreements entered into between

15th March 2009 and 25th March 2009) and was

therefore, in law, precluded from rescinding or

reprobating any part thereof, including the 2nd BCCI-

WSGI MRLA dated 25th March 2009, and which was in

relation to the Media Rights for the RoW; and

(ii) this has led the Tribunal to come to a perverse

conclusion that the object of the composite transaction

was only to enable the alleged diversion of Rs.425

crores to WSGM. It completely overlooked the fact that

by the composite transaction, BCCI was able to receive

and retain a much higher License Fee of Rs.4791 crores

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for the period 2009-2017.

28. Mr. Chinoy took me through the Majority Award and

pointed out that in the entire Award, there is not a single reference to the

fact that by the aforesaid composite transaction, BCCI had in-fact

benefited to the extent of Rs. 1791 crores. He submitted that this

composite transaction, resulting in BCCI receiving the benefit of Rs.1791

crores and which BCCI had retained, had been specifically averred/stated

in the Statement of Claim and not been disputed/denied by BCCI in the

reply/Written Statement of BCCI, and more particularly, paragraph 55

(qq) thereof. Mr. Chinoy submitted that BCCI had gained and retained

the benefit of an increase in the License Fee of Rs. 1791 crores because of

the composite transaction entered into between BCCI, MSM, WSGM and

WSGI respectively. This being the case, BCCI was precluded from

impugning / rescinding any part of the composite transaction (i.e. all the

Agreements entered into in the year 2009). Despite having urged this

argument specifically before the Tribunal and which is reflected in the

post hearing submissions, the Arbitral Tribunal in its Majority Award,

has failed to consider the aforesaid argument which would go to the root

of the matter. In this regard, Mr. Chinoy brought to my attention pages

460, 463, 465, 467, 485, 486 and 536 of the paper book which relate to

post hearing submissions of WSGI. Mr. Chinoy submitted that the fact

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that BCCI received and retained this benefit of Rs. 1791 crores and

consequently having approbated/affirmed the composite transaction is

also noted in the Minority Award. Mr. Chinoy submitted that the only

reason he refers to the Minority Award is to show to the Court that the

aforesaid argument was specifically put in issue before the Tribunal and

the Majority Award completely overlooks this argument and has not even

been considered. It is this conduct of the Majority Tribunal that Mr.

Chinoy terms as ex-facie perverse and vitiated by patent illegality.

29. Mr. Chinoy then submitted that WSGI’s argument on

perversity is further reinforced when one reads the Arbitrators’ findings

on the purpose/object of the DMAT. He submitted that the said findings

are ex-facie contrary to the express terms of the DMAT. In this regard,

Mr. Chinoy submitted that while the increased License Fee of Rs. 4791

crores was undoubtedly due to the increased popularity of the IPL after

the 1st season of the IPL in 2008, BCCI would not have been able to secure

such increased License Fees for the India Rights for the period 2013-2017

without WSGI agreeing to surrender their India Rights for the aforesaid

period to BCCI under the DMAT. It is the DMAT that enabled BCCI to re-

sell/re-auction the India Rights for the period 2009-2017 as a complete

package. Mr. Chinoy, therefore, submitted that the Majority Award is

liable to be set aside on the ground of patent illegality and perversity for

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totally failing to advert to and consider the facts and evidence that under

the composite transaction (and more particularly the DMAT), BCCI was

able to re-sell the India Rights for the period 2009-2017 to MSM for an

enhanced License Fee of Rs.4791 crores and which sum BCCI had

retained and enjoyed the benefit thereof. Mr. Chinoy submitted that if

this fact had been considered, it would necessarily lead to the conclusion

/ consequence that receipt and enjoyment of the said enhanced sum of

Rs.4791 crores clearly constituted approbation on the part of BCCI which,

in turn, precluded BCCI from reprobating / rescinding the composite

transaction (i.e. the Agreements entered into in 2009) or any part thereof,

including the 2nd BCCI-WSGI MRLA dated 25th March 2009.

30. The next argument canvassed by Mr. Chinoy was that the

Award is perverse as it contravenes the principles of Sections 64 and 65

of the Contract Act, 1872, and is therefore, contrary to the fundamental

policy of Indian Law. Mr. Chinoy submitted that the Majority Award

upholds the rescission of the 2nd BCCI-WSGI MRLA dated 25th March

2009, without requiring BCCI to terminate the other Agreements, and in

particular, the DMAT. Consequently, the Majority Award does not

require BCCI to restore the benefit it had received under all the

Agreements executed in 2009 including the DMAT. In this regard, Mr.

Chinoy submitted that BCCI has only purported to rescind the 2nd BCCI-

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WSGI MRLA dated 25th March 2009 and had not terminated/rescinded

the other Agreements executed in 2009, including the DMAT. This is

despite the fact that it is BCCI’s own case that all the Agreements from

15th March 2009 to 25th March 2009, (including the DMAT) formed part

of a fraudulent composite transaction. Mr. Chinoy submitted that in law,

BCCI could not have rescinded only the 2nd BCCI-WSGI MRLA dated 25th

March 2009 without rescinding / cancelling all the other Agreements

which formed part of the so called fraudulent composite transaction,

including the DMAT. Mr. Chinoy submitted that the reason why the other

Agreements were not terminated is not far to see. He submitted that

BCCI did not terminate the other Agreements, including the DMAT, as

that would have resulted in requiring BCCI to restore the benefits it had

received thereunder i.e. it would have had to restore to WSGI (i) the India

Rights for the period 2013-2017; and (ii) the RoW rights for the period

2009-2017. This would necessarily require BCCI to give up the increase

in the License Fee of Rs.1160 crores which it had received from MSM for

the India Rights for the period 2013-2017. Mr. Chinoy submitted that the

rescission of only the 2nd BCCI-WSGI MRLA dated 25th March 2009 and

not of the DMAT and other Agreements executed in 2009 (which formed

part of the composite transaction), is ex-facie impermissible and invalid

in law. By purporting to rescind only the 2nd BCCI-WSGI MRLA and not

the DMAT, BCCI has sought to defeat/nullify the statutory obligation to

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return the benefit/advantage it had received under the DMAT i.e. the

India Rights for the period 2013-2017 and the RoW Rights for the period

2009-2017.

31. Mr. Chinoy submitted that the Majority Award, by

upholding the termination of only the 2nd BCCI-WSGI MRLA dated 25th

March 2009 (despite BCCI’s own case that it formed part of the

fraudulent composite transaction, including the DMAT), in effect enabled

BCCI to negate/bypass its statutory obligation to restore the

benefit/advantage it had received under the DMAT. Mr. Chinoy

submitted that such a purported partial rescission of the composite

transaction has resulted in unjust enrichment and is contrary to the

principle of Section 64 of the Contract Act, 1872 which embodies the

fundamental policy of Indian Law. The Award which upholds such an

illegal partial rescission, results in unjust enrichment contrary to the

principles embodied in Sections 64 and 65 of the Contract Act, 1872 and

is accordingly illegal, perverse, and contrary to the fundamental policy of

Indian Law. Mr. Chinoy clarified that WSGI was not seeking restoration

/ restitution of the benefit / advantage received by the BCCI under

Sections 64 and 65 of the Contract Act, 1872. He submitted that it is

WSGI’s submission that the purported rescission was bad in law as BCCI

had not terminated the other Agreements, including the DMAT, and had

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thereby sought to bypass/negate the statutory obligation which would

have arisen on termination of the DMAT which was to return the

advantage/ benefit it had received under such Agreements, including the

DMAT.

32. Mr. Chinoy brought to my attention that it was the

submission of BCCI before the Tribunal that the termination of the 2nd

BCCI-WSGI MRLA dated 25th March 2009 had the effect of

rescinding/repudiating all the Agreements that formed part of the

composite transaction, including the Deed of Mutually Agreed

termination (DMAT), and therefore, no separate rescission of the DMAT

was required or warranted. The Award, however, holds that there was no

need to rescind the other Agreements (forming part of the alleged

fraudulent composite transaction) because by the time BCCI discovered

the fraud, all these Agreements were determined by the efflux of time. Mr.

Chinoy submitted that the finding in the Majority Award that there was

no need to rescind the other Agreements (forming part of the alleged

fraudulent transaction) as “…all these Agreements were determined by

efflux of time by the time the Respondent discovered the fraud and,

therefore, there was no requirement for the BCCI to rescind the other

Agreements”, is ex-facie perverse. Mr. Chinoy submitted that BCCI was

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able to re-sell/re-auction the India Rights for the period 2009-2017 to

MSM at a higher price of Rs.4791 crores only because WSGI had, under

the DMAT, agreed to surrender/revert its India Rights for the period

2013-2017 to BCCI. BCCI acted on the basis of that surrender and re-

licensed the India Rights for the period 2009-2017 to MSM. This being

the factual position, Mr. Chinoy submitted that there was no question of

the DMAT having “determined by efflux of time”. If the composite

transaction was fraudulent, the DMAT (which formed a part thereof)

would also be required to be rescinded and on such rescission, BCCI

would have statutorily been required to return to WSGI the benefit it had

received thereunder i.e. the India Rights for the period 2013-2017 as well

as the RoW Rights for the period 2009-2017. He, therefore, submitted

that the Award is also perverse and suffers from a patent illegality on this

ground as well.

33. Mr. Chinoy thereafter submitted that the Majority Award

also deserves to be set aside because the Arbitrator’s interpretation of the

DMAT and its stated purpose and object is clearly contrary to the express

terms/plain language thereof, and is therefore, ex-facie perverse and is

not even the possible view. In this regard, Mr. Chinoy submitted that the

Majority Award holds that WSGI’s contention that the DMAT was

executed to unbundle the India Rights for the period 2013-2017 so as to

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make its subsequent aggregation with the India Rights for the period

2009-2012 possible (which would get BCCI more money), does not

appear to be convincing. Mr. Chinoy submitted that the Majority Award

also holds that there is no reference to the unbundling of the India Rights

by WSGI in the order to enhance its value when sold as an entire package

for the period 2009-2017. He submitted that the Award further goes on

to hold that by the DMAT, the WSGI agreed to give up its India Rights for

the period 2013-2017 in favour of WSGM for no consideration. Mr.

Chinoy submitted that the aforesaid observations and findings in the

Award regarding the DMAT, are contrary to the express terms thereof.

34. To substantiate this argument, Mr. Chinoy took me through

recitals (D) and (E) of the DMAT as well as the definition of the term

“New WSG Media Rights Agreements” as well as Clauses 2.1 and 2.2

thereof. Relying upon the aforesaid clauses, Mr. Chinoy submitted that

the DMAT makes it clear: (a) that BCCI, which now held the India Rights

for the period 2009-2012 (pursuant to termination of MSMs 1st BCCI-

MSM MRLA dated 21st January 2008), had requested WSGI to agree to a

Mutual Termination of its composite MRLA (the 1st BCCI-WSGI MRLA

dated 21st January 2008) which encapsulated the RoW rights for the

period 2008-2017 and the India Rights for the period 2013-2017; (b) on

this Mutual Termination, WSGI’s India Rights for the period 2013-2017

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would revert to BCCI; (c) this arrangement would enable BCCI to re-

sell/re-auction the India Rights for the period 2009-2017 as a single

package and receive a higher License Fee; (d) BCCI would license the

India Rights for the period 2009-2017 to WSGM (an affiliate of WSGI)

who could sub-license these rights to a broadcaster for a premium; and

(e) BCCI would restore to WSGI the RoW rights for the period 2009-2017

on the same terms as the 1st BCCI-WSGI MRLA dated 21st January 2008

(in so far as it related to the RoW Rights).

35. Mr. Chinoy submitted that the execution of the BCCI-WSGM

MRLA dated 15th March 2009 between BCCI and WSGM for the India

Rights for the period 2009-2017 at the increased fee of Rs.4791 crores

was in pursuance of the DMAT and was clearly only a means for BCCI to

recover the increased License Fee amount and to enable WSGM to

recover a premium from a broadcaster, through sub-licensing of the India

Rights. When one reads the terms of the DMAT, Mr. Chinoy submitted

that the Majority Award’s decision that the object of the DMAT was for

WSGI to assign its India Rights to its affiliate WSGM, is ex-facie perverse

and would mean that WSGI gave up its valuable India Rights for the

period 2013-2017 to BCCI, only in order to receive the same rights back

through its affiliate WSGM with payment of an additional License Fee of

Rs. 1160 crores. He submitted that this interpretation is wholly perverse

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also from the point of view that there is absolutely no explanation in the

Majority Award as to why WSGI would give up its valuable rights for the

period 2013-2017 only to get it back through its affiliate by paying an

additional amount of Rs.1160 crores. He, therefore, submitted that on

this ground also the impugned Award cannot stand and must be set aside.

36. Mr. Chinoy then submitted that the Majority Award is also

ex-facie arbitrary, capricious, perverse and contrary to the basic notions

of justice and morality, in as much as it resulted in BCCI receiving and

enjoying the benefit of an increase in the License Fee of Rs.1791 crores for

the India Rights for the period 2009-2017 and at the same time upholding

BCCI’s claim that Rs.425 crores payable to WSGM for relinquishing

and/or giving up its India Rights for the period 2009-2017 was fraudulent

and belonged to BCCI. Mr. Chinoy submitted that as a consequence, the

Award upholds BCCI’s rescission of the 2nd BCCI-WSGI MRLA dated 25th

March 2009 under which WSGI got the RoW rights for the period 2009-

2017. Mr. Chinoy submitted that this effectively means that BCCI whilst

receiving the aforesaid benefit of Rs. 1791 crores has deprived WSGI of all

the rights it had under the 1st BCCI-WSGI MRLA, and all the benefits that

come to it under the DMAT.

37. In this regard, Mr. Chinoy submitted that initially WSGI had

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the India Rights for the period 2013-2017 as well as the RoW Rights for

the period 2008-2017 under the 1st BCCI-WSGI MRLA. Admittedly,

there were no disputes/issues between BCCI and WSGI qua these

rights/MRLA’s in 2009. It was on BCCI’s request that WSGI agreed to a

Mutual Termination of the 1st BCCI-WSGI MRLA so as to enable BCCI to

re-sell/re-auction the India Rights for the period 2009-2017 as a package

for a higher License Fee only on the basis that it would be given

back/restored its RoW rights for the period 2009-2017 and would be

compensated for giving up its India Rights for the period 2013-2017 by

permitting its affiliate WSGM to sub-license the same and receive a

premium thereunder. By virtue of these arrangements, BCCI was able to

license the India Rights for the period 2009-2017 to MSM for Rs.4791

crores i.e. an increase of Rs. 1791 crores. However, whilst receiving and

retaining such an enormous benefit of Rs.1791 crores, BCCI has thereafter

purported to deprive WSGM of Rs.425 crores it had to receive as

compensation (termed as the Facilitation Fee) for the India Rights for the

period 2013-2017 and has also deprived WSGI of its RoW rights for the

period 2009-2017. An Award which upholds this action of BCCI as legal,

is ex-facie contrary to the basic notions of justice and morality, and

therefore, ought to be set aside.

38. Lastly, Mr. Chinoy submitted that the finding in the Majority

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Award that the fraud as alleged by BCCI is established beyond reasonable

doubt, and therefore can be a valid ground for rescinding the 2nd BCCI-

WSGI MRLA dated 25th March 2009, is vitiated by perversity and patent

illegality in as much as it is based on the Tribunal’s perverse/ impossible

view of the DMAT and by the Tribunal’s total failure to consider material

evidence/facts i.e. the MSM Press Note/statement dated 23rd April 2010.

Mr. Chinoy submitted that the Press Note issued by MSM and who

according to BCCI was not part of the alleged fraud, clearly states that the

entire India Rights transaction was done after negotiations and with

WSGM relinquishing its rights. Mr. Chinoy submitted that this would be

a very important aspect that ought to have been considered by the

Tribunal before giving any finding on fraud being established beyond a

reasonable doubt. Mr. Chinoy submitted that this Press Release/Note

again relates to the India Rights whereas the subject matter of the present

arbitration was the RoW rights. He brought to my attention the fact that

BCCI objected to WSGI’s reliance on the aforesaid Press Note as not being

proved during the cross examination of RW-4 but the same was not

accepted by the Tribunal. Mr. Chinoy submitted that the finding of fraud

rendered by the Tribunal because of the alleged diversion of Rs.425

crores is based on the Arbitrator's perverse interpretation and misreading

of the DMAT and their total failure to consider MSM’s Press Note. Mr.

Chinoy submitted that the Award totally fails to consider the Press Note

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issued by MSM and which in fact establishes that WSGM’s rights under

the BCCI-WSGM MRLA has not merely lapsed or come to an end

simplicitor on 25th March 2009 as contended by BCCI and accepted by

the Arbitrators in the Majority Award. It was only to facilitate MSM’s

insistence/condition for a direct contract/license for the India Rights

with BCCI (instead of a sub-license from WSGM), that WSGM

relinquished its India Rights / agreed to give up its India Rights in favour

of MSM by letting the BCCI-WSGM MRLA dated 15th March 2009 lapse.

This enabled MSM to enter into a direct contract / license with BCCI. In

consideration of this, MSM agreed to pay WSGM a Facilitation Fee which

was quantified at Rs. 425 crores. This Facilitation Fee was the premium

that MSM would have to otherwise pay to WSGM if it had taken a sub-

license from WSGM for the India Rights. Mr. Chinoy submitted that the

Award however only refers to the fact that WSGM’s rights came to an end

on 24th March 2009 and on that basis holds that there was a

fraud/diversion of Rs.425 crores. This finding is rendered without

considering the aforesaid circumstances set out by MSM in its Press Note

which establishes that WSGM relinquished its India Rights/let them

lapse so that on 25th March 2009 MSM could enter into a direct

contract/license with BCCI, and as a part of this arrangement, MSM

agreed to pay WSGM a premium as a Facilitation Fee.

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39. Mr. Chinoy submitted that the total perversity of the finding

of diversion/fraud as reflected in the Majority Award is that it results in

the absurd consequence that:

(i) WSGM simplicitor gave up/abandoned the valuable India

Rights for the period 2009-2017 (for which as recorded in

MSM’s Press Note there were “intense commercial

negotiations with other broadcasters also expressing

interest, making the situation extremely competitive”)

without seeking to recover any premium/consideration for

the same; and

(ii) WSGI gave up its valuable India Rights for the period 2013-

2017 for which it would have otherwise received a premium

of upto USD 60 million from MSM under the 2008 Option

Deed.

40. Mr. Chinoy submitted that the finding of fraud in the

Majority Award regarding the diversion of Rs.425 crores, completely

ignores the commercial purpose, object and terms of the DMAT, and is

therefore, vitiated by perversity and patent illegality in as much as it is

based on the Tribunal’s perverse/impossible view of the DMAT and by

the Tribunal’s total failure to consider material evidence/facts i.e. MSM’s

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Press Note. For all the aforesaid reasons, Mr. Chinoy submitted that the

Majority Award is unsustainable and must be set aside.

BCCI’s SUBMISSIONS:

41. On the other hand, Mr. Dada, the learned senior counsel

appearing on behalf of BCCI, submitted that from the averments in the

Petition as well as the arguments canvassed by Mr. Chinoy, it was clear

that WSGI’s challenge to the Majority Award is nothing else but to seek

(i) a review of the merits of the dispute; (ii) re-appreciation of the

evidence; and (iii) substitution of an alternate view in place of the view

taken by the Tribunal in the Majority Award.

42. Mr. Dada submitted that WSGI has extensively relied upon

the “minority/dissenting opinion” issued by a member of the Arbitral

Tribunal, presumably in a misguided attempt to present an alternate view

of the dispute. Similarly, WSGI has recanvassed arguments that were

advanced before the Arbitral Tribunal which were considered and

rejected in the Majority Award. Mr. Dada submitted that none of the

grounds canvassed by WSGI fall within the purview of Section 34 of the

Arbitration Act (as amended in 2015). Mr. Dada submitted that it is now

well settled that in any challenge to an Award, re-appreciation of evidence

is impermissible in Section 34 proceedings. Similarly, a mere

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contravention of the substantive law of India, by itself, is no longer a

ground available to set aside an Arbitral Award. Mr. Dada submitted that

even the construction of the terms of a contract is primarily for the

Arbitral Tribunal to decide, and the same cannot be interfered with by

this Court under Section 34, unless the Arbitral Tribunal construes the

contract in a manner that no fair-minded or reasonable person would. In

other words, Mr. Dada submitted that it is only when the Arbitrator’s view

is such that no other prudent person would have taken such a view, would

this Court interfere under Section 34 of the Arbitration Act. Mr. Dada

submitted that this Court under Section 34 cannot undertake an

independent assessment of the merits of the dispute. The Tribunal is the

ultimate master of the quantity and quality of evidence to be relied upon

whilst delivering the Arbitral Award. Even if the Award is based on little

evidence or on evidence which does not measure up in quality to a trained

legal mind, would not be held to be invalid. To put it in a nutshell, Mr.

Dada submitted that it is now well settled that the scope of judicial

scrutiny under Section 34 of the Arbitration Act (as amended in 2015) is

very limited. Re-appreciation of evidence or reinterpretation of the

contract is impermissible. No interference with the Award is warranted if

the view taken by the Tribunal is a plausible view.

43. Without prejudice to the aforesaid arguments, Mr. Dada

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submitted that WSGI has alleged that its actions in relinquishing its India

Rights for the period 2013-2017 (by executing the DMAT) and bundling

it with the India Rights for the period 2009-2012, enabled BCCI to an

increase in the License Fee to the tune of Rs.1791 crores. Mr. Dada

submitted that WSGI contends that this was a material fact, and the

Award is perverse as it does not consider this fact. Mr. Dada submitted

that this submission is factually incorrect. He submitted that the Tribunal

has considered and rejected the self-serving arguments of WSGI and

detailed observations and findings in this regard are contained in the

Majority Award, and more particularly, paragraphs 35 to 37 thereof. In

these circumstances, Mr. Dada submitted by no stretch of the

imagination, the Award can be termed as perverse.

44. Mr. Dada submitted that even otherwise, the allegations of

WSGI are false as it is apparent from a perusal of the DMAT that WSGI

agreed to give up its India Rights for the period 2013-2017 (acquired

under the 1st BCCI-WSGI MRLA dated 21st January 2008) so as to

facilitate the acquisition of the India Rights for the period 2009-2017 by

WSGM. Mr. Dada further submitted that the Arbitral Tribunal in its

Majority Award has also rightly held that from a perusal of the recitals of

the DMAT, it is clear that the Petitioner agreed to the termination of the

1st BCCI-WSGI MRLA to unbundle the India Rights for the period 2013-

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2017 in order to facilitate the acquisition of the India Rights for the period

from 2009-2017 by WSGM. Mr. Dada submitted that upon the execution

of the BCCI-WSGM MRLA, whereunder the India Rights for the period

2009-2017 were granted to WSGM, WSGI admittedly received its

consideration under the DMAT. At this stage, the DMAT was sublimated

into the BCCI-WSGM MRLA. However, since the BCCI-WSGM MRLA

lapsed on WSGM’s failure to comply with its obligations thereunder

[being its obligation (a) to make an upfront payment of INR 112.5 crores

on the signing of the MRLA; (b) to provide a bank guarantee of INR 335

crores within 7 days of the MRLA; and (c) to find a sub-licensing partner

within 72 hours of the signing of the MRLA], all rights under the BCCI-

WSGM MRLA reverted to BCCI. Mr. Dada pointed out that no

consequences are spelt out in the DMAT for what would happen if the

BCCI-WSGM MRLA executed pursuant to the DMAT were to

subsequently lapse. Mr. Dada submitted that any enhancement in the

License Fee payable to BCCI under the 2nd BCCI-MSM MRLA was not on

account of WSGI releasing any rights. Mr. Dada submitted that the

enhancement was inter alia on account of termination of the 1st BCCI-

MSM MRLA on 14th March 2009 and the increased popularity of the IPL

in the year 2009. Mr. Dada submitted that the value of such enhancement

would go to the rights holder i.e. BCCI, since after the said termination it

was open for BCCI to auction the said rights in the market. Mr. Dada

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submitted that WSGM had agreed to pay an additional sum of Rs. 1791

crores to BCCI, but never paid the same. Ultimately, MSM agreed to pay

this additional amount of Rs.1791 crores to BCCI. Therefore, the increase

in value was not relatable to any acts of WSGI. In this regard, it is also

pertinent to note that under the 2nd BCCI-MSM MRLA, MSM was granted

600 seconds of additional commercial advertising time per match which

was not available under the 1st BCCI WSGI MRLA and the 1st BCCI-MSM

MRLA. Mr. Dada submitted that the 2nd BCCI-MSM MRLA was

terminated by the parties and replaced by a new media rights agreement

executed between BCCI and MSM dated 28th June 2010 (for short the

“3rd BCCI-MSM MRLA”). This was an entirely new agreement, arrived

at after fresh negotiations. It was under the 3rd BCCI-MSM MRLA that

BCCI received the amount of Rs.4791 crores, post discovery of the fraud.

In fact, MSM also agreed to pay BCCI an additional amount of Rs.300

crores towards the India Rights for the period 2010-2017 under the 3rd

BCCI-MSM MRLA. Over and above this, MSM also agreed to pay an

amount of Rs.125 crores, if the same was recovered from the WSGM. Mr.

Dada submitted that the License Fee for the India Rights was the specific

subject matter of negotiations between BCCI and MSM. Pursuant to these

negotiations, MSM agreed to fresh payment terms, subject to BCCI

fulfilling certain additional requests put forth by MSM. Mr. Dada

submitted that, therefore, there was a proposal by BCCI, a counter-

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proposal by MSM and acceptance thereafter by BCCI. In support of this

argument, Mr. Dada relied upon the correspondence exchanged between

MSM and BCCI, namely, two letters both dated 2nd June 2010, one

addressed by MSM to BCCI and the other by BCCI to MSM respectively,

and a letter dated 24th June 2010 addressed by MSM to BCCI.

45. Mr. Dada submitted that the submission of WSGI that the

3rd BCCI-MSM MRLA was only an amendment to the 2nd BCCI-MSM

MRLA is totally misconceived and baseless. Mr. Dada submitted that

BCCI and MSM renegotiated the License Fee for the India Rights. Thus,

the enhanced fees were a direct result of the fresh negotiations and new

terms agreed upon with respect to the License Fee for the period 2010-

2017. Mr. Dada submitted that the 3rd BCCI-MSM MRLA also contains

an “Entire Agreement” clause and a “No Reliance Clause”. Mr. Dada

submitted that when one reads the 3rd BCCI-MSM MRLA, it is quite clear

that it superseded and replaced the earlier MRLA and the earlier

understanding. When one looks at it from this angle, post discovery of the

fraud, the enhanced India Rights Fees were thus received under the 3rd

BCCI-MSM MRLA, and not under the 2nd BCCI-MSM MRLA. Mr. Dada

submitted that it is not BCCI’s case that the 3rd BCCI-MSM MRLA formed

a part of the fraudulent composite transaction. The 3rd BCCI-MSM MRLA

was successfully performed and has now determined by the efflux of time.

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The monies received by BCCI thereunder, thus, cannot be termed as a

benefit from the fraud. Mr. Dada, therefore, submitted that the view

taken by the Tribunal in the Majority Award is correct or is, at the very

least, a plausible view, and therefore, there is no merit in this ground of

challenge canvassed by WSGI.

46. Whether the alleged benefit/advantage received by BCCI is a

material piece of evidence, the non-consideration of which would render

the Majority Award perverse, Mr. Dada submitted that the Tribunal has

in fact considered WSGI’s argument regarding the alleged benefit/

advantage received by BCCI at paragraph 35 of the Majority Award. Mr.

Dada submitted that in any event, as stated earlier, there was no benefit

or advantage that BCCI had received. As explained earlier, the enhanced

fee that BCCI received was not relatable to any acts of the WSGI. Further,

WSGM not only breached the BCCI-WSGM MRLA but also committed a

fraud on MSM and BCCI by executing the Facilitation Deed. He,

therefore, submitted that it was totally incorrect on the part of WSGI to

contend that the alleged benefit/advantage received by BCCI was a

material piece of evidence, non-consideration of which rendered the

Majority Award perverse. Mr. Dada, therefore, submitted that there was

no merit in the argument of WSGI that the Arbitral Tribunal failed to

advert to or consider that BCCI was able to receive from MSM an

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increased License Fee of Rs.4791 crores for the India Rights for the period

2009-2017 because WSGI had relinquished its India Rights for the period

2013-2017 to BCCI.

47. Mr. Dada then submitted that even the argument of Mr.

Chinoy that the Majority Award is perverse and contravenes the

principles of Sections 64 and 65 of the Indian Contract Act, 1872, and is

therefore, contrary to the fundamental policy of Indian Law, is without

any merit. Mr. Dada submitted that there is no prayer and/or pleading in

the Statement of Claim filed before the Tribunal for “restoration” of any

alleged benefit under Sections 64 and 65 of the Indian Contract Act, 1872.

Mr. Dada submitted that at no point in time, did WSGI quantify its

purported entitlement under Section 65 and/or demand a refund of a

specified amount towards the benefit (purportedly received by the BCCI

from WSGI) under the 2nd BCCI-WSGI MRLA. In the absence of the

same, the Tribunal could not have granted any relief under Sections 64 &

65 of the Contract Act to WSGI. Mr. Dada submitted that under Sections

64 and 65: (a) the alleged benefit is required to have been received by

BCCI under the 2nd BCCI-WSGI MRLA itself & which admittedly is not

the case; and (b) what is sought to be restored must be an advance

payment or benefit already conferred under the 2nd BCCI-WSGI MRLA.

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48. Mr. Dada then submitted that in any event, Sections 64 and

65 of the Contract Act will not aid WSGI since admittedly it had been

found to have committed the fraud. Mr. Dada submitted that WSGI was

found to have been complicit in the fraudulent transaction. As such, there

was no question of WSGI being returned any rights it had lost under the

DMAT. The whole reason for the rescission was that WSGI was involved

in playing a fraud on BCCI. If any rights of WSGI are restored, it would

defeat the entire purpose and effect of the rescission, was the submission.

Mr. Dada submitted that this argument has been dealt with by the

Tribunal in paragraph 66 of the Majority Award wherein the Tribunal

holds that no relief is claimed for restoration of any advantage received

by BCCI as mentioned in Section 65 of the Contract Act, and there is no

pleading or evidence led to that effect. The Tribunal has further recorded

that there was no oral argument on this issue, as well. The Tribunal,

therefore, holds that this contention cannot be raised at this stage. Mr.

Dada pointed out that the Tribunal further goes on to hold that nothing

is stated throughout the proceeding as to the nature of the advantage

received by BCCI. Mr. Dada, therefore, submitted that there is no merit

in the arguments canvassed by WSGI that the Majority Award is perverse

and contravenes the principles of Sections 64 and 65 of the Contract Act

and which is contrary to the fundamental policy of the Indian Law.

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49. Mr. Dada thereafter submitted that WSGI is completely

incorrect when it contends that the Arbitrator’s interpretation of the

DMAT and its stated purpose and object is contrary to the express

terms/plain language thereof. In this regard, Mr. Dada submitted that

under the 1st BCCI-WSGI MRLA dated 21st January 2008, WSGI had the

RoW rights for the period 2008-2017 along with the India Rights for the

period 2013-2017. Even after the execution of the DMAT and the 2nd

BCCI-WSGI MRLA, WSGI continued to have the RoW Rights for the

period 2009-2017. What WSGI gave up was the India Rights for the

period 2013-2017. Clearly, therefore, looking at the transaction as a

whole, the RoW Rights were not WSGI’s consideration for anything at all

because WSGI always had those rights. The consideration was clearly the

diversion of the India Rights of WSGI to WSGM. Clearly, therefore,

retention of the RoW Rights was not the WSGI’s consideration for the

DMAT. The consideration for the DMAT was the diversion of WSGI’s

India Rights to WSGM. Mr. Dada submitted that this is exactly what the

Tribunal has held at Paragraphs 35 to 37 of the Award. Mr. Dada

submitted that this consideration (diversion of the India Rights to

WSGM) was received by WSGI when the BCCI-WSGM MRLA was

executed on 15th March 2009. BCCI’s alleged obligations under the

DMAT were thus fulfilled on the execution of the BCCI-WSGM MRLA.

To put it in a nutshell, Mr. Dada submitted that:-

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(a) The WSGI’s consideration for the DMAT was the diversion
of the India Rights for the period 2009-2017 to its affiliate
WSGM;

(b) WSGI did not surrender the India Rights for the period
2013-2017 to BCCI absolutely. The DMAT itself
contemplated reversion of the India Rights for the period
2013-2017 to the BCCI for the limited purpose of enabling
the BCCI to sign the BCCI-WSGM-MRLA, and it is for this
reason that WSGM was party to the DMAT;

(c) This consideration was received by the WSGI when the

BCCI-WSGM MRLA was executed on 15th March 2009 and
MSM succeeded in its arbitration against WSGM, and the
amounts paid under the Facilitation Deed have been
directed to be returned to MSM and which has absolutely
nothing to do with BCCI.

50. Mr. Dada, therefore, submitted that BCCI cannot be held

liable for anything when the WSGI already received its consideration

under the DMAT. Mr. Dada submitted that the DMAT having been

performed, had come to an end. Nothing remained for BCCI to perform

or rescind. Mr. Dada submitted that it was in this light that the Tribunal

held that the DMAT along with all the other Agreements had come to an

end by the efflux of time, and hence, there was no need for any

termination or rescission of the DMAT. He, therefore, submitted that the

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only agreement left to be rescinded and which formed part of the

composite fraud was the 2nd BCCI-WSGI MRLA and that is what was

exactly done by BCCI vide its termination notice dated 28th June 2010.

He therefore submitted that the findings given by the Arbitral Tribunal

with relation to the DMAT were fully justified. In any event, Mr. Dada

submitted that the view taken by the Tribunal in the Majority Award on

the interpretation of the DMAT is certainly a plausible view, and hence,

this Court ought not interfere with those findings under Section 34 of the

Arbitration Act.

51. Mr. Dada then submitted that WSGI contends that BCCI has

not been able to establish fraud beyond reasonable doubt because the

Tribunal allegedly failed to consider the material findings/facts i.e.

MSM’s Press Note. In this regard, Mr. Dada submitted that the contents

of the Press Note were never proved in the proceedings before the Arbitral

Tribunal. As such, WSGI cannot rely on the Press Note at all. The said

Press Note was denied by BCCI vide its statement of admissions and

denials dated 5th May 2017 filed in the arbitration proceedings. Thus,

WSGI is not entitled to rely upon the Press Note since the contents and

the truth thereof were never proved by WSGI in the arbitral proceedings.

Mr. Dada submitted that despite WSGI relying heavily on MSM’s Press

Note dated 23rd April 2010, it has not led evidence of any witnesses to

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prove the correctness of the contents thereof. Further, WSGI has also

repeatedly refused to produce the Award passed by the ICC Singapore

Tribunal under which the said Tribunal held that MSM was justified in

rescinding the Facilitation Deed executed between the MSM and WSGM.

Mr. Dada submitted that therefore, the learned Arbitral Tribunal has

rightly not attached any evidentiary value to MSM’s Press Note and has

not referred to or relied upon the same in its Majority Award. For all the

aforesaid reasons, Mr. Dada submitted that there was no merit in the

above Petition and the same ought to be dismissed with costs.

Reasoning and Findings of the Court:

52. I have heard the learned counsel for the parties and perused

the papers and proceedings in the above Petition. I have also gone

through in detail the Majority Award dated 13th July 2020. Before I deal

with the arguments canvassed by the respective parties, it would be

apposite to recapitulate the facts in brief once again. In the year 2007,

BCCI conceptualized the Indian Premier League [IPL]. To license the

Media Rights for the IPL, BCCI floated a tender. WSGI was the successful

tenderer and was accordingly awarded the Global Media Rights for the

IPL for the period 2008-2017. Since WSGI was only a trader in Media

Rights, it entered into pre-bid negotiations with MSM which had a

broadcasting network in India. During these negotiations, MSM, for its

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own commercial reasons, instead of entering into a sub-licensing

Agreement with WSGI, desired to enter into a direct Media Rights

License Agreement [MRLA] with BCCI. Further, MSM only wanted the

India Rights for the period 2008-2012. To facilitate this entire process, in

the year 2008, the following Agreements were entered into between

BCCI, MSM and WSGI respectively:

(a) The 1st BCCI-MSM MRLA dated 21st January

2008. This MRLA was in relation to the India Rights
for the period of 2008-2012 and for which MSM had
to directly pay BCCI an amount totalling to USD
275.40 Million;

(b) The 1st BCCI-WSGI MRLA dated 21st January

2008. This MRLA was executed between BCCI and
WSGI for (i) The India Rights for the period 2013-
2017 for a sum of USD 550 Million and (ii) The RoW
Rights (i.e. excluding the India Rights) for the period
2008-2017 for USD 92 Million; and

(c) The Option Deed dated 21st January 2008. This

Agreement/Deed was executed between MSM and
WSGI because MSM had only acquired the India
Rights for the period 2008-2012. In the event MSM
wanted to acquire the India Rights for the period
2013-2017 from WSGI, they had the option to do so
by making a payment of a sum of upto USD 60 Million
to WSGI. This payment of USD 60 Million (payable to

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WSGI) was in addition to the License Fee of USD 550

Million payable to BCCI by WSGI under the 1st BCCI-
WSGI MRLA (in so far as it related to the India
rights).

53. All these Agreements (and which are referred to as the

MRLAs of 2008) are unquestioned. In other words, neither BCCI nor

WSGI has ever called into question the validity of these Agreements.

From these Agreements it is clear that for the India Rights for the period

2008-2017, BCCI would receive an aggregate amount USD 824.50

Million [ i.e. USD 274.50 Million from MSM for the period 2008-2012 +

USD 550 Million from WSGI for the period 2013-2017]. This was

equivalent to approximately Rs.3300 crores. Further, if MSM wanted the

India Rights from WSGI for period 2013-2017, MSM could opt to acquire

these rights on payment of USD 60 Million to WSGI as set out in the

Option Deed. This was in addition to USD 550 Million that MSM would

have to pay to BCCI for the India Rights for the period 2013-2017.

54. Thereafter come the Agreements executed in the year 2009.

The reason why fresh Agreements had to be executed in the year 2009

was because BCCI, on 14th March 2009, terminated its Media Rights

Agreement with MSM (being the 1st BCCI-MSM MRLA dated 21st January

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2008) for the period 2008-2012. Hence, the India Rights of the IPL for

the period 2009-2012 reverted to BCCI. Since the first season of the IPL

in 2008 was a resounding success (especially in the Indian Sub-

Continent), BCCI wanted to re-auction/re-sell the India Rights for the

IPL for the entire period of 2009-2017 for a higher License Fee. To

facilitate this process, the following Agreements were entered into in the

year 2009:

(a) The Deed of Mutually Agreed Termination

(DMAT) dated 15th March 2009. By this
Agreement/Deed, the Composite Media Rights
License Agreement entered into by BCCI with WSGI
for (i) the India Rights for the period 2013-2017 and
(ii) the RoW Rights for the period 2008-2017 [the 1st
BCCI-WSGI MRLA dated 21st January 2008] was
terminated so that the India Rights for the period
2013-2017 reverted back to BCCI. The DMAT inter alia
provided that (i) a new Media Rights Agreement for
the period 2009-2017 in relation to India Rights would
be entered into by BCCI with WSGM; and (ii) for the
same period, a new and separate Media Rights
Agreement would be entered into with WSGI for the
RoW Rights. In other words, the India rights for the
period 2009-2017 would be licensed to WSGM (an
affiliate of WSGI) and the RoW Rights for the same
period (i.e. 2009-2017) would be licensed to WSGI

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(and which it already had under the 1st BCCI-WSGI

MRLA dated 21st January 2008);

(b) The BCCI-WSGM MRLA dated 15th March

2009. This MRLA was executed in furtherance of
what was agreed to under the DMAT. This MRLA
licensed the Media Rights of the IPL for the period
2009-2017 to WSGM for an increased License Fee of
Rs. 4791 crores. In other words, by entering into this
MRLA with WSGM, BCCI got an additional sum of
Rs.1791 crores for the India Rights for the period
2009-2017. This is because under the MRLAs of 2008,
for the same period, BCCI would have got only
Rs.3,000 crores. Since WSGM was not a broadcaster
but only a trader in Media Rights, one of the terms of
this MRLA required WSGM to enter into a sub-license
Agreement with a broadcaster within 72 hours of
entering into this MRLA. This requirement was
thereafter extended upto and including 24th March
2009 in view of the pending litigation in this Court and
more particularly set out earlier in this judgement;

(c) The 2nd BCCI-MSM MRLA dated 25th March

2009. By this MRLA, MSM procured the India Rights
for the period 2009-2017 directly from BCCI for a
consideration of Rs.4791 crores. According to WSGI,
MSM was able to procure these India Rights directly
from BCCI only because (i) under the DMAT, WSGI
gave up its India Rights for the period 2013-2017; and

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(ii) WSGM let its MRLA with BCCI [referred to in (b)

above] lapse on 25th March 2009. According to WSGI,
WSGM agreed to let its MRLA [the BCCI-WSGM
MRLA] lapse so that MSM, as per their
request/requirement, could enter into a direct MRLA
with BCCI for the period 2009-2017 (for the India
Rights). To facilitate this, MSM agreed to pay WSGM a
sum of Rs. 425 crores;

(d) The Deed for Provision of Facilitation Services

(Facilitation Deed) dated 25th March 2009. By
this Deed, MSM agreed to pay a Facilitation Fee of
Rs.425 crores to WSGM in the manner more
particularly set out therein. This Fee was for assisting
MSM in finalizing the 2nd BCCI-MSM MRLA dated 25th
March 2009 [referred to in (c) above]; and

(e) The 2nd BCCI-WSGI MRLA dated 25th March

2009. This MRLA was executed because as
contemplated under the DMAT, the RoW rights of
WSGI under the 1st BCCI-WSGI MRLA [and which
stood terminated pursuant to the DMAT] were to be
restored back to WSGI.

55. BCCI alleges that all the aforesaid Agreements entered into

in the year 2009 (the MRLAs of 2009), including the DMAT, form part of

a fraudulent composite transaction which gave them the right to

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terminate the 2nd BCCI-WSGI MRLA dated 25th March 2009. To put it in

a nutshell, the fraud alleged by BCCI is that the Facilitation Fee payable

by MSM to WSGM under the Facilitation Deed were monies that were

actually due to BCCI. According to BCCI, all the aforesaid Agreements

were entered into for the purposes of diverting to WSGM the sum of

Rs.425 crores which actually belonged to BCCI. Since WSGI and WSGM

are sister concerns and the fact that WSGI and WSGM were both parties

to the DMAT, WSGI was complicit in the aforesaid fraud which gave BCCI

the right to rescind the 2nd BCCI-WSGI MRLA dated 25th March 2009

even though the same pertained only to the RoW Rights (as defined in the

DMAT) and not the India Rights. It was this rescission that was

challenged before the Arbitral Tribunal, and which has been upheld in the

Majority Award.

56. The first grievance made by Mr. Chinoy is that the Majority

Award totally fails to advert to or consider that by virtue of the

Agreements entered into in 2009, and which BCCI now alleges are a part

of an “all pervasive fraud”, BCCI was able to receive an increased License

Fee of Rs. 4791 crores for the India Rights for the period 2009-2017 in

contrast to the amount of Rs.3,000 crores that BCCI would have received

under the MRLAs of 2008 for the same period. In other words, by virtue

of the Agreements entered into in 2009, BCCI benefited to the tune of

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approximately Rs.1791 crores. The Tribunal has failed to consider this

enormous benefit that inured to BCCI, and the fact that BCCI retained the

same. This according to Mr. Chinoy is a fundamental error on the part of

the Tribunal as it completely ignores and fails to take into consideration

this vital fact which goes to the root of the matter.

57. I have carefully gone through the Majority Award. It can’t

be disputed that by virtue of the Agreements entered into 2009, BCCI was

able to re-sell/re-auction the India Rights for the period 2009-2017 for a

sum totalling to Rs.4791 crores. It is also not in dispute that under the

unquestioned 2008 MRLAs, for the same period, BCCI would have

received a sum of Rs.3000 crores for the India Rights. This means that

by virtue of the Agreements entered into in 2009 (including the DMAT),

BCCI got a benefit of Rs.1791 crores. Despite this, I find that the Majority

Award nowhere mentions or considers this enormous benefit that was

received by BCCI under the Agreements entered into in the year 2009. I

must mention that this was specifically put in issue before the Tribunal

in the post hearing submissions submitted by WSGI. The relevant portion

of these submissions read thus:-

“99. Admittedly, the Respondent has taken the benefit of the

Termination Deed without which it could not have
consolidated and sold the Indian Sub-Continent Rights for

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an increased rights fee of Rs. 1,791 crores, initially to

WSGM and ultimately to MSM under the direct licence
under the 2nd BCCI MSM MRLA. Similarly, the Respondent
fought tooth and nail to resist the proceedings initiated by
MSM against the Respondent following the termination of
the 1st BCCI MSM MRLA by relying upon the BCCI WSGM
MRLA. Mr Lalit Modi filed an affidavit on behalf of the
Respondent (the LKM Affidavit), before the Bombay High
Court stating that the BCCI WSGM MRLA had been entered
into between the parties at 3 am on 15 March 2009 [Page
1-4; CCD (Vol VII)] [Page 979 (Typed Copy); CTC]. Based on
the various submissions by the Respondent’s counsel at the
time before the Hon’ble Bombay High Court on, inter alia,
the validity of the BCCI WSGM MRLA, the Hon’ble Bombay
High Court disallowed interim relief to MSM through the
Bombay High Court Order [Page 273-316; CCD (Vol 1)]”

(emphasis supplied)

58. In fact, it was specifically argued before the Tribunal that if

the fraud was an “all pervasive fraud” and which attached itself even to

the DMAT, then, all Agreements, including the DMAT had to be

rescinded. BCCI could not have merely rescinded the 2nd BCCI-WSGI

MRLA and that too for an alleged fraud which did not in any way attach

itself to the RoW rights but only to the India Rights. To counter the

argument of Mr. Chinoy on this aspect, Mr. Dada submitted that the

aforesaid benefit which allegedly accrued to BCCI has in fact been

considered in the Majority Award and more particularly paragraphs 35 to

37 thereof. Paragraphs 35 to 37 read thus:-

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“35. The next question which arises is: If the final result was to
grant RoW rights for the years 2009-2017 to WSGI why
was the first BCCI-WSGI-MRLA which did precisely this,
terminated? The Claimant’s submission is that this was
done in order to unbundle the India Rights for 2013 to
2017 so as to make its subsequent aggregation with India
Rights for 2009-2012 possible, which would get for the
Respondent more money. This does not appear to be
convincing. In the first place, apart from this submission,
there is no oral evidence before us to support such a
reason. If we look at the documentary evidence, Clause 2
of the Deed of Mutually Agreed Termination of 1st WSGI
Media Rights Agreement provides as follows:

2.1 The parties acknowledge and agree that the BCCI

has terminated BCCI- Sony agreement and that
given the proximity of the start of the 2009 IPL
season, and its obligations to its stakeholders and
to protect the interests of such stakeholders, the
BCCI wishes to execute new media rights
agreements for the period 2009-2017 on an
expedited basis.

2.2 In order to facilitate this process, and for good and

valuable consideration, the parties have mutually
agreed to terminate the WSG media rights
agreement and to enter into the new WSG media
rights agreements.

2.3 The parties shall have no liability to each other as

a result of the mutually agreed termination of the
WSG media rights agreement.

36. There is no reference to unbundling of India rights by WSGI

in order to enhance the value of India rights by achieving a
package for the India rights for 2009-2017 which would be
attractive to the market. On the contrary the Deed of
Mutually Agreed Termination records that the parties
agreed to terminate the first BCCI-WSGI-MRLA for good
and valuable consideration. It is not clear what this good

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and valuable consideration was. Looking at the

Agreements entered into thereafter, was this good and
valuable consideration the agreement of the Respondent
with WSGM?

37. This is supported by Clause 29 of the first BCCI-WSGI-

MRLA which requires that if Sony agreement (MSM) is
terminated for whatever reason prior to the end of the
rights period, the Respondent will be required to meet
WSGI as soon as practicable with a view to agree in good
faith by which of the parties and on what basis the rights
pursuant to such termination can be exploited within the
Indian subcontinent. Thus the 3 parties namely Mr. Modi,
WSGI and WSGM have acted in consultation and collusion
with each other in formulating the agreements
subsequent to the termination of the first BCCI-MSM-
MRLA.”

59. From the aforesaid paragraphs of the Majority Award, I do

not find anything therein that would lead me to believe that the Tribunal

in the Majority Award has considered the benefit of Rs.1791 crores that

inured to BCCI and the effect it would have on BCCI’s rescission of the

2nd BCCI-WSGI MRLA dated 25th March 2009. In fact, there is absolutely

no mention of the figures of “Rs.4791 crores” or “Rs.1791 crores” in the

Majority Award. It is completely silent as far as these figures are

concerned. There is absolutely no mention in the aforesaid paragraphs

regarding the fact that by the Agreements entered into in the year 2009,

and under which WSGI gave up its India Rights for the period 2013-2017

to BCCI in order to enable it to aggregate the same with the India Rights

for the period 2009-2012, an enormous benefit of Rs.1791 crores inured

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to BCCI. In fact, all that the Majority Tribunal has done is that it sets out

the argument of WSGI in part and thereafter gives the finding that the

same “does not appear to be convincing”. From what is stated in the said

paragraphs, it would effectively mean that WSGI gave up its valuable

India Rights for the period 2013-2017 to get absolutely nothing in return,

when in contrast, under unquestioned 2008 MRLAs (Option Deed) if

WSGI were to give up its India Rights for the period 2013-2017 to MSM,

they would be paid up to USD 60 Million. This interpretation of the

Tribunal in the Majority Award is unsustainable. From the DMAT (dated

15th March 2009), it is ex-facie clear that WSGI agreed to the termination

of the 1st BCCI-WSGI MRLA so that BCCI would be able to re-license the

India Rights for the period 2009-2017 for a much higher price and which

would be licensed to WSGM (an affiliate of WSGI). Further, the RoW

Rights would be granted back to WSGI for the period 2009-2017. It was

to facilitate BCCI receiving a higher License Fee that WSGI agreed to the

termination of the 1st BCCI-WSGI MRLA so that BCCI could re-license

the India Rights for the entire period (2009-2017) as a single package.

Any other interpretation just does not make any sense. The findings in

Majority Award would effectively mean that WSGI gave up its valuable

India Rights to BCCI for the period 2013-2017 just to get it back through

its affiliate – WSGM and that too by agreeing to pay an additional amount

of Rs.1791 crores. When one reads these Agreements together with the

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findings and reasons given in the Majority Award, I find that the issue

regarding BCCI receiving a benefit of Rs.1791 crores by virtue of the

aforesaid transaction and the effect it would have on BCCI’s right to

terminate/rescind the 2nd BCCI-WSGI MRLA dated 25th March 2009, is

completely missed in the Majority Award. In my view, before the Tribunal

(in the Majority Award) upheld BCCI’s rescission on the ground of an “all

pervasive fraud”, it ought to have considered whether the said rescission

could be held to be valid when BCCI had received a benefit of Rs. 1791

crores under the very Agreements which it now alleges form the subject

matter of a fraudulent composite transaction, and which in turn, gave

BCCI the right to terminate the 2nd BCCI-WSGI MRLA. I say this because

it is trite law that a party cannot be permitted to approbate and reprobate

at the same time. A party cannot be permitted to blow hot and cold, fast

and loose or approbate and reprobate. When one party knowingly

accepts the benefits of a contract, it is estopped by denying the validity

and binding effect of that contract on him. Once a party takes advantage

of any instrument, he must accept all that is mentioned in the said

document. This has been so held by the Hon’ble Supreme Court in the

case of Bhagat Sharan v/s Purushottam and Ors [(2020) 6 SCC

387], the relevant portion of which reads thus:-

“26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein
filed suit for eviction of an occupant in which he claimed that the
property had been bequeathed to him by Hari Ram. According to the

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defendants, the plaintiff having accepted the will of Hariram and having
taken benefit of the same, cannot turn around and urge that the will is
not valid and that the entire property is a joint family property. The
plaintiff and Defendants 1 to 3 by accepting the bequest under the will
elected to accept the will. It is trite law that a party cannot be permitted
to approbate and reprobate at the same time. This principle is based on
the principle of doctrine of election. In respect of wills, this doctrine has
been held to mean that a person who takes benefit of a portion of the
will cannot challenge the remaining portion of the will. In Rajasthan State
Industrial Development & Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. [Rajasthan State Industrial Development &
Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5
SCC 470 : (2013) 3 SCC (Civ) 153 : AIR 2013 SC 1241] , this Court made an
observation that a party cannot be permitted to “blow hot and cold”,
“fast and loose” or “approbate and reprobate”. Where one party
knowingly accepts the benefits of a contract or conveyance or an order,
it is estopped to deny the validity or binding effect on him of such
contract or conveyance or order.

27. The doctrine of election is a facet of law of estoppel. A party cannot

blow hot and blow cold at the same time. Any party which takes
advantage of any instrument must accept all that is mentioned in the said
document. It would be apposite to refer to the treatise Equity—A Course
of Lectures by F.W. Maitland, Cambridge University, 1947, wherein the
learned author succinctly described principle of election in the following
terms:
“The doctrine of election may be thus stated : that he who
accepts a benefit under a deed or will or other instrument must
adopt the whole contents of that instrument, must conform to all
its provisions and renounce all rights that are inconsistent with
it….”
This view has been accepted to be the correct view in Karam Kapahi v. Lal
Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public
Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] . The plaintiff
having elected to accept the will of Hari Ram, by filing a suit for eviction
of the tenant by claiming that the property had been bequeathed to him
by Hari Ram, cannot now turn around and say that the averments made
by Hari Ram that the property was his personal property, is incorrect.”

(emphasis supplied)

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60. I am mindful of the fact that a challenge to an Arbitral

Award under Section 34 of the Arbitration Act is not equivalent to

an Appeal. The grounds on which an Arbitral Award can be

challenged are circumscribed by section 34 and the judicial

precedents interpreting the said provision. One of the grounds to

challenge a domestic Arbitral Award, even after the amendment of

the Act in 2015, is that it suffers from a patent illegality. The

Supreme Court has clearly held that a decision of the Tribunal which

is perverse, while no longer being a ground of challenge under the

“public policy of India”, would certainly amount to a patent illegality

appearing on the face of the Award. The Supreme Court has inter

alia held that a finding in the Award based on no evidence or an

Award which ignores vital evidence in arriving at its decision, would

be perverse and liable to be set aside on the ground of patent

illegality. This has so been held by the Supreme Court in the case of

Ssangyong Engg. & Construction Co. Ltd. v. NHAI, [(2019) 15

SCC 131]. The relevant portion of this decision reads thus:

“36. Thus, it is clear that public policy of India is now constricted to

mean firstly, that a domestic award is contrary to the fundamental policy
of Indian law, as understood in paras 18 and 27 of Associate
Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ)
204] , or secondly, that such award is against basic notions of justice or
morality as understood in paras 36 to 39 of Associate Builders [Associate

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Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] . Explanation 2

to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was
added by the Amendment Act only so that Western
Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 :
(2014) 5 SCC (Civ) 12] , as understood in Associate Builders [Associate
Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , and paras 28
and 29 in particular, is now done away with.

37. Insofar as domestic awards made in India are concerned, an

additional ground is now available under sub-section (2-A), added by the
Amendment Act, 2015, to Section 34. Here, there must be patent
illegality appearing on the face of the award, which refers to such
illegality as goes to the root of the matter but which does not amount
to mere erroneous application of the law. In short, what is not subsumed
within “the fundamental policy of Indian law”, namely, the
contravention of a statute not linked to public policy or public interest,
cannot be brought in by the backdoor when it comes to setting aside an
award on the ground of patent illegality.

38. Secondly, it is also made clear that reappreciation of evidence, which

is what an appellate court is permitted to do, cannot be permitted under
the ground of patent illegality appearing on the face of the award.

39. To elucidate, para 42.1 of Associate Builders [Associate

Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , namely, a
mere contravention of the substantive law of India, by itself, is no longer
a ground available to set aside an arbitral award. Para 42.2 of Associate
Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ)
204] , however, would remain, for if an arbitrator gives no reasons for
an award and contravenes Section 31(3) of the 1996 Act, that would
certainly amount to a patent illegality on the face of the award.

40. The change made in Section 28(3) by the Amendment Act really
follows what is stated in paras 42.3 to 45 in Associate Builders [Associate
Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , namely, that
the construction of the terms of a contract is primarily for an arbitrator
to decide, unless the arbitrator construes the contract in a manner that
no fair-minded or reasonable person would; in short, that the
arbitrator's view is not even a possible view to take. Also, if the arbitrator
wanders outside the contract and deals with matters not allotted to him,
he commits an error of jurisdiction. This ground of challenge will now
fall within the new ground added under Section 34(2-A).

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41. What is important to note is that a decision which is perverse, as

understood in paras 31 and 32 of Associate Builders [Associate
Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , while no
longer being a ground for challenge under “public policy of India”, would
certainly amount to a patent illegality appearing on the face of the
award. Thus, a finding based on no evidence at all or an award which
ignores vital evidence in arriving at its decision would be perverse and
liable to be set aside on the ground of patent illegality. Additionally, a
finding based on documents taken behind the back of the parties by the
arbitrator would also qualify as a decision based on no evidence
inasmuch as such decision is not based on evidence led by the parties,
and therefore, would also have to be characterised as perverse.
*******************
76. However, when it comes to the public policy of India, argument
based upon “most basic notions of justice”, it is clear that this ground
can be attracted only in very exceptional circumstances when the
conscience of the Court is shocked by infraction of fundamental notions
or principles of justice. It can be seen that the formula that was applied
by the agreement continued to be applied till February 2013 — in short,
it is not correct to say that the formula under the agreement could not
be applied in view of the Ministry's change in the base indices from
1993-1994 to 2004-2005. Further, in order to apply a linking factor, a
Circular, unilaterally issued by one party, cannot possibly bind the other
party to the agreement without that other party's consent. Indeed, the
Circular itself expressly stipulates that it cannot apply unless the
contractors furnish an undertaking/affidavit that the price adjustment
under the Circular is acceptable to them. We have seen how the
appellant gave such undertaking only conditionally and without
prejudice to its argument that the Circular does not and cannot apply.
This being the case, it is clear that the majority award has created a new
contract for the parties by applying the said unilateral Circular and by
substituting a workable formula under the agreement by another
formula dehors the agreement. This being the case, a fundamental
principle of justice has been breached, namely, that a unilateral addition
or alteration of a contract can never be foisted upon an unwilling party,
nor can a party to the agreement be liable to perform a bargain not
entered into with the other party. Clearly, such a course of conduct
would be contrary to fundamental principles of justice as followed in
this country, and shocks the conscience of this Court. However, we
repeat that this ground is available only in very exceptional
circumstances, such as the fact situation in the present case. Under no
circumstance can any court interfere with an arbitral award on the

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ground that justice has not been done in the opinion of the Court. That
would be an entry into the merits of the dispute which, as we have seen,
is contrary to the ethos of Section 34 of the 1996 Act, as has been noted
earlier in this judgment.”
(emphasis supplied)

61. The fact that the Tribunal in the Majority Award has

completely failed to consider the issue regarding BCCI receiving a

benefit of Rs.1791 crores by virtue of the Agreements entered into in 2009

(including the DMAT), and the effect it would have on BCCI’s right to

terminate/rescind the 2nd BCCI-WSGI MRLA dated 25th March 2009,

would render the Majority Award susceptible to challenge on the ground

of patent illegality. I say this because this is an issue that goes to the root

of the matter on whether BCCI, having retained the benefit of Rs.1791

crores under the Agreements of 2009, could rescind the 2nd BCCI-WSGI

MRLA (dated 25th March 2009) on the ground that all the Agreements

entered into in 2009 (including the DMAT), and under which BCCI

received the aforesaid benefit, were a part of a fraudulent composite

transaction. Failing to consider this fundamental issue which goes to the

root of the matter, renders the Majority Award susceptible to challenge

as it clearly suffers from a patent illegality and is therefore liable to be set

aside on this ground alone.

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62. I must also mention that the Majority Award completely

fails to consider MSM’s Press Note dated 23rd April 2010. Mr. Dada

submitted that MSM’s Press Note has not been referred to in the

Majority Award because the same was objected to by BCCI and was

not proved by WSGI during the arbitration proceedings. I find this

submission to be factually incorrect. In the Minority Award, at

paragraph 62 thereof, the Dissenting Arbitrator specifically refers to

the Press Note. In the Minority Award, the Dissenting Arbitrator

specifically records that BCCI objected to the Press Note issued by

MSM as not being proved during the cross examination of RW-4.

However, this was not accepted by the Tribunal. The relevant

portion of the Minority Award reads thus:

“62. MSM on 21 April 2010 issued a press statement on the IPL

Broadcast rights in which it narrated the circumstances in which
the 1st BCCI MSM MRLA was terminated and the 2nd BCCI MSM
MRLA was executed including the payment of facilitation fees of
Rs.4,250,000,000/- to WSGM. In the Press Statement, MSM
referred to the BCCI WSGM Agreement dated 15 March 2009
under which WSGM was awarded the India Sub-continent Rights,
which formed the basis for MSM entering into extensive
discussions with the Respondent. In the Press Statement, MSM
does not refer to any agreement between the Respondent and
WSGM on 23 March 2009 or that it had been in any manner been
defrauded. Also, in the Press Statement, MSM defended the
entire transaction and explained the events, including the basis
for calculating the amount of Rs.425 Crores agreed to be paid to
WSGM (Paragraph 7):

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"5. Intense commercial negotiations ensued with other

broadcasters also expressing interest making the situation
extremely competitive. After protracted negotiations
between MSM, WSG Mauritius and BCCI, MSM entered
into a renegotiated agreement on the IPL broadcasting
rights with the BCCI at the same consideration offered by
WSG Mauritius and for the same duration (9 years), in lieu
of WSG Mauritius relinquishing its rights, thereby
achieving both its goals"

This press release by MSM, one of the main beneficiaries in the

entire transaction and who according to the Respondent was not
part of the alleged fraud, states that the entire India sub-
continent media rights transaction was done after negotiations
and with the WSGM relinquishing its rights. This would be an
important aspect to be considered. Moreover, this press release
again relates to the India sub-continent media rights, whereas the
subject matter of the present arbitration is the RoW media rights.
Respondent objected to the press release by MSM as not being
proved during the cross examination of RW-4 but this was not
accepted by the Tribunal at Pg.358 CCE, q.3-RW-4.”

(emphasis supplied)

63. The only reason why I am reproducing the relevant

portion of the Minority Award is to show that this argument of BCCI,

and which was canvassed by Mr. Dada before me, was negated by

the Tribunal. Non-consideration of this Press Note would also go to

the root of the matter considering that the aforesaid Press Note sets

out in detail as to under what circumstances the amount of Rs.425

crores was payable by MSM to WSGM. In fact, the consideration of

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the Press Note would have been vital before giving any finding of

fraud being established. This Press Note, and which relates to the

India Rights for the period 2009-2017, at least, prima facie,

indicates that WSGMs rights under the BCCI-WSGM MRLA had not

merely lapsed or come to an end simplicitor on 25th March 2009 as

contended by BCCI, but WSGM allowed its MRLA to lapse in order

to facilitate MSM entering into a direct contract with BCCI for the

India Rights for the period 2009-2017. In consideration for this,

MSM agreed to pay a Facilitation Fee which was quantified at

Rs.425 crores. The relevant portion of the said Press Note reads

thus:-

“We wish to state that all transactions relating to MSM’s

acquisition of the broadcast media rights in 2008 as well as 2009,
have been undertaken with full knowledge of all the parties; in an
open and transparent manner and in keeping with applicable
laws.

MSM strongly refutes all unsubstantiated allegations of any

impropriety in this matter, as incorrect and inaccurate.

To clarify the situation and our position, we wish to highlight the

following:

A quick summary
1. On March 14, 2009, the BCCI unilaterally terminated the
then existing broadcasting rights agreement dated 21
January 2008 with MSM.

2. MSM immediately initiated legal action against the BCCI in

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Bombay High Court to stay the termination. However, BCCI

had vested the Indian subcontinent broadcasting rights
with WSG Mauritius, for a nine year period (2009-2017)
under an agreement dated 15 March 2009.

3. Given that the contract had already been awarded to WSG

Mauritius, the court did not grant MSM a stay leaving MSM
the only recourse to sue BCCI for damages or try to secure
the rights back through a commercial negotiation. MSM
opted to enter into a commercial negotiation to try and re-
secure the rights.

4. MSM’s goals in the commercial negotiation were two-fold:

i) to secure the rights that had been unilaterally terminated
and for the entire 9 year period keeping BCCI unaffected
by paying the same amount to BCCI as contracted by WSG
Mauritius, and ii) It was MSM’s clear position that to
secure its business interests, the broadcasting rights
agreement should be a direct contract with the BCCI,
rather than as a sub-license under an agreement with WSG
Mauritius, which had these rights, as per the agreement
with BCCI, dated March 15, 2009. To facilitate MSM’s
condition for a direct contract with BCCI, WSG Mauritius
agreed to give up its broadcast rights for the Indian
subcontinent in favour of MSM, thus paving the way for
BCCI & MSM to enter into a contract directly. In
consideration for this, MSM agreed to pay WSG Mauritius
a facilitation fee.

5. MSM wishes to re-emphasize here that the ‘Facilitation

Fee’ of Rs 425 crores to WSG Mauritius is for:

a. the original option fee of $25 million (Rs. 115 crores

approximately) to extend the rights to years 6 till 10,

b. an additional fee over the 9 years of the contract of

Rs. 310 crores. These fees were to compensate WSG
Mauritius for returning its rights for IPL season 2 -
10 to BCCI in favour of MSM and were necessary if
MSM was to secure the rights to IPL season 2- 10.

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However, the potential rating incentive at the end

of year 5 of $ 35 million (Rs. 160 crores) under the
agreement dated 21 January 2008 was eliminated,
and

c. as a consequence of these commercial negotiations

the net incremental amount attributable to WSG
Mauritius giving up its IPL Indian subcontinent
rights is Rs. 150 crores.

6. MSM also wishes to state that the payments made to BCCI

and WSG Mauritius have been in accordance with
applicable laws and as per established international cross
border banking norms and procedures.

i. MSM received tax advice from external tax experts

that the transaction with WSG Mauritius did not
attract India taxes and MSM has accordingly not
withheld any Indian tax. MSM has accounted for the
payments in its financial statements which have
been audited and filed before statutory authorities.

MSM has acted at all times with impeccable integrity and highest
ethical standards and corporate Governance. MSM has complied
with applicable laws. Allegations in certain sections of the media
attributing wrongful conduct to MSM are incorrect and
completely unfounded.”
(emphasis supplied)

64. It is important to note that BCCI alleges in its termination

notice that MSM was misled to believe that there was an MRLA with

WSGM dated 23rd March 2009. However, in the Press Note, MSM

makes no reference to any MRLA of 23rd March 2009 but in fact

correctly mentions that the BCCI-WSGM MRLA was dated 15th

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March 2009. I fail to understand as to how MSM was misled when

even in its own Press Note it has stated that the BCCI-WSGM MRLA

was dated 15th March 2009. In fact, this Press Note also goes on to

explain with great clarity as to why Rs.425 crores was payable to

WSGM. Non-consideration of this Press Note, and the effect it

would have on the finding of fraud, is also completely missed by the

Arbitral Tribunal in the Majority Award which would render it

vulnerable to challenge.

65. This apart, even as far as the finding of fraud is

concerned, I find that the reasoning of the Tribunal in the Majority

Award is much to be desired. It was the case of BCCI, and which was

accepted by the Tribunal in the Majority Award, that a fraud was

committed on BCCI and MSM because a sum of Rs. 425 crores was

diverted to WSGM when the aforesaid amount ought to have been

paid and belonged to BCCI. The Tribunal holds that looking at the

terms of the Agreements as entered into in the year 2009, the

reasons alleged by the Claimant (WSGI) for subsequent changes as

against the reasons pointed out by the Respondent (BCCI), the

manner in which WSGM was introduced as a party to one of the

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transactions, the subsequent termination of that transaction and the

absence of knowledge of the Respondent (BCCI) regarding the exact

nature of the various transactions, especially the liability imposed

upon the Respondent (BCCI), the fraud as alleged was established

beyond reasonable doubt. I fail to understand how the Majority

Award has come to this finding. Firstly, how BCCI is entitled to

Rs.425 crores is something that is not explained in the Majority

Award. From the documents on record, namely the Agreements

entered into in the year 2009 as well as the Press Note issued by

MSM dated 23rd April 2010, prima facie, it would appear that

Rs.425 crores was to be paid to WSGM for giving up its India Rights

for the period 2009-2017, and which had come to it by virtue of the

DMAT read with the BCCI-WSGM MRLA dated 15th March 2009. I

fail to understand how a fraud in such transaction is alleged, at least

qua BCCI. What is important to note is that in the MRLAs of 2008,

and which are undisputedly unquestioned documents, a similar

provision finds place in the “Option Deed” executed between MSM

and WSGI which inter alia contemplated that if MSM wanted the

India Rights for the period 2013-2017, they would have to pay WSGI

a sum of USD 60 Million. It has never been BCCI’s case that the

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aforesaid Option Deed was in any way fraudulent or that the amount

of USD 60 Million which WSGI would have got under the Option

Deed was actually money which was due and payable to BCCI. I,

therefore, find that on the material on record, and especially the

non-consideration of the MSM Press Note, the Tribunal (in the

Majority Award) could not have come to the conclusion that fraud

on BCCI was proved, either on the preponderance of probabilities or

beyond reasonable doubt. This being the case, even on this count,

the Award is unsustainable.

66. There is yet another reason why I find that the Majority

Award is required to be interfered with. In paragraph 61 of the

Majority Award, the arbitrators hold as under:

“61. IPL GC meeting did take place and was held on 11th August,
2009 and there is nothing on record to suggest the second BCCI
WSGI MRLA and second BCCI MSM MRLA were discussed and
brought to the attention of the Governing Council members of the
IPL for approval in the said meeting. There is also nothing on
record to show that the contracts were available at the meeting
either and, therefore, there could not have been any ratification
and even if there be any ratification, the same was obtained
fraudulently by suppressing the most relevant clauses and by
suppressing the Facilitation Deed whereby legitimate fund of the
BCCI was sought to be diverted and misappropriated and
therefore rightly the BCCI took steps for rescission of such

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transaction.”

(emphasis supplied)

67. As can be seen from the aforesaid reproduction, the

Majority Award holds that there is nothing on record to show that

the 2nd BCCI-WSGI MRLA dated 25th March 2009 or the 2nd BCCI-

MSM MRLA also dated 25th March 2009, were available at the

meeting held on 11th August 2009 and therefore there could have

been no ratification. I am unable to understand how the Tribunal in

the Majority Award has come to this finding when there is a detailed

discussion on this aspect in the Minority Award from Paragraphs

159 to 178 thereof, which read thus:

“159) IPL GC members, by way of the agenda for the 11 August

2009 IPL GC meeting, which had been circulated to them as
far back as 2 August 2009, had been given access to the
MRLAs, apart from the detailed write-ups on them in the
financial statements forming part of the agenda papers.

160) Item 6.c shown at Page 675, Vol.II of CCD gives the
provisional income and expenditure for IPL 2009 along with
the statement of all expenses by vendor. The Claimant’s
argument seems to be correct inasmuch as the media rights
fee payable by MSM and the Claimant to the Respondent is
provided and the sum payable from MSM to Respondent
increases substantially. That is reflected in the document.

161) Item 6.f shown at Page 713,Vol.II of CCD under the heading
approval of all vendor contracts for 2009 season is a
statement that “All vendor contracts are placed here in the

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office along with the multiple quotes that are received from
various parties.” The Respondent’s contention that Item 6.f
was left blank therefore cannot be accepted.

162) I have examined the Respondent’s allegation that Mr. Modi

added the 2009 MRLA’s to Annexure C to the minutes post
circulation and approval of the minutes of the IPL GC
Meeting of 11 August 2009 and find it meritless. Firstly, not
a single witness led by the Respondent has supported such
a finding that the Annexure C which contains the list of the
MRLA’s was circulated much later to the meeting. It is
noteworthy that there is no specific testimony of this fact
or for instance when did the Respondent notice that the
Minutes were incorrect or had been supplemented with the
Annexure C which purportedly was not shared at the time
of the meeting.

163) The Vendor contract argument raised by the Respondent is

false. Along with the MRLAs there were a number of other
agreements which had been placed in the Vendor category
including the ‘BCCI-IPL’ CSA Agreement. In his cross-
examination, RW-3 categorically states that though he may
have referred to the MRLAs as ‘Vendor Agreements’, there
is no such definition of Vendor Agreements in the
Respondent’s approval process [Q.54 (page 366); CCE].
Thus, there is no material to indicate that the ‘Vendor
Agreements’ would have only included a particular class of
agreements. The Respondent’s arguments fall on this point
as well.

164) No rule or practice has been put forth in evidence that

media rights agreements were prohibited from being
placed in the category of vendor contracts. There are only
few minutes of the IPL GC meetings which have been placed
on the record of this arbitration and they again do not
disclose that media rights contracts were placed in a
separate category or that there was a great amount of
discussion between the members on such contracts.

165) Even if it were put under the head of vendor contracts, it

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would be the duty of the members sitting in a meeting to

have gone through all the matters noted in the Agenda note
while approving them. Once the Agenda is approved, the
conclusion that would follow is that it has been duly
considered and approved. In absence of anything more, the
evidence of the interested party witnesses saying that they
did not peruse the entirety of the document before
approving, would not be sufficient to hold that the
members approving did not have full knowledge or their
knowledge was defective. Also, none of the members of the
IPL GC have deposed to that effect, rather the evidence is
of the non-voting members. In any event, the very fact that
all matters were put in the Agenda Note it would rule out
any case of fraud or collusion.

166) The Respondent has argued extensively that the ratification

of the 2nd BCCI WSGI MRLA and 2nd BCCI MSM MRLA can
only occur with the full knowledge of all facts including any
irregularity. In support, it has been argued that the
contracts were not available at the meeting, there was also
no specific mention of the contracts in the minutes which
would show that they were not orally mentioned or
discussed at the meeting. On this basis, the Respondent
contends that the alleged ratification that is obtained
fraudulently by suppressing the most relevant clauses
cannot be said to be valid or binding on BCCI. The
Respondent in response to the Claimant's argument that
office bearers had no voting rights in the IPL GC meeting
stated that President and Secretary supervise the overall
affairs of the BCCI and their knowledge is relevant for
determining the BCCI’s knowledge.

167) The Claimant’s arguments were that the persons who were
entitled to vote and ratify the contracts were the members
of the IPL GC. RW-3 and RW-4 were office bearers who were
ex-officio members without any voting rights. The
Respondent has led no evidence to show that the usual
procedure for ratification was for considering the detailed
terms and conditions of the terms/contracts. Also, there
was clear and detailed reference to the media rights

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agreement in the Agenda note and the agreements were

available for inspection, thus, the ratification was done with
knowledge.

168) I have considered the material and evidence on record on

this point of ratification. There is no quarrel with the legal
proposition in the judgments cited by the Respondent on
this point such as T. R. Pratt (Bombay) Ltd v E.D. Sassoon
and Co Ltd [1935] LX ILR Bom. 326 as also Premila Devi v The
peoples Bank of Northern India [1938] ILR Lah 1 PC
concerning ratification.

169) It has emerged in the Respondent’s evidence that the only

persons in the IPL Governing Council who were entitled to
vote and take decisions were the members appointed by
the General Body of the Respondent. These were the
persons concerned who would approve/ratify the actions.
The office bearers who were part of the IPL GC were ex-
officio members but did not have any voting power. This has
been elicited in the cross examination of RW-1 where he
has stated in answer to a question (Line 10 at Page 217 of
CCE) that: Q. Are they allowed to vote in the meeting? A.
The members vote for that. The office bearers definitely
don’t participate in the voting part of it because the decision
makers are the members of that. Q. Do they vote or not in
the meeting to your knowledge? A. The Committee is
responsible to take decisions and the committee is the
members who are appointed by the general body who take
decisions.

170) The Respondent has contended that the reliance on RW-1’s

evidence is misplaced. No reason has been given for this.
Even so, it is not just RW-1’s who has deposed on this point.
RW-3 who was President of the Respondent at the relevant
time also testified in his cross-examination that the only
persons who were entitled to vote were the members
appointed by the general body and the ex-officio members
could not vote. This can be found at Line 16 at Page 323 of
CCE- Q. In terms of ability to participate in meetings, there
is no difference between an ex-officio member and a

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member, right? A. No, the right to vote was only with the
members. We never had a right to vote. If there was voting
in the meeting, we never had a right to vote. Q. Whenever
a vote was called, you weren’t entitled to vote? A. I can only-
with regard to the deliberations, we could participate.

171) The conclusion therefore has to be that the persons entitled

to vote and the decision makers at the 11 August IPL GC
were those who were members of the council. Any defect
in knowledge or the absence of the proper ratification
because the relevant clauses in the 2nd BCCI WSGI MRLA
were concealed or that there was no discussion concerning
these contracts had to be established by reference to the
state of mind of the person entitled to vote and who were
the decision makers as they would have approved and
ratified the 2nd BCCI WSGI MRLA. However no such
evidence was led by the Respondent and in this state of
affairs I am unable to accept the Respondent’s argument
that the ratification was defective and that the 2nd BCCI
WSGI MRLA cannot be said to be valid or bind the
Respondent.

172) On this point, the Respondent further argued that President

and Secretary of the BCCI supervise the overall affairs of the
Respondent and their knowledge therefore is relevant for
determining the state of knowledge of the Respondent.
That may well be correct, but in my view, it does not
advance the Respondent’s case any further as their state of
knowledge is irrelevant for the purposes of determining
whether the ratification of the 2nd BCCI WSGI MRLA was
defective or not.

173) There is again no evidence of the steps taken by the

Respondent when it discovered the belated addition of
Annexure C to the Minutes. These factual matters which are
stated to be part of and actively conceal the Fraudulent
Composite Transaction cannot be decided on the basis of
arguments without evidence. Secondly, the Minutes of 11
August 2009 IPL GC Meeting clearly state that Approval of
all contracts for 2009 season-All contract were entered the

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approved List (Which was attached as Annexure C).

174) If agreements were approved without the Annexure C, i.e.

the List which contains the agreements, then the persons
present there including RW-3 and RW-4 would have led
evidence that the members approved and ratified the
contracts in the absence of Annexure C. There is no such
evidence. Even the draft agenda which was circulated by
Mr. Modi on 25 August 2009 by his email at Page 1253,
Vol.III of CCD carried the same line namely Approval of all
contracts for 2009 season-All contract entered were
approved (List attached as Annexure C). The Minutes of 11
August 2009 IPL GC Meeting were annexed but did not
contain the Annexure C.

175) Even so there does not seem to be any correspondence

from any members after the 2 September 2009 that the
Annexure C was not shown to them. There is the email from
RW-3 on 25 August 2009 responding to the draft agenda
sent by Mr. Modi regarding the incorrect recording of the
minutes in relation to IMG. Even that email does not raise
any question on the Annexure C and no other
correspondence has been produced by the Respondent on
this point. As such it is not possible to accept the
Respondent’s argument that the Annexure C was included
subsequent to the approval of the Minutes of the 11 August
2009 IPL GC meeting.

176) After allegedly coming to know of the transactions in April,

2010, the Respondent let the third season of the IPL and
collected license fee from the Claimant under the subject
Agreement. In my view, this in itself would be an act of
ratification by conduct.

177) The Agreement had been acted upon and the Respondent
has also received consideration in the form of media rights
fees for the IPL 2009 and 2010 season from the Claimant.
The IPL matches were in fact broadcast to various Rest of
the World territories as envisaged under the 2nd BCCI WSGI
MRLA and the Respondent was fully aware about who was

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responsible for it in addition to the fact that these

agreements were ratified at the August 2009 GC meeting.
After taking the advantage and benefit of the Agreement
for 2 years, in my view, the Respondent cannot be
permitted to unsettle the agreement by stating that it was
not bound by the acts of the IPL Chairman & Commissioner,
who I have already found was authorised to enter into the
contracts relating to media rights.

178) To ascertain ratification, the entirety of the facts and

circumstances has to be taken into account. After taking
into account the entirety of facts, I am of the view that the
Respondent had elected to ratify (expressly and even
impliedly) the 2nd BCCI-WSGI Agreement. It had also ratified
the other media rights transactions in relation to the Indian
sub-continent done by the IPL Chairman and Commissioner.
Such ratification was consciously done and implemented. I
do not find that such ratification suffered from fraud or
material defects, as alleged.

(emphasis supplied)

68. I have set out the relevant paragraphs of the Minority Award

only to show that there was enough factual material before the Tribunal

in relation to the fact that the 2nd BCCI-WSGI MRLA and the 2nd BCCI-

MSM MRLA were available at the meeting held on 11th August 2009.

Despite all this material (as set out in the Minority Award and which is

factual in nature), the Arbitrators in the Majority Award come to a finding

that there is nothing on record to show that the 2nd BCCI-WSGI MRLA

and the 2nd BCCI-MSM MRLA were available at the meeting held on 11th

August 2009. This finding of the Tribunal clearly goes to show that it has

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ignored the factual material before it in relation to the meeting held by

the IPL Governing Council on 11th August 2009. The consideration of this

material would also have an important bearing on the argument of BCCI

that it had no knowledge of these Agreements until the discovery of the

fraud in June 2010 and consequently, all the Agreements entered into in

the year 2009 formed part of a fraudulent composite transaction, which

in turn, entitled BCCI to rescind the 2nd BCCI-WSGI MRLA dated 25th

March 2009. Non-consideration of this material and the effect it would

have on the issue of fraud is another factor that would render the award

unsustainable.

69. I have carefully gone through the Majority Award as well as

the Minority Award. The reason I have examined both the Awards is not

to see which view is correct. I have undertaken this exercise only because

it was the case of WSGI that a lot of important material and which would

have a bearing on the outcome of the dispute between WSGI and BCCI,

was ignored by the Arbitrators passing the Majority Award. In fact, when

I went through the Majority Award in detail, I find that one of the reasons

why the Tribunal held that a fraud was played on BCCI was because BCCI

was completely unaware of the Agreements entered into in the year 2009

and specifically the 2nd BCCI-WSGI MRLA and the 2nd BCCI-MSM

MRLA. The argument of WSGI before the Tribunal was that Mr. Lalit

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Modi acted throughout on behalf of BCCI and therefore BCCI had full

knowledge of these Agreements (constructive or otherwise). Further, the

Agreements in question were drafted by the International Management

Group (IMG), an Agency with Global Expertise in Sports Media Rights

and who was engaged by BCCI to assist in the organization of the IPL. It

was argued by WSGI before the Tribunal that Mr. Paul Manning of IMG

drafted all the Agreements who had complete knowledge of all the

Clauses therein, including the contentious Clauses. It was, therefore,

argued that the knowledge of Mr. Paul Manning must be attributed to

BCCI. In support of this proposition, WSGI relied upon a case of Bradley

v. Riches (1878) 9 Ch.D.189 which states that a solicitor can be presumed

to have communicated to his clients, the facts which he ought to have

made known.

70. To substantiate the argument that BCCI was in the know of

all the aforesaid Agreements, WSGI had also filed an Interim Application

before the Tribunal on 14th October 2016. In that application, amongst

other things, WSGI demanded documents exchanged between BCCI and

IMG between the period 15th March 2009 to 30th May 2009 in relation to

the 2nd BCCI-WSGI MRLA.

71. What is interesting to note is that the Tribunal, by its order

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dated 3rd April 2017 (pages 423 to 430 of the paper book), stated that it

was not necessary to direct BCCI to disclose these documents because

BCCI has not denied that IMG was appointed by BCCI and was advising

BCCI. The Tribunal also recorded that BCCI accepted that IMG was not

Mr. Lalit Modi’s personal adviser. The relevant portion of the Tribunal’s

order dated 3rd April 2017 reads thus:-

“(b) Documents exchanged between the Respondent and the

IMG on the subject Second BCCI WSGI MRLA between 15th March,
2009 and 30th May, 2009.
These documents are asked for because according to the
Claimant, the Respondent has denied involvement of IMG in the
drafting, reviewing and negotiations of various contracts,
including the Second BCCI WSGI MRLA. The Respondent however
has not denied that IMG was appointed by the Respondent and
was advising the respondent. It also accepts that IMG was not Mr.
Lalit Mody’s personal advisor. (Paragraphs 8, 8.1 and 8.3 of the
Rejoinder). In view thereof, it is not necessary to direct the
Respondent to disclose these documents.”

(emphasis supplied)

72. Despite this finding of the Tribunal, and recording the fact

that IMG was appointed by BCCI, was advising them, and accepting that

IMG was not Lalit Modi’s personal adviser, in paragraph 38 of the

Majority Award, the Tribunal records that in the present case it is the case

of BCCI that Mr. Paul Manning was taking instructions from and

reporting exclusively to Mr. Modi. The Majority Award thereafter goes on

to hold that looking at the facts of the present case, the knowledge of Mr.

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Manning cannot be attributed to BCCI and nor can it be said that BCCI

was aware of Mr. Modi's actions. It also holds that IMG acted on the

instructions of Mr. Modi as the Chairman of the IPL Governing Council

and the local legal team assisting him. There was no material before the

Tribunal to show that BCCI and its office bearers were aware of the

disputed transactions or were consulted by IMG for preparing these

Agreements, was the finding. For the sake of convenience, paragraph 38

of the Majority Award is reproduced hereunder:

38. The Claimant contends that Mr. Modi acted throughout on

behalf of the Respondent. The Agreements in question were
drafted by International Management Group (IMG), an agency with
global expertise in sports media rights engaged by the Respondent
to assist in the organisation of IPL. Particularly it was drafted by Mr.
Paul Manning of IMG who had complete knowledge of the
contentious clauses. The knowledge of Mr. Paul Manning can be
attributed to BCCI. The Claimant has relied in this connection on
the cases of Bradley v. Riches (1878) 9 Ch.D.189 which states that a
solicitor can be presumed to have communicated to his client the
facts which he ought to have made known. It is however, stated in
the said authority that this is subject to exceptions. (cf. also Brohmo
Dutt v. Dharmi Das Ghose (1898.) ILR 26 Cal. 381). Both these cases
deal with attorney-client relationship. In the present case, it is the
case of the Respondent that Mr. Manning was taking instructions
from and reporting exclusively to Mr. Modi. Looking to the facts in
the present case the knowledge of Mr. Manning cannot be
attributed to the Respondent. Nor can it be said that the
Respondent was aware of Mr. Modi's actions. Simply because IMG
was engaged inter alia, to prepare these Agreements, it does not
necessarily lead to the conclusion that the Respondent was aware
of all the Agreements so drafted and their terms. IMG acted on the
instructions of Mr. Modi as the chairman of IPL Governing Council
and the local legal team assisting him. There is no material before
us to show that the Respondent and its office bearers were aware

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of the disputed transactions or were consulted by IMG for

preparing these agreements.

(emphasis supplied)

73. I fail to understand how the Tribunal in the Majority Award

has come to these findings when BCCI had conceded before the Tribunal

on 3rd April 2017 that BCCI had engaged IMG (who admittedly drafted all

the Agreements of 2009) and that IMG was not Mr. Lalit Modi’s personal

adviser. In my view, the findings of the Tribunal in paragraph 38 of the

Majority Award are diametrically opposite to what is stated in its order

on 3rd April 2017. As can be seen from the reproduction of the order dated

3rd April 2017, the Tribunal was of the view that since BCCI accepted that

IMG was appointed by it, and the fact that it was not Lalit Modi’s personal

adviser, the Tribunal thought it unnecessary to direct BCCI to produce

the documents sought for by WSGI in relation to the 2nd BCCI-WSGI

MRLA between 15th March 2009 and 30th May 2009. Despite this, the

Tribunal now holds that it is BCCI’s case that Mr. Manning was taking

instructions from and reporting exclusively to Mr. Lalit Modi. It was this

very fact which WSGI wanted to disprove that it sought the production of

those documents. Once the Tribunal recorded the statement of BCCI that

IMG (Mr. Paul Manning being a part thereof) was appointed by BCCI and

was advising BCCI and was not Mr. Lalit Modi’s personal adviser, how

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the Tribunal has come to the conclusion that Mr. Paul Manning was

taking instructions from and reporting exclusively to Mr. Lalit Modi, is

beyond my comprehension. In fact, this aspect has also been considered

in the Minority Award at paragraphs 140 to 142 thereof which reads

thus:-

“140) The Claimant had relied upon Bradley v Riches [(1878) 9 CHD;
Pg 189 at 195-197] as well as Brahmo Dutt v Dharmi Das Ghose
[(1898) ILR 26 Cal 381; Para 8, 21-25] wherein the Court rejected
the contention that notice to the attorney is not notice to the party
and held that “the knowledge of the solicitor was the imputed
knowledge of the client.” The Courts have held that a client has
constructive notice of what is known to his Solicitor. The doctrine
laid down was:
"my solicitor is alter ego; he is myself; I stand in precisely the
same position as he does in the transaction, and therefore
his knowledge is my knowledge; and it would be a
monstrous injustice that I should have the advantage of
what he knows without the disadvantage. "

Applying the above doctrine to the present case, unless the

Respondent establishes that Mr. Manning was the lawyer of Mr.
Modi (and not the Respondent), and that Mr. Manning was
produced before the Tribunal to depose that he had no knowledge
about the transactions / Agreements, I would be inclined to take
the view that he had knowledge of all the transactions, had drafted
all the Agreements executed on 15 March 2009 and 25 March 2009
and since he was the lawyer for the Respondent, his knowledge
should be treated as knowledge of the Respondent. The fact that
Mr. Manning was not the lawyer of Mr. Modi but of the Respondent
is something that the Respondent has already accepted while
rejecting the Claimant’s request for discovery on the submission of
the Respondent, the Tribunal had held that: ‘The Respondent
however has not denied that IMG was appointed by the
Respondent and was advising the Respondent. It also accepts that
IMG was not Mr. Lalit Modi’s personaL adviser.

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141) Not only that Mr. Manning was aware, the records show that
on 11 April 2009, Mr. Modi sent an email with a copy of the 2nd
BCCI MSM MRLA dated 25 March 2009 to Ms. Akhila Kaushik, Mr.
Shashank Manohar, Mr. N. Srinivasan, Mr. Sundar Raman and Mr.
Prasanna Kannan. This email falsifies the case of fraud and
suppression raised by the Respondent. The MRLA was sent to the
President, Secretary, in house legal head and COO. Anybody could
have gone through it and asked for more information and referred
Agreements. However, in evidence, it emerges that the Secretary
had not even cared to read the Agreement. However, in evidence,
it emerges that the Secretary had not even cared to read the
Agreement.

[Shown Vol.l, page 465 (E-mail dated 11 1 11 April 2009 from Mr.
Lalit Modi &l addressed to a number of people including yourself
attaching a copy of 2nd BCCI — MSA1 A1RLA). The attachment is at
pages 466-516 produced by Respondent].

“Q, 13. Now do you agree that you had a copy of the 2nd
BCCI-MSM from 11th April 2009?
Ans. From this email, it appears that a copy of the agreement
was sent amongst others to me also. However, I did not read
it at all because prior to this in order to raise invoices I think
Lalit Modi was asked for a copy of this agreement. No
response was received from him and I may have written to
Mr. Sundar Raman expressing disappointment that there
was no response. This was followed, I remember by a mail
from Mr. Lalit Modi copied to a lot of people and then I think
Mr. Manohar intervened who was the then President and
after that this mail was sent. I vaguely remember it. By that
time, I was no more interested and therefore did not bother
to read it."

I find this difficult to believe. The Agreement was in his possession,

but still he maintains that he did not read it or only read select parts
of it. Given the importance of the document, it cannot be accepted
that the same as not even read.

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142) On the same day, Mr. N Srinavasan, RW-4, signed as a

deponent to an Affidavit in CS (OS) No 633/2009 before the Delhi
High Court in a case titled- MSM Satellite (Singapore) Pte Ltd versus
Mr QW Naqvi and Another. The Affidavit stated that the said Mr
Srinivasan was authorised and competent to swear and depose the
Affidavit and that he was aware of the agreement entered into
between MSM and the Respondent dated 25 March 2009 and he
had read and perused the contents thereof. Despite the affidavit,
having sworn by him, his cross examination shows an attempt to
distance himself from it and accepted having a copy of Agreement
after being confronted with documents:

''Q.9. Do you remember filing this affidavit in Delhi High

Court on behalf of BCCI as Hon. Secretary of BCCI in the Suit
filed by MSM against one Mr. Q.N. Naqvi & Anr ?
Ans. If I have signed it, I have filed it. ”
“Q.10. I put it to you therefore that your answer to Q. 7 is
incorrect as you had read and perused the contents of the
2nd BCCI – MSM MRLA by 11th April 2009 at the latest. What
do you have to say?
Ans. I remember that there was some dispute between Sony
and somebody, may be the person mentioned here, whether
Sony had rights or not, so my President asked me to go and
affirm it and when I have stated that I had perused the
agreement, it would be limited to whether Sony had the
rights and I was instructed by my President to file this
Affidavit. ”

The Affidavit is clear and especially given the receipt of the 11 April
2009 and the uncontroverted evidence we cannot accept the RW-
4’s version that he was not aware of the terms of the agreement. I
cannot ignore the fact that the agreement was in fact in his
possession and every person can subsequently deny knowledge of
a document received by him by saying he did not read it or only
read select parts of it. This cannot be accepted. The 2nd BCCI-WSGI
MRLA, which admittedly was known to all, contained references to
the Facilitation Deed as well.”

(emphasis supplied)

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74. Once again, at the cost of repetition, I must emphasize that I

haven’t reproduced parts of the Minority Award to examine which view is

correct but to only see whether material evidence, and which would go to

the root of the matter, has been missed in the Majority Award. When one

compares the Majority Award with the Minority Award, I have no

hesitation in holding that huge chunks of important evidence are missed

out and/or not even referred to in the Majority Award. Such an Award,

with the greatest of respect to the Arbitrators who passed the Majority

Award, cannot be allowed to stand.

75. In view of the discussion above, the Petition succeeds and is

allowed in terms of prayer clause (a) which reads thus:

“a. The Majority Award dated 13 July 2020 be set aside under
Section 34 of the Arbitration and Conciliation Act, 1996”

76. Considering that the Majority Award has been set aside on

the ground that it fails to take into consideration material evidence which

would have a bearing on the outcome of the dispute between the parties,

I direct that in terms of Section 43(4) of the Arbitration Act, if either party

chooses to once again invoke arbitration or commence fresh proceedings,

the period between the commencement of the above arbitration, till

today, shall be excluded in computing the time prescribed by the

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Limitation Act, 1963 for commencement of proceedings (including

Arbitration) with respect to the dispute so submitted.

77. The Arbitration Petition is accordingly disposed of.

However, there shall be no order as to costs.

78. In view of the fact that the Arbitration Petition itself is

disposed of, nothing survives in the above Interim Application and the

same is disposed of accordingly.

79. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

( B. P. COLABAWALLA, J. )

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