Calcutta High Court
Percept Talent Management Limited And … vs Sourav Chandidas Ganguly on 16 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(COMMERCIAL DIVISION)
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
AO-COM No. 23 of 2025
Percept Talent Management Limited and Another
Vs.
Sourav Chandidas Ganguly
For the appellants : Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Rajarshi Dutta, Adv.
Mr. Ranjit Kr. Basu, Adv.
Mr. Parag Khandhar, Adv.
Mr. Sarbajit Mukherjee, Adv.
For the respondent : Mr. Samrat Sen, Sr. Adv.
Mr. Paritosh Sinha, Adv.
Ms. Manali Bose, Adv.
Mr. Amitava Mitra, Adv.
Ms. Urmi Sengupta, Adv.
Mr. Saurath Dutt, Adv.
Mr. Naman Agarwal, Adv.
Hearing concluded on : 12.03.2026
Judgment on : 16.04.2026
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Md. Shabbar Rashidi, J.:-
1. The appeal under Section 37 of the Arbitration and
Conciliation Act, 1996 is in assailment of judgment and order dated
July 22, 2025 passed in AP-COM No. 167 of 2024.
2. By the impugned judgment and order, the learned Single
Judge dismissed AP-COM No. 167 of 2024, an application under
Section 34 of the Act of 1996 and refused to interfere with the original
award dated December 9, 2018 together with the supplementary
award dated March 8, 2019 passed by the arbitral tribunal.
3. Learned senior advocate appearing for the appellant
submitted that the learned Single Judge failed to appreciate the
purport of Section 34 of the Act of 1996 and passed the impugned
judgment and order upon erroneous consideration of law and facts.
The learned Single Judge did not consider that the impugned award
was liable to be set aside on the grounds urged in the application
preferred on behalf of the appellants under Section 34 of the
Arbitration and Conciliation Act, 1996.
4. Learned senior advocate for the appellant also submitted that
the Learned Judge erred in holding that the Arbitral Tribunal has
correctly arrived at a finding that the appellants had no right to
terminate the Player Representation Agreement (PRA) after dealing
with the points raised by the appellants and also took into account the
contemporaneous conduct of the parties when in fact the Arbitral
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Tribunal failed to consider the submissions of the Petitioners and
passed the Impugned Award ex-facie perverse being contrary to the
plain meaning and terms of the PRA between the parties, rendering
the Impugned Award to be perverse and patently illegal.
5. Learned senior advocate further argued that the learned
Single Judge wrongly held the views taken by the learned arbitral
tribunal as possible and plausible despite the fact that such view was
ostensibly against the fundamental public policy of India. The
interpretation of PRA adopted by the learned Single Judge as well as
the arbitral tribunal could not have been regarded as plausible.
According to learned Senior advocate the right to terminate existed
and continued so long as the event of variation subsisted.
6. Learned senior advocate for the appellant contended that the
learned Single Judge ignored the terms of the PRA where an
unconditional right of termination of the appellant was reserved and
on this score, the impugned award was perverse. It was submitted
that the learned Single Judge ignored the express terms of the PRA
and rewrote a new contract contrary to the original contract. For such
reason also the impugned judgment and order is not sustainable in
terms of the provisions of Section 34 of the Act of 1996.
7. Learned Senior advocate for the appellant further contended
that the Learned Single Judge erred in upholding the Impugned Award
despite the perverse finding of the Arbitral Tribunal that the right of
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the appellant to terminate the agreement came to an end after
November 25, 2006 i.e. when the Respondent was re-selected to play
for the Indian Team. Such finding was erroneous, perverse and
contrary to the terms of the PRA in view of the provisions of Section
28(3) of the Arbitration and Conciliation Act.
8. Learned Senior advocate for the appellant further submitted
that the learned Judge failed to consider Clause 15 and Clause 2.1(c)
of Schedule 4 read with Clause 2.2(c)(ii) of the PRA which
contemplated two eventualities i.e. one of mere non-selection and non-
selection for a continuous period of exceeding 6 months. If it was a
mere non-selection not exceeding a period of six months, then it was
the right of the appellant to vary the amount and reduce the same by
one third for each month during the period when the Respondent is
not selected. However, in the event the Respondent was not selected
for a period of six consecutive months or more, then the Petitioners
had an unconditional right to terminate the PRA at any time by giving
a written notice and on such written notice being given the PRA would
forthwith come to an end. The learned arbitral tribunal failed to
appreciate that the respondent was not selected in the Indian team for
more than six months i.e. between August 2006 and November 2006,
giving the appellant a right to terminate the PRA.
9. Learned senior advocate for the appellant submitted that the
learned Single Judge erroneously upheld the findings of the arbitral
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tribunal which held the termination of PRA on the part of the
appellant vide its notice dated November 21, 2007 to be invalid. The
appellant had unconditional right to terminate the PRA at any time in
terms of the express provisions of the agreement. It was also
contended that the Learned Judge failed to consider that the Arbitral
tribunal’s finding that both the reduction of MQD and/or MYD and
the right to terminate existed only so long as the event of variation
subsists was perverse and contrary to the terms of the PRA and the
Arbitral Tribunal lost sight of the express terms of the PRA, which
were binding upon the parties.
10. Learned senior advocate for the appellant further submitted
that the learned Single Judge was not justified in holding that since
the appellant did not document/send any letter disclosing their
intention to terminate the PRA during the subsistence of the event of
variation i.e. between August 1, 2006 and November 30, 2006, such
conduct conclusively proved that the Petitioners were not
contemplating termination of the PRA. In fact, according to the
appellant, the parties were negotiating upon the terms of PRA for the
next six months which continued until November 2007 when the PRA
was terminated in terms of Clause 2.2 (c) (ii) of Schedule 4 of the PRA.
11. Learned senior advocate for the appellant also argued that the
learned arbitral tribunal was not justified in holding that the contract
of the respondent with KKR was for playing cricket and did not include
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exploitation of his personality and that the amount claimed by the
appellants was beyond the scope and purview of PRA.
12. Learned senior advocate appearing for the appellant also
contended that a party who has not raised or urged a particular plea
before the Section 34 Court is precluded from raising such an issue in
proceedings under Section 37 of the said Act. In support of his
contentions, learned senior advocate appearing for the appellants
relied upon (2022) 4 Supreme Court Cases 463 (Indian Oil
Corporation Limited V. Shree Ganesh Petroleum Rajgurunagar),
2025 SCC OnLine Del 3811 (Oil and Natural Gas Corporation Ltd.
V. JSIW Infrastructure Pvt. Ltd.), 1959 SCC OnLine SC 6 (Union of
India V. Kishorilal Gupta & Bros.), (2015) 3 Supreme Court Cases
251 (Board of Control for Cricket in India V. Cricket Association
of Bihar and Others) and (2011) 6 Supreme Court Cases 617 (A.C.
Muthiah V. Board of Control for Cricket in India and Another).
13. On the other hand, learned senior advocate representing the
respondent submitted that on a true and proper construction of the
PRA, the termination could not have been effected at the material
point of time i.e. 16 months after the occurrence of the event which
entitled the appellant to terminate the PRA and in fact, 12 months
after the respondent was re-selected as a regular playing member of
the Indian Cricket Team. By reason of diverse overt acts and conduct
of the appellant since the occurrence of the event of variation on
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August 1, 2006 which entitled the appellant to terminate the PRA, the
petitioners had manifestly elected to waive their right to terminate the
PRA and such termination was thereby barred by the principles of
waiver and/or estoppel and/or acquiescence.
14. It was also submitted that during the said period of 16
months, the appellants continued to hold it out to the respondent and
to diverse licensees as the respondent’s sole and exclusive manager
and agent and induced the respondent to perform his reciprocal
promises under the PRA. In terms of the PRA, an escrow account was
created and all transactions in respect of the personality exploitation
of the respondent were to be deposited in such account. It was
specifically submitted by learned senior advocate that after August 1,
2006 a total sum of ₹12,04,01,212/- was paid by various Licensees to
the petitioners into the escrow account on the basis of representations
made by the appellants to the licensees that it was and continued to
be the sole and exclusive manager and agent of the respondent.
15. Learned senior advocate for the respondent further contended
that the right to terminate the PRA ought to have been exercised by
the appellant immediately or at least proximate to the occurrence of
the event of variation and such right could not under any
circumstances be construed to continue even after the respondent’s
reinstatement and re-selection in the Indian National Cricket Squad.
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The term ‘at any time’ used in the PRA cannot be stretched to
indefinite period of time.
16. Referring to clause 16.1 of the PRA, learned senior advocate
for the respondent submitted that in terms of the conditions
enunciated in such clause, the appellant ceased the authority to
represent the personality i.e. the respondent, upon termination of
PRA. However, the appellant continued to represent the respondent
even after the date of the purported termination i.e. November 21,
2OO7 procured and/or solicited/negotiated without any reservation,
several contracts on behalf of the respondent. The appellant also, after
November 21, 2007, proactively coordinated and/or organized
promotional services on behalf of diverse licensees by holding itself out
to have the authority or right to represent the claimant. Such facts
were brought on record by the respondent in the arbitral proceeding
by way of rejoinder as well as affidavit of evidence which was never
disputed by the appellants. According to learned senior advocate, the
conduct of the appellant was inconsistent with the right of
termination. Therefore, the learned Arbitral Tribunal rightly held the
termination of PRA to be invalid which was subsequently upheld by
the impugned judgment and order.
17. Learned senior advocate for the respondent also contended
that in terms of the provisions contained in Section 34 of the Act of
1996, the construction of the terms of a contract is the sole and
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exclusive domain of the Arbitral Tribunal. If the view taken by the
Arbitral tribunal is one that is possible, even if not a plausible one, the
Court is precluded from interfering with the award. Once it is found
that the Arbitral Tribunal’s approach is neither arbitrary nor
capricious’ the Arbitral tribunal is the last word on facts. The Court
exercising jurisdiction under Section 34 of the Arbitration and
Conciliation Act, 1996 does not sit in appeal over the award of an
arbitral tribunal upon reassessment or re-appreciation of evidence. In
support of such proposition, learned senior advocate relied upon 2025
SCC OnLine SC 2857 (Ramesh Kumar Jain V. Bharat Aluminium
Company Limited), (2025) 6 Supreme Court Cases 757 (Somdatt
Builders-NCC-NEC (JV) V. National Highways Authority of India
and Others), (2024) 1 Supreme Court Cases 479 (Reliance
Infrastructure Limited V. State of Goa), (2023) 15 Supreme Court
Cases 472 (Larsen Air Conditioning and Refrigeration Company
V. Union of India), (2019) 4 Supreme Court Cases 163 (MMTC
Limited V. Vedanta Limited) and 2024 SCC OnLine SC 2632
(Punjab State Civil Supplies Corporation Limited and Another V.
Sanman Rice Mills and Others).
18. Learned senior advocate for the respondent further submitted
that the learned Arbitral Tribunal was justified in holding that the
contract entered into by KKR with the respondent was for playing the
game of cricket and that the amount paid to the respondent by KKR
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was independent of the exploitation of the commercial rights of the
respondent.
19. The Arbitral Tribunal rightly came to the conclusion that the
KKR contract was for playing the game of cricket and did not relate to
exploitation of the respondent’s personality. The Arbitral Tribunal was
of the view that PRA provided only to amounts received by the
respondent from exploitation of his personality. Promotional activities
that the respondent undertook under his agreement with KKR were
promotional activities of and for the KKR team and no individual
endorsements were made by any of the persons playing for KKR. The
Arbitral Tribunal has rejected the counter claim made by the
petitioners by holding that the KKR contract was beyond the purview
of the PRA. According to learned senior advocate for the respondent,
such view taken by the tribunal is a plausible one which cannot be
faulted. On similar grounds, the counter claim of the appellant in
respect of share in the KKR contract was rightly disallowed by the
learned Arbitral Tribunal and subsequently affirmed by the impugned
judgment and order.
20. Learned senior advocate for the respondent further submitted
that the PRA was restricted to the exploitation of the commercial
rights of respondent by different ‘Licensees’ upon the licensing of
which, consideration was received by respondent. Such consideration
is distributed between respondent and Percept as per the Revenue
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Distribution Formula provided in the Schedules to the PRA. Under the
KKR contract, the respondent was only entitled to receive a fixed
consideration as the ‘Player Fee’ and no other payment. The
respondent did not receive anything besides the aforesaid fixed fee,
either from KKR or from any of the sponsors of KKR. KKR, as an IPL
franchise enters into endorsement/sponsorship agreements with
corporate bodies. The corporate bodies pay such consideration as may
be agreed by and between the corporate bodies and KKR. The
respondent was not a party to, or was not privy to or aware of the
commercial terms and conditions under which KKR had entered into
contracts with the corporate bodies. At the same time such contracts
cannot be termed as commercial exploitation of the individual
personality, rather that of the brand KKR.
21. Learned senior advocate for the respondent referred to various
clauses of KKR contract to contend that individual players were not
authorized to participate in any promotional activity except for and on
behalf of the KKR franchise and that too in groups. Therefore, the
claim of the appellant over the revenue earned by the respondent from
out of the KKR contract was rightly rejected.
22. Learned senior advocate for the respondent also submitted
that the learned Arbitral Tribunal rightly did not consider the audit
report sought to be relied upon by appellants for lack of proper proof
thereof.
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23. Learned senior advocate for the respondent also contended
that the learned Arbitral Tribunal justifiably held both the appellants
jointly and severally liable. It was contended that original PRA was
entered into between the respondent and the appellant No.2. Around
April 2007, the respondent was intimated that appellant No.2 had
assigned its rights under the PRA to appellant No.1. Accordingly, the
respondent as claimant impleaded both the appellants in his
statement of claim. Both the appellants filed joint statement of
defence. They both filed the counter claim jointly. Such issue was
never raised by the appellants during the arbitral proceeding and is
deemed to have been waived. Therefore, according to learned senior
advocate, the appellants are not entitled to raise such issue of liability
based on assignment in the present proceeding.
24. The respondent, a cricketer of international repute entered
into a Player Representation Agreement (PRA) with the petitioner No.2,
on October 22, 2003. By such agreement the respondent appointed
petitioner No.2 as his sole and exclusive manager and agent on the
terms and conditions enumerated in the PRA.
25. During the subsistence of the PRA, by a deed of assignment
dated April 2l, 2007 executed between petitioner No.1 and petitioner
No. 2, the rights and obligations of the petitioner No. 2 under the PRA
were assigned to petitioner no.1. According to the terms of PRA, an
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escrow account was to be maintained to keep the amount received
from various contracts.
26. The respondent claimed that substantial sums were due and
payable by the appellants and that the revenue received from different
contracts were not deposited in the escrow account as contemplated
by the PRA. The respondent also alleged unauthorized withdrawals
from the escrow account to the detriment of his interest in the PRA.
The relationship between the parties turned discordant resulting in
termination of PRA at the behest of appellant No.1.
27. In terms of the agreement, arbitral reference was made to an
arbitral tribunal consisting of three arbitrators. The Arbitral Tribunal
unanimously held that the respondent was entitled to the balance of
the minimum guaranteed amount which was assured by the appellant
under the PRA, after making necessary deductions and adjustments
for the sums received directly under various heads. By the award, the
Arbitral Tribunal awarded a sum of ₹14,49,91,000/- with additional
interest thereon @ 12% p.a. from November 21, 2007 till the date of
passing of the arbitral award together with further interest @ 12% p.a.
from the date of passing of the award till realization. The manner in
which the amount awarded was quantified was fully enumerated in
the award. In addition, the respondent was also granted costs
quantified at ₹50,00,000/-
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28. While deciding the issues, the learned Single Judge
formulated the points of challenge to the arbitral award dated
December 9, 2018, read with the supplementary award dated March
8, 2019 made on the part of the appellant in the following terms,
that’s to say: –
“6. It is contended on behalf of the petitioner that the
impugned award passed by the Tribunal is ex facie, perverse,
contrary to the express terms of the contract, unreasoned and
as has been passed in violation of the principles of natural
justice. The petitioners assail the award on the following
grounds:
A. Error of the Arbitral Tribunal in holding that the
termination of the contract by the petitioners on
November 21, 2007 was invalid.
B. Failure of the Arbitral Tribunal to give the petitioners
the benefit of the consideration received by the
respondent under the KKR contract dated August 21,
2OO8 between Knight Riders sports Private Limited and
the respondent.
C. Failure of the Arbitral Tribunal to give due credence
to the purported audit reports of M/ s. Patkar &
Pendese which were disclosed on behalf of the
petitioners before the Arbitral Tribunal.
D. Failure of the Arbitral Tribunal to hold that the petitioners
could not be jointly liable in view of the assignment whereby
the rights and liabilities of the petitioner No. 2 had been
assigned in favour of the Petitioner no. 1.”
29. On the point of right of the appellant to terminate the Player
Representation Agreement (PRA), the learned Single Judge declined to
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interfere with the impugned award primarily on two grounds. The
learned Single Judge examined various clauses of the PRA as well as
the findings arrived at by the Arbitral Tribunal and came to a
conclusion that the appellants not only waived their right to terminate
but continued to commercially deal with the personality of the
respondent in compliance with the terms and conditions of PRA.
Secondly, the learned Single Judge also observed that the view taken
by the Arbitral Tribunal were plausible and could not be interfered in
the jurisdiction under Section 34 of the Act of 1996. The learned
Single Judge held that,
“12. The respondent lost his place in the Indian Cricket Team
in February 2006. The event of variation entitling the
petitioners to terminate was triggered on August 1, 2006 i.e.
on completion of six consecutive months of the respondent’s
non-selection. The respondent was again re-selected as a
regular player on November 30, 2006. During this period there
is neither a single letter nor document which would
demonstrate that the petitioners contemplated termination. It
was only 16 (sixteen) months after the occurrence of the event
i.e. the event which entitled the petitioners to terminate and
12 (twelve) months after his re-selection that the petitioners
ultimately purported to terminate the PRA. In light of the above
facts, the interpretation of the clauses of the PRA after
considering the words “forthwith” and “at any time” in the
PRA by the Arbitral Tribunal justify no interference. The
Arbitral Tribunal has elaborately taken into account all the
above aspects in arriving at the conclusion that the petitioner
had no right of termination. The Arbitral Tribunal has dealt
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with each of the points raised by the petitioners and also
taken into account the contemporaneous conduct of the
parties. There is nothing arbitrary nor capricious in the award.
The view of the Arbitral Tribunal is both a possible and
plausible view and warrants no interference. In such
circumstances, there is no merit in the contention that the
termination of the PRA was valid or lawful.
13. A possible view by an Arbitrator on facts has necessarily
to pass muster as the Arbitrator is the ultimate master of the
quantity and quality of evidence to be relied upon when he
delivers his arbitral award. Thus, an award 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 on this
Score. In deciding an application under section 34 of the Act,
the Court does not act as an Appellate Court nor re-appreciate
evidence findings rendered by the Tribunal. There is a limited
and circumscribed scope of interference only on the grounds
enumerated under section 34 of the Act. The construction of
the terms of the contract is exclusively for the Arbitral
Tribunal. The findings in the award are based on a detailed
consideration of the PRA, correspondence and evidence of the
parties including their respective financial records. There is
nothing perverse in the view of the Arbitral Tribunal. The
award discusses the nature of obligations under the PRA and
elaborately deals with the impugned letter of termination and
also the lack of prior protest. The award also takes into
account the conduct of the parties. Though the petitioners
alleged non-performance, the Tribunal found that no
contemporaneous proof had been furnished and this squarely
fell within the domain of the Arbitral Tribunal. Once it is found
that the Tribunal’s approach is not arbitrary nor capricious
then the Tribunal is the last word on facts. In such
circumstances, there is also nothing which warrants
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interference with the view taken by the Arbitral Tribunal.
[Associate Builders vs. Delhi Development Authority (2015)
3SCC 49, Ssanyong Engineering and Construction Company
Limited vs. National Highways Authority of India (NHIAI)
(2019) 15 SCC 131’and P.R.Shah shares & stock Brokers (P)
Ltd. V. BHH Securities (P) Ltd, (2012) 1 SCC 594].”
30. The learned Single Judge appears to have discussed the
relevant clause in the PRA vis-à-vis the right of termination. Special
reference was made to the facts that the alleged termination was
found by the learned tribunal to a stale reaction on the part of the
appellant. The learned Single Judge observed that the learned Arbitral
Tribunal had held that the termination of PRA was bad in so far as it
was exercised much after it accrued. The tribunal took a specific view
and declined to accept the contention of the appellants that once the
event of variation occurred, the right to terminate the contract in the
terms of PRA was triggered and continued to be available until it was
actually exercised irrespective of the fact that the respondent was re-
selected in the Indian cricket team later.
31. In fact the agreement was terminated after the event giving
rise to the right of termination had long surpassed and no longer
existed. The learned Single Judge held that the terms “forthwith” and
“at any time” used in the agreement were not stretchable to any extent
rather; it ought to have been exercised within a reasonable proximity
of time, which the appellants failed. In fact, the Arbitral Tribunal also
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took note of the fact that no document or communication at the
behest of the appellants expressing its desire to terminate the contract
immediately after the happening of the event of variation was
demonstrated. According to the terms of the PRA, the said right of
termination of contract was to be exercised following a written notice
to that effect.
32. The learned Single Judge also held the finding of the Arbitral
Tribunal with regard to invalidity of the termination of the PRA to be
not liable to interference on the ground that the appellants continued
to deal with the personality exploitation of the respondent even after
the termination of the contract. The tribunal had held that the case
made out by the respondent to the effect that the appellants continued
to act as manager of his personality exploitation under the PRA even
after the alleged termination of PRA was not refuted by the appellants
and it stood proved in the arbitral proceeding. On such score as well,
the termination of PRA was held to be depraved, by the tribunal.
33. Such findings of the tribunal was held by learned Single
Judge to be within exclusive domain of the arbitral tribunal and
thereby, the learned Single Judge, in its jurisdiction under Section 34
of the Arbitration and Conciliation Act, 1996, refrained from
interfering with such findings arrived at by the tribunal. We are of the
opinion that the learned Single Judge quite justifiably declined to
interfere with the findings of the Arbitral Tribunal. In the facts of the
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case, we are not in a position to hold that the learned Single Judge
misapplied or failed to exercise its jurisdiction under Section 34 of the
Act of 1996.
34. The issue in aspect of the entitlement of the appellants over
the revenue share in the consideration received by the respondent
under his contract with KKR, was decided by the learned tribunal in
the following terms:
“19. So far as the claim by the Respondents and against the
Claimant in respect of Knight Riders Sports Ltd (KKR Contract)
is concerned, it is the Respondents contention that this
amount of ₹2,62,2O, OOO/- is payable to the Respondents out
of the amount agreed to be paid by the Claimant under the
KKR Contract for having participated on behalf of KKR in the
tournament popularly known as IPL This claim of
Respondents appears to be wholly unsustainable. The PRA
applies exclusively to the exploitation of the claimant’s
commercial rights. Those contracts that the claimant entered
into for playing the game of cricket are beyond the purview of
the PRA. The amount paid by KKR to the Claimant is wholly
independent of the exploitation independent of the claimant’s
Personality to which the PRA attaches. Probably realizing this
position, the Respondents submitted that the claimant had
participated in promotional activities as a result of the KKR
contract. In fact, the KKR contract provided that respect of any
person or product or service. Promotional
Activities undertaken by the KKR were always endorsements
by team members and by the claimant as a part of the KKR
team and not an individual promotion by any team member or
the Claimant. The evidence in this connection is contained in
the cross examination of the Claimant from Qs. and Ans. 149
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to 161 and 174 to 176. The gist of this testimony is that the
promotional activities that the Claimant undertook under his
agreement with KKR were promotional activities of the KKR
team and no individual endorsements were made by any of
the persons playing for the KKR.”
35. As regards the refusal of counter claim made by the appellant
towards the revenue share in the consideration received by the
respondent in his contract with the Kolkata Knight Riders (i.e. Indian
Premier league Playing contract) dated August 21, 2OO8 between
Knight Riders Sports Private Limited and the respondent, the learned
Single Judge held as follows:
“16. The finding that the contract entered into by KKR with
the respondent was for playing cricket and independent of
the exploitation of the commercial rights of the respondent is
based on a construction of the contract and the evidence
adduced by the parties before the Arbitral Tribunal. The
Arbitral Tribunal held that the promotional activities which the
respondent had undertaken in terms of KKR contract were
promotional activities of an on behalf of KKR and were not
individual endorsements of any of the players playing for
KKR. Thus, no part of the consideration received under the
KKR contract was subject to “revenue share with the
petitioners under the PRA.
17. As a general principle, if there are two plausible
interpretations of the terms and conditions of the contract,
then no fault can be found if the Arbitral Tribunal proceeds to
accept one interpretation as against the other. The reasoning
of the Arbitral Tribunal in this regard is within the permissible
bounds of arbitral discretion under section 34 of the Act. In the
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facts and circumstances, the interpretation of the relevant
clauses of the PRA vis-à-vis the KKR contract by the Arbitral
Tribunal are both possible and plausible. Merely because
another view could have been taken on the self-same facts
does not warrant interference with the award. The Arbitral
Tribunal has elaborately dealt with this aspect after taking
into consideration the relevant clauses and evidence. A Court
should not interfere with the decision of the Arbitral Tribunal
merely because an alternative view is possible unless the
Arbitral Tribunal’s view is found to be perverse or tainted with
arbitrariness. No portion of the award is shown to have
contravened the principles of justice, morality, or the
fundamental policy of Indian law the impugned award cannot
be described as one which shocks the judicial conscience. To
this extent the decisions cited by the petitioners are
distinguishable. There is also no question of disregarding the
decisions of the Hon’ble Supreme Court in A.C. Muthiah V.
Board of Control for Cricket in India (2011) 6 SCC 617 and
Board of Control for Cricket in India V. Cricket Association of
Bihar (2015) 3 SCC 251. These decisions were inapplicable
and inapposite.”
36. The learned Single Judge refused to interfere with the
decision of the Arbitral Tribunal on the ground that the promotional
activities which the respondent had undertaken in terms of KKR
contract were promotional activities of and on behalf of KKR and were
not individual endorsements of any of the players playing for KKR.
Thus, no part of the consideration received under the KKR contract
was subject to “revenue share with the petitioners under the PRA. The
learned Single Judge was also of the view that if there are two
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plausible interpretations of the terms and conditions of the contract,
then no fault can be found if the Arbitral Tribunal proceeds to accept
one interpretation as against the other. The reasoning of the Arbitral
Tribunal in this regard is within the permissible bounds of arbitral
discretion under Section 34 of the Act. In the facts and circumstances,
the interpretation of the relevant clauses of the PRA vis-à-vis the KKR
contract by the Arbitral Tribunal are both possible and plausible.
37. We are also of the opinion that when the learned Arbitral
Tribunal, in its wisdom, accepted one plausible view against the other,
no interference under the jurisdiction of Section 34 of the Act of 1996
was at all warranted. On this score also we are not in a position to
hold at any stretch of imagination, that the learned Single Judge failed
to exercise its jurisdiction under the provisions of Arbitration and
Conciliation Act, 1996.
38. So far as rejection of the report of audit reports of M/s. Patkar
& Pendese which were disclosed on behalf of the petitioners before the
Arbitral Tribunal is concerned, the learned tribunal had held that
such report was not duly proved by the appellants at the arbitral
proceeding. The maker of such report was not called upon to prove the
same. The respondent was not given the opportunity to cross examine
the maker of the audit report. For such reasons, the audit report was
not taken into consideration by the Arbitral Tribunal. In this regard
the learned Single Judge observed that,
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“20. This is a pure question of assessment or weightage of
evidence which is within the exclusive domain of the Arbitral
Tribunal. The Tribunal found that no evidence was at all
adduced in respect of the auditor’s certificate nor did the
maker of the documents depose. There was no evidence
furnished as to the veracity or correctness of the certificates.
On the other hand, the respondent solely relied on the
admissions contained in the letter dated September 10, 2007
issued by the petitioner No.1 and this was given due credence
to by the Arbitral Tribunal. Mere filing of a certificate by an
auditor or a chartered accountant without examining the
author or giving an opportunity of cross examination does not
constitute proof of the contents thereof. It is well settled that
the Arbitral Tribunal being the ultimate master of the quantity
and quality of evidence, the court must respect the view of the
Arbitral Tribunal.”
21. There can be no re-appreciation of the findings by the
Arbitral Tribunal nor does the Court substitute its own view or
re-interpret the entire documentary evidence. There is limited
scope of the court both in respect of the quality and the
quantity of evidence. In Sumitomo Heavy Industries’ Ltd. V.
ONGC Ltd., (2010) 11 SCC 296, it has been held as follows:
“43….The umpire has considered the fact situation and
placed a construction on the clauses of the agreement
which according to him was the correct one. One may at
the highest say that one would have preferred another
construction of Clause 17.3 but that cannot make the
award in any way perverse. Nor can one substitute
one’s own view in such a situation in place of the one
taken by the umpire, which would amount to sitting in
appeal. As held by this Court in Kwlality Mfg. Corpn. v.
Central Warehousing Corpn. [(2009) 5 SCC 142, (2009)
2 SCC (Civ) 4066] the Court while considering challenge
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to arbitral award does not sit in appeal over the
findings and decision of the arbitrator, which is what
the High Court has practically done in this matter. The
umpire is legitimately entitled to take the view which he
holds to be the correct one after considering the material
before him and after interpreting the provisions of the
agreement. If he does so, the decision of the umpire has
to be accepted as final and binding.”
39. In the present proceeding, the appellants failed to
demonstrate that the alleged audit report was actually proved at the
arbitral proceeding in accordance with law. Nothing has been placed
before us that the author of the audit report was examined as a
witness in such proceeding and was thrown open for cross
examination on the part of the respondent. In such circumstances, we
cannot hold that the findings of learned Single Judge in this regard
suffer from perversity.
40. The learned Single Judge found no merit in the contention of
the appellants that the learned Arbitral Tribunal failed to appreciate
that after the execution of the deed of assignment by and between
appellant No. 1 and appellant No. 2 on April 21, 2007 both the
appellants could not have been held jointly liable. The learned Single
Judge noted in the impugned judgment that,
“23. The application under section 34 of the Act has been filed
by both petitioners. There are neither any pleadings nor
grounds to conclude that the rights and liabilities of the
petitioner No.2 had ceased to exist. Significantly, the issue of
assignment has been ignored and disregarded by the
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petitioners themselves before the Arbitral Tribunal. There was
no argument advanced before the Arbitral Tribunal that the
petitioner No. 2 is not liable to respondent by virtue of the
assignment. This is also not a ground urged in the pleadings
and is wholly outside the scope of this proceeding. As such,
the petitioners are estopped from raising this issue. In such
circumstances, there is no merit in the objection.”
41. It is trite law that one cannot take the benefit of his own
wrong. There is nothing on record to conclude that the findings of
learned Single Judge to the effect that the it was never argued before
the learned Arbitral Tribunal that in view of the assignment, appellant
No. 2 could not be held liable. Such issue was never raised by the
appellants during the arbitral proceeding and is deemed to have been
waived. Therefore, according to learned senior advocate, the appellants
are not entitled to raise such issue of liability based on assignment in
the present proceeding. The materials placed before us show that both
the appellants filed joint statement of defence as well as the counter
claim jointly. In such facts of the case, the impugned judgment does
not call for any interference.
42. In Kishorilal Gupta (supra) on the survival of an arbitration
clause in a contract where such contract was superseded by a fresh
contract, the Hon’ble Supreme Court observed that,
“6. ………………. It was a self-contained document; it did not
depend upon the earlier contracts for its existence or
enforcement. The liability was ascertained and the mode of
recovery was provided for. The earlier contracts were
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superseded and the rights and liabilities of the parties were
regulated thereunder. No condition either precedent or
subsequent was expressly provided; nor was there any scope
for necessarily implying one or other either. The only argument
in this direction, namely, that it is impossible to attribute any
intention to the Government to take a mere promise on the part
of the respondents to hypothecate their properties “as
satisfaction” and therefore it should be held that the intention
of the parties was that there would be no satisfaction till such
a document was executed, does not appeal to us. We are
concerned with the expressed intention of the parties and
when the words are clear and unambiguous — they are
undoubtedly clear in this case — there is no scope for drawing
upon hypothetical considerations or supposed intentions of the
parties; nor are we attracted by the argument that the
description of the properties intended to be hypothecated was
not made clear and therefore the presumed intention was to
sustain the rights under the new contract till a valid document
in respect of a definite and specified property was executed.”
42. Oil and Natural Gas Corporation (supra) dealt with the
interpretation of the terms of contract. It noted that when the
language of the contract is clear and unambiguous, internal aid of
interpretation is not permissible. The Delhi High Court held that,
“46. When the language of the Clause 3.4.1.5 of the GCC is
plain, clear and unambiguous, the internal aid of
interpretation is impermissible. The law has been settled by
various decisions of the Hon’ble Supreme Court in Pandit
Chunchun Jha (supra), United India Insurance Co. Ltd.
(supra), State Bank of India (supra) and Rajasthan State
Industrial Development and Investment Corporation (supra)
relied upon by the Respondent.
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47. The decision in Provash Chandra Dalui (supra) relied on
by the Appellant would not be applicable in the present facts
and circumstances as the clause 3.4.1.5 of the GCC is
unambiguous, plain, clear and express.
48. The impugned judgment has correctly held that when the
terms of the contract were unambiguous, the negotiations
between the parties in the contract should not have been
looked into considering clause 1.2.5 of the GCC, which stated
that the contract constitutes an entire agreement and
supersedes all past negotiations, communications and
agreements entered into between the parties prior to the
execution of the contract. Ignoring an explicit clause of the
contract or acting contrary to the terms of the contract
amounts to patent illegality. The above law has been settled
in the decision of the Hon’ble Supreme Court in Indian Oil
Corporation Ltd. (supra).”
43. Similarly, in Indian Oil Corporation Ltd. (supra), the
Hon’ble Supreme Court noted that,
“45. The Court does not sit in appeal over the award made by
an Arbitral Tribunal. The Court does not ordinarily interfere
with interpretation made by the Arbitral Tribunal of a
contractual provision, unless such interpretation is patently
unreasonable or perverse. Where a contractual provision is
ambiguous or is capable of being interpreted in more ways
than one, the Court cannot interfere with the arbitral award,
only because the Court is of the opinion that another possible
interpretation would have been a better one.
46. In Associate Builders [Associate Builders v. DDA, (2015) 3
SCC 49: (2015) 2 SCC (Civ) 204], this Court held that an
award ignoring the terms of a contract would not be in public
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interest. In the instant case, the award in respect of the lease
rent and the lease term is in patent disregard of the terms and
conditions of the lease agreement and thus against public
policy. Furthermore, in Associate Builders [Associate Builders
v. DDA, (2015) 3 SCC 49: (2015) 2 SCC (Civ) 204] the
jurisdiction of the Arbitral Tribunal to adjudicate a dispute
itself was not in issue. The Court was dealing with the
circumstances in which a court could look into the merits of an
award.”
44. In Cricket Association of Bihar (supra) and A.C. Muthaiah
(supra) it was held that the engagement of players for the game of
cricket played in the Indian Premiere League (IPL) is commercial in
nature and a pathway to national selection. However, in both the
decisions, the Hon’ble Supreme Court held that the IPL format of the
game of cricket was introduced for the purpose to maximise the
outreach of the game and exploit its commercial potentials. It does not
speak of commercial exploitation of the personality of an individual to
contend that the PRA entered into between the appellants and the
respondent comprehended the contract between the respondent and
KKR, merely on the ground that such contract was a commercial
venture.
45. In Somdatt Builders (supra), the Hon’ble Supreme Court set
aside the order passed by the Division Bench of Delhi High Court on
the ground that interpretation of certain clauses of the contract by the
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Arbitral Tribunal and learned Single Judge were upset by the Division
Bench. It was observed that,
“51. As already discussed above, the Arbitral Tribunal had
interpreted Clause 51 in a reasonable manner based on the
evidence on record. This interpretation was affirmed by the
learned Single Judge exercising jurisdiction under Section 34
of the 1996 Act. Therefore, the Division Bench [NHAI v. Som
Datt Builders-NCC-NEC (JV), 2009 SCC OnLine Del 3692] of
the High Court was not at all justified in setting aside the
arbitral award exercising extremely limited jurisdiction under
Section 37 of the 1996 Act by merely using expressions like
“opposed to the public policy of India”, “patent illegality” and
“shocking the conscience of the court”.
46. Similarly, in Ramesh Kumar Jain (Supra) it was noted that,
“42. The errors pointed out in the impugned judgment, i.e.,
lack of evidence, percentage-based guess allowances, etc. do
not, singly or cumulatively, amount to patent illegality
warranting annulment. There were at least some evidence
and logical rationale for each award element. The arbitrator’s
approach was certainly a possible view a reasonable man
might take. The High Court, unfortunately, re-
appreciated the evidence and came to a different view,
which is impermissible. The High Court’s scrutinized the
award from a stricter standard of proof than arbitration law
demands. Arbitrators are not bound by the strict rules of
evidence as per Section 19 of the A&C Act and may draw on
their knowledge and experience. It is settled that a court
should not interfere simply because the arbitrator’s reasoning
is brief or because the arbitrator did not cite chapter and verse
of the contract as long as the path can be discerned by which
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the arbitrator arrived at his conclusions. Here, the path is
discernible and not absurd.”
[Emphasis supplied]
47. As regards the scope and ambit of Section 37 of the
Arbitration and Conciliation Act, 1996, in Larsen Air Conditioning
and Refrigeration Company (supra), the Hon’ble Supreme Court
observed to the following, that’s to say:-
“15. The limited and extremely circumscribed jurisdiction of
the court under Section 34 of the Act, permits the court to
interfere with an award, sans the grounds of patent illegality
i.e. that “illegality must go to the root of the matter and cannot
be of a trivial nature”; and that the Tribunal “must decide in
accordance with the terms of the contract, but if an arbitrator
construes a term of the contract in a reasonable manner, it
will not mean that the award can be set aside on this ground”
[ref : Associate Builders [Associate Builders v. DDA, (2015) 3
SCC 49 : (2015) 2 SCC (Civ) 204] , SCC p. 81, para 42]. The
other ground would be denial of natural justice. In appeal,
Section 37 of the Act grants narrower scope to the appellate
court to review the findings in an award, if it has been upheld,
or substantially upheld under Section 34.”
48. Similar principles were laid down in MMTC Limited (supra). It
was observed that,
“14. As far as interference with an order made under Section
34, as per Section 37, is concerned, it cannot be disputed that
such interference under Section 37 cannot travel beyond the
restrictions laid down under Section 34. In other words, the
court cannot undertake an independent assessment of the
merits of the award, and must only ascertain that the exercise
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of power by the court under Section 34 has not exceeded the
scope of the provision. Thus, it is evident that in case an
arbitral award has been confirmed by the court under Section
34 and by the court in an appeal under Section 37, this Court
must be extremely cautious and slow to disturb such
concurrent findings.
15. ………………………………………………………………..
16. It is equally important to observe at this juncture that
while interpreting the terms of a contract, the conduct of
parties and correspondences exchanged would also be
relevant factors and it is within the arbitrator’s jurisdiction to
consider the same. [See McDermott International Inc. v. Burn
Standard Co. Ltd. [McDermott International Inc. v. Burn
Standard Co. Ltd., (2006) 11 SCC 181] ; Pure Helium India (P)
Ltd. v. ONGC [Pure Helium India (P) Ltd. v. ONGC, (2003) 8
SCC 593] and D.D. Sharma v. Union of India [D.D. Sharma v.
Union of India, (2004) 5 SCC 325] .]”
49. In Punjab State Civil Supplies Corporation Limited
(supra), the Hon’ble Supreme Court laid down that the appellate power
under Section 37 of the Act was not akin to the normal appellate
jurisdiction vested in the civil courts for the reason that the scope of
interference of the courts with arbitral proceedings or award is very
limited and confined to the ambit of Section 34 of the Arbitration and
Conciliation Act, 1996 and such powers cannot be exercised in a
casual and cavalier manner.
50. Noting several authorities, the Hon’ble Supreme Court, in
Reliance Infrastructure Ltd. (supra) held that the jurisdiction
conferred on Courts under Section 34 of the Arbitration Act is fairly
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narrow, when it comes to the scope of an appeal under Section 37 ofthe Arbitration Act, the jurisdiction of an appellate court in examining
an order, setting aside or refusing to set aside an award, is all the
more circumscribed.
51. In the light of discussions made hereinbefore, we are of the
opinion that the learned Single Judge did not exceed its jurisdiction or
fail to exercise its jurisdiction vested in it under the provisions of
Section 34 of the Act of 1996. Therefore, we find no reason to interfere
with the impugned judgment and order.
52. Consequently, the instant appeal being AO-COM 23 of 2025 is
hereby dismissed however, without any order as to costs. With the
disposal of main case, connected applications, if any, shall also stand
disposed of accordingly.
53. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
54. I agree.
[DEBANGSU BASAK, J.]