PARTICIPANT CODE- 142P

9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017

BEFORE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE (CIVIL) JURISDICTION

S.L.P. NO. 1882/ 2017

UNDER ARTS. 136, OF THE

CONSTITUTION OF INDIA.

DC ENTERPRISES PRIVATE LIMITED PETITIONERS

v.

SSN PRIVATE LIMITED & ORS. RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES
OF THE HON’BLE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE PETITIONERS

9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 8

ISSUES RAISED 10

SUMMARY OF ARGUMENTS 11

ARGUMENTS ADVANCED 12

1. HON'BLE HIGH COURT OF BOMBAY WAS NOT CORRECT IN DISMISSING THE PETITION FILED
BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY. 12

I. THE SUB-CONTRACTOR HAD LOCUS STANDI BEFORE THE HIGH COURT OF BOMBAY.
12

II. HON’BLE HIGH COURT OF BOMBAY HAD JURISDICTION TO ENTERTAIN THE PETITION.
12

III. THE PETITION FILED BY THE SUB-CONTRACTOR WAS MAINTAINABLE IN THE HON’BLE
COURT OF BOMBAY. 14

2. THE MANDATE OF MR. ADITYA NARAYAN AND MS. AISHWARYA GAUR SHOULD BE

TERMINATED AS ARBITRATORS. 15

I. MANDATE OF MR. ADITYA NARAYAN SHOULD BE TERMINATED. 15

II. MANDATE OF AISHWARYA GAUR SHOULD BE TERMINATED ON THE GROUNDS OF

REASONABLE BIAS AND PARTIALITY IN THE ARBITRATION. 17

PRAYER FOR RELIEF 20

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

¶ Paragraph

Arb. Arbitration

AIR All India Reporter

Art. Article

Asso. Associates

Entp. Enterprises

Govt. Government

HC High Court

Hon’ble Honorable

Infra. Infrastructures

Ld. Learned

Ltd. Limited

MD Managing Director

No. Number

Ors. Others

Para Paragraph

Pvt. Private

S. Section

SC Supreme Court

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [LIST OF ABBREVIATIONS]

SCC Supreme Court Cases

Sch. Schedule

SLP Special Leave Petition

v. Versus

MEMORANDUM ON BEHALF OF THE PETITIONERS 4|Page

9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [TABLE OF AUTHORITIES]

TABLE OF AUTHORITIES

CASES

A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem AIR 1989 SC 1239 ................... 13
AIR 2014 SC 1093 ................................................................................................................... 12
HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Limited 240 (2017)
DLT 132 ............................................................................................................................... 15
Jivraj v. Hashwani 2011 UK SC 40......................................................................................... 17
Lalitkumar v. Sanghavi (D) Th. L.Rs. Neeta Lalit Kumar Sanghavi and Anr. v. Dharamdas v.
Sanghavi and Ors. 2014 (3) ABR 208 ........................................................................... 12, 14
Rajinder Krishan Khanna & Ors. v. Union of India & Ors. AIR 1999 SC 463 ...................... 18
Reliance Industries Ltd. & Ors v. Union of India (2015) 10 SCC 213.................................... 18
S.B.P. & Co. v. Patel Engineering Ltd. & Anr. AIR 2006 SC 450.......................................... 12
Satyendra Kumar v. Hind Construction Ltd. AIR 1952 Bom 227 .......................................... 16
Surinder Pal Singh v. HPCL and Anr. 2007 (2) RAJ 364 ....................................................... 15
Swastik Gases Pvt. Ltd. v Indian Oil Corp. Ltd. (2013) 7 SCR 581 ........................................ 13
TRF Ltd. v. Energo Engineering Projects Ltd. (2017) 7 SC ALE 162 .................................... 17
Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665 ......... 15

STATUTES

Schedule VII, Arbitration and Conciliation Act, 1996 ............................................................ 18

Section 11 (8) (a), Arbitration and Conciliation Act, 1996 ..................................................... 16
Section 11 (8) (b), Arbitration and Conciliation Act, 1996 ..................................................... 16
Section 12 (1) (a), Arbitration and Conciliation Act, 1996 ..................................................... 16
Section 12 (5), Arbitration and Conciliation Act, 1996........................................................... 15
Section 14 (1), Arbitration and Conciliation Act, 1996........................................................... 14
Section 14 (2), Arbitration and Conciliation Act, 1996........................................................... 13
Section 2 (1) (e), Arbitration and Conciliation Act, 1996 ................................................. 12, 13
Section 28, Indian Contract Act, 1872..................................................................................... 13
Sub-Section 11, Schedule VII, Arbitration and Conciliation Act, 1996 .................................. 17
Sub-Section 14, Schedule VII, Arbitration and Conciliation Act, 1996 .................................. 17
Sub-Section 2, Schedule VII, Arbitration and Conciliation Act, 1996 ................................... 15
Sub-Section 5, Schedule VII, Arbitration and Conciliation Act, 1996 ................................... 16
Sub-Section 7, Schedule VII, Arbitration and Conciliation Act, 1996 .................................... 16

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Sub-Section 8, Schedule VII, Arbitration and Conciliation Act, 1996 .................................... 16

The Arbitration and Conciliation (Amendment) Bill, 2015 ............................................... 15, 17

BOOKS

Justice S.B. Malik, Commentary on The Arbitration and Conciliation Act, 1996, (3rd edn.
Universal Law Publishing) .................................................................................................. 16
Pg. 1090, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.) ... 12
Pg. 590, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.) ..... 18
Pg. 629, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.) ..... 13

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble Supreme Court of India under Special Leave
Jurisdiction (Art. 136) of the Constitution of India.

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [STATEMENT OF FACTS]

STATEMENT OF FACTS

1. SSN Pvt. Ltd. [hereinafter referred the “Contractor”] (a company registered under the
Companies Act, 1956 secured a tender from the State of Orissa. Consequently, the
Contractor entered into contract for design engineering services with DC Enterprises
Private Limited [hereinafter referred the “Sub-Contractor”] (a company registered under
the Companies Act, 1996) the terms were negotiated between the parties through emails
and the contract was executed in Kolkata on 18.03.2014. It was agreed between the
parties designs were to be provided on 12.09.2014.
2. The Sub-contractor was unable to deliver the designs in time. Due to the delay on the
part of the Sub-Contractor in providing designs, the Contractor was unable to complete
the construction in time stipulated under the tender. On 20.07.2015 the Contractor
invoked the arbitration clause as set out in clause 20(2) of the Contract on account of the
loss suffered due to breach of the contract by the Sub-contractor.
3. The contractor appointed Mr. Ashish Singh, MD of Contractor, subsequently Contractor
approached HC of Calcutta under Sec. 11 of Arbitration Act, regarding appointment of
arbitrator for Sub contractor. The Sub Contactor raised objections to the same, but same
was not considered by the Hon’ble Court, and Abhay Patel was appointed. Subsequently
Mr. Ashish Singh and Abhay Patel mutually appointed Ms. Aishwarya Gaur as the
Chairperson of Arb. Tribunal. It was further agreed by the parties that place of arbitration
will be Mumbai, Maharashtra for all subsequent proceedings.
4. On 23.10.2015 numerous Legislative Amendments were made to the arbitration Act,
1996. It was brought to the notice of Ld. Arbitral trib. Pursuant to amendments Mr.
Ashish Singh resigned and0 Mr. Aditya Narayan was appointed by Contractor.
5. Meanwhile a public announcement was made that KP Infra. Pvt. Ltd. will acquire SSN
Entp. Pvt. Ltd. On 08.12.2015 the acquisition was completed and SSN Entp. Became a
wholly owned subsidiary of KP Infra. Pvt. Ltd. the acquisition was covered by leading
newspaper across India
6. Pursuant to the appointment of Mr. Aditya Narayan the Sub- Contractor came to know
that Mr. Aditya Narayan is the Senior Partner at the Mumbai Office of the DT
Associates, a full service law firm, Also that Delhi office of the DT Associates has a five
years agreement with another wholly owned subsidiary of the KP Infrastructure Private
Limited for and the firm derives substantial income therefrom.

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7. The Sub-Contractor expressed his disagreement in relation to the appointment of Mr.

Aditya Narayan, as he failed to make the aforesaid disclosure and is ineligible to be
appointed as an arbitrator. Later, Mr. Aditya Narayan replied wherein he unilaterally
asserted that his appointment is correct and his eligibility cannot be questioned. He
clarified that he is using his office at DT Associates only for secretarial and
administrative assistance for his work as an arbitrator. He also mentioned that he was
aware of the public announcement and was also aware that DT Associates advises a
wholly owned subsidiary of the KP Infra. Pvt. Ltd and, thereby, deriving substantial
income therefrom. Later, Mr. Aditya Narayan denied to resign from the Arbitral
Tribunal.
8. Sub-Contractor approached the Ld. Arbitral Tribunal and challenged the appointment of
Mr. Aditya Narayan as circumstances exists which give rise to justifiable doubts as to
his independence and impartiality. The said challenge was not successful as all the
Arbitrators were of the view that the relationship between Mr. Aditya Narayan and the
Contractor does not raise any justifiable doubts as to his independence and impartiality
even under the Sch. V of the amended S. 12 of the Arbitration Act, 1996
9. The Sub-Contractor approached the Hon’ble High Court of Bombay for terminating the
mandate of Mr. Aditya Narayan and Ms. Aishwarya Gaur. The Hon’ble High Court of
Bombay dismissed the Petition filed by the Sub-Contractor as the same was not
maintainable.
10. Appellant by decision of Bombay HC aggrieved by this approached Hon’ble Supreme
Court of India under Art. 136

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [ISSUES RAISED]

ISSUES RAISED

1. WHETHER THE HON’BLE HIGH COURT OF BOMBAY WAS CORRECT IN DISMISSING

THE PETITION FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF

MAINTAINABILITY?

2. WHETHER THE MANDATE OF MR. ADITYA NARAYAN AND MS. AISHWARYA GAUR
SHOULD BE TERMINATED AS ARBITRATOR?

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SUMMARY OF ARGUMENTS

1. THAT THE HON’BLE HIGH COURT OF BOMBAY WAS NOT CORRECT IN DISMISSING

THE PETITION FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF

MAINTAINABILITY.

It is humbly summited that Hon’ble High Court of Bombay was not correct in dismissing the
petition filed by the Sub-Contractor on the grounds of maintainability. It is humbly submitted
that under Section 2(1)(e) of Arbitration and Conciliation Act, 1996 Hon’ble High Court of
Bombay had the Jurisdiction under its Ordinary Original Civil Jurisdiction to entertain the
petition filed by the Sub-Contractor for termination of mandate of Mr. Aditya Narayan and Ms.
Aishwarya Gaur.
Also on the basis of grounds provided in Section 14 of Arbitration and Conciliation Act, 1996
the Hon’ble High Court of Bombay had the Jurisdiction to terminate the mandate of arbitrators
because of the Justifiable doubt on the Independence and Impartiality of arbitrators.

2. THE MANDATE OF MR. ADITYA NARAYAN AND MS. AISHWARYA GAUR SHOULD BE
TERMINATED AS ARBITRATORS.

It is humbly submitted before the Hon’ble Supreme Court of India that the mandate of Mr.
Aditya Narayan and Ms. Aishwarya Gaur should be terminated as arbitrators. Mandate of
arbitrator Mr. Aditya Narayan should be terminated on the grounds of Section 12 (5) read with
Schedule V and Schedule VII of Arbitration and Conciliation Act, 1996. There are grounds
under the Schedule V and Schedule VII of the act which raise justifiable doubt on the
independence and impartiality of Mr. Aditya Narayan which becomes sufficient for cancelling
the mandate.
Also it is humbly submitted before the Hon’ble Supreme Court of India that mandate of Ms.
Aishwarya Gaur as an arbitrator should also be terminated on the grounds that there are
justifiable doubts which raises a question on impartiality of Ms. Aishwarya Gaur. Moreover
the appointment by Mr. Ashish Singh who himself was rendered ineligible as arbitrator in
present case, any appointment made by him raise question of biasness in present case and on
Ms. Aishwarya Gaur. Hence, it is requested to the Hon’ble Supreme Court that the mandate of
both the arbitrator should stand terminated.

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ARGUMENTS ADVANCED

1. HON'BLE HIGH COURT OF BOMBAY WAS NOT CORRECT IN DISMISSING THE PETITION
FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY.

A. THE SUB-CONTRACTOR HAD LOCUS STANDI BEFORE THE HIGH COURT OF BOMBAY.
It is humbly submitted that Sub-Contractor had the Locus Standi1 to file the petition
before Hon’ble High Court of Bombay. Sub-Contractor being the interested party has
approached Hon’ble High Court of Bombay for cancelling the mandate of Mr. Aditya
Narayan and Ms. Aishwarya Gaur.

B. HON’BLE HIGH COURT OF BOMBAY HAD JURISDICTION TO ENTERTAIN THE

PETITION.

It is humbly submitted before Hon’ble High Court of Bombay had Jurisdiction as the
definition given out in case2 and under Section 2(1)(e)3

“(i) in the case of an arbitration other than international commercial

arbitration, the principal Civil Court of original jurisdiction in a district, and includes
the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction
to decide the questions forming the subject-matter of the arbitration if the same had
been the subject-matter of a suit, but does not include any Civil Court of a grade inferior
to such principal Civil Court, or any Court of Small Causes.”

Moreover, in the case of Executive Engineer, Road Development Division No. III,
Panvel and Anr. v. Atlanta Limited 4 the court explained the intent of legislature while
framing the law and thus cleared the situation as according to which Hon’ble High
Court of Bombay will have the Jurisdiction in this particular matter. In another case of

1
Pg. 1090, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.)
2
S.B.P. & Co. v. Patel Engineering Ltd. & Anr. AIR 2006 SC 450.
3
Section 2 (1) (e), Arbitration and Conciliation Act, 1996.
4
AIR 2014 SC 1093.

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Lalitkumar5 the court accepted the petition filed by the party under section 14(2)6 to
determine the whether the mandate of arbitrator stood legally terminated or not.

Also in case7 of Hon’ble Supreme Court it was laid down that when the contract
specifies a specific place as the Jurisdiction of the court, such court will have the
jurisdiction to deal in that particular matter, and it was laid down by the Hon’ble court
that jurisdiction of all other courts will excluded and also a clause like this will not be
affected by S.288.

Similarly, in the present case the Dispute Resolution gives out the Clause 20 (2) which
says:

“ All disputed and differences of any kind whatever arising out of or in

connection with the contract shall be subject to the exclusive jurisdiction of courts of
Mumbai Only.”9

Also there is a well-established precedent10 which gives the maxim expressio unius est
exclusio alterius11 was brought to use. According to which if one court in the court has
jurisdiction all the other courts will be ousted regarding the same. But in the present
case under the Clause 20(2)12 it was clearly mentioned that courts of Mumbai will have
exclusive jurisdiction in case of any dispute, which again makes it clear that there exists
the Jurisdiction of Hon’ble High Court of Mumbai.13

Keeping in mind the above contentions according to Section 2(1)(e)14,which gives out
the definition of “Court”, it becomes clear that High Court of Mumbai had Jurisdiction
to entertain the petition filed by and The provisions contained in Section 2(1)(e) being
purely jurisdictional in nature clears the question of Jurisdiction before the Hon’ble
High Court of Bombay.

5
Lalitkumar v. Sanghavi (D) Th. L.Rs. Neeta Lalit Kumar Sanghavi and Anr. v. Dharamdas v. Sanghavi and Ors.
2014 (3) ABR 208.
6
Section 14 (2), Arbitration and Conciliation Act, 1996.
7
Swastik Gases Pvt. Ltd. v Indian Oil Corp. Ltd. (2013) 7 SCR 581.
8
Section 28, Indian Contract Act, 1872.
9 nd
2 Citation, Page 2, Moot Proposition, 9th IUMCC 2017.
10
A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem AIR 1989 SC 1239
11
Pg. 629, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.)
12
Id.
13
Supra Note 6.
14
Section 2 (1) (e), Arbitration and Conciliation Act, 1996.

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Hence, it is clear that the Hon’ble court had Jurisdiction under Ordinary original civil
jurisdiction and under the light of the arguments advanced it thus becomes clear that
the Hon’ble High Court of Bombay was not correct in dismissing the petition filed by
the Sub-Contractor on the grounds of maintainability.

C. THE PETITION FILED BY THE SUB-CONTRACTOR WAS MAINTAINABLE IN THE

HON’BLE COURT OF BOMBAY.

It is hereby contended that the petition filed by the Sub-Contractor was maintainable
and Hon’ble High Court of Bombay was not correct in dismissing the same on the
grounds of maintainability.

The Sub- Contractor being the aggrieved party approached the Hon’ble High Court of
Bombay for terminating the mandate of Mr. Aditya Narayan and Ms. Aishwarya Gaur
as there were grounds of justifiable doubt about their independence and impartiality.15
Sub-contractor approached the Hon’ble court exercising its right vested under Section
14(2) of the Act which clearly states-

“If a controversy remains concerning any of the grounds referred to in clause

(a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the
Court to decide on the termination of the mandate.”16

According to which it can be easily concluded that Hon’ble court had the Jurisdiction
and the Petition was maintainable, in the case of Hon’ble Supreme Court the court
clearly entertained the petition filed by the party Under section 14(2) to determine the
whether the mandate of arbitrator stood legally terminated or not.17

In the same case 18it laid down Section 14(2) provides that if there is any controversy
regarding the termination of the mandate of the arbitrator on any of the grounds referred
to in the clause then the application should be made to the court regarding the same.

15
¶ 10, Page 4, Moot Proposition, 9th IUMCC 2017.
16
Section 14 (2), Arbitration and Conciliation, 1996.
17
Lalitkumar v. Sanghavi (D) Th. L.Rs. Neeta Lalit Kumar Sanghavi and Anr. v. Dharamdas v. Sanghavi and Ors.
2014 (3) ABR 208.
18
Id.

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Moreover, in the present case, the Sub-Contractor was left remediless after the Hon’ble
High court of Bombay dismissed its petition19 and the same should have been
considered considering the conditions provided in s.14(1)20

In present case, in the light of contentions presented, the petition was maintainable in
the Hon’ble High Court of Bombay.21

2. THE MANDATE OF MR. ADITYA NARAYAN AND MS. AISHWARYA GAUR SHOULD BE
TERMINATED AS ARBITRATORS.

A. MANDATE OF MR. ADITYA NARAYAN SHOULD BE TERMINATED.

It is contended before the Hon’ble Supreme Court that mandate of arbitrator Mr. Aditya
Narayan should be terminated. Before the amendments22 to The Arbitration and
Conciliation Act, 1996 only grounds available to challenge the appointment or terminate
the mandate of an arbitrator were given under Section 12, 13, 14 of the Arbitration Act. But
after the amendments to the Arbitration Act, major changes were done to provide for
neutrality of arbitrators23 and in order to achieve this under Section 12(5) it was laid down
that:

“Notwithstanding any prior agreement to the contrary, any person whose relationship,
with the parties or counsel or the subject-matter of the dispute, falls under any of the
categories specified in the Seventh Schedule shall be ineligible to be appointed as an
arbitrator:

Provided that parties may, subsequent to disputes having arisen between them, waive
the applicability of this sub-section by an express agreement in writing.” 24

This section gives out the grounds which give rise to justifiable doubts as to the independence or
impartiality of arbitrators and shall terminate the mandate of an arbitrator25. In present case,

19
¶ 10, Page 4, Moot Proposition, 9th IUMCC 2017.
20
Section 14 (1), Arbitration and Conciliation Act, 1996.
21
Surinder Pal Singh v. HPCL and Anr. 2007 (2) RAJ 364.
22
The Arbitration and Conciliation (Amendment) Bill, 2015.
23
Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665.
24
Section 12 (5), Arbitration and Conciliation Act, 1996.
25
HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Limited 240 (2017) DLT 132.

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the Sub Sections of Schedule 7 under which the mandate of arbitrator is challenged are
given as follows:

“2. The arbitrator currently represents or advises one of the parties or an affiliate of one
of the parties.”26

“5. The arbitrator is a manager, director or part of the management, or has a similar
controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in
the matters in dispute in the arbitration.”27

In the present case, Mr. Aditya Narayan is currently serving as Senior Partner at the Mumbai
office of DT Associates (a full service law firm), Also, Delhi office of DT Associates had
an agreement with another wholly owned subsidiary of KP Infrastructures.28 This clearly
raise justifiable doubts about the independence and impartiality of Mr. Aditya Narayan and
also this facts fall under Schedule 7 of the Arbitration Act.

In present case, even after the expressed disagreement of Sub-Contractor, Mr. Aditya
Narayan failed to make aforesaid disclosures and also unilaterally asserted that his
appointment is correct.29 So far as the question of justifiable doubt as to the independence
or impartiality is concerned the basis is whether the party to the dispute would have
reasonable apprehension in his mind about the independence of the arbitrator and not
whether the arbitrator thinks that he is capable of being impartial30 and also proving of
reasonable likelihood of bias is sufficient31

Independence and impartiality are hallmarks of any arbitration proceedings and in present
case Mr. Aditya Narayan failed to make disclosures, which was duly required by Section
11(8)(a)32 and 11(8)(b)33 and Section 12(1)(a)34

Also, Sub sections of Schedule 7 clears the situation

26
Sub-Section 2, Schedule VII, Arbitration and Conciliation Act, 1996.
27
Sub-Section 5, Schedule VII, Arbitration and Conciliation Act, 1996.
28
¶ 7, Page 3, Moot Proposition, 9th IUMCC 2017.
29
¶ 8, Page 3-4, Moot Proposition, 9th IUMCC 2017.
30
Justice S.B. Malik, Commentary on The Arbitration and Conciliation Act, 1996, (3rd edn. Universal Law
Publishing)
31
Satyendra Kumar v. Hind Construction Ltd. AIR 1952 Bom 227.
32
Section 11 (8) (a), Arbitration and Conciliation Act, 1996.
33
Section 11 (8) (b), Arbitration and Conciliation Act, 1996.
34
Section 12 (1) (a), Arbitration and Conciliation Act, 1996.

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“7. The arbitrator’s law firm currently has a significant commercial relationship with one
of the parties or an affiliate of one of the parties.”35

“8. The arbitrator regularly advises the appointing party or an affiliate of the appointing
party even though neither the arbitrator nor his or her firm derives a significant financial income
therefrom.”36

“11. The arbitrator is a legal representative of an entity that is a party in the arbitration.”37

14. The arbitrator regularly advises the appointing party or an affiliate of the appointing
party, and the arbitrator or his or her firm derives a significant financial income therefrom.”38

In present case Mr. Aditya Narayan was part of the DT associates which was the law firm
39
of KP Infrastructures Private Limited and was also deriving substantial income
therefrom. Which again gives rise to independence and impartiality. The rule against bias
is one of the fundamental principles of natural justice and this should applied to arbitral
proceedings. The relationship between the parties in such quasi-judicial proceedings is of
contractual nature and thus should be free of any bias and should independent and impartial
in nature and non-compliance of any of the above should lead to ineligibility of the
arbitrator and hence termination of his/her mandate.40

B. MANDATE OF AISHWARYA GAUR SHOULD BE TERMINATED ON THE GROUNDS OF

REASONABLE BIAS AND PARTIALITY IN THE ARBITRATION.

It is contended before the Hon’ble Supreme Court that the mandate of Ms. Aishwarya Gaur
should be terminated, as Ms. Aishwarya Gaur is ineligible for the post of arbitrator in
present case and there exists questions which raise justifiable doubts about the impartiality
of Ms. Aishwarya Gaur. Also, there exists a reasonable apprehension about the
independence of Aishwarya Gaur.

Aishwarya Gaur was appointed as a chief of Arbitral Tribunal by Mr. Ashish Singh41, who
after the amendments42to the Arbitration and conciliation Act, 1996 himself became

35
Sub-Section 7, Schedule VII, Arbitration and Conciliation Act, 1996.
36
Sub-Section 8, Schedule VII, Arbitration and Conciliation Act, 1996.
37
Sub-Section 11, Schedule VII, Arbitration and Conciliation Act, 1996.
38
Sub-Section 14, Schedule VII, Arbitration and Conciliation Act, 1996.
39
Supra Note 22.
40
Jivraj v. Hashwani 2011 UK SC 40.
41
¶ 4, Page 2, Moot Proposition, 9th IUMCC 2017.
42
The Arbitration and Conciliation (Amendment) Bill, 2015.

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ineligible due to operation of law. Therefore, if an arbitrator has become ineligible his
power to nominate someone else as an arbitrator will also be obliterated.43

It is contended that reiterated the maxim "qui facit per alium facit per se" and held that if
an ineligible arbitrator was allowed to nominate another arbitrator, it would tantamount to
carrying out the proceedings of arbitration himself.44

Due regard45 has been placed in case on following circumstances as was direction in the
case.

“The expression "due regard" means that proper attention to several circumstances
have been focused. The expression "necessary" as a general Rule can be broadly stated to
be those things which are reasonably required to be done or legally ancillary to the
accomplishment of the intended act. Necessary measures can be stated to be the reasonable
steps required to be taken.”46

In a Precedent case of Hon’ble Supreme Court the objection was raised before the Ld.
Arbitral tribunal, as the Respective Court in the matter had no jurisdiction.47 In the same
manner, In present case focus due regard has to be placed on appointment of Mr. Abhay
Patel as an arbitrator by Hon’ble HC of Calcutta and issue was raised by the Sub- Contractor
on the grounds that HC of Calcutta as Hon’ble HC lacked Jurisdiction to the same and
every other court other that Courts of Bombay were ousted specifically in the Clause
20(2)48 of the Arbitration agreement, which itself makes the appointment of Mr. Abhay
Patel wrong in nature.

Moreover, Mr. Ashish Singh being the MD of SSN Pvt. Ltd. was the nominated arbitrator
in the present case, and thus did not qualify the stringent requirements vested in Schedule
749 of the Act.

Now if the look at the legislative intent of the Schedule 750, it clearly envisages that there
should be no connection between the parties and arbitrators, and pursuing to this if we look

43
TRF Ltd. v. Energo Engineering Projects Ltd. (2017) 7 SC ALE 162.
44
Id.
45
Pg. 590, Henry Campbell Black, Black’s Law Dictionary (4th edn. West Publishing Co.)
46
Reliance Industries Ltd. & Ors v. Union of India (2015) 10 SCC 213.
47
Rajinder Krishan Khanna & Ors. v. Union of India & Ors. AIR 1999 SC 463.
48 nd
2 Citation, Page 2, Moot Proposition, 9th IUMCC 2017.
49
Schedule VII, Arbitration and Conciliation Act, 1996.
50
Id.

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [ARGUMENTS ADVANCED]

at the appointment of Mr. Ashish Singh it can be said he was not qualified according to
amended act any appointment by him thus raises justifiable doubts on the independence
and impartiality of Ms. Aishwarya Gaur ; hence, it is contended that there was connection
of arbitrator Mr. Ashish Singh with the party which was not in accordance with Schedule
7 of Arbitration Act and he appointed Aishwarya Gaur while he became ineligible pursuant
to amendments, therefore, mandate of Aishwarya Gaur should be terminated considering
all the arguments advanced.

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION - 2017 [PRAYER FOR RELIEF]

PRAYER FOR RELIEF

In light of facts presented, questions raised, arguments advanced and authorities cited, Counsels
for the Petitioner most humbly pray before this Hon’ble Court, to adjudge and declare that:

1. The Hon’ble High Court of Bombay was not correct in dismissing the petition filed by
Sub-Contractor on the grounds of maintainability.

2. The mandate of Mr. Aditya Narayan and Ms. Aishwarya Gaur should be terminated as
arbitrators.

The Court being satisfied may also make any such order as it may deem fit in the light of
Justice, Equity and Good conscience.

And for this act of kindness the Petitioner shall as duty bound ever humbly pray.

Respectfully submitted,

Sd/-

(Counsel for Petitioner)

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