Te

am Code: W19

IN THE SUPREME COURT OF INDIA

IN THE MATTER OF:

TEL SHODHAN LIMITED.......................................PETITIONER

v.

GOVERNMENT OF RAJASTHAN & ORS.………….…...RESPONDENT

[CIVIL APPEAL NO.08/2017]

ALONG WITH

MAN POWER SUPPLY LIMITED……………….…PETITIONER

v.

OGX & ORS.……...……………………………….........RESPONDENT

[APPEAL NO.19/2017]

ALONG WITH

OIL INDIA LIMITED…………………………………PETITIONER

v.

TEL SHODHAN LIMITED.........……………RESPONDENT

[CIVIL APPEAL NO.309/2017]

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSELS ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................

STATEMENT OF JURISDICTION............................................................................................

STATEMENT OF FACTS..........................................................................................................

ARGUMENTS PRESENTED.....................................................................................................

SUMMARY OF ARGUMENTS.................................................................................................

ARGUMENTS ADVANCED.....................................................................................................

PRAYER………………………………………………………………………………………

2
 INDEX OF AUTHORITIES

Cases:
 World Sport Group (Mauritius) Ltd v MSM Satellite (Singapore) Pte. Ltd………….12
 Sasan Power Ltd v. North America Coal Corporation India Pvt. Ltd………………..13
 Atlas Exports Industries v. Kotak & Company…………………………………………..13
 Fuerst Day Lawson Ltd v. Jindal Exports………………………………………………..14
 Enercon (India) Private Limited v. Enercon GMBH…………………………………..14
 Chatterjee Petroleum v. Haldia Petro Chemicals……………………………………...14
 Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc (“BALCO”)
…………………………………………………………………………………16
 Bhatia International v Bulk Trading S.A & Anr……………………………………….16
 Venture Global Engineering v Satyam Computer Services Ltd and Anr…………..16
 U.P. Coop. Federation Ltd. v. Singh Consultants and Engineers(P) ltd…………..19
 U.P. State Sugar Corpn. v. Sumac International Ltd…………………………………19
 Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co………………………..21
 Deutsche Post Bank Home Finance Ltd. v Taduri Sridhar & Anr………………….23
 Indowind Energy Ltd. v Wescare Ltd. & Anr………………………………………….23
 P.R. Shah Shares and Stock Brokers v B.H.H. Securities……………………………24
 Shoney Sanil v Coastal Foundation…………………………………………………….24
 Chennai Container Terminal Pvt. Ltd. v Union of India…………………………….25
 S.N. Prasad v Monnet Finance Ltd. & Ors.,…………………………………………..26
 Renusagar Power Co. Ltd. v. General Electric Co…………………………………..27
 Oil & Natural Gas Corp. v. SAW Pipes Ltd…………………………………………..28
 Associate Builders v. Delhi Development Authority………………………………...28
 ONGC Ltd. v. Western Geco International Ltd……………………………………...28
 TDM Infrastructure Pvt. Ltd. v. UE Development India Pvt. Ltd…………………29
 Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt. Ltd..29

3
 Constitutional Provisions:
 Constitution of India, 1950 Art. 19(1) (g).

Publications:
 P. Anklesaria, “Scope of the expression public policy in domestic and foreign awards”
9 AIR (2005) at 310.

Statutes:
 Arbitration and Conciliation Act, 1996
 Companies Act, 1956
 Companies Act, 2013
 Indian Contract Act, 1872

Treatises:
 Black’s Law Dictionary
 Legal Dictionary

4
 STATEMENT OF JURISDICTION

Tel Shodhan Limited has approached the Supreme Court under the Article 136 of
the Constitution of India.

Man Power Supply Limited has approached the Supreme Court under the Article
136 of the Constitution of India.

Oil India Limited has approached the Supreme Court under Civil Appeal no.
309/2017.

5
 STATEMENT OF FACTS
I. For Petroleum Exploration & Development (“PED”) the state government signed
a multiparty Petroleum Exploration & Development Agreement (“PEDA”) with
Desert Land Petroleum Resource Corporation (“DLPRC”), OGX, Tel Shodhan
Limited (“TSL”), and Oil India Limited (“OIL”). All the parties are jointly
known as Barmer Bikaner Consortium (“Consortium”). DLPRC is a resident
Company of United Kingdom OGX is Brazilian publicly listed oil and gas
company, TSL is a company registered under the Companies Act, 1956 and Oil
India Limited (OIL) is a Government of India enterprise.
II. PEDA, inter alia, provided for resolution of disputes between the parties by way
of arbitration to be administered by International Chambers of Commerce
(“ICC”) in London, England, under laws of the United Kingdom. The Clause
19(1) provides that “Law of the United Kingdom and international customary
commercial laws will be applicable on disputes arising out of agreement between
the parties.”
III. In terms of the agreement, man power supply agreement was executed between
DLPRC and Man Power Supply Limited (“MPSL”), a company registered under
the Companies Act, 2013 and engaged in supplying semi-skilled and skilled
workers. This agreement also contained an arbitration clause having seat of
arbitration in ICC, London. The man power supplied by MPSL is used for the
Consortium works but payment was made by DLPRC only.
IV. In 2016, TSL initiated an arbitration proceeding in ICC, London against OIL and
the Government of Rajasthan. The issue was related to encashment of Bank
Guarantees and deduction of Service Tax on the services provided under the
PEDA by TSL to OIL and State of Rajasthan. On receipt of arbitration proceeding
notice, the Govt. of Rajasthan filed an anti-arbitration injunction suit before the
District Court, Jaipur. However, OIL agreed to get involved in arbitration
proceeding in London. The Govt. of Rajasthan contended that the agreement
between the Govt., OIL and TSL pertaining to applicability of law of foreign
country on dispute arising out of the agreement and on arbitration proceedings is
void under Section 23 of Indian Contract Act as it is against the ‘public policy’ of
the nation. The court granted the injunction in favour of the Government and also
declared the arbitration clause and Clause 19(1) void as it is applicable on disputes
between Govt. of Rajasthan, OIL and TSL only. The court observed that under the

6
 public policy of the country Indian nationals are not permitted to derogate from
Indian law.
V. Aggrieved by the decision of the District Court, TSL filed a Special Leave
Petition (“SLP”) before the Supreme Court. The Supreme Court admitted the
SLP, as the case involves substantial question of law and may require revisit of
earlier decision passed by it on similar issues.
VI. Meanwhile, OGX initiated arbitration proceedings against DLPRC and MPSL for
compensation for damage occurred due to negligence of workers. The damage
was allegedly caused by the workers engaged by DLPRC through MPSL. In
response to it, MPSL filed an injunction suit before District Court with contention
that MPSL does not have any direct relation with OGX, and there isn’t any
arbitration agreement between them. It argued that merely because workers of
MPSL are engaged for consortium as whole does not bring MPSL into the ambit
of disputes under PEDA.
VII. The District Court rejected the suit filed by MPSL on the ground that seat of
arbitration is outside India thus such suit cannot be entertained by Indian courts.
Further, the court ruled that there is no prohibition under law in making sub-
contractors like MPSL a party in arbitration proceeding between leading parties of
a contract. Aggrieved, MPSL also filed an SLP before the Supreme Court. The
Supreme Court admitted the SLP, as the case involves substantial question of law
and requires revisit of earlier decision passed by it on similar issues.
VIII. Before the Supreme Court decided the above SLPs, arbitrators of ICC, London
issued an award in the proceeding between TSL and OIL. The award was in the
favour of TSL. Taking note of the legal proceeding between TSL and the Govt. of
Rajasthan, OIL filed an application under Sec. 34 of the Arbitration and
Conciliation Act, 1996 for setting aside the award. High Court of Rajasthan
rejected the application of OIL and ruled that there is no bar under the Indian law
in deciding the seat of arbitration outside India and applicability of foreign law on
Indian nationals in international commercial arbitration wherein at least one party
is foreign national or company. OIL filed a regular appeal before the Supreme
Court against the decision of High Court, which has been admitted by the
Supreme Court. The Supreme Court has decided to hear all the three appeals
together.

7
 ARGUMENTS PRESENTED

I. THE DECISION OF THE DISTRICT COURT IS PER-IN- CURIUM OF

LAWS ENACTED BY THE PARLIAMENT AND LAWS DECLARED BY
THE SUPREME COURT IN RELATION TO CHOOSING THE SEAT OF
ARBITARTION OUTSIDE INDIA, CHOICE OF LAW GOVERNING THE
PROCEEDINGS, AND SUBSTANTIVE LAWS OF GOVERNING THE
CONTRACT.

II. THE DECISION OF THE DISTRICT COURT AND ACTION OF THE

GOVERNMENT VIOLATES TSL’S FUNDAMENTAL RIGHT OF TRADE
AND OCCUPATION GUARANTEED UNDER ART. 19 OF THE
CONSTITUTION.

III. MPSL CANNOT BE MADE A PARTY TO ARBITRATION

PROCEEDINGS.

IV. THE HIGH COURT IS NOT CORRECT IN SETTING ASIDE THE

APPLICATION UNDER S. 34 OF THE ARBITRATION AND
CONCILIATION ACT OF 1996.

8
 SUMMARY OF ARGUMENTS

THE DECISION OF THE DISTRICT COURT IS PER-IN CURIUM OF

LAWS ENACTED BY THE PARLIAMENT AND LAWS DECLARED BY
THE SUPREME COURT IN RELATION TO CHOOSING THE SEAT OF
ARBITRATION OUTSIDE INDIA, CHOICE OF LAW GOVERNING THE
PROCEEDINGS, AND SUBSTANTIVE LAWS OF GOVERNING THE
CONTRACT.

The decision of the District Court that Indian nationals are not permitted to
derogate from Indian law since it is against the public policy of the country is
violative of Section 45 of the Arbitration and Conciliation Act, 1996. The decision
is also violative of the principle of party autonomy guaranteed to the parties under
arbitration. Also, choosing a foreign seat of arbitration by two Indian parties is not
violative of the public policy of India.

THE DECISION OF THE DISTRICT COURT AND ACTION OF THE

GOVERNMENT VIOLATES TSL’S FUNDAMENTAL RIGHT OF TRADE
AND OCCUPATION GUARANTEED UNDER ART. 19 OF THE
CONSTITUTION.

Tel Shodhan Limited fundamental right is violated, in the commercial world that a
contract between two parties requires one to provide a performance guarantee to
the other it is settled law that an injunction cannot be obtained against the
encashment of a bank guarantee if, on its terms, that guarantee is unconditional.
unconditional guarantees have been given or accepted the beneficiary is entitled
to realise such a bank guarantee in terms thereof irrespective of any pending
disputes, so the action of the government is unlawful and fundamental right and it
violates Tel Shodhan Limited fundamental right which is given under article 19 of
the constitution.

9
MPSL CANNOT BE MADE A PARTY TO ARBITRATION
PROCEEDINGS.

There was no agreement clause between Man Power Supply Limited (MPSL) and
OGX. MPSL is a separate party. A man power supply agreement was executed
between DLPRC and MPSL.MPSL was engaged in supplying semi-skilled and
skilled workers. The agreement contained an arbitration clause having seat of
arbitration in ICC, London. The man power supplied by MPSL is used for
consortium works but payment was made by DLPRC only. The main work of the
MPSL is to supply man power. MPSL provided skilled and semi skilled workers.
Once they have furnished their obligation to provide workers to DLPRC their
work is completed. The purpose of the contract is fulfilled. After the workers are
provided to DLPRC and DLPRC engaged the workers to OGX then control by
MPSL on the workers will no longer be exercised. They are the employees of the
OGX Company, because they are carrying out the work for OGX. If any
negligence arises, then the liability cannot be imposed on MPSL.

MPSL had no direct relation with OGX. The workers were provided to OGX by
DLPRC through MPSL. There also exists a separate arbitration clause between
MPSL and DLPRC but, there was no agreement between OGX and MPSL.Hence
MPSL cannot be made a party in the arbitration proceeding.

The control test in vicarious liability

MPSL in this case provided a service to DLPRC i.e., through providing them with
workers. Meanwhile, DLPRC engaged the workers to OGX. Here, the test of
control i.e., the supervision of work lies on OGX. It is the duty of the master to
supervise and take onus of the employees work. When the workers are required to
carry out the work for OGX, they can be regarded as the employees of OGX
Company. MPSL cannot exercise supervision and control over the workers
carrying out the work for OGX. Hence, the test of control with respect to MPSL
fails. The sole work of MPSL was to provide a “SERVICE” to DLPRC under an
agreement. Hence, MPSL is an independent party and an independent contractor,
and MPSL cannot be made a party in the arbitration proceeding.

10
THE HIGH COURT WAS NOT CORRECT IN SETTING ASIDE THE
APPLICATION UNDER SECTION 34 OF THE ARBITRATION AND
CONCILIATION ACT, 1996

The High Court was incorrect in its judgment of setting aside the application
because the award issued is against the public policy of India under section 34 of
the Arbitration and Conciliation Act, 1996. Also, the arbitration clause of PEDA
is void as under section 2(1)(f) of Arbitration and Conciliation Act, 1996.

11
 ARGUMENTS ADVANCED

I) THE DECISION OF THE DISTRICT COURT IS PER-IN CURIUM OF

LAWS ENACTED BY THE PARLIAMENT AND LAWS DECLARED BY
THE SUPREME COURT IN RELATION TO CHOOSING THE SEAT OF
ARBITRATION OUTSIDE INDIA, CHOICE OF LAW GOVERNING THE
PROCEEDINGS, AND SUBSTANTIVE LAWS OF GOVERNING THE
CONTRACT.
Indian parties are allowed to have a foreign seat of arbitration, and can chose a
foreign substantive law. The decision of the District Court that Indian nationals
are not permitted to derogate from Indian law since it is against the public policy
of the country, is per-in curium of the laws enacted by Parliament and laws
declared by the Supreme Court. This is because:

VIOLATION OF SECTION 45 OF THE ARBITRATION AND

CONCILIATION ACT, 1996

The Section states:

“Power of judicial authority to refer parties to arbitration. –Notwithstanding

anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908) a
judicial authority, when seized of an action in a matter in respect of which the
parties have made an agreement referred to in section 44, shall, at the request of
one of the parties or any person claiming through or under him, refer the parties
to arbitration, unless it finds that the said agreement is null and void, inoperative
or incapable of being performed.”

A judicial authority under Section 45 of the Act has been authorized to refer those
parties to arbitration, who under Section 44 of the Act have entered in an
arbitration agreement. The Section is based on Article II (3) of New York
Convention and with an in-depth reading of the Section 45 of the Act, it can be
clearly understood that it is mandatory for the judicial authority to refer parties to
the arbitration.

12
Section 45 of the Act starts with a non obstante clause, giving it an overriding
effect to the provision and making it prevail over anything contrary contained in
Part I or the CPC. It gives the power to the Indian judicial authorities to
specifically enforce the arbitration agreement between the parties.

The Supreme Court in World Sport Group (Mauritius) Ltd v MSM Satellite
(Singapore) Pte. Ltd.1 has opined that “language in Section 45 of the Arbitration
Act was derived from the New York Convention on the Enforcement of Foreign
Arbitral Awards and therefore the interpretation accorded to the corresponding
provision in the New York Convention internationally should be adopted.” The
court recognized that it “cannot refuse to refer the parties to arbitration as
provided in Section 45 of the Act.” It was also held that no formal application is
necessary to request a court to refer the matter to arbitration under Section 45 of
the Act. In case a party so requests even through affidavit, a court is obliged to
refer the matter to arbitration.

Therefore, the decision of the District court in granting the anti arbitration
injunction suit is violative of Section 45 of the Act. The reason of the court that
the arbitration clause is void because it is against the public policy of India is also
per-in curium of laws declared by the Supreme Court.

CHOOSING A FOREIGN SEAT OF ARBITRATION BY TWO INDIAN

PARTIES IS NOT VIOLATIVE OF PUBLIC POLICY OF INDIA

As held by the District Court, choosing a foreign seat of arbitration by two Indian
parties is violative of Section 23 of the Indian Contract Act, 1872. This is not so.
Recently, in the case of Sasan Power Ltd v. North America Coal Corporation
India Pvt. Ltd.,2 the Madhya Pradesh High Court opined that two Indian parties
may conduct arbitration in a foreign seat under English law.

The Madhya Pradesh High Court primarily relied on the ruling in the case of
Atlas Exports Industries v. Kotak & Company3, wherein the Supreme Court ruled
that it was not against the public policy of India when two Indian parties contract

1
Swiss Timing Limited v. Organizing Committee, Commonwealth Games 2010, Delhi, 2014 (6)
SCC 677.
2
Judgment in First Appeal No. 310/2015 dated September 11, 2015.
3
(1999) 7 SCC 61.

13
to have a foreign-seated arbitration.; although, the judgment was in context of the
1940 Arbitration Act. An appeal has been filed challenging this decision and is
pending adjudication before the Supreme Court.

The Madhya Pradesh High Court, while, placing reliance on the judgment in Atlas
Exports, observed that Section 28 of the Indian Contract Act, 1872 read with the
Exception 1 would not be a bar to a foreign seated arbitration. Further, it was
observed that when two Indian parties had willingly entered into an agreement in
relation to arbitration, the contention that a foreign seated arbitration would be
opposed to Indian public policy was untenable. The Section 28 of the Contract
Act, along with Exception 1 states:

“Agreements in restraint of legal proceedings void. —  [Every agreement,—

(a). by which any party thereto is restricted absolutely from enforcing his rights
under or in respect of any contract, by the usual legal proceedings in the ordinary
tribunals, or which limits the time within which he may thus enforce his rights; or

(b). which extinguishes the rights of any party thereto, or discharges any party
thereto, from any liability, under or in respect of any contract on the expiry of a
specified period so as to restrict any party from enforcing his rights, is void to
that extent.]

Exception 1.— Saving of contract to refer to arbitration dispute that may arise.
—This section shall not render illegal a contract, by which two or more persons
agree that any dispute which may arise between them in respect of any subject or
class of subjects shall be referred to arbitration, and that only the amount
awarded in such arbitration shall be recoverable in respect of the dispute so
referred.”

The Court stated that the principle laid down in Atlas Exports, would, in light of
the decision in Fuerst Day Lawson Ltd v. Jindal Exports 4, wherein it was
observed by the Supreme Court that there was not much difference between pro-
visions of the Arbitration and Conciliation Act, 1996 and the Indian Arbitration
Act, 1940 (repealed); be binding precedent in relation to the issue at hand.

4
(2011) 8 SCC 333.

14
The Court observed that the scheme of the Arbitration and Conciliation Act, 1996
indicated that the classification of an arbitration as an international commercial
arbitration depended only on the nationality of the parties, which is only relevant
for the appointment arbitrators as contemplated under Section 11 (“appointment
of arbitrators”) of the Arbitration and Conciliation Act, 1996.

The Court, relying upon Enercon (India) Private Limited v. Enercon GMBH5
and Chatterjee Petroleum v. Haldia Petro Chemicals6, was of the opinion that
where the parties had agreed to resolve their disputes through arbitration, the
courts were to give effect to the intention of the parties and interfere only when
the agreement was null or void or inoperative.

The Court observed that once parties by mutual agreement had agreed to resolve
their disputes by a foreign-seated arbitration, Part I of the Arbitration and
Conciliation Act, 1996 would not apply. Further where the agreement fulfilled the
requirements of Section 44, provisions of Part II of the Arbitration and
Conciliation Act, 1996 would apply. It was held that a court, under Section 45,
would have to refer parties to arbitration where it was found that the agreement
was not null or void or inoperative.

Thus, as mentioned in the judgment of the Madhya Pradesh High Court, choosing
a foreign seat of arbitration by two Indian parties does not violate the public
policy of India under Section 23 of the Indian Contract Act, and can be tackled
when read with Section 28 and Exception 1 of the same Act. Also, the notion of
violation of public policy merely on the ground of choosing of foreign seat of
arbitration is “untenable”.

VIOLATION OF PARTY AUTONOMY

A basic principle in international commercial arbitration is that of party autonomy.

It is described by the authors of Redfern and Hunter in the following terms:

"Party autonomy is the guiding principle in determining the procedure to be

followed in an international commercial arbitration. It is a principle that has been
endorsed not only in national laws, but by international arbitral institutions and
5
2014 (5) SCC 1.
6
2013 ARBLR 456 (SC).

15
organisations. The legislative history of the Model Law shows that the principle
was adopted without opposition..." 7

Redfern and Hunter go on to cite article 19(1) of the UNCITRAL Model Law
(Model Law) which provides:

"Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings".

A broad and general provision is also found in section 1(b) of the Arbitration Act
1996 (UK) which states that the provisions of Part 1 of the Act are founded on
stated principles including:

“(b) the parties should be free to agree how their disputes are resolved, subject
only to such safeguards as are necessary in the public interest.”

In relation to procedure, section 34(1) achieves a similar result to article 19(1) of

the Model Law. Section 34(1) provides:

“It shall be for the tribunal to decide all procedural and evidential matters,
subject to the right of the parties to agree any matter.”

The Arbitration and Conciliation Act, 1996 permits the parties to decide the place
of arbitration. Post the decision of the Supreme Court in Bharat Aluminium
Company v. Kaiser Aluminium Technical Services Inc (“BALCO”) 8, Indian
arbitration law has been made seat-centric. The Constitutional Bench of the
Supreme Court on September 6, 2012 in its decision, after laudable consideration
of jurisprudence laid down by various Indian & foreign judgments and writings of
renowned international commercial arbitration authors, ruled that findings by the
9
Court in its judgment in Bhatia International v Bulk Trading S.A & Anr and
Venture Global Engineering v Satyam Computer Services Ltd and Anr 10 were
incorrect. It concluded that Part I of the Arbitration and Conciliation Act, 1996
had no application to arbitrations which were seated outside India, irrespective of

7
Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International
Commercial Arbitration, 4th Edition, 2004 at p 315.
8
(2012) 9 SCC 552.
9
(2004) 2 SCC 105.
10
(2008) 4 SCC 190.

16
the fact whether parties chose to apply the Act or not. Hence getting Indian law in
line, with the well settled principle recognized internationally that “the seat of
arbitration is intended to be its center of gravity”. The Court interpreting Section
20 of the Act pertaining to place/seat of arbitration has clarified that only “if seat
of arbitration is India, parties are free to choose any place or venue within India
for conducting the arbitration proceedings” The Court following the principles of
literal interpretation and in regard of the legislative intention held that
applicability of Part I of the Act is limited only to arbitrations held in India and
omission of the word “only” from Section 2(2) has no relevance. It further
observed that the present wording of the Act does not deviate from the
territoriality principle as accepted under Model Law and absence of “only” in the
said provision does not change the content/intention of the legislation. It was
observed that it is not permissible for the court while construing a provision to
reconstruct the provision. The Court cannot produce a new jacket, while ironing
out the creases of the old one.

The Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”),

which came into effect from October 23, 2015 and is applicable prospectively to
the arbitral proceedings commenced after October 23, 2015 clarifies that Part I of
the Act will not be applicable in foreign seated arbitrations, save and except the
standalone provisions. Part I of the Act will not apply in case of foreign seated
arbitration except Sections 9, 27 and 37 unless a contrary intention appears in the
arbitration agreement.

Thus, the decision of the Court abstaining Indian parties from choosing a foreign
substantive law and foreign law to govern arbitration proceedings is against the
principle of party autonomy guaranteed by Indian legislature, and the Supreme
Court itself.

II. THE DECISION OF THE DISTRICT COURT AND ACTION OF THE

GOVERNMENT VOILATES TSL’S FUNDAMENTAL RIGHT OF TRADE
AND OCCUPATION GUARENTEED UNDER ARTICLE 19 OF THE
CONSTITUTION.

17
 Tel Shodhan Limited initiated an arbitration proceeding in international chambers
of commerce, Landon against Oil India Limited and the government of Rajasthan.
the issue was related to Encashment of bank guarantees and deduction of service
tax on the services provided under Petroleum Exploration and Development
Agreement by Tel Shodhan Limited to Oil India Limited and state of Rajasthan .
but government of Rajasthan filed an anti-arbitration injunction suit before the
district court, Jaipur. Government of Rajasthan contended that the agreement
between the govt.., Oil India Limited and Tel Shodhan Limited pertaining to
applicability of law of foreign country on dispute arising out of the agreement and
arbitration proceedings is void under section 23 of Indian contract act as it is
against the public policy of the nation and the court observed that under the public
policy of the country Indian nationals are not permitted to derogate from Indian
law. The court granted the injunction in favour of government. Aggrieved by the
decision of the district court, Tel Shodhan Limited filed a Special Leave Petition
before the Supreme court on the ground,
 Decision of the District Court and the action of the government violates its
fundamental right of trade and occupation under article 19 of the constitution
etc.
(1) ENCASHMENT OF BANK GUARANTEES ON THE SERVICES PROVIDED
UNDER PETROLEUM EXPLORATION AND DEVELOPMENT
AGREEMENT BY TEL SHODHAN LIMITED TO STATE OF RAJASTHAN
Often, it so happens in the commercial world that a contract between two parties
requires one to provide a performance guarantee to the other. Accordingly, the party
provides a bank guarantee; but the guarantee itself is expressed to be “unconditional”
and “irrevocable”. The understanding of the parties is that the guarantee will be
utilized and encashed if and only if a breach is committed. Some dispute arises
between the parties; and a breach is alleged (and perhaps, vehemently denied).

In general, it is settled law that an injunction cannot be obtained against the

encashment of a bank guarantee if, on its terms, that guarantee is unconditional. The
only exceptions are fraud and special equities/irretrievable injury. The logic behind
this is that the guarantee must be enforced on its own terms; and if the guarantee is
stated to be ‘unconditional’ other instruments/documents should not be used in order
to imply any conditions on the encashment of the guarantee.
18
The bank guarantees which provided that they are payable by the guarantor on
demand is considered to be an unconditional bank guarantee. When in the course of
commercial dealings, unconditional guarantees have been given or accepted the
beneficiary is entitled to realise such a bank guarantee in terms thereof irrespective of
any pending disputes…

When in the course of commercial dealings an unconditional bank guarantee is given

or accepted, the beneficiary is entitled to realise such a bank guarantee in terms
thereof irrespective of any pending disputes. The bank giving such a guarantee is
bound to honour it as per its terms irrespective of any dispute raised by its customer.
The very purpose of giving such a bank guarantee would otherwise be defeated. The
courts should, therefore, be slow in granting an injunction to restrain the realisation of
such a bank guarantee. The courts have carved out only two exceptions. A fraud in
connection with such a bank guarantee would vitiate the very foundation of such a
bank guarantee. Hence, if there is such a fraud of which the beneficiary seeks to take
advantage, he can be restrained from doing so. The second exception relates to cases
where allowing the encashment of an unconditional bank guarantee would result in
irretrievable harm or injustice to one of the parties concerned. Since in most cases
payment of money under such a bank guarantee would adversely affect the bank and
its customer at whose instance the guarantee is given, the harm or injustice
contemplated under this head must be of such an exceptional and irretrievable nature
as would override the terms of the guarantee and the adverse effect of such an
injunction on commercial dealings in the country. The two grounds are not
necessarily connected, though both may coexist in some cases.

The Supreme Court in the case of U.P. Coop. Federation Ltd. v. Singh Consultants
and Engineers(P) ltd11 has held that in order to restrain the operation either of
irrevocable letter of credit or of confirmed letter of credit or of Bank Guarantee, there
should be serious dispute and there should be good prima facie case of fraud and
special equities in the form of preventing irretrievable injustice between the parties.
Otherwise, the very purpose of Bank Guarantees would be negative and the fabric of

11
(1988) 1 SCC 174.

19
trading operation will get jeopardized. The Supreme Court further held that
commitments of banks must be honoured free from interference by the courts.
Otherwise, trust in commerce internal and international would be irreparably
damaged. It is only in exceptional cases, that is, to say in cases of fraud and
irretrievable injustice that the court could interfere.

The Supreme Court in the case of U.P. State Sugar Corpn. v. Sumac
International Ltd.12, held that when in the course of commercial dealings an
unconditional Bank Guarantee is given or accepted, the beneficiary is entitled to
realize such a Bank Guarantee in terms thereof irrespective of any pending
disputes. The bank giving such a guarantee is bound to honour it as per its terms
irrespective of any dispute raised by its customer. The very purpose of giving such
a Bank Guarantee would otherwise be defeated. The courts should be, therefore,
slow in granting an injunction to restrain the realization of such a Bank Guarantee.
The courts have carved out only two exceptions. A fraud in connection with such a
Bank Guarantee, which would vitiate the very foundation of such a Bank
Guarantee. Hence, if there is such a fraud of which the beneficiary seeks to take
advantage, he can be restrained from doing so. The second exception relates to
cases where allowing the encashment of an unconditional Bank Guarantee would
result in irretrievable harm or injustice to one of the parties concerned. Since in
most cases payment of money under such a Bank Guarantee would adversely affect
the bank and its customer at whose instance the guarantee is given, the harm or
injustice contemplated under this head must be of such an exceptional and
irretrievable nature as would override the terms of the guarantee and the adverse
effect of such an injunction on commercial dealings in the country.
The Supreme Court in U.P. State Sugar Corpn. (Supra) further held that where
fraud is alleged it must be a clear fraud of which the bank has notice. The fraud
must be of an egregious nature such as to vitiate the entire underlying transaction.
Explaining the kind of fraud to be fraud of a nature that may absolve a bank from
honouring its guarantee. The wholly exceptional case where an injunction may be
granted is where it is proved that the bank knows that any demand for payment
already made or which may thereafter be made will clearly be fraudulent. However,

12
(1997) 1 SCC 568.

20
 the evidence must be clear both as to the fact of fraud and as to the bank's
knowledge.
On the question of irretrievable injury, the Supreme Court in U.P. State Sugar
Corpn. (Supra), held that to avail of this exception, the party seeking an injunction
would have to show that exceptional circumstances exist which make it impossible
for the guarantor to reimburse himself if he ultimately succeeds and this will have
to be decisively established. Clearly, a mere apprehension that the other party will
not be able to pay, is not enough. The existence of any dispute between the parties
to the contract is not a ground for issuing an injunction to restrain the enforcement
of Bank Guarantees. There must be a fraud in connection with the Bank Guarantee.

The Supreme Court further in the case of Himadri Chemicals Industries Ltd. v.
Coal Tar Refining Co., 13after considering various Supreme Court decisions laid
down the following principles for grant or refusal to grant of injunction to restrain
enforcement of a Bank Guarantee or a letter of credit:
a) While dealing with an application for injunction in the course of
commercial dealings, and when an unconditional Bank Guarantee or letter
of credit is given or accepted, the beneficiary is entitled to realize such a
Bank Guarantee or a letter of credit in terms thereof irrespective of any
pending disputes relating to the terms of the contract.
b) The bank giving such guarantee is bound to honour it as per its terms
irrespective of any dispute raised by its customer.
c) The courts should be slow in granting an order of injunction to restrain the
realization of a Bank Guarantee or a letter of credit.
d) Since a Bank Guarantee or a letter of credit is an independent and a
separate contract and is absolute in nature, the existence of any dispute
between the parties to the contract is not a ground for issuing an order of
injunction to restrain enforcement of Bank Guarantees or letters of credit.
e) Fraud of an egregious nature which would vitiate the very foundation of
such a Bank Guarantee or letter of credit and the beneficiary seeks to take
advantage of the situation.
III. MPSL CANNOT BE MADE A PARTY TO ARBITRATION
PROCEEDINGS.
13
(2007) 8 SCC 110.

21
I. PRIVITY OF CONTRACT

“A legal document that states that contracts give rights and imposes
liabilities on the concerned parties. Only they are given the right to sue
each other according to the contract terms.”

There was no agreement clause between Man Power Supply Limited

(MPSL) and OGX. MPSL is a separate party.
A man power supply agreement was executed between DLPRC and
MPSL.MPSL was engaged in supplying semi-skilled and skilled workers.
The agreement contained an arbitration clause having seat of arbitration in
ICC, London. The man power supplied by MPSL is used for consortium
works but payment was made by DLPRC only. The main work of the
MPSL is to supply man power. MPSL provided skilled and semi skilled
workers. Once they have furnished their obligation to provide workers to
DLPRC their work is completed. The purpose of the contract is fulfilled.
After the workers are provided to DLPRC and DLPRC engaged the
workers to OGX then control by MPSL on the workers will no longer be
exercised. They are the employees of the OGX Company, because they are
carrying out the work for OGX. If any negligence arises, then the liability
cannot be imposed on MPSL.

MPSL had no direct relation with OGX. The workers were provided to
OGX by DLPRC through MPSL. There also exists a separate arbitration
clause between MPSL and DLPRC but, there was no agreement between
OGX and MPSL.Hence MPSL cannot be made a party in the arbitration
proceeding.

CONCEPT OF VICARIOUS LIABILTY

Vicarious liability” is “the imposition of liability on one person for the

actionable conduct of another, based solely on the relationship between the
two persons; indirect or imputed legal responsibility for the acts of
another.

22
 THE CONTROL TEST IN VICARIOUS LIABILITY

MPSL in this case provided a service to DLPRC i.e., through providing

them with workers. Meanwhile, DLPRC engaged the workers to OGX.
Here, the test of control i.e., the supervision of work lies on OGX. It is the
duty of the master to supervise and take onus of the employees work.
When the workers are required to carry out the work for OGX, they can be
regarded as the employees of OGX Company. MPSL cannot exercise
supervision and control over the workers carrying out the work for OGX.
Hence, the test of control with respect to MPSL fails. The sole work of
MPSL was to provide a “SERVICE” to DLPRC under an agreement.
Hence, MPSL is an independent party and an independent contractor, and
MPSL cannot be made a party in the arbitration proceeding.

POSITION OF THIRD PARTIES UNDER THE INDIAN ARBITRATION ACT,

1996

The issue regarding the position of third parties under the Indian
Arbitration and Conciliation Act, 1996 needs to be looked into with respect
to sections 7, 8, 9, 11, 34, 44 and 45. Section 7 of the 1996 Act which
provides for an arbitration agreement, when read with section 8 of the 1996
Act provides for a judicial authority to refer the parties to arbitration, who
have, in a well defined legal relationship agreed to arbitrate any dispute
arising between them to. The question which often arises while interpreting
section 7 with section 8 is that whether a third party which is not a
signatory to the arbitration agreement and not in a well defined legal
relationship can ask a judicial authority before whom an action has been
brought to refer the matter to arbitration.

A certain amount of clarity regarding the position of third parties was

provided by the Supreme Court in Deutsche Post Bank Home Finance
Ltd. v Taduri Sridhar & Anr.14 wherein it was held by the Court that in
case of tripartite agreement between Respondents and Appellant, where the
Respondent had not raised any dispute against the Appellant with reference

14
AIR 2011 SC 1899, (2011) 11 SCC 375, 2011 (2) Arb LR 1 (SC).

23
 to an arbitration agreement, the Appellant could not be made a party to the
arbitration. On appeal, the Supreme Court held that the first respondent
could not involve the appellant as a party in regard to disputes arising out
of claims made by the first respondent against the second respondent. If
there had been an arbitration clause in the tripartite agreement among the
first Respondent, developer and the Appellant, and if the first Respondent
had made claims or raised disputes against both the developer and the
Appellant with reference to such tripartite agreement, the position would
have been different. In Indowind Energy Ltd. v Wescare Ltd. & Anr.15, the
same position was adopted by the Supreme Court that as per the definition
of ‘party’ u/s 2(h) read with sections 7 and 2(b), Indowind, not being a
signatory to the arbitration agreement between Wescare and Subuthi, could
not be made a party to the arbitration proceedings. Indowind and Wescare
were two different companies having a distinct legal identity from the
other. Since Indowind had not entered into any arbitration agreement with
Wescare, it could not be made a party to the proceedings commenced by
Wescare against Subuthi.

A slightly liberal approach regarding the position of third parties to an

arbitration agreement was taken by the Supreme Court in P.R. Shah
Shares and Stock Brokers v B.H.H. Securities16. The High Court
dismissed the petition and on appeal to the Supreme Court the appellant
contended that as the provisions for arbitration are different in regard to a
dispute between a member and a non-member and in regard to a dispute
between two members, there cannot be a common arbitration in regard to a
claim or dispute by a member against another member and a non-member.

POSITION OF THIRD PARTIES UNDER SECTION 9 OF THE 1996 ACT.

15
AIR 2010 SC 1793, (2010) 5 SCC 306, (2010) 4 SCALE 395.
See also; The General Manager, Oriental Fire and General Insurance Co. Ltd. & Anr. v Mahendra Pd. Gupta,
1983 PLJR 711 – the arbitration clause which was entered into between the insured and the insurer cannot be
taken advantage of by a third person and the said third person cannot, in case a dispute arises with regard to his
claim against the insured, take advantage of the said arbitration clause and get such dispute referred to
arbitration.
16
AIR 2012 SC 1866, 2011 (4) Arb LR 128 (SC).

24
 Section 9 of the Arbitration and Conciliation Act, 1996 provides for
interim measures to be granted by a Court. While granting such an interim
measure, the courts might be faced with a situation where the interim
measure would have to be granted against a third party who is not a
signatory to the arbitration agreement. The position of third parties under
section 9 of the Act needs to be analyzed in the perspective of whether an
interim measure can be granted against such a third party by the Court.

In Shoney Sanil v Coastal Foundation,17 there was an arbitration

agreement between respondents 1 to 4. The Writ Petitioner had bought the
property in question and was in possession of the property. The Petitioner
challenged this order and the question which arose before the Kerala High
Court was whether the writ petitioner, admittedly, a third party to an
alleged arbitral agreement between the respondents and who has, in his
favour, a confirmed court sale and certificate of such sale and delivery of
possession, following and arising under an independent decree, could be
dispossessed, injuncted or subjected to other court proceedings under
Section 9 of the Act? The Court looked into the definition of ‘parties’ as
per Section 2(1)(h), the meaning of arbitration agreement under section 7
and the wording of section 9 and answered the question in the negative.
The court held that on a plain reading of Section 9 of the Act and going by
the scheme of the said Act, there is no room to hold that by an interim
measure under Section 9, the rights of third party, holding possession on
the basis of a court sale could be interfered with, injuncted or subjected to
proceedings under Section 9 of the Act. Section 9 of the Act contemplates
issuance of interim measures by the court only at the instance of a party to
an arbitration agreement with regard to the subject-matter of the arbitration
agreement. This can be only as against the party to an arbitration
agreement, or at best, against any person claiming under him. The writ
petitioner is a third party auction purchaser in whose favour is a sale
certificate, followed by delivery of possession. He cannot therefore be
subjected to proceedings under Section 9.

17
AIR 2006 Ker 206, 2006 (4) Arb LR 294 (Kerala), 2006 (1) KLT 915.

25
 POSITION OF THIRD PARTIES UNDER SECTION 34 OF THE 1996 A CT

Section 34 of the Arbitration and Conciliation Act, 1996 provides for

setting aside of an arbitral award by a party on an application and on the
grounds mentioned in sub-section 2. In Chennai Container Terminal Pvt.
Ltd. v Union of India18. The Single Judge allowed this by holding that
though Government of India was not a signatory to the arbitration
agreement, it was a party non-signatory. Therefore, not only a party to the
arbitration agreement but a party non-signatory also can challenge the
impugned award passed by the learned arbitrator. On appeal to the
Division Bench, the Court came to the conclusion that the order of the
Single Judge could not be sustained because Union of India was neither a
party to the agreement nor to the arbitration proceedings. The Court looked
into section 2(1)(h) and section 34 of the 1996 Act and came to the
conclusion that the word ‘party’ wherever it occurs in the Act unless the
context otherwise requires could only mean such person who is a party to
an arbitration agreement as defined in Section 2(1)(b) of the Act as an
agreement referred to in Section 7. A plain reading of Section 34
shows that only party to the arbitration agreement and party to the
arbitration award can file an application to set aside the arbitration
award and that too only on the grounds provided under Section 34(2)
of the Act. The Court however, agreed with the observation of the Single
Judge that though Section 34 of the Act contemplates challenge of the
award made by the party to the arbitration agreement, in view of
Section 2(1)(h) of the Act, the import of the word 'party' can be
judiciously expanded, if the context so warrants. In the given factual
circumstance the Court however, did not find any reason to expand the
import of the word ‘party’ as per the context the arbitration agreement.
There was nothing in the subject or context of Section 34 which would
suggest us to depart from the definitional meaning of the expression
‘party’.

18
AIR 2007 Mad 327, (2007) 3 Arb LR 510 (Madras).

26
 In S.N. Prasad v Monnet Finance Ltd. & Ors.,19 the award was passed
against the appellant who was not a party to the arbitration agreement. The
Appellant contended that he was not a party to the tripartite loan
agreements executed among respondents 1, 2 and 3. As there was no
arbitration agreement between the first respondent and appellant, the claim
against the appellant could not be referred to arbitration, nor could any
award be made against him.

IV. THE HIGH COURT WAS NOT CORRECT IN SETTING ASIDE

THE APPLICATION UNDER SECTION 34 OF THE
ARBITRATION AND CONCILIATION ACT, 1996
The High Court was incorrect in its judgment of setting aside the
application, because the award rendered by International Chambers of
Commerce (“ICC”) London is violative of Section 34 of the Arbitration
and Conciliation Act, 1996. It is also violative of the very definition of
“international commercial arbitration” stated under Indian law.

AWARD ISSUED IS AGAINST THE PUBLIC POLICY OF

INDIA UNDER SECTION 34 OF THE ARBITRATION AND
CONCILIATION ACT, 1996

The Section 34, which enlists the manner in which a foreign award can be set
aside, in its sub-section 2(b)(ii) states:

“An arbitral award may be set aside by the court only if –

2(b)(ii) The arbitral award is in conflict with the public policy of India.”

The Arbitration and Conciliation Act provides that if the arbitral award is in
conflict with the public policy of India, it can be set aside. The term “public
policy” has not been defined in the Act. A simple attempt to describe it is
contained in the Legal glossary of the Ministry of Law, Justice and Company
Affairs, Government of India, namely that public policy is “a set of principles in

19
AIR 2011 SC 442, (2011) 1 SCC 320, 2010 (10) SCALE 225.

27
accordance with which communities need to be regulated to achieve the good of
the entire community or public”20.

The Supreme Court in Renusagar Power Co. Ltd. v. General Electric Co. 21, held
that the enforcement of foreign award would be refused on the ground that it is
contrary to public policy if such enforcement would be contrary to –

(i). fundamental policy of India; or

(ii) he interest of India; or

(iii)justice or morality.

With this interpretation of public policy in mind, in 2003 the Supreme Court
addressed a public policy challenge to a domestic arbitral award in Oil & Natural
Gas Corp. v. SAW Pipes Ltd. 22The aggrieved party challenged an adverse arbitral
award because the arbitral tribunal had incorrectly applied the law of liquidated
damages to the case. In holding that the challenged award was legally flawed, the
Court held that, in addition to the interpretation of public policy in Renusagar, a
domestic arbitral award may be set aside if it contravenes the “provisions of the
[1996 Arbitration and Conciliation] Act or any other substantive law governing
the parties or is against the terms of the contract.” The holding of the Supreme
Court in SAW Pipes added “patent illegality” as a fourth public policy
consideration to the three considerations previously enumerated in Renusagar.

Recently, the Supreme Court of India in Associate Builders v. Delhi Development

Authority23, has dealt with some of the key issues involving challenge of an
arbitral award in an arbitration seated in India. The Supreme Court discussed and
clarified some of the earlier rulings on the scope of ‘public policy’ in Section 34
of the Arbitration and Conciliation Act, 1996, under several headings (including
fundamental policy of Indian law). Supreme Court observed that the grounds for
interfering with an arbitral award are limited to those mentioned in Section 34 of
the Act and held that merits of the award can be looked into only under the broad

20
P. Anklesaria, “Scope of the expression public policy in domestic and foreign awards” 9 AIR
(2005) at 310.
21
(1994) 2 Arb LR 405.
22
AIR 2003 SC 2629.
23
2014 (4) ARBLR 307(SC).

28
head of ‘public policy’. The Supreme Court relied on the landmark judgments
like, Renusagar, Saw Pipes, McDermott Inter national24, Western Geco
International Ltd. and others25, and laid down the heads under the ground of
‘public policy’ as:

“Fundamental Policy of Indian law” would include factors such as

(a). disregarding orders of superior courts;

(b). judicial approach, which is an antithesis to an arbitrary approach;

(c). principles of natural justice;

(d). Decision of arbitrators cannot be perverse and irrational in so far as no reason-

able person would come to the same conclusion.

The award therefore violates the public policy of India, because the arbitration
agreement is between Indian parties alone. With respect to arbitration between
two Indian parties, in TDM Infrastructure Pvt. Ltd. v. UE Development India
Pvt. Ltd.26, the Supreme Court held as follows in its obiter dicta:

“The intention of the legislature appears to be clear that Indian nationals should
not be permitted to derogate from Indian law. This is a part of the public policy of
the country."

If broadly interpreted, the obiter dicta in TDM Infrastructure indicate that Indian

public policy prohibits Indian nationals from derogating from Indian law unless
they are contracting with a foreign party, even if the dispute resolution mechanism
provides for arbitration seated outside India.

In Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt.

Ltd.,27the Bombay High Court expressed a view that two Indian parties choosing a
foreign seat and a foreign law governing the arbitration agreement should be
considered to be opposed to public policy of the country. In Addhar the Court
stated that “both the parties are Indian and cannot derogate the Indian law.”
24
2006 (11) SCC 181.
25
2014 (9) SCC 263.
26
(2008) 14 SCC 271.
27
Judgment in Arbitration Petition No. 910/2013 dated June 12, 2015.

29
 The award therefore should be set aside since it is violative of the public policy of
India under Section 34 of the Arbitration and Conciliation Act, 1996 which cannot
allow two Indian parties to arbitrate in a foreign country under a foreign law.

ARBITRATION CLAUSE VOID AS UNDER SECTION 2(1)(f) OF

ARBITRATION AND CONCILIATION ACT, 1996

According to the section:

“International commercial arbitration” means an arbitration relating to disputes

arising out of legal relationships, whether contractual or not, considered as
commercial under the law in force in India and where at least one of the parties
is-
(i) An individual who is a national of, or habitually resident in, any country other
than India; or
(ii) A body corporate which is in corporate in any country other than India; or
(iii) A company or an association or a body of individuals whose central management
and control is exercised in any country other than India; or
(iv) The Government of a foreign country;

The definition explicitly states that international commercial arbitration is one

where at least one foreign party is involved in the proceedings. In this case,
though, only Indian parties are involved, which exempts the arbitration from being
an international commercial arbitration. The arbitration can thus not be proceeded
in a foreign country.

The scope of this section was determined by the Supreme Court in the case of
TDM Infrastructure. The Court also mentioned in its judgment:

“Section 2(1)(f) speaks of legal relationship whether commercial or otherwise

under the law in force in India. The relationship has to be between an individual
who is a national, of or habitually resident, in any country other than India as
specified in clause (i) of section 2(1)(f). A company incorporated in India can
only have Indian nationality for the purpose of the Act. Hence, where both parties
have Indian nationalities, then the arbitration between such parties cannot be
said to be an international commercial arbitration.”

30
The Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”),
which came into effect from October 23, 2015 and is applicable prospectively to
the arbitral proceedings commenced after October 23, 2015, has deleted the words
‘a company’ from the purview of the definition of ‘international commercial
arbitration’, thereby restricting the definition of it only to the body of individuals
or association. Therefore, by inference, it has been made clear that if a company
has its place of incorporation as India then central management and control would
be irrelevant as far as its determination of being an “international commercial
arbitration” is concerned.

Therefore, the arbitration clause of the PEDA itself is void since the parties to
arbitration are both Indian parties. Because of the agreement being void, the award
should be set aside, according to Section 45 of the Arbitration and Conciliation
Act, 1996, which states:

“Power of judicial authority to refer parties to arbitration. –Notwithstanding

anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908) a
judicial authority, when seized of an action in a matter in respect of which the
parties have made an agreement referred to in section 44, shall, at the request of
one of the parties or any person claiming through or under him, refer the parties
to arbitration, unless it finds that the said agreement is null and void, inoperative
or incapable of being performed.”

Because the agreement is void, the award should therefore not hold.

31
 PRAYER

In light of the facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully pleaded before this Hon’ble Supreme Court of
India that it may be pleased to:
1. The decision of the District Court is per-in-curium of laws enacted by the Parliament
and laws declared by the Supreme Court in relation to choosing the seat of arbitration
outside India, choice of law governing the proceedings, and substantive laws of
governing the contract.
2. The decision of the District Court and action of the government violates TSL’s
fundamental right of trade and occupation guaranteed under Article 19 of the
Constitution.
3. MPSL cannot be made a party to arbitration proceeding.
4. The High Court was not correct in setting aside the application under S.34 of the
Arbitration and Conciliation Act of 1996.
And grant any other order that this court deems fit in the ends of justice, equity and
good conscience.

Counsel No:

Counsel for the Petitioners

32