TABLE OF CONTENTS

LIST OF ABBREVIATION I

INDEX OF AUTHORITIES II

STATEMENT OF JURISDICTION III

STATEMENT OF FACTS 1

STATEMENT OF ISSUES 3

SUMMARY OF ARGUMENTS 4

ARGUMENTS ADVANCED 5

I. THE ARBITRAL TRIBUNAL IS COMPETENT ENOUGH TO COMMENCE THE ARBITRATION 5

II. THE EVIDENCE PRODUCED BY THE RESPONDENT WILL NOT BE ADMISSIBLE. 6
III. ‘FRAUD’ AS A SUBJECT MATTER WILL BE ARBITRABLE. 7
IV. THE TERMINATION OF CONTRACT WAS VOID AS NO PROPER NOTICE WAS GIVEN TO THE
CLAIMANT. 7
V. THE CLAIMANT ARE ENTITLED TO DAMAGES, AS A CONSEQUENCE OF TERMINATION OF
CONTRACT. 8
PRAYER 10
LIST OF ABBREVIATION

1
INDEX OF AUTHORITIES

2
STATEMENT OF JURISDICTION

3
 STATEMENT OF FACTS

I. THE PARTIES
M/s Oberoi & Oberoi is an organisation involved in the business of establishing operating and
maintenance of petrol pump and gas filling stations around the nation.

Bhartiya Oil Corporation Limited (BOCL) is a one of the largest commercial oil and gas
company which is owned by the government and headquartered in Bombay.

I. AGREEMENT BETWEEN THE PARTIES

The present agreement is a contract between M/s Oberoi & Oberoi and Bhartiya Oil
Corporation Limited in which Bhartiya Oil Corporation Limited floated a tender for the
dealership of petrol pump. M/s Oberoi & Oberoi was the successful bidder around the 35
Companies which participated in the bidding, therefore M/s Oberoi & Oberoi was given a
tender of dealership for establishing petrol pump and gas filling station in the respected city
according to the contract.

II. ROUTINE INSPECTION OF THE PETROL PUMP

As per the contract between the parties, M/s Oberoi & Oberoi established a petrol pump in the
respected city and by the expertise and knowledge of Mr. DM Oberoi, the business was doing
an exceptional business, by doing so an huge amount of profit was generated within a short
span of one year. Therefore, as a routine inspection conducted by Bhartiya Oil Corporation
Limited, it was found that M/s Oberoi & Oberoi was using a chip in the pumps to manipulate
the data and the quantity of the petrol usually filled in.

III. TERMINATION OF CONTRACT

As according to the routine inspection conducted by Bhartiya Oil Corporation Limited, the
inspecting officer found a chip in the pumps and therefore terminated the dealership without
issuing a show-cause notice to M/s Oberoi & Oberoi which led to huge financial losses.

Subsequently, being the most reputed organisation in the business of establishing, operating
and maintaining petrol pump and gas filling stations around the nation, M/s Oberoi & Oberoi,
lost the reputation and faith in public due to the unlawful termination of dealership by
Bhartiya Oil Corporation Limited.

IV. INVOCATION OF ARBITRATION

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M/s Oberoi & Oberoi invoked the arbitration clause as per the contracting agreement between
the parties. M/s Oberoi & Oberoi asked Bhartiya Oil Corporation Limited to appoint a sole
arbitrator but their demand was refuted. Therefore when the court granted interim measure to
M/s Oberoi & Oberoi in the present dispute, Bhartiya Oil Corporation Limited appointed
Zonal Manager of the Company as the sole arbitrator. But, it attracted the schedule V of the
Arbitration and Conciliation Act, 1996. Therefore on an application for appointment of a sole
arbitrator to the Hon’ble High Court, Mr. S.S Singhvi was appointed as the presiding sole
arbitrator by Hon’ble High Court. The disputes will now be heard by this Arbitral Tribunal.

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 STATEMENT OF ISSUES

I. Whether the award rendered from the arbitration will be enforceable?

II. Whether the evidence produced is admissible?
III. Whether the termination of licence was according to the agreement?
IV. Whether the claimant is entitled to damages?

3
 SUMMARY OF ARGUMENTS

I. Whether the termination of licence was according to the agreement or not?

A) Whether there was a repudiatory breach of Contract

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 ARGUMENTS ADVANCED

I. THE ARBITRAL TRIBUNAL IS COMPETENT ENOUGH TO COMMENCE THE ARBITRATION

A. THE CONTRACT NOTE IN THE ARBITRATION AGREEMENT IS VALID AND BINDING.

1. M/s Oberoi and Oberoi and Bhartiya Oil Corporation Limited are both located India.
Therefore, according to laws of India they must be registered in India, and their asset
are also situated in India. Section 7(1) and 7(2) of the Act 1 states that, ‘arbitration
agreement may be in the form of an arbitration clause in a contract or in the form of a
separate agreement.’ If the contract note binding the parties to arbitration is valid than
it is a valid arbitration agreement.2 Hence, enforcement of any award rendered from the
arbitration proceedings will be sought under the Arbitration and Conciliation Act.3 In
the present case, it is submitted that the award which will be rendered is enforceable
and binding on the parties.

B. TERMINATION OF MAIN AGREEMENT WILL NOT TERMINATE THE ARBITRATION

AGREEMENT.

1. The arbitration clause in a commercial contract is an agreement inside an agreement; the

parties while making their commercial bargain in addition agree on a tribunal to resolve
any issues that may arise between them.4 Doctrine of separability states that the
arbitration agreement has a separate life from the contract for which it provides the means
of resolving disputes; this enables the arbitration agreement to survive breach of the
contract of which it is a clause.5 As with regard to termination of a contract by breach or
frustration, it was held in the matter of Heyman V/s Darwins Ltd6, that termination of a
contract by breach of performance obligations does not bring the contract’s dispute
resolution procedure to an end, and is entirely within the scope of the arbitration
agreement. Also, in the matter of Astro Vencedor Compania Naviera SA v. Mabanaft
GmbH,7 it was observed that, the court should if the circumstances allow lean in favour of
giving effect to the arbitration clause to which the parties have agreed as the present case.

1 Arbitration and Conciliation Act, No. 26 of 1996.

2 GMR Energy Limited v. Doosan Power Systems India Private Limited & Ors, 2017 SCC OnLine Del 11625.
3 Arbitration and Conciliation Act, 1996, Section 36.
4 Union of India V/s Mc Donnell Douglas Corporation, (1993) 2 Lloyd’s Rep. 48.
5 Russell on Arbitration, 21st Edition, Page 57.
6 (1942) A.C. 356
7 (1970) 2 Lloyd’s Rep. 267.
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 2. According to the doctrine of separability an arbitration clause constitutes a self-contained
contract collateral or ancillary to the main contract. 8 However, according to the doctrine
of implied terms, an arbitration agreement can continue to be implied as one of the terms
of the relationship between the parties after the formal termination of an agreement as
between the parties containing an arbitration clause.
3. In light of the aforementioned law, cases and arguments, the Counsel humbly submits that
by the kompetenz-kompetenz principle, the Arbitral tribunal is competent enough to try
the matter.

V. THE EVIDENCE PRODUCED BY THE RESPONDENT WILL NOT BE ADMISSIBLE.

C. THE EVIDENCE WAS NOT AUTHORITATIVE.

1. The evidence produced by the defendants will not be admissible because the
contention is solely based on the chip and not on any direct evidence of an
independent authority but by the Defendants own findings. Also, the reputation of
Claimants prima facie speaks the goodwill of their business. As it is a settled law that
the arbitration tribunal is not bound by the technical rules of evidence as observed by
the courts.9 Therefore there is the power of Arbitral Tribunal to determine the
relevance, materiality and weight of any evidence as in the present case the evidence
is misleading.10 The Arbitrators are the masters of their own procedure and may
conduct arbitral proceedings in a manner they consider appropriate.
4. In the present case, the rules on taking of evidence is not properly mentioned in the
arbitration agreement. It has been reiterated by the Bombay High Court that though the
Arbitration does not provide for the procedure to be followed in taking of evidence in
Arbitration but still bound to apply the principles of natural justice. 11 Also, according
to section 23(2), the evidence which is produced by the defendant cannot be
considered to be relevant, as the defendant failed to mention the admissibility of the
chip of the opinion of a relevant third party. The Preamble to the ‘International Bar
Association Rules on Taking of Evidence’ provides that the parties and the tribunal are
free to adopt the IBA rules wholly or partly, they are allowed to vary the rules or
simply use them as guidelines to their proceedings, so in the present case, the rules to
evidence are not in agreement between the parties and therefore can follow the same
8 M/s Roshin Lal Gupta & Sons (P) Ltd V/s Delhi Tourism & Transportation Development Corporation &Anr, FAO
No. 356 of 2008, High Court of Delhi.
9 NPCC Limited Vs. Jyothi Sarup Mittal Engineers, Contractors and Builders, 2007 (93) DRJ 379 at para 20.
10 Arbitration & Conciliation Act, 1996, Section 19(4).
11 Vinayak Vishnu Sahasrabudhe v. B.G. Gadre and Ors, AIR 1959 Bom 39
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 International Bar Association.12 Therefore, according to the same rules, Article 9(1)(a)
it is not directly sufficient to the materiality of the case. Hence, the counsel humbly
submits that the evidence produced by the respondent is not admissible.

VI. ‘FRAUD’ AS A SUBJECT MATTER WILL BE ARBITRABLE.

VII.THE TERMINATION OF CONTRACT WAS VOID AS NO PROPER NOTICE WAS GIVEN TO

THE CLAIMANT.

A. THERE WAS NOT ANY REPUDIATORY BREACH OF CONTRACT.

2. When the conduct of the party reflects its intention to deviate from the terms of the
contract, it amounts to repudiatory breach. The contention of defendants is solely based
on the chip produced as an evidence by their own knowledge, that the claimants were
misrepresenting the petrol pump and gas station data. As the reputation of claimants is
considered, they are one of the most reputed in this field of business. Consequently, the
innocent party is affected due to termination of the contract. In the present Case, the
instructions of the defendants, they directly terminated without giving any further
instructions which did not amounted to a repudiatory breach on the part of claimants.
3. The defendants can only prove a repudiatory breach by the claiments through the
communications and overall conduct of the business. There has to be an unambiguous
representation on the part of defendants that the claimants would not or could not perform
their obligations under the contract. If conduct is such that it shows an intention to no
longer be bound by the contract, or an inability to perform such that the non-performance
would have the effect of depriving the defendants of the benefits of the contract,
repudiation is clear. In the present case, the claimants who were in control of the petrol
pump and gas stations, but any conduct to the repudiator breach is not valid. Hence, the
counsel humbly submits.

D. THE NOTICE TO TERMINATE THE CONTRACT WAS NOT PROPERLY SERVED.

4. The termination of contract should be done on ethical grounds which should serve the
concrete purpose for it. The Court Federal Court of Australia held that held that the
termination of a contract if it is unable to prove the opposite party had not received proper

12 IBA Rules on Taking of Evidence in International Arbitration, Article 9(1)(a).

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 notice for termination prior to the commencement of arbitration (whether deemed or
actual notice).13 In the case of X v. Y, the dispute concerned the collection of sums due
under a construction agreement executed in May 2008 (Agreement) and the payment of
compensation for unlawful termination of that agreement rendered from it. Here the court
upheld the award of the arbitral tribunal that there should be a proper serving of notice
and the relevant reasons mentioning the same.14 Hence, based on the above proposition,
the counsel finally submits that claimants has survived the challenge for repudiatory
breach of contract.

VIII. THE CLAIMANT ARE ENTITLED TO DAMAGES, AS A CONSEQUENCE OF

TERMINATION OF CONTRACT.

A. CLAIMANT IS ENTITLED TO DAMAGES DUE TO THE TERMINATION OF CONTRACT

RESULTING IN THE LOSS OF REPUTATION.

5. After accepting the repudiatory breach of a contract, the innocent party is entitled to
6. Here, the contract was breached by Charterers on January 24, 2014.
7. Had the charterers paid hire as per the provisions of C/P, it would have amounted to

E. DURING THE COURSE OF THIS ARBITRATION THE CLAIMANT SHOULD BE GRANTED

INTERIM RELIEF.

F. THE CLAIMANT FULFILLED THEIR DUTY TO THE AGREEMENT.

8. In the present case the agreement is breached, the injured party has an obligation to take
reasonable steps to mitigate its losses. The claimant can claim damages from the
defendant for defaming the image and business reputation. In the present case, the
claimants had to face the falling businesses which is affecting their other ventures also.
However, in order to fulfil the duty to mitigate the losses the claimants can restore the
same. Therefore it is submitted that the claimants are entitled to damages.

13 Damian Sturzaker, 'International Relief and Development, Inc v. Godfrey Emmanuel Ladu [2014] FCA 887, Federal
Court of Australia, New South Wales District Registry, VID 522 of 2012, 20 August 2014', A contribution by the ITA
Board of Reporters, Kluwer Law International.
14 X v. Y, Court of Cassation of Turkey, 15th Civil Law Chamber, File No. 2014/2153; Decision No. 2015/918, 23
February 2015.
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PRAYER