001A

IN THE

HONORABLE SUPREME COURT OF RAIYA

AT SDL CITY

—IN THE MATTER OF—

GOD

MAN............................................................................................................APPELLANT

(REPRESENTED BY HIMSELF)

v.

UNION OF RAIYA..........................................................................................RESPONDENT

(REPRESENTED BY

CIVIL APPEAL NO. 123. OF 2021

(BROUGHT UNDER ARTICLE 133 OF THE CONSTITUTION OF RAIYA, 1950 READ WITH ORDER XIX,

RULE 1 OF THE SUPREME COURT RULES, 2013)

CLUBBED WITH

GOLIATH NATIONAL BANK AND ORS. …………………………………

APPELLANT

(REPRESENTED BY MANAGING DIRECTOR)

v.

UNION OF RAIYA AND ORS.

……………………………………………...RESPONDENT

(REPRESENTED BY
SPECIAL LEAVE PETITION (CIVIL) NO. 234 OF 2021
(APPEAL FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF RAIYA READ WITH RULE 3(1),

ORDER XXI OF THE SUPREME COURT RULES, 2013)

ALL THE MATTERS HAVE BEEN CLUBBED

UNDER ARTICLE 142 OF THE CONSTITUTION OF RAIYA READ WITH RULE 3, ORDER LV OF

THE SUPREME COURT RULES, 2013

- MEMORIAL OF BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

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

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

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

ISSUES FOR CONSIDERATION.....................................................................................................XI

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

ARGUMENTS ADVANCED............................................................................................................1

II. THE INTERNATIONAL CRIME COURT HAS JURISDICTION OVER THE CRIMES IN THE

STATE OF RAIYA AS PER ARTICLE 12(2)(A)...........................................................................8

1. THE CONDUCT HAS TAKEN PLACE...............................................................................8

2. ON THE TERRITORY OF A STATE PARTY.......................................................................9

III. THE TRIBUNAL HAS EXCEEDED THE POWER UNDER SECTION 242 OF THE INDIAN

COMPANIES ACT, 2013...........................................................................................................9

1) THE TRIBUNAL CANNOT GRANT ANY RELIEF UNDER THE INSOLVENCY AND

BANKRUPTCY CODE, 2016.................................................................................................9

2) THE GRANT OF MORATORIUM IS ULTRA VIRES OF THE CODE....................................10

IV. THE CONTRACTUAL RIGHTS OF THE LENDERS CANNOT BE UNILATERALLY MODIFIED

BY THE TRIBUNAL..........................................................................................................11

1. RIGHT TO REALISE DEBT IS PROTECTED BY THE CONSTITUTION...............................11

2. THE PARTY CONCERNED DID NOT PROVIDE CONSENT...............................................12

3) IN ARGUENDO, THE RIGHTS OF THE CREDITORS ARE ALSO PUBLIC INTEREST...........13

iv
 V. THE RESOLUTION PROCESS AS PER THE ORDER IS NOT LAWFUL ...................................14

1. THE RESOLUTION PROCESS DOES NOT ABIDE BY THE PROVISIONS OF THE ACT........14

2. THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE.......................................15

PRAYER FOR RELIEF.................................................................................................................16

v
 INDEX OF AUTHORITIES

Statutes

Act s. 424.................................................................................................................................12

Act s.230..................................................................................................................................14

Act s.242....................................................................................................................................9

Code s. 227.................................................................................................................................9

Code s.14..................................................................................................................................10

Code s.231................................................................................................................................10

Code s.62..................................................................................................................................10

Elements of Crime [“EoC”], art 7 (2).......................................................................................1

EoC art 7(1)(h)...........................................................................................................................7

EoC art. 7(1)(d)..........................................................................................................................3

EoC General Introduction ¶3.....................................................................................................3

Rome Statute, art.5.....................................................................................................................1

Statute, 7(2)(d)...........................................................................................................................3

Statute, art. 12............................................................................................................................8

Statute, art. 7..............................................................................................................................1

Universal Declaration of Human Rights, art. 13(1)...................................................................6

Other Authorities

Durga Das Basu, Commentary on the Constitution of India, Vol.13 (Lexis Nexis 2018, 9th

edn.)......................................................................................................................................11

vi
Ian F. Fletcher, “Juggling with Norms: the Conflict Between Collective and Individual Rights

Under Insolvency Law” in Ross Cranston, ed., Making Commercial Law: Essays in

Honour of Roy Goode (Oxford: Clarendon Press, 1997) at 393..........................................13

Otto Triffterer & Kai Ambos, The Rome Statute of the International Criminal Court: A

commentary (Bloomsbury 2016, 3rd edn.)..............................................................................4

Rules

Tribunal Rules r.11...................................................................................................................12

Treatises

Vienna Convention on the Law of Treaties, art. 31(3)(c)..........................................................8

Regulations

Bhupinder Singh v. Unitech Ltd. Order dated 31.07.2018 of Civil Appeal No.10856 of 2016.

..............................................................................................................................................15

K.R.S. Mani v. Anugraha Jeweller Ltd., (2000) 100 Comp Cas 665.......................................14

Municipal Corporation of City of Ahmedabad v. Jan Mohd. Ushnanbhai, (1986) 3 SCC 20.13

R. v. Bedfordshire, (1992) 4 SCC 305.....................................................................................13

SC Sekaran v. Amit Gupta and Ors., Order dated 29.01.2019 in Company Appeal (AT)

(Insolvency) No. 495 & 496 of 2018...................................................................................14

Sree Metaliks Limited and another v. Union of India and anr., 2017 SCC OnLine Cal 2749.

..............................................................................................................................................15

T.P. Sokkalal Ram Sait Factory (P.) Ltd., (in re ), (1978) 48 Comp Cas 503.........................12

Constitutional Provisions

Constitution of Raiya, 1950 art. 300A.....................................................................................11

Reports

vii
Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of

the Statute”, ICC-RoC46(3)-01/18, PTC, 6 September 2018, ¶63........................................8

Prosecutor v Stakić, IT-97-24, AC, 22 March 2006, ¶277........................................................4

Prosecutor v. Akayesu, ICTR-96-4, TC, 2 September 1998, ¶581............................................2

Prosecutor v. Bemba, ICC-01/05-01/08-424, PTC, 15 June 2009.............................................2

Prosecutor v. Gbagbo, ICC-02/11-01/11-656-Red, PTC, 12 June 2014...................................2

Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, TC, 30 May 2013..............4

Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-3436, TC, 7 March 2014..................2

Prosecutor v. Kvocka et al., IT-98-30/1, AC, 28 Feb 2005, ¶366.............................................6

Prosecutor v. Popovic´ et al., IT-05-88, TC, 10 June 2010, ¶900.............................................5

Prosecutor v. Ruto, Kosgey and Sang, ICC-01/09-01/11-373, PTC, 23 January 2012 ¶244.. . .3

Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06, OA 8, 13 June 2007, ¶8.................8

Prosecutor v. Tihomir Blaškić, IT-95-14, TC, 3 March 2000....................................................6

Prosecutor v. Vlastimir Dorđević, IT-05-87/1, AC, 27 January 2014, ¶567.............................7

Books

Situation in the Republic of Korea, Article 5 Report, June 2014, ¶39.......................................9

viii
 STATEMENT OF FACTS

The state of Raiya is an East Asian country that is not a state to the Rome Statute. Bonn

Raiyas and Tansenians are two ethnic groups in Raiya, former being the majority while the

latter is in minority. Tansenians live the autonomous province of Zigzag where the

government stated sending Bonns with better life opportunities than Tansenians. The

Government started setting up internment camps where only Tansenians were sent. The

Government passed a Counterterrorism Regulation in 2018 that states the establishment of

vocational skill education centres serve the purpose of curbing extremist ideologies, a

necessary measure for national security. However, numerous reports by various sources have

provided that the ethnic minority of Tansenians were targeted and tortured by the

government. It was contended that the Tansenians were facing social discrimination and

could not practice their culture and religion anymore. As a consequence of the policies of the

government, there was mass exodus of Tansenians to the state of Tigerstan, a party to the

Rome Statute. Tigerstan, on the request of Raiya, returned the refugees and they were later

tortured or killed.

II

Bruce Financial Solution Company Limited [“BFSC”] is a Non- Banking Financial

Company in Raiya. It is engaged in many activities like loans and advances. BFSC took one

such short term loan from Golith National Bank [“GNB”] by selling 1-year commercial

paper. One long term loan was given to a foreign promoter to construct plant of electricity.

The construction of the plant halted due to environmental concerns and is facing litigation. In

2014, BFSC defaulting on its loans which led to the total debt of Rs 99,000 crores. Soon

after, an independent director of the company resigned claiming mismanagement of the

ix
business affairs by the Board of Directors [“BoD”]. In 2015, the Government of Raiya took

intervened in the matter which resulted in an order by the National Company Law Tribunal.

The order suspended the BoD and setting up of new BoD. It was injuncted legal proceedings

against BFSC and its subsidiaries for proper resolution process. The creditors challenged this

order and it was upheld in National Company Law Appellate Board. The creditors have

further appealed here.

Hence the present petition.

x
 STATEMENT OF JURISDICTION

The Petitioners most humbly submit that this Hon’ble Apex Court of Raiya has the

jurisdiction to hear the present matters of:

(1) Civil Appeal No. 123 of 2021 filed under Article 133 of the Constitution of Raiya

read with Order XIX, Rule 1 of the Supreme Court Rules, 2013

(2) Special Leave Petition No. 234 of 2021 filed under Article 136 of the Constitution of

Raiya, read with Rule 3 (1) of Order XXI of the Apex Court Rules, 2013.

The above-mentioned matters have been clubbed by this Hon’ble Apex Court of Raiya under

Article 142 of the Constitution of Rashtra read with Rule 3, Order LV of the Apex Court

Rules, 2013.

All of which is urged in detail in the written submission and is submitted most respectfully.

xi
 ISSUES FOR CONSIDERATION

I. WHETHER THERE IS REASONABLE BASIS TO BELIEVE THAT THE CRIME

AGAINST HUMANITY OF DEPORTATION AND PERSECUTION HAVE

OCCURRED WITHIN THE TERRITORY OF RAIYA?

II. WHETHER THE INTERNATIONAL CRIMINAL COURT HAS THE

JURISDICTION OVER THE CRIME AGAINST HUMANITY IN THE STATE OF

RAIYA AS PER ARTICLE 12(2)(A)?

III. WHETHER THE TRIBUNAL HAS THE POWER WITHIN SECTION 242 OF THE

COMPANIES ACT, 2013 TO GRANT THE RELIEF OF MORATORIUM?

IV. WHETHER THE CONTRACTUAL RIGHTS OF THE LENDERS CAN BE

UNILATERALLY MODIFIED BY THE TRIBUNAL?

V. WHETHER THE RESOLUTION PROCESS AS PER THE ORDER IS LAWFUL?

xii
 SUMMARY OF ARGUMENTS

I. THERE IS REASONABLE BASIS TO BELIEVE THAT THE CRIME AGAINST HUMANITY

OF DEPORTATION AND PERSECUTION HAVE OCCURRED.

The State of Raiya met the contextual elements of widespread attack directed against a

civilian population and knowledge of the perpetrator required for the crime against humanity.

It further met the specific elements of forcible displacement in the absence of lawful grounds,

lawful presence of the victims and perpetrator’s knowledge of the lawful presence,

deprivation of fundamental rights, grounds of target are collective identity and ethnicity,

religion, culture and presence of a connected crime under art. 7.

II. THE INTERNATIONAL CRIMINAL COURT HAS THE JURISDICTION OVER THE CRIME

AGAINST HUMANITY IN THE STATE OF RAIYA

The ICC has jurisdiction of the crimes in Raiya under art. 12(1)(a) as the conduct in question

occurred in the territory of a State party to the Statute.

III. THE TRIBUNAL DOES NOT HAVE THE POWER WITHIN SECTION 242 TO GRANT THE

RELIEF OF MORATORIUM

The Tribunal does not have the power to grant reliefs from the Insolvency and Bankruptcy

Code and such relief is ultra vires of the Code itself. Therefore, the Tribunal has exceeded its

power within 242.

IV. THE CONTRACTUAL RIGHTS OF THE LENDERS CANNOT BE UNILATERALLY

MODIFIED

xiii
The contractual rights of the lenders are protected under the constitution. Additionally, they

cannot be modified without the consent of the party concerned. Therefore, they cannot be

unilaterally modified by provoking Section 242.

V. THE RESOLUTION PROCESS AS PER THE ORDER IS NOT LAWFUL

The resolution process provided did not abide by the provisions of the Companies Act or the

principles of natural justice. Therefore, it cannot be deemed lawful.

xiv
 ARGUMENTS ADVANCED

I. THERE IS REASONABLE BASIS TO BELIEVE THAT DEPORTATION AND

PERSECUTION UNDER ARTICLE 7(1)(D) AND (H) OF THE STATUTE HAS

OCCURRED

According to Article 5 of the Rome Statute [Statute] International Criminal Court [ICC] has

the jurisdiction with respect to the crimes against humanity [CAH].1 The chapeau of article 7

of the Statute lists 11 acts that are considered as CAH.2 The contextual elements for CAH are

the same3 and are presented below (1). The specific elements of Crimes of deportation (2)

and persecution (3) are discussed therein.

1. ELEMENTS OF CONTEXTUAL CRIME HAVE BEEN FULFILLED

The contextual elements for crime against humanity includes widespread attack directed

against a civilian population [a]; and knowledge of the perpetrator [b].4

a) There was widespread or systematic attack directed against a civilian population.

In the present case, there was CAH as there was an attack (i); directed against civilian

population (ii); and which was widespread or systematic (iii).

i. Attack

An attack is a commission of acts as per article 7(1) of the Statute without the need to prove

any other requirement,5 and does not have to be a military or violent attack 6. The acts of

persecution7 and deportation8 on the Tansenian community constitute attack as defined above.
1
Rome Statute, art.5
2
Statute, art. 7.
3
Elements of Crime [“EoC”], art 7 (2).
4
Id.
5
Prosecutor v. Akayesu, ICTR-96-4, TC, 2 September 1998, ¶581.
6
Prosecutor v. Bemba, ICC-01/05-01/08-424, PTC, 15 June 2009.
7
Proposition, The Winter Intra-University Moot Court Competition, 2021 [“Moot
Proposition”], ¶14.
8
Id.

1
 ii. Directed against civilian population

In Bemba case, it was observed that ‘directed against’ means that the target of the attack be

the civilian population and not merely incidental victims. 9 It was further stated that the

targeted population of the attack does not need encompass the entire population of the

geographical area10.

In the present case, the factual matrix reflects that the Tansenian civilian population was the

prime target of the series of attacks committed by the Government of Raiya.11

iii. Widespread or systematic

As per the requirement, the attack should be of large scale 12 and organised13. In the Katanga

case, it was stated that the term systematic rules out the possibility of random occurrence of

the attack.14

In Raiya, the detention of one million Tansenians had and disappearance triple the number of

people from the camps15 has been called the ‘largest mass internment of an ethnic- religious

minority since World War II’.16 Therefore, the attack was widespread and systematic.

b) The perpetrator knew that the conduct was part of or intended the conduct

To establish the intent or knowledge of the perpetrator, relevant facts and circumstances are

to be evaluated.17 This mental element of knowledge can also be satisfied if it is proved that

the perpetrator aimed to further the attack.18 The Government of Raiya had orchestrated and

implemented the attack through the internment camps as can be inferred by the

9
Bemba (n6).
10
Id.
11
Moot Proposition, ¶9.
12
Prosecutor v. Gbagbo, ICC-02/11-01/11-656-Red, PTC, 12 June 2014.
13
Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-3436, TC, 7 March 2014.
14
Bemba (n6).
15
Moot Proposition, ¶6.
16
Id.
17
EoC General Introduction ¶3.
18
Id.

2
counterterrorism regulation passed by the government in December 2018.19 The Government

was also using mass surveillance with the aim of tracking activities of the Tansenians, 20

which would be used to further torture the Tansenians.

2. THE CRIME OF DEPORTATION WITHIN ARTICLE 7(1)(D) OF THE STATUTE HAVE

OCCURRED IN THE COUNTRY OF RAIYA

The chapeau of article 7 lays down deportation as a CAH. 21 The elements necessary for the

crime of deportation are forcible displacement in the absence of lawful grounds 22 [a]; lawful

presence of the victims23 [b]; and perpetrator’s knowledge of the lawful presence [c]24.

a) There was forceful displacement without any lawful grounds

The EoC expressly mentions that for deportation to be a CAH, displacement should be

forcible (i); and without any grounds under international law25 (ii).

i. forced displacement
26
“Force” does not necessarily mean the use of physical force, it also incorporates fear of

detention, oppression, lack of genuine choice other than leaving. 27 In the present case, the

Tansenians were facing severe mental, physical and sexual abuse, 28 and many of them were

being unlawfully detained.29 Additionally, they were spied upon by the government30 and

19
Moot Proposition, ¶7.
20
Moot Proposition, ¶10.
21
Statute (n2).
22
Statute, 7(2)(d).
23
Prosecutor v. Ruto, Kosgey and Sang, ICC-01/09-01/11-373, PTC, 23 January 2012 ¶244.
24
EoC art. 7(1)(d).
25
Id.
26
EoC (n3).
27
Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, TC, 30 May 2013, ¶¶
992-993. 
28
Moot Proposition, ¶9.
29
Id.
30
Moot Proposition, ¶7.

3
were religiously and culturally oppressed.31 Therefore, to avoid the persecution, the

Tansenians had no choice but to leave.

ii. Without any grounds under international law

In Stavic case, it was held that people have a right to stay in their home and with their

community.32 However, in the country of Raiya, are the Tansenians are forced to leave the

country without any valid grounds that are permitted by international law. On the contrary,

the Government was violating the right of the ethnic minority Tansenians to stay in their

homes and multiple other rights that are protected by the human rights instruments.33

b) The victims were lawfully present

The people so deported as per the article 7(1)(d) should be ‘lawfully present’ in the location

they are being deported from. The determination of this presence has to be in consonance

with the international law.34 The Trial Chamber stated in the Popovic´ case that residency or

citizenship are not material to determine lawful presence.35 The individuals who are uprooted

from their homes must be present at the location to live in the community but not illegally or

unlawfully.36

The Tansenians were living in the community and have not occupied Raiya unlawfully or

illegally. Zigzag was the home of the Tansenians 37 and therefore, the persecuted Tansenians

are lawfully present in Raiya.

31
Moot Proposition, ¶9.
32
Prosecutor v Stakić, IT-97-24, AC, 22 March 2006, ¶277.
33
Otto Triffterer & Kai Ambos, The Rome Statute of the International Criminal Court: A
commentary (Bloomsbury 2016, 3rd edn.).
34
Id.
35
Prosecutor v. Popovic´ et al., IT-05-88, TC, 10 June 2010, ¶900.
36
Id.
37
Moot Proposition, ¶5.

4
 c) The perpetrator was aware of the lawfulness of such presence.

To establish the intent or knowledge of the perpetrator, relevant facts and circumstances are

to be evaluated.38 The Government of Raiya was aware that the ethnic minority of Tansenians

were the residents of the autonomous province of Zigzag and the same has not been a subject

of dispute. The Government’s countless attempts to promote Raiya’s cultural unity 39 which

included the setting up centres of vocational training and education to ‘make life colourful’40

leads to the conclusion that the perpetrators were aware of the lawful presence of the victims.

3. THE CRIME OF PERSECUTION AS DEFINED UNDER 7(1)(H) OF THE STATUTE HAS

TAKEN PLACE

The chapeau of article 7 of the Statute incorporates persecution as a CAH. The specific

elements required to establish the crime of the persecution include severe deprivation of

fundamental rights [a]; target of victims on the grounds of collective identity[b] and ethnicity,

religion, nationality, gender, culture [c]; and presence of a connected crime under art. 7 [d].

a) There was severe deprivation of fundamental rights.

Right to freedom of movement within one’s territory is a fundamental right. 41 The arbitrary

detention of Tansenians in internment camps deprived them of this freedom. In the Blaskic

case, the Trial Chamber held that unlawful detention of civilians means unlawful deprivation

of their freedom and was held as persecution. 42 Furthermore, the court also held that murder,

cruel and inhumane treatment of the civilians was a severe denial of fundamental rights.43

38
EoC (n3).
39
Moot Proposition, ¶5.
40
Moot Proposition, ¶7.
41
Universal Declaration of Human Rights, art. 13(1).
42
Prosecutor v. Tihomir Blaškić, IT-95-14, TC, 3 March 2000.
43
Id.

5
In the present case, Tansenians were tortured, abused and were subjected to organ harvesting

and forced sterilisation,44 Therefore, it can be concluded that they were severely deprived of

their fundamental rights.

b) The victims were targeted by reason of collective identity

The individuals are targeted because of their identity with the group or collectivity. 45 In the

Kvocka et al. appeal judgement, the chamber held that all the detainees were part of the non-

Serb group and therefore, it can be concluded that they were detained because of their

membership to that group.46 Similarly, in case of Raiya, all the individuals that were

arbitrarily detained were Tansenians47 and the group was also subjected to societal

discrimination.48 Therefore, it can be concluded that the individuals were targeted for their

identifiability and the government had no other basis to eliminate them.

c) The grounds of persecution were racial, ethnic, cultural, religious.

In the Dordevic case, the Trial Chamber held that the fact that the victims in persecution and

murders that took place in Serbia were mostly Kosovo Albanians implied that crimes were

carried out against on ethnic group.

Since 1950s, the Raiyan Government has been targeting the people of Tansenian ethnicity.

The group was being forced to abandon their own religious practices 49 while the Bonn culture

and language was being promoted.50 Furthermore, as per all the reports published on the

situation in Raiya, no member of the Bonn ethnicity was transported to the internment camp

44
Moot Proposition, ¶9.
45
Otto (n33).
46
Prosecutor v. Kvocka et al., IT-98-30/1, AC, 28 Feb 2005, ¶366
47
Moot Proposition, ¶9.
48
Id.
49
Moot Proposition, ¶9.
50
Moot Proposition, ¶¶ 5, 9.

6
nor was persecuted.51 Therefore, it can be concluded that the Tansenians in Raiya were

subjected to atrocities because of their ethnicity and religion.

d) There was presence of a connected crime under art 7.

The persecution committed on the Tansenians was done in connection with other acts that are

referred to in article 7(1).52 The coercive environment has forced an exodus of Tansenians

into the neighbouring state of Tigerstan. The argument that the elements of the crime of

deportation has been made above.

In Dordevic case, the Trial Chamber held that destruction of religious property is considered

an act grave enough to fall within the ambit of CAH. 53 It is established that religious sites of

the Tansenians were destroyed, 54 making it a crime of persecution.

Therefore, it can be concluded that there is reasonable basis for the Court to believe that the

deportation and persecution has occurred under the ambit of the statute.

II. THE INTERNATIONAL CRIME COURT HAS JURISDICTION OVER THE

CRIMES IN THE STATE OF RAIYA AS PER ARTICLE 12(2)(A)

Under article 12(2)(a) of the Statute, the ICC can exercise territorial jurisdiction on an act

listed in Article 555 if the conduct in question has occurred on the territory of the State party

to the Statute.56 The Court can exercise its jurisdiction in the present case because CAH has

been conducted (i); on the territory of a state party (ii).

1. THE CONDUCT HAS TAKEN PLACE

51
Moot Proposition ¶6.
52
EoC art 7(1)(h).
53
Prosecutor v. Vlastimir Dorđević, IT-05-87/1, AC, 27 January 2014, ¶567.
54
Moot Proposition, ¶9.
55
Statute, art. 12.
56
Statute, art. 12(2)(a).

7
The first element for any crime under article 5 of Rome Statute is conduct. 57 Albeit conduct

as an element has been understood as a ‘positive act or omission prohibited’, 58 as per

‘authentic guide to interpretation of a statute’59 says that the contextual interpretation should

be taken into account by taking the relevant applicable international law in account.60 In

Myanmar case, the Pre -Trial chamber held that conduct in article 12(2)(a) means “only that

‘at least one legal element of an article 5 crime’ must occur on the territory of a State

Party”.61

For the element of conduct for the crime of deportation, the victims has to cross the de jure or

de facto border.62 Therefore, while the acts that lead to the forcible displacement occurred in

the State of Raiya, the conduct became the crime of deportation when the refugees arrived at

the land of Tigerstan.

2. ON THE TERRITORY OF A STATE PARTY

For the Court to exercise its jurisdiction, the crime in whole does not necessarily take place in

a party state, a part of the elements of the crime takes place in the party State for territorial

jurisdiction.63 In the Situation in Korea case, in a cross-border firing, the act of shooting

could be separated from the act of hitting the target and thus, the Court exercised its

jurisdiction on Democratic Republic of Korea.64

Since part of the crime was conducted in Tigerstan, which is a State party to the Statute, 65 it is

submitted that the ICC has jurisdiction over the current matter.

57
EoC (n3).
58
Popovic (n35).
59
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06, OA 8, 13 June 2007, ¶8.
60
Vienna Convention on the Law of Treaties, art. 31(3)(c).
61
Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of
the Statute”, ICC-RoC46(3)-01/18, PTC, 6 September 2018, ¶63
62
Stavic (n32) ¶278.
63
Situation in the Republic of Korea, Article 5 Report, June 2014, ¶39.
64
Id.
65
Moot Proposition, ¶3.

8
III. THE TRIBUNAL HAS EXCEEDED THE POWER UNDER SECTION 242 OF

THE INDIAN COMPANIES ACT, 2013

Section 242 of the Companies Act, 2013 [“Act”] deals with the powers of the National

Company Law Tribunal [“Tribunal”] to pass orders to regulate the conduct of the business

affairs of the company for the prevention of mismanagement and oppression in the

company.66 The Tribunal has exceeded the power provided to it under the Companies Act by

one granting any reliefs under the Insolvency and Bankruptcy Code, 2016 [“Code”] (i) and

second that this grant by the Tribunal is ultra vires of the Code (ii).

1) THE TRIBUNAL CANNOT GRANT ANY RELIEF UNDER THE INSOLVENCY AND

BANKRUPTCY CODE, 2016.

It is well established that Code is not applicable to Non-Banking Financial Companies

[“NBFCs”].67 Section 227 of the Code explicitly states that the Code would only be

applicable on an NBFC when the Central Government notifies the Financial Service Provider

(also known as NBFC) of the same. 68 In the present case, the Central Government has not

notified Bruce Financial Solution Company Limited [“BFSC”], which is an NBFC69 and

therefore, the Code is not applicable to the company.

However, in the present case, the Tribunal has prohibited proceedings against BFSC and its

subsidies for a resolution process, a relief that is granted solely by invoking section 14 of the

Code.70 Since the Code is not applicable on BFSC, this action of the tribunal is ultra vires of

its powers.

66
Act s.242.
67
Code s. 227.
68
Id.
69
Moot Proposition, ¶15.
70
Code s.14.

9
 2) THE GRANT OF MORATORIUM IS ULTRA VIRES OF THE CODE.

Section 64(2) of the Code explains that any ongoing proceedings in the Tribunal or the

National Company Law Appellate Tribunal [“Appellate Tribunal”] under the Code cannot

be injuncted by any court or authority. 71 The same has been reiterated by section 231 of the

Code which provides for bar on jurisdiction. 72 Further, in case of inconsistency, the Code has

an overriding effect on the Act.73

In the present case, the legal proceedings have been prohibited against BFSC along with its

subsidiaries.74 However, all the subsidiaries of BFSC are not NBFCs 75 and Code is applicable

on them. Also, the Corporate Insolvency Resolution Process as per section 53 of the Code

was ongoing for some subsidiaries which was suspended by the Tribunal through the

impugned order.76 The ongoing or future proceedings of the subsidiaries on which the Code is

applicable cannot be restricted by the powers of the Tribunal under Section 242.

Therefore, it can be said that the Court has exceeded its power under Section 242 of the Act

and granted relief which are available under code.

IV. THE CONTRACTUAL RIGHTS OF THE LENDERS CANNOT BE

UNILATERALLY MODIFIED BY THE TRIBUNAL

The relief granted by the Tribunal modifies the contractual right of the creditors to realise

their debtin the name of public interest77. However, the Tribunal cannot do so under Section

242 as right to realise debt is right to property (i); the party concerned did not provide consent

(ii); and in arguendo, contractual rights are public interest (iii).

71
Code s.62.
72
Code s.231.
73
Id.
74
Moot Proposition, ¶24.
75
Clarification, The Winter Intra-University Moot Court Competition, 2021
[“Clarification”], Q4
76
Clarification Q5
77
Moot Proposition, ¶27

10
 1. RIGHT TO REALISE DEBT IS PROTECTED BY THE CONSTITUTION

The contractual right to recover the interest and principal amounts of the parties constitute

‘property’ in the legal sense.78 “Property is the most comprehensive of all terms which can be

used, in as much as it is indicative and descriptive of every possible interest which the party

can have.”79 The right of the creditors to realise their debt thus becomes the right to property

as per Article 300A of the Constitution.80

The provisions of Act do not allow the Tribunal or the Appellate Tribunal to tamper with the

rights that are protected under the constitution. Section 424(1) of the Act allows for the

tribunals to follow their own procedure. 81 However, this procedure for the purpose of

provisions of the Act and the Code.82

Additionally, the inherent powers of the Tribunal provided under Rule 11 of the National

Company Law Tribunal Rules, 2016 [“Tribunal Rules”] protects the powers of the Tribunal

and does not present any additional power. 83 Therefore, in the present case, the Tribunal

cannot bestow upon itself, the power to pass an order outside the ambit of it power by altering

the provisions of the contract.

2. THE PARTY CONCERNED DID NOT PROVIDE CONSENT

Section 242(2)(f) of the Act provides for a clause that the tribunal can modify the contract

between the company and a third party.84 However, the proviso restricts this power to due

notice and consent of the party concerned.85 In the absence of such consent, the Court cannot

78
Durga Das Basu, Commentary on the Constitution of India, Vol.13 (Lexis Nexis 2018, 9th
edn.).
79
Id.
80
Constitution of Raiya, 1950 art. 300A.
81
Act s. 424.
82
Id.
83
Tribunal Rules r.11.
84
Act s. 242(2)(f).
85
Id.

11
use the section to alter any clause of the contract. The stakeholders, which includes the

creditors, are one of the parties concerned in that contract.

In T.P. Sokkalal case, the Court held that while exercising the residuary powers in section

242(2)(m), the object of the section has to kept in mind. 86 The directions have to be given to

help the internal management of the company and not to raise dispute about debts due to third

parties.87

In the absence of a law providing power to unilaterally modify in the contract between two

parties, the tribunal cannot exercise the same. Therefore, power provided to the Tribunal in

clause (m) cannot override the safeguard provided to the contracting party in section 242(2)

(f) in the present case. Thus, without any notice to or consent of the creditors, the court

cannot alter any clause of the contract.

In the present case, the Tribunal did not send a notice or take the consent of Goliath National

Bank [“GNB”] and other creditors before prohibiting legal proceedings on BFSC and

allowing the resolution mechanism that would decide upon the amount distributed to each

creditor.

3) IN ARGUENDO, THE RIGHTS OF THE CREDITORS ARE ALSO PUBLIC INTEREST

In arguendo, if the Tribunal has the power to unilaterally modify contracts in the pretext of

public interest, the rights of the creditors also constitute public interest. Public interest in

various cases has been interpreted as encompassing welfare of the society. 88 It has also been

held that an interest by which legal right or liabilities are being affected constitutes public

86
T.P. Sokkalal Ram Sait Factory (P.) Ltd., (in re ), (1978) 48 Comp Cas 503.
87
Id.
88
Municipal Corporation of City of Ahmedabad v. Jan Mohd. Ushnanbhai, (1986) 3 SCC 20.

12
interest.89 Further, the public interest also includes the honor of debts in accordance with the

terms.90

However, in the current factual matrix, the Tribunal has failed to take into consideration the

interest of the public by unilaterally modifying the contracts which is contrary to the interests

of public and thus, should be struck down. The unilateral modification of contracts in the

present case is contrary to the interests of the public and therefore, should not be allowed in

this case.

V. THE RESOLUTION PROCESS AS PER THE ORDER IS NOT LAWFUL

The resolution process as per the order of the Tribunal in the present case does not have the

backing of law because it is not followed as the provisions of the Act (i); and violates the

principles of natural justice (ii).

1. THE RESOLUTION PROCESS DOES NOT ABIDE BY THE PROVISIONS OF THE ACT

Whereas the Tribunal applied the power of moratorium that was only available in the Code

which was upheld by the Appellate Tribunal, it refused to apply section 53 of the Code in the

name of public interest.91 Without resolution under section 53 of the Code, the alternative is

present in section 230 of the Act where the creditors and the company can enter into a

compromise or arrangement in case the company is liable to be wound up. 92 Even where the

Code could be applied, the liquidator was directed to undertake the process of liquidation as

per section 230.93 This arrangement or scheme can be proposed to the Tribunal either by the

89
R. v. Bedfordshire, (1992) 4 SCC 305.
90
Ian F. Fletcher, “Juggling with Norms: the Conflict Between Collective and Individual
Rights Under Insolvency Law” in Ross Cranston, ed., Making Commercial Law: Essays in
Honour of Roy Goode (Oxford: Clarendon Press, 1997) at 393.
91
Moot Proposition, ¶27.
92
Act s.230.
93
SC Sekaran v. Amit Gupta and Ors., Order dated 29.01.2019 in Company Appeal (AT)
(Insolvency) No. 495 & 496 of 2018.

13
creditor(s) or a member(s).94 Thereafter, the scheme requires the approval of the majority of

each class of creditors and members.95 Another essential step before sanctioning of the

scheme is the opportunity to raise objections and to be heard.96

Further, the Court held that the approval of a scheme of reconstruction cannot be done so

without hearing the relevant parties.97 However, section 242 cannot be invoked for the

resolution process of a debt-ridden company as was done in the present case.

2. There is violation of principles of natural justice

Section 424 of the Act provides that the Tribunals can set their own procedure provided they

follow the principles of natural justice.98 In the Metalliks case, it was held that while

adjudicating on any matter, Tribunal and Appellate Tribunal have to abide by the principles

of natural justice ‘above everything’.99 One important principle is that all parties should be

heard. In Unitech Ltd.case where the latter was going into liquidation, the stakeholders were

duly heard100 and were given the opportunity in the resolution process by the Apex court.101

However, the same did not occur in the present case and GNB and other creditors whose

rights were directly being affected by the order of the tribunal in the matter of BFSC were not

heard.102 The mechanism of resolution was forced upon the creditors without any consultation

with the stakeholders. Therefore, the Tribunal violated the principle of natural justice

undermining the legality of the resolution process.

94
Act s.230.
95
Id.
96
Id.
97
K.R.S. Mani v. Anugraha Jeweller Ltd., (2000) 100 Comp Cas 665.
98
Act s.230.
99
Sree Metaliks Limited and another v. Union of India and anr., 2017 SCC OnLine Cal 2749.
100
Bhupinder Singh v. Unitech Ltd. Order dated 31.07.2018 of Civil Appeal No.10856 of
2016.
101
Id.
102
Moot Proposition, ¶24.

14
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly and respectfully prayed before this Hon’ble Court of Raiya, that it

may be pleased to:-

(1) Hold that crime against humanity as per article 7(1)(d) and (h) has occurred within the

territory of Raiya.

(2) Hold that the International Criminal Court has jurisdiction over the crimes in Raiya.

(3) Hold that the Tribunal did not have the power to grant moratorium.

(4) Hold that the contractual rights cannot be unilaterally modified.

(5) Hold that the resolution process was unlawful.

And pass any other order that it may deem fit in the ends of justice and good conscience.

Date: 13th January 2021 Counsel No. 001A

Place: SDL City (Counsel for Appellant)

15