TEAM CODE:

MEMORIAL FOR CLAIMANT

IN THE MATTER OF AN ARBITRATION

CONDUCTED BEFORE THE ARBITRAL TRIBUNAL

MITCH INFRASTRUCTURE CO ... (APPELLANTS)

v.

NATIONAL WAREHOUSING CORPORATION (NWC) ...(RESPONDENTS)

WRITTEN SUBMISSIONS FOR APPELLANTS

MEMORANDUM FOR APPELLANTS [TABLE OF CONTENTS]

TABLE OF CONTENTS

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MEMORANDUM FOR APPELLANTS [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

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MEMORANDUM FOR APPELLANTS [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The claimant has approached this Honourable Tribunal under Article 16 of UNCITRAL
Model Law on International Commercial Arbitration (1985) and Article 32 of the contract
that deals with dispute resolution.

ARTICLE 32 dispute resolution clause of the contract.

“If any dispute arises regarding the interpretation, fulfilment or obligations of the parties
under this agreement, the parties may attempt amicable settlement of disputes within a period
of 20 days from the day the dispute arises. If the disputes are not settled within the said
period, it shall be deemed to have failed, unless the parties agree otherwise to extend the
period of time.

If the parties are not able to resolve their dispute amicably, each party shall outline their
disputes in a notice for conciliation and also appoint a conciliator to the conciliation panel
within 30 days to resolve the disputes between the parties. On the failure of the appointment
of a conciliator by one of the parties, the conciliation can move forward as a one-member
conciliation panel by the conciliator appointed by the other party. The conciliation should be
completed within 90 days and shall be governed by the London Court of International
Arbitration - Mediation Rules. If the conciliation is not completed within the said period, it
shall be deemed to have failed, unless the parties agree otherwise.

If the parties are not able to resolve their disputes, they may settle the same via arbitration.
The arbitration of the disputes will be referred to a three-member arbitral Tribunal. Each
party shall appoint an arbitrator within 30 days and the two party appointed arbitrators will
appoint the Third/ Presiding arbitrator to resolve the disputes between the parties. The
arbitration will be governed by the UNCITRAL Model Law of Arbitration and the place of
arbitration shall be Trongo, Durbaria and the substantive law governing the contract will be
of Durbaria.”

Article 16 of UNCITRAL Model Law on International Commercial Arbitration (1985)

“Article 16. Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement. For that purpose, an
arbitration clause which forms part of a contract shall be treated as an agreement independent
of the other terms of the contract. A decision by the arbitral tribunal that the contract is null
and void shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the
submission of the statement of defence. A party is not precluded from raising such a plea by
the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that

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MEMORANDUM FOR APPELLANTS [STATEMENT OF JURISDICTION]

the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as
a preliminary question or in an award on the merits. If the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party may request, within thirty days after
having received notice of that ruling, the court specified in article 6 to decide the matter,
which decision shall be subject to no appeal; while such a request is pending, the arbitral
tribunal may continue the arbitral proceedings and make an award.”

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MEMORANDUM FOR APPELLANTS [QUESTIONS PRESENTED]

QUESTIONS PRESENTED

1. Whether the arbitral tribunal has jurisdiction to hear the claims of the
Contractor considering the steps of the dispute resolution procedure under the
contract have not been followed as alleged by the Employer?
2. Who is responsible for the delay in the performance of the contract and who is
entitled to damages, if any, and to what extent?

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

STATEMENT OF FACTS

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

SUMMARY OF PLEADINGS

[ISSUE I]

W?
[ISSUE II]

Who is responsible for the delay in the performance of the contract and who is entitled
to damages, if any, and to what extent?

It is submitted that the delay was not caused on part of Mitch Infrastructure and co. 1 because
firstly, there was a delay in handing over the land as seen in the letter dated 10 th November
2016 in which MIC mentioned that almost 27% of project land was under the possession of
Mujtabian Port Trust and was fenced by the Mujtabian Port Trust. At a later stage via a letter
dated 30th December 2016, National Warehousing Corporation2 redrew the project site and
the disputed 27% of the land was removed causing the contract to be altered under §62 of the
Indian Contract Act, 1872. MIC via letter dated 5th January 2017, notified of the extra damage
it was entitled to due to the breach by NWC. Secondly, the delay in handing over and
deteriorating soil conditions caused due to delay in handing the site over and change in the
original site plan. MIC via a letter dated 7th November 2019, requested an extension and the
right to claim any damages caused due to the delay. Thirdly, Due to the pandemic declared by
the Government of Durbaria on 1st March 2020, all movement was restricted and the
construction was stopped at 87% completion on 15th March 2020. The contract was frustrated
as under §56 of The Indian Contract Act,1872 the declaration of complete lockdown caused
the construction to have come to a halt. Construction resumed in August 2020 and was
completed in March 2021. A final bill of 30 million dollars, plus 15 million for the
reinforcement of the foundation and an additional 9 million for the delay in handing over land
by the NWC was asked. Total compensation worth 54 million is to be paid on part of NWC
to MIC as stated on 3rd April 2021. NWC on 21st April 2021, denied any obligation and
caused deterrence to MIC by way of stopping their payment, to add to this misery they
encashed the Performance Bank Guarantee worth 18 million dollars on 29 th April 2021.
Fourthly, the letter dated 14th May 2021 MIC clarified that there was not any delay on their
part and that NWC had illegally encashed the bank guarantee. In addition to the above-

1
Hereafter referred to as MIC
2
Hereafter referred to as NWC

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

mentioned amount of compensation of 54 million another 18 million dollars have to be paid

to MIC plus a 10% interest compounded annually on the total amount of 72 million dollars
from the date of the said letter.

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

PLEADINGS

1. WHO IS RESPONSIBLE FOR THE DELAY IN THE PERFORMANCE OF

THE CONTRACT AND WHO IS ENTITLED TO DAMAGES, IF ANY, AND TO
WHAT EXTENT?

[1]. NWC has caused the delay in the performance of the construction contract by not
fulfilling its obligations under contract3. It is submitted that firstly, MIC should not be held
liable under the aforementioned delay as they acted in the utmost professional capacity.
Consequently, NWC should be directed to give all dues to MIC with the required interest.

A. DELAY IN RELATION TO LAND

[2]. It is submitted that NWC caused the delay in handing over the land required land for
the construction of the warehouses. Firstly, in the letter dated 1st November 2016, during the
initial stages of clearing the demarcated project site for commencing the construction work,
MIC notified NWC that almost 27 % of the project site was under the possession and
control of the Mujtabian Port Trust and was fenced by the Mujtabian Port Trust.4 Secondly,
due to the negligence of the NWC the project started on a later than expected timeline
instead of the decided date of 1st November 20165 for the commencement of construction,
the process to hand over the land to MIC was initiated on 5 th January 20176. Thirdly, it is
submitted that due to the change in the location of the land the original contract stands
altered7.

1. DELAY IN HANDING OVER THE LAND DUE TO DISPUTE.

[3]. MIC entered into a contract with NWC for the construction of warehouses under the
impression of having a smooth business transition but since the start, it has been a rough
road as there was a delay in handing over the land, due to the land assigned not even under
the possession of the contracting party.8

3
¶12, Factsheet.
4
¶12, Factsheet.
5
¶6, Factsheet.
6
¶17, Factsheet.
7
¶16, Factsheet.
8
¶12, Factsheet.

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

[4]. It is submitted that the assigned land was under the possession of Mujtabian Port
Trust to the extent that 27% of the total assigned land was under their possession. A letter
dated 10th November 2016, to the NWC to seek clarification regarding the same resulted in
the start of a tenacious dispute regarding the clarification which spanned over several
months causing a delay in the start of the project.9
[5]. According to the terms of the contract, the land was supposed to be handed over to
MIC and the construction was to be started by 1 st November 2016, but due to the dispute, a
delay of several months was caused which led to the MIC losing time and suffering
monetary losses. As notified by MIC in a letter dated 17 th November 2016, it had reserved
the right to damages caused due to delay in handing over the land.10

2. DELAY DUE TO THE SOIL CONDITIONS OF THE LAND.

[6]. NWC has misrepresented the condition of the soil in the report attached in offer 11,
although it was stated that it was the prerogative of MIC to conduct due diligence before the
bid. It was implied that the report provided in the contract would be for the reliance of the
bidders, to add to that the report was in favour of NWC, as if the contents of the report were
to rely upon no additional cost would have occurred.
[7]. This is supported by the fact that when the inspection of the project site was being
conducted on 30th March 2016, it was found that the site had loose soil and an additional 15
million Durbaraian Dollars will be added to the expenses12.
[8]. NWC was the only entity being unjustly enriched by way of the flawed report as it
would have raised the tender cost if the contents of the report were not altered. In addition
to the unjust enrichment of NWC via the manipulation of the soil report, they have also
breached their duty to report the true conditions of the land and its status. Which makes it a
clear cut case of misrepresentation13.
[9]. Moreover, it is submitted as the position as there was a dispute regarding the land and
to resolve it 19% additional land was given in the north-east direction, the terms of the
contract were altered as under §62 of The Indian Contract Act,1872 and extra damages
amounting to maximum 10% were to be given to MIC for the breach on part of NWC14.

9
¶14, Factsheet.
10
¶15, Factsheet.
11
¶10, Factsheet.
12
¶9, Factsheet.

13
Vaughan v Menlove 3 (Court of Common Pleas)

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

[10]. Accordingly, it is submitted that due to the delay in the transfer of land and the
alteration in the designated land position combined with the manipulated report provided by
NWC caused the delay in the completion of the project as the abovementioned instances
were major hindrances to the commencement of the project.

B. DELAY IN PERFORMANCE OF CONTRACT DUE TO THE PANDEMIC

[11]. It is submitted that as of February 2020, CoVID-19 was declared a pandemic by the
World Health Organization, Government of Durbaria declared a complete lockdown in
Durbaria and restricted movement of all persons from 1st March 2020 onwards Due to this
no construction activity could take place rendering the contract impossible to perform as per
§56 of The Indian Contract Act,1872.
[12]. It is submitted that as the Government of Durbaria declared a lockdown the contract
became impossible to perform the completion of the contract became impossible to
perform15.
[13]. Due to the effects of lockdown, the workforce and required raw materials could not be
arranged by MIC which was material in the completion of the contract. Hence, the act
became impossible to do rendering the contract frustrated.16
[14]. It is submitted that as the lockdown was imposed in Durbaria, there was a change of
circumstances which rendered the contract impossible to perform and hence frustrated as
the change of such circumstances was not brought about by any of the parties.17

1. FORMATION OF A NEW CONTRACT.

[15]. It is submitted that as of August 2020 MIC restarted the construction to which no
objection was raised and on 3rd April 2021 raised its final bill for an amount totalling 54
Million Durbarian Dollars.18

14
¶17, Factsheet
15
(Taylor v. Caldwell, [1863]) 3 B&S 826; 122ER309
16
Satyabrata Ghose v/s Mugneeram Bangur [1954] 1954 AIR44, 1954 SCR310 (Supreme Court of India).
17
Parmeshwari Das Mehra v/s Firm Ram Chand Om Prakash [1951] 46 Of 1949 (High Court of Punjab and
Haryana).
18
¶23, Factsheet.

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MEMORANDUM FOR APPELLANTS [PLEADINGS]

[16]. It is submitted that in light of the above-mentioned facts, there have been instances of
alteration of contract as mentioned in paragraph [7], and frustration of contract as
mentioned in paragraph [9] of the submission. It is further stated that even after NWC was
notified that construction had resumed it had raised no objection.
[17]. It is requested of the tribunal to allow claims to MIC under the principle of quantum
merit19 and give adequate compensation as demanded by MIC.

2. IN ANY CASE, RESPONSIBILITY LIED ON SHAREONN AND LEXPLANN

ABSOLVING M&G FROM LIABILITY.

19
State of Madras v. Gannon Dunkerley & Co. (Madras) [1959] SCR 379 (Supreme Court of India).

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MEMORANDUM FOR APPELLANTS [PRAYER]

PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed before this Hon’ble Court that it may be pleased to adjudge and declare that:

I. M&G should be allowed to withdraw the Takeover offer.

II. M&G, ShareOnn and LexPlan have not issued wrongful statements about the
financial status of M&G in the public announcement and Draft Letter of Offer.

III. M&G should not be directed to remove the information related to the Non-
Disclosure Agreement from the Draft Letter of Offer.

IV. M&G, CF and SF have not violated the disclosure requirements by not disclosing
about the TRESAs.

V. SEBI has erred in refusing to take action against IntellSap and Honsys.
Furthermore, the break fee clause should be declared as invalid and appropriate
actions should be taken to ensure that M&G and Honsys are on a level playing
field, if M&G is compelled to complete the open offer.

And pass any other order as it may deem fit in favour of the APPELLANTS to meet the ends
of justice, fairness and equity.

All of which is humbly prayed.

Date: (S/d)

Place: Counsels for the Appellants

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