EXERCISE 1

IN THE HIGH COURT OF DELHI AT NEW DELHI

O.M.P (I) (COMM.) / 2022

IN THE MATTER OF:

Moby Dick & Co. Pvt Ltd.

New Delhi
…. Petitioner
VERSUS
Jewel Broadcast Corporation
New Delhi
…. Respondent

AAPLICATION UNDER SECTION 9 OF THR ARBITRATION

AND CONCILIATION AMENDEMENT ACT 19962015

MOST RESPECTFULLY SHOWETH:

[1.] The petitioner Moby Dick & Co. Pvt. Ltd. and its registered office at New
Delhi. The main object of the petitioner is to provide the contractual service
and establish tower. Its one of the directors of the Petitioner company and
has been duly authorized vide Board resolution dated 19-09-2017 to sigh,
verify, file and institute the present Petition. The true copy of the Board
Resolution is annexed herewith and the same is marked as Annexure 1.
[2.] The Respondent i.e., Jewel Broadcast (hereinafter referred to as “the
Respondent” is an entirely engaged, inter alia, in the business of a statutory
public broadcast corporation. The Respondent (Jewel Broadcast) floated the
tender for the purpose of the supply, installation, testing and commissioning
of 300-meter steel TV Tower.,
1. The Applicant and the Respondent shall hereinafter be collectively referred
to as “the Parties”.
2. The Respondent had floated a tender inviting the bids for erecting a 300-
meter steel TV tower (hereinafter referred to as “the Tender”) and The
Applicant petitioner was the successful bidder of the said tender. and The
the letter of Award was issued in its favour of the Applicant on 16.05.2015,
followed by the execution of the contract on 01.06.2015 between the parties.
and then the contract was executed on 01.06. 2015.
[3.] The tower had to be erected within the period of 12 months from the date of
execution of the contract dated commencement i.e., 01-06-2015. The
contract between the parties clearly provided that the time was not the
essence of the contract.
[4.] In the contract it It was clearly mentioned under clause 3 that the contract
provided for the extensions but in case of the extension it had stated that
Liquidated Damages could be imposed on the Contractor by the Employer
while granting the extensions. Clause 11 of the contract envisaged
termination of contract in the event of default on the part of the Contractor.
[5.] The Applicant Petitioner started the work but due to unforeseeable
circumstances, was unable to finish the work on time prescribed, therefore
asked for the extension of 3 months i.e., till 31-08-2016. The respondent
considered the request and gave the extension.
[6.] However, The the ApplicantPetitioner could not complete the work even
after the expiry of the extension period due to weather conditions and lack of
supply of raw material. The TherebyApplicant Petitioner demanded for
another extension of 2 months i.e., till 31-10-2016 during this period the
Respondent undertook inspection of the tower and alleged that the tower had
a verticality issue, therefore the petitioner was alleged to rectify the same.
3. The Contractor further sought three extensions for the extra work it had
undertaken to rectify the vertical standing of the TV Tower. The three
extesnions were taken by the Contractor in the month of October 2016,
January 2017 and April 2017. Therefore, the contractor completed the work
on 31.10.2017.
[7.] The Rrespondent claimed that no work was done by the Applicant
Petitioner whereas, the ApplicantPetitioner had to undertake extra work to
rectify the issues stated by the Respondent and some of which was beyond
the scope of the work of the Petitioner.
[8.] That Clause 11 Clause 7 of the contract provides that the Respondent was
obliged to undertake the inspection after every 100 meters but he visited the
construction after every 220 meters and pointed out the verticality issue and
 the petitioner claims that the inspection was not done thereby., the
respondent was also at fault.
[9.] The Respondent sent the letter dated 13-02-2017 and 27-03-2017 to the
Applicant Petitioner issuing the warning stating that the work should be
completed latest by 31-07-2017 up to which the delivery period has been
extended.
[10.] The Applicant Petitioner sent another letter dated 29-06-2017 stating for
the request for extension till November, 2017.
[11.] The Respondent respondent by its show cause notice dated 30.08.2017
alleged that it had reviewed the entire matter and in the light of the
performance of the Applicant Petitioner and asked it to show cause as to why
the contract be not terminated and work be completed at its risk and cost.
[12.] Thereafter the Applicant petitioner sought three extensions on account of
the extra work it had to undertake considering the verticality issue pointed
out by the Employer. The said extensions were given in October 2016,
January 2017, and April 2017 and the completion date stood at 31.10.2017.
[13.] The Respondent thereby terminated the Contract vide letter dated 15-10-
2017, the Applicant petitioner on the termination of the contract raised a
final bill dated 03.01.2018 also raised an invoice for the extra work it had
undertaken on 14.01.2018.,However, however the Rrespondent denied the
payment and stated that no amount was payable. The Applicant petitioner
repeatedly wrote to the Rrespondent to pay the final bill, but the Rrespondent
stopped responding to the said letters send by the Applicant petitioner herein
Annexure No 2.
[14.] On May 2018, the Applicant petitioner got to know that that a new tender
has been taken out by the Respondent for completion of the erection of the
TV Tower. It is pertinent to note that the Applicants petitioner’s raw material
lying at the site as well as its machinery which Rrespondent refused to
return, the Petitioner petitioner wants its material and machinery to be
returned before any such tender is awarded. It is extremely crucial for the
business of the Applicant petitioner because the machinery needs to be top
up time to time otherwise, it will go in waste and will of no use.
[15.] The Rrespondent vide with fraudulently and dishonest intention withheld
the payment, terminated the contract and also refused to return the
machinery and raw material.
4.[16.] It is pertinent to mention that in terms of the Contract entered between
the parties that all the disputes arising in respect of the said agreement are to
adjudicated upon by the way of Arbitration proceedings. The relevant
excerpt of the Clause 3 of the Contract is reproduced hereunder for the
Convenience of this Hon’ble Court.
 “The Contract also contained an arbitration clause to decide any dispute
arising out of the contract between the parties.”
[17.] The Applicant petitioner seeks to invoke the Arbitration Clause between
the parties to adjudicate disputes between the parties as to who is responsible
for the breach, which needless to say, has to be adjudicated as per the terms
of Arbitration Clause mentioned.
[18.] The Applicant Petitioner is aggrieved of the said actions of the Respondent
and thus preferring the present petition on the following amongst other
grounds:

GROUNDS
[A.] It Because it is settled principle of law that fraud vitiates the most
solemn proceedings. Fraud and justice never dwell together. It is also
well stelled that misrepresentation itself amounts to fraud. It is a fraud
in law if the parties make representation, which he knows to be false,
and causes legal injury therefrom although the motive from which the
representations proceeded may not have been bad. An act of fraud on
court is always viewed seriously. A collusion or conspiracy with a
view to deprive the rights of others in relation to a property would
render the transaction void as initio. Fraud and deception are
synonymous. Fraud is anathema to all equitable principles and any
affair tainted with fraud cannot be perpetuated. Thereby the
termination of the contract done by the Respondent was fraud in
nature.
[B.] It Because it is settled principle of law that invocation non payment
of invoices and fraudulently passing the tender to the other party will
leads to the invocation itself to be bad.
[C.] The Applicant Because the petitioner can make the prima facie case
and element of fraud exists, the court have stepped in to prevent one of
the parties to the contract from deriving unjust enrichment by invoking
the contract.
[D.] Even though the Respondent recognized difficulties faced by the
Applicant and petitioner nad approved certain extensions for the fact
that the weather conditions and other things which were beyond the
control of the human being.
[E.] The Because the machineries and raw material kept on the site was
refused to be given by the Rrespondent with the fraudulent intentions.
[F.] TheBecause the damages constitute compensation which a Court of
Law gives to party for the legal injury which he has sustained and the
 aggrieved party does not get the damages or compensation by reason
of any existing obligation on the part of the person who has committed
the breach. He gets the compensation as a result of fiat of the Court.
Therefore, it must be decided by the Court, in the first instance that the
Applicant Petitioner is liable and then it proceeds to asses what
liability is till that determination, there is no liability at all which can
be recovered. Thereby the extra work done by the Applicant Petitioner
was not duly recognized and given much weightage which must have
bebeen paid properly by the Respondent.
[19.] The ApplicantPetitioner suffered irreparable loss and injury in case the
Rrespondent is not restrained from giving back the machinery and raw
material of the Applicant petitioner kept on the site. Further the same would
amount to the respondent in case the fraudulent termination of the contract is
not been stopped.
5.[20.] The clause of the Agreement clearly stipulated that all disputes arising
between the parties in respect of the said Agreement shall be under the
jurisdiction of the appropriate courts in Delhi. The relevant excerpt of Clause
16 is as follows.
“For the said purpose, the Contractor approaches you to file an application under
Section 9 of the Arbitration & Conciliation Act, 1996 before the High Court of
Delhi.”
6.[21.] Further, Clause 16 of the contract stipulates that the place of Arbitration
shall be Delhi. The registered office of the Respondent is also located within
the territorial jurisdiction of the Hon’ble Court.
7.[22.] The value of the purpose of the court fee has been fixed at Rs. X on
which fixed court fees has been paid.
[23.] The Applicant petitioner has not filled any other similar petition either
before this Hon’ble Court or before the Hon’ble Supreme Court of India.
PRAYER
It is most respectfully prayed that this Hon’ble Court may be pleased to:
[a)] To Pending initiation, hearing and final disposal of the arbitration
proceedings, restrain the Respondent from in any manner whatsoever
from either destroying, utilising or selling or handling in any manner
whatsoever the raw material and,
[b)] Directing Pending initiation, hearing and final disposal of the arbitration
proceedings, the respondent to return the machinery that is already on the
site before any award been given to any other contractor and clear the
remaining payment left.
 [c)] Grant an Stay and interim injunction of the operation of the invocation
letter dated issued by the Respondent to the Applicant Petitioner; and
a)[d)] Any other order or relief as this Hon’ble Court deems fit and proper
may be passed in the fact and circumstances of the present case.
New Delhi,
Dated (06-10-2022)
Petitioner
Through
Vaishnavi Rastogi
EXERCISE 2

APPLICATION FOR INTERIM RELIEF UNDER SECTION 17

Before the Hon'ble Arbitral Tribunal Inin the Matter of Arbitration

Between
Moby Dick & Co. Pvt Ltd.
….…. Applicant Claimants;

Versus

Jewel Broadcast Corporation …

Respondent.Opposite Party
Application for Interim Relief under Section 17 of the Arbitration &
Conciliation Act, 1996

The claimant above mentioned above beg to state as under:

1. That the aforesaid arbitration proceedings were commenced pursuant to
order dated 13-02-2018 of the ABZ appointing the Learned Arbitrator as
the arbitrator from the claimant’s side in the present case. The employer
also appointed its Arbitrator by a reply dated 27.02.2018, The two
arbitrators together appointed the Presiding Arbitrator and the Tribunal
was constituted to adjudicate the dispute.
2. Statement of claims was filed by the claimants before this Hon'ble
Arbitral Tribunal. The claim is for a sum of Rs 52 Lakhs, towards the
work undertaken, 30 lakhs for the material lying at site and it also sought
refund of the Liquidated Damages imposed by the Employer.
3. That ever since the respondents have put in appearance, a lame and
hyper-technical defence has been raised; and has been vigorously adhered
 to that this Hon'ble Arbitral Tribunal lacks jurisdiction to adjudicate the
claims.
4. The applicant filed his statement of defence, the applicant claims that the
tower suffered from the verticality issue and therefore the tower has to be
reconstructed at the risk and cost of the respondent.
5. The applicant also justified the imposition of Liquidated Damages. It also
stated that the material once supplied need not be returned as per the
contractor till the completion of the tower.
PRAYER

Wherefore it is respectfully prayed that this Hon'ble Arbitral Tribunal may be

pleased to an amount of Rs. 52 lakhs towards the work undertaken, 30 lakhs for
the material lying at site and it also sought refund of the Liquidated Damages
imposed by the Employer. This Hon'ble Arbitral Tribunal during the pendency
of these arbitral proceedings and as per the mandate of Section 17 of the
Arbitration & Conciliation Act, 1996 in the interest of justice.
Vaishnavi Rastogi
Pune Maharashtra
6-10-2022

Please focus the above-mentioned suggestions and I hope you will improve.

Happy Learning!

Exercise 1– 6/10
Exercise 2– 6/10.

NOTE:
You have made a good attempt to draft the application. However, the
Application missed out certain things;
1. Try to follow the sequence, while drafting any application or suit. To
improve this, you can make notes.
2. Try to give a legal look over to the drafted application and do no use the
causal English, instead use legal words.
 3. The grounds mentioned in the application does not needs to be
highlighted.
4. Be precise and mindful while drafting the prayer clause of any legal
document, as it is the most crucial part of any application or suit.
5. Moreover, if you are working on an application, it is always accompanied
with an Affidavit and Verification, stating about the truthfulness of the
facts mentioned in the Application.
6. A separate page where you need to mention the attachments, attached to
the Application needs to be drafted.
7. Before getting into the drafting, make sure you are that you have proper
understanding of the matter and you do not miss out information given by
the client.
8. Always think for the best for your client. Being an Advocate, you will be
soon representing your own clients before the Courts. In order to take any
favourable order in any application or suit, make sure your drafting is up
to mark and you have made a case.
9. Drafting an application does not complete you task, you need to think
beyond drafting and assume it in a real-life scenario. For this refer the
study material provided to you and check the LMS portal.

Regards,
Abhishek Charan
9876968340
Abhishek.c@lawsikho.in

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