Before The Hon'Ble Supreme Court of India: Participant Code-197R

PARTICIPANT CODE-197R
BEFORE THE HON’BLE SUPREME COURT OF INDIA
In the matter between
DC ENTERPRISES PRIVATE LIMITED

(PETITIONER)
v.
SSN PRIVATE LIMITED AND ORS.

(RESPONDENT)
SLP NO. 1882/2017
Submission before the Hon’ble Supreme Court of India under Article 136 of the Constitution
of India, 1950
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT
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9th INTRA UNIVERSITY MOOT COURT COMPETITION-2017
TABLE OF CONTENTS MEMORANDUM FOR
RESPONDENT
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS..............................................................................................III
INDEX OF AUTHORITIES....................................................................................................IV
STATEMENT OF JURISDICTION........................................................................................VI
STATEMENT OF FACTS........................................................................................................1
ISSUES RAISED.......................................................................................................................3
SUMMARY OF ARGUMENTS...............................................................................................4
ARGUMENTS ADVANCED...................................................................................................5
I. THE HON’BLE COURT OF BOMBAY WAS CORRECT IN DISMISSING THE

PETITION FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF
MAINTAINABILITY............................................................................................................5
A. THE EXCLUSIVE JURISDICTION CLAUSE VIOLATES SECTION 28 OF

THE INDIAN CONTRACT ACT, 1872...........................................................................5
B. “SEAT” OF ARBITRATION HAS THE JURISDICTION....................................6
C. PARTY CANNOT APPROACH COURT BEFORE THE COMPLETION OF

ARBITRATION PROCEEDINGS....................................................................................8
D. THE HON’BLE HIGH COURT OF KOLKATA WILL HAVE JURISDICTION

……………………………………………………………………………………11
II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR

SHOULD NOT BE TERMINATED AS ARBITRATORS................................................12
A. THE PETITIONER SHOULD HAVE CHALLENGED THE APPOINTMENT

WITHIN FIFTEEN DAYS..............................................................................................12
B. THE RELATIONSHIP IS TOO REMOTE AND FAR-FETCHED.....................13
C. THERE ARE NO JUSTFIABLE GROUNDS OF DOUBT.................................15
D. THE AMMENDED ACT WILL NOT APPLY....................................................16
PRAYER FOR RELIEF...........................................................................................................20
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TABLE OF ABBREVIATIONS M EMORANDUM FOR
RESPONDENT
TABLE OF ABBREVIATIONS
AIR All India Reporter

i.e. that is
v. Versus
Del Delhi
CPC Civil Procedure Code, 1908
Anr Another
SCC Supreme Court Cases
SCR Supreme Court Reporter
Ors Others
Bom Bombay
Mad Madras
SLP Special Leave Petition
pg Page
pvt Private
ltd Limited
s Section
sch Schedule
SC Supreme Court
HC High Court
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INDEX OF AUTHORITIES MEMORANDUM FOR
RESPONDENT
INDEX OF AUTHORITIES
Cases
A Joint Venture of Daelim Industrial Co v M Sahai and Associates Pvt Ltd, AIR 2010 NOC
843..........................................................................................................................................6
ABC Laminart Pvt Ltd and Anr v A P Agencies, Salem, AIR 1989 SC 1239............................6
Adree Infrastructure Pvt Ltd v Anuradha Bhatia and Ors, 2017 (237) DLT 140...................17
Bharart Heavy Electricals Ltd v C N Garg, 2000 (3) ArbLR 674.............................................8
Central Inland Waterways vs Brojonath Gnaguly, 1986 (2) SCR 278....................................11
Cosmo Ferrites Ltd v Himachal Builders, 2006 MHLJ 1305..................................................13
DBM Geotechnics and Construction Pvt Ltd v Bharat Petroleum Corporation Ltd, 2017 Bom
65..........................................................................................................................................18
Dillip Kumar Ray v Tata Finance Ltd, AIR 2002 Ori 2009......................................................5
Electrosteel Castings Ltd v Reacon Engineers (India) Pvt Ltd, 2016 (2) CalLT 277.............17
Enercon(India) Ltd. and Ors. v Enercon GmBh and Anr, AIR 2014 SC 3152.........................7
Gopal Singh v AShoka Leyland Finance Ltd, 2014 (4) Raj 175................................................7
Hakkam Singh v Gammon India Pvt Ltd, AIR 1971 SC 740.....................................................5
Hasmukhlal H Doshi and Anr v Justice M L Pendse and Ors, 2001 (1) ArbLR 187................9
Hotel Leela Venture Ltd v Apeejay Oxford Bookstores Pvt Ltd, 2007 (2) Raj 423.................11
Indian Commerce and Industries Pvt Ltd v OK Play Auto Pvt Ltd, 2017 Mad 704...............12
M/S Kitiku Imports Trade Pvt Ltd v M/S Savitri Metals Ltd, 1998 (103) BomLR 833...........13
M/s Patel Roadways Ltd Bombay v M/s Prasad Trading Company, 1991 (4) SCC 270...........6
MBL Infrastructure Ltd v Telecommunication Consultants India Ltd, 2015 (217) DLT 212. 10
Ministry of Defence, Government of India v Cenrex SP ZOO and Ors, 2016 (1) ArbLR.......17
Murlidhar Roongta v S Jagannath Tiberwal, 2005 (1) Raj 278..............................................16
Neeru Walia v Inderbir Singh Uppal and Anr, 2009 (160) DLT 55........................................13
New Tirpur Area Development Corporation Ltd v M/S Hindustan Construction Co Ltd, 2015
Mad 931...............................................................................................................................17
PCP International v Lanco Infratech Pvt Ltd, 2015 Del 250................................................6, 7
Progressive Career Academy Pvt Ltd v FIIT JEE Ltd, 2011 (2) ArbLR 323............................9
R K Agrawal and Anr v B P K Johri and Ors, 2001 (1) KarLJ 170........................................11
Raigarh Jute and Textile Mills Ltd v New Haryana Transport Co, 1994 MPLJ 626................5
Rajiv Bhatia v IndusInd Bank and Ors, 2017 HP 96.................................................................7
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INDEX OF AUTHORITIES M EMORANDUM FOR
RESPONDENT
Ranjit Thakur v Union of India, 1988 (1) SCR 512...........................................................14, 16
Satish Chander Gupta and Sons v Union of India, 2003 (1) ArbLR 589..................................9
SBP and Co v Patel Engineering Ltd and Anr, AIR 2006 SC 450..........................................10
Sheetal Kurundwade v Metal Power Analytical (I) Pvt Ltd, 2017 Bom 150...........................14
Siroj Export Co Ltd v Indian Oil Corporation Ltd, AIR 1997 Raj 120...................................12
State of West Bengal and Ors v Shivananda Pathak and Ors, 1998 (5) SCC 513...................16
Steel Authority of India Ltd v British Marine PLC, 2016 (234) DLT 99.................................10
Subhash Projects and Marketing Ltd v The Deputy Commissioner, 2014 (2) ArbLR 232.......9
Superintending Engineer v R K Engineering, 2004 SCR 51.....................................................8
Tapash Majumdar v Pranav Dasgupta, AIR 2006 Cal 55.........................................................5
The Civil Procedure Code, 1908, s20........................................................................................5
Thyssen Stahlunion Gmbh v Steel Authority of India Ltd, 1999 (9) SCC 334.........................17
TRF Ltd v Energo Engineering Projects Ltd, 2017 162 DRJ 249...........................................18
Vikesh Chugh v BLB and Anr, AIR 2009 Del 80.....................................................................13
Statutes
The Arbitration and Conciliation (Ammendment) Act, 2015, s 26.........................................16
The Arbitration and Conciliation Act, 1996, s 13................................................................8, 10
The Arbitration and Conciliation Act, 1996, s 14......................................................................8
The Arbitration and Conciliation Act, 1996, s 2(1)(e................................................................6
The Arbitration and Conciliation Act, 1996, s 21....................................................................16
The Arbitration and Conciliation Act, 1996, s 34......................................................................8
The Arbitration and Conciliation Act, 1996, s 42....................................................................11
The Arbitration and Conciliation Act, 1996, s 5........................................................................8
The General Clauses Act, 1897, s 6.........................................................................................17
The Indian Contract Act, 1872, s 28..........................................................................................5
The Indian Contract Act, 1872, s28...........................................................................................6
Books
Avtar Singh, Law of Contract and Specific Relief (12th edn, Eastern Book Company 2017)
321..........................................................................................................................................6
PC Markanda, Naresh Mrkanda, Rajesh Markanda, Law Relating Arbitration and
Conciliation (9th edn, LexisNexis 2016) 783.......................................................................18
Ravi Chandra, Guide to Arbitration and Conciliation Act, 1996 (1st edn, Arbitration Law
Reporter 2016) 269..............................................................................................................10
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STATEMENT OF JURISDICTION MEMORANDUM FOR
RESPONDENT
STATEMENT OF JURISDICTION
The SLP has been filed by the DC Enterprises Pvt. Ltd. before the Hon’ble Supreme Court of
India under Article 136 of the Constitution of India, 1950.
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STATEMENT OF FACTS MEMORANDUM FOR
RESPONDENT
STATEMENT OF FACTS
I. THE CONTRACT
SSN Pvt Ltd (“Contractor”) (a company registered under The Companies Act, 1956, having
its place of business and registered office at New Delhi) secured a tender for the construction
of specialised suspension bridge in Cuttack, Orissa. The contractor entered into an agreement
with DC Enterprises Pvt Ltd (“Sub-Contractor) for design engineering services (“the
Contract”). The negotiation of the terms took place through emails and it was executed in
Kolkata on 18.03.2014. The Contractor included a midnight clause in the contract.
II. THE BREACH OF CONTRACT
The Sub-Contractor was unable to deliver the designs within the agreed time and delivered
faulty designs on 18.01.2015. As result the Contractor was unable to construct the bridge
within the stipulated time. The Contractor suffered heavy losses due to this and he invoked
the Arbitration Clause in the Contract on 02.07.2015.
III. APPOINTMENT OF ARBITRATORS
The Contractor appointed Mr Ashish Singh, MD, SSN Pvt Ltd as their nominated arbitrator.
The Sub-Contractor failed to appoint its arbitrator. Consequently the Contractor approached
the High Court of Kolkata under section 11 to appoint an arbitrator. The Sub-Contractor
questioned the jurisdiction of the High Court of Kolkata but the same was quashed. The High
Court appointed Mr Abhay Patel. Under the directions of the High Court, the two appointed
arbitrators nominated the third arbitrator, Ms Aishwarya Gaur. The parties decided that
Mumbai will be the place of arbitration keeping in mind the old age of the arbitrator.
IV. EFFECT OF THE AMENDMENT
Numerous legislative amendments were made in the Arbitration and Conciliation Act, 1996
on 23.10.2015 which were brought to the notice of the Ld. Arbitral Tribunal by the Sub-
Contractor. Mr Ashish Singh resigned on 20.11.2015 keeping in mind the stringent
requirements of independence and impartiality. The Contractor appointed Mr Aditya Narayan
as the substitute arbitrator on 19.10.2015 who made all the requisite disclosures on
02.01.2016.
V. THE ACQUISITION
A public announcement was made on 01.07.2015 that KP Infrastructure Pvt Ltd (a company
registered under Companies Act 1956 having its principal place of business at New Delhi)
will acquire SSN Enterprises Pvt Ltd by the end of December 2015 and the acquisition took
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STATEMENT OF FACTS M EMORANDUM FOR
RESPONDENT
place on 08.12.2015 after which it became a wholly owned subsidiary of KP Infrastructure
Pvt Ltd. This was covered in all the leading papers of the country.
VI. THE EFFECT OF THE ACQUISITION
On 05.01.2016 the Sub-Contractor became aware of the fact that Mr Aditya Narayan is the
Senior partner of the Mumbai office of DT Associates a full service law firm spread across
India having more than 500 clients. The Delhi office of the DT Associates has a 5 years
agreement with another wholly owned subsidiary of KP Infrastructure Pvt Ltd for advising on
legal issues in relation to a power plant in Uttar Pradesh from which it derived substantial
income. The Sub-Contractor conveyed to the Contractor that Mr Aditya Narayan is ineligible
to be appointed as he failed to make the requisite disclosures.
VII. THE CLARIFICATIONS
On 15.01.2016 Mr Aditya Narayan gave clarifications regarding the reasons why his
appointment is valid as per the provisions of the Act. For the last three years he had been
working as an independent arbitrator all across the world and was using his office in DT
Associates for administrative and secretarial assistance for his arbitration work. Neither he
nor the Mumbai office of the DT Associates has till date advised any of the affiliates of KP
Infrastructure Pvt Ltd. He mentioned that he was aware of the public announcement and the
fact that the Delhi office of DT Associates advised a wholly owned subsidiary of KP
Infrastructure Pvt Ltd and derived substantial income therefrom but was not aware whether
the acquisition took place or not as he was travelling abroad. After several communications
he declined to resign.
VIII. THE CHALLENGE
On 20.01.2016 the Sub-Contractor challenged the appointment of Mr Aditya Narayan on the
grounds justifiable doubts of independence and impartiality in front of the Arbitral Tribunal.
The challenge was not successful as all the arbitrators were of the view that the relation
between the arbitrator and Contractor did not give rise to justifiable doubts as per section 12
of the Act.
IX. THE PETITIONS
The Sub-Contractor approached the Hon’ble High Court of Bombay to terminate the mandate
of Mr Aditya Narayan and Ms Aishwarya Gaur but it was declared to be not maintainable by
the High Court vide order dated 24.02.2017. Aggrieved by this order the petitioner
approached the Hon’ble Supreme Court of India under article 136 of the Constitution. The
first hearing took place on 30.03.2017 and the Contractor was in caveat in the said matter.
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STATEMENT OF FACTS M EMORANDUM FOR
RESPONDENT
Both the parties are required to give written submissions on the issues raised on the second
hearing on 26.08.2017.
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ISSUES RAISED MEMORANDUM FOR
RESPONDENT
ISSUES RAISED
I. Whether the Hon’ble High Court of Bombay was correct in dismissing the petition
filed by the Sub-Contractor on the grounds of maintainability?
II. Whether the mandate of Mr. Aditya Narayan and Ms Aishwarya Gaur should be
terminated as arbitrators?
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SUMMARY OF ARGUMENTS MEMORANDUM FOR
RESPONDENT
SUMMARY OF ARGUMENTS
I. THE HON’BLE HIGH COURT OF BOMBAY WAS CORRECT IN DISMISSING THE
PETITION FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY.

It is submitted that the Hon’ble High Court of Bombay was correct in dismissing the petition
filed by the Sub-Contractor on the grounds of maintainability as the exclusive jurisdiction
vested in the courts of Mumbai where neither the cause of action arose nor the was the place
of residence of the or place of business of the defendant is violative of section 28 of the
Indian Contract Act, 1872. Further jurisdiction was vested in the courts of the seat of
arbitration and not in the courts of the venue of arbitration. The petitioner has already
challenged the appointment of Mr Aditya Narayan in front of the arbitral tribunal but the
challenge failed. So the petitioner has to wait for the arbitral award to be given and then
challenge the arbitral award.
II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR SHOULD
NOT BE TERMINATED AS ARBITRATORS.
It is submitted that the mandate of Mr Aditya Narayan and Ms Aishwarya Gaur should not be
terminated as the relationship between Mr Aditya Narayan and the respondent is too remote
and farfetched to raise any justifiable doubts as to his independence and impartiality and there
are no grounds of justifiable doubts and biasness against Ms Aishwarya Gaur. Her mandate
should not be terminated only on the ground that the person who appointed her has become
statutorily incapable of being an arbitrator in the present case. The petitioner should have
challenged the appointment of the arbitrator within fifteen days and not after that. As the
petitioner challenged after the completion of fifteen days he is deemed to have waived his
right to object. Lastly, the provisions of the amended act will not apply to the present case as
this case began before the commencement of the new act. So according to the provisions of
the old act the mandate of Mr Aditya Narayan and Ms Aishwarya Gaur will not be
terminated.
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ARGUMENTS ADVANCED MEMORANDUM FOR
RESPONDENT
ARGUMENTS ADVANCED
I. THE HON’BLE COURT OF BOMBAY WAS CORRECT IN DISMISSING THE PETITION
FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY.
1. The petitioner filed a petition in front of the Hon’ble High Court of Bombay to
terminate the mandate of Mr Aditya Narayan and Ms Aishwarya Gaur which was dismissed
as the same was not maintainable.1 Aggrieved by the order the petitioner approached the
Hon’ble Supreme Court of India by filing a SLP under Article 136 of the Constitution of
India, 1950. It is submitted that the Hon’ble High Court of Bombay was correct in dismissing
the petition as the same was not maintainable on the grounds that the exclusive jurisdiction
clause in the contract is violative of Section 28 of the Indian Contract Act(A); the “seat” of
arbitration has the jurisdiction and not the “venue” of arbitration(B); the parties cannot
approach the court before the completion of the arbitration proceedings(C); and the Hon’ble
High Court of Calcutta has the jurisdiction over the issue(D).
A. THE EXCLUSIVE JURISDICTION CLAUSE VIOLATES SECTION 28 OF THE

INDIAN CONTRACT ACT, 1872
2. Section 28 of The Indian Contract Act 2 comes into play when the restriction imposed
upon the right to sue is absolute.3 A partial restriction clause is valid.4 In the present case
Dispute Resolution Clause 20(2) provides that the courts of Mumbai will have the exclusive
jurisdiction over all disputes and differences arising out of the contract. 5 In the case of
Hakkam Singh v Gammon India Pvt Ltd6 it was held that the parties cannot confer jurisdiction
on the courts which they do not possess under the Civil Procedure Code.7
3. Under Section 20 of CPC8 three jurisdictions are available i.e. the place of making of
the contract, the place of its execution and the defendant’s place of business or residence. If
out of these three jurisdictions at least one is left open then it will not offend the Section 28 of
1
Moot Proposition, pg 4.
2
The Indian Contract Act, 1872, s 28.
3
Tapash Majumdar v Pranav Dasgupta, AIR 2006 Cal 55.
4
Raigarh Jute and Textile Mills Ltd v New Haryana Transport Co, 1994 MPLJ 626.
Dillip Kumar Ray v Tata Finance Ltd, AIR 2002 Ori 2009.
5
Moot Prposition, pg 2.
6
Hakkam Singh v Gammon India Pvt Ltd, AIR 1971 SC 740.
7
The Civil Procedure Code, 1908, s20.
8
The Code of Civil Procedure, 1908, s20.
ARGUMENTS ADVANCED M EMORANDUM FOR
RESPONDENT
the Indian Contract Act.9 The parties themselves by their consent cannot confer jurisdiction
on a court which does not have jurisdiction 10 and the choice of the parties to confer exclusive
jurisdiction on a particular court is limited to the courts which have concurrent jurisdiction
over the subject matter.11
4. Section 2(1) (e) of the Arbitration and Conciliation Act, 1996 12 defines Court as a
court having jurisdiction to decide questions forming the same subject matter in case of
arbitration if the same forms the subject matter of the suit which is in consonance with the
normal proceedings of the Code of Civil Procedure, 1908 with respect to territorial
jurisdiction and so section 16 to 28 of the CPC will apply to arbitration agreements.13
5. In the case of A Joint Venture of Daelim Industrial Co v M Sahai and Associates Pvt
14
Ltd the court held that the courts in the venue of the arbitration will not have the
jurisdiction as no part of the cause of action has arisen in the venue of arbitration and that the
parties cannot lawfully confer jurisdiction over the courts which inherently lack jurisdiction
under the CPC.
6. In the present case the registered office of the Contractor and the Sub-Contractor is in
New Delhi and Kolkata respectively, the contract was executed in Kolkata and the place of
delivery of the designs was on the construction site i.e. Cuttack, Orissa. 15 The courts of
Mumbai are conferred with exclusive jurisdiction. It is submitted that parties have conferred
jurisdiction upon the courts of Mumbai which they do not inherently possess jurisdiction
CPC as it is neither the place of the execution or formation of the contract nor the defendant’s
residence nor place of office. In addition to that no part of the cause of action in the present
case arises in Mumbai and hence it is violation of section 28 of The Indian Contract Act,
1872.16
B. “SEAT” OF ARBITRATION HAS THE JURISDICTION
9
Avtar Singh, Law of Contract and Specific Relief (12th edn, Eastern Book Company 2017) 321.
10
M/s Patel Roadways Ltd Bombay v M/s Prasad Trading Company, 1991 (4) SCC 270.
11
ABC Laminart Pvt Ltd and Anr v A P Agencies, Salem, AIR 1989 SC 1239.
12
The Arbitration and Conciliation Act, 1996, s 2(1)(e).
13
PCP International v Lanco Infratech Pvt Ltd, 2015 Del 250.
14
A Joint Venture of Daelim Industrial Co v M Sahai and Associates Pvt Ltd, AIR 2010 NOC 843.
15
16
The Indian Contract Act, 1872, s28.
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RESPONDENT
7. There are marked differences between the seat of arbitration and the venue of
arbitration. In Rajiv Bhatia vs IndusInd Bank and Ors. 17 it was held that the territorial
jurisdiction on a court is conferred by the seat of arbitration and not the venue of arbitration
merely because the arbitrator chooses to hold the proceedings at a venue. Seat of arbitration is
the place where the court or arbitration is vested with territorial jurisdiction while venue of
arbitration is the place where the proceedings of the arbitration are held by the arbitral
tribunal which will not necessarily be the same as the seat of arbitration.
8. In the case Enercon (India) Ltd. and Ors. vs Enercon GmBH and Anr. 18 it was held
that to decide the seat of arbitration the closest connection test must be employed that is the
seat of arbitration will deemed to be the place which will have the closest and the most
intimate connection with the arbitration. The concept of venue of arbitration is entirely
different from the concept of jurisdiction of courtsand jurisdiction cannot be conferred upon a
particular court even with the consent of the parties.19
9. In PCP International Ltd. vs Lanco Infratech Ltd. 20 it was held that merely because
the arbitrator chooses to hold the proceedings of an arbitration in a venue different from the
seat of arbitration that does not confer territorial jurisdiction on the courts in the venue of the
arbitration. The courts of the seat of arbitration would have the exclusive jurisdiction to
exercise their supervisory power in those arbitrations. 21 The courts of the venue will not have
concurrent jurisdiction over the arbitration. Empowering different courts to exercise their
concurrent jurisdiction over the arbitration will frustrate the object of the arbitration 22 i.e.
speedy, economic and final resolution of disputes.23
10. In the present case it was decided that the place of arbitration will be in Mumbai,
Maharashtra. The Parties had their registered office in New Delhi and Kolkata and the
delivery of the designs was to be given at the construction site i.e. Cuttack Orissa.24 By
applying the closest connection test it is evident that Mumbai where the arbitration
17
Rajiv Bhatia v IndusInd Bank and Ors, 2017 HP 96.
18
Enercon(India) Ltd. and Ors. v Enercon GmBh and Anr, AIR 2014 SC 3152.
19
Gopal Singh v AShoka Leyland Finance Ltd, 2014 (4) Raj 175.
20
PCP International v Lanco Infratech Pvt Ltd, 2015 Del 250.
21
Enercon(India) Ltd. and Ors. v Enercon GmBh and Anr, 2014 (4) Raj 175.
22
Enercon(India) Ltd. and Ors. v Enercon GmBh and Anr, 2014 (4) Raj 175.
23
M Mohan Reddy v Union of India and Ors, 1999 (4) ALT 1.
24
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RESPONDENT
proceedings were held had no nexus with the places associated in the contract. It can be
concluded that Mumbai is the venue for arbitration and not the seat for arbitration and no part
of the cause of action arised in Mumbai. Hence it is submitted that the Hon’ble High Court of
Bombay does not have the jurisdiction over the present case.
C. PARTY CANNOT APPROACH COURT BEFORE THE COMPLETION OF

ARBITRATION PROCEEDINGS
11. Section 13 of the Arbitration and Conciliation Act, 1996 25 provides the procedure for
challenge. Section 13(4) and 13(5)26 state that if the procedure for challenge under the same
section or under a pre decided procedure by the party is not successful then the arbitral
tribunal will continue with its proceedings and give the arbitral award, for which the parties
challenging the arbitrator can make an application for setting aside the award given under the
provisions of section 34.27 The legislature has very cautiously provided in Section 5 that there
shall be no judicial interference in arbitration matters except in the places where they are so
provided28 It is a clear mandate to bar judicial interference except where it is provided
keeping in view the object of arbitration to provide speedy redressal of disputes. The ground
for challenge and the procedure for challenge will be according to section 12 and 13 of the
Act respectively.29
12. In Bharat Heavy Electricals Ltd v C N Garg 30 it was held that in case of the failure of
a challenge under section 13 the party has to wait for the arbitral proceedings to come to an
end and then the arbitral award so given can be set aside in accordance with the Section 34 of
the Act. This procedure has to be followed even in the case of bias and partiality. The Act
does not provide for any means for removal of arbitrator during the proceedings. 31 The duty
of the judiciary is to expound and not to legislate. If the courts accept a petition to remove the
arbitrator under section 1432 where the challenge procedure under section 1333 has failed then
it will signify that the judiciary is trying to introduce by judicial interference such provisions
that the legislature has done away with. This will violate the mandate of the legislature and
25
The Arbitration and Conciliation Act, 1996, s 13.
26
The Arbitration and Conciliation Act, 1996, s 13(4), 13(5).
27
28
29
Superintending Engineer v R K Engineering, 2004 SCR 51.
30
Bharart Heavy Electricals Ltd v C N Garg, 2000 (3) ArbLR 674.
31
32
33
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RESPONDENT
the total purpose of the Act.34 Under section 34 of the Act it is possible to challenge the award
even on the grounds of bias and prejudice.
13. This has been reaffirmed in the case of Newton Engineering and Chemicals Ltd v
Indian Oil Corporation35 which held that there is no provision in the Act for the court to
terminate the mandate of the arbitrator appointed according to the provisions of this act. The
necessary recourse is to challenge the appointment of the arbitrator under Section 13 of the
Arbitration and Conciliation Act.36 If the challenge is successful then the petitioner will have
no grievance but if it is not successful then the petitioner has to wait for the arbitral
proceedings to end and then the petitioner can challenge the arbitral award under Section
34.37 The Section 13 provides for the challenge to the arbitrator while section 14 deals with
the failure or impossibility to act. The procedure of challenge provided in Section 13 makes it
clear that the legislature did not want any interference of the courts in the Arbitral
proceedings and no appeal is maintainable as the 1996 Act does not postulate judicial
interference in arbitral proceedings till arbitral award is published even on the grounds of
alleged bias of the arbitral tribunal.38
14. In the case of Mr Hasmukhlal H Doshi and Anr v Justice M L Pendse and Ors 39 it has
been held that when a specific challenge is provided and the forum which has to decide the
challenges is also provided, it would not be open to the Court to decide and consider the
termination of the mandate of the Arbitrator under Section 14. If a party was not aware of the
ground pertaining to doubts about the impartiality of an Arbitrator during the course of the
arbitral proceeding, prima facie a party could not be precluded from raising a challenge under
Section 34. When a specific forum is given to the party to take care of the situation i.e. the
arbitral tribunal then resorting to other means i.e. court as an extension of de jure inability
will be doing violence to the scheme conceptualised by the Act.40 The Parliament does not
allow the unsuccessful party to challenge the appointment immediately when the challenge
becomes unsuccessful before the tribunal and requires such a party to wait and challenge the
34
35
Newton Engineering and Chemicals Ltd v Indian Oil Corporation, 2006 (4) ArbLR 257.
36
37
38
Progressive Career Academy Pvt Ltd v FIIT JEE Ltd, 2011 (2) ArbLR 323.
39
Hasmukhlal H Doshi and Anr v Justice M L Pendse and Ors, 2001 (1) ArbLR 187.
40
Subhash Projects and Marketing Ltd v The Deputy Commissioner, 2014 (2) ArbLR 232.
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RESPONDENT
same only after the arbitration award has been made, it is so to avoid the dilatory practices. 41
When the Parliament thought it fit to exclude the jurisdiction of courts when the parties failed
to successfully challenge the arbitrator in front of the tribunal, the courts cannot introduce
any remedy by any stretch of imagination.42
15. In the present case the petitioner had challenged the appointment of Mr Aditya
Narayan in front of the Ld. Arbitral Tribunal but the challenge was not successful as the
arbitrators were of the view that there was no justifiable doubts under section 12 giving rise
to the issues of independence and impartiality. 43 The petitioner then approached the Hon’ble
High Court of Bombay under section 14 of the Arbitration and Conciliation Act, 1996 to
terminate the mandate of Mr Aditya Narayan and Ms Aishwarya Gaur. A party which has
been unsuccessful in its application before the Arbitral Tribunal under Section 12 and 13 of
the Arbitration and Conciliation Act cannot thereafter approach the Court in an application
under Section 14 of the same Act seeking termination of the mandate of the arbitrator on the
same grounds.44 Such an aggrieved party has to wait for the arbitral award to be pronounced.
If the party is aggrieved by it then they can challenge it under Section 34 of the Act. It is not
possible for the Court to entertain the petition seeking removal of the learned Arbitrator on
the ground that he has become “de-facto and de-jure” unable to perform his function as an
Arbitrator. Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court
would not interfere with orders passed by the arbitrator or the arbitral Tribunal during the
course of the arbitration proceedings and the parties could approach the Court only in terms
of Section 37 of the Act or in terms of Section 34 of the Act. 45 Once a party challenges the
appointment of the arbitrator under Section 13, 46 he cannot invoke Section 1447 of the Act but
he will have to wait for the reward.48 Once an arbitral tribunal is created without going to
section 11(6)49 of the Act the arbitral tribunal can do everything as provided in section 16 of
the Act.50 Hence it is humbly submitted that the Hon’ble High Court of Bombay will not have
the jurisdiction under Section 14 of The Arbitration and Conciliation Act, 1996.51
41
Satish Chander Gupta and Sons v Union of India, 2003 (1) ArbLR 589.
42
Ravi Chandra, Guide to Arbitration and Conciliation Act, 1996 (1st edn, Arbitration Law Reporter 2016) 269.
43
44
MBL Infrastructure Ltd v Telecommunication Consultants India Ltd, 2015 (217) DLT 212.
45
SBP and Co v Patel Engineering Ltd and Anr, AIR 2006 SC 450.
46
47
48
Steel Authority of India Ltd v British Marine PLC, 2016 (234) DLT 99.
49
The Arbitration and Conciliation Act, 1996, s 11(6).
50
SBP and Co v Patel Engineering Ltd and Anr, AIR 2006 SC 450.
51
11 | P a g e
RESPONDENT
1. SECTION 13(3), 13(4) IS NOT UNCONSTITUTIONAL AND AGAINST PUBLIC
POLICY
16. Section 13(3) and 13(4) of The Arbitration and Conciliation Act, 1996 is considered
to be unconstitutional on the basis that the aggrieved will remain remediless due to the fact
that the only recourse available to the aggrieved party is to challenge the Arbitral Award
under Section 34 of the Act which has specified basis under which the award can be
challenged.
17. This was negated in the case of Bharart Heavy Electricals Ltd v C N Garg52 in which
it was stated that Section 34(2) of The Arbitration and Conciliation Act, 1996 allows the
court to set aside an award which is against the public policy of the nation. The term public
policy must be liberally interpreted. The principle for public policy is ex dolo malo non oritur
actio which means that a person cannot do anything opposed to public welfare. The principle
of natural justice i.e. jus naturale is founded on the basis of public policy. In case no head of
public policy covers a case the courts must keeping public interest, public good and public
conscience in mind must declare practices that were normal at one time but have become
obnoxious and opposed to public policy.53
18. In the case of R K Agrawal and Anr v B P K Johri and Ors54 it was held that Section
1355 of the Act is not unconstitutional and frequent recourses to the appellate remedies
destroys the spirit and essence of arbitration. Thus keeping in mind the object of arbitration
i.e. is speedy disposal of cases and minimum judicial interference, Section 34 has to be read
along with Section 13(5) of the Arbitration and Conciliation Act, 1996 and Section 13(4) and
Section 13(5) cannot be said to be unconstitutional by giving a narrow and pedantic meaning
to Section 34 of the Act.56
D. THE HON’BLE HIGH COURT OF KOLKATA WILL HAVE JURISDICTION

19. Section 42 of The Arbitration and Conciliation Act, 1996 57 states that when an
application with respect to arbitral proceedings under Part-I has been made in a Court, that
Court alone will have the jurisdiction over the arbitral proceedings and all subsequent
52
53
Central Inland Waterways vs Brojonath Gnaguly, 1986 (2) SCR 278.
54
R K Agrawal and Anr v B P K Johri and Ors, 2001 (1) KarLJ 170.
55
56
Bharat Heavy Electricals Ltd v C N Garg, 2000 (3) ArbLR 674.
57
12 | P a g e
RESPONDENT
applications must be filed under that Court.
20. In the case of Hotel Leela Venture Ltd v Apeejay Oxford Bookstores Pvt Ltd58 when a
request is made in different High Courts invoking the arbitration clause, the High Court in
which the request is first made will have the jurisdiction in that case. 59 The jurisdiction of all
other High Courts are barred. This was reaffirmed in the recent case of Indian Commerce and
Industries Pvt Ltd v OK Play Auto Pvt Ltd 60 where at first a request was made to a High Court
to appoint an arbitrator and subsequently another request was made to another High Court. It
was held that if request is made in two Courts then the Court in which request is made first
shall have the jurisdiction and the request made in the subsequent High Court will not have
jurisdiction.
21. In the instant case the Contractor approached the Hon’ble High Court of Calcutta
under Section 11 of the Arbitration and Conciliation Act, 1996 on 25.08.2015. Consequently
the Sub-Contractor approached the Hon’ble High Court of Bombay for terminating the
mandate of Mr Aditya Narayan and Ms Aishwarya Gaur. It is submitted that since the
Hon’ble High Court of Calcutta was approached first it will have the jurisdiction over the
said case. The Hon’ble High Court of Bombay will not have jurisdiction under Section 42 of
The Arbitration and Conciliation Act, 1996. 61
II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR SHOULD
NOT BE TERMINATED AS ARBITRATORS.
22. The petitioner has filed for the termination of the mandate of Mr Aditya Narayan and
Ms Aishwarya Gaur. It is submitted that the mandate of Mr Aditya Narayan and Ms
Aishwarya Gaur should not be terminated. The submissions are four fold i.e. the petitioner
should have challenged the appointment within fifteen days (A); the relationship between the
Contractor and Mr Aditya Narayan is too remote and farfetched (B); there are no justifiable
grounds of doubt to terminate the mandate of Ms Aishwarya Gaur (C); and the amended act
will not be applicable in the instant case (D).
58
Hotel Leela Venture Ltd v Apeejay Oxford Bookstores Pvt Ltd, 2007 (2) Raj 423.
59
Siroj Export Co Ltd v Indian Oil Corporation Ltd, AIR 1997 Raj 120.
60
Indian Commerce and Industries Pvt Ltd v OK Play Auto Pvt Ltd, 2017 Mad 704.
61
The Arbitration and Conciliation Act, s 42.
13 | P a g e
RESPONDENT
A. THE PETITIONER SHOULD HAVE CHALLENGED THE APPOINTMENT
WITHIN FIFTEEN DAYS
23. Section 13(2) of the Arbitration and Conciliation Act, 1996 provides that the party
should challenge the arbitrator within 15 days after the constitution of the arbitral tribunal
comes to his knowledge or after he becomes aware of any circumstances referred to in
section 12(3)62 of the Act and send written statements expressing the reasons for the
challenge.
24. In the case of Vikesh Chugh v BLB and Anr63 it was held that any objection to the
jurisdiction of the arbitrator has to be filed within 15 days of coming to knowledge about the
constitution of the arbitral tribunal or the circumstances referred in section 12. If the
arbitrator is challenged after the 15 days then that challenge will be futile. If the party does
not challenge the appointment of the arbitrator within fifteen days then the party is said to
have acquiesced the matter and forever lost its right to object which is provided in section 4
of the Act.64 The party has to send a written statement of reasons of challenge to the arbitral
tribunal within 15 days.65
25. In the present case the petitioner became aware about the constitution of the arbitral
tribunal on 19.12.2015 and the grounds for challenge under section 12 on 05.01.2016. The
petitioner challenged the appointment of Mr Aditya Narayan before the Ld. Arbitral Tribunal
on 20.01.2016 which is the sixteenth day after the petitioner came to the knowledge that the
arbitrator should be challenged. . It is submitted that the appointment of the arbitrator was not
challenged within 15 days, the subsequent challenge on the sixteenth day will be of no
consequence. As the party who challenges the appointment of the arbitrator under Section 13,
he cannot invoke Section 14 of the Act to terminate the mandate of the arbitrator and will
have to wait for the award instead as these are not enough to empower the court to interfere in
the arbitral proceedings.66 So the mandate of Mr Aditya Narayan will not be terminated under
section 13 as the petitioner has waived his right to object as per section 467 of the Act.
E. THE RELATIONSHIP IS TOO REMOTE AND FAR-FETCHED

62
The Arbitration and Conciliation Act, 1996, 12(3).
63
Vikesh Chugh v BLB and Anr, AIR 2009 Del 80.
64
Cosmo Ferrites Ltd v Himachal Builders, 2006 MHLJ 1305.
65
M/S Kitiku Imports Trade Pvt Ltd v M/S Savitri Metals Ltd, 1998 (103) BomLR 833.
66
Neeru Walia v Inderbir Singh Uppal and Anr, 2009 (160) DLT 55.
67
14 | P a g e
RESPONDENT
26. The procedure for challenge is given in Section 13, which must be correctly followed
first and after the ruling of the arbitral tribunal the aggrieved party can approach the court for
setting aside the award. The provisions laid down in the section 12 emphasizes on the
elimination of bias. As the statute seeks to achieve arbitral independence and impartiality and
focuses on justifiable doubts it in totality seeks to eliminate biasness of any kind. Section 12
and the whole of sixth and seventh schedule seeks not only to eliminate bias but also to
eliminate any reasonable apprehension of bias. This is clear from the wording of the section
12 which states that “likely to give rise to justifiable doubts as to his independence or
impartiality”. Section 12(1)(a)68 gives emphasis on the relationship between the parties and
the arbitrator but the association must be proximate and not remote. 69 Independence as it is
used in the Act means nothing more than deciding for oneself. Impartiality means lack of
bias. Arbitral independence and impartiality is precisely means to decide “without fear or
favour, affection or ill-will”.70 The real test of bias is in whether a reasonable person
possessing relevant information feels that bias is likely.71
27. In the present case Mr Aditya Narayan is a Senior Partner in the Mumbai Office of the
DT Associates. The Delhi office of the DT Associates has a five years agreement with a
wholly owned subsidiary of KP Infrastructure Pvt Ltd, which is the parent Company of the
SSN Pvt Ltd. The Delhi office of the DT Associates derives substantial income from this
agreement by advising on the legal issues pertaining to the establishment of a power plant in
Uttar Pradesh. Mr Aditya Narayan had clarified that for past three years he had been working
as an independent arbitrator all across the world and was using his office in the DT
Associates only for secretarial and administrative assistance. 72 Neither the Mumbai office of
the DT Associates nor Mr Aditya Narayan had advised any of the wholly owned subsidiaries
or affiliates of the KP Infrastructure Pvt Ltd. He clarified that he was aware of the public
announcement made that the KP Infrastructure Pvt Ltd was going to acquire SSN Pvt Ltd but
he was not sure whether the acquisition took place or not as he was travelling abroad. It can
be fairly construed that Mr Aditya Narayan did not have any direct relationship with the party
or the subject matter and the indirect connection he has is too remote as the he himself neither
the Mumbai office of the DT Associates have never advised any of the affiliates of KP
68
The Arbitration and Conciliation Act, 1996, s 12(1)(a).
69
Sheetal Kurundwade v Metal Power Analytical (I) Pvt Ltd, 2017 Bom 150.
70
71
Ranjit Thakur v Union of India, 1988 (1) SCR 512.
72
15 | P a g e
RESPONDENT
Infrastructure Pvt Ltd and that for the past three years he has been using his office in the DT
Associates only for administrative and secretarial assistance for his arbitral work.
28. This level of distancing is not demanded by any law or principle. The Arbitration and
conciliation Act gives a lot of emphasis to “justifiable doubt”. The learned judge in the case
of Sheetal Kurundwade v Metal Power Analytical (I) Pvt Ltd 73 suggested that this principle of
justifiable doubt lies somewhere between the tests of ‘real likelihood’ and ‘fanciful
apprehension’. The situations set out in the fifth and seventh schedules seems to indicate that
when a doubt is expressed regarding the arbitrator it must not be based on a remote or
farfetched extrapolation. Lawyers and judges are trained to question, enquire and demand
proof according to law. It is a profession of scepticism, not a practice of suspicion.
29. In the case of Sheetal Kurundwade v Metal Power Analytical (I) Pvt Ltd74 it was held
that at the broadest level no arbitrator should be involved with the parties and should not be
the partner of a lawyer or law firm appearing in the arbitration or representing the lawyer or
law firm personally. In the present Mr Aditya Narayan was neutral on all these grounds. Also
the main crux for the amendment to the section 12 was to eliminate biasness. Mr Aditya
Narayan cannot be said to be biased towards the Contractor because of such a farfetched
connection.
30. It is submitted that as the relation between Mr Aditya Narayan and the Contractor is
too remote and it has not been proved that Mr Aditya Narayan is biased his mandate should
not be terminated.
F. THERE ARE NO JUSTFIABLE GROUNDS OF DOUBT

31. Ms Aishwarya Gaur the presiding arbitrator in the present case was appointed by Mr
Ashish Singh and Mr Abhay Patel in accordance to the order of the Hon’ble High Court of
Kolkata. Mr Ashish Singh resigned from his post due to the amendments in The Arbitration
and Conciliation Act, 1996 which gave utmost importance to the independence and
impartiality of the arbitrator. The mandate of Ms Aishwarya Gaur who is nominated by Mr
Ashish Singh should not be terminated only on the ground that the person nominating him is
considered statutorily ineligible to act as an arbitrator in the present case. The person
73
74
16 | P a g e
RESPONDENT
nominated should be tested according to the grounds of challenge in section 12 of The
Arbitration and Conciliation Act75 and the grounds enshrined in schedule 5 and schedule 7.
32. In the case of Murlidhar Roongta v S Jagannath Tiberwal76 it was held that it is the
duty of the arbitrator who is given the position of a judge in the case should make all
disclosures to the parties about his interest which will create reasonable doubts in the minds
of the party regarding his independence. Ms Aishwarya Gaur is a retired judge of the High
Court of Bombay. She has made all the requisite declarations and disclosures. She does not
have any relation with any of the parties or counsel or any personal interest in the dispute or
the subject matter of the dispute in accordance to the grounds provided in schedule 5 and
schedule 7. So neither does her appointment raise any justifiable doubts of independence and
impartiality according to section 12(1) of The Arbitration and Conciliation Act, 199677 nor
does it raise any grounds for her disqualification under section 12(5) of The Arbitration and
Conciliation Act, 1996.78 Keeping in view the principles of natural justice Ms Aishwarya
Gaur should be allowed to represent her side.
33. Bias is a preconceived notion to determine a case or an issue in a particular way

which does not leave the mind open for conviction and is in fact a condition that renders a
person incapable of being impartial. 79 The real test of bias is in whether a reasonable person
possessing relevant information feels that bias is likely. 80 It cannot be proved on any grounds
that Ms Aishwarya Gaur is biased. Hence Ms Aishwarya Gaur’s mandate should not be
terminated only on the ground that the person appointing her is statutorily incapable to be an
arbitrator in the present case. It is submitted that the mandate of Ms Aishwarya Gaur should
not be terminated.
G. THE AMMENDED ACT WILL NOT APPLY

34. Section 2681 of The Arbitration and Conciliation (Amendment) Act, 2015 makes it
quite clear that the provisions of the amending act will not apply to the arbitral proceedings
which was commenced before the commencement of this Act unless otherwise agreed by the
75
76
Murlidhar Roongta v S Jagannath Tiberwal, 2005 (1) Raj 278.
77
78
79
State of West Bengal and Ors v Shivananda Pathak and Ors, 1998 (5) SCC 513.
80
Ranjit Thakur v Union of India, 1988 (1) SCR 512.
81
The Arbitration and Conciliation (Ammendment) Act, 2015, s 26
17 | P a g e
RESPONDENT
parties but this Act will apply in relation to arbitral proceedings which were commenced on
or after the date of commencement of this Act. Section 21 of The Arbitration and
Conciliation Act, 199682 states that arbitral proceedings are deemed to have commenced from
the date on which the request of referring the dispute to arbitration has been received by the
respondent.
35. In the case of Adree Infrastructure Pvt Ltd v Anuradha Bhatia and Ors 83 the Hon’ble
High Court of Delhi held that when a narrow meaning is given to the phrase ‘to the arbitral
proceedings’ as contained in Section 26 of the Arbitration and Conciliation (Amendment)
Act, 201584 then it can be construed that the law is silent about the cases in which the award
was given or the arbitral award was given and challenged in the court prior to the
commencement of the new act. However it was clear that the provisions of the amended act
will not apply to the cases in which the arbitral proceedings were commenced before the
commencement of the new act but were still pending before the arbitral tribunal i.e. arbitral
award is yet to be decided. 85 Further it was held that the amended provisions will not apply to
cases in which the arbitral proceedings affect the accrued rights of the parties. This was in
accordance to section 686 of the General Clauses Act. The term in relation to should not be
given a narrow meaning and should cover all the arbitral proceedings commenced before the
new act and the new act will not be applicable to those arbitral proceedings which were
commenced before the commencement of the new act unless otherwise agreed by the
parties.87
36. In the case of Electrosteel Castings Ltd v Reacon Engineers (India) Pvt Ltd 88 it was
held that due to the presence of the repeals and savings clause in the amended act of 2015 it
was not applicable to any case of arbitration which were commenced before its enactment.
The amended act will not be applicable to the court proceedings which were commenced
before the amended act was commenced.89 In similar lines in the case of Ministry of Defence,
Government of India v. Cenrex SP ZOO and Ors90, the Hon’ble High Court of Delhi held that
82
83
Adree Infrastructure Pvt Ltd v Anuradha Bhatia and Ors, 2017 (237) DLT 140.
84
The Arbitration and Conciliation (Amendment) Act, 2015, s 26.
85
Adree Infrastructure Pvt Ltd v Anuradha Bhatia and Ors, 2017 (237) DLT 140.
86
The General Clauses Act, 1897, s 6.
87
Thyssen Stahlunion Gmbh v Steel Authority of India Ltd, 1999 (9) SCC 334.
88
Electrosteel Castings Ltd v Reacon Engineers (India) Pvt Ltd, 2016 (2) CalLT 277.
89
New Tirpur Area Development Corporation Ltd v M/S Hindustan Construction Co Ltd, 2015 Mad 931.
90
Ministry of Defence, Government of India v Cenrex SP ZOO and Ors, 2016 (1) ArbLR 81.
18 | P a g e
RESPONDENT
if the arbitral award was challenged in the court under section 34 91 prior to the promulgation
of the amended act, then the provisions of the amended act will not be applicable.
37. In the instant case the Contractor invoked the arbitration clause on 20.07.2015. 92 A
perusal of section 2193 that the request given to the party may not be in writing. 94 The arbitral
proceedings commenced before 23.10.2015 i.e. the date of the commencement of the new act.
In this case the proceedings were pending before the arbitral tribunal. The arbitral award was
not given. There is no confusion in law regarding this point. The amended act will not apply
to the present case. As the amended act is applied prospectively Mr Ashish Singh will not be
ineligible. It is submitted that as the amended act is not applicable in the arbitral proceedings
so there is no reason to terminate the mandate of Mr Aditya Narayan and Ms Aishwarya
Gaur.
1. NOMINATION IS VALID
38. As The Arbitration and Conciliation (Amendment) Act, 2015 will apply prospectively
from 23.10.2015 and will not be applicable on any arbitral proceedings which were
commenced prior to this date. So schedule 5 of The Arbitration and Conciliation
(Amendment) Act will not be applicable on him. Prior to the amendment MD of companies
were appointed as the arbitrators. Hence Mr Ashish Singh can continue as an arbitrator.
39. In the recent judgement of TRF Ltd v Energo Engineering Projects Ltd95 it was held
that if a person becomes statutorily ineligible to arbitrate then he does not have the power to
appoint or nominate another arbitrator. This judgement overruled DBM Geotechnics and
Construction Pvt Ltd v Bharat Petroleum Corporation Ltd 96 in which a person who is
ineligible to arbitrate retains the power to nominate.
40. However in the present case Mr Ashish Singh is not statutorily ineligible due to the
prospective application of the amended act and thus has the power to nominate. So the
nomination of Ms Aishwarya Gaur (Retired judge of the High Court of Bombay) made by Mr
91
The Arbitration and Conciliation Act, 1996 s 34.
92
93
The Arbitration and Conciliation Act, s 21.
94
PC Markanda, Naresh Mrkanda, Rajesh Markanda, Law Relating Arbitration and Conciliation (9th edn,
LexisNexis 2016) 783.
95
TRF Ltd v Energo Engineering Projects Ltd, 2017 162 DRJ 249.
96
DBM Geotechnics and Construction Pvt Ltd v Bharat Petroleum Corporation Ltd, 2017 Bom 65.
19 | P a g e
RESPONDENT
Ashish Singh and Mr Abhay Patel in accordance to the order of the Hon’ble High Court of
Kolkata is valid. Hence the mandate of Ms Aishwarya Gaur should not be terminated.
20 | P a g e
PRAYER FOR RELIEF MEMORANDUM FOR
RESPONDENT
PRAYER FOR RELIEF
In the light of the issues raised, arguments advanced and the authorities cited the
Respondents most humbly pray before this Hon’ble Court, to adjudge and declare that:
1. The Hon’ble High Court of Bombay was correct in dismissing the petition filed by the
Sub-Contractor on the grounds of maintainability.
2. The mandate of Mr Aditya Narayan and Ms Aishwarya Gaur should not be terminated
as arbitrators.
The Hon’ble Supreme Court may also pass any other order which it may deem fit in the light
of equity, justice and good conscience.
All of which is most humbly prayed.
Sd/-
(Counsel for Respondent)

Before The Hon'Ble Supreme Court of India: Participant Code-197R

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Before The Hon'Ble Supreme Court of India: Participant Code-197R

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PARTICIPANT CODE-197R

BEFORE THE HON’BLE SUPREME COURT OF INDIA

In the matter between

DC ENTERPRISES PRIVATE LIMITED

SSN PRIVATE LIMITED AND ORS.

SLP NO. 1882/2017

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

I. THE HON’BLE COURT OF BOMBAY WAS CORRECT IN DISMISSING THE

A. THE EXCLUSIVE JURISDICTION CLAUSE VIOLATES SECTION 28 OF

B. “SEAT” OF ARBITRATION HAS THE JURISDICTION....................................6

C. PARTY CANNOT APPROACH COURT BEFORE THE COMPLETION OF

D. THE HON’BLE HIGH COURT OF KOLKATA WILL HAVE JURISDICTION

II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR

A. THE PETITIONER SHOULD HAVE CHALLENGED THE APPOINTMENT

B. THE RELATIONSHIP IS TOO REMOTE AND FAR-FETCHED.....................13

C. THERE ARE NO JUSTFIABLE GROUNDS OF DOUBT.................................15

D. THE AMMENDED ACT WILL NOT APPLY....................................................16

PRAYER FOR RELIEF...........................................................................................................20

AIR All India Reporter

I. THE HON’BLE HIGH COURT OF BOMBAY WAS CORRECT IN DISMISSING THE

PETITION FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY.

II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR SHOULD

NOT BE TERMINATED AS ARBITRATORS.

I. THE HON’BLE COURT OF BOMBAY WAS CORRECT IN DISMISSING THE PETITION

FILED BY THE SUB-CONTRACTOR ON THE GROUNDS OF MAINTAINABILITY.

A. THE EXCLUSIVE JURISDICTION CLAUSE VIOLATES SECTION 28 OF THE

B. “SEAT” OF ARBITRATION HAS THE JURISDICTION

C. PARTY CANNOT APPROACH COURT BEFORE THE COMPLETION OF

D. THE HON’BLE HIGH COURT OF KOLKATA WILL HAVE JURISDICTION

II. THE MANDATE OF MR ADITYA NARAYAN AND MS AISHWARYA GAUR SHOULD

NOT BE TERMINATED AS ARBITRATORS.

E. THE RELATIONSHIP IS TOO REMOTE AND FAR-FETCHED

F. THERE ARE NO JUSTFIABLE GROUNDS OF DOUBT

33. Bias is a preconceived notion to determine a case or an issue in a particular way

G. THE AMMENDED ACT WILL NOT APPLY

(Counsel for Respondent)

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