9 Intra University Moot Court Competition: Efore HE Onourable Upreme Ourt OF Ndia

238P
9TH INTRA UNIVERSITY MOOT COURT COMPETITION
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
UNDER ARTICLE 136 OF
THE CONSTITUTION OF INDIA, 1950
IN THE MATTER OF
DC ENTERPRISES PRIVATE LIMITED ……………………………………..….…PETITIONER
V.
SSN PRIVATE LIMITED & ORS. ………………………………………………......RESPONDENT
SLP No. 1882/2017
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

MEMORANDUM for the PETITIONER
TABLE OF CONTENTS
TABLE OF CONTENTS.........................................................................................................I
INDEX OF AUTHORITIES..................................................................................................II
STATEMENT OF FACTS.....................................................................................................V
STATEMENT OF JURISDICTION..................................................................................VII
ISSUES RAISED................................................................................................................VIII
SUMMARY OF ARGUMENTS..........................................................................................IX
ARGUMENTS ADVANCED..................................................................................................1
ISSUE 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?................................................................................................................1
I.A The Petitioner Has The Required Locus Standii For Filing A Petition.....................1
I.A.1 The petitioner can go the court under Section 14 of the Arbitration and
Conciliation Act, 1996 even after exhausting the remedies available under Section 12
and Section 13 of the same Act......................................................................................1
I.A.2 There is violation of principles of Natural Justice.............................................3
I.B The Bombay High Court Has The Jurisdiction To Hear The Present Appeal..........4
ISSUE II WHETHER THE MANDATE OF ADITYA NARAYAN SHOULD BE TERMINATED AS
ARBITRATOR?.........................................................................................................................9
I.A There Is Actual Bias And Lack Of Neutrality Which Gives Rise To Justifiable
Doubts Regarding His Mandate........................................................................................9
I.A.1 The Arbitrator has questionable relations with the Contractor as per S.12 (5)
and Schedule VII of The Arbitration and Conciliation Act, 1996.................................9
I.A.2 The Arbitrator failed to make the requisite disclosures under S.12 (1) of The
Arbitration and Conciliation Act, 1996........................................................................12
I.B There Is Lack Of Required Independence Which Gives Rise To Justifiable Doubts
As To Impartiality Of The Arbitrator...............................................................................14
ISSUE IIIWHETHER THE MANDATE OF MS. AISHWARYA GAUR SHOULD BE TERMINATED
AS ARBITRATOR?.................................................................................................................16
I.A The Principle Of “Qui facit Per Alium Facit Per Se” Applies................................16
I.B Termination Of Mandate Of Appointing Arbitrator Leads To Termination Of
Page | I
Mandate Of Arbitrator Appointed By Him......................................................................18
Prayer......................................................................................................................................XII
Page | II
INDEX OF AUTHORITIES
CASES
A.K Kraipak v. Union of India, 1969 2 SCC 262.----------------------------------------------------3

ABC Laminart Pvt Ltd and Anr v. AP Agencies,Salem, 1989 2 SCC 163.------------------------7
Alcove Industries Ltd. v. Oriental Structural Engineers Ltd., 2008 1 ArbLR 393 Delhi [25].- 3
Ariba India Private Ltd. v. ISPAT Industries Ltd., 2011 ArbLR 163 Delhi.----------------------3
B.E Simoese Von Staraburg Niedenthal and Anr. v. Chhattisgarh Investment Limited, 2015
12 SCC 225.--------------------------------------------------------------------------------------------7
Balaji Coke Industry Pvt. Ltd. v. Maa Bhagwati Coke (Guj) Pvt. Ltd, 2009 9 SCC 403.-------5
Behari Kun Sahkari Awas Samiti v. State of UP, 1997 7 SCC 37.--------------------------------17
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC 552 [96].-------5
Bihar Agency v. State of Bihar, AIR 1981 SC 1758.-------------------------------------------------4
Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and Ors.,
2007 8 SCC 705.--------------------------------------------------------------------------------------17
Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr., 2000 8 SCC 151.-----------------------17
Deep Trading Co. v. Indian Oil Corporation and Ors., 2013 4 SCC 35.------------------------17
Delhi Chemical& Pharmaceuticals Works Pvt Ltd v. Himgiri Realtors Pvt Ltd, 2011 3
ArbLR 523.---------------------------------------------------------------------------------------------2
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors, Arb. P. 635/2016 decided on
19 October 2016.---------------------------------------------------------------------------------------1
Ex. Armymen’s Protection Services P. Ltd. v. Union of India, Civil Appeal No. 2876/2014
(arising out of SLP (Civil) No. 15000 of 2010) decided on 26 February 2014.---------------3
Executive Engineer, Road Development Division No III, Panvel & Anr v. Atlanta Limited,
AIR 2014 SC 1093.------------------------------------------------------------------------------------8
Fazlehussein Haiderbhoy Busamusa v. Yusufally Adamji and Ors., AIR 1955 Bom 55 [2].---7
Gurucharan Singh Sahney and Ors. v. Harpreet Singh Chabbra and Ors., 2016 SCC Online
Hyd 90.-------------------------------------------------------------------------------------------------10
H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India) Ltd. (Formerly Gas
Authority of India Ltd.), 2017 3 ArbLR 393 Delhi.-----------------------------------------------2
Hakkam Singh v. Gammon (India) Ltd., 1971 1 SCC 286.------------------------------------------7
Himadri Chemical & Industries Ltd. v. Steel Authority of India & Anr., 2012 3 CalLT 339
Page | III
HC.-------------------------------------------------------------------------------------------------------2
Indian Telecomp Ltd. v.Union of India and Ors., 1995 25 DRJ 605.----------------------------10
Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited & Ors,
AIR 2017 SC 2105.------------------------------------------------------------------------------------6
International Airport Authority of India v. KD Bali, 1988 2 SCC 360.--------------------------10
Konkola Copper Mines (PLC) v. Stewarts and Lloyds of India Limited, 2013 3 ArbLR 329
Bom.-----------------------------------------------------------------------------------------------------5
ManakLal v. Dr. Premchand, AIR 1957 SC 425.----------------------------------------------------3
Murlidhar Roongta v. Jagannath Tibrewala, 2005 1 ArbLR 103 Bom.-------------------------10
National Highways Authority of India v. KK Sarin & Ors., 2008 1 ArbLR 393 Delhi.------2, 3
Newton Engineering and Chemicals Ltd. v. Indian Oil Corporation Ltd. and Others, 2013 4
SCC 44.------------------------------------------------------------------------------------------------17
Pratap Chand Nopaji v. Firm of Kotrike Venkata Setty & Sons and Ors. 1975 2 SCC 208.- 17
Priknit Retails v. Aneja Agencies, 2013 2 ArbLR 35 Delhi.---------------------------------------10
Rajasthan State Electricity Board v. Universal Petrol Chemicals Ltd., 2009 3 SCC 107.------7
Ranjit Thakur v. Union of India, 1988 CriLJ 158.--------------------------------------------------10
Roop Chand v. State of Punjab, AIR 1963 SC 150.------------------------------------------------17
S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701.--------------------------------3
Shiv Bhagwan v. Onkarmal, AIR 1952 Bom 365.----------------------------------------------------7
Shyam Telecom Ltd. v. ARM Ltd., 2004 3 ArbLR 146 Delhi.-------------------------------------10
State of Orissa v. Commissioner of Land Records and Settlement, Cuttack & ors., 1998 7
SCC 162.-----------------------------------------------------------------------------------------------17
Sudhir G. Angur and Ors.v. M.Sanjeev and Ors., AIR 2006 SC 351[12].------------------------7
Swastik Gases Private Limited v. Indian Oil Corporation Limited, 2013 9 SCC 32.------------7
The State of Uttar Pradesh v.Mohammad Nooh, AIR 1958 SC 86.--------------------------------3
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE 692 [48]-[58].see-------17
Union of India v. Reliance Industry Limited and Ors., 2015 10 SCC 213------------------------5
Union of India, New Delhi v. Coromandel Engineering Co. Madras, AIR 1965 Mad 488 [6].6
Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation, AIR 2017 SC 939 [17].-----10
Walter Bau AG, Legal Successor, of the Original Contractor, Dyckerhoff and Widmann A.G.
v. Municipal Corporation of Greater Mumbai, 2015 3 SCC 800.-----------------------------18
West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India,O.M.P.
(T) (COMM.) 28/2017 & IA No.4598/2017 decided on 15 May 2017.------------------------1
Page | IV
STATUTES
The Arbitration and Conciliation Act, 1996(Amended), Seventh Schedule.--------------------10

The Arbitration and Conciliation Act, 1996, s2 (1) (e).---------------------------------------------8
OTHER AUTHORITIES
Clause 20-Dispute Resolution Clause------------------------------------------------------------------6

Moot Proposition, para 4.--------------------------------------------------------------------------------5
Moot Proposition, para 7.------------------------------------------------------------------------------11
Moot Proposition, para 8.------------------------------------------------------------------------------13
CONSTITUTIONAL PROVISIONS
The Constitution of India, 1950, article 136.-------------------------------------------------------VII
BOOKS
Francis Russel, David St. John Sutton and Judith Gill;, Russell on Arbitration (22 edn, Sweet
and Maxwell 2002) 108,109.-----------------------------------------------------------------------13
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis, 2014) 454.----------------------------3
Page | V
STATEMENT OF FACTS
BACKGROUND
The respondent, SSN Private Limited [hereinafter referred as the “Contractor”] is a
company registered under the Companies Act, 1956 and having its registered office and place
of business at New Delhi, India. The petitioner, namely, DC Enterprises [hereinafter referred
as the “Sub-Contractor”] is a company registered under the Companies Act, 1956 and
having its registered office and place of business at Kolkata. The Contractor secured a tender
from the State of Orissa for constructing a specialized suspension bridge in Cuttack, Orissa.
THE CONTRACT
The Contractor for the construction of bridge entered into an agreement with the Sub-
Contractor for design engineering services. The terms were negotiated through emails and the
contract was executed in Kolkata. The Sub-Contractor was to provide designs at the
construction site by 12.09.2014.Further, a midnight clause, subjecting all disputes arising out
of breach of contract or in relation to the construction to arbitration was included by the
Contractor after the negotiations between the parties were done. The Clause also conferred
exclusive jurisdiction to the Courts of Mumbai, Maharashtra to deal with any disputes or
differences arising out of the contract.
THE DISPUTE
The Sub-Contractor delivered the designs after the agreed time, only on 18.01.2015.The late
delivered designs were subsequently found to have defaults due to which the Contractor
suffered losses and invoked the arbitration clause arising out of breach of contract by the
Sub-Contractor.
The Contractor appointed Mr. Ashish Singh, Managing Director of SSN Private Limited as
their nominated arbitrator. When the Sub-Contractor failed to appoint their arbitrator within
the stipulated time, the Contractor approached the Hon’ble High Court of Calcutta on
25.08.2015 to appoint one and they appointed one of their Retired Judges, Mr. Abhay Patel.
Further, Ms. Aishwarya Gaur, a Retired Judge of the Bombay High Court was appointed as
the Chairperson of the tribunal. Place of arbitration was mutually agreed upon as Mumbai,
Maharashtra.
Pursuant to the amendments of 23.10.2015 in the Arbitration and Conciliation Act, 1996, Mr.
Page | VI
Ashish Singh resigned on the basis of stringent requirements of independence and

impartiality, on 20.11.2015.Subsequently Mr. Aditya Narayan was appointed as an arbitrator
by the Contractor. In the meanwhile, on 18.12.2015,SSN Enterprises was taken over by KP
Infrastructure Pvt. Ltd. (a company registered under Companies Act,1956 at New Delhi),the
public announcement of which took place on 01.07.2015.
On 05.01.2016 the Sub-Contractor came to know that Mr. Aditya Narayan was the senior
partner at the Mumbai office of a law firm DT Associates, whose Delhi office had a five year
agreement with another wholly owned subsidiary of KP Infrastructure for advising them on
legal issues on another matter and the firm derived substantial income therefrom. The Sub-
Contractor expressed his disagreements to the appointment of Mr. Aditya Narayan, as he
failed to make the aforesaid disclosure to which he asserted unilaterally that his ineligibility
can’t be questioned.
The Sub-Contractor in this regard approached the Ld. Arbitral Tribunal challenging Mr.
Aditya Narayan’s appointment on grounds of lack of impartiality and independence, which
rose justifiable doubts as to his eligibility. The challenge was not accepted by the Arbitral
Tribunal as they were of the view that the relationship between Mr. Aditya Narayan and the
Contractor did not give rise to any justifiable doubts as to his independence and impartiality.
THE PETITIONS
Aggrieved by the order of the Arbitral Tribunal, the Sub-Contractor approached the Hon’ble
High Court of Bombay for terminating the mandate of Mr. Aditya Narayan and Ms.
Aishwarya Gaur as arbitrators. The Hon’ble High Court of Bombay vide its order dated
24.02.2017 dismissed the Petition filed by the Sub-Contractor as the same was not
maintainable.
Aggrieved by the order of the Hon’ble High Court of Bombay, the Sub-Contractor [herein
after referred to as the Petitioner] approached the Hon’ble Supreme Court of India under
Article 1361 of The Constitution of India. On the date of first hearing, the Contractor was on
caveat. After hearing the parties, the Hon’ble Supreme Court put up the matter for
26.08.2017, and, therefore the present petition and arguments.
1
The Constitution of India, 1950, article 136.
Page | VII
STATEMENT OF JURISDICTION
The petitioner has approached the Hon’ble Supreme Court of India under Article 136 of The
Constitution of India, 1950.
Page | VIII
ISSUES RAISED
ISSUE 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?
ISSUE II
WHETHER THE MANDATE OF MR ADITYA NARAYAN SHOULD BE TERMINATED AS

ARBITRATOR?
ISSUE III
WHETHER THE MANDATE OF MS AISHWARYA GAUR SHOULD BE TERMINATED AS

ARBITRATOR?
Page | IX
SUMMARY OF ARGUMENTS
ISSUE 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?
 The petition should have been maintainable
 The petitioner has the locus standii to appeal
 The petitioner can go the court under Section 14 of the
Arbitration and Conciliation Act, 1996 even after exhausting
the remedies available under Section 12 and Section 13 of the
same Act.
 There is violation of principles of natural justice.
 The High Court of Bombay has the jurisdiction to hear the present
petition
 The Place of Arbitration has equivalent jurisdiction with the
‘courts’ as per Section 2(1) (e) of The Arbitration and
Conciliation Act, 1996.
 The Courts of Mumbai have exclusively ousted jurisdiction
in the present matter.
 The High Court of Bombay has Ordinary Original
Jurisdiction.
ISSUE II: WHETHER THE MANDATE OF MR. ADITYA NARAYAN SHOULD BE TERMINATED
AS ARBITRATOR?
 There exists an actual bias and lack of neutrality in the mandate of Aditya Narayan as
an arbitrator as per Section 12 (1), Section 12 (3) and Section 12 (5) of the (amended)
Arbitration and Conciliation Act, 1996.
 The Arbitrator had Relations with the Contractor which gave
rise to justifiable doubts on his conduct
 The Arbitrator failed to make the requisite disclosures under
Page | X
S.12 (1) of The Arbitration and Conciliation Act, 1996.
 There is lack of required independence in the mandate of Aditya Narayan as an

arbitrator as per Section 12(3) of The Arbitration and Conciliation Act,1996 which
gives rise to justifiable doubts as to his impartiality.
ISSUE III: WHETHER THE MANDATE OF MS. AISHWARYA GAUR SHOULD BE

TERMINATED AS AN ARBITRATOR?
 The principle of “Qui facit per alium facit per se” applies.
 Termination of mandate of appointing arbitrator leads to termination of mandate of
arbitrator appointed by him.
Page | XI
ARGUMENTS ADVANCED
ISSUE 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?
It is humbly submitted that the petition is maintainable and shouldn’t have been dismissed by
the Bombay High Court as, firstly, the petitioner has the required locus standii. [I.A]
Secondly, the Bombay High Court has the required jurisdiction to hear the petition. [I.B]
I.A THE PETITIONER HAS THE REQUIRED LOCUS STANDII FOR FILING A PETITION
A party filing a petition directly before a High Court must have the required stand or the
locus standii to do so. In the present case the petitioner possesses the required locus standii
as,firstly,he can approach the court as defined under S.2 (1) (e) of The (amended) Arbitration
Act under S.14 of the same act.[I.A.1].And, secondly, there is violation of principles of
natural justice.[I.A.2]
I.A.1 The petitioner can go the court under Section 14 of the Arbitration and Conciliation
Act, 1996 even after exhausting the remedies available under Section 12 and Section 13 of
the same Act
It is humbly submitted that if one has already challenged the appointment of an arbitrator
under S.13 (2) of the Act on grounds of S.12 (5) of the (amended) Act, one need not wait for
the arbitral tribunal to pass the award as per S.13 (4) of The Arbitration and Conciliation Act,
1996 before going to the court for challenging the arbitrator again.
If an arbitrator’s appointment is in contrast to S.12 (5) read with Seventh Schedule, he is
de-jure ineligible to perform his functions and therefore can be terminated by the virtue of
S.14 (2).2
Recently in the case of West Haryana it was held that, where an arbitrator is ineligible to be
appointed as an arbitrator as he suffers from disqualifications stipulated under Section
2
West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India, O.M.P. (T) (COMM.)
28/2017 & IA No.4598/2017 decided on 15 May 2017.see also, Dream Valley Farms Pvt. Ltd. v. Religare
Finvest Ltd. & Ors., Arb. P. 635/2016 decided on 19 October 2016.
Page | 1
12(5) and the Seventh Schedule of the Arbitration Act, the court would have powers under
S.14(2) of the same Act to terminate the mandate of such an arbitrator.”3
In the present case, the petitioner challenged the mandate of the arbitrator appointed by the
Contractor, namely, Mr. Aditya Narayan under S.12 (5) and S.13 (2) of the (amended)
Arbitration and Conciliation Act, 1996 before the arbitral tribunal. However, the arbitral
tribunal gave the decision against the petitioner saying that they did not find the relationship
between the Contractor and Aditya Narayan raising any justifiable doubts as to his
independence or impartiality. Aggrieved by this, the petitioner approached the Bombay High
Court but was however barred by the conditions of S.13 (4).In the light of the above
mentioned case, it is humbly submitted that the petition should have been maintainable and
the High Court of Bombay should have allowed the petition under S.14 of the Arbitration
Act.
It was said in the case of Himadri Chemical & Industries Ltd. v. Steel Authority of India &
Anr.4 that it would be violation of principles of natural justice of right to fair hearing if one
has to necessarily comply with the terms of S.13(4) and wait for the award to be passed.
Therefore even when one has exhausted his remedies under S.12 and S.13, one can go to
the court by the virtue of S.14 of The (amended) Arbitration and Conciliation Act, 1996.5
Also, in the case of H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India)
Ltd. (Formerly Gas Authority of India Ltd.)6 the court said that an arbitrator who is ineligible
to be appointed as one, ipso jure, doesn’t have the mandate of an arbitrator and the party
challenging his mandate can always take recourse of S.14 to approach the court for his
termination.”7
It is humbly submitted that in the present situation Mr. Aditya Narayan was ineligible to be
appointed as an arbitrator as per S.12, Fifth Schedule, and Seventh Schedule of the
Arbitration Act. And an ineligible arbitrator,ipso jure,is de-jure incapable, we would like to
humbly say that the present petition seeking termination of mandate of Mr. Aditya Narayan
on account of S.12(5) read with Seventh Schedule of the Arbitration Act should be held
3
28/2017 & IA No.4598/2017 decided on 15 May 2017 [28].
4
Himadri Chemical & Industries Ltd. v. Steel Authority of India & Anr., 2012 3 CalLT 339 HC.
5
Himadri Chemical & Industries Ltd. v. Steel Authority of India & Anr., 2012 3 CalLT 339 HC.see also, Delhi
Chemical& Pharmaceuticals Works Pvt Ltd v. Himgiri Realtors Pvt Ltd, 2011 3 ArbLR 523.
6
H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India) Ltd. (Formerly Gas Authority of
India Ltd.), 2017 3 ArbLR 393 Delhi.
7
H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India) Ltd. (Formerly Gas Authority of
India Ltd.), 2017 3 ArbLR 393 Delhi [31].see also, National Highways Authority of India v. KK Sarin & Ors.,
2008 1 ArbLR 393 Delhi.
Page | 2
maintainable under S.14 (1) (a) of the Arbitration Act.8
I.A.2 There is violation of principles of Natural Justice
It is humbly submitted that the concept of natural justice is very important in the modern
administrative law as it lays a basis for judicial control of the procedure followed by the
adjudicatory bodies. Natural justice as a concept in itself is very wide and doesn’t have any
fixed connotations. It is flexible and depends on the nature and constitution of the concerned
body.9
Natural justice requires that persons whose interests are to be affected by adjudicative or
administrative decisions receive a fair and unbiased hearing before the decisions are made.10
There are mainly two principles of natural justice-
 that the body in question should be free from bias (nemo judex in sua causa)
 that it should hear the person affected before it decides the matter (audi alteram
partem)
It is humbly submitted that in the present situation, both the principles are being violated.
The first principle essentially means that no person should be a judge in his own cause.
The adjudicator should be disinterested and free from bias and should be neutral.11
This principle is essentially being violated in the present situation by the decision of the
Arbitral Tribunal upholding the authenticity of Mr. Aditya Narayan’s mandate. We would be
dealing with this in the subsequent issues. However, for now it can be said that Mr. Aditya
Narayan as an arbitrator had significant commercial relations with one of the affiliate
companies of the Contractor and also derived substantial income from the legal office
advising them. The existence of this situation is clear enough for likelihood actual bias to be
established as per ordinary prudence12.If the arbitrator is allowed to continue, then clearly the
principle of nemo judex in sua causa will be violated as justice should not only be done but
manifestly seen to be done.
8
28/2017 & IA No.4598/2017 decided on 15 May 2017 [28].see also, Alcove Industries Ltd. v. Oriental
Structural Engineers Ltd., 2008 1 ArbLR 393 Delhi [25]; Ariba India Private Ltd. v. ISPAT Industries Ltd.,
2011 ArbLR 163 Delhi.
9
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis, 2014) 454.
10
Ex. Armymen’s Protection Services P. Ltd. v. Union of India, Civil Appeal No. 2876/2014 (arising out of SLP
(Civil) No. 15000 of 2010) decided on 26 February 2014.
11
The State of Uttar Pradesh v.Mohammad Nooh, AIR 1958 SC 86.see also, A.K Kraipak v. Union of India,
1969 2 SCC 262; ManakLal v. Dr. Premchand, AIR 1957 SC 425.
12
S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701.
Page | 3
Similarly, the second principle means that the person whose rights are in questioned should
be given a reasonable and fair opportunity to be heard and to present his case. No one should
be denied the right of fair hearing. 13It was held in the Himadri Chemicals Case that “it would
be destructive of the concept of fair trial if a party was compelled to face a biased
adjudicator.”14
In the present case, there exists an apparent bias in the mandate of Mr. Aditya Narayan
despite which the Arbitral Tribunal passed the decision upholding his validity as an arbitrator.
Now as per S.13(4) of The Arbitration and Conciliation Act,1996,if we are to wait till the
award comes before approaching the courts, it would clearly be denial of the right of fair
trial to the petitioner. In such circumstances, to wait for the award to pass will be of no
purpose as “Justice delayed is justice denied.”
Analysing the situation present before us, we would like to humbly submit that the on
account of principles of natural justice being violated here, the petitioner has the locus standii
to appeal to the court and therefore, it is humbly submitted that the petition should have been
maintainable before the Hon’ble High Court of Bombay.
I.B THE BOMBAY HIGH COURT HAS THE JURISDICTION TO HEAR THE PRESENT APPEAL
It is humbly submitted that a party filing a petition in a court must approach the right court
having the jurisdiction to hear their case, for it to be maintainable. In the present case, the
petitioner approached the Bombay High Court to file their petition which was dismissed by
the Bombay High Court on the grounds of non-maintainbaility.It is humbly submitted that
Mumbai was chosen as the place of arbitration and the chosen place of arbitration has the
jurisdiction to hear the disputes and petitions arising.[I.B.1]Secondly, Bombay High Court
had the exclusive jurisdiction to hear the cases by the virtue of the terms of contract between
the parties.[I.B.2]And, thirdly, the Bombay High Court indeed had the jurisdiction to hear the
present petition as Bombay High Court has ordinary original jurisdiction by virtue of which it
can hear cases at first instance.[I.B.3]
13
Bihar Agency v. State of Bihar, AIR 1981 SC 1758.
14
Himadri Chemicals and Industries Ltd v.Steel Authority of India Ltd, 2012 3 CALLT 339 HC.
Page | 4
I.B.1. The Place of Arbitration Has Jurisdiction
It is humbly submitted that the chosen place of arbitration always possesses the jurisdiction
concurrent to territorial jurisdiction and where the cause of action arose. In other words,
venue or place of arbitration also confers jurisdiction to the courts of the specified place or
venue.15The Hon’ble Supreme Court in the same judgment interpreted S.20 which talks about
choosing “place of arbitration” and S.2 (1) (e) which gives definition of “Court” with respect
to The (amended) Arbitration and Conciliation Act, 1996.The Hon’ble Court said that
wherever the place of arbitration is India, the parties can freely choose their place of
arbitration as per their convenience and if they fail to do so then the Arbitral Tribunal can do
the same.16
The Court also said that the chosen place of arbitration inherently by the virtue of the
Arbitration Act have the jurisdiction like the courts where cause of action arose. Therefore
the courts where arbitration takes place would have supervisory control over the courts where
cause of action arose.17 “In S.2 (1) (e) of the Arbitration Act, the term “subject-matter” refers
and connects to arbitration proceedings. It is made clear that the Arbitration Act is subject
matter centric.18Therefore its purpose is to identify the court having supervisory control over
the arbitral proceedings. Hence, it would essentially be the court of seat of arbitration.”19
In the present case the place of arbitration was chosen to be Mumbai by the Arbitral Tribunal
with consent of both the parties for convenience of the presiding arbitrator. 20Therefore it is
humbly submitted that Mumbai being the place of arbitration was conferred with the same
jurisdiction like the places where cause of action arises and this jurisdiction is rather
supervisory over other competent courts in the arbitral process. 21Therefore, in the present
case since Mumbai was chosen as the place of arbitration and thus the jurisdiction essentially
lay with the courts of Mumbai and the Hon’ble Bombay High Court in the present had the
jurisdiction to admit our petition.
15
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC 552 [96].see also, Union of India
v. Reliance Industry Limited and Ors., 2015 10 SCC 213; Konkola Copper Mines (PLC) v. Stewarts and Lloyds
of India Limited, 2013 3 ArbLR 329 Bom; Balaji Coke Industry Pvt. Ltd. v. Maa Bhagwati Coke (Guj) Pvt. Ltd,
2009 9 SCC 403.
16
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC 552,558.
17
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC, 557.
18
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC 552 [95].
19
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC, 557.
20
Moot Proposition, para 4.
21
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, 2012 9 SCC 552 [96].
Page | 5
Thus, we would humbly like to submit that the present petition should have been
maintainable before the Hon’ble High Court of Bombay as Mumbai essentially has the
jurisdiction to hear the disputes arising in relation to arbitration proceedings in the present
matter.
I.B.2. The Courts of Mumbai Have the Exclusive Jurisdiction
It is humbly submitted that in the present case, the courts of Mumbai have been given the
exclusive jurisdiction to deal with any disputes arising out of contract by the virtue of the
midnight clause inserted by the parties, namely, Clause 2022.The Sub Clause 2 in the clause
20 talked about making all the disputes arising out or in connection to contract subject to the
jurisdiction of courts of Mumbai.
It is an established principle that “the phrase ‘in connection to the contract’ refers to disputes
subject to arbitration only. Pickford L.J has observed that the usual meaning of the clause ‘in
connection to the contract’, the dispute arising out of this falls under the purview of
arbitration.So,the basic principle is that all disputes arising out of or in connection to a
contract are to be referred to arbitration.”23
In the case at hand the sub clause 2 of Clause 20 refers all matters arising out of or in
connection to the contract subject to jurisdiction of Mumbai Courts only. This means that the
disputes are subject to arbitration proceedings and the courts of Mumbai have been conferred
exclusive jurisdiction for any disputes or problem arising thereof.
It was held in the case of Indus Mobile Distribution Private Limited v. Datawind Innovations
Private Limited & Ors24 that “if there exists a clause in the agreement conferring exclusive
jurisdiction to the courts of a place where no cause of action arises and therefore has no
jurisdiction; the moment that place is decided as the place or seat of arbitration, it is akin to
an exclusive jurisdiction clause.”25In this case, the agreement between the parties had a
22
Clause 20-Dispute Resolution Clause-
“1. All disputes or differences whatsoever arising between the parties out of, or relating to, the construction,
meaning and operation or effect of the construct or the breach thereof shall be settled by arbitration conducted
under the provisions of the Arbitration and Conciliation Act,1996 as amended by reference to a three member
arbitral tribunal.
2. All disputes and differences arising out of or in connection with the contract shall be subject to the
exclusive jurisdiction of courts of Mumbai only.”
23
Union of India, New Delhi v. Coromandel Engineering Co. Madras, AIR 1965 Mad 488 [6].
24
Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited & Ors, AIR 2017 SC
2105.
25
2105.
Page | 6
clause,namely,Clause 19,conferring jurisdiction to the courts of Mumbai exclusively, which

otherwise wouldn’t have any jurisdiction.Also,the seat of arbitration was held to be Mumbai
and Clause 19 further made it clear that jurisdiction exclusively vested in Mumbai Courts.
The Supreme Court said that, “Under Arbitration Laws, a reference to “seat” or “place” is
a concept by which parties agree upon a neutral venue through an arbitration clause. This
venue might not have jurisdiction in the classical sense and neither will the provisions of
Section 16 to 21 of The Civil Procedure Code, 1908 will apply. However, the moment the
“seat” is determined in arbitration, the fact that seat is Mumbai would vest the Courts of
Mumbai with exclusive jurisdiction in relation to arbitral proceedings arising out of the
clause inserted in agreement by the parties.”26
A proximately similar situation exists in the case at hand. Here also the parties out of an
arbitration agreement clause vested exclusive jurisdiction in the Courts of Mumbai which
otherwise had no jurisdiction in the classical sense. Later on, the place (or seat) of arbitration
was decided as Mumbai. Therefore, on the basis of the reasoning of the Supreme Court in the
Indus Mobile Distribution case, the Courts of Mumbai possess the exclusive jurisdiction from
the date when Mumbai was designated as place of arbitration and the arbitration clause
inserted by the parties would become valid from that day thereon.
Also, it is well settled that where two or more competent courts have jurisdiction, it is open
for the parties to oust the jurisdiction on one court and exclude all other courts.27
Now, in the current situation at hand, the petitioner approached the Bombay High Court with
their grievance much after the validity of the exclusive jurisdiction coming into being. And,
relevant time to determine the jurisdiction of a particular court is when the matter is being
heard.28 So, when the petition was filed before the Bombay High Court, it had the exclusive
jurisdiction to hear the petition by the virtue of the arbitration clause and Mumbai being
chosen as place of arbitration. Therefore, it is humbly submitted that, the petition should have
been maintainable before the Hon’ble High Court of Bombay.
I.B.3. The Bombay High Court Possesses Ordinary Original Jurisdiction
26
2105 [20].
27
Swastik Gases Private Limited v. Indian Oil Corporation Limited, 2013 9 SCC 32. see also, B.E Simoese Von
Staraburg Niedenthal and Anr v.Chhattisgarh Investment Limited, 2015 12 SCC 225; Rajasthan State
Electricity Board v. Universal Petrol Chemicals Ltd.,(2009) 3 SCC 107; ABC Laminart Pvt Ltd and Anr v. AP
Agencies,Salem, 1989 2 SCC 163; Hakkam Singh v. Gammon (India) Ltd., 1971 1 SCC 286.
28
Sudhir G. Angur and Ors.v. M.Sanjeev and Ors, AIR 2006 SC 351[12].see also, Shiv Bhagwan v. Onkarmal,
AIR 1952 Bom 365; Fazlehussein Haiderbhoy Busamusa v. Yusufally Adamji and Ors., AIR 1955 Bom 55 [2].
Page | 7
The Bombay High Court possesses ordinary original jurisdiction which was conferred to it by
the Britishers through Letters Patent. It was given to Courts of Madras, Bombay, Allahabad
and Calcutta.29By the virtue of their Ordinary Original Jurisdiction these courts have the
power to become the court of first instance regarding certain matters.
It is humbly submitted that Section 2(1) (e) of the (amended) Arbitration and Conciliation
Act, 1996 defining courts which can be approached in relation to arbitration proceedings
includes High Courts having ordinary original jurisdiction.30
In the case at hand as already discussed above the Courts of Mumbai had exclusive
jurisdiction to hear all matters regarding arbitration from the date Mumbai was chosen as
the place of arbitration. Therefore, the Hon’ble High Court of Bombay had the exclusive
jurisdiction at the time when the petition was filed before them.
However, here, the petitioner directly approached the High Court of Bombay with their
petition regarding the arbitration proceedings which was in turn dismissed by the Hon’ble
High Court on grounds of lack of maintainability.
It is humbly submitted that since the Bombay High Court being one of the competent courts
here also possesses the Ordinary Original Jurisdiction which can be exercised in relation to
arbitration proceedings the petitioner can clearly approach the High Court of Bombay at first
instance.
It was held in the case of Executive Engineer Road Development Panvel & Anr. V. Atlanta
Limited31 that “S.2 (1) (e) vests jurisdiction in the principle civil courts which are the courts
of highest authority in a district. Similarly, the Bombay High Court in exercise of its ordinary
original jurisdiction is the highest court in exercise of original jurisdiction. Therefore,
whenever an option can be exercised between a High Court (under its “ordinary original
jurisdiction”) and a District Court (as “principal Civil Court of Original Jurisdiction”),the
choice under Arbitration has to be exercised in favour of the High Court.”32
Therefore, we would like to humbly submit that in the present case the Hon’ble Bombay
High Court could have heard the petition by virtue of its ordinary original jurisdiction and
thus, the petition should have been maintainable.
29
Fazlehussein Haiderbhoy Busamusa v. Yusufally Adamji and Ors., AIR 1955 Bom 55.
30
The Arbitration and Conciliation Act, 1996, s2 (1) (e).
31
Executive Engineer, Road Development Division No III, Panvel & Anr v. Atlanta Limited, AIR 2014 SC 1093.
32
Executive Engineer, Road Development Division No III, Panvel & Anr v. Atlanta Limited, AIR 2014 SC 1093
[25], [26].
Page | 8
ISSUE II WHETHER THE MANDATE OF ADITYA NARAYAN SHOULD BE TERMINATED AS

ARBITRATOR?
It is most humbly submitted that the mandate of Aditya Narayan Should be terminated as an
arbitrator as, firstly, there exists an actual bias which gives justifiable rise to his impartiality
and neutrality.[I.A] Secondly, there is lack of independence in the position as well as conduct
of arbitrator. [I.B]
I.A THERE IS ACTUAL BIAS AND LACK OF NEUTRALITY WHICH GIVES RISE TO JUSTIFIABLE
DOUBTS REGARDING HIS MANDATE
It is humbly submitted that the mandate of Mr. Aditya Narayan should be terminated because
there existed actual bias which gave rise to justifiable doubts regarding his neutrality and
impartiality as, firstly, he had questionable relations with the Contractor as per S.12 (5) and
Seventh Schedule of The (amended) Arbitration Act which are enough to render him
ineligible. [I.A.1]And, secondly, he failed to make the requisite disclosures as per the S.12 (1)
of the Arbitration Act which can also make him ineligible to continue. [I.A.2]
I.A.1 The Arbitrator has questionable relations with the Contractor as per S.12 (5) and
Schedule VII of The Arbitration and Conciliation Act, 1996
The meaning of term ‘bias’ according to Black’s Law Dictionary refers to “a predisposition
which does not leave the mind perfectly open to conviction for deciding an issue in a certain
way.” It is a strong influential force which can sway a judgment. There is a difference
between apparent bias and actual bias. “Apparent bias might just seem so but might not be
where as actual bias consists of state of mind on the part of juror which is enough to satisfy
the court that he wouldn’t be able to decide the matter impartially and without being
prejudiced to substantial right of challenging party.”
There should be an actual bias and not mere suspicion of bias to raise justifiable doubts on
one. “The test for bias and impartiality is whether the party to the dispute would have
reasonable apprehension in his mind about the independence of the Arbitrator and not
whether the Arbitrator thinks that he is capable of being impartial.”33
33
Ranjit Thakur v. Union of India, 1988 CriLJ 158.see also, Murlidhar Roongta v. Jagannath Tibrewala, 2005 1
Page | 9
According to S.12(5) of The (amended) Arbitration and Conciliation Act,1996 an arbitrator

becomes ineligible to be appointed if his relationship with the parties of dispute falls under
Seventh Schedule.34
However, S.14 of The Arbitration Act provides for the termination of mandate of an
arbitrator. “The incapability mention in S.14 (1) (a) of the Arbitration Act should have direct
nexus with the ability of arbitrator to perform his functions and he becomes legally
incapacitated or due to certain circumstances. In other words, an arbitrator should be
terminated if he becomes unable to perform his functions by the virtue of law of fact.”35
“The de-jure impossibility under S.14 (1) (a) refers to the legal incapacitation of the
Arbitrator i.e. he becomes disabled to perform his functions by virtue of law. These de-jure
inabilities must relate to his ability to function.”36
Also, “these de-jure impossibilities occur due to factors personal to the arbitrator.”37
Similarly, it was held by the Supreme Court in the case of Voestalpine Schienen GmbH
v. Delhi Metro Rail Corporation that,”S.12 has been amended to provide for and achieve
the neutrality of arbitrators. Therefore S.12 (5) says that if the relationship of the
arbitrator falls under any category as per Seventh Schedule, he shall be ineligible to be
appointed as an arbitrator. In such situations, the parties cannot insist upon his
appointment and it is beyond the pale of arbitration.”38
“Once an arbitrator enters into arbitration agreement, he must not be guilty of any act that
might be construed as an indicative of his partiality and unfairness. It’s not question of effect
produced but what might have been produced.”39
So, “if an arbitrator is ineligible by virtue of S.12 read with Seventh Schedule of The
Arbitration Act, he becomes de-jure incapable of performing his functions and his
mandate can be terminated according to S.14 of The Arbitration and Conciliation Act,
1996.”40
In the present case, the Arbitrator, Mr. Aditya Narayan is ineligible to be appointed as an
arbitrator by the virtue of S.12 (5) read with the Seventh Schedule (7) of the (amended)
ArbLR 103 Bom; Indian Telecomp Ltd. v.Union of India and Ors., 1995 25 DRJ 605.
34
The Arbitration and Conciliation Act, 1996(Amended), Seventh Schedule.
35
Gurucharan Singh Sahney and Ors. v. Harpreet Singh Chabbra and Ors., 2016 SCC Online Hyd 90.
36
Priknit Retails v. Aneja Agencies, 2013 2 ArbLR 35 Delhi.
37
Shyam Telecom Ltd. v. ARM Ltd., 2004 3 ArbLR 146 Delhi.
38
Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation, AIR 2017 SC 939 [17].
39
International Airport Authority of India v. KD Bali, 1988 2 SCC 360.
40
West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India,O.M.P. (T) (COMM.)
28/2017 & IA No.4598/2017 decided on 15 May 2017 [24].see also, H.R.D. Corporation (Marcus Oil and
Chemical Division) v. Gail(India) Ltd. (Formerly Gas Authority of India Ltd.), 2017 3 ArbLR 393 Delhi [32]-
[36].
Page | 10
Arbitration and Conciliation Act, 1996. First we would like to state certain grounds under the
Seventh Schedule from the Arbitration Act that are relevant for our case here:
THE SEVENTH SCHEDULE:
2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the
parties.
7. The arbitrator’s law firm has a currently significant commercial relationship with one of
the parties or an affiliate of one of the parties.
14. The arbitrator regularly advises the appointing party or an affiliate of the appointing
party, and the arbitrator or his or she derives a significant financial income therefrom.
Mr. Aditya Narayan is a lawyer in the law firm DT Associates which is currently advising
another subsidiary of KP Infrastructure which makes it an affiliate of SSN enterprise,
therefore also having a significant commercial relationship with them. Further the arbitrator’s
law firm has been regularly advising that company for four years now and has a five years
agreement up till December 2017, and the firm is deriving substantial income from them.41
This situation clearly falls under the ambit of abovementioned clauses as here the arbitrator’s
law firm is advising another subsidiary of KP Infrastructure, forming a commercial relation
with them. Also, the term affiliate includes the parent company along with all its subsidiary
companies. Therefore, KP Infrastructure can safely be called the parent company here with
SSN Enterprises and the other company clearly being its subsidiary companies.
Analysing these grounds as well, it is vividly clear that the arbitrator falls under the Seventh
Schedule on the basis of the same reasoning as given above and therefore should be rendered
ineligible on basis of S.12 (5) of the Arbitration Act. However, here ineligibility under S.12
(5) makes an arbitrator de-jure ineligible to perform his functions under S.14 and therefore
the mandate of Mr. Aditya Narayan should be terminated by the virtue of S.14 (2).42
Since the mandate of Mr Aditya Narayan is clearly being hit by S.12 (5) with Seventh
Schedule of The Arbitration Act, therefore it his humbly submitted before the Hon’ble Court
that his mandate should be terminated on grounds of S.14 of the same Act.43
41
42
Finvest Ltd. & Ors.,Arb. P. 635/2016 decided on 19 October 2016; Voestalpine Schienen v. Delhi Metro Rail
Corporation Ltd., 2017 4 SCC 665; H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India)
Ltd. (Formerly Gas Authority of India Ltd.), 2017 3 ArbLR 393 Delhi.
43
West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India,O.M.P. (T) (COMM.)
28/2017 & IA No.4598/2017 decided on 15 May 2017 [28].see also, H.R.D. Corporation (Marcus Oil and
Chemical Division) v. Gail(India) Ltd. (Formerly Gas Authority of India Ltd.),2017 3 ArbLR 393 Delhi.
Page | 11
I.A.2 The Arbitrator failed to make the requisite disclosures under S.12 (1) of The
Arbitration and Conciliation Act, 1996
An arbitrator is required certain disclosures in connection with his appointment on certain

grounds mentioned in the new S.12(1) read with Fifth Schedule of the Arbitration and
Conciliation Act, failing which justifiable doubts as to his impartiality and independence can
be raised.
When an arbitrator fails to make the requisite disclosure as per S.12(1) on the lines of Fifth
Schedule of The Arbitration Act, which gives rise to justifiable doubts he becomes de-jure
disqualified from continuing as an arbitrator and his mandate is terminated accordingly.44
Therefore, it is clear that ineligibility of an arbitrator as per S.12 of The Arbitration Act
amounts to losing his de-jure capacity as well.
“A solemn duty is casted on the arbitrator to disclose to the parties about his impartiality
and independence.”45
As discussed above, S.14 of The Arbitration Act provides for the termination of mandate of
an arbitrator. “The incapability mention in S.14 (1) (a) of the Arbitration Act should have
direct nexus with the ability of arbitrator to perform his functions and he becomes legally
incapacitated or due to certain circumstances. In other words, an arbitrator should be
terminated if he becomes unable to perform his functions by the virtue of law of fact.”46
“The de-jure impossibility under S.14 (1) (a) refers to the legal incapacitation of the
Arbitrator i.e. he becomes disabled to perform his functions by virtue of law. These de-jure
inabilities must relate to his ability to function.”47
Fifth Schedule begins with the sentence that “the following grounds give rise to justifiable
doubts as to the independence and impartiality of arbitrators.
THE FIFTH SCHEDULE: The following grounds give rise to justifiable doubts as to the
independence and impartiality of arbitrators:
2. The arbitrator currently advises one of the parties or an affiliate of one of the parties.
4. The arbitrator is a lawyer in the same law firm representing one of the parties.
7. The arbitrator’s law firm has a significant commercial relationship with one of the parties
44
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors, Arb. P. 635/2016 decided on 19 October 2016
[4], [21].
45
Murlidhar Roongta v. S Jagannath Tibrewala, 2005 ArbLR Bom 103, 114.
46
Gurucharan Singh Sahney and Ors. v. Harpreet Singh Chabbra and Ors. 2016 SCC Online Hyd 90.
47
Priknit Retails Ltd. v. Aneja Agencies, 2013 2 Arb LR 35 Delhi.
Page | 12
or an affiliate of one of the parties.

party, and the arbitrator or his or her firm derives a significant financial income therefrom.
23. The arbitrator’s law firm has within the past three years acted for one of the parties or an
affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.
Analysing these grounds, it is made vividly clear that Mr. Aditya Narayan failed to make the
requisite disclosures and hid many of the relevant facts which are raising significantly
justifiable doubts as to his independence.
law firm has been regularly advising that company for four years now and the firm is deriving
substantial income from them.48And, when Mr. Narayan was asked to make disclosures
regarding the same he failed to mention any of the above existing relationships he has with
the Contractor. Further he himself acknowledged the fact that their firm derives substantial
income form the respondent’s parent company, much later when he was confronted. 49All
these situations can easily be construed as an attempt to mislead the petitioner and, therefore,
his mandate should be terminated.50
“When an arbitrator has prior interest, he should disclose it at earliest. If not disclosed
early and rather discovered later by one of the parties, there is much more likelihood of
suspicion arising as to his impartiality and independence.”51
Further, when the arbitrator was asked to make requisite disclosures he did not disclose this
fact and when questioned afterwards tried to mislead the petitioner by giving vague
arguments. All this can be considered to be an attempt to mislead the petitioner as “Once an
arbitrator enters into arbitration agreement, he must not be guilty of any act that might be
construed as an indicative of his partiality and unfairness. It’s not question of effect
produced but what might have been produced.”52On the account of all these defaults at the
part of the arbitrator, it is humbly submitted before the Hon’ble Court that the mandate of
48
49
50
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors. Arb. P. 635/2016 decided on 19 October 2016
[17]-[21].
51
Francis Russel, David St. John Sutton and Judith Gill; Russell on Arbitration (22 edn, Sweet and Maxwell
2002) 108,109.
52
International Airport Authority of India v. KD Bali, 1988 2 SCC 360.
Page | 13
Mr. Aditya Narayan should be terminated.53
I.B THERE IS LACK OF REQUIRED INDEPENDENCE WHICH GIVES RISE TO JUSTIFIABLE

DOUBTS AS TO IMPARTIALITY OF THE ARBITRATOR
It is humbly submitted that S.12 (1) & (3) say that an arbitrator can be challenged if
circumstances such as his relations with one of the parties whether financial, business or
commercial exist and those are likely to give rise to justifiable doubts as to independence and
impartiality of the arbitrator.
Further S.12(5) says that if relationship of the arbitrator with the parties fall under any of the
grounds mentioned in the Seventh Schedule of the Arbitration Act, he shall be ineligible to be
appointed as an arbitrator.
We have already submitted above that an arbitrator becoming ineligible under S.12 is deemed
to become de-jure ineligible and therefore his mandate can be terminated.54
Independence in simple terms means lack of dependence. Therefore, for an arbitrator to be
independent he must be free and independent from having any connections or relationship
with any of the parties whether legal, commercial, or business.
In the present case, we would humbly like to submit that Mr. Aditya Narayan had
relationships with the Contractor that made him dependent on them.
First we would like to state certain grounds under the Fifth and Seventh Schedule from the
Arbitration Act that are relevant for our case here:
THE FIFTH SCHEDULE: The following grounds give rise to justifiable doubts as to the
independence and impartiality of arbitrators:
2. The arbitrator currently advises one of the parties or an affiliate of one of the parties.
4. The arbitrator is a lawyer in the same law firm representing one of the parties.
7. The arbitrator’s law firm has a significant commercial relationship with one of the parties
or an affiliate of one of the parties.
party, and the arbitrator or his or her firm derives a significant financial income therefrom.
23. The arbitrator’s law firm has within the past three years acted for one of the parties or an
53
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors., Arb. P. 635/2016 decided on 19 October 2016
[17]-[21].
54
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors., Arb. P. 635/2016 decided on 19 October 2016
[4],[21].see also, West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India,O.M.P. (T)
(COMM.) 28/2017 & IA No.4598/2017 decided on 15 May 2017 [28]; H.R.D. Corporation (Marcus Oil and
Chemical Division) v. Gail(India) Ltd. (Formerly Gas Authority of India Ltd.), 2017 3 ArbLR 393 Delhi.
Page | 14
affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.
Analysing these grounds, it is made vividly clear that Mr. Aditya Narayan failed to make the
requisite disclosures and hid many of the relevant facts which are raising significantly
justifiable doubts as to his independence.
law firm has been regularly advising that company for four years now and the firm is deriving
substantial income from them.55And, when Mr. Narayan was asked to make disclosures
regarding the same he failed to mention any of the above existing relationships he has with
the Contractor. Further he himself acknowledged the fact that their firm derives substantial
income form the respondent’s parent company, much later when he was confronted.56This
clearly shows that the arbitrator lacked independence and therefore ineligible to be
appointed as an arbitrator.
Now, we would look upon the grounds stated under the Seventh Schedule of The Arbitration
Act relevant to our case
THE SEVENTH SCHEDULE:
2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the
parties.
7. The arbitrator’s law firm has a currently significant commercial relationship with one of
the parties or an affiliate of one of the parties.
party, and the arbitrator or his or she derives a significant financial income therefrom.
Analysing these grounds as well, it is vividly clear that the arbitrator falls under the Seventh
Schedule on the basis of the same reasoning as given above and he clearly lacks
independence, therefore should be rendered ineligible on basis of S.12 (5) of the Arbitration
Act. However, here ineligibility under S.12 (5) makes an arbitrator de-jure ineligible to
perform his functions under S.14 and therefore the mandate of Mr. Aditya Narayan
should be terminated by the virtue of S.14 (2).57
55
56
57
Page | 15
It is clear now, that the arbitrator was not independent in his capacity and was rather
dependent upon the Contractor in many ways. Since he lacked independence which is one of
the pre-requisites of S.12 of The (amended) Arbitration Act he is ineligible under S.12 and
therefore deemed to become de-jure ineligible. It his humbly submitted before the Hon’ble
Supreme Court that considering all these situations and grounds, the mandate of Mr. Aditya
Narayan should be terminated.58
ISSUE III WHETHER THE MANDATE OF MS. AISHWARYA GAUR SHOULD BE TERMINATED AS
ARBITRATOR?
It is most humbly submitted that the mandate of Ms. Aishwarya Gaur should be terminated
as, firstly, The principle of “Qui facit per alium facit per se” applies which means “he who
acts through another does the act himself”.[I.A]And, secondly, the arbitrators appointing Ms.
Aishwarya have become ineligible therefore her mandate should be terminated as well.[I.B]
I.A THE PRINCIPLE OF “QUI FACIT PER ALIUM FACIT PER SE” APPLIES
It is humbly submitted that in the present case the legal maxim “Qui facit per Alium Facit per
Se” meaning, “what one does through another is done by oneself” should apply. When the
appointing authority becomes ineligible by operation of law then how can the decisions taken
by him hold well in the eye of law. Therefore the same should apply in the case of appointed
arbitrators as well. If an arbitrator is appointed by another arbitrator who himself has become
ineligible due to any reason, then the appointment of the arbitrator by him does not have
the force of law. If such a case is there, then it would result in tactics being used as to what is
outside one’s scope of legality or is prohibited, then that would result in getting it done by
appointing a nominee. This would defeat the very purpose of law.59
Also, if there is a specific clause requiring the parties to nominate their respective arbitrator,
Finvest Ltd. & Ors., Arb. P. 635/2016 decided on 19 October 2016; Voestalpine Schienen v. Delhi Metro Rail
Corporation Ltd., 2017 4 SCC 665; H.R.D. Corporation (Marcus Oil and Chemical Division) v. Gail (India)
Ltd. (Formerly Gas Authority of India Ltd.), 2017 3 ArbLR 393 Delhi.
58
Dream Valley Farms Pvt. Ltd. v. Religare Finvest Ltd. & Ors. Arb. P. 635/2016 decided on 19 October 2016
[4],[21].see also, West Haryana Highway Projects Pvt. Ltd. v. National Highways Authority of India,O.M.P. (T)
(COMM.) 28/2017 & IA No.4598/2017 decided on 15 May 2017 [28]; H.R.D. Corporation (Marcus Oil and
Chemical Division) v. Gail(India) Ltd. (Formerly Gas Authority of India Ltd.), 2017 3 ArbLR 393 Delhi.
59
Pratap Chand Nopaji v. Firm of Kotrike Venkata Setty & Sons and Ors., 1975 2 SCC 208.
Page | 16
their power to nominate one can’t be questioned and is not being questioned presently either.
However the eligibility of their arbitrator and the procedure to be followed by him in doing
the tasks given to him can be questioned 60and that is our major concern here.When an
employee of State Government is conferred with the power to do somehting,he is doing it
on behalf of the Government and not on in his individual capacity.Therefore,if he does
something which is beyond the legal ambit of the state, it would tantamount to it being
done by the State Government itself as it is from whom the employee has derived the power
to do so.61This is the ideal representation of the maxim of Qui facit per Alium Facit Se.
Therefore, it can be clearly stated that an arbitrator appointed by another arbitrator having
become statutorily ineligible would amount to carrying on the proceedings of the Arbitral
Tribunal himself disguised through the appointed arbitrator. 62If the arbitrator appointed by
him are allowed to be sustain the stand, it would create an anomaly which does not have a
place under law.
In the present situation since Mr. Ashish Singh resigned, so his mandate stood terminated
as per S.14 (1) (a) of The Arbitration and Conciliation (amended) Act, 1996 and thus he
became de-jure ineligible as an arbitrator. Ms. Aishwarya Gaur was appointed by him
during his mandate and if she is allowed to continue, it would be considered as Ashish
Singh acting through her as per the legal maxim“Qui facit per Alium Facit per Se”.It is
humbly submitted the mandate of Ms. Aishwarya Gaur should be terminated as an
arbitrator.
I.B TERMINATION OF MANDATE OF APPOINTING ARBITRATOR LEADS TO TERMINATION

OF MANDATE OF ARBITRATOR APPOINTED BY HIM
It is humbly submitted that the termination of mandate of appointing arbitrator should lead to
termination of the arbitrator appointed by him otherwise it would amount to carrying on the
60
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE 692 [48]-[58].see also, Newton
Engineering and Chemicals Ltd. v. Indian Oil Corporation Ltd. and Others, 2013 4 SCC 44; Deep Trading Co.
v. Indian Oil Corporation and Ors., 2013 4 SCC 35; Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr.,
2000 8 SCC 151.
61
State of Orissa v. Commissioner of Land Records and Settlement, Cuttack & ors. , 1998 7 SCC 162.see also,
Behari Kun Sahkari Awas Samiti v. State of UP, 1997 7 SCC 37; Roop Chand v. State of Punjab, AIR 1963 SC
1503; Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and Ors., 2007 8 SCC
705.
62
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE SC 692 [57].see also, Pratap Chand
Nopaji v. Firm of Kotrike Venkata Setty & Sons and Ors., 1975 2 SCC 208 [9].
Page | 17
proceedings by himself.63
“Ineligibility strikes at the root of power to arbitrate or get it arbitrated by someone
nominated.”
In the case of TRF Ltd. v. Energo Engineering Projects, the court drew an analogy from the
established authorities of Newton Engineering and Chemicals Ltd. v. Indian Oil Corporation
Ltd. and Others64, Deep Trading Co. v. Indian Oil Corporation and Ors. 65And Datar
Switchgears Ltd. v. Tata Finance Ltd. and Anr.66 Saying that in the present condition we are
questioning the ineligible arbitrator’s authority on appointing an arbitrator and not the
authority of his appointment.67Therefore the termination of mandate of appointing arbitrator
should lead to termination of the arbitrator appointed by him otherwise it would amount to
carrying on the proceedings by himself.68
Therefore in the light of these cases, the case of Walter Bau AG, Legal Successor, of the
Original Contractor, Dyckerhoff and Widmann A.G. v. Municipal Corporation of Greater
Mumbai69 stands good (as well as the above mentioned cases), hence “the nominee becomes
ineligible to arbitrate upon as soon as the nominating arbitrator loses his eligibility.”
On the basis of all these judgments and situations, it was held in the case of “TRF Ltd. v.
Energo Engineering Projects Ltd. that if the appointing arbitrator loses his eligibility to
continue as an arbitrator, then the mandate of the arbitrator appointed by him should also
be terminated.”70
In the case at hand,Mr.Ashish Singh who was an appointed arbitrator would have become
ineligible after the amendments of 2015 in The (amended)Arbitration and Conciliation
Act,1996 by the virtue of S.12(5) read with Seventh Schedule(1) and since he resigned
beforehand, he lost his eligibility and his mandate as an arbitrator was terminated as per S.14
of the (amended) Arbitration and Conciliation Act,1996 in the current dispute.Therefore,after
analysing all the cases and references mentioned above, since the mandate of Mr. Ashish
Singh as an arbitrator had terminated, it is humbly submitted before the Hon’ble Court the
mandate of Ms. Aishwarya Gaur who was appointed by him should also be terminated.
63
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE SC 692 [56].
64
Newton Engineering and Chemicals Ltd. v. Indian Oil Corporation Ltd. and Others, 2013 4 SCC 44.
65
Deep Trading Co. v. Indian Oil Corporation and Ors, 2013 4 SCC 35.
66
Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr, 2000 8 SCC 151.
67
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE 692 [48]-[58].
68
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE SC 692 [56].
69
Walter Bau AG, Legal Successor, of the Original Contractor, Dyckerhoff and Widmann A.G. v. Municipal
Corporation of Greater Mumbai, 2015 3 SCC 800.
70
TRF Ltd. v. Energo Engineering Projects Ltd., 2017 SCC OnLINE SC 692 [59], [60].
Page | 18
Page | 19
PRAYER
In the light of the facts stated, arguments advanced and authorities cited, it is most humbly
prayed and implored before the Hon’ble Supreme Court of India, that it may be graciously
pleased to adjudge and declare that:
1. The petition filed by the Sub-Contractor to be maintainable before the Hon’ble High
Court of Bombay
2. The mandate of Mr. Aditya Narayan is terminated as arbitrator.
3. The mandate of Ms. Aishwarya Gaur is terminated as an arbitrator.
The Hon’ble Supreme Court may also be pleased to pass any order, which the court deems fit
in the light of justice, equity and good conscience.
For this act of kindness, the Petitioner shall duty bound forever pray.
Place: Delhi All of which is respectfully Submitted

Dated: 26th August, 2017 _______________________________
_______________________________
Counsel on behalf of the Petitioner
Page | XII

9 Intra University Moot Court Competition: Efore HE Onourable Upreme Ourt OF Ndia

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9TH INTRA UNIVERSITY MOOT COURT COMPETITION

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF

THE CONSTITUTION OF INDIA, 1950

DC ENTERPRISES PRIVATE LIMITED ……………………………………..….…PETITIONER

SSN PRIVATE LIMITED & ORS. ………………………………………………......RESPONDENT

SLP No. 1882/2017

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

ISSUE I WHETHER THE HON’BLE HIGH COURT OF BOMBAY WAS CORRECT IN

Mandate Of Arbitrator Appointed By Him......................................................................18

A.K Kraipak v. Union of India, 1969 2 SCC 262.----------------------------------------------------3

The Arbitration and Conciliation Act, 1996(Amended), Seventh Schedule.--------------------10

Clause 20-Dispute Resolution Clause------------------------------------------------------------------6

The Constitution of India, 1950, article 136.-------------------------------------------------------VII

Ashish Singh resigned on the basis of stringent requirements of independence and

WHETHER THE MANDATE OF MR ADITYA NARAYAN SHOULD BE TERMINATED AS

WHETHER THE MANDATE OF MS AISHWARYA GAUR SHOULD BE TERMINATED AS

ISSUE I: WHETHER THE HON’BLE HIGH COURT OF BOMBAY WAS CORRECT IN

S.12 (1) of The Arbitration and Conciliation Act, 1996.

 There is lack of required independence in the mandate of Aditya Narayan as an

ISSUE III: WHETHER THE MANDATE OF MS. AISHWARYA GAUR SHOULD BE

maintainable under S.14 (1) (a) of the Arbitration Act.8

I.A.2 There is violation of principles of Natural Justice

I.B.1. The Place of Arbitration Has Jurisdiction

I.B.2. The Courts of Mumbai Have the Exclusive Jurisdiction

clause,namely,Clause 19,conferring jurisdiction to the courts of Mumbai exclusively, which

I.B.3. The Bombay High Court Possesses Ordinary Original Jurisdiction

ISSUE II WHETHER THE MANDATE OF ADITYA NARAYAN SHOULD BE TERMINATED AS

According to S.12(5) of The (amended) Arbitration and Conciliation Act,1996 an arbitrator

An arbitrator is required certain disclosures in connection with his appointment on certain

or an affiliate of one of the parties.

Mr. Aditya Narayan should be terminated.53

I.B THERE IS LACK OF REQUIRED INDEPENDENCE WHICH GIVES RISE TO JUSTIFIABLE

I.B TERMINATION OF MANDATE OF APPOINTING ARBITRATOR LEADS TO TERMINATION

Place: Delhi All of which is respectfully Submitted

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