A very good morning, my Lords, may it please this Hon’ble court, this is the Counsel No.

66 appearing
for respondents in the present matter.

My Lords before I start with the arguments, I would like to mention that I feel extremely honoured
and pleasured to submit before such distinguished bench.

My Lords, today this court deals with the two main issues

1. The first issue deals with an application u/s 11 of the Arbitration and conciliation act
2. The second issue deals with constitutionality of Rule 7 of the Bar Council rule which bars any
judicial or administrative officer from practicing before

I believe that the bench is versed with the facts of the case and the issue of jurisdiction is settled.

If it may please this court, I would like to start my submissions with the arbitration issue

ARBITRATION ISSUE

At the very outset I would like to remark that, That the scope of judicial enquiry under this section is
limited to finding out whether an arbitration agreement exists between the parties or not.This
position was consolidated by the legislation through 2015 amendment. The same stance has been
reiterated by the SC in the matters of Duro Felguera v. Gangavaram Ports [Citation No. 3]

Hence what a court only has to do is to determine whether an arbitration agreement existed
between the parties or not.

However, what we have before us is a peculiar set of facts and circumstances. Because in this case
the petitioner and respondent took joint liability to acquire the land under the main agreement
which contained an arbitration agreement.

Soon they also entered in a subsequent agreement under which they decided that respondent
would acquire the land and petitioner would undertake development of the land. The respondent
breached the contract.

“Now this brings us to the question that whether the arbitration clause in the main agreement
extends to the subsequent contract between the parties”

According to the doctrine of composite reference court can extend the arbitration clause from
another contract if they are so intermingled that they form part of same common transaction.
AGREEMENTS DO NOT HAVE COMMON OBJECT AND THEY ARE RUNNING CONTRARY TO EACH
OTHER

According to the observation of court in matters of Neelkanth Mansion this doctrine can apply only
if the contracts have same object and intention and they do not run contrary to each other.

However, in this case the object of main agreement is to impose joint and several liability on the
parties but the subsequent agreement is made with the aim of changing the nature of the liabilities
of the parties. Thus, the agreements are not a part of the same transaction and hence not fit for
composite reference.

THE LANGUAGE OF THE ARBITRATION CLAUSE IS NOT WIDE ENOUGH TO INCLUDE THE SUBSEQUENT
AGREEMENT

According to the observations of the court in the matters of Duro Felguera And Brightstar
Telecommunication, it is a settled position that the court has to keep the language of arbitration
agreement in consideration while extending it to another agreement.

In the given case the arbitration clause performance of the agreement however in these facts the
arbitration clause refers only to the agreement to sell however the subsequent agreement also
mentions the development of land thus it has a wider ambit. Hence if we consider the arbitration
clause to be extending to the subsequent agreement it will lead to bizarre results.

REFEFERNCE WILL NOT LEAD TO FINAL RESOLUTION OF DISPUTE

According to the observations of the court in the matters of MTNL v Canara Bank [Citation No. 9]
and Cheran Properties v Kasturi & Sons [Citation No. 10] , acourt has to consider that whether a
matter would be finally resolved before sending it for a reference.

However, in the provided case the final resolution will not be done if the dispute is referred as

1. Just Chips a necessary party has not been impleaded in the current matters becauseits
liability needs to be determined considering its Unsolicited actions
2. The claim is time barred

GIVE SUMMARY OF WHAT YPU HAVE PROVEN

(4 points)
CONSTITUTIONAL ISSUE

The issue which lies before this court today is integral to the independence and sanctity of judiciary.
Today this court as the has to balance between individual liberties of a few affluent
individuals on one side with the long-cherished values judiciary stands for on the other side.

During the course of my arguments I will be proving that the Rule 7 of Bar Council is Constitutional
for substantiating my point I will be making three submissions.

1. The impugned rule is intra vires to Article 19 of the Constitution

2. The impugned rule is not against the legislative intent behind Article 220
3. The impugned rule is not an excessive delegation of power.

Eventhough the right to practise as an advocate is covered under Article 19(1)(g) but it is subject to
conditions which may be imposed by bar council as per Section 49 of the Advocates Act,1961.

However, the restrictions on it must be “minimally intrusive” and “absolutely necessary” [AG Row v
State of Madras] [Citation 15 Page 18]. For checking whether a restriction conforms to that
standards , SC has applied the Proportionality test in the matters of Modern Dental College v. State
of MP [Citation 19 Page 19] .

Hence the constitutionality of this rule must also be checked on the same yardstick. Under
Proportionality test the court has to consider

1. Whether there is a legitimate purpose

2. Whether the policy is capable of achieving this purpose
3. Whether there are any other less intrusive alternatives

In the given case the legitimate purpose is to maintain the independence of the judiciary.[SCAORA
v. UOI] If retired officers are allowed to practise there will be a huge probability that they will
exercise undue influence over the sitting judges. This can lead to catastrophic outcomes, the public
faith in judiciary will diminish upto a great extent. [Comments of Sapru Committee Citation 25 Page
23] ]

This danger was also discussed at great length in the constituent assembly. And they opined that if
retired officers are allowed to go revert to the bar it will also bring down the dignity of the bench.
Moreover similar provision is also present in England where they are completely and absolutely
prohibited from practising ever again.
In the matters of PS Mudholkar v BCI such a restriction is necessary as it is likely that the influence
of the retired judge will wane over a period of 3 years.

Moreover there is no logic behind providing any relaxation for acting or additional judges PS
Mudholkar.

On the last stage of enquiry it is submitted that it is not the duty of state to prove that there was no
other less intrusive alternative possible as the presumption of constitutionality exists in favour of the
state. NJAC Case