056R

IN THE

HONORABLE HIGH COURT OF DANGAL

AT SALDANA

IN THE MATTERS OF

BECHARA LIMITED………… PLAINTIFF

(REPRESENTED BY MANAGING DIRECTOR)

V.

DYNAMO LIMITED………… DEFENDANT

(REPRESENTED BY MANAGING DIRECTOR)

CIVIL SUIT NO. 1080/2019

[UNDER SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND

ARTICLE 225 OF THE CONSTITUTION OF INDIA, 1950 READ WITH SECTION 6, 9 AND

19 OF CODE OF CIVIL PROCEDURE]

MEMORIAL ON BEHALF OF RESPONDENT

i
 TABLE OF CONTENTS
Table of Contents.............................................................................................................................2

Index Of Authorities........................................................................................................................2

Statement Of Facts...........................................................................................................................6

Statement of Jurisdiction.................................................................................................................8

Summary Of Arguments..................................................................................................................9

Arguments Advanced....................................................................................................................11

1. Rule 7 is Not Violative Of Article 220-.............................................................................11

2. Rule 7 Is Not Violative Of Article 19:................................................................................12

3. Impugned Rule is not Ultra Vires to Advocates Act:.........................................................14

4. The scope of enquiry under Section 11 of the Arbitration and Conciliation Act, 1996.....15

5. The Arbitration Clause Has Expired By Efflux Of Time...................................................17

Prayer.............................................................................................................................................20

ii
 INDEX OF AUTHORITIES

Cases

Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd. (2007) 7 SCC 125...................10

AIR 2011 (Delhi) 26......................................................................................................................13

Akrata Shipping S . A . vs . Pipavav Defense and Offshore Engineering Company Limited and

Ors., MANU/GJ/1597/2017.......................................................................................................13

Anderson Wright Limited v. Moran and Company , 1955 SCR 862............................................11

Austin J in ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896, [119]–[120]........10

Civil Appeal No. 3631 of 2019......................................................................................................13

Corporation of India Ltd. v. Machado Brothers and others (2004)11 SCC 168...........................13

Dr. Asim Kumar Bose vs. Union of India. (1983) 1 SCC 345.......................................................6

Devata Prasad Singh Chaudhuri & Ors. v. The Hon'ble the Chief Justice and Judges of the Patna

High Court , AIR 1962 SC 201...................................................................................................9

H.S. Srinivasa Raghavachar & Ors. v. State of Karnataka [(1987) 2 SCC 692].............................9

Haniraj L. Chulani v. Bar Council, State of Maharashtra & Goa [(1996) 3 SCC 342]...................7

Imax Corporation v. E-City Entertainment (India) Private Limited, (2017)5 SCC 331...............13

Inder Singh Rekhi v. DDA (1988) 2 SCC 338..............................................................................13

Jijubhai Nanabhai Khachar v. State of Gujrat, 1995 Supp. (1) SCC 596........................................8

Joginder Singh And Co. V Union Of India, 2016.........................................................................13

Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, (1973) 4 SCC 225.....8

Kishore Kumar Khaitan and Another v. Praveen Kumar Singh (2006)3 SCC 312,.....................13

Lingappa Pochamma Appelwar v. State of Maharashtra & Anr. [(1985) 1 SCC 479]...................7

iii
Lingappa Pochamma Appelwar v. State of Maharashtra & Anr. [(1985) 1 SCC 479].................10

Minicipal Corp. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20. 31...................................................9

Municipal Corporation of the City of Ahmedabad and Ors. vs. Jan Mohammed Usmanbhai and

Ors. MANU/SC/0099/1986.........................................................................................................8

N.K. Bajpai v. Union of India, (2012) 4 SCC 653...........................................................................7

N.Kannadasan Vs. Ajoy Khose, (2009) 7 SCC 1............................................................................9

Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of

Northern California, Inc. 783 F.2d 919.....................................................................................12

Pratap Chandra Mehta V State Bar Council Of M.P., (2011) 9 SCC 573.......................................7

Paradip Port Trust, Paradip v. Their Workmen AIR 1977 SC 36...................................................9

R. v. Sussex Justices Ex. P. McCarthy, (1924) 1 KB 256 KBD at 259...........................................8

Rajesh Kumar Garg v. MCD ,149 (2008) DLT 343......................................................................13

S.Balasubramanian vs The Secretary, W.P.(MD) No. 7369 of 2010............................................10

S.P Gupta v. Union of India 1981 Supp SCC 87.............................................................................8

Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd ,(2008) 4 SCC 91................11

Trust Risk Group SpA v Amtrust Europe Ltd [2015] EWCA Civ 437, [48]................................10

Turnock v. Sartoris, 1955 SCR 862...............................................................................................11

Vidya Drolia and Ors. v. Durga Trading Corporation...................................................................12

VK Holdings(HK) Ltd v Panasonic Eco Solutions(Hong Kong) Company Ltd HCCT 19/2014, 5

...................................................................................................................................................10

Statutes

Section 29, the Advocates Act.........................................................................................................9

Section 30, the Advocates Act.........................................................................................................9

iv
Section 33,  the Advocates Act........................................................................................................9

Section 34, Advocates Act, 1961.....................................................................................................9

Section 49, the Advocates Act.........................................................................................................9

Section 7(b), Advocates Act............................................................................................................8

Treatises

246th Law Commission Report.....................................................................................................12

'Bias, Malfunction in Judicial Decision- making', (2009) Public Law 199.....................................8

Constitutional Provisions

Article 19 1(g), Indian Constitution, 1950...................................................................................7, 8

Article 19 6, Indian Constitution, 1950...........................................................................................7

v
 STATEMENT OF FACTS
I.

Just Chips Ltd., an IT Company, approached Mr. Bhavesh Lal for the purpose of constructing its

largest facility in the world at Babylon valley, Dangal. The project required the acquisition of 70

acres of land. Mr. Roark was approached by Mr. Lal for joint development of the Just Chips

facility.

II.

Bechara Limited (one of the group entities owned by Mr. Lal) and Just Chips Limited contracted

with Dynamo Limited (one of the group entities owned by Mr. Roark) to acquire 80 acres of

land. As per the arrangement between Dynamo Limited and Bechara Limited, Dynamo ltd.

agreed to undertake the acquisition of land and the Bechara ltd. was entrusted with construction

in 1st phase.

III.

On 31.12.2014 Just Chips Limited announced in the media about its facility, due to which the

land prices in the locality grew dramatically. Owing to this announcement, Dynamo Limited was

unable to acquire land and Just Chips Limited had to abandon its project. Owing to this failure,

Bechara Limited filed an application under Section 11 of the Arbitration and Conciliation Act,

1996 before the High Court of Dangal.

IV.

vi
The said application was filed by Mr. Uday Bhan. Before returning to the Bar, Mr. Bhan was an

Additional Judge of the High Court of Mangal. Owing to miniscule pay of a judge, he resigned

from the post and resumed his practice.

V.

The counsel for Dynamo Limited strongly opposed the appearance of Mr. Bhan under Rule 7 of

the Bar Council of Saldana. In order to expeditiously dispose-off the arbitration application, the

High Court suo moto decided to examine the validity of the rule.

vii
 STATEMENT OF JURISDICTION
The Respondent most humbly submits to the jurisdiction of the honorable High Court of Dangal

under section 11 the Arbitration and Conciliation Act, 1996 read with Section 6, 9 And 19 Of

Code Of Civil Procedure,1906 and Article 225 of the Constitution of India, 1950.

viii
 SUMMARY OF ARGUMENTS
I. Article 220 should not be interpreted literally. literal interpretation would defeat the

purpose of article 220. the words 'permanent judge' should be interpreted to mean

'similar to permanent judge' or 'in capacity of a permanent judge'. Rule 7 is not violative

of article 19 because it is covered within the limit of reasonable restrictions under article

19 ( 6). The restriction provided by Rule 7 is not absolute in nature and it is important for

the purpose of serving the greater good of the public. If the judges are allowed to

practice as advocates in the same Court, it would abridge the independence of Judiciary

and hence such provisions are necessary.

II. Rule 7 is not ultra vires to the advocates act because under section 7(b) of the advocates

act the bar council is provided with the power to make rules regarding right practice to

an advocate and restriction which is imposed on the advocates is reasonable and in line

with the advocates act for preserving the noble profession.

III. The agreement between dynamo and Bechara was formulated for their own convenience

and not to held Each Other legally responsible to one another, together they responsible

as first party. they cannot be be considered as different party for the purpose of

agreement of arbitration. dynamo and Bechara were collectively responsible under the

agreement for acquisition of subjected land dispute regarding the acquisition of the

subjected land between dynamo and Bechara could not be called as an arbitrable dispute.

ix
IV. Even there was an arbitrable dispute between dynamo ine Bechara the said dispute

would have been expired by efflux of time the alleged dispute would be long dead and

hence cannot be arbitrated by an arbitration Tribunal.

x
 ARGUMENTS ADVANCED

A. RULE 7 IS NOT VIOLATIVE OF CONSTITUTION

1. RULE 7 IS NOT VIOLATIVE OF ARTICLE 220-

1.1. Interpretation 220

1.1.1. Article 220 should not be interpreted literally, literal interpretation will defeat the purpose

of Article 220.1

1.1.2. Though the rationale for Article 224 was during temporary increase in work appoint

Additional Judges, but is not how the Article practically is applied since last several

decades.2 This is why, the interpretation that is placed on Article 220 must be relevant the

constitutional practice.

1.1.3. The power, privilege, authority of an additional judge is in essence same as that of a

permanent judge.3 The words "as a permanent judge" shall be interpreted to mean 'similar

to permanent judge' or 'in the capacity as permanent judge4'.

1.1.4. “"Judge" means a Judge of a High Court and includes the Chief Justice 4 an acting

Chief Justice, an additional Judge and an acting Judge of the High Court”5.

1.2. Object of 220-

1.2.1. Article 220 does not impose restriction on additional judges, but it does not prohibit

enactments that provide such restriction.

1
Dr. Asim Kumar Bose vs. Union of India. (1983) 1 SCC 345.
2
Indra Bahadur Singh vs. Bar Council of U.P., Allahabad and Ors. MANU/UP/0182/1986
3
P.S. Madolkar v. Bar Council India, AIR 1980 Bom 38.
4
Jagdish Sagar V Bar Council Of India, 2014.
5
Section 2(g) in The High Court Judges (Conditions Of Service) Act, 1954.
1.2.2. If Additional Judge is permitted to practice in the same High Court, that will result into

inroads on independence of judiciary.6 The perspection of the people in a litigation and of

the public at large is important in maintaining the judiciary independently and allowing a

Judge to practice before the same Court where he held the office as an Additional Judge,

would raise in an apprehension on the litigants and the public on the fact that independent

dispensation of justice is truly happening and not.7

2. RULE 7 IS NOT VIOLATIVE OF ARTICLE 19:

2.1. Every citizen has right to profession under Article 19 1(g) 8but this freedom is subjected

to some reasonable restriction under Artcile 19(6)9. Rule 7 is restricting, the Additional

Judges from practicing in the same High Court where they held of the office, reasonably.

In Sukumar Mukherjee v. State of West Bengal 10, the State’s prohibition private

practice of medical practioners who also were teaching in medical institutions was

held reasonable.

2.2. Firstly, the restriction is not an absolute restriction. It is a partial restriction, restricting

the persons who have held the office of judge.11

2.3. Secondly, this restriction indeed serves a larger interest of the public and uplifts the

professional standards and values of advocacy.12 Essentially, it will increase the public

confidence in the justice administration, in discharge of its functions by the Courts. 13 The

6
Pratap Chandra Mehta V State Bar Council Of M.P., (2011) 9 SCC 573.
7
N.K. Bajpai v. Union of India, (2012) 4 SCC 653.
8
Article 19 1(g), Indian Constitution, 1950.
9
Article 19 6, Indian Constitution, 1950.
10
(1993)3 SCC 723.
11
Haniraj L. Chulani v. Bar Council, State of Maharashtra & Goa [(1996) 3 SCC 342].
12
Lingappa Pochamma Appelwar v. State of Maharashtra & Anr. [(1985) 1 SCC 479].
13
Municipal Corporation of the City of Ahmedabad and Ors. vs. Jan Mohammed Usmanbhai and Ors.
MANU/SC/0099/1986.

2
 rule, not only to adhere to but to enhance the values and dignity of the legal profession,

would add to the confidence of the litigants in the administration of justice. Prohibition

imposed by Authorities in interest of general public shall not be regarded as unreasonable

and unconstitutional

2.4. Protection of independence of judiciary

2.4.1. Article 5014, in Part IV of Constitution, provides of Independence of judiciary 15, which is

also held to part of the Basic structure16, which cannot be taken away by any law.

2.4.2. Part III and Part IV are called to be “two wheels of chariot”17, both are important as other.

If one is snapped, the other one loses its efficacy. Together they are called twin-formula

for achievement of social revolution 18, which the idea behind formation of any

legislation. Hence these should be balanced.

2.4.3. The genesis of bias is described as the perceptive that the court is free from any bias. 19 Sir

Louis Blom, Q.C., have coined to the idea of 'automatic disqualification',that provides,

the element of bias is present and would on its own lead to disqualification.20

The impugned rule is hence important to preserve judicial independence and restrain any

biases and reasonable, hence not ultra vires to Article 19.

3. IMPUGNED RULE IS NOT ULTRA VIRES TO ADVOCATES ACT:

3.1. Section 7(b) of the Advocates Act21, is enough comprehensive to include, within

functions of the Bar Council, laying down provisions regarding the right to practice that an

14
Article 19 1(g), Indian Constitution, 1950.
15
S.P Gupta v. Union of India 1981 Supp SCC 87.
16
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, (1973) 4 SCC 225.
17
Jijubhai Nanabhai Khachar v. State of Gujrat, 1995 Supp. (1) SCC 596.
18
Ibid.
19
R. v. Sussex Justices Ex. P. McCarthy, (1924) 1 KB 256 KBD at 259.
20
'Bias, Malfunction in Judicial Decision- making', (2009) Public Law 199.
21
Section 7(b), Advocates Act.

3
 advocate shall have.22 Formulating "standards of professional conduct and etiquette" prima

facie includes the laying down of conditions subjecting the right to practice of an advocate.23

Section 49(ah)24 which supposed to be the source of this power did not confer any such

power.

3.2. While, Section 3425 empowers the High Court for making rules regarding the conditions

where an advocate "shall be permitted to practice in the High Court and the Courts

subordinate there to"26.

3.3. On reading section 2927, 3028, 3329, one can tell that this is a right given by the statute to

practice to an and only an advocate can practice before the courts, authorities, tribunals, and

peaple30. But this right is not absolute, it is subjected to the laws in force.31

3.4. ‌Furthermore, Section 49 of the Advocates Act32, vests power to the Bar Council to

formulate the Bar Council Rules. Chapter III Rule 7 deals with the criteria for the right to

practice and lays down reasonable restrictions.33 In furthurance to the power provided

under Section 49, the Bar Council has framed the Bar Council of Saldana Rules.

3.5. Chapter III of Bar Council Rules makes it crystal clear that on taking up some other

mentioned employment, such advocate shall surrender his enrollment certificate and

22
N.Kannadasan Vs. Ajoy Khose, (2009) 7 SCC 1.
23
Minicipal Corp. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20. 31.
24
Section 49(ah), Advocates Act, 1961.
25
Section 34, Advocates Act, 1961.
26
Ibid.
27
Section 29, the Advocates Act.
28
Section 30, the Advocates Act.
29
Section 33,  the Advocates Act.
30
Paradip Port Trust, Paradip v. Their Workmen AIR 1977 SC 36.
31
Devata Prasad Singh Chaudhuri & Ors. v. The Hon'ble the Chief Justice and Judges of the Patna High Court , AIR
1962 SC 201.
32
Section 49, the Advocates Act..
33
H.S. Srinivasa Raghavachar & Ors. v. State of Karnataka [(1987) 2 SCC 692].

4
 suspends his practice.34 To return to practice, he shall have to apply to the Bar Council

Secretary of the rolls his name is entered on.35

Hence, Rule 7 is well within the power of the bar council of Saldana and the impugned Rule is

not ultra vires to the Advocate’s Act, 1961.

1. THE SCOPE OF ENQUIRY UNDER SECTION 11 OF THE ARBITRATION AND

CONCILIATION ACT, 1996

1.1. There is No Dispute Subject To Arbitration-

1.1.1. As arbitration is a making of contract, the extend of jurisdiction of a court or tribunal can
go only as far as it is agreed by the parties to the agreement. 36 In the contract vide dated
02.11.2014 the parties agreed to arbitrate only for the matters in difference or dispute
between the parties, for the performance of sell. The intention of the parties is construed
by the language that is employed by the parties in the Contract.37
1.1.2. An agreement is supposed to be drafted careful38, which should reflect the intentions of

the parties to the agreement.39 The contract should be interpreted by the individual terms

that are employed therein, but as an agreement as whole.40

1.1.3. The dispute between d and bechara is not dispute between the parties, because acquisition

of land it was not sole responsibility of dynamo, while dynamo and bechra are, together

to be held responsible as “First Party”

The arrangement made between dynamo and bechara was for their convienance and not to make

them legally responsible to each other.

1.2. They aren’t ‘parties’-

34
Lingappa Pochamma Appelwar v. State of Maharashtra & Anr. [(1985) 1 SCC 479]..
35
S.Balasubramanian vs The Secretary, W.P.(MD) No. 7369 of 2010.
36
Gary Born, International Commercial Arbitration (2nd ed, Kluwer Law International, 2014), 1060.
37
VK Holdings(HK) Ltd v Panasonic Eco Solutions(Hong Kong) Company Ltd HCCT 19/2014, [25].
38
Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd. (2007) 7 SCC 125.
39
Trust Risk Group SpA v Amtrust Europe Ltd [2015] EWCA Civ 437, [48].
40
Austin J in ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896, [119]–[120].

5
1.2.1. To determine the issue that whether the Parties to a suit were a parties to the contract, for

the purpose of arbitration clause or not is well within the jurisdiction of a Court as stated

in Anderson Wright Limited v. Moran and Company41.

1.2.2. In the case of Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd 42, the

Supreme Court declined to refer the matter to arbitration for the very reason that the

disputes provided in the petition did not come within the scope of the arbitration clause

contained in the agreement between the parties. It was observed by the Hon’ble Court

that the term 'party' indicates 'the party to the judicial proceeding’ they should be

different parties to the agreement of arbitration.

1.2.3. It was emphasized also in Taunton-Collins v. Cromie and Anr. 43that the in a suit, parties

to the contract should be parties to not only the suit but also the cause of action, without

any specific provision by law, cannot be bifurcated permitting such bifurcation or

splitting of cause of action44.

The arrangement made between dynamo and bechara was for their convienance and not to make

them legally responsible to each other. Together were they forming a party, this bifurcated or

splitting up between d and b cannot be allowed.

1.3. The dispute is not arbitrable

1.3.1. For the court to refer the matter to for arbitration, it shall first be seen that the dispute is

arbitrable or not.45

41
Anderson Wright Limited v. Moran and Company , 1955 SCR 862.
42
Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd ,(2008) 4 SCC 91.
43
1964 1 Weekly Law Reports 633.
44
Turnock v. Sartoris, 1955 SCR 862.
45
National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr. (2012) 2 SCC 506.

6
1.3.2. D and b collectively agreed to acquire the subjected land. For further convinence,

dynamo was asked to acquire the land. This does not forbid bechara from his contractral

responsibility.

1.3.3. United Insurance Company Ltd. v. Hyundai Engineering and Construction Company

Ltd., the arbitration clause which provided that no dispute shall be arbitrable where the

insurance company has no accepted its liability. The Court held that the matter in hand is

not arbitrable as wasn’t, according to the terms of arbitration clause, a dispute.

1.3.4. An expired contract, by its own terms, has released its parties from his contractual

obligations, except for obligations which is already fixed under the agreement yet, is

unsatisfied.46 After expiration, to protect the right to bargain, the terms and conditions of

agreement can no longer be enforced by virtue of the contract.47

1.3.5. It was held that "validity" of an arbitration agreement is difference from its "existence". 48

The court for dealing in this aspect provided, the word "existence" would include time

barred, weeding-out clauses in agreements that indicate that the subject-matter is

incapable of arbitration.49

2. THE ARBITRATION CLAUSE HAS EXPIRED BY EFFLUX OF TIME:

2.1. Even if there exists a claim, it is barred by limitation. In Garware Wall Ropes Ltd. v.

Coastal Marine Constructions & Engineering Ltd.50, the Court observed that an arbitration

clause within an agreement does exist independently.51

46
Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of Northern
California, Inc. 783 F.2d 919.
47
922 (CA9 1986).
48
246th Law Commission Report.
49
Vidya Drolia and Ors. v. Durga Trading Corporation
50
Civil Appeal No. 3631 of 2019 arising out of SLP(C) No. 9213 of 2018.
51
Shipping Corporation of India Ltd. v. Machado Brothers and others (2004)11 SCC 168.

7
2.2. In Prasar Bharti v. Maa Communication52, it was held that although, Under Section 11(4)

(a), limitation shall start from expiry of 30 days yet the petition even within limitation, was

dismissed because the claim sought to be resuscitated was long dead.53

2.3. Inder Singh Rekhi v. DDA54 held, limitation period applicable under Section 11 to a

petition is although a good law, yet even if the petition under Section 11 is found to be in

time, it may still be dismissed if claim it sought to resuscitated is found to be long dead.55

2.4. In Joginder Singh And Co. V Union Of India56, the Court dismissed application filed by

appellant for appointment of Arbitrator for resolving dispute. It was held that,the application

was dismissed on ground that claim made by appellant, post expiry of agreed period after

termination of contract.

2.5. Rajesh Kumar Garg v. MCD 57was held that the cause of action under Section 11 for the

application is when the claim is accrued and the applicant had slept over his rights. The claim

was said to be hopelessly barred by limitation.58

Hence, in the present case, since the application is not maintainable itself, the question of

whether it is barred by limitation or not shouldn’t arise. Also, the contension that is

sought to be resuscitated is long dead, hence application may be dismissed.

52
AIR 2011 (Delhi) 26.
53
 Akrata Shipping S . A . vs . Pipavav Defense and Offshore Engineering Company Limited and Ors.,
MANU/GJ/1597/2017. 
54
Inder Singh Rekhi v. DDA (1988) 2 SCC 338.
55
Shipping Corporation of India Ltd. v. Machado Brothers and others (2004)11 SCC 168.
56
Joginder Singh And Co. V Union Of India, 2016.
57
Rajesh Kumar Garg v. MCD ,149 (2008) DLT 343.
58
Kishore Kumar Khaitan and Another v. Praveen Kumar Singh (2006)3 SCC 312, Imax Corporation v. E-City
Entertainment (India) Private Limited, (2017)5 SCC 331.

8
 PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,it is

most humbly and respectfully prayed before the Honourable High Court at Dangal, Saldana, that

it maybe pleased to: -

 Dismiss the Application vide dated 10.03.19 for appointment of arbitrator.

 Award costs under section 35, Code of Civil Procedure, in the favor of respondent and against

the applicant

 Hold Rule 7 of Bar Council of Saldana is not violative of Article 220 and 19 of the

Constitution and not ultra- vires of Advocates Act,1961.

.And pass any other order in favour of the Appellants which this court may so deem fit in the

ends of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Place: Dangal, Saldana. Counsel No. 056R

Date: February 9, 2020 Counsel for the Respondent