MNLU Arbitration Memo (P) LH

BEFORE THE HON’BLE HIGH COURT OF BOMBAY
IN THE MATTER OF:
MARTINIUM ELECTRONICS PTE LTD

...PETITIONER
V.
GARRISON & TURBO INDIA PRIVATE LIMITED …

RESPONDENT
CASE NO.___/2020,
WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

MNLU NAGPUR CLINIC-II (INTERNATIONAL COMMERCIAL ARBITRATION) COMPULSORY MOOT 2020
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES RAISED
SUMMARY OF ARGUEMENTS
ARGUEMENTS ADVANCED
ISSUE I : WHETHER THE SUIT IS MAINTAINABLE IN THE HIGH COURT OF BOMBAY?
1.1. 'COURTS' AS DEFINED IN THE EXPLANATION TO S.47 OF THE ACT
1.2. THIS COURT HAS JURISDICTION U/S 48 OF THE ACT
1.3. RESISTANCE APPLICATION ARE FILED IN THE COURT WHERE THE OTHER PARTY
SEEKS ENFORCEMENT
1.3.1. THE CONTRACT BETWEEN G&T AND MARTINIUM PROVIDES SO
ISSUE II : WHETHER THE SUBJECT-MATTER IS FIT FOR SETTLEMENT THROUGH
ARBITRATION?
2.1. THE DISPUTE IS ARISING OUT OF A FRAUDULENT ACTIVITY
2.1.1. FORGERY AND MISREPRESENTATION ARE FORMS OF FRAUD
a. FORGERY AS FRAUD
b. MISREPRESENTATION AS FRAUD
2.2. 'SERIOUS FRAUD' IS NOT A SUBJECT-MATTER FOR ARBITRATION
2.3. HENCE, THE AWARD IS ERRONEOUS
ISSUE III : WHETHER THE AWARD IS ENFORCEABLE?
3.1. THE AWARD IS UNENFORCEABLE U/S 48 OF THE ACT.
PRAYER
ii
MEMORIAL ON BEHALF OF PETITIONERS
LIST OF ABBREVIATIONS
& And
§ Section
¶ Paragraph
Act The Arbitration and Conciliation Act, 1996
AI Artificial Intelligence
AIR All India Reporter
Anr Another
Art Article
Cl. Clause
Co. Company
ed. Edition
HC High Court
Hon’ble Honourable
Id. Ibidem
Ltd Limited
N.Y New York
No. Number
Ors Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec Section
UOI Union of India
v. Versus
Vol. Volume
W.P. Writ petition
INDEX OF AUTHORITIES
CASES REFERRED
 Ayyasamy v. A. Paramsivam & Ors.

 Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak
iii
 Booz- Allen and Hamilton Inc. v. SBI Home Finance Ltd

 Cruz City Mauritius Holdings v Unitech Limited
 Damodar Shah v. Union Of India, AIR 1959 Cal 526.
 Fuerst Do Lawson Ltd. v. Jindal Export. AIR 2001 SC 2251.
 Gas Authority of India Ltd. v. Spie Capage S.A, AIR 1994 Del.75;
 Marina Shiping World Corporation v. Jindal Exports (2005 ) 4 ,
 N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72.
 N.T.P.C. v. Singer Co., AIR 1993 SC 998;
 Serajuddin v. Michael Golodetz, AIR 1960 Cal.49.
 Sukanya Holdings v. Jayesh Pandya
 Vimal Kishore Shah v. Jayesh Dinesh Shah
STATUTES/REGULATIONS
 The Arbitration and Conciliation Act, 1996

INTERNATIONAL TREATY
 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1959
 The ICC Arbitration Rules
LEGAL DATABASES REFERRED

 JStor
 Lexis Nexis Legal
 Manupatra Online Resources
 SCC Online
INTERNET DOCUMENTS
 Dispute Settlement, International Commercial Arbitration, United Nations Conference on Trade and
Development, 2005
 Journal of International Arbitration, Wolters Kluwers, Kluwer Law International, ISSN 0255-8106,
2008
iv
DICTIONARY
 J.A. SIMPSON & ESC WEINER, OXFORD ENGLISH DICTIONARY 450 (2d ed., Calrendon Press,
Oxford, 1991
 P. RamanathaAiyar, Major Law Lexicon, 4thed, 2010
v
STATEMENT OF JURISDICTION
The Petitioners have approached this Hon'ble High Court of Bombay under S.47 and S.48 of the Arbitration
and Conciliation Act, 1996.
vi
STATEMENT OF FACTS
The Petitioners humbly state before this Hon’ble Court:
The government of Sikkim on 2 October 2018 awarded a contract to Garrison & Toubro India Private
Limited (hereinafter G&T) for building a state-of-the art hydroelectric power plant channelling water from
the Teesta river. G&T is a reputed engineering and construction consulting company registered in Mumbai,
and is the subsidiary of the UK headquartered Garrison & Toubro Limited.
On 4 January 2019, G&T entered into a contract with Martinium Electronics Pte Ltd (hereinagter
Maritnium) for procuring turbines for the power project (hereinafter Turbines Contract). Martinium is the
Singapore incorporated subsidiary of German electronics corporation, Martinium GmbH. G&T and
Martinium added an arbitration clause to their contract which stated that G&T had rights to refer any dispute
in connection with this contract for arbitration seated in Singapore.
The first batch of turbines was delivered to G&T’s project site in Sikkim on 1 April 2019. However, all of
these turbines failed G&T’s quality control test. Being dismayed by this, G&T’s CEO, Mr Jim Daniels
engaged a forensic investigations company, Cosmopolitan Investigations LLP (hereinafter Cosmopolitan)
to conduct an investigation into the affairs of Martinium. The investigative report submitted by Cosmpolitan
to G&T on 1 May 2019 noted that Martinium had deliberately misrepresented and forged all documents
pertaining to quality of the raw materials used in production, the industry body certificates for the quality
and efficiency of its production machinery, regulatory approvals for its plants, etc. Mr Daniels became very
aggrieved by this report given that G&T had entered into the Turbines Contract solely on the basis of
Martinium’s representation about the quality of its turbines and the reliability of its production process.
Pursuant to the unanimous decision taken at an emergent board meeting on 10 May 2019, G&T initiated
arbitration under the ICC Rules. This arbitration was seated in Singapore and an award on jurisdiction and
merits was passed by the tribunal on 31 December 2019 (hereinafter Award). Maritinium never participated
in the arbitral process out of protest.
On 25 March 2020, G&T filed a petition before the Bombay High Court for enforcing the above award and
notice was issued to Martinium on that day itself.
vii
ISSUES RAISED
I. WHETHER THE SUIT IS MAINTAINABLE IN THE HIGH COURT OF BOMBAY?
II. WHETHER THE SUBJECT-MATTER IS FIT FOR SETTLEMENT THROUGH

ARBITRATION?
III. WHETHER THE AWARD IS ENFORCEABLE?
I.
viii
SUMMARY OF ARGUMENTS

It is humbly submitted before this Hon'ble Court that the present petition filed by Martinium is
maintainable in this Court because the application is filed u/s 48 of the Arbitration and
Conciliation Acct, 1996 which requires a party resisting enforcement of an arbitral award to file
an application in the appropriate 'Court' as defined in the explanation to S.47 of the said Act.
The explanation to S.47 provides that 'Courts' in Part II of the said Act will refer to High Courts
of original and appellate jurisdiction. It states that in matters revolving around the subject-
matter of the arbitral award, the High Court of original jurisdiction will be considered as the
'Court' under any provision in Part II of the Act. Hence, the present suit resisting the
enforcement of the award passed against the petitioners is maintainable in this Hon'ble Court.

ARBITRATION?
It is humbly submitted that the dispute between G&T and Martinium is not fit for settlement via
arbitration because the subject-matter of the dispute is 'forgery' and misrepresentation' both of which
are serious frauds. The Supreme Court in a 2016 judgement held that although the Arbitration and
Conciliation Act, 1996 does not specify any areas of dispute as arbitrable or non-arbitrable, serious
offences (criminal or civil), which requires proper investigation and trial and is not fit for decision via
arbitration will be decided in a proper trial. This included 'serious frauds' and other similar offences.
Hence, in the present case, the dispute is not fit for settlement through arbitration.
III. WHETHER THE AWARD IS ENFORCEABLE?

It is humbly submitted before this Hon'ble Court that the award by the arbitral tribunal seated in
Singapore in favour of G&T and against Martinium is not enforceable by the virtue of it being an
erroneous award. As per S.48(2)(a) of the Arbitration and Conciliation Act, 1996, any award, the
subject-matter of which, is not fit for arbitration as per India laws cannot be enforced. Since the
award is falls under this provision, it is not enforceable in India and needs a fresh and proper trial.
ix
MNLU NAGPUR CLINIC-II (INTERNATIONAL COMMERCIAL ARBITRATION) COMPULSORY
MOOT 2020
ARGUMENTS ADVANCED

It is most humbly submitted before this Hon'ble Court that the present petition resisting
enforcement of arbitral award by the arbitral tribunal seated in Singapore is maintainable in
this Hon'ble High Court of Bombay, because, [1.1.] 'Courts' as defined in the explanation to
S.47 of the Act, [1.2.] this Court has jurisdiction u/s 48 of the Act, and [1.3.] resistance
application are filed in the Court where the other party seeks enforcement.
1.1. 'Courts' as defined in the explanation to S.47 of the Act
It is most humbly submitted before this Hon'ble Court that the Petitioners have approached
this Court as per the provision u/s 47 of the Arbitration and Conciliation Act, 1996
(hereinafter Act). The Act provides for the definition of 'Courts' under Part I as well as under
Part II. Part I deals with domestic awards and Part II deals with Foreign awards. In the
present matter the award in question is a foreign award as per S.44 of the Act. If the seat of
arbitration is outside India, Part I of the Act will not be applicable. For this purpose it brings
us to Part II of the Act. The Act provides for enforcement of both the New York Convention 1
awards and the Geneva Convention 2. Section 44 is based on Article I and II (1) and (2) of
New York Convention and section 2 of Foreign awards (Recognition and Enforcement Act)
1961.3 The Indian Courts have also in numerous cases interpreted the scope, meaning and
ambit of 'foreign awards'4.
Hence the definition of 'Courts' applicable will be as defined in the explanation to S.47 of the
Act. The Explanation to S.47 reads as under:
"In this section and in the sections following in this Chapter, “Court” means the High Court
having original jurisdiction to decide the questions forming the subject-matter of the arbitral
award if the same had been the subject-matter of a suit on its original civil jurisdiction and
1
The New York Convention of 1958, i.e. the 1958 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, is one of the most widely used conventions for recognition and enforcement of foreign awards.
It sets forth the procedure to be used by all signatories to the Convention. This Convention was first in the series
of major steps taken by the United Nations to aid the development of international commercial arbitration. The
Convention became effective on June 7, 1959.
2
The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign
Awards of 1927
3
Chapter V, Enforcement Of Foreign Arbitral Awards In India, Shodhganga.
4
N.T.P.C. v. Singer Co., AIR 1993 SC 998; Gas Authority of India Ltd. v. Spie Capage S.A, AIR 1994 Del.75;
Serajuddin v. Michael Golodetz, AIR 1960 Cal.49.
x
MOOT 2020
in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts
subordinate to such High Court."
It is submitted that the above explanation can be understood in two parts; first, is the original
jurisdiction of HC's to decide on questions forming the subject matter of the arbitral award,
and second, the appellate jurisdiction of the HC's to hear appeals from subordinate courts. In
the present matter the subject-matter revolves around the quality of turbines supplied to the
defendants5 by the Petitioners which is also the subject-matter of this suit. Hence, the HC's
have original jurisdiction in the matter.
1.2. This Court has jurisdiction u/s 48 of the Act
It is humbly submitted before this Hon'ble Court that S.48 of the Act provides grounds for
resistance to enforcement of an arbitral award. Sub-section (1) & (2) to S.48 reads:
"S.48. Conditions for enforcement of foreign awards.
(1) Enforcement of a foreign award may be refused, at the request of the party against whom
it is invoked, only if that party furnishes to the court...
(2) Enforcement of an arbitral award may also be refused if the Court..."
It is submitted that as per this Section, any party willing to resist the enforcement of an
arbitral award is required to furnish to the relevant 'court' all the required documents and meet
the required conditions. It also states that the 'court' can refuse enforcement of an arbitral
award in certain circumstances. The term 'court' as used in this Section is to be read with the
definition of 'Courts' u/s 47 of the Act.
It is humbly submitted that the Petitioner has approached this Hon'ble Court resisting
enforcement of the arbitral award passed in favour of the defendants u/s 48 (2)(a) of the Act.
Therefore, subject to S.48, the Petitioners are to approach the relevant court as defined in
S.47, i.e. a High Court of original jurisdiction.
1.3. Resistance application are filed in the Court where the other party seeks
enforcement
It is most humbly submitted that in Cruz City Mauritius Holdings v Unitech Limited 6 the
Court noted that a foreign award may be amenable to two types of resistance; first, before the
supervisory court in proceedings to set-aside the award; and second, before other courts
where the award is sought to be enforced. In the present matter, the defendants are seeking
5
¶ 3, Moot Proposition, MNLU Nagpur Clinic-Ii (International Commercial Arbitration) Compulsory Moot
2020.
6
EX.P.132/2014 & EA(OS) Nos.316/2015, 1058/2015 & 151/2016 & 670/2016.
xi
MOOT 2020
enforcement of the arbitral award in this Hon'ble High Court of Bombay, therefore, the
Petitioners are to file for resistance of the award in this Court itself.
1.3.1. The contract between G&T and Martinium provides so
It is humbly submitted before this Hon'ble Court that a contract is a binding agreement
between parties to a contract.7 G&T and Martinium had entered into a contract for supply of
turbines by the latter to the former and an agreement between the two was made. The contract
agreement inter alia provided for the laws that will govern any dispute arising between the
parties. Cl. 17 explicitly provided that the courts in Maharashtra will have jurisdiction over
disputes arising out of the contract except for when G&T referred the dispute for arbitration. 8
The Cl. provided :
"17.2 The courts in Maharashtra, India have exclusive jurisdiction over any
dispute arising out of or in connection with this contract, including any
question regarding its existence, validity or termination, subject to G&T’s
right to go to arbitration pursuant to clause 17.3."9
Hence, as per the contract between the petitioners and defendants, the jurisdiction lies with
the Courts of Maharashtra. Since the petitioners are resisting enforcement u/s 48, only HC's
will have jurisdiction to hear the matter. Therefore, the present petition is maintainable in this
Hon'ble High Court of Bombay.

ARBITRATION?
It is humbly submitted before this Hon'ble High Court of Bombay that the investigation
report submitted by Cosmopolitan on May 1, 2019 10, cannot be relied upon blindly. The
reports suggest that the Petitioners had indulged into misrepresentation and forgery, however,
it cannot be ignored that Cosmopolitan was hired by the Defendants company, i.e. G&T
itself. Therefore, there is a fair possibility of biased reports.
7
Damodar Shah v. Union Of India, AIR 1959 Cal 526.
8
Cl. 17, Moot Proposition, MNLU Nagpur Clinic-II (International Commercial Arbitration) Compulsory Moot
2020.
9
Cl. 17, Moot Proposition, MNLU Nagpur Clinic-II (International Commercial Arbitration) Compulsory Moot
2020.
10
¶ 3, Moot Proposition, MNLU Nagpur Clinic-II (International Commercial Arbitration) Compulsory Moot
2020.
xii
MOOT 2020
However, even in arguendo, if the Petitioners were infact involved in any such activity, the
subject matter of the difference between G&T and Martinium is not capable of settlement by
arbitration because, [2.1.] the dispute is arising out of a fraudulent activity, [2.2.] 'serious
fraud' is not a subject-matter for arbitration, [2.3.] hence, the award is erroneous
2.1. The dispute is arising out of a fraudulent activity

It is humbly submitted that the Petitioners and Defendants entered into a contract for supply
of turbines. As per the report of the investigating company hired by the Defendants, i.e.
Cosmopolitan, the Petitioners have 'misrepresented' and 'forged' the documents pertaining to
quality of the raw materials used in production, the industry body certificates for the quality
and efficiency of its production machinery, regulatory approvals for its plants, etc. 11 Forgery
and misrepresentation are in a way forms of fraud. Fraud is an umbrella term and forgery,
misrepresentation, deceit, etc come under it.
2.1.1. Forgery and misrepresentation are forms of fraud
a. forgery as fraud
Forgery12 is creating a false copy in an effort to defraud someone or something. The crime of
forgery is defrauding someone through the act of altering or falsifying a written document.
Forgery is very similar to the crime of fraud as both acts are deceptive in nature. Fraud
typically involves forged items to complete the criminal act.
b. misrepresentation as fraud
The fraud is a knowing misrepresentation of the truth or concealment of a material fact to
induce another to act to his detriment. The Black law Dictionary defines "fraud" as a
concealment or false representation through a statement or conduct that injures another who
relies on it.13
The following six elements are generally required to prove the tort of fraudulent
misrepresentation:14
 The defendant made a false representation or lied;
11
¶ 3, Moot Proposition, MNLU Nagpur Clinic-Ii (International Commercial Arbitration) Compulsory Moot
2020.
12
M.Narsimsinga Rao v State of A.P., (2001) 1 SCC 691: 2001 SCC (Cr.)
13
N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72.
14
xiii
MOOT 2020
 The misrepresentation is material to the transaction;

 The defendant made the misrepresentation with malice (the defendant made the
statement with knowledge that the statement was false or the defendant made the
statement with a reckless disregard as to the veracity of the statement);
 The defendant made the misrepresentation with the intention of inducing the other
party to enter into a contract;
 The other party reasonably relied on the misrepresentation; and
 The defendant’s lie was the proximate cause for the plaintiff’s injury.
2.2. fraud is not a subject-matter for arbitration

It is humbly submitted before this Hon'ble Court that fraud and other malpractices which
require investigation and supporting evidence requires a proper trial in an appropriate Court
of Law.15 The SC in Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak16, held that
in the interest of justice, matters pertaining to serious fraudulent activities should be tried in a
court of law which would be more competent and have the means to decide such a
complicated issue of facts. In Booz- Allen and Hamilton Inc. v. SBI Home Finance Ltd17 and
Vimal Kishore Shah v. Jayesh Dinesh Shah 18, the Supreme Court set down certain non
arbitrable disputes involving rights and liabilities arising out of civil and criminal offences.
It is submitted that the Supreme Court has previously, in Sukanya Holdings v. Jayesh
Pandya19, stated that where both arbitrable and non-arbitrable claims were raised, bifurcation
of the subject matter would not be possible. It would, therefore, seem a matter of concern for
arbitration in India if claims relating to fraud are raised in order to vitiate arbitral
proceedings, as on account of a claim of fraud being raised, all the other substantive issues
may also be relegated for adjudication to the civil court.
It is submitted that in A. Ayyasamy v. A. Paramsivam & Ors. 20 the Division Bench held that
mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration
agreement between the parties but in cases where the court, while dealing with section 8 21 of
the Act, finds that there are very serious allegation of fraud which make a virtual case of
15
N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72.
16
AIR 1962 SC 406
17
(2011) 5 SCC 532
18
Civil Appeal No. 8164 of 2016
19
Appeal (civil) 1174 of 2002.
20
Civil Appeal Nos. 8245- 8246 of 2016.
21
Power to refer parties to arbitration where there is an arbitration agreement.
xiv
MOOT 2020
criminal offence or where allegations of fraud are so complicated that it becomes absolutely
essential that such complex issues can be decided only by civil court on the appreciation of
the voluminous evidence that needs to be considered. In the present case, the allegations of
forgery and misrepresentation against the Petitioners are not fraud simplicitor or mere
suspicion of fraud. The defendants have put forth such allegations that can harm the goodwill
and reputation of the Petitioner company and lead to unprecedented economic loss of the
Petitioners.
It is humbly submitted before this Hon'ble Court that as per S.5 of the Arbitration and
Conciliation Act, 1996, the judiciary has no power to interfere in matters of arbitration
'except as provided in this Part'. It is to be noted that the Act does not specify any particular
matters to be excluded from the scope of arbitration. However, statutes are not restrictive and
the judiciary can always interpret the statue on case to case basis. As the SC has interpreted in
A. Ayyasamy v. A. Paramsivam & Ors22, serious offences like fraud and malpractices cannot
be arbitrated.
It is humbly submitted that the Act does not provide any expressed provision stating the
arbitrability and non-arbitrability of subject-matters. However, it is the role of the judiciary to
interpret the laws and apply it on a case to case basis. As the Indian Arbitration and
Conciliation Act, 1996, omits to define the contours of arbitrability, this mantle of
responsibility has fallen to the decisions of various courts. 23 Hence, the issue at hand is not a
subject-matter of arbitration.
2.3. the award is erroneous.

It is humbly submitted before this Hon'ble Court that the defendants had resorted for
arbitration due to the fraud, as alleged, committed by the petitioners which the defendants
claim to have suffered off. Although he Act does not specify any particular matters to be
arbitrable or non-arbitrable, the SC in A. Ayyasamy v. A. Paramsivam & Ors. 24, had clearly
laid out that serious offences of fraud cannot be arbitrated because those crimes require
proper investigation and trial. In the present matter, the award is passed by the tribunal
merely on the basis of one-sided investigation reports which are biased and erroneous.
22
Civil Appeal Nos. 8245-8246 Of 2016.
23
A. Ayyasamy v. A. Paramsivam & Ors., Civil Appeal Nos. 8245-8246 Of 2016.
24
Id.
xv
MOOT 2020
Allegations like fraud require proper trial by a Civil Court of law and hence, the award
passed by the tribunal is erroneous.
ISSUE III - WHETHER THE AWARD IS ENFORCEABLE?

It is humbly submitted before this Hon'ble Court that the award passed by the arbitral tribunal
seated in Singapore is not enforceable in India as applied for by the defendants because [3.1.]
the award is unenforceable u/s 48 of the Act.
3.1. The award is unenforceable u/s 48 of the Act.
It is humbly submitted before this Hon'ble Court that S.48 of the Act provides grounds for
resistance of an arbitral award. The Section provides for a list of situations wherein a part
against whom an award is made can file an application resisting the enforcement of the
award. The Section provides:
"48. Conditions for enforcement of foreign awards.—(1) Enforcement of a foreign award

may be refused, at the request of the party against whom it is invoked, only if that party
furnishes to the court proof that—
(a) the parties to the agreement referred to in section 44 were, under the law applicable to
them, under some incapacity, or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon, under the law of the country
where the award was made; or
(b) the party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
(c) the award deals with a difference not contemplated by or not falling within the terms of
the submission to arbitration, or it contains decisions on matters beyond the scope of the
submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from
those not so submitted, that part of the award which contains decisions on matters submitted
to arbitration may be enforced; or
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance
with the agreement of the parties, or, failing such agreement, was not in accordance with the
law of the country where the arbitration took place ; or
xvi
MOOT 2020
(e) the award has not yet become binding on the parties, or has been set aside or suspended
by a competent authority of the country in which, or under the law of which, that award was
made.
(2) Enforcement of an arbitral award may also be refused if the Court finds that—
(a) the subject-matter of the difference is not capable of settlement by arbitration under the
law of India; or
(b) the enforcement of the award would be contrary to the public policy of India."
Sub-section 2(a) states that in case the subject-matter at hand is not capable of settlement by
arbitration as per Indian laws, enforcement of the award can be resisted by the party against
whom the award is made in the appropriate Court.
Section 48 of the Act is akin to Article V of the New York Convention. An application for
enforcement of a foreign award can be resisted by a party on limited grounds stipulated in
section 48 of the Act.25 Chapter 1 of this Part 2 deals with New York Convention awards.
Before an award obtains the force of law, the other party should be given an opportunity to
contest the enforcement of award. It is mandatory for party seeking enforcement of an award
to move an application before the competent civil court wherein the opposite party could
raise objection to the enforcement of a foreign award. Even if no such objection is raised the
court has the obligation to examine and decide whether the conditioned mentioned in section
48(2) of the Arbitration Act is satisfied. Only where the court is so satisfied that the award is
enforceable in India than only the said award would be deemed as decree of court.26
It is humbly submitted that the subject-matter in the present case is alleged fraud which is not
capable of settlement by arbitration in India as per the judgement of SC in A. Ayyasamy v. A.
Paramsivam & Ors27. Hence, the award as passed by the arbitral tribunal against the
petitioners cannot be enforced.
25
Chapter V, Enforcement Of Foreign Arbitral Awards In India, Shodhganga.
26
Marina Shiping World Corporation v. Jindal Exports (2005 ) 4 RAJ 510, Fuerst Do Lawson Ltd. v. Jindal
Export. AIR 2001 SC 2251.
27
Civil Appeal Nos. 8245-8246 Of 2016.
xvii
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PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to declare that:
1. The petition is maintainable in this Hon'ble High Court of Bombay.

2. The award as passed by the arbitral tribunal against the petitioners is not enforceable.
AND/OR
Pass any other relief, that this Hon’ble Supreme Court may deem fit and proper in the
interest of justice, equity and good conscience.
For this act of kindness, the Petitioner shall duty bound forever pray.
Sd/-
(Counsels for the Petitioners)
xviii

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BEFORE THE HON’BLE HIGH COURT OF BOMBAY

IN THE MATTER OF:

MARTINIUM ELECTRONICS PTE LTD

GARRISON & TURBO INDIA PRIVATE LIMITED …

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

 Ayyasamy v. A. Paramsivam & Ors.

 Booz- Allen and Hamilton Inc. v. SBI Home Finance Ltd

LEGAL DATABASES REFERRED

The Petitioners humbly state before this Hon’ble Court:

I. WHETHER THE SUIT IS MAINTAINABLE IN THE HIGH COURT OF BOMBAY?

II. WHETHER THE SUBJECT-MATTER IS FIT FOR SETTLEMENT THROUGH

III. WHETHER THE AWARD IS ENFORCEABLE?

I. WHETHER THE SUIT IS MAINTAINABLE IN THE HIGH COURT OF BOMBAY?

II. WHETHER THE SUBJECT-MATTER IS FIT FOR SETTLEMENT THROUGH

III. WHETHER THE AWARD IS ENFORCEABLE?

I. WHETHER THE SUIT IS MAINTAINABLE IN THE HIGH COURT OF BOMBAY?

II. WHETHER THE SUBJECT-MATTER IS FIT FOR SETTLEMENT THROUGH

2.1. The dispute is arising out of a fraudulent activity

2.1.1. Forgery and misrepresentation are forms of fraud

 The defendant made a false representation or lied;

 The misrepresentation is material to the transaction;

2.2. fraud is not a subject-matter for arbitration

2.3. the award is erroneous.

ISSUE III - WHETHER THE AWARD IS ENFORCEABLE?

3.1. The award is unenforceable u/s 48 of the Act.

"48. Conditions for enforcement of foreign awards.—(1) Enforcement of a foreign award

1. The petition is maintainable in this Hon'ble High Court of Bombay.

(Counsels for the Petitioners)

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