HAMDARD INSTITUTE OF LEGAL STUDIES AND

RESEARCH,

SCHOOL OF LAW, JAMIA HAMDARD

Moot Court exercise towards partial fulfilment of Clinical Legal

Course -II (B.A.LL.B. 805)

SUBMITTED TO-
MR. MOHD YASIN
GUEST FACULTY (LAW)

SUBMITTED BY

Participant 1 Participant 2

MEMORIAL CODE- ________

CLINICAL LEGAL COURSE-II (B.A.LL.B. 805)

INTERNSHIP DIARY

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 TABLE OF CONTENT

LIST OF ABBREVIATIONS…………………………………………………………3

INDEX OF AUTHORITIES…………………………………………………………4

STATEMENT OF JURISDICATION……………………………………………...6

STATEMENT OF FACTS…………………………………………………………7

STATEMENT OF ISSUSES……………………………………………………….8

SUMMARY OF ARGUMENTS………………………………………………......9

ARGUMENTS ADVANCED………………………………………………10-11.

PRAYER……………………………………………………………………….12

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 LIST OF ABBREVIATIONS

& And

AIR All India Report

SC Supreme Court

HC High Court

Co Company act, 2013

Art. Article

Cr. Criminal

Edn. Edition

i.e. That is

Pc Privy council

V. Versus

u/s Under section

SCC Supreme Court Cases

No. Number

Hon’ble Honourable

Govt. Government

JUS. Justice
Annex. Annexure
IPC Indian Penal Code
CPC Civil Procedure code

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 INDEX OF AUTHORITIES

A. Table of cases
1. Kanodia Infratech Ltd. V. Dalmia
2. TRF Ltd. V. Energo Engg.Projects Ltd.
3. Lion Engg. Consultants v. State of M.P
4. Razia Begum Vs. Sahebzadi Anwar Begum
5. NWL Ltd. Vs. Woods
B. List Of Statutes

1. INDIAN CONTRACT ACT, 1872

2. CONSTITUTION OF INDIA

3. THE CODE OF CIVIL PROCEDURE, 1908

C. Books
1. D.K BASU, CONSTITUTION OF INDIA (22nd edition)
2. AVTAR SINGH, INDIAN CONTRACT ACT (9th edition)
3. BATUK LAL, INDIAN EVIDENCE ACT

D. Journal

1. ALL INDIA REPORTER

2. SUPREME COURT CASES

3. INDIAN LAW REPORTER

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 STATEMENT OF JURISDICATION

In Accordance with Sec 34 of Arbitration and Conciliation act . The Applicant have submitted
an Appeal against the decree of injuncted from carrying out the distribution of similar
products by Arbitration.

The Registrar of the Court addressed a notification to the parties, therefore the appellant and
respondent have accepted the jurisdiction of the High Court of Delhi pursuant to Section 34 of
the act thee Court to adjudge the dispute in accordance with the rules and principles.

The parties have agreed to respect the decision of this Court.

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 STATEMENTS OF FACTS

For the sake of gravity and convince of this Hon'ble court the facts of the present case
are summarized as follows:-

Background of parties
Oxfarm India Pvt. Ltd. (“Oxfarm”) is a private limited company incorporated Under the
Companies Act, 2013 having its registered office in New Delhi, India. Oxfarm produces and
manufactures fruit juice products, and distributes its products through its exclusive
distribution chain across India in approximately 100 cities. Where’s Belfast Distributors Pvt.
Ltd. (“Belfast”), a company based out of Mumbai, is The exclusive distributor of Oxfarm
products. Belfast has the highest outreach in the entire country as compared to other
distribution chains of other companies.

Conflict between parties

Oxfarm and Belfast entered into an Exclusive Distribution Agreement on January 26, 2021,
according to which Belfast was the exclusive distributor of Oxfarm products, and Belfast also
agreed to not distribute similar products of Other companies. The agreement being of a
standard form was curated by Oxfarm, included a Dispute resolution clause (“DR Clause”)
which stated that if a dispute arise Between the parties, then the parties would resolve the
dispute through arbitration After exercising amicable means of settlement. The DR Clause
stated that if a Matter is referred to arbitration then Oxfarm shall appoint the arbitrator and
Intimate the same to the other party for their consent, and the arbitration Proceedings shall be
governed by the Arbitration and Conciliation Act, 1996, And the place of arbitration shall be
New Delhi.
Belfast started distributing products of Oxfarm through its distribution chain in India,
however, it also continued to distribute similar products from other Companies as well. As per
the terms of the agreement, Belfast did not enter into Any new contract with any company to
distribute similar products of other Companies. One such company whose products were
being distributed by the Belfast was “Hamdard Juice”.

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Contention of Appeallant
Belfast contended that The fact that oxfarm continued to distribute Hamdard Juice was
considered a violation of the agreement dated January 26, 2021, Accordingly, Oxfarm sent a
cease and desist notice to Belfast from distributing the products of Hamdard Juice

Contention of Respondent
Oxfarm replied by stating that it has been distributing Hamdard Juice products even before it
entered into an Agreement with Oxfarm And that the agreement dated January 26, 2021, did
not imply that Belfast would Be prohibited from distributing similar products which it was
already Distributing.

Observation by Arbitration
Arbitration proceedings took place ex-parte as Belfast didn’t appear An arbitral award was
passed by the Sole Arbitrator wherein Belfast was Injuncted from carrying out the distribution
of similar products to that of Oxfarm.

Hence, The Present Respondent Is Before Honourable Court.

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 Statement of Issues

1. Whether the appointment of an arbitrator was in violation of the Arbitration and

Conciliation Act, 1996 as the same amounts to the Unilateral appointment, and the
award be set aside on this ground?

2. Whether Hamdard Juice should not have been impleaded in the Arbitration
proceedings as Hamdard Juice was not a party to the Agreement dated January 26,
2021?

3. Whether the award is liable to be set aside on the principle of contra proferetum as the
terms of the agreement dated January 26, 2021 are vague and Belfast had an unequal
bargaining power at the time of execution of agreement?

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 Summary of Arguments

1. Whether the appointment of an arbitrator was in violation of the Arbitration and

Conciliation Act, 1996 as the same amounts to the Unilateral appointment, and
the award be set aside on this ground?

It is respectfully submitted beofre this hon’ble court that Unilateral appointment of Arbitration
is not in the violation of Arbitration and Conciliation act, 1996. And no award can be set side
on this ground of law

2. Whether Hamdard Juice should not have been impleaded in the Arbitration
proceedings as Hamdard Juice was not a party to the Agreement dated January
26, 2021?

I, Respectfully contended before this Hon’ble court that Hambard Juice must be impleaded as
a party. As Hamdard juice rights are also get effected from the decree passed by court of law.

3. Whether the award is liable to be set aside on the principle of contra proferetum
as the terms of the agreement dated January 26, 2021 are vague and Belfast had
an unequal bargaining power at the time of execution of agreement?

I, Respectfully contended before this Hon’ble court that the award passed by Arbitration can’t
be set aside on the groun of principle of contra proferetum.

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The terms of agreement date January 26, 2021 are absolute and valid

Arguments Advanced

1. Whether the appointment of an arbitrator was in violation of the Arbitration and

Conciliation Act, 1996 as the same amounts to the Unilateral appointment, and
the award be set aside on this ground?

It is respectfully submitted before this Hon’ble court that Unilateral appointment of

Arbitration is not in the violation of Arbitration and Conciliation act, 1996. As from
the judgment of the Delhi High Court in Kanodia Infratech Ltd. v. Dalmia 1Cement
(Bharat) Ltd (Kanodia Infratech), where it was held that the question of lack of
jurisdiction of the arbitrator being unilaterally appointed, could not be set up for the
first time in a Section 34 challenge to an arbitral award.

The Arbitration and Conciliation act drew a clear distinction between persons who
became “ineligible” to be appointed as arbitrators and persons about whom “justifiable
doubts” exists as to their independence and impartiality. Since the ineligibility of an
arbitrator goes to the root of the appointment, Section 12(5) read with the Seventh
Schedule makes it abundantly clear that if the arbitrator incurs any disqualification
under the items listed in the Seventh Schedule, he de jure becomes ineligible to act as
an arbitrator. Per contra,  if an arbitrator incurs a disqualification under any of the
items enumerated under the Fifth Schedule, he does not ipso facto become ineligible to
be appointed as an arbitrator, but invites justifiable doubts about his independence and
impartiality. And in this case it’s doesn’t invite any justifiable doubts abhoit his
independence.

1
2021 SCC OnLine Del 4883.

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 As the Appellant doesn’t appear before the arbitration, the Arbitrator passes the ex-
parte decree where Belfast was Injuncted from carrying out the distribution of similar
products to that of Oxfarm.

In TRF Ltd. V. Energo Engg.Projects Ltd. 2 (TRF), the Supreme Court was dealing
with a dispute resolution clause which specified that disputes that arose between the
parties would be referred to the sole arbitration of the Managing Director of the buyer
and/or his nominee. The Supreme Court, relying upon Section 12(5) of the Act read
with the Seventh Schedule held that it is inconceivable in law that a person who is
statutorily ineligible to act as an arbitrator could also have the power to nominate an
arbitrator. Since the Managing Director would necessarily be interested in the outcome
of the dispute, the proscription under the Seventh Schedule would squarely apply and
the Managing Director could thus neither act as nor nominate an arbitrator – what
cannot be done directly may not be done indirectly by engaging another.

In Lion Engg. Consultants v. State of M.P 3Lion Engineering) the Supreme Court has
held that a party that has failed to challenge the jurisdiction of the arbitrator/tribunal
under Section 16 of the Act[43] is not precluded from raising such objection for the
first time at the stage of setting aside of an award. The Supreme Court observed that
the nature of enquiry in a Section 16 proceeding and a Section 34 proceeding are
independent of each other and as such, a plea of lack of inherent jurisdiction can be
raised in a Section 34 proceeding but not on the ground of Unilateral Arbitration.

Therefore it humbly submitting before this Hon’ble court that there is no valid ground
to hear the suit filed under sec 34 of Arbitration and Conciliation act, and dismissed
the application of applicant.

2. Whether Hamdard Juice should not have been impleaded in the Arbitration
proceedings as Hamdard Juice was not a party to the Agreement dated January
26, 2021?

2
(2017) 8 SCC 377
3
(2018) 16 SCC 758

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 It’s submitted before this Hon’ble court that the Hamdard juice should be impleaded as
a party in a suit. As under ORDER 1, RULE 10 of CPC 4. Court have power person
whose presence before the Court is necessary in order to enable the Court effectively
and completely adjudicate upon and settle all the questions involved in the Suit to add
them as a party. This also enables the Court to avoid multiplicity of proceedings.

It Is a well-settled principle that it is for the plaintiff in a Suit to bring the parties
against whom he has any dispute and to implead them as defendants in the Suit filed
for necessary relief. He cannot be compelled to face litigation with the persons against
whom he has no dispute. However, if any third party is likely to suffer any injustice,
on account of the outcome of the Suit, he is entitled to get himself impleaded. The
question as to whether an individual is a proper or necessary party to a Suit would
depend upon the nature of relief claimed in the Suit and the right or interest projected
by the persons, who propose to get themselves impleaded. And in present case
Hamdard juice is a necessary party and their right are get effected by the judgement of
Hon’ble court.

Same was stated in a case Razia Begum Vs. Sahebzadi Anwar Begum 5, AIR 1958 SC
886]. Legal interest is interpreted to mean that the result of the Suit affects the third
party legally.

Therefore it’s humbly Submitted before this Hon’ble court that allow the Hamdard
juice a party in a suit, even if they were not a party to the agreement dated January
26,2021. As it indirectly realted and also effected the agreement

3. Whether the award is liable to be set aside on the principle of contra proferetum
as the terms of the agreement dated January 26, 2021 are vague and Belfast had
an unequal bargaining power at the time of execution of agreement?

4
Blog.ipleaders.in
5
https://www.legalserviceindia.com/legal/article-2793-basic-principles-for-impleadment-of-parties-in-civil-
proceedings.html

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 It is submitted before the hon’ble court that no clause considered to be ambiguous should
be interpreted against the interests of the party that created, introduced, or requested. In
the instant case, the respondent had drafted the Purchase Contract in which the petitioner
was a signatory, the Arbitrator, having observed various interpretations of the contract,
chose to endorse the interpretation that is favorable to the petitioner and it has been
distributing Hamdard Juice products even before it entered into an Agreement with
Oxfarm And that the agreement dated January 26, 2021, did not imply that Belfast would
Be prohibited from distributing similar products which it was already Distributing. Hence
the agreement dated January 26, 2021 is totally right on the side of Arbitration.

It is Submitted that the plaintiffs have not made out a case for grant of injunction. He
submitted that the plaintiffs did not have the balance of convenience nor are the plaintiffs
likely to suffer any irreparable injury. He placed reliance on the decision of the House of
Lords in NWL Ltd. Vs. Woods (1979)6Lord Diplock cautioned against granting of
injunctions merely balancing convenience of parties “at a stage when the evidence is
incomplete. “He also relied on Duport Steels Ltd. Vs. Sirs (1980)7 wherein the House of
Lords observed that unless that threat is imminent or there is serious danger to public
safety or health, the court would not grant any interim injunction.
In this instant case, the Arbitral Award was a well-reasoned award, with the findings
being clearly arrived at based on all the documents/evidence on record. Thus, the
Petitioner cannot have the benefit of the ‘ground of violation of agreement' to assail the
impugned Arbitral Award under Section 34 of the Act, 1996.

6
3 All E.R. 614 at 625).
7
1 All E.R. 529 at 549)

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 Prayer
Therefore, in the light of the facts stated, issues involved, arguments advanced, reasons given
and the authorities cited, this Hon’ble Court may be pleased:

a) To dismiss the appeal filed by appellant because the grounds of Unilateral Arbitration
agreement is valid

b) To made the Hamdard juice as a necessary party

c) To dismiss the appeal as the agreement is valid on the ground of law and statues

Any other and further relief which this Hon’ble Court may be pleased to grant in the interests
of Justice and Equity. All of which is respectfully submitted.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

(Counsels for Respondent)

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