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6th KIIT National Moot, 2018

Best Team Memorial - Petitioner

In the Hon'ble High Court of Malgudi

M/s Mercury Parking Inc. . . Petitioner;
Versus
Airport Authority of Malgudi . . Respondent.
UNDER ORIGINAL CIVIL JURISDICTION OF HIGH COURT OF MALGUDI
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
TABLE OF CONTENTS ii
LIST OF ABBREVIATIONS iv
INDEX OF AUTHORITIES v
STATEMENT OF JURISDICTION viii
STATEMENT OF FACTS ix
STATEMENT OF ISSUES xi
SUMMARY OF ARGUMENTS xii
ARGUMENTS ADVANCED 1
1. THAT THE PRESENT DISPUTE IS NOT ARBITRABLE 1
AND IT SHOULD BE TRIED BY THE CIVIL COURT IN A
CIVIL SUIT
1.1. The present dispute involves serious allegations 1
of fraud
1.1.1. Non-disclosure of grant of NOC prior to the 1
tender amounts to fraud
1.1.2. Additionally, present allegations of fraud are 2
serious in nature to be tried by the arbitrator
1.2. Serious allegations of fraud are not arbitrable 2
1.3. Intent of the legislation has never been to make 3
fraud arbitrable
1.3.1. Proposal of 246th Indian Law Commission 4
Report to make fraud arbitrable was not
accepted
1.3.2. Distinction between Article 16 of Model Law 4
and Section 16 of the Arbitration and
Conciliation Act
1.3.3. Lack of the principle of negative 5
competence-competence
2. THE ARBITRATION CLAUSE IS ONEROUS, AND THE 5
CONDITION PRECEDENT AMOUNTED TO AN UNFAIR
AND UNREASONABLE CONDITION FOR INITIATING
ARBITRATION
2.1. The Arbitration clause is constructed in a manner 5
that it hinders the say of licensee to initiate
arbitration
2.1.1. Such payment of fee before initiating 6
arbitration is onerous
2.1.2. Arbitration is meant to be initiated on the 6
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will of even one party
2.2. Additionally, the arbitration clause compels 7
Mercury for a performance it is not lawfully bound
to do
2.2.1. Mercury is discharged from performance 7
under the Indian Contract Act
2.2.2. The clause defeats the rights granted to 8
licensee under Easement Act
2.2.3. Alternatively, Clause was agreed for 8
payment of dues whereas amount claimed here
is disputed amount
3. THAT MERCURY IS ENTITLED TO DAMAGES FOR LOSS 9
OF OPPORTUNITY IN THE SECOND PROJECT AS A
RESULT OF THE PURPORTED DUE
3.1. There was a breach on part of the Airport 9
Authority
3.2. There was a loss of opportunity in the second 10
project because of the breach
3.3. Mercury is entitled for damages for the loss of 11
opportunity
4. THAT PROPORTIONATE REDUCTION IN THE LICENSE 12
FEE COULD TAKE PLACE ONLY BY THE WAY OF RE-
BID AND THE AUTHORITY COULD ITSELF SUO-MOTO
GRANT THE REVISION IN RATES OF THE TENDER
4.1. Though selling public property by inviting tender 12
is an ordinary rule, it is not an invariable rule
4.1.1. Freedom to ‘play in the joints’ lies with the 13
executive
4.1.2. There would be no discrimination if a 13
proportionate reduction is done
4.2. State can enter into negotiation with private 14
parties when it is acting for bona fide reasons
PRAYER xiv
LIST OF ABBREVIATIONS
§ Section
¶ Paragraph
A&C Act Arbitration and Conciliation Act, 1996
AA Airport Authority
AIR All India Reporter
All ER All England Reporters
Art. Article
Bom. Bombay
Del. Delhi
EWHC England and Wales High Court
HC High Court
ICA Indian Contract Act, 1872
ILC Indian Law Commission
Inc. Incorporation
KB King's Bench
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Ltd. Limited
NHA National Highway Authority
NOC No Objection Certificate
QB Queen's Bench
SC Supreme Court
SCC Supreme Court Cases
sqmt. Square Metres
UKHL United Kingdom House of Lords
UNCITRAL United Nations Commission on International Trade Law
INDEX OF AUTHORITIES
Indian Caselaws
A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386 3, 4
C.K. Achuthan v. The State of Kerala, AIR 1959 SC 490. 13
C.S. Ravishankar v. C.K. Ravishankar, 2011 (6) (Kar.) LJ 2
417.
Cruz City 1 Mauritius Holdings v. Unitech Ltd., 2017 SCC 5
OnLine (Del.) 7810.
H.G. Oomor Sait v. O. Aslam Sait, 2001 (3) CTC 269 3, 5
Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd., 2
1999 (5) SCC 688
Ivory Properties and Hotels Pvt. Ltd v. Nusli Neville Wadia, 2
2011 SCC OnLine (Bom.) 22
Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 6
Jai Durga Finvist Pvt. Ltd. v. State of Haryana, (2004) 3 14
SCC 381 : AIR 2004 SC 1484.
K.D. Sharma v. S.A.I.L., (2008) 12 SCC 481 2
Kotak Mahindra Bank v. Sundram Balke, 2008 SCC OnLine 4
(Mad.) 519
Lodipur Shramik Swawlambi Sahkari Samiti Limited v. The 14
State of Bihar, 2004 SCC OnLine (Pat.) 697.
N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72. 3
P.M. Haridas v. The Revenue Officer, Kottayam 14
Municipality, 2015 SCC OnLine (Ker.) 1949
Pathan Mohammed Suleman Rehmatkhan v. State of 13
Gujarat, (2014) 4 SCC 156 : (2013) 14 SCALE 385
Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319 1
Ranjit Singh v. State of Punjab, (2009) 2 SCC 233 8
Ravindra Kumar Verma v. M/s. B.P.T.P. Ltd., (2015) 147 7
DRJ 175.
Reliance Airports Developers Pvt. Ltd. v. Airports Authority 14
of India, 2006 SCC OnLine (Del.) 441.
Sachidanand Pandey v. State of West Bengal, (1987) 2 12
SCC 295 : (1987) 2 SCR 223.
Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21 9
Sterling Computers Ltd. v. M & N Publication Ltd., (1993) 1 13
SCC 445.
Swiss Timing Ltd. v. Organizing Committee, (2014) 6 SCC 3
677
The State of Bihar v. Ram Naresh Kumar, 2015 SCC 14
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OnLine (Pat.) 951
Thomson-CSF v. National Airport Authority of India, AIR 13
1993 (Del.) 252
Villianur Iyarkkai Paddukappu Maiyam v. Union of India, 13
(2009) 7 SCC 561.
Vimla v. Delhi Admn., AIR 1963 SC 1577 1
World Sport Group (Mauritius) Ltd. v. M.S.M. Satellite 3
(Singapore) Pte. Ltd., (2014) 11 SCC 639.
Foreign Caselaws
Aldgate Construction Company Ltd. v. Unibar Plumbing 10
and Heating Ltd., [2010] EWHC 1063 (Eng.)
Allied Maples v. Simmons & Simmons, [1995] 4 All ER 907 10
(Eng.)
Al-Waddan Hotel Ltd. v. Man Enterprise S.A.L. (Offshore), 6
[2014] EWHC 4796 (TCC) (Eng.)
Birth Center v. St. Paul Cos, Inc., 567 Pa. 386, 787 A.2d 12
376 (2001) (U.S.A.)
Chaplin v. Hicks, [1911] 1 KB 786 (Eng.) 10
Davies v. Taylor, [1974] AC 207 (Eng.). 10
Derry v. Peek, [1889] LR 14 App. Cas. 337 (Eng.). 2
Doyle v. Wallace, [1998] EWCA (Civ) 1030 (Eng.) 10
Galoo v. Bright Grahame Murray, [1994] 1 WLR 1360, 11
1374-1375 (Eng.).
Gregg v. Scott, [2005] UKHL 2 [15] (Eng.) 10
Hadley v. Baxendale, [1854] 9 Exch. 341 (Eng.) 11
Harbour Hill Lith v. Dittler, 348 N.Y.S.2d 920 (U.S.A.). 11
Health Net of California v. Dept. of Hlt. Serv, 295 F. Supp. 12
2d 1091 (N.D. Cal. 2003) (U.S.A.)
Heyman v. Darwins Ltd., [1942] AC 356, 359 (Eng.). 8
Jackson v. Royal Bank of Scotland, [2005] 1 WLR 377 10
(Eng.)
Kitchen v. R.A.F.A., [1958] 1 WLR 563 (Eng.) 10
Koufos v. C. Czarnikow Ltd., [1967] 3 WLR 1491 (Eng.). 11
Moschi v. Lep Air Services Ltd., [1973] AC 331, 350, 351 8
(Eng.).
Parabola Investments Ltd. v. Browallia Cal. Ltd., [2010] 10
EWCA (Civ) 486 (Eng.).
Photo Production Ltd. v. Securicor Transport Ltd., [1980] 8
AC 827, 844 (Eng.)
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) 5
(U.S.A.).
Russel v. Russel, [1880] LR 14 Ch D 471 (Eng.) 3
Spring v. Guardian Assurance Plc., [1994] 3 WLR 354 10
(Eng.).
Wellesley Partners L.L.P. v. Withers L.L.P., [2015] EWCA 10
(Civ) 1146 (Eng.).
Statutes
Arbitration and Conciliation Act, 1996 2, 3, 4, 7
Indian Contract Act, 1872. 1, 2, 7, 9
Indian Easements Act, 1882. 8
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Books
1 H.G. BEALE, CHITTY ON CONTRACTS 1586 (A.S. BURROWS et 7
al. eds., 32d ed. 2015.)
1 H.G. BEALE, CHITTY ON CONTRACTS 1731 (A.S. BURROWS et 10
al. eds., 32d ed. 2015.)
1 H.G. BEALE, CHITTY ON CONTRACTS 1766 (A.S. BURROWS et 7
al. eds., 32d ed. 2015.)
1 H.G. BEALE, CHITTY ON CONTRACTS 1838 (A.S. BURROWS et 11
al. eds., 32nd ed. 2015.)
11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON 11
CONTRACTS 93 (2009)
11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON 11
CONTRACTS 94 (2009)
11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON 11
CONTRACTS 99 (2009)
B.B. KATIYAR, LAW OF EASEMENTS & LICENSES 987 (K. 8
SHANMUKHAM ed., 13th ed. 2010)
GEOFFREY SAMUEL, CONTRACT LAW: CASES AND MATERIALS 486 7
(1st ed. 2007)
Other Authorities
Convention on recognition and enforcement of foreign 4
arbitral award, art. 16.
Convention on recognition and enforcement of foreign 4
arbitral award, art. 8.
Law Commission of India, Amendments to the Arbitration 5
and Conciliation Act, 1996 (Report No. 246, August, 2014)
STATEMENT OF JURISDICTION
The Counsel for the Petitioner humbly submits before the Hon'ble High Court of
Malgudi, the Memorandum on behalf of the Petitioner who has filed the civil suit under
Letters Patent Act, 1866 r/w Rule 26 of Bombay High Court Rules.
This memorandum sets forth the facts, contentions and arguments for the
petitioner in the given case.
STATEMENT OF FACTS
ALLOTMENT OF TENDER
¶1. The Airport Authority of Malgudi issued a tender on January 01, 2017. It was
stipulated that the project would be awarded to the highest bidder. It was indicated in
the tender documents that the size of the land to be allotted was 5000 sq. meters. The
successful bidder would pay a monthly license fee.
¶2. Mercury is a company registered under Companies Act, 1956. Mercury was
found to be the highest bidder having quoted the license fee of 25 lakhs. The tender
was awarded to Mercury and a license agreement for a period of 3 years was entered
into between the parties in May, 2017.
CONSTRUCTION BY NHA AND DISCLOSURE OF NOC THROUGH RTI
¶3. In January, 2018, it came to the notice of Mercury that certain construction
work had been started by the NHA on a portion of land allotted to Mercury. Through an
RTI query, Mercury came to know that 2000 sqmt. out of a total 5000 sqmt. allotted to
Mercury under the License Agreement was being acquired by the NHA.
¶4. It was also mentioned in the RTI response that a No Objection Certificate in
connection with the said acquisition had been granted by the Airport Authority to NHA
in 2016 for the purpose of the aforesaid acquisition. This NOC was granted prior to the
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issuance of the tender by the Airport Authority.
DISPUTE AND INVOCATION OF ARBITRATION CLAUSE
¶5. Immediately, Mercury on March 05 2018, wrote a letter to the Airport Authority
asking for a proportionate reduction in the license fee of 25 lakhs/month since the area
of land allotted to it had been substantially reduced. Since no reply was received from
the Airport Authority, Mercury had stopped making payments of the license fee from
the month of March, 2018. The Authority issued letters to Mercury, demanding
payments for the months of March and April, 2018.
¶6. On May 12, 2018, Mercury invoked the arbitration and requested the Airport
Authority to appoint an arbitrator. The Airport Authority replied all dues of the licensee
had to be deposited as a condition precedent to the appointment of the arbitrator. It
further reiterated its demand for revising the license fee failing which it will take
appropriate steps.
DISQUALIFICATION OF MERCURY IN A SUBSEQUENT BIDDING
¶7. During this period, Mercury was disqualified in another tender issued by the
Airport Authority in the state of Arkham. The disqualification was due to the tender
terms, which stated that the tender participant would be disqualified if there are any
pending dues in any other project of the Airport Authority.
CIVIL SUIT
¶8. On July 26, 2018, Mercury filed a civil suit before the High Court of Malgudi,
which had Original Jurisdiction. The basis of the suit was that the entire contract was
vitiated by fraud.
STATEMENT OF ISSUES
1. WHETHER THE PRESENT DISPUTE IS ARBITRABLE OR WHETHER IT SHOULD BE
TRIED BY THE CIVIL COURT IN A CIVIL SUIT
2. WHETHER THE ARBITRATION CLAUSE IS ONEROUS, AND THE CONDITION
PRECEDENT AMOUNTED TO AN UNFAIR AND UNREASONABLE CONDITION FOR
INITIATING ARBITRATION
3. WHETHER MERCURY IS ENTITLED TO DAMAGES FOR LOSS OF OPPORTUNITY IN
THE SECOND PROJECT AS A RESULT OF THE PURPORTED DUES
4. WHETHER ANY PROPORTIONATE REDUCTION IN THE LICENSE FEE COULD TAKE
PLACE ONLY BY THE WAY OF RE-BID OR THE AUTHORITY COULD ITSELF SUO-
MOTO GRANT THE REVISION IN RATES OF THE TENDER
SUMMARY OF ARGUMENTS
1. THAT THE PRESENT DISPUTE IS NOT ARBITRABLE AND IT SHOULD BE
TRIED BY THE CIVIL COURT IN A CIVIL SUIT
It is humbly submitted before the Hon'ble High Court of Malgudi that although
there is an arbitration agreement in the present dispute, it cannot be referred to an
arbitral tribunal because there was fraud involved in it. The contentions of the
petitioner are serious in nature and hence, under the light of various judicial
pronouncements and the legislative intent of the legislation, it should be tried by the
Hon'ble Court in a civil suit. Courts are the competent forums to try such matters
whereas arbitral tribunals are not, because such matters involve an elaborate
production of evidence to establish the claims relating to fraud.
2. THE ARBITRATION CLAUSE IS ONEROUS, AND THE CONDITION PRECEDENT
AMOUNTED TO AN UNFAIR AND UNREASONABLE CONDITION FOR INITIATING
ARBITRATION
It is humbly submitted before the Hon'ble High Court of Malgudi that the arbitration
clause in the license agreement violates the basic principles of arbitration and is
contrary to the spirit of arbitration as an alternate dispute resolution mechanism. The
clause is framed in such a manner so as to deter any party to initiate arbitration.
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Additionally, the counsel contends that the clause compels Mercury for the payment of
dues, which it is not bound to do. The demand for the disputed license fee is
unreasonable as Mercury has been discharged from the same because of the breach by
the Airport Authority.
3. THAT MERCURY IS ENTITLED TO DAMAGES FOR LOSS OF OPPORTUNITY IN
THE SECOND PROJECT AS A RESULT OF THE PURPORTED DUE
It is humbly submitted before the Hon'ble High Court of Malgudi that Mercury is
entitled for damages for the loss of opportunity in tender issued by the state of
Arkham. It is contended that concealment of a material fact before entering into the
agreement and later reduction in land because of the same, amounts to breach. The
breach further led to non-payment of disputed amount which snatched the opportunity
of Mercury to participate in the second project. The claim for damages by Mercury is
reasonable and hence it is entitled for the same.
4. THAT PROPORTIONATE REDUCTION IN THE LICENSE FEE COULD TAKE
PLACE ONLY BY THE WAY OF RE-BID AND THE AUTHORITY COULD ITSELF SUO
-MOTO GRANT THE REVISION IN RATES OF THE TENDER
It is humbly submitted before the Hon'ble High Court of Malgudi that there should
be a proportionate reduction in the license fee and it is not necessary for the Airport
Authority to hold a fresh bidding for the same. It is contended that, although selling
the public property by inviting tender is an ordinary rule, it is not an invariable rule.
There are situations where there could be compelling reasons necessitating a
departure from the rule. In such situations, the state can enter into negotiation with
private parties if acting for bona fide reasons.
ARGUMENTS ADVANCED
1. THAT THE PRESENT DISPUTE IS NOT ARBITRABLE AND IT SHOULD BE
TRIED BY THE CIVIL COURT IN A CIVIL SUIT
¶1. It is humbly submitted before the High Court of Malgudi that the courts cannot
refer the parties to arbitration when the claim involves serious allegations of fraud. The
contentions for the same have been submitted in the following three line of
arguments. Firstly, the counsel submits that the present dispute involves serious
allegations of fraud [1.1], secondly that such a serious allegation of fraud has been
held to be non-arbitrable in various judicial pronouncements [1.2] and lastly that
there is no legislative intent to make fraud arbitrable [1.3].
1.1. THE PRESENT DISPUTE INVOLVES SERIOUS ALLEGATIONS OF FRAUD
¶2. It is evident from the facts of the case that there had been a material non-
disclosure on the side of the AA and such allegations should not be tried by the
arbitrator and should be referred to the court who have competent jurisdiction. The
case involves serious issues of fraud and neither the legislation nor the courts treat it
as arbitrable.
1.1.1. Non-disclosure of grant of NOC prior to the tender amounts to fraud
¶3. Under the tender issued by the AA, the land indicated for parking space was
5000 sqmt.1 However, the fact that a NOC for 2000 sqmt out of a total 5000 sqmt of
land had been granted to NHA was concealed. This NOC was granted prior to the
issuance of the tender by the AA. Hence, it was a material fact that was needed to be
disclosed while issuing the tender or at any stage before Mercury entered into the
contract. Such a conduct amounts to fraud under the Indian Contract Act, 1872
(hereinafter, “ICA”).2
¶4. The conduct of AA to induce Mercury to participate in bidding and later enter
into the license agreement amounts to a definite determinative stand as a response to
the conduct of the former giving rise to fraud by the same. Although, negligence is not
fraud it can be an evidence of fraud. Fraud means an intention to deceive; whether it
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is from any expectation of advantage to the party himself or from ill will towards the
other, is immaterial.3
¶5. A fraudulent misrepresentation is called deceit and consists of leading a man
into damage by wilfully or recklessly causing him to believe and act on falsehood.4 ICA
defines “fraud” as an act committed by a party to a contract with an intent to deceive
another.5 Fraud is proved when it is shown that a false representation has been made
knowingly or without belief in its truth or recklessly, careless whether it be true or
false.6 Thus, fraud is an extrinsic collateral act which vitiates all judicial acts, whether
in rem or in personam.7 Therefore, Mercury stands defrauded by AA and hence
possesses the rights to get relief against the same.
1.1.2. Additionally, present allegations of fraud are serious in nature to be
tried by the arbitrator
¶6. In the event it is held that application of section 88 is permissible in the present
case, it is submitted that if the allegations made are of ‘serious’ nature, they ought to
be determined before a court of law and not an arbitrator. Although a mere allegation
of fraud can be referred to arbitration, serious issues of fraud have been held non-
arbitrable.9 The Court held, “having due regard to the seriousness and the nature of
the allegations of fraud that have been levelled in the present case, serious triable
issues arise which ought to be determined before the Civil Court.”10 Hence, a serious
allegation has always been differentiated from mere allegations of fraud.11
¶7. Since the dispute not only involves larger commercial transactions but also
involves grave fraudulent acts, a serious examination of the contentions are required.
Moreover, consequences here also involve questions of validity of arbitration
agreement and proportionate reduction in the license fee. The matter becomes even
grave when a state authority is involved in the same. Hence, the present matter must
be tried in an open court.
1.2. SERIOUS ALLEGATIONS OF FRAUD ARE NOT ARBITRABLE
¶8. It is submitted that when a case involves substantial questions relating to facts
where detailed material evidence needed to be produced by either parties, and serious
allegations pertaining to fraud and malpractices are raised, the matter must be tried in
court. The arbitrator is not competent to deal with such matters which involve an
elaborate production of evidence to establish the claims relating to fraud. What can be
referred to the Arbitrator is only that dispute or matter which the Arbitrator is
competent or empowered to decide.12
¶9. The acknowledgement of fraud is said to be sufficient when there is prima facie
evidence of the same.13 The RTI query is a sufficient document in the present case to
establish the allegations based on which reference to arbitration could be refused.
¶10. In the case of N. Radhakrishnan,14 the Supreme Court held that since the case
relates to allegations of fraud and serious malpractices on the part of the respondent,
such a situation can only be settled in court through furtherance of detailed evidence
by either parties and such a situation cannot be dealt with by the Arbitrator. Similar
observation were made in Oomor Sait case15 opining that arbitrators are not
competent to deal with these type of cases. There are a plethora of judgments
affirming the same.16
¶11. Though it is conceded that Swiss Timing case17 held N. Radhakrishnan18
judgment per incuriam, it should be noted that single judge heard Swiss timing and
hence it cannot overrule a division bench judgment. Moreover, Swiss Timing case was
based on section 11(6) of the A&C Act.19 It was not a ruling under section 8, and since
the view expressed in it has effectively been disregarded in the later ruling of
Ayyasamy for this reason. Swiss Timing can no longer be regarded as good law.20 Also,
the decision of SC in World Sports Group case21 cannot be relied upon because it dealt
with the New York Convention to which Section 45 of the A&C Act22 applies.
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1.3. INTENT OF THE LEGISLATION HAS NEVER BEEN TO MAKE FRAUD ARBITRABLE
¶12. It is further submitted that there is an evident lack of intention of the
legislation to make fraud explicitly arbitrable. The recommendations of law commission
report to bring fraud under the purview of arbitration was not accepted. Moreover,
deviance from UNCITRAL Model Law on International Commercial Arbitration
(hereinafter’ “Model Law”) and absence of negative competence-competence shows
the distrust in competence of arbitrators in the country.
1.3.1. Proposal of 246th Indian Law Commission Report to make fraud
arbitrable was not accepted
¶13. The 246th ILC Report (hereinafter, “The Report”) that proposed amendments
to the A&C Act also addressed the issue of arbitrability of fraud. It observed that such
an amendment was necessary to counter the denudation of the powers of the arbitral
tribunal by the SC. However, the changes proposed by the ILC to Section 16 were not
effected in the 2015 amendments to the A&C Act.
¶14. Instead, the amended Section 8 sought to consolidate the kompetenz-
kompetenz principle by stating that the civil court will refer the parties to arbitration
‘unless it finds that prima facie no valid arbitration agreement exists’. The attitude of
courts to resort to subject-matter analysis to determine arbitrability is not
contemplated, statutorily.
1.3.2. Distinction between Article 16 of Model Law and Section 16 of the
Arbitration and Conciliation Act
¶15. A perusal of Article 16 of the Model Law23 reveals that its contents under
Article 16(1) are imported as such into section 16(1)(a) and (b) of the A&C Act24 . The
departure is twofold, namely, (a) that while Article 16(3) enables the arbitral tribunal
to decide the question of jurisdiction as a preliminary issue, section 16 does not
enable the arbitral tribunal to do so, and, (b) that while Article 16(3) permits a
challenge to be made to the decision of the arbitral tribunal on the preliminary issue
before a court, section 16 does not permit the same.25
¶16. Under article 8 of the Model Law26 , a court is empowered to decline the parties
to refer to arbitration if it is found that the arbitration agreement is null and void,
inoperative or incapable of being performed. Section 8 of the A&C Act has made a
departure which is indicative of the wide reach and ambit of the statutory mandate.
Section 8 uses the expansive expression “judicial authority” rather than “court” and
the words “unless it finds that the agreement is null and void, inoperative and
incapable of being performed” do not find place in Section 8.27
¶17. Hence, although there has been incorporations from the Model Law, the powers
granted to the Arbitral Tribunal are not as wide as provided in Model Law.
1.3.3. Lack of the principle of negative competence-competence
¶18. Law Commission in its 246th report recognized that the judicial machinery
provides essential support for the arbitral process.28 In H.G. Oomor case,29 the court
observed that it is true that the discretion of the Civil Court to proceed with the suit is
narrowed down, but there is nothing in the act as such which would place a total
embargo on the Civil Court to continue the proceedings before it, only on the mere
existence of an arbitration clause.”
¶19. A&C Act does not contain anything, which completely isolates judiciary from
proceeding with a suit that involves serious allegations of fraud. Negative kompetenz-
kompetenz, by only allowing courts to review the formal contractual requirements at
the referral stage, may lead to unconscionable arbitration agreements being
enforced.30 Moreover, the language of section 16 is so construed that it is only
directive in nature and not mandatory. The plain meaning of the word “may” is not
“shall”; it is used to imply discretion and connote an option as opposed to
compulsion.31
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¶20. Therefore, it is submitted that when there is a question of fraud involved, it

should be under the jurisdiction of the civil courts only as the laws of the land do not
permit such allegations to be decided by an arbitral tribunal.
2. THE ARBITRATION CLAUSE IS ONEROUS, AND THE CONDITION PRECEDENT
AMOUNTED TO AN UNFAIR AND UNREASONABLE CONDITION FOR INITIATING
ARBITRATION
¶21. It is humbly submitted by the counsel for the petitioners that the arbitration
clause in the license agreement violates the basic principles of arbitration and is
contrary to the spirit of arbitration as an alternate dispute resolution mechanism itself
as the clause is framed in such a manner so as to deter any party to initiate arbitration
[2.1]. Additionally, it compels Mercury for the payment of dues, which it is not bound
to do [2.2].
2.1. THE ARBITRATION CLAUSE IS CONSTRUCTED IN A MANNER THAT IT HINDERS THE SAY
OF LICENSEE TO INITIATE ARBITRATION.
¶22. The spirit of Arbitration lies in party autonomy. It is a basic principle that
when a dispute arises, both parties should have equal say to resort to arbitration. In
the present case, it becomes quite evident that Mercury could not initiate arbitration
because of the condition imposed on it. This condition imposed on the Licensee is
unjust and prima facie biased as it puts the licensee in a detrimental position.
¶23. It cannot be said that merely because the licensee has agreed to the condition
precedent, he is bound to perform it in whatsoever circumstances. It is accepted that
a condition precedent can become onerous to be performed at a later stage thereby
rendering enforcement of such a condition on one party is unreasonable since the
circumstances are not such that the condition could be satisfied.32 Hence, Airport
Authority's demand to satisfy the condition precedent before appointment of Arbitrator
should not be considered, it being violative of the spirit of arbitration.
2.1.1. Such payment of fee before initiating arbitration is onerous
¶24. By way of the License Agreement, Mercury was granted 5000sqmt land.
However, from January, 2018, 2000sqmt of land became unavailable to mercury
because of the construction work started by NHA in that portion of land.33 This led to
40 percent reduction in the revenue generated by Mercury which was the only source
for the payment of the license fee. Consequently, Mercury is no longer in a position to
pay the whole amount and hence imposing the same on the company is totally unjust
and burdensome.
¶25. Mercury cannot be compelled to make payment of an unreasonable amount,
which is in fact disputed. In order to initiate arbitration such an onerous clause cannot
be imposed. Moreover, the present circumstances are created by the Airport Authority
only. Had the Authority paid heed to the letters of Mercury regarding the dispute in
the initial stage, there would have been no piling up of the dues.
¶26. An arbitration agreement includes a clause providing that in the event of
disputes arising between the parties, the disputes shall be referred to Arbitration.
Where there is a specific and direct expression of intent to have the disputes settled
by arbitration, it is not necessary to set out the attributes of an arbitration agreement
to make it an arbitration agreement.34
2.1.2. Arbitration is meant to be initiated on the will of even one party
¶27. The basic principle behind arbitration is to protect the intention of either
party's to have an arbitrator appointed without any hindrance and the same is
reflected through the Act itself whereby it is provided that when one party fails to
appoint an Arbitrator, the courts can appoint one.35 Through this, the courts have
considered that Arbitration can be initiated even when one party is not willing to do
so.
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¶28. Existence of condition precedent should not act as a bar for enforcing rights of
arbitration.36 Hence, the compliance to the pre-condition before entering into
arbitration will deter Mercury to initiate arbitration itself. Such a clause simply leads to
the failure of the institution of arbitration where, despite the existence of an arbitration
clause, dispute is stuck in a deadlock situation.
2.2. ADDITIONALLY, THE ARBITRATION CLAUSE COMPELS MERCURY FOR A PERFORMANCE
IT IS NOT LAWFULLY BOUND TO DO
¶29. Since there has been a breach of Contract by the Authority as established in
the earlier contentions of the petitioner, Mercury stands discharged from the duty of
performance of its own part of the contract under the Indian Contract Act.
Furthermore, it is submitted that Easement Act provides that an innocent licensee is
entitled for compensation for the loss suffered and is not for liable for performance.
Alternatively, it is argued that the fee demanded is not merely dues but a disputed
amount and hence should not be paid without the decision of a competent authority.
2.2.1. Mercury is discharged from performance under the Indian Contract
Act.
¶30. ICA lays down provisions whereby when there is a breach by one party or one
party fails to perform its part of obligation the other party is not bound to perform its
part of the contract.37 A party to a contract must perform exactly what it undertook to
do.38 In the present case, the payment was to be done in lieu of the land and fee paid
was generated through the revenue of the parking fee only. Since the AA had failed to
deliver a part of the land agreed for, payment cannot be demanded for the same.
¶31. The area of parking was the core or substance of the contract and a failure in
providing the same will amount to a fundamental breach on the part of Airport
Authority. When the breach is so fundamental, Mercury also gets discharged from its
part of liability to perform the contract.39 Furthermore, a party may terminate the
contract where the failure of the other party to perform an obligation under the
contract amounts to a fundamental performance.40 NHA has a valid ground for
construction in that part of land and the area will not get restored to Mercury in the
future. Hence, such a payment is unreasonable on Mercury.
¶32. Where the innocent party is entitled to, and does, treat himself as discharged
by the other's breach, he is thereby released from his future performance of his
obligation under the contract.41 After such discharge he is not bound to make payment
to the other party42 and such a payment can't be imposed on Mercury by incorporating
a condition precedent to appointment of arbitrator either.
2.2.2. The clause defeats the rights granted to licensee under Easement Act.
¶33. It is a rule that a man must have the full enjoyment of bargain. He must have
full enjoyment of a thing he pays for. This is based on this rule of commonsense.43
This rule will apply where the eviction is not due to any fault of the licensee but is a
voluntary act of the licensor and it takes place before the licensee has had the full
enjoyment of the right he paid for.44
¶34. The right granted to Mercury under the license deed was for the entire 5000
sqmt of the land. Under the law Mercury is only bound to pay the license fee for the
entire land when he has the full enjoyment of the land. However, because of the
construction work started by NHA on 40 percent of the land, Mercury is deprived of
enjoyment of a substantial portion of the land. Hence, seeking the payment would
defeat the principle of Easement Act and it is totally unjust to compel them for the
payment of the entire license fee.
2.2.3. Alternatively, Clause was agreed for payment of dues whereas amount
claimed here is disputed amount.
¶35. When the payment of dues sought is disputed, there should be no compulsion
on the other party to pay the same and it should only be given after the decision of a
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competent authority.45 The arbitration clause merely incorporates payment of ‘any

dues’. Clearly the dues to be paid must be legitimate. However, the demand of the
Authority includes payment of disputed amount which should not be paid unless
Mercury is guided under some rule for the same.
¶36. Therefore, such a demand is onerous on Mercury and the condition precedent
amounts to a compulsion on Mercury which is not only economically burdensome but
also not in accordance of law to be enforced.
3. THAT MERCURY IS ENTITLED TO DAMAGES FOR LOSS OF OPPORTUNITY IN
THE SECOND PROJECT AS A RESULT OF THE PURPORTED DUE
¶37. The counsel humbly submits that Mercury is entitled for damages for the loss
of opportunity in tender issued by the state of Arkham. It is contended that
concealment of a material fact before entering into the agreement and later reduction
in land because of the same, amounts to breach [3.1]. That breach further led to non-
payment of disputed amount which snatched the opportunity of Mercury to participate
in the second project [3.2]. The claim for damages by Mercury is reasonable and
hence it is entitled for the same [3.3].
3.1. THERE WAS A BREACH ON PART OF THE AIRPORT AUTHORITY
¶38. Airport Authority had been at fault since the issuance of tender. A material fact
that an NOC had already been granted on the land was concealed. Mercury entered
into the agreement believing on the fact that entire 5000sqmt. land, as provided in
the terms of the contract would remain available to them for the agreed three years.
Since the start of construction work, mercury has already been devoid of a substantial
portion of land. Now, it becomes quite reasonable that when there is a dispute of such
nature, there will be a denial of payment.
¶39. Furthermore, Mercury did send letter to the Authority in March, 2018 when
there was no dues as such.46 Mercury had been paying earlier fees as agreed to in the
license agreement. It was only after they did not send any reply that Mercury stopped
payment.47 Hence, the piling up of dues is also because of the Airport Authority only.
¶40. ICA provides that the parties to the contract are under an obligation to
perform or offer to perform, their respective promises under the contract, unless such
performance is dispensed with or excused under the provisions of the Indian Contract
Act or of any other law.48 A breach of contract occurs when a party thereto renounces
his liability under it, or by his own act makes it impossible that he should have
performed his obligation under it or totally or partially fails to perform such
obligations.49 Therefore, the non-performance on the part of the Authority amounts to
breach.
¶41. One party to a contract may, by reason of the other's breach, be entitled to
treat himself as discharged from his liability further to perform his own unperformed
obligation under contracts and from his obligation to accept performance by the other
party if made or tendered.50 Hence, by the substantial reduction in the parking space
as a result of acquisition by NHA with disclosing the same beforehand, amounts to
breach on the part of AA.
3.2. THERE WAS A LOSS OF OPPORTUNITY IN THE SECOND PROJECT BECAUSE OF THE
BREACH
¶42. It is submitted that there has been a loss of opportunity in the tender issued
in the state of Arkham, where Mercury was disqualified in wake of the alleged pending
dues under the present contract. It further becomes evident from the facts that
Mercury had been a successful bidder.51 Mercury had more than speculative chance to
get the tender. Alternatively, it is also contended that financial loss is independent of
this fact as being disqualified is in itself an opportunity lost.
¶43. A respondent's breach, even if causes a mere loss of chance, attracts damage
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towards petitioner.52 Most of the cases in which there has been a recovery for loss of a
chance have involved a financial loss, where the chance can itself plausibly be
characterised as an item of property.53 The respondent's wrong can also consist of
depriving the claimant of a chance he would otherwise have had.54 Courts have
adhered to this principle and damages have been awarded to the claimants where they
have lost chance to engage in other developments.55
¶44. When a claimant loses some right of value, some chose in action of reality and
substance, his claim has to be considered.56 Even when there is slightest chance, that
chance is substantial.57 Once the duty of care is held to exist and the respondent's
negligence is proved, the petitioner only has to show that he has lost a reasonable
chance and has thereby sustained loss.58 Contractual remoteness test was appropriate,
and that lost opportunity to profit from that was recoverable under that test.59
Damages had to be assessed on a ‘loss of a chance’ basis.60
¶45. Relying on the similar principles laid on various other pronouncements61 , it is
submitted that the breach of Authority has led to a significant loss of opportunity to
Mercury and hence the latter is entitled to damages arising out of the same.
3.3. MERCURY IS ENTITLED FOR DAMAGES FOR THE LOSS OF OPPORTUNITY.
¶46. It is submitted that denial of the tender in the state of Arkham was only
because there was pending dues in the project of Airport Authority in the state of
Arkham. Furthermore, the dues piled up only when Airport Authority breached the
contract and failed to provide land as promised under the license agreement. It is
further submitted that the AA did not pay heed to the attempts of Mercury in the
beginning of the dispute and Mercury stopped payments thereafter only.
¶47. After breach, Mercury did not remain in a position to pay the fee because of
loss in revenue. Moreover, it was also known to the Authority that an NOC has already
been granted for 2000sqmt land prior to the issuance of the tender. So a
contemplation of construction on the same cannot be denied. Also, since the portion of
land amounts to 40 percent of the entire land it is substantial enough for a reasonable
man to foresee that the other party would not remain in a position to make payments.
¶48. On the breach of contract such damages can be recovered either, (1) as may
fairly and reasonably be considered arising naturally i.e. according to the usual course
of things from such breach or, (2) as may reasonably be supposed to have been in the
contemplation of both the parties at the time they made the contract.62 In either
cases, damages are provided as a result of the breach of contract.63 Court have relied
on common sense to guide such decisions as to whether a breach of contract is a
sufficiently substantial cause of the claimant's loss64 and to prove remoteness through
that causation for a liability of damages.65
¶49. The existing rule66 requires only reason to foresee, not actual foresight.67 It
does not require that the respondent should have had the resulting injury actually in
contemplation or should have promised either impliedly or expressly to pay therefor in
case of breach. In some cases expressions have been used by the court that would
lead to this error.68 Damages are awarded for a breach not because they were
contemplated69 and promised to be paid but to compensate the injured party for the
harm done that ought to have been foreseen whether it was or not.70 . The absence of
express provisions demonstrating that the recovery of consequential damages was
contemplated or discussed does not control reasonable foreseeability.71 This principle
has been widely relied upon for the grant of compensation.72
¶50. It is also contended that since Airport Authorities operating in Malgudi and in
Arkham are the same entity73 it cannot be denied by the authority that such a clause
in the other project is too remote to be contemplated. Instead, they must have been
well aware of such terms and conditions in their other projects.
¶51. Thus, the facts of the case are evident enough to provide the breach and
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causation thereby which led to the loss of opportunity in the subsequent bidding.
Mercury has suffered substantial loss and is entitled to receive damages for the same.
Therefore, damages for the loss of opportunity can be claimed based on the
aforementioned circumstances.
4. THAT PROPORTIONATE REDUCTION IN THE LICENSE FEE COULD TAKE
PLACE ONLY BY THE WAY OF RE-BID AND THE AUTHORITY COULD ITSELF SUO
-MOTO GRANT THE REVISION IN RATES OF THE TENDER
¶52. The counsel on behalf of the petitioners hereby submits before the court that
that there could be a proportionate reduction in the license fee and it is not necessary
for the authority to hold a fresh bidding for the same. It is contended that, although
selling public property by inviting tender is an ordinary rule, it is not an invariable rule
[4.1] and that state can enter into negotiation with private parties if it is acting with
bona fide reasons [4.2].
4.1. THOUGH SELLING PUBLIC PROPERTY BY INVITING TENDER IS AN ORDINARY RULE, IT
IS NOT AN INVARIABLE RULE
¶53. It is submitted before the High Court of Malgudi that the defense taken by the
Authority to issue a fresh tender instead of revision of the fees does not come under
any strict rule. Although, to sell the property by public auction or by inviting tenders is
the ordinary rule but it is not an invariable rule. There may be situations where there
are compelling reasons necessitating a departure from the rule when the departure is
rational and not suggestive of discrimination.74
¶54. Non-floating of tenders or absence of public auction or invitation alone is not a
sufficient reason to characterize the action of a public authority as either arbitrary or
unreasonable or amounting to mala fide or improper exercise of power. It is open to
the state and the authorities to take economical and managerial decisions depending
upon the exigencies of a situation.75 Not holding of a public auction would not in all
cases be deemed to be the result of the exercise of the executive power in an arbitrary
manner.76
4.1.1. Freedom to ‘play in the joints’ lies with the executive
¶55. In contracts having commercial element, some more discretion has to be
conceded to the authorities so that they may enter into a contract with persons
keeping an eye on the augmentation of the revenue. Under some special
circumstances, a discretion has to be conceded to the authorities who have to enter
into contract giving them liberty to assess the overall situation for the purpose of
taking a decision as to whom the contract should be awarded and at what terms. If
the decision has been taken in a bona fide manner although not strictly following the
norms laid down by the Courts, such decision are upheld on the principle laid down by
Holmes J., that Courts while judging the constitutional validity of executive decision
must grant certain measure of freedom of ‘play in the joints’ to the executive.77
¶56. Since the contract was awarded to Mercury and it has performed its functions
properly and has always paid the license fee on time, so Airport Authority, by using its
discretion, should negotiate with Mercury and proportionately reduce the license fee. It
was the Authority who at first failed to disclose the NOC given to NHA and now wants
to conduct a fresh tender in the hope of getting better monetary benefit. By letting the
AA to issue a fresh tender will not only do injustice to Mercury, but it will leave the AA
to gain from its own wrong.
4.1.2. There would be no discrimination if a proportionate reduction is done
¶57. There will be no discrimination on the part of the Authority if a revision of the
fees is made in proportion of the earlier agreed amount between the parties. It is open
to the Government, even as it is to a private party, to choose a person to fulfil
contracts which they wish to be perform. When one person is chosen rather than
another, the aggrieved party cannot claim the protection of Article 14, because the
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choice of the person to fulfill a particular contract must be left to the Government.78
Merely because one person is chosen in preference to another, it does not follow that
there is a violation of Article 14, because the Government must necessarily be entitled
to make a choice.79
¶58. The defense taken by AA is that it would violate the equality of opportunity if
the contract is given to Mercury. However, equal opportunity had already been given
to everyone prior to the acceptance of the contract of Mercury and because of some
change in current circumstances, the Airport Authority has the power to continue the
contract with Mercury without having a re-bid.
4.2. STATE CAN ENTER INTO NEGOTIATION WITH PRIVATE PARTIES WHEN IT IS ACTING
FOR BONA FIDE REASONS
¶59. The award of a contract, whether it is by a private party or by a public body or
the State, is essentially a commercial transaction. In arriving at a commercial decision
considerations which are paramount, the state can choose its own method to arrive at
a decision. It can fix its own terms of invitation to tender and that is not open to
judicial scrutiny. Price need not always be the sole criterion for awarding a contract. It
is free to grant any relaxation, for bona fide reasons, if the tender conditions permit
such a relaxation.80
¶60. The petitioner is entitled for proportionate reduction in the license fee because
he is not able to operate on 2000 sq. meters against the terms of contract without any
fault on its part. In support of this submission, the counsel places reliance on a SC
judgement in Jai Durga case,81 and Patna HC judgement in Lodipur Shramik
Swawlambi Sahkari Samiti case82 “It is an admitted fact that the appellant did not
operate the Bega Murthal Sand Zone, even if by their own choice, but facts remain
that they did not derive any benefit from the contract.”83
¶61. In the case of State of Bihar v. Ram Naresh Kumar,84 the HC was of the
opinion that the respondent should not be denied proportionate reduction because he
has been deprived of opportunity to exploit the lease for almost seven months of the
year. Similar grounds have been relied upon in a Kerala HC case,85 where the
municipality had granted proportionate reduction to the petitioner on ground of
reduction of levy fees per bus per day. The court held that “it was quite reasonable,
just and proper on the part of the Municipality to grant remission proportionate to the
reduction in the rate fixed per vehicle.”
¶62. The decision of the Airport Authority of conducting a re-bid even otherwise
cannot be accepted on facts that tender was issued on Jan 01, 2017 and the NOC
regarding 2000 sq. meter area of land was given to NHA in the year 2016.86 The
Airport Authority ought to have disclosed this fact clearly in the notice inviting tender
and thereafter in the contract. Since the tender for the license fee was in respect of
deriving revenue by collecting parking charges at the land allotted from the various
vehicles using the parking facility,87 on reduction of the area thereof, the petitioner
ought to be granted relaxation in the amount of license fee.
¶63. Therefore, it is conclusively submitted that since the petitioner had bid the
price for the tender under the impression that he will be able to collect parking
charges over an area of 5000 sqmt. he has suffered a considerable loss, and must be
granted a revision in fee for the same.
PRAYER
Wherefore in the light of the facts of the case, issues raised, arguments advanced
and authorities cited, may this Hon'ble court be pleased to adjudge and declare that:
1. The present dispute should be tried by the Civil Court in a Civil Suit.
2. The arbitration clause is onerous, and the condition precedent amounted to an
unfair and unreasonable condition for initiating arbitration.
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3. Mercury is entitled to damages for loss of opportunity in the second project as a
result of the purported dues.
4. The Authority could itself suo moto grant the revision/proportionate reduction in
rates of the tender.
And pass any other order that it may deem fit in the interest of justice, equity and
good conscience.
1 Moot Problem, ¶ 1.
2
Indian Contract Act, 1872, § 6.
3
Vimla v. Delhi Admn., AIR 1963 SC 1577; Indian Bank v. Satyam Fibres (India) (Pvt.) Ltd., (1996) 5 SCC 550;
Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 SCC 170.
4
Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319.
5
Indian Contract Act, 1872, § 17.
6 Derry v. Peek, [1889] LR 14 App. Cas. 337 (Eng.).
7
K.D. Sharma v. S.A.I.L., (2008) 12 SCC 481.
8
Arbitration and Conciliation Act, 1996, § 8.
9 Ivory Properties and Hotels Pvt. Ltd v. Nusli Neville Wadia, 2011 SCC OnLine (Bom.) 22.
10
Id.
11
C.S. Ravishankar v. C.K. Ravishankar, 2004 SCC OnLine (Kar.) 493; Avitel Post Studioz Ltd. v. H.S.B.C. P.I.
Holdings (Mauritius) Ltd., 2014 SCC OnLine (Bom.) 102.
12 Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd., 1999 (5) SCC 688.
13 Russel v. Russel, [1880] LR 14 Ch D 471 (Eng.).
14
N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72.
15 H.G. Oomor Sait v. O. Aslam Sait, 2001 (3) CTC 269.
16Booz Allen and Hamilton Inc. v. S.B.I. Home Finance Ltd., (2011) 5 SCC 532; Sukanya Holdings (Pvt.) Ltd. v.
Jayesh H. Pandya, 2003 (5) SCC 531; Ram Niwas Goyal v. Subhash Goyal, 2016 SCC OnLine (P&H.) 1625; Abdul
Kadir v. Salima, (1886) ILR 8 (All.) 149; H.G. Oomor Sait v. O. Aslam Sait, (2001) 2 MLJ 672.
17 Swiss Timing Ltd. v. Organizing Committee, (2014) 6 SCC 677.
18 N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72.
19 Arbitration and Conciliation Act, 1996, § 11(6).
20
A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.

21 World Sport Group (Mauritius) Ltd. v. M.S.M. Satellite (Singapore) Pte. Ltd., (2014) 11 SCC 639.
22 Arbitration and Conciliation Act, 1996, § 45.
23 Convention on recognition and enforcement of foreign arbitral award, art. 16.
24 Arbitration and Conciliation Act, 1996, § 16(1)(a)-16(1)(b).
25
Kotak Mahindra Bank v. Sundram Balke, 2008 SCC OnLine (Mad.) 519.
26 Convention on recognition and enforcement of foreign arbitral award, art. 8.

27 A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.

28Law Commission of India, Amendments to the Arbitration and Conciliation Act, 1996 (Report No. 246, August,
2014).
29 H.G. Oomor Sait v. O. Aslam Sait, 2001 (3) CTC 269.
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30 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (U.S.A.).
31 Cruz City 1 Mauritius Holdings v. Unitech Ltd., 2017 SCC OnLine (Del.) 7810.
32 Al-Waddan Hotel Ltd. v. Man Enterprise S.A.L. (Offshore), [2014] EWHC 4796 (TCC) (Eng.).

33 Moot Problem, ¶ 5.
34 Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.
35 Arbitration and Conciliation Act, 1996, § 16(6).
36 Ravindra Kumar Verma v. M/s. B.P.T.P. Ltd., (2015) 147 DRJ 175.
37
Indian Contract Act, 1872, §§ 37, 39, 54.
38
1 H.G. BEALE, CHITTY ON CONTRACTS 1586 (A.S. BURROWS et al. eds., 32d ed. 2015.)
39 1 H.G. BEALE, CHITTY ON CONTRACTS 1766 (A.S. BURROWS et al. eds., 32d ed. 2015.)
40
GEOFFREY SAMUEL, CONTRACT LAW: CASES AND MATERIALS 486 (1st ed. 2007).
41
Heyman v. Darwins Ltd., [1942] AC 356, 359 (Eng.).
42Moschi v. Lep Air Services Ltd., [1973] AC 331, 350, 351 (Eng.); Photo Production Ltd. v. Securicor Transport
Ltd., [1980] AC 827, 844 (Eng.).
43 Indian Easements Act, 1882, § 64.
44
B.B. KATIYAR, LAW OF EASEMENTS & LICENSES 987 (K. SHANMUKHAM ed., 13th ed. 2010).
45 Ranjit Singh v. State of Punjab, (2009) 2 SCC 233.
46 Moot Problem, ¶ 6.
47
Moot Problem, ¶ 7.
48 Indian Contract Act, 1872, § 37.
49 Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21.
50 1 H.G. BEALE, CHITTY ON CONTRACTS 1731 (A.S. BURROWS et al. eds., 32d ed. 2015.)

51 Moot Problem, ¶ 3.
52 Chaplin v. Hicks, [1911] 1 KB 786 (Eng.).
53 Id.
54 Gregg v. Scott, [2005] UKHL 2 [15] (Eng.).
55
Aldgate Construction Company Ltd. v. Unibar Plumbing and Heating Ltd., [2010] EWHC 1063 (Eng.); Jackson
v. Royal Bank of Scotland, [2005] 1 WLR 377 (Eng.).
56 Kitchen v. R.A.F.A., [1958] 1 WLR 563 (Eng.).
57 Davies v. Taylor, [1974] AC 207 (Eng.).
58 Spring v. Guardian Assurance Plc., [1994] 3 WLR 354 (Eng.).
59
Wellesley Partners L.L.P. v. Withers L.L.P., [2015] EWCA (Civ) 1146 (Eng.).
60 Allied Maples v. Simmons & Simmons, [1995] 4 All ER 907 (Eng.).
61Parabola Investments Ltd. v. Browallia Cal. Ltd., [2010] EWCA (Civ) 486 (Eng.); Doyle v. Wallace, [1998]
EWCA (Civ) 1030 (Eng.).
62 Hadley v. Baxendale, [1854] 9 Exch. 341 (Eng.).

63 Koufos v. C. Czarnikow Ltd., [1967] 3 WLR 1491 (Eng.).

64 Galoo v. Bright Grahame Murray, [1994] 1 WLR 1360, 1374-1375 (Eng.).
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65
1 H.G. BEALE, CHITTY ON CONTRACTS 1838 (A.S. BURROWS et al. eds., 32nd ed. 2015.)
66 Hadley v. Baxendale, [1854] 9 Exch. 341 (Eng.).
67
Harbour Hill Lith v. Dittler, 348 N.Y.S.2d 920 (U.S.A.).
68 11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON CONTRACTS 93 (2009).
69
11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON CONTRACTS 99 (2009).
70 11 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON CONTRACTS 94 (2009).
71 Birth Center v. St. Paul Cos., Inc., 567 Pa. 386, 787 A.2d 376 (2001) (U.S.A.).
72
Health Net of California v. Dept. of Hlt. Serv, 295 F. Supp. 2d 1091 (N.D. Cal. 2003) (U.S.A.).
73 Moot Problem, ¶ 11.
74 Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295 : (1987) 2 SCR 223.
75
Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, (2014) 4 SCC 156 : (2013) 14 SCALE 385.
76 Villianur Iyarkkai Paddukappu Maiyam v. Union of India, (2009) 7 SCC 561.
77 Sterling Computers Ltd. v. M & N Publication Ltd., (1993) 1 SCC 445.
78
C.K. Achuthan v. The State of Kerala, AIR 1959 SC 490.
79 Thomson-CSF v. National Airport Authority of India, AIR 1993 (Del.) 252.
80 Reliance Airports Developers Pvt. Ltd. v. Airports Authority of India, 2006 SCC OnLine (Del.) 441.
81
Jai Durga Finvist Pvt. Ltd. v. State of Haryana, (2004) 3 SCC 381 : AIR 2004 SC 1484.
82 Lodipur Shramik Swawlambi Sahkari Samiti Limited v. The State of Bihar, 2004 SCC OnLine (Pat.) 697.
83 Jai Durga Finvist Pvt. Ltd. v. State of Haryana, (2004) 3 SCC 381 : AIR 2004 SC 1484.
84
The State of Bihar v. Ram Naresh Kumar, 2015 SCC OnLine (Pat.) 951.
85
P.M. Haridas v. The Revenue Officer, Kottayam Municipality, 2015 SCC OnLine (Ker.) 1949.
86 Moot Problem, ¶ 5.
87
Moot Problem, ¶ 2.
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