Team Code- R626

BEFORE THE HONOURABLE HIGH COURT OF

MALGUDI

Original Jurisdiction
Suit no. ..../2018

PLAINTIFF DEFENDANT
M/s Mercury Parking Inc. Airport Authority of
VERSUS
Malgudi

WRITTEN SUBMISSION ON BEHALF OF DEFENDANT

6th KIIT National Moot Court Competition, 2018

 STATEMENT OF JURISDICTION

The plaintiff has approached this Hon’ble High Court of Malgudi by virtue of Sec. 9 of the
Code of Civil Procedure, 1908 r/w the Bombay City Civil Court Act, 1948.

Sec. 9 of Code of Civil Procedure, 1908 is reproduced below for the perusal of this Hon’ble
Court:

Courts to try all civil suits unless barred.—The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.

The defendant most humbly does not submit to the jurisdiction of this Hon’ble Court due in
lieu of an arbitration agreement.

[i]
 INDEX OF AUTHORITIES

(A) PRIMARY SOURCES

BOOKS

1. Black’s law dictionary 788 (4th ed. 1968).

2. P.C. Markanda, Building & Engineering Contracts: Law & Practice 126 (3rd ed.,
2010).
3. T.R. Desai & R.K. Desai, Law Relating to Tenders & Government Contracts 253 (2nd
ed., 2009).

STATUTES

The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 7.
67. The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872, § 73.
68. The Indian Easements Act, 1882, No. 5, Acts of Parliament, 1882, § 52.

JOURNALS

1. Sarin, M.L, Contract Unconscionability in India, 14 Loyola of Los Angeles

International and Comparative Law Review (ILR), (1992)

(B) CASES

i.) SUPREME COURT

Ayyasamy v. A. Paramasivam, A.I.R. 2016 S.C. 4675 ………………………………….10

Booz-Allen & Hamilton Inc v. SBI Home Finance (2011) 5 S.C.C 532……………11
……………………………………………………………………21

[ii]
Ameet Lalchand Shah v. Rishabh Enterprises, 2018 Indlaw. S.C. 271……………….11
Arunima Baruah v. Union of India, (2007) 6 S.C.C. 120. ……………………… .23
B.K. Bhagat v. New Delhi Municipal Council, 2015 Indlaw. Del. 807; Jespar I. Slong v. State
of Meghalaya, ………………………………………………………………………21
Balchand v. Kaluram Gulabchand, A.I.R. 1958 M.P. 343………………………..11
Bhagwandas Fatechand Daswani v. H.P.A. International, A.I.R. 2000 S.C. 775……..23
Bhagwandas Shobhalal Jain v. State of M.P., A.I.R. 1966 M.P. 95…………………19
Bharat Aluminium Co. Ltd. v. Kaiser Aluminium Technical Services Ltd., (2012) (3) Arb.
L.R. 514 (S.C.). ……………………………………………………………………
D.K. Gupta v. Renu Munjal, (2017) S.C.C. Online Del. 12385.
D.S. Gupta Pvt. Contractors Ltd. v. Unison Hotels Ltd., (2002) 3 Arb.L.R. 36 (Del.).
Devender Singh v. State of U.P., AIR 1987 All. 306, 308.
Dhulipudi Namayya v. Union of India, A.I.R. 1958 A.P. 533
Dolphins Drilling Ltd. v. O.N.G.C., A.I.R. 2010 S.C. 1296.
Dr. Nagendra Rai v. Howrah Improvement Trust, 2015 (1) Cal.L.T. 629.
E.W.C.A. Civ. 361 (U.K.).
Executive Engineer Sardar v. Bhaven Construction, A.I.R. 2006 Guj. 74.
Exmar N.V. v. Union of India, 2006 (86) D.R.J. 610, ¶ 21.
Fertilizer Corp. of India v. Domestic Engg. Installation, A.I.R. 1970 All. 31.
Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. & Ors.,
1997(1) S.C.C. 738, ¶¶ 9-10;
Gajapathi Raju v. P.V.G. Raju, (2000) 4 S.C.C. 539
Gammon India Ltd. v. Union of India, 2003 (1) ARBLR 353 Delhi.
Henry Cunningham & Horatio Shephard, Srivastava’s Commentaries on Contract Act
241 (12 th ed., 2014).
Hind Motors (India) Ltd. v. Raj Kumar Arora & Anr., (2008) 2 P.L.R. 366.
Hindustan Petroleum Corpn. Ltd. v. M/S. Pinkcity Midway Petroleums, A.I.R. 2003 S.C.
2881; P. Anand
India Household & Healthcare Ltd. v. L.G. Household & Healthcare Ltd., A.I.R.
2007 S.C. 1376.
Jagdish Mandal v. State of Orissa, (2007) 14 S.C.C. 517.
Ltd, (2011) 5 S.C.C. 532.
Maharashtra State Electricity Board v. Sterilite Industries (India) & Anr., A.I.R. 2001
S.C. 2933.
[iii]
Man Industries (India) Ltd. v. Union of India & Anr., 2009 (162) D.L.T. 489.
Management of Vehicle Parking Spaces at Chandigarh International Airport, Airports
Authority of India
Master Marine Services (P) Ltd. v. Metcalfe & Hodg Kinson (P) Ltd., 2005 (6) S.C.C.
138, ¶ 11; Asia
Monarch Infrastructure Pvt. Ltd. v. Commr., Ulhasnagar Municipal Corpn., (2000) 5 S.C.C.
287.
Moot Proposition, ¶¶ 2-3.
Moses H. Cone Memorial Hospital v. Mercury Hospital Construction Corp., 460 U.S. 1
(1983).
Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors., A.I.R. 1979
S.C. 621.
Municipal Corp., Jabalpur v. Rajesh Construction Co., A.I.R. 2007 S.C. 2069.
N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 S.C.C. 115.
National Building Corp. v. State of Haryana, A.I.R. 2007 P&H 111.
National Highways Authority of India v. K.K. Sarin, 2009 (159) D.L.T. 314.
New India Assurance Co. Ltd. v. Central Bank of India, A.I.R. 1985 Cal. 76.
of M.K. Shah Engineers & Contractor Ltd v. State of M.P,
Patel Dadubhai Narsibhai v. Gujarat Electricity Board, (1990) 1 Guj. L.R. 673, 682-85.
Pawan Kumar Gupta v. Vinay Malani, 2014 (211) D.L.T. 542.
Pawan Kumar Gupta v. Vinay Malani, 2014 (211) D.L.T. 542.
Pravudayal Agarwala v. Ram Kumar Agarwala, A.I.R. 1956 Cal. 41, 45.
Purvankara Projects Ltd. v. Hotel Venus International, (2007) 10 S.C.C. 33.
R.R.B. Energy Ltd v. Vestas Wind Systems, 2015(219) D.L.T. 516.
Ram Khilona & Ors. v. Sardar & Ors., A.I.R. 2002 S.C. 2548, 2553.
Ranvijay Sahai v. Bala Prasad 1978 B.B. C.J. 70.
Reva Electric Car Company Pvt. Ltd. v. Green Mobil, (2012) 2 S.C.C. 93.
S.K. Jain v. State of Haryana, (2009) 4 S.C.C. 357.
Sasan Power Ltd. v. North American Coal Corporation India Pvt. Ltd., A.I.R. 2016 S.C.
3974.
Sh. Roshan Lal Gupta v. Sh. Parasram Holdings Pvt. Ltd., 2009 (157) D.L.T. 712.
Shivdas Loknath Singh v. Gayabai Shankar Surwase, 1993 Mah.L.J. 1623 (D.B.).
Siemons Public Communication Pvt. Ltd. v. Union of India, A.I.R. 2009 S.C. 1204.
State of Kerala v.. Zoom Developers Pvt. Ltd. & Ors., (2009) 2 S.C.A.L.E 358.
[iv]
State of Punjab v. Geeta Iron & Brass Works, A.I.R. 1978 S.C. 1608.
Sujay Enterprises, Bangalore v. Airport Authority of India, 2001 (5) Kar.L.J. 478, ¶ 21.
Sumikin Bussan (Hong Kong) v. Manharlal Trikamdas Mody & Ing., 2006 (4)
Bom.C.R. 131; Manoolal
T.R. Desai & R.K. Desai, Law Relating to Tenders & Government Contracts 253 (2
nd ed., 2009).
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 8.
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 7.
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 16(1)(a).
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 7.
The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872, § 73.
The Indian Easements Act, 1882, No. 5, Acts of Parliament, 1882, § 52.
Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 S.C.C. 243.
Union Carbide Corpn. v. Union of India, (1990) 3 S.C.C. 115.
Usae Equipment Pvt. Ltd. v. Krishna Shanker Tripathi, 2016 Indlaw. Del. 3904.
Wellesley Partners L.L.P. v. Withers L.L.P. [2015] E.W.C.A. Civ. 1146 (U.K.); Langford v.
Hebron [2001]
Yogendra N. Thakker v. Vinay Balse, 2018 Indlaw. Mum. 603.
FOREIGN CASES
Wellesley Partners L.L.P. v. Withers L.L.P. [2015] E.W.C.A. Civ. 1146 (U.K.); Langford v.
Hebron [2001]

STATEMENT OF FACTS

1. Jan 01, 2017: The Airport Authority of Malgudi (hereinafter known as “Airport
Authority”) issued a tender on January 01 2017, for a contract of managing public
parking space for vehicles commuting passengers the airport. It was indicated in the
tender documents that the size of the portion of land to be allotted to the successful
bidder was 5000 sq. meters. The terms of the tender further stated that the successful
bidder would derive revenue by collecting parking charges at the land allotted from the
various vehicles using the parking facility.
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2. May, 2017: M/s. Mercury Parking Inc. (“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 to be paid by Mercury to the Airport Authority on a monthly
basis. The tender was awarded to Mercury and a license agreement for a period of 3
(three) years was entered into between the parties in May 2017.
3. Jan, 2018: In January 2018, it came to the notice of Mercury that certain construction
work had started by the National Highway Authority (“NHA”) on a portion of the land
allotted to Mercury, the construction work having started in February, 2017. Mercury
filed a Right to Information (“RTI”) query through one of its authorised representatives
in order to obtain the details of the construction activity. Pursuant to the RTI Query,
Mercury was shocked to receive a response from the concerned authorities stating that
2000 sq. meters out of a total 5000 sq. metes allotted to the Mercury under the License
Agreement was being acquired by the NHA. It was also mentioned in the RTI response
that a No Objection Certificate had been granted by the Airport Authority to NHA in
2016 for the purpose of the aforesaid acquisition. This No objection certificate was
granted prior to the issuance of the tender by the Airport Authority.
4. March 05, 2018: Mercury 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 towards license fee from the
month of March 2018. The Authority issued letters to Mercury, demanding payments for
the months of March and April 2018 with respect to the license fee payable under the
license agreement.
5. May 12, 2018: Mercury invoked the arbitration agreement for resolution of the dispute
and requested the Airport Authority to appoint an arbitrator. The Airport Authority
replied stating that as per the terms of the arbitration agreement, all dues of the licensee
under the license agreement had to be deposited as a condition precedent to the
appointment of the arbitrator. Subsequently, Mercury issued a letter to the Airport
Authority stating that there was a material misrepresentation in the tender documents in
connection with the size of the project land to be allotted and that the license fee bid was
made on the basis that 5000 square meters of land would be utilised by the licensee for
the purpose of deriving revenue. However, the fact that 2000 square meters of the said
land were to be acquired by NHA was suppressed. It further reiterated its demand for

[vi]
 revising the license fee payable proportionately failing which it was stated that
appropriate steps will be taken by Mercury.
6. May, 2018- July, 2018: Mercury was disqualified in another tender issued by the Airport
Authority in the state of Arkham. The disqualification was due to the tender terms of the
project in Arkham, which stated that the tender participant would be disqualified if there
are any pending dues in any other project of the Airport Authority. Since Mercury had
pending dues in connection with the project awarded by the Airport Authority in 2017,
Mercury was disqualified for the subsequent project in the state of Arkham.
7. July 26, 2018: 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.

[vii]
 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?

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 SUMMARY OF ARGUMENTS

I. Whether the present dispute is arbitrable or whether it should be tried by the Civil
Court in a Civil Suit?
1. The objective of the 1996 Act was to limit the judicial interference in the arbitral
proceedings to the minimum and any pre arbitral proceedings act as injunction to
same.
2. The language in Sec 8 of the Act is peremptory in nature.
3. Any problems regarding construction of an arbitration agreement should be construed
in a way to uphold the arbitration agreement.
4. Allegations of fraud simpliciter do not render a dispute non-arbitrable.
5. A party against whom allegations of fraud are alleged selects the forum for
adjudication
6. Disputes pertaining to rights in personam are arbitrable

II. Whether the arbitration clause is onerous, and the condition precedent amounted to
an unfair and unreasonable condition for initiating arbitration?
1. Parties are free to agree upon procedure for appointing an arbitrator.
2. The allegations of biasness must be first raised before the arbitrator in accordance
with Secs. 12 and 13
3. Any issues arising from appointment can’t be challenged till the passing of an award.
4. Deposit of any sum before the appointment of the arbitrator serves the laudable object
that no party should file frivolous claim.
5. The authority calling for the tender is the best judge to prescribe the terms and
conditions of the tender.
6. The non-performance party cannot be permitted to plead invalidity of arbitration
7. A person who signs a document containing contractual terms is bound by them.
8. Plea regarding unequal bargaining power cannot be entertained in commercial
contract.

III. Whether Mercury is entitled to damages for loss of opportunity in the second
project as a result of the purported dues?

[ix]
 1. Vague suspicions of whimsical, capricious and unreasonable people should not be
made a standard to regulate any action.
2. The law requires men in their dealing to exercise proper vigilance and not to close
their eyes to the means of information.
3. Only naturally arising losses need to be compensated.
4. The loss should be “a real or actual damage, and not merely a probable or possible
one."
5. Any party comes to court for claiming damages in the court, such party itself should
come with clean hands
6. Any party coming to court for damages should come with clean hands.

IV. 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?

1. A tender is a commercial contract and the principles of equity and justice are not
applicable.
2. The court cannot amend, vary or alter the terms of the contract in the name of fairness
as the same is a prerogative of the Government
3. Rebidding ensures free play of market forces to ascertain the correct licence fees as it
involves seeking best reduced prices from all the techno-commercially qualified
bidders giving equal opportunity to all.
4. A power of judicial review is not available to rule in favour of private interest at the
cost of public interest or deciding contractual disputes.
5. The specific performance is barred if the party claiming at any stage was not ready
and willing to perform its part under the contract.
6. The willingness of the plaintiff cannot suffice the work undertaken if it benefits only
the performing party but must also fulfil the reciprocal obligations as contracted.
7. Non-payment of the monthly license fees by plaintiff amounts to rescission of
contract.

[x]
 ARGUMENTS ADVANCED

I. Whether the present dispute is arbitrable or whether it should be tried by the Civil
Court in a Civil Suit?

1. It is humbly submitted that the present matter is not triable by this Hon’ble Court as the
Arbitration & Conciliation Act, 1996 mandates that the present dispute be referred to
Arbitration [A]. Furthermore, the instant matter has no bar to arbitration as the same
pertains to a right in personam and does not involve any serious allegations of fraud [B].
A. The Arbitration & Conciliation Act, 1996 mandates that the present dispute be
referred to Arbitration
2. It is humbly contended that the objective of the 1996 Act was to limit the judicial
interference in the arbitral proceedings to the minimum.1 Furthermore, shutting out the
arbitration at the initial stage would destroy the very purpose for which the parties had
entered into arbitration. It has been held that any pre arbitral proceedings act as
injunction of the arbitration proceeding and is tantamount to negating the effect of the
statute considering the Section 5, 8 and 16 of 1996 Act.2
3. Further, The Hon’ble Supreme Court in a catena of judgements have reiterated that the
language in Sec 8 of Act3 is peremptory in nature and court has an obligation to refer the
parties to arbitration in terms of their arbitration agreement and nothing remains to be
decided in the original action after such an application is made except to refer the dispute
to an arbitrator.4 Moreover, the ambit of Arbitration Tribunal has been expanded by
giving them a power to grant specific performance of Contract which may arise during
the course of the case.5
4. Also, the Hon’ble Apex Court has adjudicated that in case of any problems arising from
the construction of an arbitration agreement, the arbitration clause has to be construed in
such a way so as to uphold the arbitration agreement.6 Arguendo, the acceptance of
tender which carries arbitration clause is sufficient to bind both the parties to arbitration.7

1
Bharat Aluminium Co. Ltd. v. Kaiser Aluminium Technical Services Ltd., (2012) (3) Arb. L.R. 514 (S.C.).
2
Sh. Roshan Lal Gupta v. Sh. Parasram Holdings Pvt. Ltd., 2009 (157) D.L.T. 712.
3
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 8.
4
Hindustan Petroleum Corpn. Ltd. v. M/S. Pinkcity Midway Petroleums, A.I.R. 2003 S.C. 2881; P. Anand
Gajapathi Raju v. P.V.G. Raju, (2000) 4 S.C.C. 539.
5
Hind Motors (India) Ltd. v. Raj Kumar Arora & Anr., (2008) 2 P.L.R. 366.
6
India Household & Healthcare Ltd. v. L.G. Household & Healthcare Ltd., A.I.R. 2007 S.C. 1376.
7
Fertilizer Corp. of India v. Domestic Engg. Installation, A.I.R. 1970 All. 31.

[1]
 Furthermore, it is a settled principle that terms of the tender has to be adhered to and any
attempt to circumvent the same is an arbitrary exercise of power. 8
5. Furthermore, in the instant case the arbitration agreement fulfils all the essentials of a
valid arbitration agreement9 and subsequent to the 2015 Amendment, S.8 mandates the
courts to refer the parties to arbitration where a “prima facie valid arbitration agreement”
exists. In conjunction with this, it is submitted that S.16 of the act 10 encompasses the
principle of Kompetenz Kompetenz and the Arbitration Tribunal has power to deal with
any objections with respect to the existence or validity of the arbitration agreement even
if it goes to the very root of its jurisdiction.11
6. The Defendant relies upon the recent ruling of the Apex Court as per which the scope of
enquiry under Sec. 8 is limited to the validity of the arbitration agreement/clause and the
court should not dwell into the invalidity of the whole agreement. 12 Arguendo, assuming
but not conceding to the fact that the license agreement is vitiated by fraud, Sec.
16(1)(a)13 which incorporates the doctrine of severability provides that the arbitration
agreement is enforceable even if the original contract is repudiated, terminated or
frustrated.14Furthermore, it is submitted that where an application under Sec. 8 is made
and one party prays for the case to be tried in a regular court, the court rejects such a
prayer15 and give an opportunity to arbitral tribunal.16
7. Thus, it is submitted before the Hon’ble Court that in light of the statutory provisions and
various rulings cited, the matter should be referred to arbitration pursuant to the
arbitration agreement.
B. There is no bar to arbitrability
8. At the outset, it is humbly submitted that the Hon’ble Supreme Court has time and again
held that allegations of fraud simpliciter does not render a dispute non-arbitrable.17 In a
very recent case, the Hon’ble Supreme Court has ruled that even if a FIR or a criminal

8
State of Kerala v.. Zoom Developers Pvt. Ltd. & Ors., (2009) 2 S.C.A.L.E 358.
9
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 7.
10
Id. § 16.
11
Id.
12
Sasan Power Ltd. v. North American Coal Corporation India Pvt. Ltd., A.I.R. 2016 S.C. 3974.
13
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 16(1)(a).
14
Reva Electric Car Company Pvt. Ltd. v. Green Mobil, (2012) 2 S.C.C. 93.
15
Pawan Kumar Gupta v. Vinay Malani, 2014 (211) D.L.T. 542.
16
State of Punjab v. Geeta Iron & Brass Works, A.I.R. 1978 S.C. 1608.
17
A. Ayyasamy v. A. Paramasivam, A.I.R. 2016 S.C. 4675.

[2]
 case is registered against a person who has alleged to have misrepresented a fact; the
same does not amount to a serious allegation of fraud.18
9. Reliance is placed on the decision of the Hon’ble Delhi High Court, fraud can be
classified as “serious fraud” if:
(a) the Court trying the matter itself to ensure a proper trial of the allegation,
(b) the findings of facts in respect thereof is likely to so adversely affect either or
both parties that they ought to have a right of appeal from the findings, or
(c) the allegations are of such a nature that, if found on, it is likely to affect
persons other than the parties to the dispute.19
In this respect it is contended that the present dispute is only concerned with the rights
and obligations of the plaintiff and the defendant arising out of the license agreement
and hence, no case of serious fraud is made out.20
10. In another case, the authorities have elucidated the term fraud and it has been observed
that:
wherever there are allegations of fraud levelled against a party, then it should be
at the option... of such a party against whom allegations of fraud are alleged that
he must be able to select the forum where he would like such allegations to be
decided meaning thereby whether he would like to continue with the proceedings
so as to contest the allegations of fraud levelled against him in an arbitral
tribunal or before ordinary civil forum and this option is to be exercised by such
a party and not by a party which is levelling the allegations.21
Thus, as per this case law, the defendant is at the liberty to choose the forum where it
would like to defend the allegations of fraud and thus, the present suit of the plaintiff
should not be entertained.
11. It is a settled law that all disputes pertaining to rights in personam are arbitrable22 and
undisputedly the license agreement confers a right in personam 23 and thus the present
dispute becomes arbitrable.24 Moreover, the Hon’ble Bombay High Court has recently

18
Ameet Lalchand Shah v. Rishabh Enterprises, 2018 Indlaw. S.C. 271.
19
Pawan Kumar Gupta v. Vinay Malani, 2014 (211) D.L.T. 542.
20
Moot Proposition, ¶¶ 2-3.
21
R.R.B. Energy Ltd v. Vestas Wind Systems, 2015(219) D.L.T. 516.
22
A. Ayyasamy v. A. Paramasivam, A.I.R. 2016 S.C. 4675; Booz-Allen & Hamilton Inc v. SBI Home Finance
Ltd, (2011) 5 S.C.C. 532.
23
Sumikin Bussan (Hong Kong) v. Manharlal Trikamdas Mody & Ing., 2006 (4) Bom.C.R. 131; Manoolal
Balchand v. Kaluram Gulabchand, A.I.R. 1958 M.P. 343.
24
The Indian Easements Act, 1882, No. 5, Acts of Parliament, 1882, § 52.

[3]
 held that subordinate disputes pertaining to right in personam as arising from a right to
rem have always been held to be arbitrable.25
12. It is contended that there is no absolute bar in arbitrability of license disputes and the
Supreme Court allowed for arbitration of such disputes provided that no undue burden is
caused on any party.26 In this respect it is submitted that the plaintiff is a registered
company involved in the business of operating various parking lots in the country and is
managing and collecting the huge revenue from the impugned land 27 and cannot
possibly suffer any financial constraints to defend arbitration as agreed to. Furthermore,
it is humbly submitted that the present contract is only a permissive right to use land for
managing public parking space for vehicles commuting passengers to the airport and the
legal ownership of the land rests with the defendant.
13. Thus, it is submitted that there is no bar to arbitrability of present dispute and the same
should be referred to arbitration as per Sec. 8 of the Arbitration and Conciliation Act,
1996.

25
Yogendra N. Thakker v. Vinay Balse, 2018 Indlaw. Mum. 603.
26
Dolphins Drilling Ltd. v. O.N.G.C., A.I.R. 2010 S.C. 1296.
27
Moot Proposition, ¶ 3.

[4]
II. Whether the arbitration clause is onerous, and the condition precedent amounted to
an unfair and unreasonable condition for initiating arbitration?

1. It is submitted that the instant arbitration clause is not unreasonable or onerous as

appointment of a sole of arbitrator by one party is permitted as per law [A] and the
deposit of pending dues as a precondition to initiation of arbitration is valid [B].
Furthermore, the arbitration clause is binding on the parties and the same cannot be
contested before this Hon’ble Court [C].

A. The Appointment procedure is valid

2. It has been held by a three judge bench of the Hon’ble Supreme Court in case of Konkon
Railways Corp. Ltd. v. Mehul Construction Pvt Ltd,28 that Sec. 11 of the Act29 provides
that the parties are free to agree upon procedure for appointing an arbitrator and there is
nothing that contemplates a response from other party or decision by any judicial
authority. Thus, in the present case since both the parties expressly agreed upon the
procedure of appointment of arbitrator,30 it is obligatory for this Hon’ble Court to honour
the said procedure of appointment and enforce the same.
3. Reliance is placed on the judgement of Hon’ble Delhi High Court where it has been held
that in case one of the parties has allegations of biasness; the same must be first raised
before the arbitrator in accordance with Secs. 1231 and 1332 and if any such allegation
still persists, then the party may approach the court immediately under Sec. 14 33 or after
passing of an award under Sec. 34.34 Thus, relying on this ruling it is submitted that the
parties must be referred to arbitration as even in the unlikely scenario of any possible
bias as alleged, the plaintiff would still have the option to approach this Hon’ble Court.
4. It has been held by the Hon’ble Delhi High Court that, “if at the time of entering into the
contract, the parties agree that one of them would have the right to appoint a sole
arbitrator, it would not be open for the other party to contest the same at a later stage.”35
Therefore, the plaintiff should not be allowed to contest the validity of the same at this
stage.

28
A.I.R. 2000 S.C. 2821.
29
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 11.
30
Moot Proposition, ¶ 8.
31
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 12.
32
Id. § 13.
33
Id. § 14.
34
National Highways Authority of India v. K.K. Sarin, 2009 (159) D.L.T. 314.
35
Usae Equipment Pvt. Ltd. v. Krishna Shanker Tripathi, 2016 Indlaw. Del. 3904.

[5]
 5. It has been again unequivocally reiterated by the Hon’ble Gujarat High Court while
rejecting the plea of challenging the sole appointment of arbitrator and that in case of any
issues arising from such appointment, the parties have to wait till the passing of an award
and challenge the same under Sec. 34.36 Further, it is accepted principle that an
arbitration clause must be interpreted broadly, and all doubts as to whether a dispute is
encompassed by a particular clause must be resolved in favor of arbitration, even where
the problem is the construction of the contract language itself.37 In light of these rulings,
the arbitration clause is valid and must be upheld.
6. Also, where the agreement provided that only one party would have the right to refer the
matter for arbitration, it was held that such an arbitration agreement was valid and
reference by a privileged party was good in law. The unilateral right of reference flows
from the agreed terms of the contract and therefore it cannot be said that there was lack
of mutuality. 38
Again, the Hon’ble Delhi High Court has held that a clause simply
empowering one party to appoint an arbitrator is perfectly valid and there is no bar
regarding the same in the Arbitration Act.39
7. Thus , the present clause has no ounce of biasness and must be honoured by the court.
B. Deposit of Pending Sums as a Precondition is Valid
8. It is humbly submitted that the deposit of any sum before the appointment of the
arbitrator is not unreasonable as it serves the laudable object that no party should file
frivolous claim.40 Also as per a ruling of the Hon’ble Apex Court, the appointment of an
arbitrator without deposit of the sum mentioned in the agreement is invalid in as much as
it is contrary to the stipulations of the original agreement and thus such appointment
must not be complied with. 41 In the instant case, the precondition of depositing dues has
been made keeping in mind to minimize any waggish or facetious claims and is viable in
terms of neutrality and fairness.
9. It is contended that it is a customary practice in the contracts of airport authorities across
the country that while issuing tenders for parking lots to make such a precondition and
the intention is to secure the payment of all the justified dues from the parties having

36
Executive Engineer Sardar v. Bhaven Construction, A.I.R. 2006 Guj. 74.
37
Moses H. Cone Memorial Hospital v. Mercury Hospital Construction Corp., 460 U.S. 1 (1983).
38
New India Assurance Co. Ltd. v. Central Bank of India, A.I.R. 1985 Cal. 76.
39
D.K. Gupta v. Renu Munjal, (2017) S.C.C. Online Del. 12385.
40
National Building Corp. v. State of Haryana, A.I.R. 2007 P&H 111.
41
Municipal Corp., Jabalpur v. Rajesh Construction Co., A.I.R. 2007 S.C. 2069.

[6]
 intention to avoid their respective liabilities and dues.42 It is submitted that the plaintiff
has been managing parking lots at various other airports across the country43 and
impliedly they are fully aware of their obligations and consequences arising from the
present arbitration clause and they should not be allowed to evade the same.
10. It has been affirmed by the apex court that the terms and conditions in the tender if
prescribed by the Government are made bearing in mind the nature of contract and in
such matters the authority calling for the tender is the best judge to prescribe the terms
and conditions of the tender.44 It is submitted that the Airport Authorities must be given a
free hand to decide any contractual terms as they are the rightful party to determine the
best suited interest of all the concerned parties.
11. It is humbly submitted that it has been held by the Hon’ble Delhi High Court that if one
party fails to comply with the procedure laid down in the arbitration agreement, it cannot
be termed as a failure of the persona designata to appoint an arbitrator.45 Thus non
payment of dues is a considerable failure on part of plaintiff46 and any arbitration
proceeding can’t be initiated until adhered to.
12. It is submitted that the pre condition of submitting all the righteous dues is valid in law
and the plaintiff should be ordered to fulfill the same.
C. The Arbitration Clause is not onerous and is binding upon the parties
13. It has been held that a person who signs a document containing contractual terms is
normally bound by them even though he is ignorant of their precise legal effect. 47 Object
of every contract is to be performed and not that it should be disputed. Furthermore, in
the present case, all essentials of a valid arbitration agreement as per Sec. 7 are fulfilled
and thus the contract is valid and enforceable.48
14. In the case of M.K. Shah Engineers & Contractor Ltd v. State of M.P,49 it was held that
where contract provided pre-requisite obligation, the non-performance party cannot be
permitted to plead invalidity of arbitration or non-maintainability of arbitration.
Applying the same principle, the plaintiff should not be allowed to plead invalidity of the

42
Management of Vehicle Parking Spaces at Chandigarh International Airport, Airports Authority of India
(Sept. 5, 2018, 3:30 P.M.), https://www.aai.aero/en/node/78272.
43
Moot Proposition, ¶ 3.
44
Monarch Infrastructure Pvt. Ltd. v. Commr., Ulhasnagar Municipal Corpn., (2000) 5 S.C.C. 287.
45
D.S. Gupta Pvt. Contractors Ltd. v. Unison Hotels Ltd., (2002) 3 Arb.L.R. 36 (Del.).
46
Moot Proposition, ¶ 7.
47
Ranvijay Sahai v. Bala Prasad 1978 B.B. C.J. 70.
48
The Arbitration & Conciliation Act, 1996, No. 26, Acts of Parliament, 1996, § 7.
49
A.I.R. 1999 S.C. 950.

[7]
 arbitration clause and instead they are bound to perform their obligations as enshrined
under the contract.
15. Plea regarding unequal bargaining power cannot be entertained in case the parties had
entered into commercial contract since parties had chosen to enter into contract with eyes
50
wide open and cannot later say it to be one-sided contract. Arguendo, it is reverently
put forth that that mere existence of relationship between parties whereby one person is
in a dominant position, is not a sufficient ground to prove undue influence and would not
make the contract unconscionable. The burden of proving such relationship and use of
actual dominant position to obtain unfair advantage is on the plaintiff.51
16. It is submitted that the plaintiffs itself had signed and invoked the arbitration agreement
and praying to reduce the license fee proportionately. 52 However, filing of present suit is
a dilatory tactic that the plaintiff is resorting to wriggle out of their obligations of
depositing the legitimate dues as envisaged in the license agreement.
17. Thus, it is submitted that the arbitration clause is binding upon both the parties and the
plaintiff should not be permitted to contest the same as the same would only result in
inordinate delay in resolution of the present dispute.

50
S.K. Jain v. State of Haryana, (2009) 4 S.C.C. 357.
51
Shivdas Loknath Singh v. Gayabai Shankar Surwase, 1993 Mah.L.J. 1623 (D.B.).
52
Moot Proposition, ¶ 9.

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III. Whether Mercury is entitled to damages for loss of opportunity in the second
project as a result of the purported dues?

1. It is most humbly submitted that there has been no fraud as mere omission to disclose
NOC cannot ipso facto constitute fraud [A]. Alternatively, damages on account of loss of
opportunity cannot be claimed as the said damages are too remote [B].
A. Omission to Disclose NOC is not Fraud
2. It is most humbly submitted that mere omission is not fraud.53 Moreover, it is submitted
that one of the ingredients to constitute fraud is intention of the party committing fraud to
deceive the other party.
3. It has been further held that vague suspicions of whimsical, capricious and unreasonable
people should not be made a standard to regulate any action. It might be a different
matter if suspicion rested on reasonable grounds was reasonably generated but certainly
mere flimsy, elusive, morbid suspicions should not be permitted to form a ground of
decision.54 In the instant case, fairness can be judged from the very ground that whole
process has been made transparent and the rights of all the affected parties if any are kept
in mind .
4. Furthermore, it is submitted that in any case such omission cannot be considered as fraud
as such mistake if any could have been discovered by the plaintiff by exercising ordinary
diligence and it cannot claim any cost after a long period of time. The law requires men
in their dealing to exercise proper vigilance and attention to particulars which may be
supposed to be within the reach of observation and judgement; and not to close their eyes
to the means of information which are accessible to them.55 In this respect, it is submitted
that actual construction began in February 2017,56 and the plaintiff had sufficient
opportunity to not only discover this fact prior to conclusion of the contract but also
subsequent to conclusion of contract. Moreover, the payment of license fees in
furtherance of contract itself amounts to knowledge on behalf of plaintiff and therefore, it
has condoned the actions of the defendant and the plaintiff should not be allowed to raise
any claims on account of non-disclosure.
5. Arguendo, it is submitted that estoppel cannot operate against the respondents. The
plaintiff was rightfully disqualified from participating in the tender by the respondents,

53
Henry Cunningham & Horatio Shephard, Srivastava’s Commentaries on Contract Act 241 (12th ed., 2014).
54
Union Carbide Corpn. v. Union of India, (1990) 3 S.C.C. 115.
55
T.R. Desai & R.K. Desai, Law Relating to Tenders & Government Contracts 253 (2nd ed., 2009).
56
Clarifications, Q. 16.

[9]
 because they had pending dues which they hadn’t yet paid in spite of various notices
issued by the defendant regarding such dues.57 Just in case the tender would have been
awarded to the plaintiff, they may have defaulted in the payment of the dues again and it
would have hampered the chance of other potential bidders. Again, it has been held that
"the courts exclude the operation of the doctrine of estoppel, when it is found that the
authority against whom estoppel is pleaded has owed a duty to the public against whom
the estoppel cannot fairly operate."58 In this respect, it is submitted that the defendant
owed a duty to perform a public utility service59 and therefore, it cannot be bound by
estoppel.
6. Thus, there was no fraud in the instant case.
B. Plaintiff is not entitled to any Damages as the said damages are too remote
7. It is humbly submitted before this Hon’ble Court that Mercury is not entitled to damages
for the loss of opportunity in the second project in the state of Arkham as a result of the
purported dues.
8. The Indian Contract Act,60 specifically provides that only those losses need to be
compensated that “arose naturally” and a party is liable to make good any loss which has
been actually suffered. Moreover, it is a settled principle that when the claim for
damages appears to be remote, the test is whether damage was such as must have been
for contemplation of the parties as being a possible result of the breach. 61 In this respect,
it is humbly submitted that it cannot be said with absolute certainty that the plaintiff
would have got the tender contract and therefore, no actual loss has been suffered by the
plaintiff which clearly disentitles him from succeeding in any claim for damages.
9. Again, it has been held that even where the disputes pertaining to any outstanding
liabilities are genuine, the tender guidelines and conditions must make an express
reference to the rights of such parties to participate in other tenders.62 Therefore, even if
it is assumed that any dispute pertaining to payment of license fee was legitimate for the
purpose of adjudication, this does not give the plaintiff any inherent right to participate in
the second tender and the defendant was completely right in adopting a course of action
which seemed to be most suitable in light of the facts and circumstances prevailing at the
time.
57
Moot Proposition, ¶ 7.
58
Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors., A.I.R. 1979 S.C. 621.
59
Clarifications, Q.14.
60
The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872, § 73.
61
Devender Singh v. State of U.P., AIR 1987 All. 306, 308.
62
Sujay Enterprises, Bangalore v. Airport Authority of India, 2001 (5) Kar.L.J. 478, ¶ 21.

[10]
 10. The Apex court has laid down in a case63 that where loss in terms of money can be
determined, party claiming compensation must prove loss suffered by it. In the instant
case, the plaintiff has failed to prove that they had suffered any loss. Therefore , the
plaintiff has been unable to attract Section 73 and is not entitled to the claim for
damages.
11. It has been held in a case64 that it will not be sufficient if the loss be merely a remote
consequence or an accidental mischief, for in such a case the maxim "cause proxima non
remota, spectatur" will be attracted. All that is required to be found is that the loss was "
a real or actual damage, and not merely a probable or possible one."
12. The plaintiff has no right to claim consequential damages since consequential damages
can only be claimed by the Non-Defaulting Party in case the special circumstances
resulting into the consequential damage were already brought into the Defaulting Party's
knowledge at the time of executing the contract. It is expected out of a reasonable
person to understand and foresee the damage which may be suffered by the Non-
Defaulting Party and resulting from the breach by the Defaulting Party in the "ordinary
course". However, in case of existence of "special circumstances", which are outside the
purview of the "ordinary course" what is of utmost importance, so as to be able to claim
the consequential damages, is that the Defaulting Party should be aware of the said
"special circumstances" which would result into consequential losses for the Non-
Defaulting Party, at the time of executing the contract.
13. Further, grant of damages to the plaintiff for the loss of opportunity in the second project
in the state of Arkham would tantamount to giving a benefit to the plaintiff for its own
lapses.
14. It is humbly submitted that it is an established law that when any party comes to court for
claiming damages in the court, such party itself should come with clean hands and
should have no neglect or misconduct on its part.65
15. The reasonable conduct expected of a party who has agreed to abide by the contract,
would have been to pay under protest the amount of the license fee due to the Airport
Authority. He cannot sit tight over his assumed just and legal stand that first of all

63
Maharashtra State Electricity Board v. Sterilite Industries (India) & Anr., A.I.R. 2001 S.C. 2933.
64
Pravudayal Agarwala v. Ram Kumar Agarwala, A.I.R. 1956 Cal. 41, 45.
65
Bhagwandas Shobhalal Jain v. State of M.P., A.I.R. 1966 M.P. 95.

[11]
 defendant should remedy the wrong caused and only then shall he pay the dues of the
license fee.66
16. In the instant case, the plaintiff has not paid any sum towards payment of license fee for
the months of March and April. Now, as per the case of plaintiff, it is claiming a
proportionate reduction in license fee for 3000 sq. mts. of land. Therefore, irrespective of
the fact whether such proportionate fee reduction is granted or not, the plaintiff is liable
to pay the license fee for at least the undisputed 3000 sq. mts. of land under all
circumstances but the plaintiff has not deposited even that sum also and therefore the
actions of the defendant were wholly justified in disqualifying the plaintiff from
participating in the tender for the second project.
17. Thus, the application of the Loss of Chance doctrine has to be resisted on the basis of
consistency of legal principle and logic underpinned by a public policy argument of not
wishing to open "the floodgates of litigation". Because granting damages for all
speculative transactions would open a Pandora box ,thereby creating a situation where it
will be very difficult for the court to assess the quantum of damages.

66
Patel Dadubhai Narsibhai v. Gujarat Electricity Board, (1990) 1 Guj. L.R. 673, 682-85.

[12]
IV. 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?

1. It is humbly submitted that any reduction in license fee can take place only by virtue of
rebidding as there is no scope of judicial review in the present case [A] and rebidding is
the best course of action [B]. Alternatively, the plaintiff cannot claim specific
performance of the contract [C].

A. There is no Scope of Judicial Review in the Present Case

2. It has been held that a tender is a commercial contract and therefore, in such cases the
principles of equity and justice should remain at a distance.67 It is well established that
the quantum of the licence fee to be charged by the respondent for use of its premises is a
matter of commercial perception and courts would normally not interfere in the
commercial discretion exercised by the State. 68
3. The terms of the invitation to tender cannot be open to judicial scrutiny because the same
is in the realm of contract. A fair play in the joints is a necessary concomitant for an
administrative body functioning in an administrative sphere or quasi-administrative
69
sphere. It is most respectfully submitted that court cannot be presumed to have the
requisite expertise to correct the administrative decision & substituting its own decision,
& without the necessary expertise may itself prove to be fallible for the interested parties.
4. It is further submitted that the Hon’ble Apex Court has held that the court cannot amend,
vary or alter the terms of the contract in the name of fairness as the same is a prerogative
of the Government.70 Also, it has been held that in case there is no arbitrariness or
unreasonableness in the procedural aspect of bidding, the court cannot alter the terms of
the tender.71 Relying on this ruling, it is submitted that since there has been no
procedural defect in the process of bidding, the court should refrain from interfering in
any such act.

67
Siemons Public Communication Pvt. Ltd. v. Union of India, A.I.R. 2009 S.C. 1204.
68
B.K. Bhagat v. New Delhi Municipal Council, 2015 Indlaw. Del. 807; Jespar I. Slong v. State of Meghalaya,
(2004) 11 S.C.C. 485.
69
All L.P.G. Dealers cum Transporters Association & Ors. v. Union of India & Ors., 2014 Indlaw. J.K. 54;
Wellesley Partners L.L.P. v. Withers L.L.P. [2015] E.W.C.A. Civ. 1146 (U.K.); Langford v. Hebron [2001]
E.W.C.A. Civ. 361 (U.K.).
70
Purvankara Projects Ltd. v. Hotel Venus International, (2007) 10 S.C.C. 33.
71
Gammon India Ltd. v. Union of India, 2003 (1) ARBLR 353 Delhi.

[13]
 5. Again, it has been held that where a party refuses to carry out the works contract unless
the other party agrees to certain new conditions, he commits a breach of contract. 72 In
conjunction with this, it is contended that the plaintiff was wholly unjustified in refusing
to pay the license fee from the month of March till date and therefore, it is the plaintiff
who is at fault in the present case & is liable to revert back any benefits received till date.
B. Rebidding is the Best Course of Action
6. It is humbly submitted that for the furtherance of public interest along with contract,
rebidding is the efficacious remedy as it would ensure free and fair play of market forces
to analyse the correct amount of licence fees for the impugned land comprising of
efficient expertise estimate, knowledge of bidders. Therefore, the respondent has taken
into account the practical considerations as well as public interest and the action is
neither arbitrary nor perverse nor lacking in rationality.73 The courts have specifically
held that if a decision to go for re bidding is actuated on account of desire to get the best
price or the best quotation, it can be reasoned to promote equality and fairness.74
7. It has been further held by the Hon’ble Supreme Court that courts will not invoke their
power of judicial review to rule in favour of private interest at the cost of public interest
or deciding contractual disputes. The only test is whether any decision of such authority
has favoured some other party or has been discriminatory. 75 Therefore, it is submitted
that the facts of the instant case do not point to any kind of favouritism or bias and hence,
this Hon’ble Court should reject the prayer of the plaintiff and allow the defendant to
conduct rebidding which formulates the benchmark for fairness and neutrality.
8. Thus, it is submitted that rebidding is the appropriate action to be taken in the present
case and the same should be upheld as it is an administrative action which pertains to a
commercial contract and therefore, lies outside the scope and purview of judicial review.
9. It is humbly submitted that any material alteration which varies the rights, liabilities or
legal position as ascertained by deed in its original state or changes which go to the root
of agreement76 or reduces the certainty of provision which was originally unascertained,
or may prejudice the party bound by deed as originally executed is considered as

72
Dhulipudi Namayya v. Union of India, A.I.R. 1958 A.P. 533.
73
Man Industries (India) Ltd. v. Union of India & Anr., 2009 (162) D.L.T. 489.
74
Master Marine Services (P) Ltd. v. Metcalfe & Hodg Kinson (P) Ltd., 2005 (6) S.C.C. 138, ¶ 11; Asia
Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. & Ors., 1997(1) S.C.C. 738, ¶¶ 9-10;
Exmar N.V. v. Union of India, 2006 (86) D.R.J. 610, ¶ 21.
75
Jagdish Mandal v. State of Orissa, (2007) 14 S.C.C. 517.
76
Andheri Bridge View Co-op Housing Society Ltd. v. Krishnakant Anandrao Deo, A.I.R. 1991 Bom. 129.

[14]
 novation, the effect of making such novation without consent of party bounds exactly the
same as of cancelling the deed.77
C. Specific Performance Cannot be Claimed
11. It is submitted that the Act,78 bars the specific performance if the party claiming at any
stage was not ready and willing to perform its part under the contract and it has been held
that to ascertain the same the court has to take into account the consideration to be paid
and the conduct of the plaintiff prior to and subsequent to filing of the suit.79 Again it has
been held that in a suit for specific performance, the plaintiff has to come to court with
clean hands and without any falsehood or mendacity.80
12. In this respect, it is submitted that in all scenarios the plaintiff has malafidely abstained
itself to part with the requisite payments of the license fees which they were liable to
pay. Again, it has been observed that where the party claiming specific performance
never came forward to pay balance consideration, it cannot be said that such party was
ready and willing to perform its contractual obligations.81 Therefore, non payment of any
sum as due from the month of March till date is proof that they were never ready and
willing to perform their part of the obligation. Also, the fact that the plaintiff was and is
ready and willing to perform his part of the obligation has to be seen from entire
attending circumstances and bare averment is not sufficient to establish the same.82
13. It is humbly submitted that the willingness of the plaintiff cannot suffice if the work
undertaken benefits only the performing party but must also be ready to fulfil the
accompanying reciprocal obligations as contracted. However, in the instant case, non
deposit of any license fee till date in spite of various notices and the fact that the plaintiff
is earning revenue clearly shows the lack of willingness to perform the part of contract.
14. It is further submitted that Sec. 14(2) of the Act creates a bar on filing of a suit with
respect to which an arbitration agreement exists. Furthermore, non-payment of the
monthly license fees from March till date amounts to rescission of contract by the
plaintiff itself and Sec. 12(3) mandates the existence of a legally enforceable contract and
if no such contract exists, specific performance cannot be granted.83

77
Ram Khilona & Ors. v. Sardar & Ors., A.I.R. 2002 S.C. 2548, 2553.
78
The Specific Relief Act, 1963, No. 47, Acts of Parliament, 1963, § 16(2) [hereinafter ‘the Act’].
79
N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 S.C.C. 115.
80
Arunima Baruah v. Union of India, (2007) 6 S.C.C. 120.
81
Dr. Nagendra Rai v. Howrah Improvement Trust, 2015 (1) Cal.L.T. 629.
82
Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 S.C.C. 243.
83
Bhagwandas Fatechand Daswani v. H.P.A. International, A.I.R. 2000 S.C. 775.

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
defendant humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1) That, the arbitration clause is valid.

2) That, the present matter be referred to an arbitral tribunal.
3) Alternatively, that the plaintiff is not entitled to damages for loss of opportunity in the
second project.
4) That any reduction in the license fee could only take place by way of rebidding.

And pass any order that this Hon’ble Court may deem fit in the interest of justice, equity, and
good conscience.

Sd/-

(Counsel for defendant)

[1]