TEAM CODE –01

XIV LC-1 ALL DELHI (NCR) MOOT COURT

COMPETITION, 2018

Before

THE HONOURABLE SUPREME COURT OF INDESH

Special Leave Petition

U/A 136

OF

THE CONSTITUTION OF INDESH

GOVERNMENT OF THE NICELAND

(PETITIONER)

V.

MR. ROBERT D’SOUZA

(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE SUPREME COURT

1
 Table of Contents

SL. No. DELINEATIONS PAGE

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 3

3. STATEMENT OF JURISDICTION 7

4. STATEMENT OF FACTS 8

5. STATEMENT OF ISSUES 10

6. SUMMARY OF ARGUMENTS 11

7. ARGUMENTS ADVANCED 12

8. PRAYER 26

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 II. LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

& And
AIR All India Records
Anr. Another
Corp. Corporation
ER England Records
Hon’ble Honourable
ICJ International Court of Justice
ILR International Law Reports
MP Madhya Pradesh
Ors Others
R. Rex or Regina
RBI Reserve Bank of India
SCC Supreme Court Cases
SCR Supreme Court Reports
UNODC United Nations Office of Drugs and Crime
v. Versus

INDEX OF AUTHORITIES

sl. no. List of Judicial Precedents

1. A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207.
2. A.K. Singhania v. Gujarat State Fertilizer Company Ltd 2013(12) SCALE 673
3. Abu Eain v. Wilkes (1981) ILR 79 p. 439
4. Adams v Cape Industries 1990 Ch. 433
5. Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207
6. Ahmed Hussein Mustafa Kamil Agiza v Sweden CAT/C/34/D/233/2003 (24 May 2005)
7. Al-Moayad v Germany (dec) App no 35865/03 (ECtHR, 20 February 2007)
8. Ameeroonissa Begum v. Mehboob Begum, (1953) SCR 404 (414)
9. Anr. Malwa Cotton and Spinning Mills Ltd. v. Virsa Singh Sidhu and ors(2008) 17 SCC 147
10. Artukovic case, ILR 21 (1954) 66
11. Ashoka Smokeless Coal India (P.) Ltd. v. Union of India, (2007) 2 SCC 640, 697 (para 161)
12. Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34
13. Baader- meinhof group terrorist Case 1977, ILR, 74 p 493
14. Babu Singh v. State of Punjab, (1964) 1 Cri LJ 566
15. Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877
16. Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
17. Beckett Investment Management Group v Hall 2009 1 A.C. 1391
18. Caterpillar Financial Services (UK) Limited v Saenz Corp Limited, Mr Karavias, Egerton Corp.
2007 I.C.R. 1539 (A.C)
19. Chandler v. United States, (1948) 171 F (2 nd) 921.

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20. Cheng v Governor Pentonville prison [1973] AC 931
21. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)
22. Commr. S.T. v. Radhakrishnan, (1979) 2 SCC 249 (para 14-15)
23. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579
24. Delhi Development Authority v Skipper Construction Company, 1996 AIR 2005, 1996 SCC (4)
622
25. Dharam Dutt v. Union of India, (2004) 1 SCC 712, 748 (Para 60)
26. Doe v. Sparks, 73 F. Supp. 227
27. Einhorn v France (dec) App no 71555/01 (ECtHR, 16 October 2001)
28. Escobedo v. United States (1980) ILR 79 p. 430
29. Escorts Limited and Others, 1986 AIR 1370, 1985 SCR Supl. (3) 909
30. Ex parte Castioni (1891) 1 QB 149
31. Extradition of member of Algerian Irregular Army Case (1961), ILR, 32 pp294297
32. Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618
33. France v. Turkey (The S.S. Lotus Case), 1927 PCIJ, [(Ser. A)]
34. G. Krishna Goud & J. Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC 157.
35. GA Res 36/171 (1981)
36. Gallagher v Germania Brewing Co, 53 Minn 214: 54 NW 1115 (1893), per ITCHEL LJ.
37. Garcia-Guillern v United States (1971), ILR, 51, p270
38. Gilford Motors V. Horne(1933) Ch 935.
39. Hansraj H. Jain v. State of Maharashra, (1993) 3 SCC 634
40. Indra Sawhney v. Union of India, AIR 1993 SC 477
41. J v The state [1974] NJ 97
42. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968)
43. Jimenez v. Aristeguieta 919620 ILR 33 p. 353
44. Jones v Lipman (1962) 1 WLR 832
45. K. Nagaraj v. State of Andhra Pradesh, AIR 1985 SC 551
46. K.K.Ahuja Vs. V.K.Vora and another, (2009) 10 SCC 48
47. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605
48. K.T.M.S Abdul v. Union of India, AIR (1977) Mad. 386
49. Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 (Para 31)
50. Keane v Governor of Brixton prison [1972] AC 204
51. Keevan v. Smith, 100 F.3d 644
52. Keshavananda Bharti Sripadagalvaru v. State of Kerala, AIR (1973) SC 1461
53. Klinger v. Dept. of Corrections, 31 F.3d 727
54. M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260
55. Mahesh Chandra v. Regional Manager, UP Financial Corp., AIR 1993 SC 935
56. Maneka Gandhi v. Union of India, AIR 1978 SC 597
57. Mannalal Chamaria v. State of West Bengal (2014) 4 SCALE 55.
58. McCray v. Bennett, 467 F. Supp. 187
59. McGlinchey v wren (1982), ILR, 79, p 49
60. Mohammed Alzery v Sweden CCPR/C/88/D/1416/2005 (10 November 2006)
61. Mukesh Hans & Anr. Vs. Smt. Uma Bhasin & Ors, RFA 14/2010 and CM No. 495/2010, Decided
On: 16.08.2010.
62. Muminov v Russia App no 42502/06 (ECtHR, 11 December 2008)
63. N. Rangachari v. Bharat Sanchar Nigam Ltd.(2007) 5 SCC 108
64. Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1 (77)
65. New Horizons Ltd. v. Union of India, (1995) SCC 478
66. Northern India Caterers v. State of Punjab, AIR 1967SC 1581
67. P.N.B Finance Ltd. v Shri Sital Prasad Jain (1983) comp. cas. 66

4
68. Paresh P. Rajda v. State of Maharashtra (2008) 7 SCC 442
69. People Union of Civil Liberties v. Union of India, (2005) 2 SCC 436, 477 (Para 16, State
accountability)
70. Pitts v. Thornburgh, 866 F.2d 1450
71. Quinn v Robinson(1986), ILR. 79, p 490
72. R v Bow St Magistrate, Ex Parte Pinochet (No 3)
73. R v Governor Of Brixton Prison, ex parte Kotrinis (1971) AC 250, 278, 280
74. R v Governor of Pentonville prison, ex parte Budlong (1980) 1 All ER 701
75. R v Governor of Pentonville prison, ex parte Teja (1971) 2 QB 274, 288-9
76. R v. Governor of Brixton Prison, ex parte Kotronis [1971] AC 250, 278, 280
77. Rallis India Limited v. Poduru Vidya Bhushan and ors (2011) 13 SCC 88
78. Ram Prasad Sahi v. State of Bihar, AIR 1953 SC 215
79. Ramkrishna Dalmia v. Tendolkar Justice S.R., 1959 SCR 279
80. Ramos v. Diaz (1959) ILR 28 351
81. Ramzy v the Netherlands (dec) App no 25424/05 (ECtHR, 27 May 2008)
82. Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra, (2005) 5 SCC 294
83. Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339
84. Re Ezeta (1894) 62 F 972
85. Re ezeta (1894), 62 F 972, 978
86. Re Ficorilli, ILR, 18 (1951), No 110
87. Re Gonzalez (1963), ILR, 34, P139
88. ReGovernment of India v Mubarak Ali Ahmed, [1952] 1 All ER 1060
89. Re Meunier (1894) 2 QB 415
90. Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1
91. Renu v. District and Session Judge, Tis Hazari, Civil Appeal No. 979 of 2014
92. Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd. (1996) 1 SCC 642
93. Russell v Fanning(1987), ILR, 79, p 134
94. Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008)
95. Salomon v Salomon, [1897] AC 22
96. Santiago v. Miles, 774 F. Supp. 775.
97. Schtraks v Government of Israel (1962) 3 All ER 529
98. Shamayev and others v Georgia and Russia App no 36378/02 (ECtHR, 12 April 2005)
99. Shri Ambica Mills Ltd. 1897 AC 22
100. Shri Meenakshi Mills Ltd., Madurai v. A.V. Visvanatha Sastri, AIR 1955 SC 13
101. Shrikishan Singh v. State of Rajasthan, 1955 (2)SCR 531
102. Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994)
103. Soma Chakravarty v. State, (2007) 5 SCC 403
104. Stone & Rolls v Moore Stephens 2009 UKHL 39
105. Surinder Kaur v. Harbax Singh, AIR 1984 SC 1224
106. T.M.A. Rai Foundation v. State of Karnataka, (2002) 8 SCC 481
107. Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376
108. United States V. Milwaukee Refrigerator Co, 142 F. 247 (1905)
109. UP State Road Transport Corp. v. Mohd. Ismail, AIR 1991 SC 1099
110. Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No. 26529 of 2010,
dated 20 January 2012]
111. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966)
112. Watin v. Ministère Public Fédéral (1964) ILR 72 p 614
113. Yusuf Khan v. Manohar Joshi, (1999) SCC(Cri) 577.
114. Zacharia v. Republic of Cyprus [1962] 2 All ER 438, 445
115. Zahira Sheikh v. State of Gujarat (Best Bakery Case), (2004) 4 SCC 158

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SL. No Name of Books & Journals Referred
1. DD BASU, Commentary on the Constitution of India, S.S. Subramani eds., Vol. 5, 9th Ed. (2014)
2. T.M. Cooley, A treatise on the Constitutional Limitation, 1st Indian reprint
3. AN introduction to the study of the Law of the constitution, 10 th Ed. 4th Indian reprint (2004)
4. H.O. Agrawal, International Law and Human Rights, 21 st ed. (2016)
5. Oppenheim’s International Law, Vol. I, 9thed. (1992)
6. Arnold McNair, Extradition and Ex-territorial Asylum’, Vol.XXVIII (1951)
7. H.O. Agrawal, “Nature of political offence’, Supreme Court Journal (1979)
8. R.C. Hingorani, ‘Modern International law’, 2 nd Ed. (1984)
9. M.P. Jain, Indian Constitutional Law, 7th Ed. (2014)
10. Year book of International law commission, Vol II, (1960)
11. Starke’s International Law, 11 th ed. (1994)
12. D.P. O’connell,’International Law’ Vol. II (1970)
13. O. Kittrie, Year book of world affairs, Vol 32, (1978)
14. Gilbert, International and Comparative Law Quarterly, Vol 34, (1985)
15. Gower & Davies, Principles of modern Company Law, 8 th Ed., (2008)
16. Avtar Singh, Company Law, 16th Ed., (2015)
17. Ratanlal & Dhirajlal, The Indian Penal Code, J. K T Thomas & M A Rashid eds., 35 th ed. (2017)

Sl. No. List of Statutes and Conventions

1. The Companies Act, 2013
2. The Contract Act, 1872
3. The Negotiable Instrument Act, 1881
4. The Constitution of India, 1950
5. The Passport Act, 1967
6. UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 2015
7. Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment,
1987
8. International Covenant on Civil and Political Rights, 1976
9. Declaration on the Protection of All Persons from Being Subjected to Torture & Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1975
10. Declaration on the Human Rights of Individual who are not nationals of the Country in which
they live, 1985
11. Basic Principles for the Treatment of Prisoners, 1990
12. The Extradition Act, 1962
13. UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990
14. UN Universal Declaration of Human Rights, 1948
15. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violation of International
Humanitarian Law, 2005
16. Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, 1988
17. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty, 1989
18. Indian Penal Code, 1860
19. The Prevention Of Money-Laundering Act, 2002
20. UK Extradition Act, 2003
21. Extradition Treaty between India and UK, 1993

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 STATEMENT OF JURISDICTION

The appellant have approached the Hon’ble Supreme Court of Indesh u/a 136 of the
Constitution of Indesh. Leave has been granted by this Hon’ble Court and the matter has now
been listed for the arguments. The provision under which the appellant has approached this
Hon’ble Court and to which the respondent humbly submits, is read herein under as:

Article 136 of the Constitution of Indesh:

“(1) notwithstanding anything in this chapter, the supreme court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of Indesh.

(2) nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the armed
forces.”

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 STATEMENT OF FACTS

Niceland is one of the largest democracies in the world with population of over 500 million.
The country is rich in natural resources but lacks sufficient basic amenities like schools,
colleges, hospitals, courts and prison systems. Despite all such lacunas, the country is a
favorite destination for large scale investments & varied business ventures.

Robert D'Souza, a notable business tycoon of Niceland, has invested in IT sector, holding
nearly 8% of the total investments in the country. He was a chairman of more than thirty
Sparrow Group of Companies (SGC). He had his family settled in Indesh, a developed
economy in the world and a dream destination for most of the educated youth of Niceland.
Both the countries have entered into number of economic cooperation agreements and
double taxation avoidance agreements. However, their closer relation dates back to 1993
when they have signed an Extradition Treaty.


In March 2010 Niceland went for the general elections for the Lower-House of the
Parliament. D’Souza had supported the Niceland People Party (NPP). He strongly
condemned any linkage between national politics & labour movements as it is an obstacle
for economic growth of the country. He had generously funded the NPP’s political
campaign & the party successfully won the elections. In January 2013 the NPP has
recommended the name of Robert D’Souza & made him a MP in the Upper. He introduced
a bill, which was not passed, in the parliament restraining labours & trade unions from
holding political meetings or direct involvement of political parties in relation to trade or
business.

Niceland had suffered an economic slowdown in July 2013 on account of various

international & domestic factors. Sparrow IT company was one of the companies seriously
hit by the economic slow-down. To cope with the situation, the government has carried out
a corporate law reform and has adopted a new Niceland Companies Act in 2013 and has
simplified the procedures for easy of doing business.

In March 2014 SGC, under the chairmanship of D'Souza, began negotiation for loan
arrangements with different banks. Existing same assets of the company was shown as
security for different banks, however, considering the stalwart business image of D'Souza
& his political & international links, many banks lent huge sum of money as loans. Despite
securing loans SGC could not do well in business. The companies were not in a position to
pay even salaries for its employees. To the contrary, his personal assets increased over time.
Three cheques issued by D'Souza as chairman got dishonoured and cheque bounce cases
are also pending against him. 


8
Niceland once again went for polls to its Lower-House of the Parliament in March 2015.
Though D'Souza financially supported the political campaigns of NPP but not to the extent
of 2010 general elections. NLP won the 2015 general elections with huge majority & on
the other side, SGC defaulted most of the loans borrowed. Meanwhile, D’Souza was named
in the Victoria & Nile Papers leak of confidential documents relating to offshore
investments.

Investigation against Mr. Robert D’Souza for financial fraud & money 
laundering was
initiated in August 2015. The ED of Niceland has issued an arrest warrant against Mr.
D'Souza & revoked his passport by the end of 2015. He resigned as a MP in January 2016,
but evaded arrest till July 2016 & finally managed to leave the country to settle along with
his family in Indesh. Niceland got international arrest warrant from Interpol against
D'Souza by October 2016 & Indeshian Police Extradition Unit finally arrested him. In April
2017 Niceland formally requested Indesh to extradite Mr. D’Souza for his financial crimes
in accordance with the Extradition Treaty of 1993.

Niceland argued before the trial court that Mr. D'Souza has maliciously borrowed huge
loans from banks more than the assets by showing the same property as security for loans
in different banks. His conduct amounts to fraud & he also faces charges of money
laundering & off shore investment. To the contrary, Mr. D'Souza argued that: (i) the loans
were borrowed by SGC as independent legal persons & he shall not be made liable; (ii)
maliciously involving his name in the case is purely a political vendetta for supporting a
different political party; & (iii) jail conditions in Niceland are pathetic, which would
amount to deprivation of his fundamental rights guaranteed under the Indeshian
Constitution.

A recent HRW Report of 2016 describes the jails condition of Niceland as filthy, being
shelter for snakes, rats & cockroaches; Scottish Expert Commission reports that: “one
meagre meal a day, refusal of medical treatment even to cancer patients, overcrowding of
cells, inadequacy of medical attendant for inmates, and flagrant violation of extradition
assurances in few instances are some of the prison facts in Niceland by the end of 2017”.
The Human Rights of Commission of Niceland, in its annual report, condemns that “jail
conditions in Niceland is inadequate for an average human existence”. In January 2018 the
trial court transferred the case to the Supreme Court of Indesh, for a final decision.
Accordingly, Supreme Court has seized the matter for discussion.

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 STATEMENT OF ISSUES

1. Whether D'Souza could be held accountable for the loans borrowed by Sparrow
Group of Companies; and whether his conduct amounts to fraud in the whole
episode?

2. Whether the charges made against D’Souza are of a political character and
whether extradition request be rejected on such grounds?

3. Whether poor jail condition in the requesting state could be a ground for
rejection of extradition request? And whether the courts of requested state has
jurisdiction to decide such issues?

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 SUMMARY OF ARGUMENTS

Issue 1: Whether D'Souza could be held accountable for the loans borrowed by Sparrow
Group of Companies; and whether his conduct amounts to fraud in the whole episode?

That it is submitted to this Hon’ble Court that the respondent, Mr. Robert D’Souza, must be
held accountable for the loans borrowed by the company. While the company is regarded as a
juristic legal person its veil of corporate personality can be lifted in the present case the
company was used as a cloak for fraud or improper conduct. In the present case the respondent
fraudulently took multiple loans without any intention of paying them back, and instead used
the extended money for his private and felonious purposes of money laundering through illegal
offshore investment, rather than the company’s intended aim. Making the respondent a wilful
defaulter also liable under Prevention Of Money Laundering Act and Fraud under the
Company’s Act. Moreover, multiple cheques issued by the respondent were dishonored while
he was responsible for the conduct of the business of the company. Therefore, it is humbly
requested that the Hon'ble court lift the veil of corporate personality and hold the respondent
liable for the fraud he has committed concealed behind the garb of his company.

Issue 2: Whether the charges made against D’Souza are of a political character and
whether extradition request be rejected on such grounds?

That the charges framed against the respondent are purely of fiscal character & the whole
episode amounts to fraud. The extradition offence in regard to this fiscal nature is provided
under Art. 2 (2) of the Extradition Treaty. Ergo, the charges against the respondent do not
constitute political character in nature so the extradition request shall not be rejected.

Issue 3: Whether poor jail condition in the requesting state could be a ground for
rejection of extradition request? And whether the courts of requested state has
jurisdiction to decide such issues?

That the respondent shall be extradited by the Indeshian in the requested state to maintain the
rule of law & procedural fairness. Further, the respondent is under-trail & ergo, shall have the
right to plea about the alleged conditions of jails, before the Courts of Niceland once extradited,
during the trail. That, the plea raised by the respondent for the violation of his fundamental
rights shall be protected on the diplomatic assurances given by the Niceland.

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 ARGUMENTS ADVANCED

Issue 1 : Whether D’Souza could be held accountable for the loans borrowed by
Sparrow Group of Companies, and whether his conduct amounts to fraud in the
whole episode.

1.1 It is most humbly submitted before this Hon’ble Court, that that the respondent, being
the chairman of Sparrow Group of Companies was responsible for the conduct of the
company & is the executive head behind the legal fiction of the company.

1.2 “A company is ex hypothesi a distinct legal persona” i.e. it has a separate legal entity
which is quite distinct from its members. It is an incorporated association, which is an
artificial person created by law, having a separate entity, with a perpetual succession and a
common seal1. The famous Solomon’s case2 well established the existence of the veil of
“corporate personality” through which the identity of the members cannot be perceived.
This has always been a well-recognized principle of company law. Nevertheless, for while,
by fiction of law, a corporation is a distinct legal entity, yet in reality it is an association of
persons who are in fact the beneficial owners of all the corporate property.3 Therefore there
are exceptions to this fundamental principle of separate corporate personality, where the
veil is “lifted or pierced” and pays regard instead to the individual members behind the
legal façade, it is known as “lifting the veil of corporate personality”.

1.2 The classic test for piercing the corporate veil states various circumstances that would
lead to lifting of the said veil. For the sake of brevity it is not necessary to refer to all of
them, the one relevant to our case is "when the corporate personality is being blatantly used
as a cloak for fraud or improper conduct”.4 In United States V. Milwaukee Refrigerator
Co5., it was observed conditions for lifting of the corporate veil of personality. It was noted
that when the notion of legal entity is used to defeat public convenience, justify wrong,
protect fraud or defend crime, the law will regard the corporation as an association of

1
L.H Haney’s definition of Companies
2
(1897) A.C.22
3
Gallagher v Germania Brewing Co, 53 Minn 214: 54 NW 1115 (1893), per ITCHEL LJ.
4
Gower: Modern Company Law - 4th Edn. (1979) at P.137]
5
142 F. 247 (1905)

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 persons. In Life Insurance Corporation of India v. Escorts Limited and Others6, the
Supreme Court laid down statutory provisions and judicial provisions as the two major
instances when the corporate veil can be lifted. The former, applicable to this case, is
Fraudulent conduct (Section 542 of the Company’s Act, 2013). The Judicial provisions laid
down by the same were fraud or improper condition7, tax evasion8, company as agent9. The
raison d'être of piercing of the corporate veil on the ground of fraud is to prevent it from
protecting those who would seek to commit fraud by abusing the corporate structure and
thereby conceal their involvement and ultimate liability.10 Therefore adherence to the
Salomon principle is not be doggedly followed where this would cause an unjust result.11

1.3 The attention of the Hon’ble Court is drawn towards some leading judicial decisions
which highlight the essentiality of piercing of the corporate veil for the sake of equity. In
Delhi Development Authority v Skipper Construction Company12 it was highlighted
that the concept of corporate entity was evolved to encourage and promote trade and
commerce : but not to commit illegalities or to defraud people. Where, therefore, the
corporate character is employed for the purpose of committing illegality or for defrauding
others, the court would ignore the corporate character and will look at the reality behind
the corporate veil so as to enable it to pass appropriate orders to do justice between the
parties concerned. The High Court of Delhi in P.N.B Finance Ltd. v Shri Sital Prasad
Jain13 iterated that the doctrine of piercing the corporate veil may be invoked whenever
necessary by the court in the interest of justice, to prevent the corporate entity from being
used as an instrument of fraud, and the fundamental principle of corporate personality itself
may be disregarded having regard to the exigencies of the situation and for the ends of
justice.

6
1986 AIR 1370, 1985 SCR Supl. (3) 909
7
Shri Ambica Mills Ltd. 1897 AC 22
8
Vodafone International Holdings B.V. v. Union of India & Anr. [S.L.P. (C) No. 26529 of 2010, dated 20
January 2012]
9
See also Adams v Cape Industries 1990 Ch. 433;
Caterpillar Financial Services (UK) Limited v Saenz Corp Limited, Mr Karavias, Egerton Corp. 2007 I.C.R.
1539 (A.C);
Beckett Investment Management Group v Hall 2009 1 A.C. 1391;
Stone & Rolls v Moore Stephens 2009 UKHL 39;
Akzo Nobel v The Competition Commission 2013 CAT 13 (21 June 2013).
10
<http://www.darlingtons.com/blog/2012/05/06/fraud-and-the-corporate-veil/>
11
John P Lowry, “Lifting the Corporate Veil" (1993) JBL
12
1996 AIR 2005, 1996 SCC (4) 622
13
P.N.B Finance Ltd. v Shri Sital Prasad Jain (1983) comp. cas. 66

13
 1.4 In the Case Gilford Motors V. Horne14, the English Court of Appeal held that while a
company is generally a distinct person and is separate from the individuals who form it, in
this case the company ‘was formed as a device, a stratagem’ to conceal the fact that Horne
was in fact running the business in patent infringement of his employment contract, which
also served as the purpose of the incorporation of the company. The Court issued an
injunction against Horne personally and against J.M Horne and Co. Ltd to restrain a breach
of the employment contract. Therefore, the incorporation of a company as a facade, in order
to avoid personal liability by the controller amounts to ‘fraud’ for the purposes of veil
piercing.

1.5 Similarly in Jones V. Lipman15, Lipman entered into a contract to sell his house to
Jones for £6000. Lipman subsequently changed his mind and transferred the house to a
company created solely for that purpose. Jones sued for specific performance of the
contract. Lipman argued that the company owned the property and that it was a distinct
person, on the authority of Saloman16. Yet Jones relied on the authority of Gilford Motors
V. Horne17 and argued that Lipman’s company was on instrument of fraud for the purpose
of avoiding legal obligations. The court held with Jones and described Lipman’s company
as ‘a device, a sham, a mask which he holds before his face in an attempt to avoid
recognition by the eye of equity.’

1.6 It is most respectfully submitted before the Hon’ble Court, in the present case the veil
of corporate personality is to be lifted judicially taking into consideration the need for
prevention of fraud or improper conduct. The prosecution would like to argue before the
Hon’ble court that Robert D’Souza be categorized as a Willful Defaulter. An RBI
circular18 presented various characteristics of who makes a willful defaulter. One of such
characteristics is if a company has defaulted in meeting its payment/repayment obligations
and has not utilized the finance from the lender for the specific purpose and has either
diverted funds or has siphoned off the funds so that the funds have not been utilized for the

14
Gilford Motors V. Horne(1933) Ch 935.
15
Jones v Lipman (1962) 1 WLR 832
16
Supra note 2
17
Supra note 14
18
RBI/2015-16/100 DBR.No.CID.BC.22/20.16.003/2015-16

14
 specific purpose they were availed for , nor are the funds available with the company in the
form of other assets.

1.7 Considering that the Sparrow group of companies couldn’t pay even the salaries for its
employees and had defaulted interest payments over loan arrangements on several
occasions before having defaulted most of the loans borrowed from nine different banks,
while the personal assets of Mr.Dsouza kept increasing and he was named in the Victoria
Papers and Nile Papers leak of confidential documents relating to offshore investments
and more specifically in Indesh. This only leads to the argument that the funds that were
borrowed in the lieu of running and keeping Sparrow Group of companies afloat were being
siphoned off to the personal coffers of Mr. D’souza and illegally transferred offshore
ultimately using the companies as a pawn in his scheme for fraud. Making the respondent
liable not only as a wilful defaulter but also under the s. 3 of the Prevention of Money
Laundering Act and under s. 447 of the Company’s Act.

1.8 It is most respectfully submitted before the Hon’ble Court, that under the chairmanship
of Robert D’souza Sparrow Group of companies used existing same assets of the company
as security for garnering loans from different banks. In the case of Mukesh Hans &
Anr. Vs. Smt. Uma Bhasin & Ors19, where the Delhi High Court observed that a Director
of a Company though he owes a fiduciary duty to the Company, he owes no contractual
duty qua third parties. However, the court also various exceptions to this rule. One of them
is where a Director induces a third party to act to his detriment by advancing a loan or
money to the Company. On the third party proving such fraudulent misrepresentation, a
Director may be held personally liable to the said third party. In the present case D’Souza
influenced various banks to extend large sums of money, based not on valid security but
on his “stalwart” business image and his political links, relying on assets that he had already
used as security for previous loans. Furthermore, considering the funneling of money to his
very own offshore accounts the counsel would like to argue that he knew very well that the
company would no be able to pay the loans back. Therefore, inducing the various banks
that so generously financed his loans to act in their own detriment, making the respondent
personally liable to the loans. This also makes him liable for fraud under s.17(3) of the

19
RFA 14/2010 and CM No. 495/2010, Decided On: 16.08.2010.

15
 Contract act which includes within the definition of fraud a promise made without any
intention of performing it.

1.9 It is also brought to the attention of this Hon'ble court that three cheques issued by
D’souza as chairman got dishonored and various cheque bouncing cases are pending
against him. Because the cheques were signed by D’souza under his authority as a
chairman, he can be held personally liable for the same. The Section 138 of The Negotiable
Instruments Act, deals with deals with dishonor of cheques for insufficiency, etc., of funds
in the account and holds the guilty be punished with either imprisonment or a fin.
Furthermore, section 141 of the same act states that if a company commits an offence under
section 138, every person who at the time of the offence was responsible for the conduct
of the company shall be liable to be proceeded against and punished accordingly. I would
like to bring the attention of this court to the case In SMS Pharmaceuticals Limited v.
Neeta Bhalla and anr.2021, this Court has observed that the requirement of Section 141 is
that the person sought to be made liable should be in charge of and responsible for the
conduct of the business of the company at the relevant time. In another case, KK Ahuja22
where the Supreme Court was considering a similar question. In this case the it was
highlighted that in the case of a Director or an officer of the company who signed the
cheque on behalf of the company, there is no need to make a specific averment that he was
in charge of and was responsible to the company, for the conduct of the business of the
company or make any specific allegation about consent, connivance or negligence. The
very fact that the dishonoured cheques were issued by him on behalf of the company, would
give rise to responsibility under sub-section (2) of Section 141. Therefore D'souza is liable
not only by the virtue of being the signatory authority on the cheques issued but also due
to his position as chairman of the company which makes him responsible for the very
conduct of the company.

20
SMS Pharmaceuticals Limited v. Neeta Bhalla and another,(2005) 8 SCC 89
21
see also Mannalal Chamaria v. State of West Bengal (2014) 4 SCALE 55.
A.K. Singhania v. Gujarat State Fertilizer Company Ltd 2013(12) SCALE 673
Rallis India Limited v. Poduru Vidya Bhushan and ors (2011) 13 SCC 88
Paresh P. Rajda v. State of Maharashtra (2008) 7 SCC 442
Anr. Malwa Cotton and Spinning Mills Ltd. v. Virsa Singh Sidhu and ors(2008) 17 SCC 147
N. Rangachari v. Bharat Sanchar Nigam Ltd.(2007) 5 SCC 108
22
K.K.Ahuja Vs. V.K.Vora and another, (2009) 10 SCC 48

16
Conclusion

To conclude the counsel would like to argue that that respondent committed fraud at
multiple instances and on multiple counts. He took multiple loans without any intention of
paying them back, and rather using the extended money for his private and felonious
purposes rather than the company’s intended aim. Moreover, cheques issued by him were
dishonored for which being the director of the company he can be made directly liable.
Therefore, it is humbly requested that the Hon'ble court lift the veil of corporate personality
and hold the respondent liable for the fraud he has committed concealed behind the garb of
his company.

17
 ISSUE 2: Whether the charges made against the respondent (D’Souza) are of a
political character and whether extradition request be rejected on such grounds?

1. That it is humbly submitted before this Hon’ble Court, the counsel on behalf of the
petitioner (i.e. Niceland) will be dealing with the political character of the respondent
(i.e. Robert D’Souza), which is in question, and rejection on such grounds. Whilst
political offences are the customary rule of International law, where it underwent a
change indirectly due to the French revolution23, followed by firm attitude of UK, US,
France, etc. advancing it in general principle24. That, the , American courts have tended
to regard an offence as political if it is part of an organized form of disruption of the
political structures of the state (as distinct from the promotion of social chaos), as where
the act is ‘committed in the course of or furtherance of civil wars, insurrection or
political commotion’.25

2. Further, it is categorically establishable by the facts & circumstances in the instant case
that the charges framed against the respondent are purely of fiscal character (Para-9),
and extradition offence in regard to this fiscal nature is provided under Art. 2 (2) of the
Extradition Treaty between the two countries.26 In addition, the rules of international
law do not prohibit for the extradition for the offences of fiscal character, which can be
exhibited through the Art. 2 of the instant treaty & also through the extradition treaty
between India & Canada27 and India & Russia28.

23
In 1829 a celebrated dissertation by a Dutch jurist made its appearance, in which the principle of non-
extradition of political criminals was for the first time defended with juristic arguments, & on a jurist basis: H
Provo Kluit, De Deditione Profugorum.
24
Chandler v. United States, (1948) 171 F (2nd) 921.
25
Re Ezeta (1894) 62 F 972; Ramos v. Diaz (1959) ILR 28 351; Artukovic case, ILR 21 (1954) 66; Jimenez v.
Aristeguieta 919620 ILR 33 p. 353; Re Gonzalez (1963) ILR 34 139; Garcia-Guillern v. United States (1971)
ILR 51 p. 270; Escobedo v. United States (1980) ILR 79 p. 430; Abu Eain v. Wilkes (1981) ILR 79 p. 439;
Oppenheim’s International Law volume-1 part2-4 PEACE (9th edition); The fact that the person has been the
subject of acute political controversy in the requesting state, although without himself having entered the
political arena, does not constitute him a person whose punishment would be sought on account of his political
views, R v. Governor of Pentonville Prison, ex parte Teja [1971] 2 QB 274, 288-9.
26
Art. 2 (2), Extradition Offences; An offence may be an extradition offence notwithstanding that it relates to
taxation or revenue or is one of a purely fiscal character, Pg. 5 of the moot proposition.
27
India & Canada expressly lays down under para 3 that, “Extradition shall be ordered for an extradition
offence notwithstanding that it may be an offence relating to taxation or revenue or is one of a purely fiscal
character.
28
Extradition treaty between India & Russian Federation of 2000 lays down under Art. 2 para 2 that an offence
may be an extradition offence notwithstanding that it relates to taxation or revenue or is one of a purely fiscal
character.

18
 3. That the substratrum which define a ‘political’ character of an offence are; if committed
with a political motive29, or if committed for a political purpose30, or if committed both
from a political motive & for a political purpose. Correspondingly, the ‘political crime’
may be confined to certain offences against the state only, such as high treason, lèse-
majesté, & the like.31

4. Furthermore, in the instant case, as per the established facts (Para 5-6), the respondent
began negotiation for loans, by showing same existing assets of the company, with
different banks which were consequentially defaulted. Also, the three cheques issued
by the respondent were dishonoured & the cheque bounces cases are pending against
him. Further, in Re Government of India v Mubarak Ali Ahmed32, it was held, with
regard to a request for extradition for forgery, that the Court could not inquire into the
allegation that the case had political implications & the accused would not receive a
fair trail. To be a political offence the conduct in question must occur in order to
challenge the political control or government of a state, & not just the government’s
policy towards a particular private group or institution.33
5. Ergo, to conclude, that the charges framed against the respondent again do not
constitute political character in nature, as borrowing of loan shall not be considered as
organized form of disruption of the political structures.

29
While political motive is probably a necessary element, it is not a sufficient by itself to characterize as
political an offence not intrinsically having that character. (RE State of winconsin and Armstrong (1973), ILR,
69, p240); Baader- meinhof group terrorist Case 1977, ILR, 74 p 493.
30
In the fort case in Germany in 1921 two persons who were accused of having murdered the Spanish PM Dato
in 1921, & had fled to Germany,were extradited, although the German- Spanish treaty precluded extradition for
political offences, on the ground that the alleged murder was an act of revenge, possibly arising out of political
motive but not committed with a view to achieving a political object.; Mettgenberg, ZV, 12 (1923), pp 200-21.
31
In Re Pavelic and Kwaternik the court of Appeal, Turin, in 1934 refused to extradite to France the persons
accused of participating in the assassination of the King of Yugoslavia, see AD, 7 (1933-34), No 158, &
Philonenko, Clunet, 61 (1934), pp 1157-69. Similarly, extradition of the person accused of attempting to
assassinate President de Gaulle of France was refused by Switzerland, Watin v. Ministère Public Fédéral (1964)
ILR 72 p 614; Zacharia v. Republic of Cyprus [1962] 2 All ER 438, 445; R v. Governor of Brixton Prison, ex
parte Kotronis [1971] AC 250, 278, 280, in both of which cases the House of Lords rejected on the ground the
fugitive’s contention that if returned to the requesting state then he would suffer on political grounds.
32
[1952] 1 All ER 1060; R v. Governor of Pentonville Prison, ex parte Budlong [19800 1 All ER 701, the fact
that a person will, if extradited, be tried by special courts does not necessarily establish that the offence for
which his extradition is sought is a political offence.
33
Hon'ble Supreme Court of Indesh has opinion that though some special jurisdiction laws such as Extradition
law allow reprise for those seeking to accomplish political goals and commit common crimes in its pursuance
by classifying it as a Political offences but the penal code which governs the criminal system makes no such
distinctions, see G. Krishna Goud & J. Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC 157.

19
 ISSUE 3: Whether Alleged Jail Condition In The Requesting State Shall Be A Ground
For Rejection Of Extradition Request & Whether The Courts Of The Requested State
Have The Jurisdiction To Decide Such Issues?

1. That it is humbly submitted before this Hon’ble Court, the counsel on behalf of the
petitioner i.e. Niceland will be dealing with the jurisdiction of the requested state
‘Indesh’ to decide issues like alleged jail conditions of Niceland, to which the
respondent contended, & whether these jail conditions vis-à-vis a ground for rejection
of extradition request. Further, the second issue shall be dealt with the political
character of the respondent, which is in question & rejection on such grounds. It is
vehemently contended before this Hon’ble Court that the petitioner respects the
extradition treaty and its philosophical objectives34 but the respect to this extradition
treaty should be a parallel development by the requested state as well. It may not be
correct to say that it is only the accused who must be fairly dealt with. That would be
turning Nelson’s eyes to the needs of the society at large & that of the victims. Thus
depriving the quality of fairness to a degree where miscarriage of justice could be a
result.35

2. Jurisdiction of the Requested State to decide issues related to alleged jail

conditions
That it is categorically establishable by Article 1 (1)36 of the Extradition Treaty37 which
states that, “Each Contracting State undertakes to extradite to the other, in the
circumstances and subject to the conditions specified in this Treaty…” “for the
offences as provided in Article 2”38. Ergo, the allegations made by the respondent of
alleged jail conditions amounting to deprive his right to life cannot be sustained here
for the following reasons:

34
guaranteeing due process and protection of basic human rights of fugitives. Further accentuating the law of
extradition, which attempts to dovetail the competing imperatives of comity of nations (respect for a foreign
court) and international crime control, are also to be taken into consideration.
35
(Justice Arijit Pasayat) in Zahira Sheikh v. State of Gujarat (Best Bakery Case), (2004) 4 SCC 158
36
Duty of Extradite, pg. 4 of the moot proposition.
37
Excerpts of the Treaty can be found in the Annexure, pg. 4 of the moot proposition.
38
Extradition Offences, pg. 5 of the moot proposition.

20
 a) That such conditions are not mentioned in the Treaty, hence not binding in that respect.
An extradition treaty is self-executing and an accused can be arrested under the terms
of the treaty alone.
b) That the prima facie case is that of extradition. Also, the respondent is under-trail (Para-
9) ergo, shall be presumed innocent39 and not a convict40. Therefore, the repondent
shall have the right to plea about the alleged conditions of jails, before the Courts of
Niceland once extradited, during the trail41. And the appeal shall not be disposed off
without hearing the plea of the accused42.

3. Substratrum for the rejection of Extradition request

a) That being so arranged under Article 543 & 644 of the Extradition Treaty45 a person may
not be extradited.
b) Further, non-compliance with Article 746 shall be one such ground.
c) Furthermore, under Article 447 extradition may be refused if an offence is of political
character with certain exceptions.
d) In addition under Article 8, clause 248 which ordain termination of the Treaty.
Extradition request by the requesting state may be refused on the following grounds as
provided in the Extradition Treaty and no other49 which is stated in Article 3 as an
obligation50.
4. Substratum for acknowledgement of Extradition request

39
Babu Singh v. State of Punjab, (1964) 1 Cri LJ 566; K.M. Nanavati v. State of Maharashtra, AIR 1962 SC
605; Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376.
40
Article 11, para 1, Universal Declaration of Human Rights
41
Article 10, Universal Declaration of Human Rights; Article 21 of the Constitution of India; P. Sanjeeva Rao
v. State of A.P., AIR 2012 SC 2242; State of Punjab v. Baldev Singh, AIR 1999 SC 2378
42
Pratap Singh v. State of VP (Now MP), 1961 (2) SCR 509
43
Extradition and Prosecution, pg. 6 of the moot proposition.
44
Grounds for Refusal of Extradition, pg. 6 of the moot proposition.
45
Article 2 of the Vienna Convention, 1969, “A treaty is an agreement whereby two or more States established
or seek to establish relationship between them governed by International Law”; According to Oppenheim,
“International treaties are agreements of a contractual character between States or Organizations of States
creating legal rights and duties” [Art. 38(1) a & d ICJ]; The principle of good faith has also been recognized by
ICJ in Nuclear Test Case (Australia v. France) stating it as one of the principles for governing & performance of
legal obligations.
46
Capital Punishment, pg. 7 of the moot proposition.
47
The Political Offence Exception, pg. 5 of the moot proposition.
48
Termination, pg. 7 clause 2 of the moot proposition.
49
“Pacta Sunt Servanda”- a fundamental principle of the customary law of treaties; Article 26 of Vienna
Convention on the Law of Treaties, 1969; Yearbook of the International Law Commission, Vol. II (1966) 211.
50
Article 3, pg. 5 of the moot proposition, Composite Offences; Extradition shall be available in accordance
with this Treaty… Also see Article 1(1), pg. 4 of the moot proposition.

21
 a) That it is establishable by esteem arising out of Article 2, clause 2, 51 of the treaty
between the nations which relates to taxation or revenue or purely of fiscal character.
Also in furtherance of the principle, Pacta Sunt Servanda, obligates the parties to the
treaty, to regard it as a fundamental principle of the customary law of treaties which
creates legal rights & duties. Furthermore, as per Section 2(d) of the Extradition Act,
1962, “a treaty, agreement, or arrangement with a foreign state relating to extradition
of fugitive criminals, is binding.”
Principle of Dual Criminality which is the most important principle governing
Extradition Law attributes commonly in both the countries52 and, ergo, responding to
the exigency of clause 1 of Article 2 of the treaty.
Hence abiding the conditions thereby in Article 2 of the extradition treaty.

b) In addition, expounding the facts of the case in which the respondent, after issuance of
an arrest warrant and revocation53 of the passport in 2015, evaded arrest and managed
to leave the country in 2016 (Para 7), infringing sec. 14A (Penalty for entry in
restricted areas, etc.) and sec. 14B (Penalty for using forged passport) under Foreign
(Amendment) Act, 2004 of Niceland. In addition, the respondent should have been
expelled54 at once, by the immigration authorities for the illegal entry in Indesh, as his
passport had already been revoked.

c) Further the respondent has maliciously borrowed huge loans from the banks, more than
the assets by showing the same property as security for loans in different banks,
which amounts to fraud & also faces charges of money laundering & offshore
investment (Para 9), punishable u/s 447 (Punishment for fraud) of Companies Act,
2013 of Niceland. Also u/s 3 & 4 of the Prevention of Money-Laundering Act, 2002 of
Indesh, which relates to guilt of offence of money-laundering & punishment
thereunder, respectively.

51
Pg. 5 of the moot proposition.
52
Pg. 4 of the moot proposition. All laws in force in the republic of Indesh as well as in Niceland are in pari
material with the Republic of India.
53
Revocation of passport, S. 10(3) is deemed necessary in the interest of the sovereignty, integrity, and security
or in the interest of general public, Maneka Gandhi v. Union of India, AIR 1978 SC 597.
54
‘Exclusion’ is a similar process but occurring ‘on the threshold’; where an alien has been declared
inadmissible, upon arrival.

22
 d) That the main contention which arises before this Hon’ble Court is on regard to the
“alleged jail conditions”, which is in question as a ground for denying of extradition
request, to which the counsel would establish affirmatively through jurisprudencial
value of “equality before the criminal law” which require that all citizens shall face an
equal threat of investigation and prosecution & an equal threat of punishment 55.
The Preamble to the Constitution of Niceland emhpasizes the principle of equality as
basic to the Niceland Constitution56, which is a necessary corollary of Rule of Law57
which excludes arbitrariness58, lawlessness59 & unreasonableness60. That further
accentuating on the principle of “non-discrimination”61 (Equality before Law)62
which inherents from Article 763 of Universal Declaration of Human Right, 1948,
means that any treatment of equals unequally or unequals as equals will be violation
of basic Human Rights & of basic structure of the Constitution of Niceland64. Equal
protection means the right to equal treatment in similar circumstances, both privileges
conferred & liabilities imposed65. American Courts have held in catena of cases66 that,
“While it is unconstitutional to treat prisoners who are in the same situation differently,
it is acceptable to treat prisoners in different situations differently.

Broadening the scope of “Equality” with plethora of cases 67 where equal protection
means that a prison cannot treat some prisoners differently than it treat others without
a reason, which would certainly be against the Rule of Law & the procedural

55
Equality in Criminal law by James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law,
Yale University.
56
Keshavananda Bharti Sripadagalvaru v. State of Kerala, AIR (1973) SC 1461; Ashutosh Gupta v. State of
Rajasthan, (2002) 4 SCC 34; Indra Sawhney v. Union of India, AIR 1993 SC 477; Natural Resources
Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1 (77).
57
As discussed in several international forums: International Forum for Jurists, Delhi Declaration, 1959; D.C.
Wadhwa v. State of Bihar, AIR 1987 SC 579.
58
A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207.
59
Yusuf Khan v. Manohar Joshi, (1999) SCC(Cri) 577.
60
Renu v. District and Session Judge, Tis Hazari, Civil Appeal No. 979 of 2014 (arising out of SLP (C) No.
26090 of 2011) decided on 12 February 2014; Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
61
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1
62
Article 14, Constitution of India.
63
Article-7 UDHRs, All are equal before the law and are entitled without any discrimination to equal protection
of the law.
64
M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.
65
Shrikishan Singh v. State of Rajasthan, 1955 (2)SCR 531; T.M.A. Rai Foundation v. State of Karnataka,
(2002) 8 SCC 481; Soma Chakravarty v. State, (2007) 5 SCC 403
66
Keevan v. Smith, 100 F.3d 644; Klinger v. Dept. of Corrections, 31 F.3d 727; Doe v. Sparks, 73 F. Supp. 227;
Pitts v. Thornburgh, 866 F.2d 1450
67
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); Washington v. Lee, 263 F. Supp. 327
(M.D. Ala. 1966); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); Sockwell v. Phelps, 20 F.3d 187 (5th Cir.
1994);

23
 fairness68. The Hon’ble Supreme Court has stated that if within the same class some
are subjected to a more drastic procedure that others, then it is discriminatory & bad
under Art. 14. Therefore, if two laws apply to a class, then the one which is more
burdensome is discriminatory and so void under Art. 1469.

5. Diplomatic Assurance70
In humble submission before this Hon’ble Court, the counsel relying on “Diplomatic
Assurance” by the Niceland government & due regard to the Extradition Treaty, that
the respondent following his return to Niceland, will be treated in a humane and proper
manner, in accordance with internationally accepted standards, pleads that the
diplomatic assurance have been appreciated in catena of judgements 71 and shall be
regarded in the instant case as well.
Further the abovementioned diplomatic assurance is not in violation of Art. 1472 as it is
reasonable73, which cannot be questioned by public at large as arbitrary and unfair.

68
Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra, (2005) 5 SCC 294; Washington v. Lee, 263 F.
Supp. 327 (M.D. Ala. 1966); Jackson v. Godwin, 400 F.2d 529; Sockwell v. Phelps, 20 F.3d 187; McCray v.
Bennett, 467 F. Supp. 187; Santiago v. Miles, 774 F. Supp. 775.
69
Shri Meenakshi Mills Ltd., Madurai v. A.V. Visvanatha Sastri, AIR 1955 SC 13; Ameerunnissa v. Mahboob
Begum, AIR 1953 SC 91; Ram Prasad Sahi v. State of Bihar, AIR 1953 SC 215; K. Nagaraj v. State of Andhra
Pradesh, AIR 1985 SC 551; Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339; Addl. Distt.
Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207; Northern India Caterers v. State of Punjab, AIR
1967SC 1581
70
Arguendo, that the cousel makes a legal argument only.
71
Muminov v Russia App no 42502/06 (ECtHR, 11 December 2008); Saadi v Italy App no 37201/06 (ECtHR,
28 February 2008); Ramzy v the Netherlands (dec) App no 25424/05 (ECtHR, 27 May 2008); Shamayev and
others v Georgia and Russia App no 36378/02 (ECtHR, 12 April 2005); Mohammed Alzery v Sweden
CCPR/C/88/D/1416/2005 (10 November 2006); Ahmed Hussein Mustafa Kamil Agiza v Sweden
CAT/C/34/D/233/2003 (24 May 2005); Einhorn v France (dec) App no 71555/01 (ECtHR, 16 October 2001);
Al-Moayad v Germany (dec) App no 35865/03 (ECtHR, 20 February 2007)
72
Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618; Hansraj H. Jain v. State of Maharashra, (1993)
3 SCC 634; New Horizons Ltd. v. Union of India, (1995) SCC 478; Mahesh Chandra v. Regional Manager, UP
Financial Corp., AIR 1993 SC 935; UP State Road Transport Corp. v. Mohd. Ismail, AIR 1991 SC 1099
73
Ameeroonissa Begum v. Mehboob Begum, (1953) SCR 404 (414); Babulal Amthalal Mehta v. Collector of
Customs, Calcutta, AIR 1957 SC 877; Ashoka Smokeless Coal India (P.) Ltd. v. Union of India, (2007) 2 SCC
640, 697 (para 161)

24
 Such classification is reasonable even though a single individual is treated as a class by
himself, who is attached to some special circumstances or reasons applicable to him
alone & not applicable to others74, conferred by plenary powers on the Centre to enter
into treaties & agreement, & enact necessary legislation to effactuate the same75.
Also it is par with Article 253 of the Constitution76 of Niceland, which confers on
Parliament the capacity to legislate a treaty irrespective of the scheme of distribution of
power, whilst endavouring to promote International Peace (Article 51 & 51A).

6. Jurisdiction lies with the courts of Niceland

That as per the facts, the respondent was made a Member of Parliament in the Upper-
House (Para-3) & to qualify as a Member of Parliament a person shall be a citizen of
Niceland (Article 84). In addition, the respondent held a Niceland passport which was
revoked by Enforcement Directorate of Niceland (Para-7). A passport is a property77 of
Niceland government & ergo has power to delegate78 and make rules79.
Thus, considering either the ‘active’80 or the ‘passive’81 principles which are the
“principle of nationality” favours the Niceland Courts to have jurisdiction over the
respondent.
That the “principle of territorial jurisdiction” which means that the Courts of the
place where the crime is committed to exercise the jurisdiction, which obliges the
Niceland Courts to entertain such issues & was held as righteous principle by PCIJ 82 .
Further, the Hon’ble Supreme Court held, in Surinder Kaur v. Harbax Singh83, that
the theory of Conflict of Laws recognizes, and in any event, prefers the jurisdiction of
the state which has the most intimate contact with the issue arising in the case. And in

74
Ramkrishna Dalmia v. Tendolkar Justice S.R., 1959 SCR 279; Dharam Dutt v. Union of India, (2004) 1 SCC
712, 748 (Para 60); Commr. S.T. v. Radhakrishnan, (1979) 2 SCC 249 (para 14-15); Kailash Chand Sharma v.
State of Rajasthan, (2002) 6 SCC 562 (Para 31); Reserve Bank of India v. Peerless General Finance &
Investment Co. Ltd. (1996) 1 SCC 642 (Para 30); People Union of Civil Liberties v. Union of India, (2005) 2
SCC 436, 477 (Para 16, State accountability)
75
Entry 14 & 18 of List 1 of Article 246, Constitution of India
76
Article 253, Legislation for giving effect to international agreements.
77
Section-17, The Passport Act, 1967
78
Section-21, The Passport Act, 1967
79
Section-24, The Passport Act, 1967
80
A State may exercise its jurisdiction over its nationals on the basis that the nationality is a mark allegiance
which the person charged with the crime, owes to his State of Nationality.
81
The jurisdiction is exercised not because the criminal is the citizen but having caught or found the criminal,
the State claims, the jurisdiction on the principle that the victim is of it.
82
France v. Turkey (The S.S. Lotus Case), 1927 PCIJ, [(Ser. A)]
83
AIR 1984 SC 1224

25
 the instant case the respondent has the most intimate contact with the Niceland and not
with the Indesh.
Furthermore, in K.T.M.S Abdul v. Union of India84, the Hon’ble Court held that a
State has jurisdiction in respect of persons for their acts committed in foreign countries,
if their acts have jeopardized or are about to jeopardise its safety or public order, which
is a “protective principle”, recognized in International law as self-preservation.

As per the established facts and circumstances in the instant case the Indeshian Courts
do not have the jurisdiction to decide such issues. Therefore, in the absence of any
jurisdiction, it is respectfully submitted that the respondent shall be extradited to
Niceland.

84
AIR (1977) Mad. 386

26
 PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon’ble Court that it may be pleased to direct:-

I. That the veil of separate corporate personality be lifted and the respondent be held liable
for fraud under Section 447 of the Companies Act, 2013 .

II. That the charges made against the respondent have no political colour & are purely of fiscal
character. Therefore, the request for extradition be granted as per the provisions
mentioned in the treaty.

III. That the respondent’s plea about alleged jail conditions shall be presented before the courts
of Niceland. In the light of maintaining the rule of law & procedural fairness the
respondent shall be extradited.

AND

Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.

And for this, the appellant as in duty bound shall humbly pray.

SD/-

(Counsel for the Petitioners)