Memorial Ragini Cie 1 Respondent

SRN NO: 202000063
Name: Ragini
Course Code: LLB603
CIE No.: 1
For Partial Fulfillment of Bachelor of Laws (LLB)

Academic Year – 2020-2023
BEFORE THE HON’BLE ALLAHABAD HIGH COURT
VIKRAM SUPPLIERS PRIVATE LIMITED (VSPL) (PETITIONER)

VS.
SHAH TRADERS PRIVATE LIMITED (STPL) (RESPONDENT)
ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE ALLAHABAD HIGH COURT
MEMORIAL FOR THE RESPONDENT- SHAH TRADERS PRIVATE LIMITED (STPL)
(B)https://indiankanoon.org/doc/11778190/
(C)https://indiankanoon.org/doc/42463958/
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TABLE OF CONTENT
LIST OF CONTENT PAGE NO

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
Cases 4
Articles Websites 4
Books 4
STATEMENT OF FACT 5-6
STATEMENT OF JURISDICTION 7
STATEMENT OF ISSUES 8
SUMMARY OF ARGUMENTS 9-10
ARGUMENT ADVANCED 11-12
PRAYER 13
(A)https://indiankanoon.org/doc/53912488/
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ABBREVIATION LIST
PO Purchase Order
SVPL - Shah Traders Private Limited
STDPL - Shah Traders Distributors Private Limited
VSPL - Vikram Suppliers Private Limited
ETA- Expected time of Arrival
CPC, 1908 – Civil Procedure Code, 1908
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Index of Authorities
Cases, Case Laws, books, parliamentary debates with page numbers
Case name Citation
Maruthi Apartments vs K.V. Narsimhan O.P Diary No. 116747 of 2018
Union of India & Ors vs Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127
Regent Hirise Private Limited & ... vs Sanchita Chatterjee & Ors 8 April, 2021, CHC
Empire Jute Company Limited and others -Vs- Jute Corportation of In- 2007 (14) SCC 680
dia Limited
K Vaerner Cementation India Limited-Vs- Bajranglal Agarwal and an- 2012 (5) SCC 214
other
M/S Vardhman Infradevelopers ... vs Gurmeet Singh Huf Delhi District Court. 31 May
2022
Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49
List of Websites:
1. Maruthi Apartments vs K.V. Narsimhans
2. Union of India & Ors vs Major General Madan Lal Yadav (Retd.)
3. https://indiankanoon.org/doc/213641/
Books Referred
1. Indian Contract Act 1872
2. The arbitration and conciliation act, 1996
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STATEMENT OF FACT
Exclusive Supply Agreement between STPL and VSPL : Dated 12.05.2010
Period of Agreement applicability: 10 Years i.e. Till 11.05.2020
Consideration in Agreement:
1. VSPL would supply polyester chips exclusively to STPL
2. STPL agreed to pay hefty consideration to VSPL
3. Nondisclosure agreement b/w parties due to price sensitive agreement
4. Based on each Purchase order supply lead time will be decided after both parties signatures,
but cant be less than 10 days.
5. If supply lead time would be less than 10 days, separate written agreement would be required
6. Indemnity Clause: in the event of any loss / damages / claims arising out of the agreement
against STPL, VSPL would hold STPL goods unless the same is for the reasons beyond its con-
trol or due to the act of God.
FACTS:
STPL issued PO dated 10 Aug 2012 at 1800 hrs IST
2. Requirement items: 2 tons of Polyester Chips
3. Requirement was to get by 20 Aug 2012 at 10 AM IST
4. VSPL agreed the PO via email on 10 Aug 2012 at 1900 Hrs IST
5. VSPL arranged logistic to reach on 20 Aug 2012 at STPL in Kanpur
6. Excise Officers stopped the vehicle on 19 Aug 2012 at 2200 Hrs
7. Truck was containing 20 Cartons of 100 Cough syrups containing codeine phosphate (Prohibited item)
without invoice. Its against Central Excise rules
8. Truck got detained for 5 days at Kanpur Border for 5 days by Excise officers
9. At 11:30 AM dated 20.08.2012 STPL wrote email to VSPL - Expressed displeasure and asked reason
for delay
10. VSPL replied on the same email to STPL due to some unavoidable circumstances, the consignment
was delayed and every effort is being made to deliver the goods by the end of the day. Reason for delay
was not communicated by VSPL to STPL
11. There was no further communication from VSPL to STPL for the reason and that further delay is
there and delivery will be delayed
12. Truck released on 25 Aug 2012 at 20:00 Hrs.
13. Truck reached STPL in Kanpur on 26.08.2012 at 10:30 AM
14. Actual reason of delay was informed by driver to STPL Officers
15. As STPL representative understood the real reason then sent email to communicate to Mr. Vikram
Srivastava on 26.08.2012 at 1400 hrs IST, and refused delivery instantly without any further delay
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16. Reason explicitly mentioned by STPL in the same email to VSPL, that , there is huge loss to the com-
pany and about fraud as they were not informed about detainments of truck by excise officers. STPL
planned manufacturing was 23.08.2012, and STDPL had obligations to sell to clients by 25.08.2012.
17. There was a breach of exclusive supply agreement as keeping codeine phosphate syrups with their
polyester chips without seeking STPL’s consent.
18. STPL also informed VSPL, after duly assessing the loss and damages, STPL will held liable for
claims to VSPL.
19. Goodwill or reputation got deteriorated due to the supplier illegal activities (As news got published in
newspaper).
20. A legal notice served by STDPL to STPL dated 30.08.2012 STDPL asked STPL to pay a. sum of Rs.
5 crores towards loss of profits which it would have earned from the sale of goods if they were provided
by STPL in time as was agreed between them and also towards loss of goodwill in the market.
21. As STPL was being sued by STDPL for no fault of its, STPL vide a legal notice dated 02.09.2012 ter-
minated the Exclusive Supply Agreement with immediate effect
22. STPL filed a recovery suit in the Kanpur Court on 5.9.2012 while notices sent to VSPL. VSPL filed
objection under Section 8 of Arbitration and Conciliation Act 1996. Kanpur Court asked to go for arbitra-
tion
23. On 10.11.2012, STPL served notice upon VSPL invoking arbitration thereby nominating Mr. Rohit
Arora, Chief Executive Officer of STDPL as an arbitrator.
24. However, vide a reply dated 30.12.2012(50 Days later) (Issue: As per Section 11 (Within 30 days) ,
VSPL refused to agree to the appointment of the named arbitrator and instead nominated one Mr. Gau-
rang Sehdev, Retd. District Judge as an arbitrator.
25. On 15.10.2014 (1 year 9 months 15 days after reply ofVSPL and 1 year , 11 months 5 days later STPL
notice) VSPL received a notice from the Execution Court, Kanpur, that an arbitral award dated
10.10.2013 (Arbitration decisions date) passed by Mr. Rohit Arora was decreed against VSPL and the
same was made a rule of the Court.
26. As a written statement, VSPL On 30.10.2014 filed objection under Section 47 of the Code of Civil
Procedure stating that the arbitral award dated 10.10.2013 is a nullity in the eyes of law. It was also
pleaded that the said proceedings were illegal and in violation of the Arbitration & Conciliation Act. It
was further pleaded that the arbitrator had no jurisdiction and his appointment was in itself illegal. Fur-
thermore, it was contended that the termination of the said Agreement was illegal and not in accordance
with the termination clause and as such no arbitral award could have been passed.
27. STPL pleaded multiple notices were sent on VSPL address , but VSPL were intentionally or voluntar-
ily did not participated in arbitration proceedings and so now cannot deny from the arbitral award
28. It was stated that notices were also issued to VSPL by the Executing Court yet they failed to appear
before the said Court and now
when the decree is being executed, VSPL has malafidely filed objections under Section 47 of the Code of
Civil Procedure
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STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the petition filed before this Honoura-
ble Court. The petition invokes its appellate jurisdiction under Section 47 of the Code of Civil Procedure.
It sets forth the facts and the laws on which the claims are based are false
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STATEMENT OF ISSUES
1. Whether the Civil Revision filed by VSPL is maintainable before the Court?
2. Whether the appointment of Mr. Rohit Arora as an arbitrator was lawful?
3. Whether the Arbitral Award passed by the Sole Arbitrator was without jurisdiction?
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SUMMARY OF ARGUMENTS
The Civil Revision filed by VSPL under section 47 of “The Code of Civil Procedure 1908” is not main-
tainable. Firstly STPL had sent multiple notices on VSPL address but VSPL were intentionally or volun-
tarily did not participated in arbitration proceedings and so now cannot deny from the arbitral award.
Executing Court had served multiple notice to appear before the said Court and now when the decree is
being executed, VSPL has malafidely filed objections under Section 47 of the Code of Civil Procedure
1908.
As per Section 3 (1) of Arbitration and Conciliation Act, 1996, it is mentioned that , Receipt of written
communications.—
(1) Unless otherwise agreed by the parties,—
(a) any written communication is deemed to have been received if it is delivered to the addressee person-
ally or at his place of business, habitual residence or mailing address, and
(b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written
communication is deemed to have been received if it is sent to the addressee’s last known place of busi-
ness, habitual residence or mailing address by registered letter or by any other means which provides a
record of the attempt to deliver it.
When STPL proposed appointment of Arbitrator , then no communication received by VSPL for 30 days,
which is as per Arbitration and Conciliation Act, 1996 would had been served and provided disagreement.
Mr. Rohit Arora is the third party and competent enough to understand the whole business as Expert in
this domain. Also, STPL referred his name as he closely know both the parties and directly or indirectly
delas with both the companies or parties so know business and its impact
As per Section 11 of Arbitration and Conciliation Act, 1996 is lawful to appoint such a competent Arbi-
trator and also written communication was sent to VSPL regarding the same.
As per Section 11 (4) (a) of Arbitration and Concliliation Act, 1996 , it is mentioned that a party fails to
appoint an arbitrator within thirty days from the receipt of a request to do so from the other party;
Here VSPL had not sent any communication back from them within 30 days.
As per Section 11 (5), Failing any agreement referred to in sub-section (2), in an arbitration with a sole
arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one
party from the other party to so agree the appointment shall be made, upon request of a party, by 1[the
Supreme Court or, as the case may be, the High Court or any person or institution designated by such
Court].
Here Party failed within 30 days and also competent Kanpur Court as mentioned in the above section
asked to go for arbitration.
So, yes, Mr. Rohit Arora appointed as Arbitrator is lawful
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Appointed arbitrator was as pe the Arbitration clause in Agreement between STPL and VSPL, i.e. for sole
arbitrator and seat of arbitration is also same as mentioned in the agreement.
VSPL had misrepresented and did fraud and so breached the contract. As per the agreement closure in
clause 7, either party MAY by written notice inform other party in case of dispute and within 7 days, that
STPL had sent in a written format to VSPL.
As per agreement clause, both parties SHALL decide mutually convenient place and time to meet and
amicably settle dispute. There was no response from VSPL for solving the issue and so it remain disputed
for 15 days. VSPL as per the terms of the agreement would have appointed the Arbitrator, but there as
well the response was cold and no response had received.
So, at last STPL recommended Arbitrator and given 30 days time as per the Sections in Arbitration and
Conciliation Act, 1996. No response again from VSPL on the written notice. So, as per the Statute men-
tioned STPL considered as agreement as no response as agreement and went ahead with Arbitration.
So, Yes Arbitrwal award passed by the sole arbitrator was not without Jurisdiction.
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ARGUMENT ADVANCED
The Civil Revision filed by VSPL under section 47 of “The Code of Civil Procedure 1908” is not main-
tainable.
STPL had sent multiple notices on VSPL address , but VSPL were intentionally or voluntarily did not
participated in arbitration proceedings and so now cannot deny from the arbitral award.
Executing Court had served multiple notice to appear before the said Court and now when the decree is
being executed, VSPL has malafidely filed objections under Section 47 of the Code of Civil Procedure
1908.
Relying upon the decision of Madras High Court in the case Maruthi Apartments vs K.V. Narsimhan in
O.P Diary No. 116747 of 2018(A) submitting that the present petition is barred by limitation. It was argued
that attitude of petitioner amounts to ignorance of law, whereas it is settled law by Supreme Court that
ignorance of fact may be excused, but ignorance of law cannot be excused; so petition is liable to be dis-
missed
Relying upon the decision of Supreme Court in the case of Union of India & Ors vs Major General
Madan Lal Yadav (Retd.) (A), (1996) 4 SCC 127, wherein maxim of law "no man shall take advantage of
his own wrong" was reiterated. It was argued that it is settled principle of law that a man cannot be per-
mitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law and it
is sound principle that he who prevents a thing from being done shall not avail himself of the non perfor-
mance he has occasioned. A wrong doer ought not to be permitted to make a profit out of his own wrong.
Its and argument that award reflected that petitioner was given multiple opportunities to appear before Ar-
bitral Tribunal; yet petitioner failed to appear before Arbitral Tribunal and by order dated 10.10.2013 pe-
titioner was proceeded ex-parte.
So, Plaintiff’s civil revision filed is not maintainable before the court
As per Section 11 of Arbitration and Conciliation Act, 1996 is lawful to appoint such a competent Arbi-
trator and also written communication was sent to VSPL regarding the same.
As per Section 11 (4) (a) of Arbitration and Concliliation Act, 1996 , it is mentioned that a party fails to
appoint an arbitrator within thirty days from the receipt of a request to do so from the other party;
Here VSPL had not sent any communication back from them within 30 days.
As per Section 11 (5), Failing any agreement referred to in sub-section (2), in an arbitration with a sole
arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one
party from the other party to so agree the appointment shall be made, upon request of a party, by 1[the
Supreme Court or, as the case may be, the High Court or any person or institution designated by such
Court].
Here Party failed within 30 days and also competent Kanpur Court as mentioned in the above section
asked to go for arbitration.
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It is assiduously submitted that Section 16 of the said Act makes the position more clear that even an alle-
gation of such nature can be raised before the Arbitral Tribunal who is otherwise empowered to rule its
own jurisdiction and, therefore, the remedy lies by approaching the Arbitral Tribunal and not by a civil
suit. It is further submitted that the true and meaningful reading should be given to the provision con-
tained in Section 5 of the said Act which prohibits intervention by a judicial authority and relies upon a
judgment of the Apex Court in case of Empire Jute Company Limited and others -Vs- Jute Corportation
of India Limited (B) and another reported in 2007 (14) SCC 680. Counsel, would further submit that apart
from the powers reserved on the Arbitral Tribunal to rule its own jurisdiction, he has further been empow-
ered to adjudicate any objection as to the existence of the validity of the arbitration agreement and placed
reliance upon a judgment of the Supreme court in case of K Vaerner Cementation India Limited-Vs- Ba-
jranglal Agarwal and another (B) reported in 2012 (5) SCC 214. Councel would submit that the 1996 Act
is aimed to respect this special fora chosen by the party in executing a written agreement intending to
wriggle out of the normal corollary of the procedural law applicable to the ordinary civil courts and,
therefore, the jurisdiction of the Civil Court has been expressly taken away and in view of Section 9 of the
code of Civil procedure such suit is not maintainable.
So, yes, Mr. Rohit Arora appointed as Arbitrator is lawful
Counsel relying on the judgement passed by Supreme Court in case of Associate Builders vs. Delhi De-
velopment Authority (C), (2015) 3 SCC 49 has held that the interference with an arbitral award is permissi-
ble only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the
Court is shocked or when illegality is not trivial but goes to the root of the matter. It is held that once it is
found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on
facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbi-
tral award. Patent illegality must go to the root of the matter and cannot be of trivial nature.
Here, in above two points its clear that there is no illegal appointment of Arbitrator and so proceeding.
Section 21 of The Arbitration and Conciliation Act 1996, provides that unless and otherwise agreed by
the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which the
request for that dispute to be referred to the arbitration is received by the respondent. Limitation in respect
of which a request is made by one party to other party to refer such dispute to the arbitration stops when
such notice is received by other party.
Counsel like to mention that multiple notices were sent on VSPL address , but VSPL were intentionally
or voluntarily did not participated in arbitration proceedings and so now cannot deny from the arbitral
award.
So, Yes Arbitral award passed by the sole arbitrator was with Jurisdiction.
(B)https://indiankanoon.org/doc/11778190/
(C)https://indiankanoon.org/doc/42463958/
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PRAYER
In light of the issues raised, arguments advanced and authorities cited, the counsel for the Respondent
humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
1. That, the revised petition filed is not maintainable in the court of law.
2. That, the Award given under the Arbitration is lawful.
3. That the Arbitrator appointment is as accordance to the agreement and procedure laid down in Ar-
bitration and Conciliation Act 1996
5. That the Award must be executed by the VSPL to STPL
6. That, the petitioner is an assessee-in-default.
And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
And for this act of kindness, the counsel for the respondent shall duty bound forever pray.
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SRN NO: 202000063

For Partial Fulfillment of Bachelor of Laws (LLB)

BEFORE THE HON’BLE ALLAHABAD HIGH COURT

VIKRAM SUPPLIERS PRIVATE LIMITED (VSPL) (PETITIONER)

ON SUBMISSION TO THE REGISTRY OF THE COURT

MEMORIAL FOR THE RESPONDENT- SHAH TRADERS PRIVATE LIMITED (STPL)

LIST OF CONTENT PAGE NO

SVPL - Shah Traders Private Limited

STDPL - Shah Traders Distributors Private Limited

VSPL - Vikram Suppliers Private Limited

ETA- Expected time of Arrival

CPC, 1908 – Civil Procedure Code, 1908

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