Team Code: IVCAM-519

GD Goenka- CIArb (India) International Virtual Commercial

Arbitration Moot Competition, 2022

BEFORE THE ARBITRAL TRIBUNAL,

INDIA

IN THE MATTER OF

SAAS ARCH LTD..…………………………………………PETITIONER

V.

LAN DESIGN PVT. LTD………………….…………………RESPONDENT

SUBMISSION TO INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION

MEMORANDUM ON BEHALF OF THE PETITIONER

~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ 2

LIST OF ABBREVIATIONS ................................................................................................. 4

INDEX OF AUTHORITIES ................................................................................................... 5

[A] CASES ............................................................................................................................ 5

[B] STATUTES..................................................................................................................... 8
[C] BOOKS ........................................................................................................................... 8
[D] ONLINE WEBSITES .................................................................................................... 8
[E] ARTICLES/JOUNRALS .............................................................................................. 8
STATEMENT OF JURISDICTION .................................................................................... 10

STATEMENT OF FACTS .................................................................................................... 11

ISSUES RAISED.................................................................................................................... 13

SUMMARY OF ARGUMENTS........................................................................................... 14

ARGUMENTS ADVANCED................................................................................................ 15

ISSUE 1: WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION TO HEAR

THE PRESENT DISPUTE, IN LIGHT OF NON-COMPLIANCE OF THE
CONDITIONAL CLAUSE UNDER THE AGREEMENT FOR INITIATING
ARBITRATION? ................................................................................................................... 15

[1.1] Applicability of the ICDR rules as amended w.e.f 1st March 2021............................. 15
[1.2] Competence of courts .................................................................................................. 15
[1.3] Statutory interpretation of Article 21 of ICDR empowers the arbitral tribunal to hear
the present dispute ................................................................................................................ 16
[1.4] The tribunal has jurisdiction under clause 8 of Job Work Agreement to hear the
present dispute. ..................................................................................................................... 16
[1.4.1] Non-diligence on the part of the LAN .................................................................. 16
[1.4.2] Silence on part of SAAS did not amount to acceptance ....................................... 17
ISSUE 2: WHETHER AN ANTI-SUIT INJUNCTION IS TO BE PASSED
RESTRAINING LAN FROM APPROACHING RELEVANT COURTS?..................... 18

[2.1] Anti-injunction suit is necessary in light of the fact to give proper effect to the
arbitration tribunal orders ..................................................................................................... 19

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[2.2] The respondent should be restrained from forum shopping ........................................ 20

ISSUE 3: WHETHER PRICE ESCALATION AS CLAIMED BY LAN IS PAYABLE?
.................................................................................................................................................. 21

[3.1] Time period of price escalation is not governed by JWA or Additional Agreement .. 21
[3.2] LAN did not give timely notice of the escalated prices to SAAS ............................... 22
[3.3] The price escalation report presented to SAAS was dubious ...................................... 22
[3.4] The doctrine of unclean hands disentitles LAN from asking for price escalation....... 23
ISSUE 4: WHETHER THE DELAY IN COMPLETION OF PROJECT IS
ATTRIBUTABLE TO LAN AND CONSEQUENTLY, IS SAAS ENTITLED TO BE
COMPENSATED WITH 6,000,000 POUNDS FOR ALLEGED BREACH OF
CONTRACTUAL TERMS BY LAN? ................................................................................. 23

[4.1] LAN breached clause 6 the agreement ........................................................................ 23

[4.1.1] Time was of the essence in the agreement ............................................................ 24
[4.1.2] Services were put to halt by LAN ......................................................................... 25
[4.2] SAAS suffered loss of profit due to the non-completion of the project. ..................... 25
[4.3] SAAS was entitled to recover damages from LAN ..................................................... 26
ISSUE 5: WHETHER LAN IS ENTITLED TO THE COUNTER-CLAIM OF 3,725,000
POUNDS FOR ESCALATED PRICES AND COMPENSATION FOR ALLEGED PRE-
MATURE TERMINATION OF CONTRACT BY SAAS? ............................................... 27

[5.1] Time is the essence of the contract .............................................................................. 27

[5.2] One who seeks equity must come to court with clean hands ...................................... 27
[5.3] The termination of the agreement was valid ............................................................... 28
PRAYER ................................................................................................................................. 29

~ MEMORANDUM ON BEHALF OF PETITIONER ~ PAGE | 3

~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AAA American Arbitration Association

AIR All India Reporter

Anr. Another

Bom. Bombay

Cas. Cases

Co. Company

Del Delhi

Ed. Edition

Govt. Government

HC High Court

ICDR International Centre for Dispute Resolution

JWA Job Work Agreement

Ltd. Limited

M/S Messrs

Ors. Others

Pvt. Private

SCC Supreme Court Cases

SCR Supreme Court Reporter

SRA Specific Relief Act

UK United Kingdom

v. versus

WLR Weekly Law Reports

~ MEMORANDUM ON BEHALF OF PETITIONER ~ PAGE | 4

~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

INDEX OF AUTHORITIES

[A] CASES

A. Ayyasamy v. A. Paramasivam and Ors, (2016) 10 SCC 386.........................................19

Alopi Parshad v. Union of India, AIR 1960 SC 588...........................................................20

Anandram Mangturam v. Bholaram Tanumal, (1945) SCC OnLine Bom 12 : AIR 1946 Bom
1...........................................................................................................................................21

Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534 : (2005) SCC OnLine SC

1374.....................................................................................................................................22

Bank of Nova Scotia v. Hellenic Mutual War Risks Association (Bermuda) Ltd, (1992) 1 AC
233.......................................................................................................................................25

Bhagwandas Goverdhandas Kedia v M/S Girdharilal Parshottamdas, 1966 SCR (1)

656.......................................................................................................................................21

BhagwandasGoverdhandasKedia v. M/S. GirdharilalParshottamdas, 1966 SCR (1)

656.......................................................................................................................................17

Bishamber Nath Agarwal v. Kishan Chand, AIR 1990 All 65...........................................27

Bowes v. Shand (1877) 2 A.C.455......................................................................................27

Bina Modi &Ors v. Lalit Modi & Ors, 2020 (2) ArbLR 446..............................................18

BV Nagaraju v. Oriental Insurance Co Ltd, AIR 1996 SC 2054........................................17

Charlie's Project, LLC v. T2B, LLC, No. 1:18-cv-11240, 2019 U.S. Dist. LEXIS
23128...................................................................................................................................16

Chennai Metropolitan Water Supply and Sewerage Board and Others v. TT Murali Babu,
(2014) SCC 108..................................................................................................................22

Common cause v. Union of India, (2018) SCC OnLine SC 945.......................................26

DLF Universal Ltd. v. Atul Limited, (2009) SCC OnLine Del

10220.................................................................................................................................28

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Delta International Ltd vs Shyam Sunder Ganeriwalla and Anr, (1999) 4 SCC 545: SCC
OnLine SC 423................................................................................................................22

DuroFelguera S.A. v. Gangavaram Port Ltd, (2017) 9 SCC 729....................................15

Douglas v. Regions Bank, 757 F.3d 460, 464 (5th Cir. 2014) .......................................16

Felthouse v. Bindley, (1862) EWHC CP J35..................................................................17

GAIL India Ltd. v. Bal Kishan Agarwal Glass Industries Pvt Ltd., (2008) 8 SCC
161...................................................................................................................................19

Himachal Joint Venture v. Panilpina World Transport, AIR 2009 Del 88....................26

Indo Pacific Software And Entertainment Ltd v. Nagpur Imprivemnt Trust And Anr., 2011(2)
Arb. L.R. 354 (Bom).......................................................................................................19

Jamshed Khoduram Irani v. BurjorjiDhunjibhai, AIR 1915 PC 83................................24

Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647: AIR 1992 SC 1604........................26

Jawaharlal Wadhwa v. HaripadaChokroberty, AIR 1989 SC 606..................................17

Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills, AIR 1958 SC 512.....................21

Kvaerner Cementation India Ltd. v. Bajranglal Agarwal & Anr, (2012) 5 SCC 214....18

Luzon Hydro Corporation v. Hon. Rommel O. Baybay, C.A-G.R. S.P. No. 94318, (2006)

…………………………………………………………………………………………20

LMJ International Ltd v. Sleepwell Industries Co. Ltd. and Anr, (2019) 5 SCC
302..................................................................................................................................18

MD, Army Welfare Housing Organization v. Sumangal Services Pvt Ltd., (2004) 9 SCC
619..................................................................................................................................19

Mohammad Zafar Ahmad Khan v. Hamida Khatoon, AIR 1945 All 70.......................24

Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52.............................20

Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985) ......................................20

M/S. Alopi Parshad & Sons, Ltd v. The Union of India, 1960 SCR (2) 793.................25

Murlidhar Chiranjilal v. Harish Chandra Dwarkadas, (1962) 1 SCR 653.....................26

Mukesh Singh and Ors. v. Saurabh Chaudhary and Others, (2015) 1 SCC 705............29

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M/S.D.R.Logistics (P) Limited v. Pridhvi Asset Reconstruction, 2019 Mad

HC....................................................................................................................................28

M.V. Lupex v. Nigeria Overseas Chartering & Shipping Ltd., (2003) 10 S.C.M. 71 at
79......................................................................................................................................20

National Aluminium Company Limited v. Subhash Infra Engineers Private Limited, (2019)
SCC OnLine SC 1091......................................................................................................19

P John Chandy and Co. Ltd v. John P Thomas, (2005) 5 SCC 90: (2002) SCC OnLine SC
352....................................................................................................................................21

Percy Bilton Ltd. v. Greater London Council, [1982] 1 WLR 794..................................24

PannalalJankidas v. Mohanlal and Another, AIR 1951 SC 144.......................................25

Pakharsingh v. Kishansingh, AIR 1974 Raj 112..............................................................24

Pulgaon Cotton Mills v. Gulabai, AIR 1953 Nag. 345.....................................................24

Republic of Ecuador v. Occidental Exploration (2006) EWHC (Comm) 345, 1 Lloyd’s Rep
773 (Eng.) .........................................................................................................................19

Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 63 (2010) ...........................................16

Robinson v. Harman, (1848) 1 Ex 850..............................................................................25

SPA Agency(I) Pvt Ltd v. Harish Rawtani, (2010) 2 ALR 221........................................19

State of Madhya Pradesh and Ors. v. M/S Recondo Limited, Bhopal, (1989) SCC OnLine MP
156.....................................................................................................................................28

Shambhulal Panalal Vaish v. Secretary of State, (1939) SCC OnLine Sind JC 1 : AIR 1940
Sind 1................................................................................................................................27

Sancorp Confectionary v. Gumlik, MANU/DE/5247/2012............................................19

Team Y & R Holdings Hong Kong Ltd and Ors v. Ghossoub and Cavendish Square Holding
BV and Anr., (2017) EWHC 2401 (Comm).....................................................................20

Tehrani v. Secy of State for the Home Department, (2006) UKHL 471..........................20

Victoria Laundry (Windsor Ltd.) v. Newman Industries Ltd., (1949) 2 K.B.

528.................................................................................................................................... 26

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

[B] STATUTES

1. The Indian Contract Act, 1872, §37, No. 9, Acts of Parliament, 1872 (India).
2. The Indian Contract Act, 1872, §39, No. 9, Acts of Parliament, 1872 (India).
3. The Indian Contract Act, 1872, §63, No. 9, Acts of Parliament, 1872 (India).
4. The Indian Contract Act, 1872, §73, No. 9, Acts of Parliament, 1872 (India).
5. The Specific Relief Act, 1963, §16, No. 47, Acts of Parliament, 1963.
6. The Specific Relief Act, 1963, §21, No. 47, Acts of Parliament, 1963.
7. The Arbitration and Conciliation Act, 1996, No. 26, Act of Parliament (1996).
8. International Dispute Resolution Procedures’, International Centre for Dispute
Resolution, 1 March 2021, (‘2021 ICDR Rules’).
9. Art. 8 of the UNCITRAL Model Uw, or Art. 11(3) of the New York Convention.

[C] BOOKS

1. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF, (12th ed. 2017)

2. MARTIN HUNTER ET AL., LAW AND PRACTICE OF INTERNATIONAL
COMMERCIAL ARBITRATION 77 (4th ed. 2004);

3. BLACK LAW’S DICTIONARY (10th Ed. 2014).

[D] ONLINE WEBSITES

1. Lexis Nexis (www.lexisnexis.com)

2. Manupatra (www.manupatra.com)

3. SCC Online (www.scconline.in)

[E] ARTICLES/JOURNALS

1. Barry Nicholas, Force Majeure and Frustration, 27 AM. J. COMP. L. 231, 237 (1979)

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

2. B.V.R Sarma, Adjudication of claim for damages under Sections 73, 74 and 75 of Indian
Contract Act, 1872 (Date Accessed :15 Feb 2022)
http://docs.manupatra.in/newsline/articles/Upload/30C28D5D-262B-4A4A-AE17-
C4D86F92BCE0.pdf
3. B.V.R Sarma, Adjudication of claim for damages under Sections 73, 74 and 75 of Indian
Contract Act, 1872 (Date Accessed :15 Feb 2022)
http://docs.manupatra.in/newsline/articles/Upload/30C28D5D-262B-4A4A-AE17-
C4D86F92BCE0.pdf
4. CISG Advisory Council Opinion No.13,’Inclusion of Standard Terms under the CISG’
(CISG PACE LAW, 2013) http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html
accessed on 12.02.2018;
5. Dionysios P. Flambouras, The Doctrines of Impossibility of Performance and clausula
rebus sic stantibus in the 1980 Vienna Convention on Contracts for the International
Sale of Goods and the Principles of European Contract Law: A Comparative Analysis,
13 PACE INT'L L. REV. 267, 270 (2001).
6. Okuma Kazutake, Arbitration and Party Autonomy, 38 Seinan L. Rev. 1, 2 (2005).
7. Omri Ben-Shahar, A Bargaining Power Theory of Default Rules, 9 COL LAW REV.,
109 (2009).
8. Steptoe & Johnson LLP, US Supreme Court's Decision in Henry Schein Inc. v. Archer
and White Sales Inc. is Not as Clear as Everyone Says, 2019.

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

STATEMENT OF JURISDICTION

The petitioners have the honour to submit the present dispute before the Arbitral Tribunal in
adherence to clause 8 of the Job Work Agreement 1 between both the parties which states:
“Any dispute arising under or in connection with this Agreement, relating to its validity,
performance, breach, termination, or related matter, may be resolved, by referring the dispute
for arbitration with the International Centre for Dispute Resolution (ICDR) pursuant to its
rules and procedures. The said arbitration shall be before a panel of three arbitrators with one
arbitrator being appointed by SAAS, and another arbitrator being appointed by LAN from the
Panel of Arbitrators while the presiding arbitrator shall be appointed by the ICDR. The seat
of arbitration shall be India. The language of the proceedings will be English. The arbitration
shall be invoked only upon expiry or termination of the Agreement.”
And also empowered by clause 1 of Article 21 of ICDR Rules, 2021 as amended w.e.f. 1 st
March 20212which states:
“The arbitral tribunal shall have the power to rule on its own jurisdiction, including any
objections concerning arbitrability, to the existence, scope, or validity of the arbitration
agreement(s), or concerning whether all of the claims, counterclaims, and setoffs made in the
arbitration may be determined in a single arbitration, without any need to refer such matters
first to a court.”

1
Moot Proposition, Annexure-I, Clause 8.
2
International Dispute Resolution Procedures’, International Centre for Dispute Resolution, 1 March 2021,
(‘2021 ICDR Rules’).

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

STATEMENT OF FACTS

Background
SAAS Arch LTD. (hereinafter referred to as “SAAS”) is an English Company that provides
construction service on the shores of England and Wales and works on Governmental Contracts. LAN
Design Pvt. Ltd. (hereinafter referred to as “LAN”) is a Company incorporated in India and has been in
the business of Interior Designing on an international level. SAAS secured a tender issued by the
Government of the UK for the construction of a twenty-storey hospital for which SAAS could contract
any number of sub-contractors. On 28th February 2017, SAAS and LAN entered into a Job Work
agreement for 3 years.

Execution of the Job Work Agreement and signing Additional Agreement

Within one year LAN executed interior works for 5 floors for which 1,000,000 Pounds were
duly paid by SAAS. Meanwhile, the hospital became a pitch for the ruling party’s campaign
due to which the government authorized additional funds for the work. Consequently, on 1
March 2018 both the parties entered into an additional agreement engaging LAN to provide its
signature ‘LAN’s Hands’ service for the remaining 15 floors. LAN raised the issue of time
extension here but it remained unanswered.
On the Job Work Agreement expired on 27 February 2020, 10 floors were left unfurnished.
LAN sent an e-mail to SAAS demanding the payment of 1,500,000 pounds for the additional
5 completed floors and demanding additional time for completion of work and continued with
the work. Due to the onset of the Covid-19 pandemic, LAN had to pay higher prices for raw
materials and higher wages to the labour for the five floors completed during this time. On 22nd
August 2020 SAAS made the payment against the invoice sent on 27 February 2020.
Finally, on 26th August 2020, both the parties signed an additional agreement to extend the
time period by one year ending on 25th August 2021.

Straining Of Relationship Between the Parties

LAN invoked clause 4 of the Job Work Agreement for claiming 1,725,000 pounds for the five
floors completed due to 15% escalation in the prices on 27 th August 2020 along with a
certificate issued by ‘Watch price’, an organization prescribed by SAAS.
In the response, SAAS opposed these invoices because LAN had violated clause 6 of the JWA,
and the time period of escalation was not covered by any agreement. LAN responded vide e-

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

mail dated 28th August 2020 mentioning that clause 4 read with clause 5 made LAN eligible
for claiming escalated prices.
Meanwhile, an article alleging Indian Companies for taking unfair advantage of pandemic and
manipulating prices was published in an investigative journal on 10 th October 2020 and the
government of the UK had issued a show-cause notice against ‘Price is Right’ which is a related
party company of ‘Watch price’. Hence, SAAS held the price escalation report sent by LAN to
be dubious, and the relationship between both parties strained.

Consequences Of the Strained Relationship

LAN had put a halt at all its services due to which SAAS was forced to hire ‘TED’ at 2,000,000
Pounds for the completion of the remaining five floors. Due to the delay in the completion of
the project, the government of the UK commenced arbitration against SAAS seeking a
compensation of 1,000,000 pounds, and the govt. black-listed SAAS from all its future projects.
SAAS issued a legal notice to LAN on 1 January 2021 claiming compensation for the breaches
and communicated its intention to arbitrate the dispute in the event of non-payment. LAN
through its notice dated 25th January 2021 denied all allegations of SAAS and demanded due
payments and damages for hiring TED Ltd. It further objected to arbitration as the Job Work
Agreement was not terminated and reserved its right to move to appropriate Courts in India.
On 15th February 2021, SAAS issued notice to the arbitrator of ICDR and invoked arbitration
under Clause 8 of the JWA claiming anti-suit injunction and compensation of 6,000,000 pounds
from LAN.
In response to the aforementioned Notice, LAN filed their Statement of Defence/Counterclaim
on 25th March 2021, while reserving its right to contest the jurisdiction of the arbitration
tribunal, contending Arbitral Tribunal was devoid of jurisdiction as the agreement was not terminated,
demanding pending payment of 1,725,000 Pounds and compensation of 2,000,000 Pounds for breach
of contract by SAAS.

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

ISSUES RAISED

~ ISSUE 1 ~

WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION TO HEAR THE

PRESENT DISPUTE, IN LIGHT OF NON-COMPLIANCE OF THE CONDITIONAL
CLAUSE UNDER THE AGREEMENT FOR INITIATING ARBITRATION?

~ ISSUE 2 ~

WHETHER AN ANTI-SUIT INJUNCTION IS TO BE PASSED RESTRAINING LAN

FROM APPROACHING RELEVANT COURTS?

~ ISSUE 3 ~

WHETHER PRICE ESCALATION AS CLAIMED BY LAN IS PAYABLE?

~ ISSUE 4 ~

WHETHER THE DELAY IN COMPLETION OF PROJECT IS ATTRIBUTABLE TO

LAN AND CONSEQUENTLY, IS SAAS ENTITLED TO BE COMPENSATED WITH
6,000,000 POUNDS FOR ALLEGED BREACH OF CONTRACTUAL TERMS BY
LAN?

~ ISSUE 5 ~

WHETHER LAN IS ENTITLED TO THE COUNTER-CLAIM OF 3,725,000 POUNDS

FOR ESCALATED PRICES AND COMPENSATION FOR ALLEGED PRE-MATURE
TERMINATION OF CONTRACT BY SAAS?

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

SUMMARY OF ARGUMENTS

ISSUE 1
It is here most humbly submitted that the arbitration tribunal has jurisdiction to try the dispute
because of the applicability of the ICDR rules as amended w.e.f 1st march 2021, the competence
of courts, statutory interpretation of article 21 of ICDR empowers the arbitral tribunal to hear
the present dispute and the tribunal has jurisdiction under clause 8 to hear the present dispute.

ISSUE 2
It is humbly submitted that the tribunal has the power to grant an anti-suit injunction as it does
not limit the inherent right of the person to approach the court since the tribunal has jurisdiction
under clause 8 of the JWA to hear the present dispute and there was a termination of the
agreement on part of LAN, the arbitration act also empowers the tribunal to grant such interim
measures and equitable Remedy is available to the respondent.

ISSUE 3
It is contended that the price escalation is not payable by SAAS because the extension made
the agreements applicable from 26 August 2020 to 25 August 2021 so the time period of
escalation was not covered. The reports presented by SAAS were also dubious and due to the
doctrine of unclean hands, LAN lost its right to claim specific performance by SAAS.

ISSUE 4
It is contended that the delay is attributable to LAN because clause 6 of the JWA was violated
by LAN and it abandoned the project led toa delay in completion. SAAS lost profits due to
this. § 21 of the specific relief act and§ 73 of the Indian Contract Act provide that compensation
can be claimed by SAAS for the breach of the agreement by LAN.

ISSUE 5
It is humbly submitted that the LAN is not entitled to put a counter-claim of 3,725,000 pounds
as LAN has itself breached clause 6 of the contract due to which SAAS had to suffer losses
and so, the termination of the agreement by SAAS was valid because LAN stopped rendering
services.

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION TO

HEAR THE PRESENT DISPUTE, IN LIGHT OF NON-COMPLIANCE OF THE
CONDITIONAL CLAUSE UNDER THE AGREEMENT FOR INITIATING
ARBITRATION?

(¶1) It is here most humbly submitted that the arbitration tribunal in the instant case has the
jurisdiction to try the dispute as Article 21 of the International Dispute Resolution Rules
(hereinafter “ICDR”) 3 empowers the tribunal to rule on its jurisdiction, including the questions
about the arbitrability, or the validation of the arbitration agreement, without there being any
need for the reference to the courts, implying thereby that the arbitration tribunals have the
exclusive jurisdiction.

[1.1] Applicability of the ICDR rules as amended w.e.f 1st March 2021
(¶2)The ICDR Rules, 2021 as amended w.e.f. 1st March 2021 shall apply to the present case
at hand owing to the fact that as per clause 5 of Article 2, when the Arbitrator has received the
notice from the parties, thereafter he shall acknowledge the commencement, and in the present
case since the parties have agreed to be guided by AAA-ICDR Model Order, where under point
5, date of commencement shall be entered by the arbitrator. Thus, it could be said that in the
present case when after receiving the notices from the parties, the ICDR had communicated an
email on 20th April 2021, therefore ICDR Rules, 2021 would apply to the present case.

[1.2] Competence of courts

(¶3)It is herein submitted that the kompetenz-kompetenz principle implies that the tribunal
could decide on its jurisdiction for proceeding with the case. In the case of Duro Felguera S.A.
v. Gangavaram Port Ltd, it has been held by the Apex Court that the issue of the jurisdiction
must be left in toto and entirety for the determination by the tribunal. 4Article 21(1) clarifies
and further strengthens the concept that the tribunal has the jurisdiction to determine
arbitrability objections without court involvement. It could be manifested from the agreement

3
‘International Dispute Resolution Procedures’, International Centre for Dispute Resolution, 1 March 2021,
(‘2021 ICDR Rules’).
4
DuroFelguera S.A. v. Gangavaram Port Ltd, [(2017) 9 SCC 729]

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entered into between LAN and SAAS that they had agreed for the dispute to be decided through
arbitration.5 It is herein further submitted that agreement explicitly contained to arbitrate under
AAA rules, and AAA Rules has a competence-competence clause, which furnishes the tribunal
to decide arbitrability.6 Thus, it could be said that by agreeing to AAA rules, the parties had in
unequivocal terms delegated the question of arbitrability to the arbitrator 7, and such delegation
is the valid delegation of the arbitrability. 8
Further, any agreement entered into by the parties to delegate disputes to the tribunals ought to
be respected by the courts. 9 And, any impediment: like the dispute could not be decided by the
tribunal would not defeat the power of the arbitration tribunal to decide the arbitrability. 10

[1.3] Statutory interpretation of Article 21 of ICDR empowers the arbitral tribunal to

hear the present dispute
(¶4)Clause 1 of Article 21 provides that- “The arbitral tribunal shall have the power to rule on
its own jurisdiction, including any objections concerning arbitrability, to the existence, scope,
or validity of the arbitration agreement(s), or concerning whether all of the claims,
counterclaims, and setoffs made in the arbitration may be determined in a single arbitration,
without any need to refer such matters first to a court.”11Thus, in the present case it could be
said that the ending of the Article which states without any need to refer such matters to a
court, is explicit, unequivocal, and clear in terms and does not warrant any other interpretation
than the fact that when there is a question of arbitration jurisdiction is involved, the institution
to decide on its arbitrability would be arbitration tribunal and not courts.

[1.4] The tribunal has jurisdiction under clause 8 of Job Work Agreement to hear the
present dispute.
[1.4.1] Non-diligence on the part of the LAN

(¶5)The tribunal has jurisdiction to hear the present dispute as per clause 8 of Job Work
Agreement(hereinafter referred to as JWA), whereby if the agreement has been terminated or
expired, any dispute arising thereunder could be referred to arbitration. As per § 37 of the

5
Moot Prop, ¶5.
6
Steptoe & Johnson LLP, US Supreme Court's Decision in Henry Schein Inc. v. Archer and White Sales Inc. is
Not as Clear as Everyone Says, 2019.
7
Moot Proposition, Annexure-I, Clause 8.
8
Charlie's Project, LLC v. T2B, LLC, No. 1:18-cv-11240, 2019 U.S. Dist. LEXIS 23128
9
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 63 (2010).
10
Douglas v. Regions Bank, 757 F.3d 460, 464 (5th Cir. 2014)
11
Supra note 2.

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~GD Goenka- CIArb (India) International Virtual Commercial Arbitration Moot Competition, 2022~

Indian Contract Act1872,(hereinafter referred to as ICA), the parties to the contract must fulfil
their respective promises. If any party refuses to perform or has failed in performing his part
of the contract then in such a case the other party may put an end to the contract. 12 In the instant
case, the LAN Pvt. Ltd. had stopped rendering the services, thus thereby restraining himself
from performing his part of the contract, had proffered the option to the SAAS Ltd. to put an
end to the contract, and a fortiori invoke the arbitration clause under clause 8 of the JWA.

(¶6)In the case of BV Nagaraju vs. Oriental Insurance Co Ltd13, it has been held by the apex
court that every contract contains a core and fundamental obligation which must be performed,
and in the instant case, it was for the LAN to complete the remaining 5 floors. Further, in the
case of Jawaharlal Wadhwa vs. Haripada Chokroberty, it has been held that “it is settled in
law that where a party to a contract commits an anticipatory breach of contract, the other
party to the contract may treat the breach as putting an end to the contract and sue for
damages.”14

[1.4.2] Silence on part of SAAS did not amount to acceptance

(¶7)When the question about the extension of the time has been brought by the LAN, the same
has not been paid heed to by the SAAS, implying thereby that there was no acceptance. The
main cardinal crux of the contract law which is consensus ad idem is missing herein. As per §
2 of the ICA,1872 when a person expresses his willingness to the other, then when whereupon
such offer, another person signifies the assent thereto, the promise is said to be made. What is
pertinent is the requirement of some external manifestation by speech, writing, etc. 15 Thus, it
could be said that the silence did not amount to the acceptance 16 on part of SAAS in the present
case.

(¶8)Therefore, it could be said that LAN has not worked diligently nor has completed the task
in due time when there was no extension granted on part of SAAS, thus as per Clause 8 of the
Job Work Agreement which states that the matter may be resolved by referring the dispute for
arbitration with the IDCR if there is any dispute arising which pertains to the validity,
performance, breach, termination of the agreement and the non-completion of the task(not

12
§39, The Indian Contract Act, 1972, No. 9, Acts of Parliament, 1872 (India).
13
BV Nagaraju v. Oriental Insurance Co Ltd, AIR 1
996 SC 2054.
14
Jawaharlal Wadhwa v. HaripadaChokroberty, AIR 1989 SC 606.
15
BhagwandasGoverdhandasKedia v. M/S. GirdharilalParshottamdas, 1966 SCR (1) 656.
16
Felthouse v. Bindley, (1862) EWHC CP J35.

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completing the task within 3 years- breach of the time period) relates to disputes in a matter of
performance and breach of the agreement which gives the Arbitral Tribunal the authority to
hear the present matter before them.

ISSUE 2: WHETHER AN ANTI-SUIT INJUNCTION IS TO BE PASSED

RESTRAINING LAN FROM APPROACHING RELEVANT COURTS?

(¶9)It is contended that since there is an arbitration clause in JWA and there has been a
termination of the agreement and any dispute arising out of the agreement will be resolved via
the tribunal and § 817 of the ACA states that if there is an arbitration clause in the agreement
the civil courts are barred from interfering into such proceedings.

(¶10)LAN also did not work diligently, did not complete the task given in the specified time as
per the agreement, and has made faulty claims about the invoices via means of price escalation,
which empowers and gives SAAS the right as mentioned in clause 8 18 of JWA. Therefore,
SAAS contends that an anti-suit injunction should be given preventing LAN from approaching
other courts in the said matter.

(¶11)Arbitration tribunal has the autonomy to decide the questions, for this reliance has been
placed on the judgement of the Delhi Court in the case of Bina Modi &Ors v. Lalit Modi
&Ors19, which in turn has placed the reliance on the judgement of the Apex Court in the case
of the Kvaerner Cementation India Ltd. v. Bajranglal Agarwal &Anr, wherein it has been held
that “the arbitral tribunal has the power to decide even questions of its jurisdiction,”20and by §
5 read with § 16 of the Arbitration and Conciliation Act, 1996.Moreover, the arbitration act is
the entire code in itself, and it empowers the arbitration tribunal to rule on its own jurisdiction,
based on the principle of kompetenz-kompetenz, and even all the objections are to be heard by
the tribunal itself.21 And, even if there is any objection as to the validity then, that also has to

17
The Arbitration and Conciliation Act, 1996, No. 26, Act of Parliament (1996).
18
Moot Proposition, Annexure-I, Clause 8
19
Bina Modi &Ors v. Lalit Modi & Ors, 2020 (2) ArbLR 446.
20
Kvaerner Cementation India Ltd. v. Bajranglal Agarwal & Anr, (2012) 5 SCC 214.
21
Sancorp Confectionary v. Gumlik, MANU/DE/5247/2012; LMJ International Ltd v. Sleepwell Industries Co.
Ltd. and Anr, (2019) 5 SCC 302.

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be decided by the tribunal itself. 22 It was also held that the suit for the declaration of anything
or any kind of the injunction could not be maintained.23

[2.1] Anti-injunction suit is necessary in light of the fact to give proper effect to the
arbitration tribunal orders

(¶12)The “tribunal must have the power to make orders that are intended to give the proper
effect to its primary order.”24 The court used this reasoning to justify an anti-suit injunction
granted by the tribunal, where it was accepted that the injunction itself was a “consequential
declaration that was rendered to protect the effectiveness of the tribunal’s earlier order holding
that the investor is entitled to monetary compensation.

(¶13)The parties who enter into an arbitration agreement accept, by definition, to waive their
right to resort to domestic courts for the settlement of their dispute. By entering into the
arbitration agreement, the parties undertake to submit to arbitration any disputes covered by
their agreement, thereby renouncing to have recourse to the courts of a given country for the
settlement of the same disputes, 25 an arbitral tribunal is empowered to grant an interim measure
of protection26 under S. 17(1) (ii) (e) 27 of the Arbitration Act, in every case as it considers
necessary28 in respect of the subject matter of the dispute.29 The purpose of such order would
be to prevent any disadvantage or prejudice to be caused to the party. 30 Thus, it is hereby
submitted that not restraining the Respondent from approaching the court might result in
prejudice to the claimant in regards to the subject matter of the dispute.

(¶14)By issuing anti-suit injunctions, tribunals are merely upholding contractual agreements
between parties to submit disputes to arbitration. The respondent is eligible to recourse to a
Court against an arbitral award under § 3431 of the Act if not satisfied with the decision.32 Thus

22
A. Ayyasamy v. A. Paramasivam and Ors, (2016) 10 SCC 386; National Aluminium Company Limited v.
Subhash Infra Engineers Private Limited, (2019) SCC OnLine SC 1091.
23
Id.
24
Republic of Ecuador v. Occidental Exploration (2006) EWHC (Comm) 345, 1 Lloyd’s Rep 773 (Eng.).
25
Art. 8 of the UNCITRAL Model Uw, or Art. 11(3) of the New York Convention.
26
GAIL India Ltd. v. Bal Kishan Agarwal Glass Industries Pvt Ltd., (2008) 8 SCC 161.
27
The Arbitration and Conciliation Act, 1996, No. 26, Act of Parliament (1996).
28
SPA Agency(I) Pvt Ltd v. Harish Rawtani, (2010) 2 ALR 221.
29
MD, Army Welfare Housing Organization v. Sumangal Services Pvt Ltd., (2004) 9 SCC 619.
30
Indo Pacific Software And Entertainment Ltd v. Nagpur Imprivemnt Trust And Anr., 2011(2) Arb. L.R. 354
(Bom).
31
The Arbitration and conciliation Act, 1996, No. 26, Acts of Parliament, 1996.
32
Alopi Parshad v. Union of India, AIR 1960 SC 588.

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the anti-suit injunction will not deprive the party of its right to be heard rather it is just being
curtailed to the point it is prejudice to the other party.33 Hence respondent’s right to approach
court is not violated by the tribunal’s anti-suit injunction.

[2.2] The respondent should be restrained from forum shopping

`(¶15)The claimant’s choice of a proper forum is a paramount consideration in any

determination of a transfer request, and that choice should not be disturbed.34 By virtue of
principle of party autonomy 35 (l’autonomie de la volente), parties to a contract are free to
choose their own law, to govern the procedural and substantive aspects of their arbitration, 36
as well the terms of their contract, subject to the rules of public policy 37 and public order.38

(¶16)Thus, as per the principle of contra proferentem39 LAN should be prevented from gaining
the benefit of “indifferent choice of the forum convenience”. 40Since here more than one forum
is available, the tribunal should take consonance of the convenience of the parties, 41 and should
grant an anti-suit injunction in regard to proceedings. Both local civil procedure law in some
cases and the 1968 Convention on Jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters (‘Brussels Convention’) and the 1988 Convention on Jurisdiction and
Enforcement of Judgments in Civil and Commercial Matters (‘Lugano Convention’) may apply
to prevent parallel proceedings regarding the same subject matter between the same parties in
different jurisdictions. From the viewpoint of the judicial system, such proceedings are highly
inefficient and also bring about the danger of conflicting judgements.

33
Team Y & R Holdings Hong Kong Ltd and Ors v. Ghossoub and Cavendish Square Holding BV and Anr.,
(2017) EWHC 2401 (Comm).
34
Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985).
35
M.V. Lupex v. Nigeria Overseas Chartering & Shipping Ltd., (2003) 10 S.C.M. 71 at 79; see also: (2003) 15
N.W.L.R. (Pt. 844) 569.
36
UNCITRAL Model Law, art. 19 (1).
37
Luzon Hydro Corporation v. Hon. Rommel O. Baybay, C.A-G.R. S.P. No. 94318, (2006).
38
MARTIN HUNTER ET AL., LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION 77 (4th ed. 2004); OkumaKazutake, Arbitration and Party Autonomy, 38 Seinan L. Rev. 1, 2
(2005).
39
CISG Advisory Council Opinion No.13,’Inclusion of Standard Terms under the CISG’ (CISG PACE LAW,
2013) http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html accessed on 12.02.2018; Art. 4.6, UNIDROIT
Principles 2016; Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52.
40
Omri Ben-Shahar, A Bargaining Power Theory of Default Rules, 9 COL LAW REV., 109 (2009).
41
Tehrani v. Secy of State for the Home Department, (2006) UKHL 471.

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ISSUE 3: WHETHER PRICE ESCALATION AS CLAIMED BY LAN IS PAYABLE?

(¶17)It is humbly contended that the price escalation claimed by LAN is not payable firstly, as
the time period of price escalation will not be governed by job work agreement or additional
agreement [3.1]. Secondly, the respondent did not give timely notice of the escalated prices to
the claimant [3.2]. Thirdly, the price escalation report presented to SAAS was dubious [3.3].
Fourthly, the doctrine of unclean hands disentitles LAN from asking for price escalation [3.4].

[3.1] Time period of price escalation is not governed by JWA or Additional Agreement

(¶18)Inaction in every case does not necessarily lead to implied consent, to establish implied
consent there has to be something more than a mere lack of inaction on part of the landlords. 42
There must be some external manifestation of that intent by speech, writing, or other act. 43 A
promisee cannot by unilateral act extend the time of performance of his own accord and for his
benefit and that consent of that party is necessary. 44 It is only at the request of the promisor that
the promisee may agree to extend the time of performance and thereby bring about an
agreement for extension of time. Therefore, it is only as a result of the operation of § 6345 that
the time for the performance of the contract can be extended and that time can only be extended
by an agreement arrived at between the promisor and the promisee. 46

(¶19)The demand for the additional time as raised by LAN on 1 March 2018 and 27 February
2020 was not accepted by SAAS. The JWA had expired on 27 February 2020. On 26 August
2020, the additional time limit was granted. Due to this one-year extension, the agreements
were further applicable for the period between 26th August 2020 and 25th August 2021 only.47

42
P John Chandy and Co. Ltd v. John P Thomas, (2005) 5 SCC 90: (2002) SCC OnLine SC 352.
43
Bhagwandas Goverdhandas Kedia v M/S Girdharilal Parshottamdas, 1966 SCR (1) 656.
44
Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills, AIR 1958 SC 512.
45
The Indian Contract Act, 1872, §63, No. 9, Acts of Parliament, 1872 (India).
46
Anandram Mangturam v. Bholaram Tanumal, (1945) SCC OnLine Bom 12 : AIR 1946 Bom 1.
47
Moot proposition, ¶ 11

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[3.2] LAN did not give timely notice of the escalated prices to SAAS

(¶20)LAN should have given due notice to SAAS within a reasonable time after it got to know
of the impediment which was the price hike. 48 §4 of the ICC Clause49 stipulates the duty to
notify the other party of the impediment and its consequences “without delay”.
It was directly in August that LAN sent invoices claiming escalated amounts and not when the
pandemic situation had set in. LAN should have given SAAS, the opportunity to take all
reasonable steps available to it to overcome or mitigate the consequences of the price hike. 50 It
is essential to provide timely notice of impediments or events of force majeure as early as
possible to preserve the ability to assert your rights under the doctrine. 51

[3.3] The price escalation report presented to SAAS was dubious

(¶21)The price-escalation report submitted by LAN was prepared by ‘watch price’ and in a
Press Release issued by the Govt. of Australia, it was reported that show-cause notices were
issued to a ‘related party company’ of ‘Watch price’ named ‘Price and Right’ suspecting to
price manipulation.52 Paying escalated prices on the basics of a dubious report with the reported
instances of various Indian companies taking unfair advantage of the pandemic situation
leading to price manipulation 53 would be unjust because ultimately `intention of the parties is
to be inferred.54 The intention of the parties to an instrument must be gathered from the terms
of the agreement examined in the light of the surrounding circumstances. 55 The sole intention
of the parties behind inserting the phrase “escalation must be duly certified by any of the price
monitoring organizations including (1) Watch price, (2) Price Report or (3) Price Beware” 56
was to ensure that the price-escalation being claimed is backed by reliable reports.

48
Dionysios P. Flambouras, The Doctrines of Impossibility of Performance and clausula rebus sic stantibus in
the 1980 Vienna Convention on Contracts for the International Sale of Goods and the Principles of European
Contract Law: A Comparative Analysis, 13 PACE INT'L L. REV. 267, 270 (2001).
49
5 International Criminal Court Force Majeure Clause 2003.
50
See Judgment by Tribunale [District Court] di Vigevano, Italy 12 July 2000; No. 12 July 2000, n. 405.
51
Barry Nicholas, Force Majeure and Frustration, 27 AM. J. COMP. L. 231, 237 (1979)
52
Moot proposition, ¶13
53
Id.
54
Delta International Ltd vs Shyam Sunder Ganeriwalla and Anr, (1999) 4 SCC 545: SCC OnLine SC 423
55
Id.
56
Moot Proposition, Annexure-I, Clause 4,

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[3.4] The doctrine of unclean hands disentitles LAN from asking for price escalation

(¶22)The unclean hand’s doctrine is an equitable defence in which the defendant argues that
the plaintiff is not entitled to obtain an equitable remedy because the plaintiff has acted in bad
faith concerning the subject of the complaint. 57 Specific performance of a contract cannot be
enforced in favour of a person who violates any essential term of the contract that on his part
remains to be performed.58 The basic principle behind § 16(c), SRA59 read with Explanation
(ii) is that any person seeking the benefit of the specific performance of the contract must
manifest that his conduct has been blemish-less throughout entitling him to the specific
relief. The Court is to grant relief based on the conduct of the person seeking relief. 60 The non-
adherence of the JWA by LAN by not providing timely completion of the work and halting the
services leading to a breach of contract takes away its right to claim damages.

ISSUE 4: WHETHER THE DELAY IN COMPLETION OF PROJECT IS

ATTRIBUTABLE TO LAN AND CONSEQUENTLY, IS SAAS ENTITLED TO BE
COMPENSATED WITH 6,000,000 POUNDS FOR ALLEGED BREACH OF
CONTRACTUAL TERMS BY LAN?

(¶23)The delay in the completion of the project is attributable to LAN and SAAS is entitled to
be compensated with 5,000,000 pounds for the breach of contractual terms by LAN. Firstly,
LAN breached clause 6 of the agreement [4.1]. Secondly, SAAS suffered a loss of profits due
to the non-completion of the project [4.2]. Thirdly, SAAS was entitled to recover damages from
LAN [4.3].

[4.1] LAN breached clause 6 the agreement

(¶24)Clause 7 of the Job Work Agreement clearly states that if the agreement is terminated due
to breach by a party, then the Party at breach is liable to pay the Party suffering such breach
liquidated damages to the tune of 2 million Pounds. 61

57
Chennai Metropolitan Water Supply and Sewerage Board and Others v. TT Murali Babu, (2014) SCC 108.
58
The Specific Relief Act, 1963, §16, No. 47, Acts of Parliament, 1963.
59
Id.
60
Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534 : (2005) SCC OnLine SC 1374.
61
Moot Proposition, Annexure-I, Clause 7

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[4.1.1] Time was of the essence in the agreement

(¶25)The expression “time is of the essence” means that the contract is to be performed within
a stipulated time mentioned in the contract and a breach of such condition as to the time for
performance will entitle the innocent party to consider the breach as a repudiation of the
contract.62 Subject to the nature of the contract, the general rule is that promisor is bound to
complete the obligation by the date for completion stated in the contract. 63

(¶26)Whether time is of the essence is a question that depends on the facts and circumstances
of each case.64 An intention to make the time of the essence of the contract must be expressed
in unmistakable language, 65 indicating that the parties wanted to make their rights dependent
upon observation of time limits. 66 The entire purpose of SAAS entering into a contract with
LAN was to furnish the project within the stipulated time period, this time period was clearly
mentioned in the agreements, this demonstrates that time was of the essence to the contract.

(¶27)It was held in the case of Pulgaon Cotton Mills v. Gulabai67, that if a purchaser applies
for an extension of time, the very fact shows that time was of the essence. It was also held that
where time is of the essence and is extended, the extended date is also the essence of the
contract.

(¶28)According to §5568, if a party, who has promised to do a certain thing at a specified time,
fails to do so at or before that time, the contract becomes voidable at the option of the promisee,
if the parties intended that time should be of the essence of the contract.

(¶29)Not only was it explicitly mentioned in the Agreement that time was of the essence, 69 but
the surrounding circumstances during the deliberations before the commencement of the
contract further prove that the LAN was well aware of the fact that time was of the essence.
The Respondent had agreed to complete the construction of the work initially by 27 February
2020. However, by this date, not more than 50 percent of the work had been completed. This

62
Nidhi Khare, Extension Of Time In Service Contracts, (Last Accessed: 3 Feb 2022)
http://www.legalservicesindia.com/article/239/Extention-of-Time-in-Service-Contracts.html
63
Percy Bilton Ltd. v. Greater London Council, [1982] 1 WLR 794.
64
Mohammad Zafar Ahmad Khan v. Hamida Khatoon, AIR 1945 All 70.
65
Jamshed Khoduram Irani v. BurjorjiDhunjibhai, AIR 1915 PC 83.
66
Pakharsingh v. Kishansingh, AIR 1974 Raj 112.
67
Pulgaon Cotton Mills v. Gulabai, AIR 1953 Nag. 345.
68
The Indian Contract Act, 1872, §55, No. 9, Acts of Parliament, 1872 (India).
69
Moot Proposition, Annexure-I, Clause 6

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amounts to a material breach of the contract, which is defined as a breach that is a major
violation of the terms of a contract. 70

[4.1.2] Services were put to halt by LAN

(¶30)From a simple reading of § 3971, it would be clear that it stands attracted when a party to
the contract refuses to perform its part of the obligation in its entirety. It has to be established
that the promiser to the contract in simple words has made his intention not to perform
the contract in its entirety clear. LAN stopped rendering all services. 72 This action denotes its
refusal to perform the contractual obligation. There is no general liberty reserved to the courts
to absolve a party from liability to perform his part of the contract, merely because on account
of an uncontemplated turn of events, the performance of the contract may become
onerous.73The Supreme Court concluded that “But for the appellants’ neglect of duty to keep
the goods insured according to the agreement, they (the respondents) could have recovered the
full value of the goods from the government. So, there was a direct causal connection between
the appellants’ default and the respondents’ loss.” 74 But for LAN’s non-compliance to the job
work agreement, SAAS would not have suffered the losses. Therefore, the delay was caused
by LAN and it is liable to pay 2 million pounds to SAAS, the suffering party due to the breach
of clause 6 of the JWA.

[4.2] SAAS suffered loss of profit due to the non-completion of the project.

(¶31)Loss of profit was first given as a concept in Robinson v. Harman,75 where it was held
that the plaintiff is to be placed at the same position as he would have been, had the contract
been performed by the defendant. The law is well settled that if a breach has been committed
by a party, then the injured party should be compensated for the deprivation of his profit.76 In
this case, it was LAN who stopped rendering all the services leading to the breach of the
contract. The delay in the completion of work caused by this breach is the reason why SAAS
got blacklisted by the Govt. of UK.77 SAAS being a company that majorly deals with govt.

70
Bank of Nova Scotia v. Hellenic Mutual War Risks Association (Bermuda) Ltd, (1992) 1 AC 233.
71
The Indian Contract Act, 1872, §39, No. 9, Acts of Parliament, 1872 (India).
72
Moot proposition, ¶14
73
M/S. Alopi Parshad & Sons, Ltd v. The Union of India, 1960 SCR (2) 793.
74
PannalalJankidas v. Mohanlal and Another, AIR 1951 SC 144.
75
Robinson v. Harman, (1848) 1 Ex 850
76
Himachal Joint Venture v. Panilpina World Transport, AIR 2009 Del 88.
77
Moot proposition, ¶14

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projects faced defamation and its goodwill was tarnished due to the black-listing and it also
lost all the prospective projects which resulted in a huge loss of profits.

In Victoria Laundry (Windsor Ltd.) v. Newman Industries Ltd.78, the plaintiffs agreed to buy a
large boiler from the defendant by a fixed date but the seller delayed the delivery. The plaintiffs
sued for damages and for loss of profits on the grounds of (1) the large number of customers
they could have taken had the boiler been installed and (2) the amount they could have earned
under a special dying contract. The defendant knew that the plaintiffs were launderers who
wanted the boiler for immediate use. The Court of Appeal held that under the circumstances
the defendant as a reasonable man could have foreseen some loss of profit. In the instant case,
had LAN continued the work as per the agreement, SAAS would not have to hire TED and pay
higher prices amounting to 2,000,000 Pounds nor would he have to pay the government
compensation amounting to 1,000,000 Pounds. The claim of expected profit is legally
admissible on proof of the breach of contract by the erring party, herein LAN. 79

[4.3] SAAS was entitled to recover damages from LAN

(¶32)Damages are one of the fundamental remedies available to an aggrieved party for the
breach of contract by the other party. 80 The word “Damages” is defined as a form of
compensation due to a breach, loss, or injury, payable to the party who has suffered by such
defaults.81 The principle underlying the award of compensation is that the injured party should
as far as possible be placed in the same position in terms of money as if the contract had been
performed by the party in default. 82 The same is given by § 73 of ICA.83 Also, § 21 of the
Specific Relief Act, 1963 84 enables the plaintiff in a suit for specific performance to claim
compensation for its breach either in addition to or in substitution of performance 85. So
basically, the impact of the breach which transcends actual loss and causes other ancillary
damages closely related to the subject matter of contract can be recovered in the name of

78
Victoria Laundry (Windsor Ltd.) v. Newman Industries Ltd., (1949) 2 K.B. 528.
79
B.V.R Sarma, Adjudication of claim for damages under Sections 73, 74 and 75 of Indian Contract Act, 1872
(Date Accessed :15 Feb 2022) http://docs.manupatra.in/newsline/articles/Upload/30C28D5D-262B-4A4A-
AE17-C4D86F92BCE0.pdf
80
B.V.R Sarma, Adjudication of claim for damages under Sections 73, 74 and 75 of Indian Contract Act, 1872
(Date Accessed :15 Feb 2022) http://docs.manupatra.in/newsline/articles/Upload/30C28D5D-262B-4A4A-
AE17-C4D86F92BCE0.pdf
81
Common cause v. Union of India, (2018) SCC OnLine SC 945.
82
Murlidhar Chiranjilal v. Harish Chandra Dwarkadas, (1962) 1 SCR 653.
83
The Indian Contract Act, 1872, §73, No. 9, Acts of Parliament, 1872 (India).
84
The Specific Relief Act, 1963, §21, No. 47, Acts of Parliament, 1963 (India).
85
Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647: AIR 1992 SC 1604.

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consequential damages. The delay in completion and blacklisting of SAAS was a consequence
of the non-completion of work by LAN.

ISSUE 5: WHETHER LAN IS ENTITLED TO THE COUNTER-CLAIM OF 3,725,000

POUNDS FOR ESCALATED PRICES AND COMPENSATION FOR ALLEGED
PRE-MATURE TERMINATION OF CONTRACT BY SAAS?

(¶33)It is herein most humbly submitted that LAN is not entitled to put forth the counter-claim
of the escalated price of whooping 1,725,000 pounds and LAN could not claim compensation
or rather is not entitled to compensation as being the party in default.

[5.1] Time is the essence of the contract

(¶34)Where the contract expressly makes the time of the essence of the contract or gives the
power to determine the contract in case of non-completion within the stipulated time, then time
will be of the essence of the contract, and the contractor can recover nothing if he does not
complete in time. 86 Clause 687 of JWA mentions that time is of the essence to the contract. In
the case of Bishamber Nath Agarwal v. Kishan Chand,88 it has been held that “if any agreement
states that a particular act relating to the contracts is to be done within the particular time or
manner, it should be done in that manner or time and it is not the rights of the parties to perform
it is own his manner or time according to them.”
Thus, it could be stated that LAN had not acted with due diligence, which is proliferated by the
fact that for such a contract time was of the essence. And, since the present is the case of the
commercial contract, which is commercial service, therefore time indubitably is of the
essence.89
[5.2] One who seeks equity must come to court with clean hands

(¶35)It was held in the case of M/S. D.R.Logistics (P) Limited vs Pridhvi Asset
Reconstructionthat, “The courts of law are meant for imparting justice between the parties.
One, who comes to the court, must come with clean hands.”90 It was further held “He, who

86
Shambhulal Panalal Vaish v. Secretary of State, (1939) SCC OnLine Sind JC 1 : AIR 1940 Sind 1.
87
Moot Proposition, Annexure-I, Clause 6
88
Bishamber Nath Agarwal v. Kishan Chand, AIR 1990 All 65.
89
Bowes v. Shand (1877) 2 A.C.455
90
M/S.D.R.Logistics (P) Limited v. Pridhvi Asset Reconstruction, 2019 Mad HC.

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comes to the Court with false claims or who suppresses material facts, cannot plead equity nor
would the court be justified to exercise jurisdiction in his favour. Equity jurisdiction cannot be
exercised in a case based on false claims or when relief is sought to be obtained by practicing
fraud.”91

(¶36)Thus, in the present case, while seeking the remedy of counter-claim of the whooping
amount, it has not been brought to the notice that such had been claimed for the work which
was completed after the expiration of the contract, and thus was not done diligently. By
suppressing the material fact, the LAN could not be said to have done equity. LAN breached
the agreement by putting its services to halt and abandoning the project as submitted via sub-
issue 4.1. Therefore, LAN being the breaching party is not entitled to damages under the
purview of clause 7 of the agreement.

[5.3] The termination of the agreement was valid

(¶37)In the case of Air India Ltd. vs. GATI Ltd., 201592 it was held that "in case of a repudiatory
breach of contract by one party, termination of the contract by the other party is justified even
if the procedure is not followed". In another case of Deva Builders through M.R. Rattan vs.
Nathpa Jhakri Joint Venture, 200293 the Hon'ble Court held that "although the Defendant has
not given the requisite notice terminating the contract, it was the Plaintiff who had committed
a breach of the contract by not executing the work by the terms and conditions of the
agreement."

(¶38) As per § 37 of the Indian Contract Act,94 the parties are required to fulfil their respective
promises. And, when the LAN had stopped rendering the services, meaning thereby it has
refused to perform; SAAS was very well within its right to put an end to the contract. 95 And as
per § 20, SRA has been provided as an alternative remedy at the option of the party who suffers
the broken contract.96 Thus, it could be said that there was no premature termination of the
contract on part of the SAAS; rather it was LAN who had stopped rendering the services.

91
Id.
92
DLF Universal Ltd. v. Atul Limited, (2009) SCC OnLine Del 10220.
93
State of Madhya Pradesh and Ors. v. M/S Recondo Limited, Bhopal, (1989) SCC OnLine MP 156.
94
The Indian Contract Act, 1872, §37, No. 9, Acts of Parliament, 1872 (India).
95
The Indian Contract Act, 1872, §39, No. 9, Acts of Parliament, 1872 (India).
96
Mukesh Singh and Ors. v. Saurabh Chaudhary and Others, (2015) 1 SCC 705.

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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced the Counsel(s) for the Claimants most humbly and respectfully prays the Tribunal to
adjudge and declare:

a. That the tribunal should grant an anti-suit injunction in favour of the claimant.
b. That the claimants are not liable to pay escalated prices and compensation to the
respondent.

And, therefore, the following reliefs are prayed for:

c. 1,00,000 Pounds as compensation as claimed by the Government of UK owing to delay

in completion of the Project caused by LAN.
d. 2,000,000 Pounds for the expenses incurred by SAAS in availing services of TED Ltd.
e. 2,000,000 Pounds for the breach of Clause 6 of the Job Work Agreement by LAN.

AND/OR

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

All of which is most respectfully affirmed and humbly submitted.

Sd / -

COUNSELS ON BEHALF OF THE

CLAIMANT

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