Académique Documents
Professionnel Documents
Culture Documents
With
TABLE OF CONTENTS
Table of Contents.......................................................................................................................
Index of Abbreviations.............................................................................................................
Index of Authorities.................................................................................................................
Statement of Jurisdiction.......................................................................................................
Statement of Facts....................................................................................................................
Questions Presented..............................................................................................................
Summary of Pleadings..........................................................................................................
Pleadings....................................................................................................................................
1.
PETITIONER:..........................................................................................................................
1.1.
Negotiations:......................................................................................................................
1.2.
impropriety:........................................................................................................................
1.4.
illegal:................................................................................................................................
2.2.
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CONTEMPT...........................................................................................................................
4.
OF
Prayer.......................................................................................................................................
II
INDEX OF ABBREVIATIONS
Section
Sections
Paragraph
Paragraphs
A.P.
Andhra
Appellate
All
Anr.
Another
Bom.
Bombay
Cri.L.J.
Criminal
Kings
Mad.
Madras
n.
Note
Ors.
Others
P.C.A.
Prevention
Supreme
Pradesh
A.C.
Cases
AIR
India
Reporter
Law Journal
K.B.
Bench
of Corruption Act
SC
Court
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SCC
Supreme
Sd/-
Signed
Supp.
Court Cases
Supplementary
U.P.
Uttar
United
Union
Versus
Pradesh
U.S.
States
U.T.
Territory
v.
IV
INDEX OF AUTHORITIES
STATUTES
Indian Penal Code, 1860..........................................................................................................
The Arbitration and Conciliation Act, 1996...............................................................................
The Contempt of Court Act, 1971............................................................................................
The General Clauses Act, 1897................................................................................................
The Indian Evidence Act, 1872..................................................................................................
The Prevention of Money Laundering Act, 2002.......................................................................
CASES
A.N.Gouda v. State of Karnataka, (1998) Cr LJ 4756.............................................................
Ashish Kumar Kundu v. A.K. Tandon, 1994 (4) SLR 319........................................................
Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1582..........................................................
Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360...............................................
BSNL v. BPL Mobile Cellular Ltd, (2008)13 SCC 597..............................................................
Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401
Court of Appeal......................................................................................................................
Coco v. A.N. Clark Ltd, [1969] RPC 41.....................................................................................
Commonwealth v. John Fairfax & Sons Ltd, (1980) 147 CLR 39.............................................
Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High
Court, Contempt Case No.915 of 2002................................................................................
House of spring gardens point blank, [1983] FSR 213..............................................................
Iqbal Ahmed Saeed v. State of MP, C. A. No. 604/1995............................................................
Jagdish v. Premlata Devi, AIR 1990 Raj 87.............................................................................
Kuldip Singh v. State of Punjab, (1984) 1 Crimes 1033 (P&H)...............................................
Laliteshwar Prasad Sahai v. Bateshwar Prasad, AIR 1966 SC 580.........................................
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VII
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RULES
The Anti-Doping Rules, The National Anti Doping Agency, India,..........................................
The World Anti-Doping Code, 2009
.......................................................................................7
VIII
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
I.
Pan Atheletica Inc. is a company incorporated in the United States of
America with the purpose of providing a spectrum of services in the
Sports Industry. In 1988, a subsidiary was set up in Peru (Atheltica
Machu) to cater to the growing Latin American clientele. Pan Athletica
set up a research wing to investigate the local flora and fauna in the
nearby Amazon forests in Brazil. The company then set-up a research
station near the Indo-Nepal border after incorporating a subsidiary in
Nepal (Athletic Everest) in 1989. Till now Pan Athletica did not have a
food and nutrition department.
In 1991, the company signed a local football team in Brazil, Desvalidos
which, did very well. Eventually 66% percent of the team members
went on to become a part of the national football team. Beginning in
1992 Athletica Machu signed them for a decade. Between 1992 and
2002, Brazil won the World cup twice and reached the final once. By
now the company had a fully functional food department.
II.
Pan Athleticas success in Brazil helped it make an entry in a large
number of developing economies. However, the means and methods
employed by them were kept completely secret and the players were
made to sign a 99 year non disclosure agreement.
In 2000, Mr. Sumanto Hajela, the Indian Minister for Sports and
International Affairs, approached Mr. Laurie (one of the promoters of
Pan Athletica) to help out with the Indian Hockey Team. In order to
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QUESTIONS PRESENTED
1.1
WHETHER
THERE WAS A
BREACH
OF
CONTRACT
BY THE
PETITIONER?
2.1 WHETHER THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE?
3.1 WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT OF
COURT?
4.1 WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE OF
PERJURY?
SUMMARY OF PLEADINGS
THERE
WAS
NO
BREACH
OF
THE
CONTRACT
BY
THE
PETITIONER:
The Petitioner submits that there was no breach of contract on the part
of Athletica Ganges (hereinafter, The Company), and in the absence
of any dispute, there was no ground for the Government to invoke
Arbitration. This submission is fourfold. Firstly, the common law
principle of last-shot rule in interpreting contractual negotiations is
applicable (a); Secondly, since the contract was entered into on an as is
where is basis, it placed an obligation on the Respondents to satisfy
themselves beforehand (b); Thirdly, the burden of proof required to
prove crimes of financial impropriety has not been met (c); and
Fourthly, if at all there has been a breach of contract, it has been on the
Respondents part for having violated the Companys Trade Secret
Rights(d).
THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE:
The Petitioner humbly submits that the Arbitral Award is liable to be set
aside under the grounds laid down in the A&C Act. This assertion is
twofold: Firstly, the conclusion arrived at by the arbitrator is perverse
and patently illegal (a); and Secondly, the Procedure followed by the
arbitrator was not in accordance with the arbitration agreement (b).
THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT
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PLEADINGS
1. THERE
WAS NO
BREACH
OF THE
CONTRACT
BY THE
PETITIONER:
The Petitioner submits that there was no breach of contract on the part
of Athletica Ganges (hereinafter, The Company), and therefore
there was no ground for the Government to invoke Arbitration. This
submission is fourfold. Firstly, the common law principle of last-shot
rule in interpreting contractual negotiations is applicable (a); Secondly,
a contract entered into on an as is where is basis, places an obligation
on the Government to satisfy itself beforehand (b); Thirdly, the burden
of proof required to prove crimes of financial impropriety has not been
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met (c); and Fourthly, if at all there has been a breach of contract, it has
been on the Respondents part (d).
1.1.
Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401 Court of Appeal.
LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors, (1984) 2 SCC 719, at 18.
Factsheet, Annexure 1.
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the facts with regard to the Brazilian rumours. Moreover, the Petitioner
raised an objection to the necessary disclosure obligations that the
Government sought to impose, and instead added the term that the
contract would be entered into by the Government on an as is where is
basis.5 This negotiation would be construed as a counter offer as per
the above case law. If the Government was to modify these terms, it
would have had to do so either by express agreement or necessary
implication that would negate the application of the doctrine of
acceptance sub silentio. Since no such modification was forthcoming
from the Government, the last-shot rule would be applicable, and
hence, the counter-offer submitted by the Company should be
construed as the enforceable terms of the contract.
1.2.
Factsheet, Annexure 2.
Union Bank of India v. Official Liquidator, (1994) 1 SCC 575, at 15; V. Sambandan v. The Punjab National
Bank, W.P. No. 19557 of 2009 & M.P. No. 1 of 2009, at 10.
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contract, the Government should have, using its own devices, satisfied
itself regarding any concerns it had with regard to the Brazilian
rumours. Thus, the Company submits that it has entered into the
contract with clean hands, without any kind of misrepresentation as to
the material facts; and has therefore not been in breach of the
agreement entered into with the Government.
1.3.
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may be, cannot take place of proof and when slightest suspicion is
there, benefit should be given to accused, was applicable. It is
therefore submitted by the petitioner that this principle is applicable
even in cases involving economic crimes such as money laundering.
Moreover, the Supreme Court has held that in a case based on
circumstantial evidence, however strong the pieces of evidence may
be, it is well known that all links in the chain must be proved. 9
Finally, in the landmark judgement given in Vodafone International
Holdings BV v. Union of India10, the Supreme Court noted that
many of the offshore companies use the facilities of Offshore
Financial Centers situate in Mauritius, Cayman Islands etc. Many of
these offshore holdings and arrangements are undertaken for sound
commercial and legitimate tax planning reasons, without any intent
to conceal income or assets from the home country tax jurisdiction
and India has always encouraged such arrangements, unless it is
fraudulent or fictitious.
Based on the above law, it is humbly submitted by the Petitioner that
the mere existence of a holding company in the Cayman Islands
coupled with the fact that Athletica Machu was held liable for offences
in Brazil does not automatically draw the inference that the Petitioner
was involved in money laundering. In the instant case, there is no proof
as to the link between profits gained from offences committed by
Athletica Machu, and the transactions entered into between Athletica
Ganges and the Indian Government. In the absence of this link being
9
Narendra Singh and Another v. State of MP, (2004) 10 SCC 699, at 32.
10
Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC 613 at 142.
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proved, the Petitioner asserts that the government has not satisfied the
heavy burden of proof.
1.4.
The
Government
has
violated
its
contractual
11
Indian Innovation Bill, 2(3); Coco v. A.N. Clark Ltd, [1969] RPC 41; Thomas Marshall v. Guinle, [ 1979] 1
Ch 237; House of spring gardens point blank, [1983] FSR 213.
12
13
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15
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17
18
The Anti-Doping Rules, The National Anti Doping Agency, India, at Article 3.1.
19
James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and Beyond, 16 Marq. Sports L. Rev. 45
(2005).
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Factsheet at 14.
21
OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration and Conciliation, Lexis Nexis
23
Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635. Also See The Security Printing and
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USADA v. G, CAS 2004/O/649; USADA v. M. and IAAF, CAS 2004/O/645; Indictment, United States v.
The Anti-Doping Rules, The National Anti Doping Agency, India, at Article 2.
26
27
28
29
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is
not
admissible.34
30
31
32
1988 (1) ALT 915; Nunna Venkateswara Rao vs Tota Venkateswara Rao & Ors, 2007 (4) ALD 744
33
34
Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622; Laliteshwar Prasad Sahai v.
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advice privilege.35 The court should look at the facts of the case,
weighing the harm to society caused by disclosure against the harm
caused to the administration of justice in case of full information not
available.36 Late Knight Bruce ,LJ observed that protection of the client
for the communication between him and his lawyer need to be
preserved in order to ensure the soundness of the process of justice. 37
Therefore evidence collected by violation of rights and freedoms of
individual should not be admitted as it will bring the process of justice
into disrepute in the eyes of reasonable man.38
In the given facts the company has claimed those emails to be lawyer
client privilege information as it was created to seek legal advice and
therefore should not have been taken into consideration by the
arbitrator.
b) Validity of the Brazilian Judgement produced by the
government:
Indian Evidence Act, 1872 deals with the admissibility of a copy of a
foreign judgment, laying down certain requirements 39. Firstly, it has to
be certified by the legal keeper of the original judgement. Secondly,
there should be a certificate under the seal of the Indian counsel
certifying that the copy was certified by the legal keeper of the original.
The judgement without certificate can only constitute secondary
35
Three Rivers District Council & Ors v. Governor & Company of the Bank of England, [2003] EWCA Civ 474.
36
38
R. v. Collins, (1987) 1 SCR 265(Can SC); R. v. Stillman, (1997) 1 SCR 607 (Can SC).
39
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Sir JF Stefen,Digest of Evidence, Vol 1, Third Edn, 1940,Published by Little, Brown & Co, Boston Arts at
67and 74.
41
Raj Kishore v. State of Uttar Pradesh, 1988 AII Cr Cas 11; Jagdish v. Premlata Devi, AIR 1990 Raj 87.
42
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the players. The player has clearly stated that the quality of training and
food and nutrition is much better. The only suspicious food item seem
to be the sweet biscuit. Strong suspicions and grave doubts cannot take
place of legal proof.43 The sweet biscuit can be compared to chocolate
or an energy drink which also give a charge of rush.44
Based on all of the above mentioned law, the Petitioner humbly submits
that the Arbitral Award is liable to be set aside on the ground that it
conflicts with public policy of India45 due to patent illegality; and given
the perversity of the award, the Court cannot allow it to stand
uncorrected.
2.2. In Arguendo, the Procedure followed did not comply with the
Arbitration Agreement:
In Government of NCT of Delhi v. Shri Khem Chand46, this court has
held that acts of misconduct by the arbitrator, such as unequal treatment
of the parties covered by Section 18 of the A&C Act 47 shall be a
legitimate ground to set aside the award under Section 34(2)(a)(v).
It is humbly submitted by the Petitioner that the Arbitration Agreement
provided that the procedure for arbitration shall be decided during
arbitration. However, the Petitioners objections with regard to the
conduct of arbitration proceedings were disregarded by the arbitrator.48
43
State of Kerala v. M.M. Mathew, AIR 1978 SC 1571; State of UP v. Sukhbasi, AIR 1985 SC 1224; Prabhu v.
State of Rajasthan, (1984) 1 Crimes 1020 (Raj) (DB); Kuldip Singh v. State of Punjab, (1984) 1 Crimes 1033
(P&H).
44
45
46
The Government of NCT of Delhi vs. Shri Khem Chand and Another, AIR 2003 Delhi 314, at 15.
47
48
Factsheet, at 14.
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THE
RESPONDENT
IS
GUILTY
OF
CIVIL
CONTEMPT.
Civil contempt of court has been defined as wilful disobedience to any
judgment, decree, direction, order, writ or other process of a court or
wilful breach of an undertaking given to a court. 50 In a case where
undertaking is recorded in the manner agreed by the parties in a courts
order, it gains a binding nature.51 Court has defined wilful as
intentional, deliberate and conscious.52 It is also submitted that for
contempt of court, advantage to the contemnor is not necessary.53
In the given factual matrix, the Additional Solicitor General gave an
undertaking with regard to compliance of the contract till the dispute is
resolved in arbitration. The said undertaking has been incorporated by
the courts order.54 Therefore noncompliance with the order by
terminating the contract constitutes contempt of court. The respondent
should be held liable for civil contempt of court.
49
50
51
Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360; Babu Ram Gupta v. Sudhir Bhasin, AIR 1979
SC 1582.
52
Rakapali Raja Rama Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255.
53
54
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PERJURY.
57
Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of West Bengal, 2004 (4) CHN 602.
58
Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case No.915 of 2002
59
60
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PRAYER
61
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