Before

THE HONOURABLE HIGH COURT OF DELHI, NEW DELHI,

APPLICATION NO. _____/2013

Athletica Ganges.... Petitioner
v.
Government of India ............................................ Respondent

With

CONTEMPT PETITION NO. _____/2013

Athletica Ganges.....Petitioner
v.
Government of India................................................... Respondent

TABLE OF CONTENTS
Table of Contents.......................................................................................................................II
Index of Abbreviations.............................................................................................................III
Index of Authorities.................................................................................................................IV
Statement of Jurisdiction.......................................................................................................VIII
Statement of Facts....................................................................................................................IX
Questions Presented..............................................................................................................XIII
Summary of Pleadings..........................................................................................................XIV
Pleadings....................................................................................................................................1
1.

THERE WAS NO BREACH OF THE CONTRACT BY THE PETITIONER:..........................1

1.1.

The Last-Shot Rule would apply in interpreting Contractual Negotiations:...........1

1.2.

The obligation to satisfy itself lay on the Government as the Contract was entered

into on an as is where is basis:........................................................................................2

1.3.

The Company is not liable for any crimes of financial impropriety:.......................3

1.4.

The Government has violated its contractual obligations relating to Petitioners

Trade Secret:......................................................................................................................4
2.

THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE:.................................................6

2.1.

The Award by the Arbitrator is perverse and patently illegal:................................6

2.2.

In Arguendo, The Procedure followed did not comply with the Arbitration

Agreement:.......................................................................................................................12
3.

WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT...............................13

4.

WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY.........14

Prayer.......................................................................................................................................16

INDEX OF ABBREVIATIONS

Section

Sections

Paragraph

Paragraphs

A.P.

Andhra Pradesh

A.C.

Appellate Cases

AIR

All India Reporter

Anr.

Another

Bom.

Bombay

Cri.L.J.

Criminal Law Journal

K.B.

Kings Bench

Mad.

Madras

n.

Note

Ors.

Others

P.C.A.

Prevention of Corruption Act

SC

Supreme Court

SCC

Supreme Court Cases

Sd/-

Signed

Supp.

Supplementary

U.P.

Uttar Pradesh

U.S.

United States

U.T.

Union Territory

v.

Versus

INDEX OF AUTHORITIES
STATUTES
Indian Penal Code, 1860..........................................................................................................14
The Arbitration and Conciliation Act, 1996...............................................................................6
The Contempt of Court Act, 1971............................................................................................13
The General Clauses Act, 1897................................................................................................14
The Indian Evidence Act, 1872..................................................................................................9
The Prevention of Money Laundering Act, 2002.......................................................................3
CASES
A.N.Gouda v. State of Karnataka, (1998) Cr LJ 4756.............................................................14
Ashish Kumar Kundu v. A.K. Tandon, 1994 (4) SLR 319........................................................13
Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1582..........................................................13
Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360...............................................13
BSNL v. BPL Mobile Cellular Ltd, (2008)13 SCC 597..............................................................1
Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401 Court of Appeal..............1
Coco v. A.N. Clark Ltd, [1969] RPC 41.....................................................................................5
Commonwealth v. John Fairfax & Sons Ltd, (1980) 147 CLR 39.............................................5
Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case
No.915 of 2002.....................................................................................................................14
House of spring gardens point blank, [1983] FSR 213..............................................................5
Iqbal Ahmed Saeed v. State of MP, C. A. No. 604/1995............................................................3
Jagdish v. Premlata Devi, AIR 1990 Raj 87.............................................................................11
Kuldip Singh v. State of Punjab, (1984) 1 Crimes 1033 (P&H)...............................................12
Laliteshwar Prasad Sahai v. Bateshwar Prasad, AIR 1966 SC 580.........................................9
LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors, (1984) 2 SCC 719........................1

-Index of Authorities-

-Petitioner-

Lord Ashburton v. Pape, [1913] 2 Ch 469..................................................................................5

M.S. Narayanagouda v. Girijamma, AIR 1977 Kant. 58...........................................................7
Murray And Co v. Ashok K.R. Newatia, (2002) 2 SCC 367.....................................................13
N., J., Y., W., v. FINA, CAS 98/208............................................................................................6
Narendra Singh and Another v. State of MP, (2004) 10 SCC 699.............................................4
ONGC v. Saw Pipes, (2003) 5 SCC 705....................................................................................6
Pearse v. Pearse, 1846, 16 LJ Ch 153.....................................................................................10
Prabhu v. State of Rajasthan, (1984) 1 Crimes 1020 (Raj) (DB)............................................12
R. v. Collins, (1987) 1 SCR 265(Can SC)................................................................................10
R. v. Stillman, (1997) 1 SCR 607 (Can SC).............................................................................10
Radha Kishan v. Navratan Mal, AIR 1990 Raj 127.................................................................11
Raj Kishore v. State of Uttar Pradesh, 1988 AII Cr Cas 11.....................................................11
Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635........................................8
Rakapali Raja Rama Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255........13
Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of West Bengal, 2004
(4) CHN 602.........................................................................................................................14
Saltaman Engineering v. Campbell Engineering, (1948) 65 RPC 203 (CA).............................5
Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622................................9
Siman Lakra v. Sudhis Prasad, 1993 (1) PLJR 493.................................................................13
State of Kerala v. M.M. Mathew, AIR 1978 SC 1571..............................................................12
State of Rajasthan v. Mohan Singh, 1995 Supp (2) SCC 153..................................................13
State of UP v. Sukhbasi, AIR 1985 SC 1224............................................................................12
The Government of NCT of Delhi vs. Shri Khem Chand and Another, AIR 2003 Delhi 314..12
The Security Printing and Minting Corporation of India v. Gandhi Industrial Corporation,
(2007) 13 SCC 236.................................................................................................................8
IV

-Index of Authorities-

-Petitioner-

Thomas Marshall v. Guinle, [ 1979] 1 Ch 237...........................................................................5

Three Rivers District Council & Ors v. Governor & Company of the Bank of England, [2003]
EWCA Civ 474....................................................................................................................10
Union Bank of India v. Official Liquidator, (1994) 1 SCC 575.................................................2
United States v. Conte, (N.D. Cal. 2004)...................................................................................8
USADA v. G, CAS 2004/O/649..................................................................................................8
USADA v. M. and IAAF, CAS 2004/O/645................................................................................8
V. Sambandan v. The Punjab National Bank, W.P. No. 19557 of 2009 & M.P. No. 1 of 2009.2
Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC 613...........................4
BOOKS
James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and Beyond, 16 Marq.
Sports L. Rev. 45 (2005)........................................................................................................7
OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration and Conciliation,
Lexis Nexis Butterwoerths Wadhwa, Gurgaon (2006),.........................................................7
Sir JF Stefen,Digest of Evidence, Vol 1, Third Edn, 1940,Published by Little, Brown & Co,
Boston Arts...........................................................................................................................11

RULES
The Anti-Doping Rules, The National Anti Doping Agency, India,..........................................7
The World Anti-Doping Code, 2009 .......................................................................................7

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for two petitions filed before this
Honourable Court clubbed together by the Honourable Court. The first application
invokes its territorial ordinary original civil jurisdiction under section 34(1) of the
Arbitration And Conciliation Act, 1996 read with section 5(1) and section 5(2) of The Delhi
High Court Act, 1966. The second Contempt Petition invokes original jurisdiction under
section 11 of The Contempt of Court Act, 1971. It sets forth the facts and the laws on
which the claims are based.

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 comply with the Governments condition of doing business only
with an Indian Company, Pan Athletica incorporated a wholly owned subsidiary in the
Cayman Islands (Athletica Atlantica), and Athletica Ganges served as a wholly owned
subsidiary of Athletica Atlantica. Following negotiations between Pan Athletica and the
Indian Government (hereinafter, Government), wherein all the governments concerns were

-Statement of Facts-

-Petitioner-

taken care of, the parties entered into a contract on an as is where is basis through Athletica
Ganges (hereinafter, Company), in 2003. The Contract contained an Arbitration Clause.
During the negotiations, the Company made it clear that as per this contract, the government
would not be allowed to compel the Company to reveal its means and methods. Along with
this contract, members of the Indian Hockey Team were made to sign an agreement
containing a non-disclosure clause. The Indian Hockey Team fared well between 2002 and
2012.
III.
In 2003, the Brazilian Government did not re-sign with Athletica Machu because of rumours
that Athletica Machu was involved in illegal activities. An enquiry was launched to look into
these rumours and the enquiry lasted over five years.
In February 2012, during the celebration party after an Olympics qualifying match, a drunken
member of the Indian Hockey contingent attributed the success to the magic biscuits the
company gave. This caused uproar in the French, British and Indian media, leading to much
embarrassment for the Government and the Indian Hockey Federation. A high level enquiry
was launched by the Government, while The Indian Hockey Federation engaged the services
of a private detective company. The Indian Government also invoked the Arbitration clause
and served a notice on the company.
IV.
Athetica Ganges filed a petition for interim relief, to stop the Government from breaking the
contract. The Delhi High Court admitted the petition and during the course of proceedings,
the Addl. Solicitor General who appeared before the Court gave an undertaking that pending
proper resolution of the issue it would not break the contract. The Arbitration began.

-Statement of Facts-

-Petitioner-

In the meantime the Brazillian enquiry was published, and relying on that a local Brazillian
Court held Atheletica Machu to be guilty of environmental violations and paying several
bribes. The United States commenced investigations under the Foreign Corrupt Practices Act,
1977.
Bowing to increasing global pressure, the Indian Government rescinded the contract and
terminated all of the Companys contractual obligations.
V.
In the ongoing Arbitration proceedings, the Arbitrator took note of the above facts. Moreover,
the Indian Government submitted parts of the Brazilian judgement, the intimation of the U.S.
investigations, the WADA guidelines and quotes all aspects of Indian law. These were
considered by the Arbitrator. The Government was also able to present the report of the
private investigators, which relied on several emails which was privileged communication
and excerpts of the Brazilian judgement. In addition, the Government produced the affidavits
of the player, Sushant Singh Lakkarbagha.
Amongst the evidence submitted for arbitration, there were a large number of e-mails which
dealt with very sensitive information about the formula of the food and nutrition products
administered to the athletes, information of bank A/cs, and certain communication which
were supposed to be lawyer-client privileged information. All these e-mails were forwarded
by an e-mail id aceventura@panatheletica.us. In the arbitration proceeding, the company
went on record that there was no person in the employ of the company by the name of Ace
Ventura and that no existing member of the company ever intended to forward these emails.
In the affidavit submitted by the athlete, Sushant Singh Lakkarbagha, he spoke at length
about the procedure of the training and the diet.

-Statement of Facts-

-Petitioner-

The Company continued to raise many objections to the procedure of the conduct of the
Arbitration proceedings and the rules to evidence attached, but each objection was rejected.
The Company also filed a Civil Contempt Petition against the Government.
VI.
At the end of the arbitration, the award held that the company was indeed engaged in doping
and that it had both illegal and unethical means to administer the team. The enforcement of
the contract would lead to much distress and was clearly against law and public policy and it
further went on to award unliquidated damages to the tune of $1 billion dollars to the
Government.
Aggrieved by this award, the Company approached the Delhi High Court in the instant
petition. The company submitted that the entire arbitration was a farce as information
obtained by the RTI indicated that the decision to break the contract was already taken by the
minister even before the interim relief application. By an order of the Court, the contempt
petition has been clubbed, and the Court has issued notice but at the same time has kept the
question open as to whether this factual matrix presents a scenario of perjury, contempt or
neither of the above.

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
The Respondent is guilty of Contempt of Court because it has wilfully breached an
undertaking submitted to the court. The undertaking in the present case is of binding nature.
Respondent by rescinding the contract before proper resolution through arbitration
proceedings has made them guilty of civil contempt of court.

-Summary of Pleadings-

-Petitioner-

THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY

The Respondent has given an undertaking stating that they will not rescind the contract where
as the decision to rescind the contract had already been taken by the respondent. Whoever in
any declaration made by him to any court of justice, makes any statement which is false, and
which he believes to be either false or does not believe to be true, touching any point material
to the object for which the declaration is made shall be punishable in a grave manner as if he
gave false evidence. Therefore the Respondent has committed the offense of perjury.

-Summary of Pleadings-

-Petitioner-

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 lastshot 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 met (c); and Fourthly, if at all there has been a breach of contract, it
has been on the Respondents part (d).
1.1.

The Last-Shot Rule would apply in interpreting Contractual Negotiations:

In Butler Machine Tool v. Ex-Cell-O Corporation1, it was held that Where there is a battle
of the forms whereby each party submits their own terms, the last-shot rule applies whereby
a contract is concluded on the terms submitted by the party who is the last to communicate
those terms before performance of the contract commences. This common law doctrine has
been subscribed to by India in the Apex Courts decrees in LIC of India v. Raja Vasireddy2
and BSNL v. BPL Mobile Cellular Ltd,3 in interpreting Section 7(1) of the Indian Contract
Act, wherein it was held that if one were to alter or modify the terms of the contract, it was
required to be done either by express agreement or by necessary implication which would
negate the application of the doctrine of acceptance sub silentio.

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.

BSNL v. BPL Mobile Cellular Ltd, (2008)13 SCC 597, at 30.

-Summary of Pleadings-

-Petitioner-

In the instant case, during the negotiation of the contract, the parties disagreed on the
Governments concern regarding what it referred to as the episodes in Brazil. The
Government, in its letter dated 26-11-2001 stated that it required the Company to make all
necessary disclosures in this regard.4 In response to this concern, the Company responded
stating that the Company would require the Government to point out 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.

The obligation to satisfy itself lay on the Government as the Contract was
entered into on an as is where is basis:

While interpreting a contract entered into on an as is where is basis, Indian Courts have
held that It is for the intending purchaser to satisfy himself in all respects as to the title,
encumbrances and so forth of the immovable property that he proposes to purchase.6
As has already been submitted in sub-contention 1.1., the contract in the instant case was
entered into by the parties in a manner similar to a contract for immoveable property entered
into on an as is where is basis. Therefore, it is asserted by the Petitioner that on application
of the above law governing obligations arising out of an as is where is contract, the
4

Factsheet, Annexure 1.

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.

-Summary of Pleadings-

-Petitioner-

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.

The Company is not liable for any crimes of financial impropriety:

It is the submission of the Petitioner that if the Government were to argue that the Company
had been in breach of the contract due to the possibility of crimes of financial impropriety, it
would be an unfounded claim. It is submitted by the petitioner that the only plausible
allegation that could be made by the Government in this regard is one of money laundering,
which cannot be entertained as the evidence submitted by the Government does not in any
way satisfy the burden necessary to prove such a tall claim. In order for money laundering
to be proved, the Prevention of Money Laundering Act 7 requires the offender to have
directly or indirectly attempted to indulge in or knowingly assist in any process or activity
connected with the proceeds of crime and projecting it as untainted property.
In Iqbal Ahmed Saeed v. State of MP 8, a case relating to offences under the Prevention of
Corruption Act, the well established principle of criminal jurisprudence that Suspicion
howsoever strong 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

The Prevention of Money Laundering Act, 2002, 3.

Iqbal Ahmed Saeed v. State of MP, C. A. No. 604/1995, at 18 and 19.

Narendra Singh and Another v. State of MP, (2004) 10 SCC 699, at 32.

-Summary of Pleadings-

-Petitioner-

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
proved, the Petitioner asserts that the government has not satisfied the heavy burden of proof.
1.4.

The Government has violated its contractual obligations relating to

Petitioners Trade Secret:

Information, including a formula, pattern, compilation, program device, method, technique or
process can constitute trade secrete if it qualifies three other criteria. 11 If this information is
generally not known or readily accessible to persons within circles that normally deal with
the kind of information in question. Secondly, the information has commercial value. Thirdly,
it has been subject to responsible steps under the circumstances by the person lawfully in
control of the information, to keep it secret. If the respondent is proved to have used this
information directly or indirectly obtained from the petitioner, without his consent express or
implied, he would be guilty of infringement of the plaintiffs right. 12 The principle of
10
11

Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC 613 at 142.
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

Saltaman Engineering v. Campbell Engineering, (1948) 65 RPC 203 (CA).

-Summary of Pleadings-

-Petitioner-

infringement of right is applicable in cases where the information was obtained improperly as
breach of confidence.13
In the instant case, the emails that were produced as evidence constitute trade secrets. They
contained information of training, food and nutrition. The same had commercial value as it
contained the mantra of successes of the team. The company has taken all the reasonable
steps to keep it a secret like non-disclosure agreement with players.
The government has breached the confidence of the company by obtaining those emails
through illegal means and hence breached the contract.
Therefore, the Petitioner submits that in the absence of a breach of the contract by the
Petitioner, no dispute regarding the contract can be said to have arisen. Hence, the Arbitrator,
in rendering his award on the matter has acted beyond the scope of his authority under
Section 28(3) of the Arbitration and Conciliation Act, 1996 (hereinafter, The A&C Act).
2. 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).
2.1. The Award by the Arbitrator is perverse and patently illegal:
It is averred by the Petitioner that the Award is liable to be set aside under Section 34(2)(b) of
the A&C Act14 as it is in conflict with public policy of India. For this, the Petitioner relies on
the landmark judgement by the Supreme Court in ONGC v. Saw Pipes15 (hereinafter, The

13

Commonwealth v. John Fairfax & Sons Ltd, (1980) 147 CLR 39 at 50; Opinion of Eady LJ in Lord
Ashburton v. Pape, [1913] 2 Ch 469 at 475.

14

The Arbitration and Conciliation Act, 1996, 34(2)(b).

15

ONGC v. Saw Pipes, (2003) 5 SCC 705, at 21.

-Summary of Pleadings-

-Petitioner-

Saw Pipes Case) wherein it was held that an arbitral award is liable to be set aside in case it
suffers from a patent illegality. This submission shall be dealt with in a two-pronged manner:
Firstly, the standard of proof to be complied with in a case concerning an Anti-Doping rule
violation is the steep standard of Comfortable Satisfaction. Secondly, the award has been
made in conscious violation of the pleadings and the evidence, and is therefore perverse.
2.1.1. The Burden of Proof to be discharged is one of Comfortable Satisfaction:
The Court of Arbitration in Sport, in its landmark decree in N., J., Y., W. v. FINA 16, held that
the standard of proof applicable in proving a Case of doping in sport is one that establishes a
heavy burden of Comfortable Satisfaction of the hearing body. The case further explained
that the burden of proof required to be discharged under this standard is more than a mere
balance of probabilities and is more akin to that of beyond reasonable doubt. This standard
of proof has also been adopted under the World Anti Doping Agencys Code (hereinafter,
the WADA Code)17 in dealing with anti-doping rule violations. Moreover, the standard has
also been adopted in India by the revised Anti-Doping Rules of the National Anti-Doping
Agency18 (hereinafter, the NADA Rules), which have been adopted in conformance with
the WADA Code. Therefore, it is considered a rule of custom in International Sports Law.19
Finally, the Petitioner submits that given the Respondents themselves have submitted the
WADA guidelines and relevant aspects of Indian law for perusal by the arbitrator 20; an
inference may be drawn as to their acceptance of this high burden of proof.
Based on the above law, the Petitioner asserts that in adjudicating as to whether the award is
liable to be set aside on the grounds of it conflicting with the public policy of India, the Court
16

N., J., Y., W., v. FINA, CAS 98/208, at 13.

17

The World Anti-Doping Code, 2009, at Article 3.1.

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).
20

Factsheet at 14.

-Summary of Pleadings-

-Petitioner-

must look at the arbitral award through the prism of whether the heavy burden of
Comfortable Satisfaction has been discharged.
2.1.2. The Award is in violation of the pleadings and the evidence, and hence perverse:
A well established ground for setting aside an arbitral award is perversity. 21 In MS
Narayanagoudas Case, it was held that a decision made in conscious violation of the
pleadings and the law is a perverse decision and it cannot be allowed to stand uncorrected. 22
In addition to this the Supreme Court 23 has held that where an arbitrator records findings
based on no legal evidence, and the findings are either his ipse dixit or based on conjectures
or surmises, the enquiry suffers from the added infirmity of non-application of mind and
stands vitiated.
The Petitioner further asserts that although recent developments in relation to evidence
admissible under cases pertaining to anti-doping rule violations have allowed for the
admissibility of Circumstantial evidence as opposed to merely dope test results, there is a
very high burden of proof associated with the admissibility of such circumstantial evidence,
as opposed to the presumption associated with dope test results.24
In the instant case, the Petitioner submits, that there is no direct evidence in the form of dope
test results that links the Company with allegations of committing anti-doping rule violations
as per Article 2 of the NADA Rules.25 The Petitioner also asserts that a distinction must be
drawn with respect to cases arising out of the BALCO Controversy, wherein the CAS and
the US District Court of Northern California relied on admissions of guilt and uncontroverted
21

OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration and Conciliation, Lexis Nexis

Butterwoerths Wadhwa, Gurgaon (2006), at pg. 1193.

22

M.S. Narayanagouda v. Girijamma, AIR 1977 Kant. 58, at 11.

23

Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635. Also See The Security Printing and

Minting Corporation of India v. Gandhi Industrial Corporation, (2007) 13 SCC 236, at 8.

24

USADA v. G, CAS 2004/O/649; USADA v. M. and IAAF, CAS 2004/O/645; Indictment, United States v.

Conte, (N.D. Cal. 2004).

25

The Anti-Doping Rules, The National Anti Doping Agency, India, at Article 2.

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-Petitioner-

witness testimony.26 These forms of evidence also find mention under the WADA Code.27 In
the instant case, however, the arbitrator has relied on mere documentary evidence; which the
Petitioner submits is not sufficient to discharge the heavy burden of proof required in using
circumstantial evidence in such cases.
It is submitted by the Petitioner that the Arbitrator should have followed the Evidence Act
during the Arbitral Proceedings. This is because, since this was not an International
Commercial Arbitration28, it would be governed by Part I of the Arbitration Act whose
provisions lay down that in such a case, the substantive law would be Indian 29. In addition,
the Arbitration Agreement provides that the procedure of the arbitration shall be determined
in the arbitration itself.30 Despite all this, in the Arbitration Agreement, the parties have
expressly agreed to use Indian Law.31 This, the petitioner submits is indicative of the parties
intent to use the Indian Law relating to Evidence.
The Petitioner also avers that an appraisal of the evidence relied on by the Arbitrator shows
that the award suffers from perversity as laid down in the aforementioned law. This is dealt
with under the following heads of evidence that were administered in the arbitral
proceedings:
a) Validity of the emails produced by the government:
In V. Satyavathi v. P Venkataratnam32, it was held that if the proof of the evidence is in the
question viz. a viz. proving the genuineness of the content by producing the same, it would
not be sufficient to prove the truth of the contents of the documents 33 unless the writer of the
26

Supra, note 20.

27

The World Anti-Doping Code, 2009, at Article 3.2.

28

The Arbitration and Conciliation Act, 1996, 2(1)(f).

29

The Arbitration and Conciliation Act, 1996, 28(1)(a).

30

Factsheet, Annexure Three, Clause 184.7.

31

Factsheet, Annexure Three, Clause 184.9.

32

1988 (1) ALT 915; Nunna Venkateswara Rao vs Tota Venkateswara Rao & Ors, 2007 (4) ALD 744

33

The Indian Evidence Act, 1872, 65B (1).

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-Petitioner-

document is examined. It only constitutes hearsay evidence. Hearsay evidence is not

admissible.34
In the given facts, there is no employee named as Ace Ventura. Hence there is no author to
the emails. Therefore the emails should not be considered by the arbitrator.
In Arguendo, when the documents are produced in order to seek legal advice by the client,
then these documents are protected under legal 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 requirements39. 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
34

Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622; Laliteshwar Prasad Sahai v.

Bateshwar Prasad, AIR 1966 SC 580.

35

Three Rivers District Council & Ors v. Governor & Company of the Bank of England, [2003] EWCA Civ 474.

36

McCormick, Evidence, (1984) 186-187; Law Commission Report, Newzealand, Available at

http://www.lawcom.govt.nz/sites/default/files/publications/1994/05/Publication_58_176_PP23.pdf Last Visited

on January 6th , 2013.
37

Pearse v. Pearse, 1846, 16 LJ Ch 153.

38

R. v. Collins, (1987) 1 SCR 265(Can SC); R. v. Stillman, (1997) 1 SCR 607 (Can SC).

39

The Indian Evidence Act, 1872, 78(6).

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-Petitioner-

judgement without certificate can only constitute secondary evidence for which when
contents proved, it may be received.40 In the given facts, it can nowhere be inferred from the
facts that the judgement produced is certified and hence should not be admissible.
In Arguendo, a drug to show certain reactions in the body require certain method of
administration and certain time period to react to show the required result. On the basis of
facts, the reliance of arbitrator on the foreign judgement can be challenged. The foreign court
has clearly stated that nature of the drug to be administered is in liquid form and the time
period required for effect is 24 hrs. In India, the biscuit alleged to contain the drug is solid
form and is administered just before the match. Therefore it cannot be presumed that the
company has indulged in the same activity as in case of the Brazil subsidiary.
c) Validity of the affidavit given by the player:
Affidavits are not included in the definition of evidence in s.3 of IEA,1872. 41 Affidavits
filed by the parties without giving the opportunity to the opposition to cross examine the
deponent cannot be treated as evidence under s 1 and 3 of IEA, 1872.42
In the instant case, the affidavit on which the arbitrator has relied cannot be admissible as the
player who has given the affidavit is very much alive and the right of cross examination by
the opposition has been violated.
In Arguendo, when the affidavit is being considered by the arbitrator, here is no mention of
administration of performance enhancing drug to 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

40

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

Radha Kishan v. Navratan Mal, AIR 1990 Raj 127.

-Summary of Pleadings-

-Petitioner-

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 India 45 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 Chand 46, 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 Act47 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 Thus, the of procedure followed cannot be held to be in accordance with
agreement of the parties49 This also indicates how the Petitioner was not afforded equal
opportunity to be heard. Hence, it is the Petitioners humble submission that the award be set
aside on the above grounds.
3. WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT.
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

http://conference.youthsportsny.org/reference/goldberger.pdf : Last Visited on January, 6th 2013.

45

The Arbitration and Conciliation Act, 1996, 34(2)(b).

46

The Government of NCT of Delhi vs. Shri Khem Chand and Another, AIR 2003 Delhi 314, at 15.

47

The Arbitration and Conciliation Act, 1996, 18.

48

Factsheet, at 14.

49

The Arbitration and Conciliation Act, 1996, 34(2)(a)(v).

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-Petitioner-

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.
Futher, the defence of subsequent changes cannot be taken by the respondent. 55 The court has
distinguished cases of impossibility from cases of difficult. 56 Therefore the court has to go
into the facts of the case in order to decide upon the offence of contempt of court.57
In the instant case, there might have been global pressure to terminate the contract, but it
cannot be construed that situations were created where the performance of contract would
become impossible. Therefore it is humbly submitted to the court that the respondent should
be held liable for contempt.
4. WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY.
50
51

The Contempt of Court Act, 1971, 2 (b).

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

Murray And Co v. Ashok K.R. Newatia, (2002) 2 SCC 367.

54

Fact Sheet, Annexure 6.

55

Ashish Kumar Kundu v. A.K. Tandon, 1994 (4) SLR 319.

56

State of Rajasthan v. Mohan Singh, 1995 Supp (2) SCC 153; See Also Siman Lakra v. Sudhis Prasad, 1993
(1) PLJR 493.

57

Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of West Bengal, 2004 (4) CHN 602.

-Summary of Pleadings-

-Petitioner-

Undertaking given to court is an affidavit.58. An "affidavit" includes affirmation and

declaration in the case of persons by law allowed to affirm or declare instead of swearing. 59
Whoever in any declaration made by him to any court of justice, makes any statement which
is false, and which he believes to be either false or does not believe to be true, touching any
point material to the object for which the declaration is made shall be punishable in a grave
manner as if he gave false evidence.60
In the given factual matrix, an undertaking was given by the counsel of the respondent. It
declared that that the respondent will not terminate the contract till proper resolution would
be sought by the arbitrator. Another fact noteworthy here is that the respondent had already
decided to terminate the contract. This constitutes that the respondent gave false declaration
as to not terminating the contract till the arbitration proceedings are completed. Hence they
are liable for perjury.
Further to be noted, that Counsel represents the client. In case of uncertainty, it is the duty of
the client to inform his counsel and consequently if false statements are made in pleadings,
the responsibility will devolve wholly and completely on the party. 61
With regard to the ambiguity to counsels knowledge, the law has clearly laid the duty on to
the party. Therefore the respondent cannot wash away their hands by taking the defence that
the Counsel did not knew about the decision and hence no perjury was committed.

PRAYER

58

Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case No.915 of 2002

59

The General Clauses Act, 1897, 3(3).

60

Indian Penal Code, 1860, 199 Read With 200.

61

A.N.Gouda v. State of Karnataka, (1998) Cr LJ 4756.

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-Petitioner-

In the light of arguments advanced and authorities cited, the Petitioner humbly submits
that the Honble Court may be pleased to adjudge and declare that:

1. The arbitral award be set aside.

2. The Respondent be held guilty of civil contempt of court.
3. The Respondent be held guilty of perjury.

Any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/(Counsel for the Petitioner)