SYMBIOSIS LAW SCHOOL, PUNE INTERNAL MOOT ELIMINATION, 2019-20

SYMBIOSIS LAW SCHOOL, PUNE INTERNAL MOOT ELIMINATION, 2019-20

IN THE HON’BLE SUPREME COURT OF GRIMMAULDIA

SPECIAL LEAVE PETITION NO. __/2019

IN THE MATTER OF APPEAL BY SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUION OF
GRIMMAULDIA

HOGSMEADE INTELLIGENSIA (HI) …APPELLANTS

VS.

FELIX FELICIS PRIVATE LIMITED (FFPL) …RESPONDENTS

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF GRIMMAULDIA

MEMORIAL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS
Table of contents…………………………………………………………………(ii)

Index of Authorities……………………………………………………………...(iii-iv)

List of Abbreviations…………………………………………………………….(v-vi)

Statement of Jurisdiction………………………………………………………...(vii)

Statement of Facts………………………………………………………………..(viii-ix)

Issues Raised…………………………………………………………………….(x).

Summary of Arguments………………………………………………………….(xi)

Arguments Advanced……………………………………………………………(1-11)

ISSUE 1: - Whether the agreement entered into between HI & FFPL was

Valid?....................................................................................................................(1-3).

ISSUE 2:- Whether there was an ‘operational debt’ in existence with respect to this
case?......................................................................................................................(4-8).

ISSUE 3: Whether the High Court had erred by not appointing an Arbitration
Tribunal?................................................................................................................ (9-11)

PRAYER…………………………………………………………………………(12)

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INDEX OF AUTHORITIES

1. CASES REFERRED:
 Bodh Raj Daulat Ram And Ors. vs Food Corporation Of India And Anr. on 12
March, 2003
 Dominant Offset Private Ltd. vs Adamovske Strojirny on 19 January, 2000

 Metal Power Analytical (India) (P.) Ltd. v. Crystaline Exports (P.) Ltd.

 Chris Garrod Global India (P.) Ltd. v. Fabworth Promoters (P.) Ltd.

 Ranual Technologies Private Limited v Calprin Ads Private Limited

 Jindal Steel & Power Ltd. vs. DCM International Ltd
 Suresh Narayan Singh v. Tayo Rolls Ltd. 701 / 2017

 Daya Engineering Works Pvt. Ltd. v. UIC Udyog Ltd.

 Jawaharlal, Burman vs Union Of India on 25 September, 1961

 M/S Swatantra Properties (P) Ltd. vs M/S Airplaza Retail Holdings Pvt. ... on 28
May, 2018
 Vijaya Narayanan vs Prabhakaran on 8 February, 2006

2. STATUTES:

 Indian Contract Act

 The Constitution of India, 1950

 The Indian Contract Act, 1872

 Insolvency and Bankruptcy code, 2016

 Arbitration and Conciliation Act, 1996

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3. BOOKS:

 The Constitution of India, 1950

 The Indian Contract Act, 1872

 Justice R H Bachawat, Arbitration and conciliation

 Dharmendra Rautray, principles of Arbitration in India

 Taxmann’s guide Insolvency and bankruptcy,2016

4. CONSTITUTUIONAL PROVISION:

Article 136- Special leave to appeal by the Supreme Court:

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment, decree, determination, sentence or

order in any cause or matter passed or made by any court or tribunal in the territory of

India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law

relating to the Armed Forces.”

5. ONLINE DATABASES

1. Manupatra (www.manupatra.com)

2. SCC Online (www.scconline.in)

3. Westlaw India (www.WestlawIndia.com)

4. LexisNexis – Legal

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LIST OF ABBREVIATION
ABBREVIATIONS ACTUAL TERM

HI Hogsmeade Intelligensia

EWI Eurowelfare Inc.

FFI Felix Felicis Inc

FFPL Felix Felicis Private Limited

PDP BILL Personal Data protection Bill

NCLT National Company Law Tribunal

NCLAT National Company Law Appellate Tribunal

SLP Special Leave Petition

SC Supreme Court

IBC Insolvency and Bankruptcy Code,2016

ART Article

AND &

V Versus

HC High Court

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SEC Section

ACT Arbitration and Conciliation Act,1996

AIR All India Report

ANR Anothers

ORS Others

SCC Supreme Court Cases

GOVT Government

LTD Limited

UOI Union of India

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STATEMENT OF JURISDICTION

The Hon’ble Court has the jurisdiction to hear the matter under Article 136 of Constitution of

Grimmauldia.

“136. Special leave to appeal by the Supreme Court

(3) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment, decree, determination, sentence or

order in any cause or matter passed or made by any court or tribunal in the territory of

India

(4) Nothing in clause (1) shall apply to any judgment, determination, and sentence or

order passed or made by any court or tribunal constituted by or under any law

relating to the Armed Forces.”

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STATEMENT OF FACTS

Introduction – Grimmauldia is a republic in South Asia. Hogwarts is the administrative and

business capital of Grimmauldia. The laws of Grimmauldia are in pari materia with the laws of
India. Hogsmeade Intelligensia (“HI” of the “Firm”) is a private limited company incorporated
under Companies Act, 2013 in Grimmauldia, involved in legal policy research and advocacy. HI
is also a subset of and controlled by the global public relations firm Eurowelfare Inc. (“EWI”),
registered in the Cayman Islands. A very popular firm EWI with an expansive clientele boasts of
some of the major corporations of the world. Its popularity also rests on some controversies
charted by its regional offices in Latin American countries. Felix Felicis Inc. (“FFI”) is a
company incorporated in San Francisco, United States of America, providing the popular free
photo sharing platform, ‘The Burrow’ and earns through advertisements revenues.

Backdrop- On May 14, 2018,FFI incorporated Felix Felicis Private Limited (“FFPL” or the
“Company”) as a wholly owned subordinate of the company.Recently launched Nimbus Fit, an
activity tracker works at monitoring physical activity in order to enable the user to live a more
active/healthy life. FFPL collected user’s fitness related data, as a part of the working of this
activity tracker. Meanwhile, the Personal Draft Data Protection Bill 2018 (“PDP Bill” or the
“Draft Bill”) was prepared and submitted by a committee especially created by the
Grimmauldian legislature. The company’s board of directors felt that if the Bill was passed in its
current state, FFPL would have to make major changes in its business plans and may even face
harsh negative growth in the current financial year. FFPL approached HI to engage their services
and to seek their advice with respect to the obligations under the various provisions of and for
research and suggestions on the PDP Bill. The Agreement for Services between HI and FFPL
was signed and effective from September 1, 2018.It came with an arbitration clause, in which all
disputes arising from or regarding the agreement, including the validity thereof, would be
referred to arbitration by the parties, governed by the Arbitration and Conciliation Act,
1996.Under the arrangements between FFPL and HI, HI was to assist FFPL in petitioning the
government on some of the obligations under the PDP Bill. HI, in order to secure the desired
results for FFPL, prepared an extensive advocacy campaign. On September 3, 2018, FFPL paid
HI INR 50, 00,000 according to the agreement. On September 29, 2018, HI also submitted its

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suggestions on the Draft Bill. By mid-November, a huge scandal broke down through media
reports, claiming that efforts were being made by lobbying firms to influence law making across
different sectors of governance. On December 14, 2018, it was resolved between HI and all its
clients that HI would be discharged of its obligations under the respective contracts signed
between the clients and HI. By December 31, 2018, many demand notices were issued against HI
seeking the refund of advances paid to it by different clients. HI refused to honour the demand
notice and clarified that it does not owe any money to any client. Later, in a press conference,
FFPL stated that it considers its contract with HI unenforceable and, respecting the suggestions
of the government, will cease all professional association with firms such as HI. It had a very
negative impact on the reputation and business of HI and EWI group. At the same time, FFPL
had decided to pursue the recovery of advance paid to HI. On March 1, 2019, FFPL sent a notice
to HI, by registered post, an acknowledgment due for the recovery of advance paid to them. HI
did not respond to the notice dated March 1, 2019.On March 12, 2019, FFPL filed an application
before the NCLT at Hogwarts, under Section 9 of IBC. Based on the grounds given in Section 9
and on a perusal of the scheme of the Code, NCLT admitted the application filed by FFPL as an
operational creditor. Against this order of the NCLT, an appeal was preferred by HI under
Section 61 of the Code. The NCLAT upheld the decision of the NCLT. HI finally preferred an
appeal under Section 62 of the Code before the Supreme Court of Grimmauldia arguing that it
contains important question of law regarding the interpretation and scope of the term operational
debt under the Code. The apex court also stayed all proceedings in the matter pending before the
NCLT till the disposal of this appeal and ordered status quo to be maintained as existed on
March 12, 2019.

Present Case - On March26, 2019, HI sent a notice to FFPL, entreating the arbitration clause
under the contract dated September 1, 2018 and asked FFPL to appoint an arbitrator in according
to the contract. FFPL failed to appoint an arbitrator even after numerous reminders by HI.
Finally, on April 14, 2019, HI approached the High Court of Hogwarts under Section 11 of the
Arbitration and Conciliation Act, 1996 praying to initiate arbitration between the parties by
appointing the tribunal as per the scheme of the Act. The High Court refused to appoint the
tribunal. Against this order, an appeal was immediately filed by HI in the Supreme Court under
Article 136 of the Constitution. Taking note of the single cause of action and the common
questions of law involved, Supreme Court decided to club both the appeals

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ISSUES RAISED

ISSUE 1- Whether the agreement entered into between HI & FFPL was valid?

ISSUE 2-Whether there was an ‘operational debt’ in existence with respect to this case?

ISSUE 3- Whether the High Court had erred by not appointing an Arbitration Tribunal?

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SUMMARY OF ARGUMENTS

ISSUE 1- Whether the agreement entered into between HI & FFPL was valid?

It is humbly contended that the agreement entered into HI and FFPL was valid. The
considerations for appellant’s services were provided in the agreement which was signed and
was effective from September1, 2018. The first payment under this agreement shall be of INR
50, 00,000 to be deposited in HI’s account within five business days of execution of this
agreement for the services which the HI will provide to FFPL. The last payment shall be of INR
50, 00,000, payable upon the passage of the Data Protection Bill. As a result the agreement
between both the parties are said to be valid according to the circumstances of the agreement.
Therefore, the agreement between HI and FFPL exist and valid according to the terms and
conditions of the agreement

ISSUE 2-Whether there was an ‘operational debt’ in existence with respect to this case?

It is humbly contended that the agreement states that there was no ‘operational debt’ in existence
according to the agreement that was signed between FFPL and HI which was effective from
September 1, 2018. The sum claimed by the FFPL does not constitute the operational debt
especially when the agreement which was signed between both the parties is itself argued by
FFPL as void and unenforceable.

ISSUE 3- Whether the High Court had erred by not appointing an Arbitration Tribunal?

It is humbly before the Supreme Court of Grimmauldia that the High Court of Hogwarts had
erred by not appointing the Arbitration Tribunal between the parties according to the terms and
conditions of the agreement agreed by both the parties. When the parties entered into an
agreement which was effective from September 1,2018 with the arbitration clause , in which all
disputes arising from on regarding the agreement, including the validity thereof. Would be
referred to arbitration by the parties, governed by the Arbitration and Conciliation Act, 1996.
FFPL has failed to appoint the Arbitrator even after continuous reminders by HI.

This is the reason On April, 2019, HI approached the High Court of Hogwarts under section 11
of Arbitration and Conciliation Act,1996 and prayed to initiate arbitration between the parties by
appointing the tribunal as per the conditions of the agreement and following the particular Act.

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ARGUMENTS ADVANCED

ISSUE 1- Whether the agreement entered into between HI & FFPL

was valid?
It is humbly contended that the agreement between the two parties effective from
September 1,2018 was with all the term and conditions under the agreement with
all the representation and warranties will be true, complete in all by reference to
facts and circumstances till this agreement continues to be operative. The two
payment respective to the consideration of the agreement was to be done. The first
payment under this agreement shall be of INR 50, 00,000 to be deposited in HI’s
account within five business days of execution of this agreement for the services
which the HI will provide to FFPL. The last payment shall be of INR 50, 00,000,
payable upon the passage of the Data Protection Bill. As a result the agreement
between both the parties are said to be valid according to the circumstances of the
agreement. Therefore, the agreement between HI and FFPL exist and valid
according to the terms and conditions of the agreement.

The two parties that is HI (Hogsmeade Intelligensia) and FFPL(Felix Felicis

Private Limited) on September 1,2018. Eurowelfare Inc. (EWI) is a very popular
firm with an expensive clientele which boasts of some of the major corporations of
the world. HI is a private limited company incorporated under Companies Act,
2013 in Grimmauldia, primarily involved in legal policy research and advocacy. HI
is also the subset of and controlled by the global public relations firm EWI. Felix
Felicis Inc. (FFI) is a company incorporated in San Francisco, United States of
America, and primarily provides the popular free photo sharing platform, ‘The

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Burrow’ and earns through advertisement revenues.FFI incorporated Felix Felicis

Private Limited(FFPL) as a wholly owned subsidiary of the company. These two
parties entered into an agreement that HI will provide the services to FFPL under
the various provisions of and for research and suggestions on the PDP (Personal
Data Protection Bill), 2018 and they shall deliver reliable quality service to FFPL
to the best possible industry standards at all times during the tenure of the
agreement whcich was effective from September,2018. Therefore, there will be a
valid contract according to the conditions of the agreement and both the parties
agreed to fulfil the considerations under the agreement.

There was a valid contract between the parties which came into existence as soon
as the offer was made by one party and accepted by the other party. Reference and
the consequential award were defended as perfectly legal and binding on the firm.
Contract came into existence with the acceptance of the offer and deposit of
security was not a condition precedent but a mere formality to be fulfilled by the
objectors and consequently the objectors were liable for the non-fulfillment of the
contractual obligation.1

There will be two Payment according to the terms and conditions of the agreement.
The first payment under this agreement shall be of INR 50,00,000. The last
payment shall be of INR 50,00,000, payable upon the passage of the Data
Protection Bill. On September 3,2018 FFPL paid HI INR 50,00,000 under the
conditions of the agreement. Even it is stated that HI does not promise,gurantee or
enter into any legal binding commitment to secure a conclusive amendment to the
Personal Data Protection Bill,2018.

1
Bodh Raj Daulat Ram And Ors. vs Food Corporation Of India And Anr. on 12 March, 2003
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Under the agreement both the parties agreed to the conditions and warranties will
be true, complete in all by reference to facts and circumstances till this agreement
continues to be operative. The agreements in question became valid contracts as
soon as they were signed because these agreements met with all the requirements
of the valid contract under the Contract Act2.

2
Dominant Offset Private Ltd. vs Adamovske Strojirny on 19 January, 2000
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ISSUE 2- Whether there was an ‘operational debt’ in existence with

respect to this case?

It is humbly contended that the agreement states that there was no ‘operational
debt’ in existence according to the agreement that was signed between FFPL and
HI which was effective from September 1,2018. The two payment respective to the
consideration of the agreement was to be done according to the agreement. The
first payment under this agreement shall be of INR 50,00,000 to be deposited in
HI’s account within five business days of execution of this agreement for the
services which the HI will provide to FFPL. The last payment shall be of INR
50,00,000, payable upon the passage of the Personal Data Protection Bill(PDP).

“Debt” means a liability or obligation in respect of a claim which is due from any
person and includes a financial debt and operational debt- Section 3(11) of
Insolvency Code,2016.

The Insolvency and Bankruptcy Code 2016 defines an “operational debt” in

section 5(21) as “a claim in respect of the provision of goods or services including
employment or a debt in respect of the payment of dues arising under any law for
the time being in force and payable to the Central Government, any State
Government or any local authority”.

The sum claimed by the FFPL does not constitute the operational debt especially
when the agreement which was signed between both the parties is itself argued by
FFPL as void and unenforceable. Even though in a press conference they
themselves considered the agreement was unenforceable without noticing the terms
and conditions of the agreement.

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It aims to consider if it is permissible under the Code for an applicant who has a
claim, but has not supplied any goods or services, to initiate insolvency
proceedings under section 9 as an operational creditor. For example, it will arise if
party “B” makes advance payments to “A” for provision of certain goods or
services and “A” refuses to make supply of goods or provide the service. The
question is whether it is permissible for “B” to initiate insolvency proceedings
under section 9 in such a circumstance. It is held that the claim made by the
petitioner is not a debt, much less an operational debt owed to the petitioner by
corporate debtor for want of existence of jural relationship of corporate debtor and
operational creditor between them under the Code henceforth instant petition is
dismissed3.

In a case, petitioner produced tax invoice proving service rendered by the

petitioner to the corporate debtor. But it is not based on the work order issued by
the respondent.The work order issued by the respondent to the holding company of
the petitioner. Thus, next question whether issuing tax invoice for a work
entrusting to the holding company by the petitioner to the respondent is a debt due
to the petitioner from the respondent for the service they rendered to the
respondent. Since the service rendered by the petitioner not based on any
agreement or based on any work order debt claimed by the petitioner also could
not be regard as an operational debt.4

In another case however, it is humbly stated that those judgments are not
applicable to the question that is being discussed in this post. Those judgments
arrived at a finding that the claims raised did not relate to provision of goods or

3
Metal Power Analytical (India) (P.) Ltd. v. Crystaline Exports (P.) Ltd.
4
Chris Garrod Global India (P.) Ltd. v. Fabworth Promoters (P.) Ltd.

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services and therefore such a claim cannot be an operational debt. Having held as
such, the statement that an applicant needed to have supplied goods or rendered
services to initiate insolvency proceedings under section 9 need to be seen as obiter
dicta and not the main holding of those cases. 5

In another case, wherein claims of Corporate Debtor were rejected to be

categorized Operational Debt as the amount which was claimed to be in default did
not aroused in relation to the amount payable towards supply of goods or rendering
services or in connection with the employment or in relation to the statutory dues
as prescribed under Section 5(21) of IBC, 2016 and hence the Petitioner was not
entitled to maintain the petition as an Operational Creditor.6

In a case, the Operational creditor himself can file a petition under section 9
regarding debt of other persons, only in case debt is assigned or transferred to him.
The petitioner had filed petition under section 9 as an unauthorized representative
of workers of corporate debtor when corporate had applied for its closure. It was
held that since petitioner had not been assigned or transferred operational debt of
workers on whose behalf petition had been filed, petitioner could not be considered
as an operational creditor. Thus, petition filed in representative capacity of workers
was not maintainable under section 9.7

The applicant made advance payments for certain materials, for which there was a
short supply. An application was, therefore, filed under section 9 of the IBC, but
the matter was dismissed on the ground that the amount due to the applicant did

5
Ranual Technologies Private Limited v Calprin Ads Private Limited
6
Jindal Steel & Power Ltd. vs. DCM International Ltd

7 Suresh Narayan Singh v. Tayo Rolls Ltd. 701 / 2017

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not fall under any of the aforementioned elements of the definition of operational
debt, and hence, there exists no operational debt at all.8

The NCLT, admitted the application filed by FFPL as an “operational creditor”

based on the ground mentioned in section 9 of IBC. Against this order the NCLAT
upheld the decision of the NCLT, for the appeal which was preferred under section
61 of the Code( Notwithstanding anything to the contrary contained under the
Companies Act 2013, any person aggrieved by the order of the Adjudicating
Authority under this part may prefer an appeal to the National Company Law
Appellate Tribunal.). Now, HI has the power under section 62 of the code(Any
person aggrieved by an order of the National Company Law Appellate Tribunal
may file an appeal to the Supreme Court on a question of law arising out of such
order under this Code within forty-five days from the date of receipt of
such order)to approach the Supreme Court of Grimaauldia. This Appeal was filed
before the Supreme Court of Grimmauldia arguing that the appeal has contained an
important questions of law in respect with the operational debt. It was argued
specifically by HI that the debt claimed under the code is not based on equitable
principles for example, “unjust enrichment”( unjust enrichment occurs when one
person is enriched at the expense of another in circumstances that the law sees as
unjust, where an individual is unjustly enriched, the law imposes an obligation
upon the recipient to make restitution, subject to defences such as change of
position). Here the debt is not enriching anyone that’s why it will not be considered
as equitable principle, it was just the agreement signed between both the parties for
which there will be payment by FFPL to HI. Therefore, as stated above the FFPL
has itself made the agreement void , so the debt will also be automatically
considered as not valid according to the circumstances of the case. When the

8
Daya Engineering Works Pvt. Ltd. v. UIC Udyog Ltd.
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agreement was signed it was stated by HI that it does not promise, guarantee or
enter into any legally binding or enforceable commitment to secure a conclusive
amendment to the Personal Data Protection Bill, 2018. As a result there will be no
operational debt.

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ISSUE 3- Whether the High Court had erred by not appointing an

Arbitration Tribunal?

It is humbly before the Supreme Court of Grimmauldia that the High Court of
Hogwarts had erred by not appointing the Arbitration Tribunal between the parties
according to the terms and conditions of the agreement agreed by both the parties.
When the parties entered into an agreement which was effective from September
1,2018 with the arbitration clause , in which all disputes arising from on regarding
the agreement, including the validity thereof. Would be referred to arbitration by
the parties, governed by the Arbitration and Conciliation Act,1996. Both the
parties had agreed all the terms and conditions following the representations and
warranties are true, complete and accurate in all aspects, as of the date of the
agreement, and shall continue to be true and complete in all by reference to facts
and circumstances till this agreement continues to be operative. On March 26,
2019, HI sent a notice to FFPL, to appoint an arbitrator in accordance with the
relevant clause of the agreement. FFPL has failed to appoint the Arbitrator even
after continuous reminders by HI.

That’s why On April, 2019, HI approached the High Court of Hogwarts under
section 11 of Arbitration and Conciliation Act,1996 and prayed to initiate
arbitration between the parties by appointing the tribunal as per the conditions of
the agreement and following the particular Act.

In a case9, the petition having been made under s. 28 along with s. 33 the
respondent prayed that suitable extension of time be granted to the Arbitrators for
making the, award. The appellant pleaded in defence that no concluded contract
had been made between the parties and that there was no jurisdiction: in the Court

9
Jawaharlal, Burman vs Union Of India on 25 September, 1961
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to grant extension under s 28. The, other allegations made by the respondent in its
petition were also traversed. On these pleadings the learned trial judge framed,
appropriate issues. He found that a concluded contract had been proved, between
the parties as alleged by the respondent, that there was a valid arbitration
agreement in the said contract and that the Court had jurisdiction. Consistently
with the findings recorded by him the learned trial judge declared that there was a
concluded contract between the parties under which the matter was duly referred to
arbitration through an arbitration agreement clause in the contract. The High Court
has confirmed the finding of the trial court that there was a concluded contract
which contained an arbitration agreement.

In another case it was pronounced according to the facts and circumstances of the
case the present application is an application under Section 11(4) for appointment
of an arbitrator under Section 11(6) of the Act, 1996, in terms of the arbitration
agreement dated 31.10.2011 read with the agreement dated 4.2.2009, therefore, in
view of the law settled by Hon'ble Supreme Court in Booz Allen and Hamilton Inc.
(supra), Duro Felguera, S.A.(supra) and the provisions of sub-Section (6A)
of Section 11, it is not desirable at this stage to embark upon an examination of the
issue of "arbitrability" or appropriateness of adjudication by a private forum. Since
there exists an arbitration agreement between the parties and there is some dispute
touching the agreement, hence an arbitration needs to be appointed. 10

In other case court has explained what refers to the Arbitration valid- the court has
to decide whether there exists a valid arbitration agreement. If there is
a valid arbitration agreement, it has to further decide whether the dispute that is
sought to be raised before it is the one covered by the arbitration clause. If these
aspects are found in favour of the applicant and the party had applied

10
M/S Swatantra Properties (P) Ltd. vs M/S Airplaza Retail Holdings Pvt. ... on 28 May, 2018
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under Section 8 before submitting his first statement on the substance of the
dispute before the court, the court is bound to refer the parties to arbitration. It is
not for the court to appoint an arbitrator. The court cannot also stay the
proceedings till the arbitration proceedings conclude. All the rights and obligations
and remedies of the parties including the right to challenge the award are governed
by the provisions of the 1996 Act. Once it is found that subject matter of the action
before it is the subject matter of an arbitration agreement and an order is passed
referring the parties to arbitration.11

The Court held that there existed a valid arbitration agreement. Having got a
decision that a valid arbitration agreement existed,because the contract was valid.
If the suit lies, then the arbitration proceeding cannot go on, and yet if in the suit it
is held that the contract was bad and can he avoided, there comes
into existence two conflicting judgments in one of which the court holds the
contract to be invalid and in the other the arbitration agreement is upheld, on the
basis that the court holds the contract to be valid. The High Court confirmed the
finding of the trial court and held that there was a concluded contract which
contained an arbitration agreement.12

11
Vijaya Narayanan vs Prabhakaran on 8 February, 2006
12
Shree Bajrang Jute Mills Ltd. vs Fulchand Kanhaiyalal Co. And Anr. on 10 May, 1962
11 | P a g e MEMORIAL ON BEHALF OF THE APPELLANT
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PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and authorities

cited, the Hon’ble Supreme Court of Grimmauldia may be pleased to:

1. DECLARE, the agreement between the respondent and appellant is valid and

enforceable.

2. THAT, there was an existence of an ‘operational debt’.

3. TO HOLD, that the High Court had erred by not appointing the arbitrator.

AND/OR

Render any other opinion that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondent shall forever humbly pray.

COUNSELS FOR APPELLANT

12 | P a g e MEMORIAL ON BEHALF OF THE APPELLANT

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13 | P a g e MEMORIAL ON BEHALF OF THE APPELLANT