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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

MEMORIAL ON BEHALF OF THE PETITIONER,


COUNSEL A.MANOJ KUMAR, VTH YEAR B SECTION.

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.

THERE WAS NO BREACH OF THE CONTRACT BY THE

PETITIONER:..........................................................................................................................
1.1.

The Last-Shot Rule would apply in interpreting Contractual

Negotiations:......................................................................................................................
1.2.

The obligation to satisfy itself lay on the Government as the

Contract was entered into on an as is where is basis:.....................................................


1.3.

The Company is not liable for any crimes of financial

impropriety:........................................................................................................................
1.4.

The Government has violated its contractual obligations

relating to Petitioners Trade Secret:.................................................................................


2.

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


2.1.

The Award by the Arbitrator is perverse and patently

illegal:................................................................................................................................
2.2.

In Arguendo, The Procedure followed did not comply with

the Arbitration Agreement:...............................................................................................

-Table of Contents3.

-Petitioner-

WHETHER THE RESPONDENT IS GUILTY OF CIVIL

CONTEMPT...........................................................................................................................
4.
OF

WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE


PERJURY.........................................................................................................................

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

-Index of Abbreviations-

-Petitioner-

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.........................................

-Index of Authorities-

-Petitioner-

LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors, (1984) 2


SCC 719.................................................................................................................................
Lord Ashburton v. Pape, [1913] 2 Ch 469..................................................................................
M.S. Narayanagouda v. Girijamma, AIR 1977 Kant. 58...........................................................
Murray And Co v. Ashok K.R. Newatia, (2002) 2 SCC 367.....................................................
N., J., Y., W., v. FINA, CAS 98/208............................................................................................
Narendra Singh and Another v. State of MP, (2004) 10 SCC 699.............................................
ONGC v. Saw Pipes, (2003) 5 SCC
705....................................................................................6
Pearse v. Pearse, 1846, 16 LJ Ch 153.....................................................................................
Prabhu v. State of Rajasthan, (1984) 1 Crimes 1020 (Raj) (DB)............................................
R. v. Collins, (1987) 1 SCR 265(Can SC)................................................................................
R. v. Stillman, (1997) 1 SCR 607 (Can SC).............................................................................
Radha Kishan v. Navratan Mal, AIR 1990 Raj 127.................................................................
Raj Kishore v. State of Uttar Pradesh, 1988 AII Cr Cas 11.....................................................
Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635........................................
Rakapali Raja Rama Gopala Rao v. Naragani Govinda Sehararao,
(1989) 4 SCC 255.................................................................................................................
Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of
West Bengal, 2004 (4) CHN 602..........................................................................................
Saltaman Engineering v. Campbell Engineering, (1948) 65 RPC 203
(CA)........................................................................................................................................
Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC
1622........................................................................................................................................
Siman Lakra v. Sudhis Prasad, 1993 (1) PLJR 493.................................................................
VI

-Index of Authorities-

-Petitioner-

State of Kerala v. M.M. Mathew, AIR 1978 SC 1571..............................................................


State of Rajasthan v. Mohan Singh, 1995 Supp (2) SCC 153..................................................
State of UP v. Sukhbasi, AIR 1985 SC 1224............................................................................
The Government of NCT of Delhi vs. Shri Khem Chand and Another,
AIR 2003 Delhi 314.............................................................................................................
The Security Printing and Minting Corporation of India v. Gandhi
Industrial Corporation, (2007) 13 SCC 236..........................................................................
Thomas Marshall v. Guinle, [ 1979] 1 Ch 237...........................................................................
Three Rivers District Council & Ors v. Governor & Company of the
Bank of England, [2003] EWCA Civ 474............................................................................
Union Bank of India v. Official Liquidator, (1994) 1 SCC 575.................................................
United States v. Conte, (N.D. Cal. 2004)...................................................................................
USADA v. G, CAS 2004/O/649..................................................................................................
USADA v. M. and IAAF, CAS 2004/O/645................................................................................
V. Sambandan v. The Punjab National Bank, W.P. No. 19557 of 2009 &
M.P. No. 1 of 2009................................................................................................................
Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC
613..........................................................................................................................................
BOOKS
James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and
Beyond, 16 Marq. Sports L. Rev. 45 (2005).........................................................................
OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration
and Conciliation, Lexis Nexis Butterwoerths Wadhwa, Gurgaon
(2006),....................................................................................................................................

VII

-Index of Authorities-

-Petitioner-

Sir JF Stefen,Digest of Evidence, Vol 1, Third Edn, 1940,Published by


Little, Brown & Co, Boston Arts..........................................................................................

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

VIII

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

-Statement of Facts-

-Petitioner-

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 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 nondisclosure 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.

-Statement of Facts-

-Petitioner-

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.
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

-Statement of Facts-

-Petitioner-

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 emails 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.
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

-Statement of Facts-

-Petitioner-

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

-Summary of Pleadings-

-Petitioner-

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.

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 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

-Summary of Pleadings-

-Petitioner-

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 Corporation 1, 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.
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
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.

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

Factsheet, Annexure 1.

-Summary of Pleadings-

-Petitioner-

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
5

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-

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.

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 Act7 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 MP8, a case relating to offences
under the Prevention of Corruption Act, the well established
principle of criminal jurisprudence that Suspicion howsoever strong
7

The Prevention of Money Laundering Act, 2002, 3.

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

-Summary of Pleadings-

-Petitioner-

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.

-Summary of Pleadings-

-Petitioner-

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 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.

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

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


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.

-Summary of Pleadings-

-Petitioner-

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 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:
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-

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. FINA16, 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 Agency 18 (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
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).

-Summary of Pleadings-

-Petitioner-

relevant aspects of Indian law for perusal by the arbitrator20; 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 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 Court23 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
20

Factsheet at 14.

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.

-Summary of Pleadings-

-Petitioner-

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 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 Arbitration 28, 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,
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.

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).

-Summary of Pleadings-

-Petitioner-

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
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

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).

34

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

Bateshwar Prasad, AIR 1966 SC 580.

-Summary of Pleadings-

-Petitioner-

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

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).

-Summary of Pleadings-

-Petitioner-

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
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-

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

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.

-Summary of Pleadings-

-Petitioner-

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.
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

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

50

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

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

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

54

Fact Sheet, Annexure 6.

-Summary of Pleadings-

-Petitioner-

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.

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
55
56

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


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.

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.

-Summary of Pleadings-

-Petitioner-

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

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.

61

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

-Summary of Pleadings-

-Petitioner-

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)