1. Petitioner Memo Final NUJS

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 Petitioner’s

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. : King’s 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

V

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 Athletica’s 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 Government’s 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 government’s 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.


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 Company’s 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/c’s, and certain communication which

were supposed to be lawyer-client privileged information. All these e-mails were forwarded

by an e-mail id [email protected]. 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 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. WHETHER THERE WAS A BREACH OF CONTRACT BY THE PETITIONER?

2. WHETHER THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE?

3. WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT OF COURT?

4. 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

Company’s 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.


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 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 Court’s 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’.”

1 Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401 Court of Appeal.2 LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors , (1984) 2 SCC 719, at ¶18.3 BSNL v. BPL Mobile Cellular Ltd , (2008)13 SCC 597, at ¶ 30.


In the instant case, during the negotiation of the contract, the parties disagreed on the

Government’s 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

4 Factsheet, Annexure 1.5 Factsheet, Annexure 2.6 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.


of the above law governing obligations arising out of an ‘as is where is’ 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 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

7 The Prevention of Money Laundering Act, 2002, § 3.

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

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


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

Petitioner’s 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

10 Vodafone International Holdings B V vs. Union of India , (2012) 6 SCC 613 at ¶ 142.11 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.


implied, he would be guilty of infringement of the plaintiff’s 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.

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

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


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:

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 Agency’s 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 arbitrator20; an

inference may be drawn as to their acceptance of this high burden of proof.

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

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.


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

Narayanagouda’s 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 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

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.


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 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 Indian29. 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:

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.


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 documents33 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 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.

32 1988 (1) ALT 915; Nunna Venkateswara Rao vs Tota Venkateswara Rao & Ors, 2007 (4) ALD 74433The 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. 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).


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

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

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


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

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 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 Petitioner’s

objections with regard to the conduct of arbitration proceedings were disregarded by the

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.


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 Petitioner’s 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

court’s 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 court’s 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.

48 Factsheet, at ¶ 14.49 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.


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 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 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 602.58 Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case No.915 of 200259 The General Clauses Act, 1897, § 3(3).60 Indian Penal Code, 1860, § 199 Read With § 200.


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 counsel’s 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 Hon’ble 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)

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


Documents

1. Petitioner Memo Final NUJS