21

KISHINCHAND CHELLARAM LAW COLLEGE - Lawctopus · Greetings from Kishinchand Chellaram Law College, Mumbai. It gives us immense pleasure to invite your esteemed Institution to participate

  • Upload
    others

  • View
    47

  • Download
    0

Embed Size (px)

Citation preview

KISHINCHAND CHELLARAM LAW COLLEGEVidyasagar Principal K.M.Kundnani Chowk, 123, Dinshaw Wachha Road, Mumbai 400 020, Maharashtra

Tel: 022-22822376 Email: [email protected] Website: www.kclawhsnc.edu.in

31st January 2015

To,

The Principal

Subject: Invitation to the 9th National Moot Court Competition 2015

Dear Sir/Madam,

Greetings from Kishinchand Chellaram Law College, Mumbai.

It gives us immense pleasure to invite your esteemed Institution to participate in the 9th National Moot Court Competition being organised by our College in its 60th year. The Competition will be held at the K.C. Law College Campus, on Saturday, 14th March 2015.

Participation in the Competition is limited to 16 (sixteen) teams. We would be glad if you would kindly nominate a team of three students of the undergraduate law programme of your Institution to participate in the Competition and intimate confirmation of your team’s participation.

The Competition Rules, Moot Problem and Registration Form are enclosed herewith. Registration must be done on or before Saturday, 28th February 2015, along with non-refundable registration fee of Rs.1,500 (Rupees One Thousand Five Hundred) per team by way of demand draft/cheque in the name of “K. C. Law College” or in cash. Memorials must be submitted by Thursday, 5th March, 2015.

Any queries in this regard may be addressed to [email protected].

We look forward to your participating in our Competition and making it a success.

Thanking you.

Yours faithfully,

Dr. Sunita Khariwal I/C Principal Kishinchand Chellaram Law College

Co-ordinators:

K.C. Law College Moot Court Association

Dr. Bindu Variath, Vice-Principal

Adv. Mayur Khandeparkar

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015

INDEX

No. Contents Page

1 General Rules and Regulations 1

2 Pre-Competition Formalities 1

3 Competition Rounds 2

4 Memorials (General) 2

5 Memorials (Evaluation) 4

6 Oral Submission (General) 4

7 Oral Submission (Evaluation) 6

8 Awards 6

9 Schedule 7

10 Clarifications 7

11 Miscellaneous 7

12 Moot Problem 9

13 Venue Map 17

14 Registration form 18

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 1

I. GENERAL RULES & REGULATIONS

1. Date and venue: K. C. Law College will be organising a National Level Moot Court

Competition on Saturday, 14th March 2015 at K. C. Law College, Vidyasagar Principal K.M.

Kundnani Chowk, 123 Dinshaw Wachha Road, Churchgate, Mumbai 400 020.

2. Eligibility: Bona fide students pursuing the three or five year LL.B. degree course from any

recognised Law School/College/University in India in the academic year 2014-2015 are

eligible to participate.

3. Restriction on number of teams: There shall be only one team per Law School/College/

University provided that where two or more independent Law Schools/Colleges are affiliated

to the same University, each such Law School/College may send a separate team.

4. Restriction on participation: Participation in the Competition is restricted to 16 (sixteen)

teams.

5. Team composition: Each team shall comprise only three members, that is, two Speakers

and one Researcher, all of whom shall be identified at the time of registration. No change in

the names of participants shall be permitted after the last date of registration, except at the

sole discretion of the Organisers.

6. Dress code: Dress code shall be:

a. Western formals (white shirt, black trousers, black tie, black blazer and black shoes for gentlemen; and

b. Western (white shirt, black trousers, black blazer, and black shoes) or Indian (Punjabi

dress – white kurta and white/black churidar/salwar with or without dupatta (white or

black) and black shoes) formals for ladies.

Wearing of gowns and bands is not permitted.

7. Language: The Competition shall be held in the English language.

II. PRE-COMPETITION FORMALITIES

1. Registration: Teams must register themselves on or before 1700 hours of Saturday, 28th

February 2015, along with non-refundable registration fee of Rs.1,500 (Rupees One

Thousand Five Hundred) per team by way of demand draft/cheque in the name of “K. C.

Law College” or in cash.

2. Time of reporting: Teams are required to assemble in the college premises at 0800 hours on

Saturday, 14th March 2015.

3. Allotment of team codes: Participating teams shall be assigned team codes for the purpose

of competing in oral rounds based on evaluation of Memorials submitted. Lots shall be

drawn at 0830 hours to determine the sides for which a team argues in the preliminary

round.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 2

4. Exchange of Memorials: Teams shall be required to exchange Memorials with their

respective opponent teams prior to the preliminary rounds.

5. College tour: All team representatives shall be given a tour of the College to enable them to

get acquainted with the Competition venue.

6. Travel and accommodation: Teams are requested to make their own arrangements for

travel (including on the day of the Competition) and accommodation while attending the

Competition. Kindly be informed that the College shall not be providing accommodation.

For any assistance relating to accommodation, please contact the Moot Court Association on

or before Saturday, 28th February, 2015. Organisers shall be not be held liable or responsible

for any damage, injury, loss or adverse situation arising out of or incidental to occupation of

premises recommended, for purpose of accommodation, by the Moot Court Association.

III. COMPETITION ROUNDS

1. The Competition is a one day event.

2. The Competition shall comprise three rounds as under:

a. Preliminary round:

i. The preliminary round shall be conducted in one part. Each team shall be required

to argue for either the Petitioner or the Respondent in the preliminary round.

ii. The four teams scoring the maximum aggregate marks from each Court Room in the

Preliminary rounds shall qualify for the semi-final round.

b. Semi-final round:

i. Of the four teams qualifying for the semi-finals, the side which each team represents

shall be decided by drawing of lots.

ii. The winning team from each Court Room shall proceed to the final round.

c. Final round:

i. The sides for which the teams qualifying for the finals will be required to argue shall

be decided by drawing of lots.

ii. The team scoring highest marks in the final round shall be declared the winner.

3. The decision of the Judges shall be final and binding.

4. Score sheets shall be displayed on the K.C. Law College Notice Board after each round.

IV. MEMORIALS (General)

1. All teams shall submit Memorials/written submissions in respect of both Petitioner and

Respondent.

2. The Memorials shall be in English.

3. The Memorials shall comprise:

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 3

a. Cover page;

b. Table of Contents;

c. List of abbreviations;

d. Index of authorities;

e. Statement of relevant facts;

f. Issues;

g. Arguments;

h. Summary of arguments;

i. Statement of jurisdiction;

j. Written Submissions; and

k. Conclusion/Prayer.

4. The Memorial, including the abovementioned contents, shall not exceed 30 pages.

5. The Memorial shall be:

a. typed;

b. on A4 paper;

c. on one side;

d. with interline 2 (double spacing) except as mentioned below;

e. with margin of 2.5 centimeters on both sides;

f. with margin of 2.5 centimeters at the top and at the bottom;

g. with page numbers shown at bottom centre of each page;

h. with typestyle Times New Roman, font size 12; and

i. footnotes with typestyle Verdana, font size 8 and single spacing.

6. The Memorial shall be spiral/comb bound.

7. The Memorial cover page shall adhere to the following colour scheme:

a. Blue for Petitioner; and

b. Red for Respondent.

8. The Memorial shall NOT contain any annexure, photographs, sketches, exhibits, affidavits,

etc.

9. Memorials not meeting the above specifications shall be negatively marked.

10. Under no circumstances shall the Memorial disclose the identity of the college and/or of the

participants. The participating colleges shall be allotted the college code at the time of

registration and same is to be mentioned on the Memorials. Breach of this condition shall

render the team liable to disqualification.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 4

11. Teams shall send 3 (three) hard copies of their Memorials (in respect of both the Petitioner

and the Respondent) and a soft copy in Portable Document Format (.PDF extension) in a

compact disk to the following address on or before Thursday, 5th March 2015:

The General Secretary, Moot Court Association,

K.C. Law College,Vidyasagar Principal K.M. Kundnani Chowk,

123, Dinshaw Wachha Road,Mumbai 400020, Maharashtra

In addition, Microsoft Word files (.doc or .docx extension) of the Memorials shall be emailed

to [email protected] on or before 2359 hours of Thursday, 5th March 2015 with

subject line stating “Memorials for team [mention College name]”.

12. If two Memorials are found to be substantially similar and, upon consultation with the

Judge(s), it is concluded that unethical practices may have been followed, penalties may be

imposed and/or the concerned team(s) may be liable to be disqualified.

13. Memorials once submitted shall be deemed to be final.

14. Memorials submitted shall not be returned.

15. Participants are advised to carry at least two copies of their Memorials to the Competition.

V. MEMORIALS (Evaluation)

1. Every Memorial shall be marked from a total of 100. Marks scored by a team for a Memorial

shall be the average of the total marks scored on Memorials in respect of both the petitioner

and respondent.

2. Scoring criteria is given below:

Knowledge and application of facts 20 marks

Knowledge and application of pertinent laws 20 marks

Research and application of relevant case laws and proper and articulate analysis

20 marks

Adherence to abovementioned standards, grammar and citations 20 marks

Clarity/presentation/organisation 20 marks

Total 100 marks

VI. ORAL SUBMISSION (General)

1. Only English shall be permitted as the Court language.

2. The two Speakers in each team shall divide the oral submissions between themselves.

3. No team shall reveal its identity or that of its School/College/University by any means

whatsoever.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 5

4. The maximum time allotted to each team to present oral submissions, inclusive of the time

that each team may want to reserve for its rejoinder/surrejoinder is as under:

Preliminary round 20 minutes

Semi-final round 30 minutes

Final round 45 minutes

5. The maximum time that a Speaker shall reserve for arguments is as under:

Preliminary round 12 minutes

Semi-final round 18 minutes

Final round 30 minutes

6. At the commencement of oral submissions in every session, each team shall intimate the

designated Court Officer of the time that it wishes to reserve for its Speakers and

rejoinder/surrejoinder.

7. A maximum of five minutes may be reserved for the rejoinder/surrejoinder. Only one

member of the team may speak during this period. The Researcher shall not be allowed to

argue at any time during the Competition.

8. One minute before the completion of the allocated time for each Speaker, a warning sign

shall be displayed to signal the Speaker to conclude arguments. On completion of the

allocated time for each Speaker, a ‘Time Over’ sign shall be displayed and the Speaker shall

be required to stop. The Judges may, however, at their sole discretion, allow the Speaker to

continue beyond the allocated time provided that in the preliminary round, the time

extension granted by the Judges may not exceed more than two minutes for each Speaker.

9. The final decision as to the time structure and the right to rejoinder/surrejoinder shall be

that of the Judges.

10. All teams shall be expected to carry any case laws and authorities that they intend to refer

to during the course of oral submissions. All such documents pertaining to case law and

authorities shall be circulated to the Judges only through the designated Court Officer.

Participants are prohibited from directly approaching the Judges during the competition

rounds.

11. All the extra material pertaining to case law and authorities shall also be provided to the

opponent teams at the time of circulating the same to the Judges. Teams are directed to

arrange for requisite number of copies of all such extra material.

12. During the course of oral submissions, the participants cannot submit any material

containing pictorial representation to the Court. Furthermore, the participants shall neither

be permitted to use any audio/visual representation nor will they be allowed to use personal

computers, laptops and any other technical or mechanical devices.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 6

13. A team submitting any material in violation of the foregoing, and/or submitting or

presenting to the Court any picture, sketch, photo, cartoon, caricature, audio film, video

film, projector slide or computer generated image, shall be disqualified from the

competition forthwith.

14. Compilation of judgments or any other research material in addition to that mentioned in

the Memorial may be submitted at the time of oral arguments by the participants.

VII. ORAL SUBMISSION (Evaluation)

1. Each Speaker shall be marked on a total of 100 marks. The total scores of the team shall be

evaluated on the basis of aggregate marks obtained by both the Speakers of the team.

2. Scoring criteria is given below:

Knowledge and application of facts 10 marks

Knowledge and application of pertinent laws 20 marks

Application of relevant case laws 20 marks

Style, poise, courtesy and demeanour 15 marks

Flow of arguments and organisation 15 marks

Proficiency and adeptness in answering questions 20 marks

Total 100 marks

3. To ensure uniformity in the marking system, all Judges shall be provided with a marking

guideline.

VIII. AWARDS

Awards are as under:

1. Winner’s Trophy to the team winning the competition and Winner’s Certificates to all

members of the winning team.

2. Runner-up Trophy to the team placing second in the competition and Runner-up

Certificates to all members of this team.

3. Best Speaker Trophy and Certificate to the Speaker scoring top cumulative marks averaged

across the number of rounds participated in.

4. Best Memorial Trophy to the team scoring the highest marks on Memorials and the Best

Researcher certificate to the Researcher of this team.

5. Semi-finalist Certificates to all members of the teams making the semi-finals but not going

through to the final round.

6. Participation Certificates to all participants.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 7

IX. SCHEDULE

Last day for the submission of Registration Form

1700 hours 28th February, 2015

Last day for the submission of Memorials

2359 hours 5th March 2015

Reporting time 0800 hours

14th March 2015

Orientation, breakfast and drawing of lots

0830 hours to 0930 hours

Preliminary round 0930 hours to 1100 hours

Results of preliminary round and drawing of lots for semi-final round

1100 hours to 1200 hours

Semi-final round 1200 hours to 1400 hours

Lunch 1400 hours to 1600 hours

Final round 1600 hours to 1800 hours

X. CLARIFICATIONS

1. Clarifications may be sought by emailing [email protected].

2. In case of urgency, the following members of the K.C. Law College Moot Court Association

may be contacted:

Ms. Delissa D’Souza, General Secretary +91 9820838398

Ms. Harsha Uppal, Assistant General Secretary +91 9870412187

Mr. Bhavin Shah, Treasurer +91 9821502411

Ms. Manali Mengde, Communications +91 9819697453

XI. MISCELLANEOUS

1. Teams shall not be permitted to observe, directly or indirectly, oral rounds of any other

team. Scouting is strictly prohibited and shall result in disqualification of the concerned

team.

2. All the participants are expected to maintain decorum in the Court during the Competition

and to conduct themselves in a manner befitting the legal profession throughout the

Competition, both within and outside of the Court rooms.

3. Decisions of the Organisers shall be final and binding:

a. on the interpretation of rules or on any other matter relating to Competition; and

b. if any situation not foreseen or not considered by the rules and regulations of the

Competition arises.

4. No team shall have the right to protest being photographed, or their performance being

taped, etc. The Organisers reserve the exclusive copyright over any such photographs or

tapes, etc.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 8

5. The Organisers reserve the right to cancel/postpone/reschedule the Competition in the

event of any unforeseen circumstances.

6. The Organisers reserve the right to vary, alter, modify or repeal any of the abovementioned

rules, if so required, and as they may deem appropriate.

7. Acceptance of the abovementioned rules is a precondition to participation in the

Competition.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 9

XII. MOOT PROBLEM

BEFORE THE SOLE ARBITRATOR

IN THE MATTER OF ARBITRATON BETWEEN

Mr. ABC )

Aged 56 years, )

Residing at 123, Oracle Building, )

Malad(W), Mumbai ) ….Claimant

Versus

XYZ DEVELOPERS, )

Private Limited Company )

Having registered office at )

45-A, Khar Road, Mumbai ) ….Respondent

AWARD

1. The Claimant is an individual Indian inhabitant residing at 123, Oracle Building, Malad(W),

Mumbai. The Respondent is a builder and developer of real estate in the island city of

Mumbai and having its registered office at 45-A, Khar Road, Mumbai.

2. In the year 2008, the Respondent launched its new building project at Worli, which were

exclusive luxury apartments, inter alia, consisting of two towers of 33 storeys each and

various other amenities such as swimming pool, gymnasium, health club, club house and

jogging park and track. The Respondent, in its brochure represented that the said project

would be completed in a period of 5 years and would be ready for possession and

occupation. The rates and floor rise were also made available in the said brochure.

3. Pursuant to the same, the Claimant approached the Respondent with an intention to book a

3BHK flat in the said project, and pursuant to negotiations and discussions, the Claimant and

the Respondent executed a duly registered Agreement for Sale dated 13th December 2008

for consideration and upon terms and conditions contained in the said Agreement for Sale

(hereinafter referred to as ‘the said Agreement’).

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 10

4. Disputes arose between the Claimant and the Respondent relating to the said Agreement

and the Claimant filed a suit for specific performance against the Respondent, being Suit no.

444 of 2013, wherein the disputes and differences came to be mutually referred to

arbitration, keeping all issues open. Consequently, the present tribunal has been

constituted for adjudication of the disputes.

5. Pursuant to the directions given by the Tribunal, the Claimant has filed its Statement of

Claim on 10th February 2014; the Respondent has filed its reply and counter claim on 10th

March 2014 to the Claimant’s Statement of Claim. The Claimant has filed its reply to the

counter claim of the Respondent on 25th March 2014.

6. In the Statement of Claim, the Claimant has claimed:

a. Specific performance of the Agreement for Sale dated 13th December 2008.

b. Damages amounting to Rs. 50 lakhs with interest at the rate of 13.5% per annum with

effect from 20th November 2013 (being the date of filing of suit no. 444 of 2013).

c. Costs of the arbitral proceedings.

In the Written Statement filed, the Respondent has denied the claims of the Claimant. In

the Counter claim, the Respondent has claimed as under:

a. Rs. 100 lakhs for loss of reputation and good will.

b. For costs of the arbitration.

In the Reply filed, the Claimant has denied the claims of the Respondent.

7. On basis of the pleadings filed, the following points for determination have been finalised

and settled:

(a) Whether time was essence of the agreement between the parties for making payments?

(b) Whether time was essence of the agreement between the parties for handing over

possession?

(c) Whether the Respondent has breached the Agreement dated 13th December 2008?

(d) Whether the termination by the Respondent was wrongful?

(e) Whether the Claimant has showed readiness and willingness to comply with the terms

of the Agreement dated 13th December 2008?

(f) Whether the Claimant is entitled to any relief? If so, what and to what extent?

(g) Whether the Respondent is entitled to any relief? If so, what and to what extent?

(h) Whether either party is entitled to costs of the arbitral proceedings? If so, what and to

what extent?

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 11

8. At the hearing, the Claimant and the Respondent, besides the documentary evidence, have

also led oral evidence and examined one witness each. The Claimant has himself stepped

into the box, and the Respondent has put forth the evidence of its Managing Director, Mr.

PQR. The respective parties have cross examined the opponent witnesses. Furthermore,

the parties have made oral submissions and the Arbitral reference was closed on 30th July

2014 except for making of the award in due course.

9. Before adverting to the respective submissions of the Claimant and the Respondent, the

following material dates are as below:

a. 13th December 2008 - Agreement for Sale executed between the Claimant and the

Respondent.

b. 29th December 2012 - Letter addressed by the Respondent to the Claimant, inter alia,

stating that the instalment for the 24th floor slab was due and payable on 15th December

2012, and the Claimant has failed and neglected to pay the same and thus, calling upon

the Claimant to pay the same at the earliest.

c. 10th January 2013 - Stop Work Notice issued by the Municipal Corporation, inter alia, on

the ground of deviation from the sanctioned plans relating to the 23rd floor.

d. 3rd February 2013 - termination notice by the Respondent terminating the agreement

and offering to refund the monies paid by the Claimant.

e. 20th November 2013 - Suit no. 444 of 2013, filed by the Claimant.

f. 28th December 2013 - present Tribunal constituted.

10. Additionally, the material clauses of the Agreement dated 13th December 2008, are

reproduced herein for ready reference:

“Clause 2: The Vendor agrees to sell and the Vendee agrees to purchase Flat no.2404, being

a 3BHK and admeasuring 1650 sq.ft (built up area) on the 24th floor in “A” wing, for a total

consideration of Rs. 1.20 crores, which is to be paid as per the Schedule provided for in

Clause 4 herein below.

Clause 4: The Vendee shall make timely payments as per the slab wise construction in the

following manner:

i. Rs. 25 lakhs on execution of the Agreement for Sale.

ii. Rs. 15 lakhs on the commencement of the plinth level

iii. Rs. 15 lakhs on the commencement of the 4th, 14th, 24th floor,34th floor.

iv. Balance payable at the time of possession.

The aforesaid consideration does not include the ancillary charges of maintenance, VAT,

development charges and legal charges cumulating to Rs. 20 lakhs which is due and payable

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 12

at the time the instalment for the 24th floor is due and payable. The Vendee shall ensure

that the said payments are made on time so as to avoid any delay in the project.

Clause 8: The Vendor shall endeavour and make all efforts to complete the project within a

period of 5 years from the date of the Commencement Certificate being 29th October 2008.

Clause 11: The Vendor shall not be held responsible for any delay which is not caused by its

actions and which is beyond its control, inter alia, riots, strikes, lock outs, floods, change in

applicable law etc.

Clause 14: In the event of failure on part of the Vendee to make timely payment of

instalments as per Clause 4, the Vendor shall have the right to terminate the present

Agreement forthwith without assigning any reasons. In the event of such a termination, the

Vendee shall be entitled to refund of the monies without interest.

However, in the event of breach on part of the Vendor, and the Vendee terminating

the Agreement, the Vendee shall be entitled to refund of the monies with interest at the

rate of 21% per annum which is in the nature of penalty.

Clause 16: Any disputes and/or differences arising between the parties arising out of,

relating to, in connection the interpretation and/or applicability of the present Agreement

shall be referred to a Sole Arbitrator, and the same shall be decided in accordance with the

Arbitration and Conciliation Act, 1996. The decision of the Arbitrator shall be final and

binding. The proceedings shall be conducted in English and the place of arbitration will be

Mumbai.”

11. The case of the Claimant is that pursuant to the representations of the Respondent, the

Claimant decided to purchase a flat in the subject project out of his hard earned income and

accordingly, the parties have executed the said agreement, and the Claimant till date has

paid Rs. 70 lakhs leaving a balance of Rs. 50 lakhs. However, on 10th January 2013, the

Respondent stopped all construction activities, since it was served with a Stop Work notice

by the Municipal Corporation, on the ground of deviation from the sanctioned plans on the

23rd floor, which required the Respondent to maintain the same as refuge area.

12. In the interregnum, the Respondent addressed a letter dated 29th December 2012, calling

upon the Claimant to make payments in respect of the 24th slab as well as the amount of Rs.

20 lakhs towards ancillary charges. However, the Claimant claims that since there was a stop

work notice, the Claimant did not make payments for the said slab as well as the ancillary

charges. However, as per the Claimant, the Respondent wrongfully terminated the said

agreement and offered refund of the monies paid without interest.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 13

13. Thus, the points of the Claimant as urged are as under:

a. The Respondent is in breach of the said agreement and thus, the termination is

wrongful.

b. The Claimant has paid more than 50% of the consideration and is ready and willing to

pay the balance monies, however, only upon the Respondent handing over possession

of his flat as per the said Agreement.

c. Time for handing over possession was of essence of the Agreement.

14. In defence, the Respondent has pleaded the following, viz.:

a. The Claimant has committed a breach of the agreement by failing to make timely

payments, time being the essence of the Agreement.

b. There is no breach on part of the Respondent since the Stop Work Notice is not a default

of its acts, and sought refuge of Clause 11 of the said Agreement.

c. There is no readiness and/or willingness on part of the Claimant to pay the balance

monies.

d. The said Agreement is terminable in nature and provides for a penalty and thus, the

relief of Specific performance of the said agreement cannot be granted.

15. It needs to be stated at the outset that there is no dispute as regards the various material

dates and thus, the same are admitted by both parties.

16. Re. Issue (a) and (b):

The Claimant as well as the Respondent have pleaded and argued the issue of time being of

essence, though the respective parties have sought to shift the burden of time of essence on

each other. The Claimant has sought to contend that time was of essence for completion of

the project and for handing over possession. The Respondent has admittedly been unable

to complete the project till date. Thus, the Claimant contends that there is a clear breach on

part of the Respondent particularly in light of Clause 8 of the said Agreement, and thus, the

Respondent itself being in breach, it is not open to the Respondent to terminate the said

Agreement. The Respondent on the other hand submitted that as per clause 4 of the said

Agreement, timely payment was of utmost importance and essence of the said agreement

and thus, failure on part of the Claimant to pay the instalments in spite of the demand of the

Respondent amounts to a clear refusal and breach on part of the Claimant and thus, he is

not entitled to any reliefs and the termination is valid and binding. I find force in the

submissions of the Claimant, inter alia, for the following reasons:

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 14

a. Admittedly, the Claimant, except the payment for the 24th slab, has never defaulted in

making any payments under the said agreement.

b. Furthermore, admittedly, the Respondent even today is not in a position to hand over

possession, since the project is still incomplete and at a complete standstill.

c. The Claimant has proved his readiness and willingness to make the balance payments

subject to the Respondent first being ready and willing to hand over possession of the

subject flat. The Respondent has sought to contend that the readiness and willingness

of the Claimant is conditional and not absolute and thus the Claimant has not proved his

readiness and willingness to comply with his obligations under the Agreement. In my

view, the said argument of the Respondent has to be rejected since the Claimant is

justified in first asking for possession from the Respondent in the peculiar facts of this

case when admittedly the Respondent is in no position to complete the said project.

Furthermore, I am of the view that the conduct on part of the Claimant of having

observed and performed all his obligations under the agreement till date clearly show

and establish the bona fide intentions of the Claimant as regards readiness and

willingness to comply with the term of the payment under the contract. I am also not

convinced with the submissions of the Respondent that since the stop work notice was

issued to the Respondent after the date for making payments for the 24th slab had

become due; thus, it is not open for the Claimant to justify his breach of non-payment

by placing reliance upon the stop work notice. The Claimant has rightly urged before the

Tribunal that time for making payments was not the essence of the contract. Though

clause 4 of the said agreement provides that timely payments have to be made, it is an

admitted position that there is no time limit strictly prescribed in the said agreement for

making payments. Thus, in such a view of the matter, what would amount to

reasonable time for making payments is required to be construed based upon the facts

and circumstances of the present case. In this case, admittedly the stop work notice has

been issued a week after the Respondent made a demand upon the Claimant for

payment towards the 24th slab. Thus, in these circumstances, refusal on part of the

Claimant to make the said payment in light of the stop work notice cannot amount to a

breach on part of the Claimant.

d. On the other hand, clause 8 of the said agreement unequivocally stipulates that the

vendor (Respondent herein) is required to complete the project within a period of five

years from the date of Commencement Certificate being 29th October 2008. Thus, on a

plain reading of the said clause it becomes clear that the parties have mutually and

knowingly made time the essence of the contract in so far as it relates to completion of

the project and handing over of possession. Admittedly, the Respondent even as on

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 15

date of the award is not able to complete the project and /or hand over possession of

the same. In such facts, the logical inference which flows is that time was the essence of

the agreement in so far as it related to handing over of possession and Respondent is in

breach of the said obligation. In its defence, the Respondent has also sought to contend

that the inability on the part of the Respondent to complete the said project is solely

due to the stop work notice which situation is beyond the control of the Respondent and

thus as per clause 11 of the said agreement, the Respondent cannot be held responsible

for the said delay. The said submission has been stated only to be rejected since the

stop work notice has been issued solely due to non compliance on part of the

Respondent to the sanctioned plans of the Corporation. Thus, it cannot be said that the

Respondent has no role to play in the issuance of the said stop work notice.

Furthermore, the reliance placed by the Respondent on clause 11 is wholly misplaced

since the said clause is a “force majeure” clause and the issuance of stop work notice

certainly does not fulfil the criterion laid down in clause 11. I, thus, answer Issue No.(a)

in the negative and Issue No.(b) in the affirmative.

17. Re. Issues (c), (d) and (e):

I have already dealt with the aspect of breach on part of the Respondent while answering

the earlier issue. I am of the view that there has been a breach on part of Respondent

inasmuch as it has failed to comply with its obligations of completing the project and

handing over possession and has further proceeded to wrongfully terminate the said

agreement in spite of itself being in breach of the said agreement. Furthermore, the

Claimant has proved that he is ready and willing to comply with his obligations of payment

under the said agreement upon the Respondent delivering possession to the Claimant.

Thus, in view of the aforesaid, I answer the Issues No. (c), (d) and (e) in the affirmative.

18. Re. Issue (f)

The said Issue is answered in the affirmative.

19. Re Issue (g):

The said Issue is answered in the negative.

20. Re Issue (h):

Since the Claimant is succeeding in the present proceedings and the Counter Claim of the

Respondent is rejected, the Claimant is entitled to cost of arbitration quantified at

Rs.2,00,000/- towards Claimant’s share of fees paid to the Arbitrator.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 16

21. Considering the pleadings on record, appreciating and apprising documentary as well as oral

evidence on record, considering the oral submissions of both parties and taking totality of

circumstances into consideration and further reasons aforesaid, I make the following Award:

(a) The Respondent is ordered and directed to specifically perform the Agreement dated

13th December 2008 and restore the 23rd floor as per sanctioned plans and thereafter

complete construction of the said project and handover possession to the Claimant.

(b) The Respondent is further ordered and directed to pay to the Claimant a sum of

Rs.25,00,000/- together with interest thereon at the rate of 6% per annum to be

calculated from 20th November 2013 till payment and/or realization whichever is earlier.

(c) The Counter Claim of the Respondent against the Claimant is rejected.

(d) The Respondent is ordered and directed to pay to the Claimant the cost of arbitration

quantified at Rs.2,00,000/-.

Place: Mumbai;

Date: 4th September 2014

Instructions:

1. Being aggrieved by the award dated 4th September 2014, XYZ Developers has filed an

arbitration petition on 30th December, 2014 challenging the above award under Section 34

of the Arbitration and Conciliation Act, 1996 before the Hon’ble Bombay High Court, inter

alia on the following grounds:

(a) The arbitral award is beyond the scope of the agreement inasmuch as the Ld. arbitrator

has granted damages when in fact the agreement provides for penalty upon breach;

(b) The said agreement is incapable of specific performance due to the stop work notice

issued by the Municipal Corporation and thus the reliefs sought could not be granted;

(c) ABC (original Claimant) has failed to prove his readiness and willingness and the same is

conditional and thus he is not entitled to any of the reliefs granted;

(d) The arbitrator has not considered the Counter Claim of the XYZ Developers;

2. The said petition has been admitted by the Hon'ble Bombay High Court and the same is now

placed for final hearing and disposal.

3. ABC is supporting the award and the findings contained therein.

4. The participants can frame and urge additional grounds of challenge.

K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 17

XIII. MAP

Kishinchand Chellaram Law College,

Vidyasagar Principal K.M. Kundnani Chowk,

123 Dinshaw Wachha Road,

Churchgate,

Mumbai 400 020

KISHINCHAND CHELLARAM LAW COLLEGEVidyasagar Principal K.M.Kundnani Chowk, 123, Dinshaw Wachha Road, Mumbai 400 020, Maharashtra

Tel: 022-22822376 Email: [email protected] Website: www.kclawhsnc.edu.in

NATIONAL MOOT COURT COMPETITION 2015 - 14th March 2015

REGISTRATION FORMA. Name of Participating Law School/College/University :

Address for Communication:

Telephone No.:

E-mail Address:

B. Details of Participants

1. Name of Mooter: _________________________________

Class: __________________________________________

Mobile No.:______________________________________

Email address: ___________________________________

Photograph

2. Name of Mooter: _________________________________

Class: __________________________________________

Mobile No.:______________________________________

Email address: ___________________________________

Photograph

3. Name of Researcher:_____________________________

Class: __________________________________________

Mobile No.:_____________________________________

Email address: __________________________________

Photograph

4. Name of Moot Court Co-ordinator:____________________

_____________________________________________

Mobile No.:_____________________________________

Email address:___________________________________

C. Cash Demand Draft (D.D.) Cheque

D.D./cheque no. _________ dated _________ on _________________ Bank

It is certified that the Mooters and Researcher abovenamed are the bonafide students of the Law

School/College/University.

Date:

Place: Signature of Principal

Seal of the Institution