[DOCUMENT TITLE]

PC: 60 CLAIMANT

11th Intra Moot Court Competition

BEFORE T HE A RBITRAL TRIBUNAL , TROMBAI

2017

Mr. Sonu Kapoor

(CLAIMANT)

v.

Biranandani Realtors Pvt Limited

(RESPONDENTS)

MEMORANDUM ON BEHALF OF THE CLAIMANT

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Table of Contents
TABLE OF ABBREVIATIONS .............................................................................................................. 4

INDEX OF AUTHORITIES ................................................................................................................ 7

STATEMENT OF JURISDICTION ................................................................................................. 11

STATEMENT OF FACTS ................................................................................................................ 12

ISSUES RAISED ................................................................................................................................. 14

SUMMARY OF ARGUMENTS.......................................................................................................... 1

ARGUMENTS ADVANCED .............................................................................................................. 4

[1] WHETHER THE PRESENT DISPUTE BETWEEN MR. K APOOR AND BRPL IS ARBITRABLE
PURSUANT TO THE RERA? ................................................................................................................... 4

[1.1] THERE IS NO BAR UNDER THE RERA ACT FROM THE APPLICATION OF CONCURRENT REMEDY
UNDER THE A&C ACT. ................................................................................................................... 4

[1.2] THE FLAT BUYER AGREEMENT BETWEEN MR. KAPOOR AND BLPR IS RELATED TO PERSONAM
(RIGHTS IN RESPECT TO PERSON) WHICH IS AMENABLE TO ARBITRATION .................................... 6

[1.3] THE NATURE OF THE DISPUTE AND I TS AMENABILITY TO ARBITRATION ................................... 7

[1.4] THE PRESENT DISPUTE IS GOVERNED BY THE “DOCTRINE OF ELECTION” ................................. 8

[2] WHETHER MR. K APOOR HAS MADE OUT A CASE FOR SEEKING INTERIM RELIEFS/MEASURES
AGAINST BRPL PURSUANT TO THE ARBITRATION AND C ONCILIATION A CT, OF 1996? ....................... 9

[2.1] THE ENFORCEMENT DIRECTORATE SEARCH/RAIDS LED TO AN UNFORESEEABLE S ITUATION

ADVERSELY AFFECTING MR. KAPOOR’S POSITION IN THE COMMODITY MARKET .......................... 9

[2.2] THE EVENT UNFOLDED AFTER THE RAID LED TO A SITUATION THAT WAS NOT FORESEEABLE
BY A REASONABLE MAN .............................................................................................................. 10

[2.3] Mr. Kapoor Is Entitled To Interim Relief Under Section 17 Of The Arbitration And
Conciliation Act, 1996 ................................................................................................................. 10

[2.4] SEEKING INTERIM RELIEF TO PREVENT S UBSTANTIAL RISK OF IRREPARABLE HARM ............... 12

[3] WHETHER IT WAS MANDATORY FOR THE PARTIES TO EXERCISE THE PRE-ARBITRAL DISPUTE
ESCALATION PROCESS CONTAINED IN THE DISPUTE RESOLUTION CLAUSE AS A PRE-CONDITION TO
THE ARBITRATION PROCESS? ................................................................................................................ 13

[3.1] THE REQUIREMENT OF PRE-ARBITRAL S TEPS IS DIRECTORY AND NOT MANDATORY .............. 13

[3.2] URGENT INTERIM RELIEF AND MANDATORY WAIVER OF ARBITRAL PRECONDITIONS .............. 14

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[4] Whether Due To Improperly Stamped Arbitration Agreement, The Flat Buyer Agreement
Can Be Enforceable In The Provisions Of Law? ............................................................................. 15

[4.1] ENFORCEABILITY OF ARBITRATION AGREEMENT INDEPENDENT OF S UBSTANTIVE CONTRACT 16

[4.2] THE UNDULY S TAMPED OF THE FLAT BUYER AGREEMENT IS PROCEDURE IRREGULARITY ...... 17

PRAYER ............................................................................................................................................... 19

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TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And

(CA) Court of Appeals

¶/¶¶ Paragraphs/Paragraphs

AC Appeal Cases

ACSR Australian corporations and securities

reports

AIR All India Reporter

All Allahabad

All ER All England Reports

Arb. Arbitration

Art. Article

Bull. Bulletin

Ch Chancery division

Cir. Circuit

Civ. Civil

Co. Company

Comm. Commercial Court

Ct. Court

Dr. Doctor

Edn. Edition

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EWCA England and Wales Court of Appeals

Intl. International

L. J Law Journal

L. Rev. Law Review

Ltd. Limited

M/S Messrs

MLR Modern Law Review

Mr. Mister

Ms. Mistress

No. Number

Ors. Others

p. Page

para. Paragraph

pt. Point No.

QB Queen’s Bench

Rep. Report

SC Supreme Court

SCC Supreme Court Cases

SCCOnline Supreme Court Cases (India)

SCR Supreme Court Report

Sec. Section/Sections

SIAC Singapore International Arbitration Centre

U.S. United States Reports

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UK United Kingdom

UKSC United Kingdom Supreme Court

v. Versus

Vol. Volume

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INDEX OF AUTHORITIES

CASES

A. Ayyasamy vs A. Paramasivam & Ors (2016) 10 SCC 386................................................................7

A.P. State Financial Corporation v. M/s. GAR Re-rolling Corporation. 1994 AIR 2151 ....................8
Ajay Singh v. Kal Airways Private Limited, (2018) 209 Comp Cas 154. ...........................................11
Antrix Corporation Limited v. Devas Multimedia Private Limited (2018) 15 SCC 151....................13
Ashok Palav Cooperative Housing Society Limited v. Pankaj Bhagubhai Desai, 2022 LiveLaw (Bom)
298.........................................................................................................................................................12
Ashwani Minda v. U-Shin Ltd, (2021) 3 SCC 480. ..............................................................................13
Ayyaz Khan and Saba Khan v. Era Realtors Pvt. Ltd. and Ors., MANU/RR/0019/2022. ...................5
Bank of India v. Lekhi Moni Das & Ors. (2000) 3 SCC 640. ................................................................6
Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd., 2003 (7) SCC 418. ...5
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Others, (2011) 5 SCC 532, 547 .........6
Beijing Jianlong Heavy Industry Group vs. Golden Ocean Group Limited & Ors, [2013] EWHC 1063
(Comm), Queen's Bench Division, Commercial Court, 1 May 2013. ..............................................16
Bell South International v Crompton Greaves Lt,. Original Application Nos 103 and 104 of 2000 ¶
15...........................................................................................................................................................15
Bihar Home Developers and Builders v. Narendra Prasad Gupta, 2021 SCC OnLine Pat. 1355. .......8
Branch manager, magma Leasing and Finance limited vs. Potluri Madhavilata, AIR 2010 SC 488,
2010 (2) AWC 1315 (SC). ..................................................................................................................17
Buckeye Check Cashing, Inc. vs. Cardegna, 546 U.S. 440 (more)126 S. Ct. 1204; 163 L. Ed. 2d 1038;
2006 U.S. LEXIS 1814. .......................................................................................................................16
Codrington v Lindsay (1873) 8 Ch 578....................................................................................................8
Demerara Distilleries (P) Ltd. v. Demerara Distilleries Ltd. (2015) 13 SCC 610...............................13
Dev Prakash v. Indra, (2018) 14 SCC 292. ............................................................................................11
Emaar MGF Land Limited v. Aftab Singh Review Petition (C) Nos 2629-2630 of 2018 in Civil
Appeal Nos 23512-23513 of 2017. .......................................................................................................7
Enercon (India) Ltd. v. Enercon GMBH, [2014] 2 S.C.R. 855. ...........................................................16
Energy Watchdog and Ors. vs. Central Electricity Regulatory Commission and Ors. 2017 SCC Online
SC 378. ...................................................................................................................................................9
Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, 2022 SCC OnLine SC
1219. .....................................................................................................................................................11

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Fair Air Engineers v. NK Modi, AIR 1997 SC 533, 1997. .....................................................................5

Flywheel Logistics Solutions Private Limited v. M/S. Hinduja Leyland Finance Limited, 2020 MAD
LJ 475. ..................................................................................................................................................11
Gainwell Commosales Private Limited v. Minsol Limited, 2022 SCC OnLine Cal 3975 .................11
Gautam Landscapes Pvt. Ltd. v. Shailesh Shah AIR 2019 Bom 149 ...................................................17
Gujarat Urja Vikas Nigam v. Essar Power Ltd (2008) 4 SCC 755. .......................................................7
Hindustan Steel Ltd vs M/S. Dalip Construction Company, 1969 AIR 1241. ....................................17
HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd. (2021) 2 SCC 429. .........................13
Hughes v. Lord Advocate [1963] AC 837. ............................................................................................10
Imperia Structures v. Anil Patni, (2020) 10 SCC 783 .............................................................................5
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another - 2013 SGCA
55 - Court of Appeal — Civil Appeal No 12 of 2013. ......................................................................14
IREO Grace Realtech Pvt. Ltd. v. Abhishek Khanna, (2021) 3 SCC 241 .............................................8
Lampert v. Eastern National Omnibus Co. [1954] 1 WLR 1047 .........................................................10
Management Committee of Montfort Senior Secondary School Vs. Vijay Kumar and Others, (2005)
7 SCC 472. .............................................................................................................................................6
M.D., Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd, (2004) 9 SCC 619. .....12
M/S. B. E. Billimoria and Co. v Mahindra Bebanco Developers Ltd. & Anr, 2019 SCC OnLine Bom
5637. .......................................................................................................................................................6
M/S Ramnath Exports Pvt Ltd vs Vinita Mehta & Anr, 2022 LiveLaw (SC) 564..............................17
M/s. Elite Engineering and Construction (Hyd.) Pvt. Ltd. v. M/s. Techtrans Construction India Pvt.
Ltd. ..........................................................................................................................................................8
N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. 2021 SCC OnLine SC 13. ...................16
National Agricultural Co-op Marketing federation of India Ltd. vs. Gains trading ltd, 2007 (5) SCC
692.........................................................................................................................................................16
PASL Wind Solutions Private Limited vs GE Power Conversion India Private Limited. CIVIL
APPEAL NO. 1647 OF 2021. ...............................................................................................................5
P. Anand Gajapathi Raju & Ors. v. P.V.G. Raju (Dead) & Ors. 2000 AIR SC 1489 .........................15
prima paint corp vs. flood & Conklin manufacturing co, 388 U.S. 395 (more)87 S. Ct. 1801; 18 L.
Ed. 2d 1270...........................................................................................................................................16
Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Anr. (2019) 8 SCC
416. 5
Priyanka Taksh Sood v. Sunworld Residency Pvt. Ltd. & ANR., ARB. P. 868/2021. .........................4

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Ravindra Kumar Verma vs M/S. Bptp Ltd. & Anr................................................................................14

Re Polemis and Furness, Wilthy & Co. (1921) 3 K.B. 560 ..................................................................10
Reliance industry limited & ors vs. Union of India (2014)7 SCC 603. ...............................................16
Saraswati Construction Co. v. East Delhi Coop. Group Housing Society Ltd. 1994 SCC OnLine Del
563.........................................................................................................................................................14
Sarvesh Security Services (P) Ltd. v. DSIIDC 2018 SCC OnLine Del 7996. .....................................14
Satyabrata Ghose vs. Mugneeram Bangur & Co., 1954 SCR 310. ........................................................9
Shri. Anil Kumar Arya Vs. SVS Buildcon Pvt Ltd., (2017) M-BPL-17-0036. .....................................4
Siemens Ltd. v. Jindal India Thermal Power Ltd. 2018 SCC OnLine Del 7158. ................................14
Sikand Construction Co. v. SBI 1978 SCC OnLine Del 18..................................................................14
SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, CIVIL APPEAL NO. 15036
OF 2017 ................................................................................................................................................11
Sundaram Finance Ltd. v. NEPC India Ltd, (1999) 2 SCC 479. ..........................................................13
Sundaram Finance Ltd. v. NEPC India Ltd. (1999) 2 SCC 479. ..........................................................15
Trans Mediterranean Airways v. Universal Exports, 2011 10 SCC 316. ..............................................8
Transcore v. Union of India, 2008 1 SCC 125.........................................................................................8
Unibank Savings & Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W)
198 B-E. ................................................................................................................................................10
Union of India v. Baga Bros. 2017 SCC OnLine Del 8989. .................................................................14
Union of India v. Singh Builders Syndicate (2017) [Link] 387 SC.................................................15
Vidya Drolia vs Durga Trading Corporation, (2021) 2 SCC 1. ..............................................................6
Vimal Kishor Shah & Ors. v. Jayesh Dinesh Shah & Ors., (2016) 8 SCC 788. ....................................7
Wg. Cdr. Arifur Rahman Kan and Aleya Sultana v. DLF Southern Homes Pvt Ltd, 2020 SCC OnLine
SC 667. .................................................................................................................................................18
World Window Infrastructure Private Limited v. Central Warehousing, (2021) 3 HCC (Del) 731. .11

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STATUTES & CONVENTIONS

Arbitration Act, 1996, Sec. 17. ...............................................................................................................11

Arbitration Act, 1996, Sec. 9. .................................................................................................................11
Indian Contract Act, 1872, Sec. 31. ..........................................................................................................9
Indian Contract Act, 1872, Sec. 32. ..........................................................................................................9
Indian Contract Act, 1872, Sec. 56. ..........................................................................................................9
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 88 .......................................5
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 89. ......................................5
The arbitration and conciliation act, section 16(1)(b), (1996) ..............................................................16
The Indian Stamp Act, 1899, Sec. 35. ....................................................................................................17
The Indian Stamp Act, 1899, Sec. 42(2). ...............................................................................................18
United Nations Commission on International Trade Law, UNCITRAL Model Law on International
Commercial Arbitration, 1985. ...........................................................................................................16

BOOKS & JOURNALS

 Alan redfern et al, redfern and hunter on international abitration (seventh edition).
 Bernard hanotiau, complex arbitrations: multiparty, multi contract, multi issue and class
actions (kluwer law int', 2005).
 Treitel: The Law of Contract 13th ed.
 Nadia Darwazen &Adren elen. Disclosure and Security for costs or how to address.
 Imbalances Created by Third-PatyFunding, 143 JOURNAL OF INT. ARB.
 Andrew Tweeddale & Kern Tweeddale, Arbitration of Commercial Disputes: International
& Commercial.
 English Law & Practice OXFORD UNIVERSITY PRESS, 350 (2007).

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STATEMENT OF JURISDICTION

The C LAIMANT humbly submits that this hon’ble arbitration tribunal has jurisdiction as per the
Arbitration Agreement which is part of Flat Buyer Agreement entered between Mr. Kapoor and
BRPL. The said jurisdiction is conferred by the virtue of section 16 (1) and section 17 of Arbitration
and Conciliation Act, 1996.

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STATEMENT OF FACTS

PARTIES
Mr. Sonu Kapoor a prominent businessman in Indiana, known for his vast net worth and diverse
business empire spanning sectors like ports, energy, commodities, and international trade. Mr. Kapoor
is politically and socially influential in the state of Wanwark. Biranandani Realtors Pvt Limited
(BRPL) a renowned private limited real estate company registered in Trombai, established in 1965
by Mr. Viraj Biranandani. BRPL is a diversified institution with a strong presence in Engineering &
Construction, Infrastructure, and Real Estate. They are also involved in public infrastructure projects
in Indiana.

THE BACKGROUND
In January 2016, BRPL launched "Imperial Centrum," a sea-facing twin-tower residential skyscraper
complex in Trombai, proposed to be one of the tallest buildings in Indiana. Mr. Kapoor, upon seeing
an advertisement about "Imperial Centrum," expressed interest in purchasing six "5 BHK" property
units in the project, each valued at around Rs. 10,00,00,000/-. UDFC Bank granted a loan of Rs.
25,00,00,000/- for this purchase. On July 27, 2016, Mr. Kapoor paid an advance amount of Rs.
12,00,00,000/- to BRPL, with Rs. 2,00,00,000/- paid in cash, and the remaining amount deposited in
BRPL's escrow account.

ENSUING EVENTS
The Flat Buyer Agreement, Tripartite Housing Loan Agreement, and other linked agreements were
executed on July 27, 2016, outlining the terms and conditions of the property purchase. In March
2017, due to an Enforcement Directorate (ED) investigation related to money laundering involving
Mr. Kapoor's business partner and friend, Mr. Tony Jhan, Mr. Kapoor's properties and offices were
raided. This led to a significant drop in the value of Mr. Kapoor's companies.

THE DISPUTE
On April 27, 2017, facing severe financial difficulties due to the ED investigation and a 12% drop in
his company's share value, Mr. Kapoor decided to cancel the allotment of the six property units and
requested a refund of Rs. 12,00,00,000/- from BRPL, invoking Clause 8 of the Flat Buyer Agreement.
The BRPL failed to refund the advance amount as per Mr. Kapoor's request, and Mr. Kapoor also did
not settle the loan account with UDFC Bank.

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THE INITIATION OF THE ARBITRATION PROCEEDINGS

With disputes arising, Mr. Kapoor invoked the Arbitration Clause per Clause 52 of the Flat Buyer
Agreement, appointing a Sole Arbitrator. BRPL raised objections to the formation of the Arbitral
Tribunal on several grounds, including the arbitrability of RERA-related disputes and the lack of
compliance with the pre-arbitral dispute escalation process. Mr. Kapoor filed an application under
Section 17 of the Arbitration and Conciliation Act 1996, seeking interim reliefs including depositing
the refund amount in escrow, disclosing account details, and restraining further construction on the
premises.

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ISSUES RAISED

ISSUE – 1

WHETHER THE PRESENT DISPUTE BETWEEN MR. KAPOOR AND BRPL IS ARBITRABLE
PURSUANT TO THE RERA?

ISSUE – 2

WHETHER MR. KAPOOR HAS MADE OUT A CASE FOR SEEKING INTERIM
RELIEFS/MEASURES AGAINST BRPL PURSUANT TO THE ARBITRATION AND
CONCILIATION ACT, 1996?

ISSUE – 3

WHETHER IT WAS MANDATORY FOR THE PARTIES TO EXERCISE THE PRE-

ARBITRAL DISPUTE ESCALATION PROCESS CONTAINED IN THE DISPUTE
RESOLUTION CLAUSE AS PRE-CONDITION TO THE ARBITRATION PROCESS?

ISSUE – 4

WHETHER DUE TO IMPROPERLY STAMPED ARBITRATION AGREEMENT, THE FLAT BUYER

AGREEMENT CAN BE ENFORCEABLE IN THE PROVISIONS OF LAW?

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SUMMARY OF ARGUMENTS

ISSUE 1 - WHETHER THE PRESENT DISPUTE BETWEEN MR. KAPOOR AND BRPL IS
ARBITRABLE PURSUANT TO THE RERA?
The CLAIMANT submits that the Real Estate (Regulation and Development) Act, 2016 (RERA) does
not preclude the jurisdiction of the Arbitration Tribunal based on that there is no statutory bar in
RERA preventing concurrent remedies under the Arbitration & Conciliation Act, 1996 (A&C Act).
The case of Priyanka Taksh Sood v. Sunworld Residency Pvt. Ltd. establishes the harmonious
coexistence of both Acts, with the A&C Act augmenting remedies provided by RERA. The Flat Buyer
Agreement between the C LAIMANT and respondent involves rights in personam, which are arbitrable.
This doesn't interfere with the statutory duties of regulatory authorities under RERA. The nature of
the dispute, primarily contractual and financial, indicates that even special legislation doesn't
necessarily render such disputes non-arbitrable. The Doctrine of Election applies since BRPL initially
opted for arbitration, thereby waiving its right to pursue remedies under RERA for the same dispute.
In conclusion, the CLAIMANT contends that the dispute is amenable to arbitration, as per the doctrine
of election, and there is no statutory bar preventing arbitration alongside RERA remedies.
ISSUE 2 - WHETHER MR. KAPOOR H AS MADE OUT A C ASE FOR SEEKING INTERIM
RELIEFS/MEASURES AGAINST BRPL PURSUANT TO THE ARBITRATION AND CONCILIATION ACT,
1996?
The CLAIMANT has a compelling case for seeking interim relief under the Arbitration and Conciliation
Act, 1996, for the following reasons. The Enforcement Directorate's search and raids caused
unforeseeable and adverse consequences in the commodity market, invoking the principles of force
majeure. The event that unfolded after the raid was not foreseeable by a reasonable person, justifying
the CLAIMANT 'S use of Clause 8 of the Flat Buyer Agreement, which allows for cancellation in
unforeseen circumstances. The CLAIMANT is entitled to interim relief under Section 17 of the
Arbitration and Conciliation Act, 1996, as evidenced by the importance of a prima facie case, balance
of convenience, and prompt initiation of legal proceedings. Seeking interim relief is necessary to
prevent substantial and irreparable harm to the CLAIMANT . The failure to refund a substantial amount
not only impacts him financially but also his creditworthiness and overall financial stability. The
CLAIMANT’ S pursuit of interim relief is justified, imperative, and aligned with the principles of
safeguarding parties from irreparable harm and upholding the integrity of contractual agreements
during the pendency of legal proceedings.

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ISSUE 3 - WHETHER I T WAS MANDATORY FOR THE PARTIES TO EXERCISE THE PRE- ARBITRAL
DISPUTE ESCALATION PROCESS CONTAINED IN THE DISPUTE RESOLUTION CLAUSE AS PRE-
CONDITION T O THE ARBITRATION PROCESS?

The CLAIMANT decision to initiate arbitration proceedings without adhering to the pre-arbitral dispute
escalation process in the Flat Buyer Agreement is justified on the following grounds. The requirement
of pre-arbitral steps is directory and not mandatory, as established by legal precedents that emphasize
that pre-arbitral steps are not absolute prerequisites for arbitration and that their nature is flexible,
allowing parties to proceed with arbitration when necessary. Urgent interim relief and the mandatory
waiver of arbitral preconditions are essential considerations. The "interim relief exception" recognizes
that in situations requiring immediate intervention to protect substantive rights and prevent irreparable
harm, parties should not be unduly hindered by procedural formalities. Strict adherence to pre-arbitral
steps could hinder the timely resolution of disputes, which is contrary to the expeditious nature of
interim relief. The CLAIMANT’ S pressing financial circumstances illustrate the necessity of treating
preconditions as a directory rather than mandatory when urgent relief is sought. The CLAIMANT’ S
initiation of arbitration without following the pre-arbitral steps. Additionally, the "interim relief
exception" ensures that parties can access urgent interim reliefs without being unduly burdened by
procedural requirements, aligning with the principles of swift and equitable dispute resolution in
arbitration.

Issue 4 - WHETHER DUE TO IMPROPERLY STAMPED ARBITRATION AGREEMENT, THE FLAT

BUYER AGREEMENT C AN BE ENFORCEABLE IN THE PROVISIONS OF LAW?
The CLAIMANT submits that unduly stamped arbitration agreement within the flat buyer agreement
remains enforceable under the provisions of law for the following reasons: The doctrine of
separability recognizes that an arbitration agreement is distinct from the substantive contract and can
stand independently. This principle, accepted both internationally and in India, ensures that any
deficiency in stamp duty on the substantive contract does not affect the validity of the arbitration
clause. Legal precedents from various jurisdictions, including India, the UNCITRAL Model Law, the
US Supreme Court's decision support the autonomy of arbitration clauses. Therefore, the stamping
issue in the main contract does not undermine the validity of the arbitration agreement The Indian
Stamp Act, 1899, views the issue of insufficient stamping as a procedural irregularity rather than
rendering the entire instrument invalid. Such defects can be cured by paying the requisite duty along
with a penalty. The Supreme Court has consistently held that substantive rights should not be defeated
due to procedural defects that can be rectified. Legal precedent emphasizes that the Stamp Act is

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primarily a fiscal measure and that its provisions are meant to protect the revenue, not to defeat justice
or allow for perpetuating fraud or illegality. Therefore, the flat buyer agreement's unduly stamped
status does not render it void, and the arbitration clause within it remains valid and enforceable. the
arbitration agreement's enforceability within the flat buyer agreement is not compromised by the
stamping issue in the main contract. Legal doctrines of separability and the curability of procedural
irregularities safeguard the arbitration clause's validity, ensuring that it can facilitate dispute
resolution independently of the main contract's stamping deficiencies.

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ARGUMENTS ADVANCED

[1] WHETHER THE PRESENT DISPUTE BETWEEN MR. K APOOR AND BRPL IS ARBITRABLE
PURSUANT TO THE RERA?
¶ [1] The CLAIMANT respectfully submits before the Hon’ble Arbitration Tribunal that Real Estate
(Regulation and Development) Act, 2016 does not oust the jurisdiction of the Arbitration Tribunal.
This contention is primarily based on [1.1] There is no bar under the RERA Act from the application
of concurrent remedy under the A&C Act, [1.2] The Flat Buyer Agreement between Mr. Kapoor and
BLPR is related to personam (Rights in respect to person) which is amenable to arbitration, [1.3] The
Nature of the dispute and its amenability to arbitration, [1.4] The present dispute is governed by the
“Doctrine of Election”.

[1.1] THERE IS NO BAR UNDER THE RERA ACT FROM THE APPLICATION OF CONCURRENT
REMEDY UNDER THE A&C ACT.

¶ [2] The Claimant humbly submits with due respect that a crucial foundation for determining the
available remedy under the Arbitration & Conciliation Act, 1996, rests upon a comprehensive grasp
of the High Court of Delhi's pivotal pronouncement in the case of Priyanka Taksh Sood v. Sunworld
Residency Pvt. Ltd. 1 This judicial articulation distinctly elucidated the interface between the
Arbitration & Conciliation Act, 1996, and the Real Estate (Regulation and Development) Act,
affirming their harmonious coexistence. The High Court's categorical assertion that the Arbitration &
Conciliation Act maintains conformity with the provisions of the Real Estate Act affirms the intrinsic
connection between these legislations. 2 Moreover, the decision pronounced in the aforesaid case
upheld that the remedies offered by the Arbitration & Conciliation Act serve as an augmentation to,
rather than a contradiction of, the Real Estate Act. 3
¶ [3] In the instant matter, the claimant entered into a contractual arrangement with Sunworld
Residency (the respondent) for the acquisition of five flats. Notably, the agreement prominently
incorporates an arbitration clause stipulating that any arising dispute concerning this transaction shall
be referred to arbitration. The explicit language of the arbitration clause, as underscored by clause 52
of the flat buyer agreement, distinctly manifests the parties' unmistakable intention to submit potential

1
Priyanka Taksh Sood v. Sunworld Residency Pvt. Ltd. & ANR., ARB. P. 868/2021.
2
Ibid.
3
Shri. Anil Kumar Arya Vs. SVS Buildcon Pvt Ltd., (2017) M-BPL-17-0036.
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conflicts to arbitration. 4 In this context, it is unequivocally lucid that the underlying framework of an
arbitration agreement demands an essential alignment of the parties' intent to settle disputes via
private adjudication. 5 This principle is eloquently illuminated by the case of Bihar State Mineral
Development Corpn. v/s Encon Builders, where the court enunciated four pivotal elements for a valid
arbitration agreement. One pivotal criterion, in line with the instant matter, is the parties' unequivocal
intention to resolve disputes through a private tribunal. 6
¶ [4] Since the Respondent created the Agreement and acknowledges the existence of an arbitration
clause for dispute resolution, there's no valid reason to refuse arbitration. The Respondent shouldn't
renege on its own commitment. In fact, since the claimant is the one suffering, interpretations should
favor their position. The Respondent's actions appear to be a delay tactic and an attempt to choose a
more favorable forum. 7 In the instant case, clause 52 of the flat buyer agreement perspicuously
indicates the intention of the parties to settle any difference through arbitration.
¶ [5] The Provisions 79,8 88,9 and 89 10 are not unique to the Real Estate (Regulation and
Development) Act, 2016 (RERA Act), and similar provisions are found in many other special laws.
The Supreme Court, in Imperia Structures v. Anil Patni 11, juxtaposed the provisions of the Consumer
Protection Act 1986 and the RERA Act. After holding that concurrent remedies are available under
the Consumer Protection Act and held that there is nothing in the RERA Act that bars such initiation. 12
¶ [6] In Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Anr.13, where
a bench of three Judges of this Court was called upon to consider the provisions of the Insolvency
and Bankruptcy Code, 2016, RERA Act, and other legislations including the provisions of the CP
Act. One of the conclusions arrived at by the Court was that RERA is to be read harmoniously with
the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will
prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent
remedies, such allottees of flats/apartments being in a position to avail of remedies under the
Consumer Protection Act, 1986, RERA as well as the triggering of the Code.
¶ [7] In the case of Management Committee of Montfort Senior Secondary School v. Vijay Kumar

4
PASL Wind Solutions Private Limited vs GE Power Conversion India Private Limited. CIVIL APPEAL NO. 1647 OF
2021.
5
Ayyaz Khan and Saba Khan v. Era Realtors Pvt. Ltd. and Ors., MANU/RR/0019/2022.
6
Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd., 2003 (7) SCC 418.
7
Supra Note 1.
8
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 79.
9
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 88.
10
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 89.
11
Imperia Structures v. Anil Patni, (2020) 10 SCC 783.
12
Fair Air Engineers v. NK Modi, AIR 1997 SC 533, 1997.
13
Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Anr. (2019) 8 SCC 416.
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and Others, 14 the court emphasized that the plaintiff, as the dominus litis, holds control over their
case. When conflicting jurisdictions arise, the plaintiff should have the right to select the most suitable
forum, unless there are legal restrictions, public policy issues, or potential misuse of legal processes.
This aligns with the principle from Bank of India v. Lekhi Moni Das & Ors., 15 where two legal
remedies exist, both should be available without undermining each other.
¶ [8] In light of these judgments, it can be inferred that there is no bar under the RERA Act 16 from
the application of concurrent remedy under the Arbitration & Conciliation Act (A&C Act), and thus,
there is no clash between the provisions of the RERA Act and A&C Act, as remedies available under
RERA are in addition to, and not in supersession of, remedies available under A&C Act. 17
¶ [9] In conclusion, it is clear that the Arbitration agreement entered between Mr. Kapoor and BRPL
is valid from the aforementioned arguments and parties can seek an arbitration tribunal for resolution
of dispute.

[1.2] THE FLAT BUYER AGREEMENT BETWEEN MR. K APOOR AND BLPR IS RELATED TO
PERSONAM (RIGHTS IN RESPECT TO PERSON) W HICH IS AMENABLE TO ARBITRATION

¶ [10] It is humbly submitted that the claims for refund of monies, which arise from the cancellation
of allotment under the Flat Buyer Agreement, indeed relate to rights in personam. These rights are
amenable to arbitration as they pertain to specific individuals involved in the contract. No issue of
rights in rem, which are rights enforceable against the world at large 18, has been raised by either party.
¶ [11] In the landmark judgment of Vidya Drolia vs Durga Trading Corporation 19, the Supreme Court
of India clarified that even disputes relating to subordinate rights in personam arising from rights in
rem are considered to be arbitrable. This ruling further strengthens the argument for arbitration in
such cases.
¶ [12] Moreover, referring such claims to arbitration does not impinge on any function of the
Authority under Section 34 20 of the RERA Act. 21 This is an important consideration as it ensures that
the arbitration process does not overstep or interfere with the statutory duties and powers of regulatory
authorities.

14
Management Committee of Montfort Senior Secondary School Vs. Vijay Kumar and Others, (2005) 7 SCC 472.
15
Bank of India v. Lekhi Moni Das & Ors. (2000) 3 SCC 640.
16
Supra Note 7.
17
Bank of India v. Lekhi Moni Das & Ors. (2000) 3 SCC 640.
18
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Others, (2011) 5 SCC 532, 547.
19
Vidya Drolia vs Durga Trading Corporation, (2021) 2 SCC 1.
20
Real Estate (Regulation and Development) Act, 2016 (RERA Act), Sec. 34.
21
M/S. B. E. Billimoria and Co. v Mahindra Bebanco Developers Ltd. & Anr, 2019 SCC OnLine Bom 5637.
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¶ [13] In the case at hand, both the Flat Buyer Agreement executed between claimant and respondent,
and the tripartite housing loan agreement, reflect that the rights in these agreements are rights relating
to personam and not rem. These rights are amenable to arbitration according to the aforementioned
decisions rendered by courts on this dispute.
¶ [14] Furthermore, in A. Ayyasamy vs A. Paramasivam & Ors 22, it was held that all disputes relating
to rights in personam are considered to be amenable to arbitration while rights in rem are required to
be adjudicated by courts and public tribunals.23 This case law further reinforces the argument for
arbitration in disputes arising from agreements like those between claimant and respondent. In
conclusion, given the nature of the rights involved and the precedents set by Indian courts, it is clear
that arbitration is a suitable and legally valid method for resolving disputes arising from such
agreements.

[1.3] THE NATURE OF THE DISPUTE AND ITS AMENABILITY TO ARBITRATION

¶ [15] It is humbly submitted that the matter at hand between the claimant and respondent is
fundamentally a contractual dispute involving financial matters. As per the precedent set in Emaar
MGF Land Limited v. Aftab Singh 24, the creation of a special forum for the adjudication of disputes
does not necessarily render such disputes non-arbitrable.
¶ [16] Even in the context of public welfare legislation, it has been established that parties may opt
for arbitration without prejudice to the rights of the consumer to approach the consumer forum. This
principle extends to disputes under special legislation, such as the Electricity Act, 2003, which have
been deemed arbitrable if referred to arbitration by the relevant regulatory commissions. 25
¶ [17] In light of Indiana’s burgeoning economic growth and the increasing influx of capital and
investments, there is a pressing need for efficient, autonomous, and effective arbitrability of disputes.
This is particularly pertinent in commercial spheres. The present matter falls within the ambit of
arbitration and aligns with various decisions that establish its nature as a right in personam amenable
to arbitration. Therefore, even in the presence of special legislation, this dispute can be resolved
through arbitration.
¶ [18] In Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., 26 it was held that all disputes relating

22
A. Ayyasamy vs A. Paramasivam & Ors (2016) 10 SCC 386.
23
Vimal Kishor Shah & Ors. v. Jayesh Dinesh Shah & Ors., (2016) 8 SCC 788.
24
Emaar MGF Land Limited v. Aftab Singh Review Petition (C) Nos 2629-2630 of 2018 in Civil Appeal Nos 23512-
23513 of 2017.
25
Gujarat Urja Vikas Nigam v. Essar Power Ltd (2008) 4 SCC 755.
26
Supra Note 6.
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to rights in personam are considered to be amenable to arbitration. Furthermore, in A. Ayyasamy v.

A. Paramasivam and Ors., 27 it was observed that allegations of fraud could be arbitrated under certain
circumstances, thereby broadening the scope of arbitrable disputes.
¶ [19] In conclusion, considering the precedents and the nature of the dispute between claimant and
respondent, it is evident that arbitration would be an appropriate mechanism for resolution.

[1.4] THE PRESENT DISPUTE IS GOVERNED BY THE “D OCTRINE OF ELECTION ”

¶ [20] It is humbly submitted that respondent cannot opt for RERA after opting for arbitration under
the doctrine of election. The doctrine of election is a legal principle that applies when a person has to
choose between two alternative or inconsistent rights under the same instrument or transaction. He
cannot approbate and reprobate, or take inconsistent positions, under the same instrument or
transaction. He has to elect one right and abide by it. 28
¶ [21] In A.P. State Financial Corporation v. M/s. GAR Re-rolling Corporation, 29 The Doctrine of
Election clearly suggests that when two remedies are available for the same relief, the party to whom
the said remedies are available has the option to elect either of them. Further, in Bihar Home
Developers and Builders v. Narendra Prasad Gupta,30 Therein, upon an analysis of Sections 88 and
89 of the RERA Act, 31 it has taken the view that the RERA Act is not inconsistent with the provisions
of the A&C Act, under circumstances quite similar to the instant case. 32
¶ [22] In IREO Grace Realtech Pvt. Ltd. V. Abhishek Khanna, 33 it was stated that an allottee can
choose one legal remedy to address their grievance when two options exist concurrently, forfeiting
the chance to use both for the same issue. In the present case, respondent and claimant had entered
into a Flat Buyer Agreement, which contained an arbitration clause. Respondent had consented to the
arbitration process and participated in it without raising any objection to its jurisdiction or scope. 34
By doing so, BRPL had elected to arbitrate its dispute with claimant under the Flat Buyer Agreement
and waived its right to opt for any other remedy for the same dispute. 35
¶ [23] Therefore, respondent cannot opt for RERA after opting for arbitration under the doctrine of

27
Supra Note 8.
28
Codrington v Lindsay (1873) 8 Ch 578.
29
A.P. State Financial Corporation v. M/s. GAR Re-rolling Corporation. 1994 AIR 2151.
30
Bihar Home Developers and Builders v. Narendra Prasad Gupta, 2021 SCC OnLine Pat. 1355.
31
Supra Note 10.
32
Trans Mediterranean Airways v. Universal Exports, 2011 10 SCC 316.
33
IREO Grace Realtech Pvt. Ltd. v. Abhishek Khanna, (2021) 3 SCC 241.
34
M/s. Elite Engineering and Construction (Hyd.) Pvt. Ltd. v. M/s. Techtrans Construction India Pvt. Ltd.
35
Transcore v. Union of India, 2008 1 SCC 125.
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election. It has to respect the arbitration agreement and abide by its outcome. 36

[2] WHETHER MR. K APOOR HAS MADE OUT A CASE FOR SEEKING INTERIM RELIEFS/MEASURES
AGAINST BRPL PURSUANT TO THE ARBITRATION AND C ONCILIATION A CT, OF 1996?

¶ [24] It is respectfully, submitted that claimant has a case for seeking interim reliefs/measures against
the respondent pursuant to the Arbitration and Conciliation Act, 1996 on the following grounds [2.1]
The Enforcement Directorate search/raids led to an unforeseeable situation adversely affecting Mr.
Kapoor’s position in commodity market; [2.2] Seeking Interim Relief to prevent substantial risk of
irreparable harm, [2.3] Mr. Kapoor is entitled to interim relief under Section 17 of the Arbitration and
Conciliation Act, 1996, [2.4] Seeking interim relief to prevent substantial risk of irreparable harm.

[2.1] THE ENFORCEMENT DIRECTORATE SEARCH/R AIDS LED TO AN UNFORESEEABLE

SITUATION ADVERSELY AFFECTING MR. K APOOR’S POSITION IN THE COMMODITY MARKET

¶ [25] It is humbly submitted that the principle of force majeure, as recognized by the Indian Contract
Act, 1872,37 plays a pivotal role in situations where unforeseen and exceptional events disrupt the
normal course of contractual obligations. The application of Sections 32 38 and 5639 of the Act was
meticulously elucidated by the Hon'ble Supreme Court in landmark cases such as Satyabrata Ghose
v. Mugneeram Bangur & Co. 40 and Energy Watchdog and Ors. vs. Central Electricity Regulatory
Commission and Ors. 41 These decisions reinforce the importance of the parties' intent and the
existence of a force majeure clause within the contract itself.
¶ [26] In line with the guidance provided by the Apex Court, when parties have premeditated the
ramifications of unforeseen events on their contractual obligations and incorporated them into their
agreement, the resulting consequences will be governed by the terms outlined in the contract. This
categorizes such contracts as contingent contracts under Section 31 of the Indian Contract Act, 42 and
the corresponding outcomes will be enforceable as stipulated in Section 32.
¶ [27] The severe financial repercussions that befell on claimant due to the adverse market reaction

36
Supra Note 20.
37
Indian Contract Act, 1872, Sec. 32.
38
Ibid.
39
Indian Contract Act, 1872, Sec. 56.
40
Satyabrata Ghose vs. Mugneeram Bangur & Co., 1954 SCR 310.
41
Energy Watchdog and Ors. vs. Central Electricity Regulatory Commission and Ors. 2017 SCC Online SC 378.
42
Indian Contract Act, 1872, Sec. 31.
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resulting from the Enforcement Directorate's actions cannot be underestimated. The abrupt plunge in
share prices, coupled with the distressing investor sentiment, placed him in a dire financial
predicament. Furthermore, the impact extended beyond the corporate domain, affecting his standing
in the commodity market, leading to significant challenges in managing his financial affairs.
¶ [28] The unfolding scenario underscores the relevance of force majeure principles and their
interpretation within the framework of contractual agreements. The circumstances surrounding Mr.
Kapoor's situation bring to the fore the essence of foreseeability and agreed consequences, as
highlighted by the Supreme Court's analysis. Thus, Mr. Kapoor's reliance on force majeure principles
to navigate the financial challenges brought about by the Enforcement Directorate's actions finds
substantial support in both legal precedent and the practical exigencies of his circumstances.

[2.2] THE EVENT UNFOLDED AFTER THE RAID LED TO A SITUATION THAT WAS NOT
FORESEEABLE BY A REASONABLE MAN

¶ [29] It is humbly submitted that claimant is entitled to interim relief based on Clause 8 of the Flat
Buyer Agreement. Clause 8 of the Flat Buyer Agreement states that in case of unforeseen situations
and/or due to force majeure events, the Allottees and/or the flat Purchasers can exercise their option
to cancel the allotment of residential units prior to completion of lock-in period.
¶ [30] The Test of Reasonable Foresight 43 can be used to determine whether or not an event was
foreseeable by a reasonable man. 44 In this case, the Enforcement Directorate searches/raids at several
premises and offices of Mr. claimant, resulting in the sealing of his offices by the Enforcement
Directorate and a subsequent plunge in the shares of his companies by almost 12%, leading to
agitation amongst investors/shareholders and a severe financial crunch for Mr. claimant in the
commodity market, were unforeseeable events that could not have been foreseen by a reasonable
man.45 Due to these events, it became impossible for the claimant to fulfill the contract. 46
¶ [31] It can be concluded that the claimant decision to cancel the allotment of six property units
booked by him in the Imperial Centrum project and request a refund of Rs.12,00,00,000/- (Rupees
Twelve Crores Only) is justified under Clause 8 of the Flat Buyer Agreement.

[2.3] Mr. Kapoor Is Entitled To Interim Relief Under Section 17 Of The Arbitration And

43
Re Polemis and Furness, Wilthy & Co. (1921) 3 K.B. 560.
44
Hughes v. Lord Advocate [1963] AC 837.
45
Lampert v. Eastern National Omnibus Co. [1954] 1 WLR 1047.
46
Unibank Savings & Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W) 198 B-E.
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Conciliation Act, 1996

¶ [32] It is humbly submitted that claimant is entitled to interim relief under Section 17 of the
Arbitration and Conciliation Act, 1996.47 In Essar House Private Limited v. Arcellor Mittal Nippon
Steel India Limited,48 the court stated all that the Court is required to see is, whether the applicant for
interim measure has a good prima facie case, whether the balance of convenience is in favour of
interim relief as prayed for being granted and whether the applicant has approached the court with
reasonable expedition. 49
¶ [33] In Flywheel Logistics Solutions Private Limited v. M/S. Hinduja Leyland Finance Limited,50
the amendment equated the authority of an arbitrator under section 17 to that of a court under section
951.52 Consequently, when an arbitrator grants interim relief under section 17, 53 they must adhere to
the same standards as those applied under section 9. 54
¶ [34] Ajay Singh v. Kal Airways Private Limited,55 in this case, it was established that if the
respondent were to dispose of their assets, like shares, to a third party, and if an arbitral award were
to be in favor of the petitioner, it would become a mere paper decree. It is not necessary to prove an
actual attempt to remove or dispose of the assets a strong possibility to delay the relief is sufficient to
prove that there is a possibility to diminish the assets. 56
¶ [35] In the case of World Window Infrastructure Private Limited v. Central Warehousing, 57 Section
17,58 akin to Section 9, 59 serves as a protective measure, preserving the integrity of arbitration. The
primary focus is to maintain the arbitration process and provide equitable treatment to involved
parties. Granting the refund or appropriate interim measures aligns with principles of equity and
fairness. It ensures that claimant is not unfairly burdened due to circumstances beyond his control,
namely the ED investigation and its impact on his financial stability.
¶ [36] The Claimant has a strong prima facie case. He canceled the allotment as per the Flat Buyer
Agreement due to financial loss and seeks a refund. Respondent's failure to refund, as per the

47
Arbitration Act, 1996, Sec. 17.
48
Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, 2022 SCC OnLine SC 1219.
49
SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited, CIVIL APPEAL NO. 15036 OF 2017.
50
Flywheel Logistics Solutions Private Limited v. M/S. Hinduja Leyland Finance Limited, 2020 MAD LJ 475.
51
Arbitration Act, 1996, Sec. 9.
52
Dev Prakash v. Indra, (2018) 14 SCC 292.
53
Supra Note 47.
54
Gainwell Commosales Private Limited v. Minsol Limited, 2022 SCC OnLine Cal 3975.
55
Ajay Singh v. Kal Airways Private Limited, (2018) 209 Comp Cas 154.
56
Supra Note 27.
57
World Window Infrastructure Private Limited v. Central Warehousing, (2021) 3 HCC (Del) 731.
58
Supra Note 47.
59
Supra Note 51.
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agreement, supports claimant's case. Claimant has suffered severe financial distress due to the ED's
actions and This harm appears irreparable as the financial loss is significant and ongoing.
¶ [37] Preserving claimants’ financial stability is in line with the balance of convenience. Granting
the refund or appropriate interim measures aligns with equity. The claimant has promptly initiated
arbitration after disputes arose, demonstrating his commitment to resolving the matter expeditiously.
¶ [38] The Arbitral Tribunal should grant appropriate interim measures, which may include ordering
respondent to deposit the refund amount or provide a bank guarantee, disclose account statements,
and potentially restrain a respondent from construction activities. These measures aim to preserve the
arbitration process, protect the claimant's financial interests, and ensure equitable treatment of the
parties.

[2.4] SEEKING INTERIM RELIEF TO PREVENT SUBSTANTIAL RISK OF IRREPARABLE HARM

¶ [39] It is humbly submitted that claimant has a strong prima facie case. He entered into a Flat Buyer
Agreement with respondent and made a substantial payment towards the purchase of six property
units. However, due to unforeseen circumstances, including financial losses and ED raids, he decided
to cancel the allotment and requested a refund as per the terms of the agreement. Despite his request,
respondent failed to refund the advance amount, which is a clear breach of the agreement.
¶ [40] If interim relief is not granted, claimant stands to suffer irreparable harm. The non-refund of
the substantial amount paid by him is causing him financial distress and hindering his ability to meet
his financial obligations, including settling his loan account with UDFC Bank. The harm suffered by
Mr. Kapoor is not merely monetary but also impacts his creditworthiness and financial stability.
Additionally, in Ashok Palav Cooperative Housing Society Limited v. Pankaj Bhagubhai Desai 60, it
was held that section 79 of the RER Act 61 would not bar the arbitration tribunal from granting interim
relief under section 17 of the Arbitration Act. 62
¶ [41] The consequences of not obtaining interim relief are weighty and extend beyond mere
monetary considerations. The non-refund of the substantial sum not only exacerbates claimant's
financial distress but also obstructs his capacity to fulfill his financial obligations, including repaying
his loan to UDFC Bank. The scope of harm endured by claimant is not confined to financial
implications; it also adversely impacts his creditworthiness and overall financial stability. The
potential harm is of such a nature that it cannot be rectified or compensated by monetary remedies

60
Ashok Palav Cooperative Housing Society Limited v. Pankaj Bhagubhai Desai, 2022 LiveLaw (Bom) 298.
61
Supra Note 8.
62
Supra Note 47.
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alone.
¶ [42] In M.D., Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., 63 the Supreme
Court held that Section 17 64 confers wide powers on the arbitral tribunal to pass any interim order
that is necessary to protect the subject matter of the dispute and to do complete justice between the
parties.65
¶ [43] Claimant's application under Section 17 of the Arbitration and Conciliation Act 1996 66 aligns
with his pursuit of interim relief to mitigate the immediate consequences of the breach he is
experiencing. 67 His requests for the deposit of a substantial sum in the Tribunal or the provision of a
bank guarantee, the disclosure of account details, and the restraint on further construction activities
are all directed towards preserving his rights, mitigating harm, and maintaining the status quo during
the pendency of arbitration proceedings. 68
¶ [44] In view of the gravity of the situation and the potential far-reaching consequences, claimant's
pursuit of interim relief is not only justified but also imperative. The underlying principle of such
relief lies in safeguarding parties from irreparable harm69 and upholding the integrity of the
contractual framework, while the legal remedies are pursued.

[3] WHETHER IT WAS MANDATORY FOR THE PARTIES TO EXERCISE THE PRE-ARBITRAL
DISPUTE ESCALATION PROCESS CONTAINED IN THE DISPUTE RESOLUTION CLAUSE AS A PRE-

CONDITION TO THE ARBITRATION PROCESS?

¶ [45] It is humbly submitted, that it is not mandatory for the parties to exercise the pre-arbitral dispute
escalation process contained in the dispute resolution clause as a pre-condition to the arbitration
process on the following grounds: [3.1] The requirement of pre-arbitral steps is directory and not
mandatory; [3.2] Urgent Interim Relief and Mandatory Waiver of Arbitral Preconditions.

[3.1] THE REQUIREMENT OF PRE-ARBITRAL STEPS IS DIRECTORY AND NOT MANDATORY

¶ [46] It is humbly submitted that the interpretation of Clause 52 of the Flat Buyer Agreement aligns
with the judicial precedence and the inherent nature of the clause itself. The Supreme Court of India,

63
M.D., Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd, (2004) 9 SCC 619.
64
Supra Note 47.
65
Sundaram Finance Ltd. v. NEPC India Ltd, (1999) 2 SCC 479.
66
Supra Note 47.
67
Ashwani Minda v. U-Shin Ltd, (2021) 3 SCC 480.
68
HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd. (2021) 2 SCC 429.
69
Antrix Corporation Limited v. Devas Multimedia Private Limited (2018) 15 SCC 151.
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in the case of Demerara Distilleries (P) Ltd. v. Demerara Distilleries Ltd., 70 has clarified that pre-
arbitral steps are not mandatory, and their requirement is not absolute. This perspective is echoed in
decisions such as Sikand Construction Co. v. SBI 71 and Saraswati Construction Co. v. East Delhi
Coop. Group Housing Society Ltd., 72 where pre-arbitral steps outlined in pre-arbitration clauses are
considered as directory rather than mandatory.
¶ [47] Furthermore, various cases across different High Courts, including Siemens Ltd. v. Jindal India
Thermal Power Ltd., 73 Union of India v. Baga Bros., 74 and Sarvesh Security Services (P) Ltd. v.
DSIIDC,75 have reaffirmed the directory nature of pre-arbitral steps. These rulings have emphasized
that the appointment of an arbitrator can proceed even before the completion of such steps. 76
¶ [48] In the context of International Research Corp PLC v Lufthansa Systems, 77 it was clarified that
if pre-conditions are clearly defined and specific, they may be considered mandatory. However, if
they are vague and general, they are less likely to be enforced mandatorily.
¶ [49] The contention raised by the respondent, asserting the mandatory nature of the pre-arbitral
dispute escalation process, stands inconsistent with both the language and the established legal
precedents. The conclusion drawn from these factors is that claimant's initiation of arbitration without
adhering to the pre-arbitration steps was well-founded. The clause, being directory in nature, does not
obligate strict adherence to the pre-arbitral process, as affirmed by various courts.
¶ [50] Hence, considering the clause's wording, the weight of judicial rulings, and the essential
flexibility of the clause itself, it becomes apparent that the step taken by claimant to proceed with
arbitration was not only justified but also aligned with the prevailing principles of law. In conclusion,
the directory nature of the clause, supported by legal authority, reinforces the appropriateness of
initiating arbitration without following the pre-arbitral steps.

[3.2] URGENT INTERIM RELIEF AND MANDATORY WAIVER OF ARBITRAL PRECONDITIONS

¶ [51] It is humbly submitted that in the realm of arbitration, the "interim relief exception" plays a
crucial role in ensuring the just and equitable protection of parties' substantive rights, even in the face

70
Demerara Distilleries (P) Ltd. v. Demerara Distilleries Ltd. (2015) 13 SCC 610.
71
Sikand Construction Co. v. SBI 1978 SCC OnLine Del 18.
72
Saraswati Construction Co. v. East Delhi Coop. Group Housing Society Ltd. 1994 SCC OnLine Del 563.
73
Siemens Ltd. v. Jindal India Thermal Power Ltd. 2018 SCC OnLine Del 7158.
74
Union of India v. Baga Bros. 2017 SCC OnLine Del 8989.
75
Sarvesh Security Services (P) Ltd. v. DSIIDC 2018 SCC OnLine Del 7996.
76
Ravindra Kumar Verma vs M/S. Bptp Ltd. & Anr.
77
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another - 2013 SGCA 55 - Court of
Appeal — Civil Appeal No 12 of 2013.
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of contractual preconditions. 78 This exception recognizes that treating a waiver of arbitral

preconditions as mandatory is imperative to prevent the erosion of a party's access to urgent interim
reliefs and claims. 79
¶ [52] Indeed, the urgency surrounding the need for interim reliefs is undeniable, as these measures
directly impact parties' rights, assets, and interests. Insisting on rigid adherence to pre-arbitral steps
in situations requiring urgent intervention could potentially nullify the very essence of seeking interim
relief, thereby undermining substantive rights. The waiver of such preconditions serves as a bastion
for maintaining equitable remedies, ensuring that parties are not unjustly denied access to justice
during critical times.
¶ [53] Furthermore, arbitration is often favored for its efficiency and expeditious resolution.80 When
preconditions are mandated, the resulting delay could hinder the timely resolution of disputes—a
departure from the expeditious nature of interim relief seeking to prevent irreparable harm. This
contrast illustrates the critical importance of upholding the principle of swift and effective
resolution,81 which could be jeopardized by stringent procedural prerequisites. 82
¶ [54] In cases where immediate interim relief is essential, strict adherence to pre-arbitral steps could
potentially thwart the purpose of seeking such relief. In the claimant's instance, his application under
Section 17 of the Arbitration and Conciliation Act, 1996 83 seeks interim reliefs due to his pressing
financial circumstances. This stands as a pertinent illustration of the necessity to treat pre-arbitral
steps as a directory rather than mandatory, especially when urgencies impede the expeditious
resolution of disputes.
¶ [55] In Conclusion, the "interim relief exception" emerges as a cornerstone in harmonizing
procedural requirements and substantive rights. By acknowledging that waiver of preconditions is
mandatory in urgent scenarios, the legal framework aligns with the fundamental principle that parties
should not be unduly hindered in their pursuit of justice, particularly when immediate interim relief
is at stake. This principle upholds the essence of arbitration—swift and equitable resolution—and
ensures that the pursuit of interim relief remains unencumbered by procedural formalities.

[4] Whether Due To Improperly Stamped Arbitration Agreement, The Flat Buyer
Agreement Can Be Enforceable In The Provisions Of Law?

78
ICC Commission Report on Emergency Arbitrator Proceedings, [Link]
proceedings-icc-arbitration-and-adr-commission-report/ ¶ 88.
79
Bell South International v Crompton Greaves Lt,. Original Application Nos 103 and 104 of 2000 ¶ 15.
80
Union of India v. Singh Builders Syndicate (2017) [Link] 387 SC.
81
P. Anand Gajapathi Raju & Ors. v. P.V.G. Raju (Dead) & Ors. 2000 AIR SC 1489.
82
Sundaram Finance Ltd. v. NEPC India Ltd. (1999) 2 SCC 479.
83
Supra Note 47.
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¶ [56] It is humbly submitted, that the unduly stamped arbitration agreement of the flat buyer
agreement is enforceable in the provisions of law on the following grounds: [A] Enforceability of
Arbitration Agreement Independent of Substantive Contract; [B] THE unduly stamped of the flat
buyer agreement is Procedure Irregularity

[4.1] ENFORCEABILITY OF ARBITRATION AGREEMENT INDEPENDENT OF SUBSTANTIVE

CONTRACT

¶ [57] It is humbly submitted that an arbitration agreement is a separate agreement from the
substantive contract in which it is contained. 84 This principle, known as the “doctrine of separability”,
implies that the arbitration agreement can survive independently even if the substantive contract is
declared null and void. 85 Therefore, any deficiency in stamp duty on the substantive contract should
not affect the enforceability of the arbitration clause.
¶ [58] This principle is widely accepted in both international and domestic legal frameworks. For
instance, the UNCITRAL Model Law on International Commercial Arbitration, 86 which is followed
by India's Arbitration and Conciliation Act, 87 emphasizes the autonomy of arbitration clauses in
Article 16(1). Similarly, the US Supreme Court in the case of Buckeye Check Cashing, Inc. vs.
Cardegna 88 affirmed that arbitration agreements can be enforced even if the main contract is void.
¶ [59] An example from the English High Court, Beijing Jianlong Heavy Industry Group vs. Golden
Ocean Group Limited & Ors, 89 reinforces the universality of this principle. The court highlighted that
an arbitration clause can be upheld even if the rest of the contract raises legal concerns.
¶ [60] In India, too, the Supreme Court has consistently upheld this doctrine. In Reliance Industries
Ltd. & Anr v. Union of India, 90 the Court recognized the autonomy of arbitration clauses, which
influenced its decision on an arbitration taking place outside India.
¶ [61] Indian cases like Prima Paint Corp vs. Flood & Conklin Manufacturing Co. 91 and National

84
N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. 2021 SCC OnLine SC 13.
85
Enercon (India) Ltd. v. Enercon GMBH, [2014] 2 S.C.R. 855.
86
United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial
Arbitration, 1985.
87
The arbitration and conciliation act, section 16(1)(b), (1996).
88
Buckeye Check Cashing, Inc. vs. Cardegna, 546 U.S. 440 (more)126 S. Ct. 1204; 163 L. Ed. 2d 1038;
2006 U.S. LEXIS 1814.
89
Beijing Jianlong Heavy Industry Group vs. Golden Ocean Group Limited & Ors, [2013] EWHC 1063 (Comm),
Queen's Bench Division, Commercial Court, 1 May 2013.
90
Reliance industry limited & ors vs. Union of India (2014)7 SCC 603.
91
prima paint corp vs. flood & Conklin manufacturing co, 388 U.S. 395 (more)87 S. Ct. 1801; 18 L. Ed. 2d 1270.
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Agricultural Co-op Marketing Federation of India Ltd. v. Gains Trading Ltd. 92 also echo this
principle. They affirm that an arbitration clause can survive independently, even if the main contract
is declared void.
¶ [62] A more recent example, Branch Manager, Magma Leasing and Finance Limited v. Potluri
Madhavilata,93 reinforces that the arbitration clause remains valid even if the contract is terminated
due to a violation.
¶ [63] Considering the current situation involving respondent's argument about the flat buyer
agreement's stamping issue, this contention doesn't hold strong against the firmly established
separability doctrine. As argued, the arbitration clause's autonomy is supported by various past cases
and legal provisions, shielding it from the contract's validity problems. The separability doctrine
clearly states that the fate of the arbitration clause isn't linked to the rest of the contract. Therefore,
even if the main contract lacks proper stamping, the arbitration agreement remains valid and effective,
unaffected by the contract's flaws.
¶ [64] To conclude, with the backing of the separability doctrine and the consistency of legal
precedents, the arbitration agreement within the flat buyer agreement stands as a strong and
independent element. It's fully capable of facilitating dispute resolution, irrespective of any issues that
might affect the main contract.

[4.2] THE UNDULY S TAMPED OF THE FLAT BUYER AGREEMENT IS PROCEDURE

IRREGULARITY

¶ [65] It is humbly submitted that the flat buyer agreement executed between Mr. Kapoor and BRPL
is not invalid due to mere procedural irregularity, and the arbitration clause is valid.
¶ [66] The Indian Stamp Act, 1899,94 provides that an instrument not duly stamped is not admissible
as evidence. However, this defect is curable upon payment of the requisite duty along with a penalty. 95
The Supreme Court in various judgments has held that a substantive right accrued to a litigant should
not be defeated citing a procedural defect capable of being cured. 96
¶ [67] In Hindustan Steel Ltd vs M/S. Dalip Construction Company 97 dealt with whether an
unstamped or insufficiently stamped instrument could be admitted in evidence or acted upon by the

92
National Agricultural Co-op Marketing federation of India Ltd. vs. Gains trading ltd, 2007 (5) SCC 692.
93
Branch manager, magma Leasing and Finance limited vs. Potluri Madhavilata, AIR 2010 SC 488, 2010 (2) AWC
1315 (SC).
94
The Indian Stamp Act, 1899, Sec. 35.
95
Gautam Landscapes Pvt. Ltd. v. Shailesh Shah AIR 2019 Bom 149.
96
M/S Ramnath Exports Pvt Ltd vs Vinita Mehta & Anr, 2022 LiveLaw (SC) 564.
97
Hindustan Steel Ltd vs M/S. Dalip Construction Company, 1969 AIR 1241.
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court. The court held that the Stamp Act, of 1899, was a fiscal measure intended to raise revenue and
not to arm a litigant with a weapon of technicality to meet the case of his opponent. The court also
held that the stringent provisions of the Stamp Act were meant to protect the interest of the revenue
and not to defeat justice or perpetuate fraud or illegality. The court further held that upon the
endorsement being made under Section 42(2) of the Stamp Act, 98 the document would be admissible
in evidence and could be acted upon.
¶ [68] The contention raised by respondent that undue stampation of the flat buyer agreement
containing an arbitration clause would render it void is incorrect. This is supported by the decision of
the Supreme Court in M/S DLF Home Developers Ltd vs Wg Cdr Arifur Rahman Khan & Others, 99
where it was held that a flat buyer agreement is a binding contract between the parties and any
irregularity in it can be cured. From the aforementioned precedents, it is clear that mere irregularity
of procedure of not duly stamping the flat buyer agreement would not render the agreement void and
it can be cured.

98
The Indian Stamp Act, 1899, Sec. 42(2).
99
Wg. Cdr. Arifur Rahman Kan and Aleya Sultana v. DLF Southern Homes Pvt Ltd, 2020 SCC OnLine SC 667.
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PRAYER

In light of the facts stated, issues raised, authorities cited, and arguments advanced, the Counsel for
the Claimant respectfully requests the tribunal to ADJUDGE and DECLARE that,

1. The Tribunal has the jurisdiction to decide this dispute.

2. A case for seeking interim reliefs/measures against the RESPONDENT pursuant to the A&C
Act, 1996 has been made out.
3. It was not mandatory but directory for the parties to exercise pre-arbitral dispute escalation
process contained in the dispute resolution clause as a pre-condition to arbitration process.
4. The arbitration agreement, contained in improperly stamped flat buyer agreement, is
enforceable and valid in the provisions of Law.

All of which is humbly prayed.

Place: Trombai Sd/-

Dated: 02/07/2017 Counsel for CLAIMANT

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