Any queries in this regard may be addressed to

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2 KISHINCHAND CHELLARAM LAW COLLEGE Vidyasagar Principal K.M.Kundnani Chowk, 123, Dinshaw Wachha Road, Mumbai , Maharashtra Tel: Website: To, The Principal 31 st January 2015 Dear Sir/Madam, Subject: Invitation to the 9 th National Moot Court Competition 2015 Greetings from Kishinchand Chellaram Law College, Mumbai. It gives us immense pleasure to invite your esteemed Institution to participate in the 9 th National Moot Court Competition being organised by our College in its 60 th year. The Competition will be held at the K.C. Law College Campus, on Saturday, 14 th March 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, 28 th 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, 5 th March, Any queries in this regard may be addressed to kclaw.mca2015@gmail.com. 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

3 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 Registration form 18

4 I. GENERAL RULES & REGULATIONS 1. Date and venue: K. C. Law College will be organising a National Level Moot Court Competition on Saturday, 14 th March 2015 at K. C. Law College, Vidyasagar Principal K.M. Kundnani Chowk, 123 Dinshaw Wachha Road, Churchgate, Mumbai 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 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, 28 th 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, 14 th March 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 1

5 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, 28 th February, 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 2

6 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 3

7 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 , Maharashtra In addition, Microsoft Word files (.doc or.docx extension) of the Memorials shall be ed to kclaw.mca2015@gmail.com on or before 2359 hours of Thursday, 5 th 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 Knowledge and application of pertinent laws Research and application of relevant case laws and proper and articulate analysis Adherence to abovementioned standards, grammar and citations Clarity/presentation/organisation Total 20 marks 20 marks 20 marks 20 marks 20 marks 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 4

8 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 Semi-final round Final round 20 minutes 30 minutes 45 minutes 5. The maximum time that a Speaker shall reserve for arguments is as under: Preliminary round Semi-final round Final round 12 minutes 18 minutes 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 5

9 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 Knowledge and application of pertinent laws Application of relevant case laws Style, poise, courtesy and demeanour Flow of arguments and organisation Proficiency and adeptness in answering questions Total 10 marks 20 marks 20 marks 15 marks 15 marks 20 marks 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 6

10 IX. SCHEDULE Last day for the submission of Registration Form Last day for the submission of Memorials Reporting time Orientation, breakfast and drawing of lots Preliminary round Results of preliminary round and drawing of lots for semi-final round Semi-final round Lunch Final round 1700 hours 28th February, hours 5th March hours 0830 hours to 0930 hours 0930 hours to 1100 hours 1100 hours to 1200 hours 14th March hours to 1400 hours 1400 hours to 1600 hours 1600 hours to 1800 hours X. CLARIFICATIONS 1. Clarifications may be sought by ing 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 Ms. Harsha Uppal, Assistant General Secretary Mr. Bhavin Shah, Treasurer Ms. Manali Mengde, Communications 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 7

11 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 8

12 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 13 th 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 9

13 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 10 th February 2014; the Respondent has filed its reply and counter claim on 10 th March 2014 to the Claimant s Statement of Claim. The Claimant has filed its reply to the counter claim of the Respondent on 25 th March In the Statement of Claim, the Claimant has claimed: a. Specific performance of the Agreement for Sale dated 13 th December b. Damages amounting to Rs. 50 lakhs with interest at the rate of 13.5% per annum with effect from 20 th 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 13 th 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 13 th 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 10

14 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 30 th 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. 13 th December Agreement for Sale executed between the Claimant and the Respondent. b. 29 th December Letter addressed by the Respondent to the Claimant, inter alia, stating that the instalment for the 24 th floor slab was due and payable on 15 th 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. 10 th January Stop Work Notice issued by the Municipal Corporation, inter alia, on the ground of deviation from the sanctioned plans relating to the 23 rd floor. d. 3 rd February termination notice by the Respondent terminating the agreement and offering to refund the monies paid by the Claimant. e. 20th November Suit no. 444 of 2013, filed by the Claimant. f. 28th December present Tribunal constituted. 10. Additionally, the material clauses of the Agreement dated 13 th 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 24 th floor in A wing, for a total consideration of Rs 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 4 th, 14 th, 24 th floor,34 th 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 11

15 at the time the instalment for the 24 th 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 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, 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 10 th 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 23 rd floor, which required the Respondent to maintain the same as refuge area. 12. In the interregnum, the Respondent addressed a letter dated 29 th December 2012, calling upon the Claimant to make payments in respect of the 24 th 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 12

16 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 13

17 a. Admittedly, the Claimant, except the payment for the 24 th 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 24 th 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 24 th 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 29 th October 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 14

18 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 15

19 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 13 th December 2008 and restore the 23 rd 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 20 th 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: 4 th September 2014 Instructions: 1. Being aggrieved by the award dated 4 th September 2014, XYZ Developers has filed an arbitration petition on 30 th 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 16

20 XIII. MAP Kishinchand Chellaram Law College, Vidyasagar Principal K.M. Kundnani Chowk, 123 Dinshaw Wachha Road, Churchgate, Mumbai K.C. LAW COLLEGE NATIONAL MOOT COURT COMPETITION 2015 Page 17

21 KISHINCHAND CHELLARAM LAW COLLEGE Vidyasagar Principal K.M.Kundnani Chowk, 123, Dinshaw Wachha Road, Mumbai , Maharashtra Tel: Website: NATIONAL MOOT COURT COMPETITION th March 2015 REGISTRATION FORM A. Name of Participating Law School/College/University : Address for Communication: Telephone No.: Address: B. Details of Participants 1. Name of Mooter: Class: Mobile No.: address: Photograph 2. Name of Mooter: Class: Mobile No.: address: Photograph 3. Name of Researcher: Class: Mobile No.: address: Photograph 4. Name of Moot Court Co-ordinator: Mobile No.: 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