TEAM CODE-05

JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT, 2025

BEFORE

THE HON’BLE SUPREME COURT OF INDUSTRIA

IN THE MATTER OF:

NATIONAL HIGHWAYS AUTHORITY OF INDUSTRIA.

(PETITIONER )

VERSUS

BOB BUILDERS CORPORATION LIMITED

(RESPONDENT)

MEMORIAL ON BEHALF OF THE PETITIONER

Contents
STATEMENT OF JURISDICTION ............................................................................................4

STATEMENT OF FACTS ..........................................................................................................5

STATEMENT OF ISSUES .........................................................................................................7

SUMMARY OF ARGUMENTS .................................................................................................8

ARGUMENTS ADVANCED ................................................................................................... 10

Issue 1: In view of an express provision of appeal under the Arbitration Act, whether the Special
Leave Petition filed by NHAI is maintainable? ...................................................................... 10

Issue II: Termination of the Agreement and Claim for Damages — Whether the High Court
Rightfully Upheld the Arbitral Award? .................................................................................. 13

Issue III: Does the power to set aside the Award under Section 34 of the Arbitration Act include
the power to modify the Award? As such, did the High Court travel beyond its scope while
modifying the Award to allow the levy of interest? ................................................................ 16

Issue IV: Whether, in view of post-award revelations of serious fraud and public corruption, the
dispute has become non-arbitrable due to the invalidity of the underlying contract and arbitration
agreement? ............................................................................................................................ 19

Issue V: Whether the Award is liable to be set aside as being against the public policy of
Industria? .............................................................................................................................. 22

PRAYER .................................................................................................................................. 25
 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

LIST OF ABBREVIATIONS

ARB. PET. – Arbitration Petition

BBCL – Bob Builders Corporation Limited

BOT – Build-Operate-Transfer

CERC – Central Electricity Regulatory Commission

CEO – Chief Executive Officer

COVID-19 – Coronavirus Disease 2019

DDA – Delhi Development Authority

EPC – Engineering, Procurement, and Construction

G.O. MS – Government Order, Miscellaneous Series

HC – High Court

Hon’ble – Honorable

ICICI – Industrial Credit and Investment Corporation of India

NHAI – National Highways Authority of India

ONGC – Oil and Natural Gas Corporation

PI – Private Investment

SCC – Supreme Court Cases

SC – Supreme Court

SDMC – South Delhi Municipal Corporation

SLP – Special Leave Petition

v. – versus

Memorial On Behalf of The Petitioner 1

1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

INDEX OF AUTHORITIES

I. CASES CITED

S. No CASE NAME CITATION

1. M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427
2. Shin-Etsu Chem. Co. v. Vindhya Telelinks Ltd (2005) 7 SCC 234
3. Columbia Sportswear Co. v. Dir. of Income Tax (2012) 11 SCC 224
4. MEP Infrastructure Developers Ltd. v. S. Delhi SCC OnLine Del 3624
Mun. Corp
5. MEP Sanjose Mahuva Road v. Nat’l Highways SCC OnLine Del 3666
Auth. of India,
6. Energy Watchdog v. Cent. Elec. Regulatory (2017) 14 SCC 80
Comm’n
7. Oil & Nat. Gas Corp. Ltd. v. Saw Pipes Ltd (2003) 5 SCC 705
8. Project Director, NHAI v. M. Hakeem (2021) 9 SCC 1
9. Grindlays Bank Ltd. v. Cent. Gov’t Indus. 1980 Supp SCC 420
Tribunal
8. Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396
10. Kinnari Mullick v. Ghanshyam Das Damani (2017) 11 SCC 612
11. I-Pay Clearing Servs. (P) Ltd. v. ICICI Bank (2022) 3 SCC 121
Ltd.,
12. A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386
13. Avitel Post Studioz Ltd. v. HSBC PI Holdings (2021) 4 SCC 713
(Mauritius) Ltd
15. Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1
16. Renusagar Power Co. Ltd. v. Gen. Elec. Co. 1994 Supp (1) SCC 644
17. Associate Builders v. Delhi Dev. Auth., (2015) 3 SCC 49

Memorial On Behalf of The Petitioner 2

1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

II. STATUTES

1. Arbitration and Conciliation Act, 1996

- Section 12(1)(b) & 12(5): Arbitrator’s duty to disclose conflicts.
- Section 31(7)(b): Statutory interest rates if award is silent.
- Section 34: Grounds for setting aside arbitral awards.
- Section 34(4): Remand to tribunal for curing defects.
- Fifth and Seventh Schedules: Disclosures and ineligibility of arbitrators.

2. Constitution of India (pari materia to Industria)

- Article 136: Supreme Court’s special leave jurisdiction.
3. Indian Contract Act, 1872
- Section 55: Termination for failure to perform time-bound contracts.
- Section 56: Doctrine of frustration.
- Section 73: Damages for breach of contract

Memorial On Behalf of The Petitioner 3

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

STATEMENT OF JURISDICTION

The petitioner, NHAI, has approached this honorable court under the Article 136 of the
Constitution of Industria, i.e., pari materia to India, which reads as follows-

Article 136 in Constitution of India

136. Special leave to appeal by the Supreme Court

Not with standing anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.

Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the Armed Forces.

The petitioner humbly requests this Hon’ble Court to kindly grant this Special Leave Petition for
this dispute.

Memorial On Behalf of The Petitioner 4

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

STATEMENT OF FACTS

 The Republic of Industria, a developing nation focused on economic growth and infrastructure
development, initiated the ‘Kings Road Project’—a 600-kilometer, eight-lane expressway
connecting the capital Kings Landing to the commercial hub Winterfell. The project was tendered
under a public-private partnership by the National Highways Authority of Industria (NHAI).

 On 27.12.2017, after a competitive bidding process, NHAI executed a Concession Agreement

with the Petitioner, Bob Builders Corporation Limited (BBCL), a reputed public construction
company, for a 15-year Build-Operate-Transfer (BOT) contract. BBCL was to complete the first
milestone of the project by 30.08.2023 and was entitled to collect tolls during the concession
period.

 In 2020, the COVID-19 pandemic caused widespread disruption across Industria. Despite a
government notification (G.O. MS No. 75 of 2020) allowing infrastructure projects to continue,
practical challenges like mass exodus of migrant labor, material shortages, and health restrictions
rendered construction work infeasible for BBCL.

 BBCL communicated these difficulties to NHAI on several occasions and sought extensions for
achieving the first milestone. However, NHAI failed to respond substantively to these requests and
instead directed BBCL to proceed with construction, which only resumed effectively from
01.01.2022 after the pandemic’s peak had passed.

 In early 2022, a change in government brought increased scrutiny and political upheaval. Amidst
ongoing investigations, including into alleged corruption by various officials and corporate
entities, BBCL received a notice from NHAI on 31.08.2023, threatening termination of the
Agreement unless the breach was cured within seven days.

 Despite a meeting between BBCL and NHAI officials on 08.09.2023 where BBCL reiterated the
extraordinary pandemic-induced constraints, NHAI terminated the Agreement the very next day
and forfeited the entire security deposit of ₹150 Crores.

 Aggrieved by the termination and forfeiture, BBCL invoked arbitration as per the terms of the
Concession Agreement. The sole arbitrator, a retired High Court judge, ruled in BBCL’s favor on
15.06.2024. The Tribunal found the termination and forfeiture wrongful, reinstated the Agreement,

Memorial On Behalf of The Petitioner 5

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

and directed NHAI to pay damages for idling of machinery and price escalation during the
pandemic.

 NHAI filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 before the
High Court of Dragonstone. The High Court upheld the Tribunal’s findings and awarded interest
at 18% on the damages in accordance with the terms of the Agreement.

 Subsequently, NHAI filed a Special Leave Petition before the Hon’ble Supreme Court of
Industria, challenging the Award on various grounds including maintainability, public policy,
fraud, and arbitrability. The present matter arises from that petition.

Memorial On Behalf of The Petitioner 6

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

STATEMENT OF ISSUES

I.

In view of an express provision of Appeal under the Arbitration Act, whether the Special
Leave Petition filed by NHAI is maintainable?

II.

Insofar as the question of termination of the Agreement and the claim for damages is
concerned; whether the High Court has rightfully upheld the Award?

III.

Does the power to set aside the Award under Section 34 of the Arbitration Act include the
power to modify the Award? As such, did the High Court travel beyond its scope while
modifying the Award to allow the levy of interest?

IV.

In the given factual conspectus, do recent events render the dispute non-arbitrable?

V.

Whether the Award is liable to be set aside as being against the public policy of Industria?

Memorial On Behalf of The Petitioner 7

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

SUMMARY OF ARGUMENTS

ISSUE I: In view of an express provision of Appeal under the Arbitration Act, whether the
Special Leave Petition filed by NHAI is maintainable?

The Special Leave Petition (SLP) filed by NHAI is maintainable under Article 136 of the
Constitution, as it raises substantial legal questions beyond the scope of Section 34 of the
Arbitration Act. These include whether courts can modify arbitral awards and whether post-award
revelations of fraud and public policy violations render the dispute non-arbitrable. Article 136
serves as a constitutional safeguard to correct grave injustice, especially when statutory remedies
are inadequate, as affirmed in M.L. Sethi, Shin-Etsu, and Columbia Sportswear.

ISSUE II: Insofar as the question of termination of the Agreement and the claim for damages
is concerned; whether the High Court has rightfully upheld the Award?

The High Court erred in upholding an arbitral award that disregarded the express terms of the
Concession Agreement and settled principles of contract law. BBCL failed to meet the First
Milestone, did not renew work permits, and could not prove genuine force majeure under law or
mitigate its delays—despite government orders allowing work. Courts have held that COVID-19
alone does not justify non-performance. The Tribunal and High Court wrongly relied on equitable
considerations over legal standards, ignoring precedents like ONGC v. Saw Pipes and Energy
Watchdog. The award lacks evidentiary support, violates public policy, and undermines
accountability in public infrastructure projects. Hence, NHAI’s termination was lawful and the
High Court’s decision should be set aside.

ISSUE III: Does the power to set aside the Award under Section 34 of the Arbitration Act
include the power to modify the Award? As such, did the High Court travel beyond its scope
while modifying the Award to allow the levy of interest?

The High Court exceeded its powers under Section 34 of the Arbitration Act by modifying the
arbitral award to add 18% interest, despite the Tribunal’s conscious decision to deny it. As held in
Project Director, NHAI v. M. Hakeem, Section 34 allows only for setting aside awards, not altering
them. The proper course, if any defect was found, was remand under Section 34(4), not unilateral
modification. This judicial overreach violates principles of minimal intervention, arbitral finality,
and party autonomy, and the High Court’s order should be set aside.

Memorial On Behalf of The Petitioner 8

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

ISSUE IV: In the given factual conspectus, do recent events render the dispute non-
arbitrable?

The arbitral award favoring BBCL must be set aside due to post-award revelations of serious fraud
involving key public officials and BBCL’s executives, suggesting the Concession Agreement—
and thus the arbitration clause—was procured through corruption. As held in Vidya Drolia and
Avitel, disputes tainted by serious fraud are non-arbitrable and must be resolved judicially. The
High Court's ruling, made without knowledge of these facts, cannot stand. Under Article 136, the
Supreme Court must intervene to prevent misuse of arbitration to shield fraud and protect public
interest.

ISSUE V: Whether the Award is liable to be set aside as being against the public policy of
Industria?

The arbitral award reinstating BBCL’s contract must be set aside under Sections 34(2)(a)(v) and
34(2)(b)(ii) due to serious post-award revelations of fraud and undisclosed bias. The sole arbitrator
opened a foreign bank account tied to corruption just days after the award, violating mandatory
disclosure norms under Section 12. Further, the award rewards a party now implicated in criminal
conspiracy, undermining public policy, justice, and morality. As held in ONGC v. Saw Pipes and
Associate Builders, such procedurally and substantively tainted awards must be annulled to uphold
the rule of law and preserve trust in arbitration.

Memorial On Behalf of The Petitioner 9

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

ARGUMENTS ADVANCED

Issue 1: In view of an express provision of appeal under the Arbitration Act, whether the
Special Leave Petition filed by NHAI is maintainable?

1. It is humbly submitted before the Hon’ble Court that Section 34 of the Arbitration and
Conciliation Act, 1996, provides the statutory mechanism to challenge an arbitral award
before a competent court on limited grounds. However, this does not exclude or override
the constitutional powers of the Supreme Court under Article 1361. Article 136 confers on
the Supreme Court a plenary and discretionary jurisdiction, enabling it to grant special
leave to appeal from any judgment or order passed by a court or tribunal in the territory of
India.
2. The Supreme Court in M.L. Sethi v. R.P. Kapur 2 held that Article 136 is a residual source
of jurisdiction, designed to ensure that injustice does not prevail merely due to the absence
of a statutory remedy. Further, in Shin-Etsu Chemical Co. Ltd. v. Vindhya Telelinks Ltd.3,
the Court emphasized that the exercise of jurisdiction under Article 136 may be
warranted even where no appeal lies by right, especially when the interests of justice
demand intervention due to exceptional circumstances or substantial legal questions.
3. Similarly, in Columbia Sportswear Co. v. Director of Income Tax4, the Supreme Court
clarified that the existence of an alternate remedy or a statutory bar does not oust its
jurisdiction under Article 136, especially when there is a need to clarify important
questions of law or when the findings of the lower court are perverse, erroneous, or result
in grave injustice.

1
The Constitution of India, art. 136.
2
M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427 (India).

3
Shin-Etsu Chem. Co. v. Vindhya Telelinks Ltd., (2005) 7 SCC 234 (India).

4
Columbia Sportswear Co. v. Dir. of Income Tax, (2012) 11 SCC 224 (India).

Memorial On Behalf of The Petitioner 10

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

4. Thus, Article 136 serves as a constitutional safety valve, intended to remedy situations
where injustice cannot be corrected through ordinary channels, including when fraud,
public policy violations, or errors of jurisdiction arise.
5. NHAI filed a petition under Section 34 of the Arbitration Act, challenging the arbitral
award which reinstated the concession agreement with BBCL and awarded compensation.
While the High Court upheld most of the Tribunal’s findings, it modified the award by
awarding 18% interest on damages—an action that NHAI asserts is beyond the court's
statutory authority under Section 34.
6. Critically, after the award and during the pendency of review proceedings, serious
allegations of corruption, money laundering, and potential criminal conspiracy came
to light. These allegations implicate BBCL’s CEO and independent directors, suggesting
that the very foundation of the contractual arrangement may have been tainted. These post-
award revelations raise significant legal and public interest concerns, particularly
regarding arbitrability and the enforcement of awards tainted by fraud.
7. The maintainability of the SLP must be evaluated in the light of the Supreme Court’s
constitutional duty to prevent injustice. While Section 345 offers a narrow statutory
challenge, it is ill-suited to address complex, evolving issues involving fraud or public
policy that emerge post-award. Here, the High Court not only modified the award in
contravention of Supreme Court precedent (e.g., Project Director, NHAI v. M. Hakeem),
but also failed to account for the significant change in factual circumstances—namely,
the criminal investigations and allegations undermining the integrity of the contract and
arbitral process.
8. The guidance laid down in Shin-Etsu and Columbia Sportswear supports the view that
Article 136 must be invoked when the statutory regime proves inadequate to deal with
extraordinary factual developments or grave legal errors. Since the award, its
modification, and the circumstances surrounding it now engage questions of public
interest, arbitrability in the face of fraud, and the jurisdictional limits of courts under
Section 34, the Respondent asserts that the SLP is both justiciable and maintainable.
9. The Special Leave Petition filed by NHAI is maintainable under Article 136 of the
Constitution, as it raises substantial questions of law, including whether a court under

5
Arbitration and Conciliation Act, 1996, § 34.

Memorial On Behalf of The Petitioner 11

1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Section 34 can modify an award, and whether post-award developments—like criminal

allegations and public interest concerns—render the enforcement of the award contrary to
public policy and non-arbitrable. Following the reasoning in M.L. Sethi, Shin-Etsu, and
Columbia Sportswear, it is evident that the Supreme Court’s intervention is warranted
in this case to preserve the rule of law and prevent miscarriage of justice.

Memorial On Behalf of The Petitioner 12

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Issue II: Termination of the Agreement and Claim for Damages — Whether the High Court
Rightfully Upheld the Arbitral Award?

10. It is humbly submitted before the Hon’ble Court that the termination of contracts and award
of damages in India is governed by both the contract itself and overarching principles in
the Indian Contract Act, 1872, which apply pari materia to the laws of Industria. Under
Section 556, if time is of the essence in a contract and there is a failure to perform on time,
the non-defaulting party is entitled to terminate the contract. Section 73 7 permits recovery
of damages for losses that arise naturally from the breach. Section 56 8 (Doctrine of
Frustration) relieves parties only if performance becomes impossible due to unforeseen and
unavoidable circumstances, not due to the promisor's negligence or inefficiency.
Additionally, force majeure clauses in contracts must be strictly construed and require clear
proof that the event genuinely prevented performance. Courts in India have consistently
held that not every inconvenience caused by COVID-19 qualifies as force majeure. In MEP
Infrastructure Developers Ltd. v. SDMC9 and MEP Sanjose Mahuva Road v. NHAI10, the
Delhi High Court ruled that contractors already in breach prior to the pandemic cannot
claim force majeure protection. Courts emphasized that the pandemic must directly and
unavoidably prevent performance, and the contractor must prove it took all reasonable
steps to mitigate the impact. In Energy Watchdog v. CERC (2017)11, the Supreme Court
reaffirmed that force majeure must render performance impossible, not merely more
expensive or difficult. Arbitrators are also bound to follow established legal norms and
cannot rewrite contractual obligations under equitable considerations, as held in ONGC

6
The Indian Contract Act, 1872, §§ 55.
7
The Indian Contract Act, 1872, §§ 56.
8
The Indian Contract Act, 1872, §§ 73.
9
MEP Infrastructure Developers Ltd. v. S. Delhi Mun. Corp., SCC OnLine Del 3624 (India).

10
MEP Sanjose Mahuva Road v. Nat’l Highways Auth. of India, SCC OnLine Del 3666 (India).
11
Energy Watchdog v. Cent. Elec. Regulatory Comm’n, (2017) 14 SCC 80 (India).

Memorial On Behalf of The Petitioner 13

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Ltd. v. Saw,,Pipes,,Ltd.(2003)12. BBCL was awarded the Kings Road Project under an EPC
contract with a strict First Milestone deadline of 30.08.2023. Despite some initial delays
due to COVID-19, the government had issued G.O. MS No. 75 of 2020 allowing
infrastructure work to resume. Nonetheless, BBCL failed to restart the project in any
meaningful way and did not renew the requisite work permits—a basic compliance
requirement. Repeated reminders from NHAI went unheeded, and BBCL continued to
underperform. A cure notice was issued in August 2023, and upon continued default, NHAI
terminated the contract. BBCL, while claiming damages for idling costs and price
escalation, failed to substantiate these claims with verifiable data or a mitigation plan.
However, both the Arbitral Tribunal and the High Court sided with BBCL, holding the
termination to be wrongful and awarding damages.
11. The High Court erred in upholding an arbitral award that ignored both contractual
obligations and legal standards for force majeure and damages. Clause 5.2 of the
Concession Agreement gave NHAI the express right to terminate the contract upon failure
to meet the First Milestone. The failure to renew work permits and resume work—despite
government orders permitting construction—points to continued non-compliance rather
than force majeure. BBCL did not take reasonable steps to mitigate the delay, such as
mobilizing local labor or applying for government assistance. This is critical, as courts in
MEP–SDMC and MEP Sanjose Mahuva Road have made clear: mere invocation of
COVID-19 is insufficient without proof of genuine and unavoidable hindrance. Since other
similarly situated contractors resumed work under the same conditions, BBCL’s default
cannot be excused. The legal threshold for frustration under Section 56 was not met, and
BBCL’s own conduct—including ignoring cure notices and failing to substantiate its
losses—disqualifies it from seeking equitable relief. The Tribunal and High Court
overlooked the objective legal standard and placed undue emphasis on subjective hardship.
12. Moreover, under ONGC v. Saw Pipes, arbitral awards that are patently illegal or contrary
to public policy can be set aside. The award in this case lacks evidentiary foundation and
disregards the express terms of the Concession Agreement. No quantified loss was proven
by BBCL, and there was no independent verification of the alleged damages. The High

12
Oil & Nat. Gas Corp. Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 (India).

Memorial On Behalf of The Petitioner 14

1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Court also failed to account for public interest—the delay of a national highway project,
funded by taxpayer money, due to a contractor’s mismanagement. It is well-established
that government bodies must act based on objective, enforceable criteria, not subjective
equitable factors.
13. The High Court's affirmation of the arbitral award is legally flawed and contrary to the
express terms of the Concession Agreement and applicable principles of contract law.
BBCL failed to perform its obligations, did not mitigate delays, and did not meet the legal
burden required for invoking force majeure or claiming damages. The Tribunal and High
Court improperly prioritized equitable considerations over contractual and legal standards,
resulting in an award that is both unsustainable and contrary to public interest. Therefore,
the High Court’s decision should be overturned, and NHAI’s termination of the Agreement
must be upheld as valid and lawful.

Memorial On Behalf of The Petitioner 15

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Issue III: Does the power to set aside the Award under Section 34 of the Arbitration Act
include the power to modify the Award? As such, did the High Court travel beyond its scope
while modifying the Award to allow the levy of interest?
14. It is humbly submitted before the Hon’ble Court that Section 3413 of the Arbitration and
Conciliation Act, 1996, empowers courts to “set aside” arbitral awards on specified
grounds, but does not confer the power to modify or alter the award. The Supreme Court
in Project Director, NHAI v. M. Hakeem14 firmly held that any form of modification of
an arbitral award is outside the scope of Section 34. The Court emphasized that this
provision was not intended to act as an appellate mechanism, and any reinterpretation,
revision, or supplementation by the court—even on equitable grounds—would constitute
judicial overreach and violate the principle of minimal intervention in arbitral proceedings.
15. In this case, the arbitral Tribunal issued a well-reasoned award on 15.06.2024, granting
BBCL compensation for idling costs and price escalation but denied interest, citing the
reinstatement of the contract and the equitable balance of the case. The High Court, instead
of setting aside the award or remanding it under Section 34(4) 15, modified it by adding
18% interest, citing Clause 8.3 of the contract and principles of justice and equity. This
direct alteration of the Tribunal’s decision violates the express statutory limit of Section
34, which allows only setting aside of awards—not substantive modification.
16. Although the recent jurisprudence, including dicta from the Supreme Court, acknowledges
a limited power of courts to engage with awards—such as correcting clerical or
computational errors (as upheld in Grindlays Bank Ltd. v. Central Govt. Industrial
Tribunal16)—this power does not extend to substantive revaluation of arbitral decisions,
particularly when the issue of interest was already deliberated and rejected by the Tribunal.
Even where courts possess inherent procedural powers (e.g., Budhia Swain v. Gopinath

13
Arbitration and Conciliation Act, 1996, § 34.

14
Project Director, NHAI v. M. Hakeem, (2021) 9 SCC 1 (India).
15
Arbitration and Conciliation Act, 1996, § 34(4).
16
Grindlays Bank Ltd. v. Cent. Gov’t Indus. Tribunal, 1980 Supp SCC 420 (India).

Memorial On Behalf of The Petitioner 16

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Deb17), these are confined to correcting inadvertent or procedural errors—not to judicially

reweigh the merits of an arbitral remedy.
17. The power to remand an award under Section 34(4)18 offers a defined route to address
curable defects, as discussed in Kinnari Mullick v. Ghanshyam Das Damani19 and I-Pay
Clearing Services Pvt. Ltd. v. ICICI Bank Ltd.20 If the High Court found the denial of
interest deficient, it could have invoked its power under Section 34(4) to remit the matter
to the Tribunal for reconsideration—not to unilaterally impose an interest rate. This was
neither sought nor procedurally followed.
18. Further, in Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd21., the Court held that
arbitral awards must contain proper, intelligible, and adequate reasoning, and the curative
purpose of Section 34(4) is to allow the Tribunal—not the court—to correct reasoning
gaps. By ignoring this procedural safeguard, the High Court trespassed into arbitrator's
domain.
19. Lastly, the High Court’s reliance on equity to grant post-award interest is also contrary
to Section 31(7)(b)22 of the Arbitration Act, which clearly provides that if no interest is
awarded, the statutory rate (2% above prevailing rates) applies. This implies that it is not
for the court to impose interest where the Tribunal has chosen not to, unless the award is
entirely silent. The Supreme Court in Century Textiles Industries Ltd. v. Deepak Jain23
also clarified that interest-related corrections by courts must be clerical in nature, not
discretionary or policy-based.
20. In conclusion, while judicial intervention to correct inadvertent or procedural lapses is
permissible, what the High Court did here was to substantively alter the commercial and
remedial balance struck by the arbitral Tribunal. This not only contravenes settled

17
Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 (India).
18
Arbitration and Conciliation Act, 1996, § 34(4).

19
Kinnari Mullick v. Ghanshyam Das Damani, (2017) 11 SCC 612 (India).
20
I-Pay Clearing Servs. (P) Ltd. v. ICICI Bank Ltd., (2022) 3 SCC 121 (India).
21
Dyna Techs. (P) Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1 (India).
22
Arbitration and Conciliation Act, 1996, § 31(7)(b).
23
Century Textiles & Indus. Ltd. v. Deepak Jain, (2022) 4 SCC 516 (India).

Memorial On Behalf of The Petitioner 17

1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

precedent and the legislative scheme of Section 34, but also undermines arbitral finality
and party autonomy. The High Court’s imposition of 18% interest was a clear overreach
and must be set aside, with the original award restor

Memorial On Behalf of The Petitioner 18

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Issue IV: Whether, in view of post-award revelations of serious fraud and public corruption,
the dispute has become non-arbitrable due to the invalidity of the underlying contract and
arbitration agreement?

21. It is humbly submitted before the Hon’ble Court that the principle of non-arbitrability
under Indian law excludes from arbitration those disputes that are inherently unsuitable for
private adjudication, particularly those involving serious fraud, public law issues, or
sovereign functions. This principle is rooted in the decisions of the Supreme Court in A.
Ayyasamy v. A. Paramasivam, (2016)24, and Avitel Post Studioz Ltd. v. HSBC PI Holdings
(Mauritius) Ltd., (2021)25, which together clarify that serious fraud is a bar to arbitration
where it either:
 vitiates the entire contract and thus the arbitration clause; or
 involves State instrumentalities and raises public law concerns.
22. These principles were reaffirmed and systematized in Vidya Drolia v. Durga Trading
Corpn., (2021)26, which laid down a four-fold test to identify non-arbitrable disputes. The
Court clarified that:
 Where a contract is obtained by fraud,
 Where sovereign or public interest functions are involved,
 Where rights in rem are implicated, or
 Where statutes exclude arbitration either expressly or by implication,
 then the matter must be resolved by courts and not arbitral tribunals.
23. While these cases primarily deal with pre-reference or contemporaneous objections to
arbitrability, they do not bar the Supreme Court, under Article 136, from entertaining
a plea of non-arbitrability post-award, especially where material facts emerge after the
award is made which cast doubt on the validity of the contract and the arbitration
agreement itself.

24
A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386 (India).
25
Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713 (India).
26
Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 (India).

Memorial On Behalf of The Petitioner 19

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

24. The arbitral award in question was rendered on 15.06.2024 in favor of BBCL, arising out
of a Concession Agreement for the Kings Road Project executed between BBCL and
NHAI. The High Court, in proceedings under Section 34 of the Arbitration and
Conciliation Act, upheld the award (with minor modification) on 05.12.2024.
25. However, subsequent to the award, grave developments came to light that were not and
could not have been part of the arbitration proceedings. A leaked dossier from
Fredreshian intelligence revealed that several high-ranking government officials involved
in the award of the contract—Mr. Peter Russo (then NHAI Chairman) and Ms. Zoe Barns
(Ministry Secretary)—held large offshore accounts in the Iron Bank of Quarth, along
with BBCL’s CEO. These individuals later died under suspicious circumstances, and
BBCL executives were arrested on charges of bribery, criminal conspiracy, and abuse
of public office.
26. Critically, these revelations suggest that the very Concession Agreement and hence the
arbitration clause embedded within it, may have been procured through fraud and
illegal influence—a circumstance that fundamentally calls into question the
jurisdiction of the arbitral tribunal and the validity of the award, regardless of its
procedural finality.
27. The petitioner submits that the entire Concession Agreement, including the arbitration
clause, stands tainted by fraud. The tribunal never had jurisdiction to arbitrate the dispute,
because it was founded on an illegitimate, fraudulently obtained contract. As held in
Avitel and Vidya Drolia, where serious fraud permeates the origin of the contract,
arbitration cannot proceed.
28. The objection to arbitrability, though raised post-award, arises not from a procedural
defect or a belated tactical challenge, but from newly discovered facts that go to the root
of the tribunal's jurisdiction. The High Court’s affirmation of the award, made in
ignorance of these developments, cannot be held to conclusively settle the matter.
29. Furthermore, under Article 13627 of the Constitution, the Supreme Court has the
extraordinary power to correct grave errors of law and intervene where justice so
demands. When evidence of a criminal conspiracy to defraud the public exchequer,

27
The Constitution of India, art. 136.

Memorial On Behalf of The Petitioner 20

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

involving public officials and private contractors, emerges after adjudication, a rigid
adherence to the procedural finality of arbitration would defeat the ends of justice.
30. This case is factually and legally distinguishable from a routine commercial delay dispute.
The seriousness of the fraud, the public interest dimensions, and the criminal liability
involved require a full-fledged judicial inquiry. Arbitration, as a consensual, private
process, cannot and must not be used to whitewash systemic fraud or abuse of public
authority. This is particularly true where State resources and sovereign contracting powers
are allegedly manipulated for personal gain.
31. In light of the serious post-award revelations indicating that the contract itself may have
been procured by fraud, corruption, and conspiracy, the arbitral award rendered on
15.06.2024 cannot be allowed to stand. The dispute falls squarely within the non-
arbitrable categories outlined in Vidya Drolia, Avitel, and Lindsay International, and is
fundamentally a matter requiring judicial scrutiny under public law.
32. The petitioner therefore respectfully prays that this Hon’ble Court, exercising its
extraordinary jurisdiction under Article 136 28, declare that the arbitrability of the
dispute was vitiated by post-award revelations, that the Concession Agreement is under
serious legal doubt, and that the arbitral award and the High Court’s confirmation
thereof be set aside, with liberty to the parties to resolve the matter through appropriate
judicial proceedings.

28
The Constitution of India, art. 136.

Memorial On Behalf of The Petitioner 21

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

Issue V: Whether the Award is liable to be set aside as being against the public policy of
Industria?
33. It is humbly submitted before the Hon’ble Court that under Section 34(2)(b)(ii)29 of the
Arbitration and Conciliation Act, 1996, an arbitral award may be set aside if it is in conflict
with the public policy of India, which applies pari materia to Industria. As held in
Renusagar Power Co. Ltd. v. General Electric Co.30, this includes violations of the
fundamental policy of Indian law, justice or morality, or the interests of the country.
This was significantly expanded in ONGC Ltd. v. Saw Pipes Ltd.31, where the Supreme
Court ruled that even patent illegality in an award would render it against public policy.
Further, in Associate Builders v. DDA32, the Court clarified that while judicial review of
arbitral awards must be narrow, it is still available where the award is so perverse or
arbitrary that it “shocks the judicial conscience.”
34. In addition, under Sections 12(1)(b)33 and 12(5)34 of the Arbitration Act, read with the
Fifth and Seventh Schedules introduced by the 2015 Amendment Act, arbitrators must
disclose any circumstances that raise justifiable doubts about their impartiality. A person
whose relationship falls under the Seventh Schedule is per se ineligible to act as arbitrator.
Non-disclosure of such circumstances or appearance of bias is a procedural illegality that
also makes the award susceptible to challenge under Section 34(2)(a)(v)35 and Section
34(2)(b)(ii)36.
35. The award dated 15.06.2024 directed NHAI to reinstate the concession agreement with
BBCL and compensate for idling costs and price escalation. However, serious revelations

29
Arbitration and Conciliation Act, 1996, § 34(2)(b)(ii).

30
Renusagar Power Co. Ltd. v. Gen. Elec. Co., 1994 Supp (1) SCC 644 (India).
31
Oil & Nat. Gas Corp. Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 (India).

32
Associate Builders v. Delhi Dev. Auth., (2015) 3 SCC 49 (India).

33
Arbitration and Conciliation Act, 1996, § 12(1)(b).
34
Arbitration and Conciliation Act, 1996, § 12(5).
35
Arbitration and Conciliation Act, 1996, § 34(2)(a)(v).
36
Arbitration and Conciliation Act, 1996, § 34(2)(b)(ii).

Memorial On Behalf of The Petitioner 22

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

emerged after the award, raising grave concerns about the integrity of the contract and
the arbitration process itself. BBCL’s CEO and directors were arrested on charges of
bribery, conspiracy, and money laundering, involving offshore deposits in the Iron
Bank of Quarth—a jurisdiction known for banking secrecy. Two top officials—Peter
Russo (NHAI Chairman) and Zoe Barns (Ministry Secretary)—were found with
similar accounts and later died under suspicious circumstances.
36. Critically, the sole arbitrator, Mr. Peter Baelish, a retired judge, opened an account in the
same foreign bank five days after passing the award. This was never disclosed before or
during the arbitration, despite mandatory obligations under Section 12. The timing and
nature of this financial link create a strong appearance of bias and call into question the
procedural fairness of the entire proceeding. These revelations were not available during
the arbitration or the Section 34 challenge and raise credible doubts about both the award
and the contract's legitimacy.
37. NHAI submits that the arbitral award is squarely against the public policy of Industria on
multiple, reinforcing grounds. First, the award is vitiated by the arbitrator’s failure to
disclose material circumstances under Section 12(1)(b)37 and 12(5)38, namely his financial
entanglement with a suspect foreign bank amid ongoing corruption involving parties to the
arbitration. This breach of impartiality and transparency violates the procedural integrity
of the arbitration and independently renders the award liable to be set aside under Section
34(2)(a)(v).
38. Second, the revelations indicate that the very Concession Agreement may have been
obtained through corruption and criminal conspiracy, meeting the test of serious fraud as
laid out in Avitel Post Studioz v. HSBC and Vidya Drolia v. Durga Trading Corpn. Fraud
that goes to the root of the contract—and not just performance—is a bar to arbitration and
makes the dispute non-arbitrable, even post-award. In this case, the financial trails,
concealment, and suspicious deaths of key officials paint a disturbing picture of systemic
fraud, which private arbitration cannot properly address.

37
Arbitration and Conciliation Act, 1996, § 12(1)(b).
38
Arbitration and Conciliation Act, 1996, § 12(5).

Memorial On Behalf of The Petitioner 23

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

39. Third, the award’s direction to reinstate the contract and compensate BBCL effectively
rewards parties implicated in fraud and misconduct, thereby violating the fundamental
policy of law, morality, and the interest of the state. The Supreme Court in ONGC v. Saw
Pipes and Associate Builders held that such awards must be annulled. Given the public
funding and infrastructure implications of the Kings Road Project, the arbitral award
threatens the integrity of public contracting, thereby shocking the conscience of the court.
40. In view of the above, the arbitral award is liable to be set aside under both Sections
34(2)(a)(v)39 and 34(2)(b)(ii)40. It was rendered in proceedings that were procedurally
tainted by non-disclosure and bias, and substantively flawed by failing to address grave
and subsequently proven facts of fraud and corruption. Enforcing such an award would
undermine the rule of law, encourage abuse of public processes, and erode confidence in
arbitration as a neutral forum. Accordingly, the Petitioner humbly prays that this Hon’ble
Court declare the subject matter non-arbitrable and set aside the arbitral award dated
15.06.2024, thereby preserving the sanctity of justice and public confidence in institutional
adjudication.

39
Arbitration and Conciliation Act, 1996, § 34(2)(a)(v).
40
Arbitration and Conciliation Act, 1996, § 34(2)(b)(ii).

Memorial On Behalf of The Petitioner 24

 1st DR. JUSTICE RADHABINOD PAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2025

PRAYER

In light of the arguments advanced and the authorities cited, the Prosecution requests this Hon’ble
Court to declare that:

I. Hold that the Special Leave Petition filed by the Petitioner is maintainable under Article
136 of the Constitution of Industria, despite the existence of a statutory remedy, in view of
exceptional circumstances and substantial questions of law;
II. Set aside the judgment dated 24.06.2024 passed by the Hon’ble High Court of Dragonstone
in ARB. PET. 204 of 2024, and consequently set aside the arbitral award dated 15.06.2024
passed by the Sole Arbitrator;
III. Declare that the High Court erred in law in upholding the award in respect of termination
and damages, and further erred in modifying the award to allow interest, thereby exceeding
the jurisdiction conferred under Section 34 of the Arbitration and Conciliation Act, 1996;
IV. Hold that the dispute is non-arbitrable in view of serious post-award revelations of fraud,
corruption, and public law implications affecting the validity of the Concession Agreement
and the arbitration clause therein;
V. Hold that the arbitral award is vitiated by bias, non-disclosure, and fraud, and is therefore
in violation of the public policy of Industria, making it liable to be set aside under Section
34(2)(a)(v) and 34(2)(b)(ii) of the Arbitration and Conciliation Act, 1996;
VI. Pass such further or other orders as this Hon’ble Court may deem fit in the interest of
justice, equity, and good conscience.

And/ or pass any other or further order(s) as this Hon’ble Court may deem fit and proper in the
facts and circumstances of the case.

All of which is humbly submitted on behalf of the Petitioner.

Sd/-

Place: Industria

Dated: Counsel for Petitioner

Memorial On Behalf of The Petitioner 25