TEAM CODE – OC-23

NHRC-GNLU NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE SUPREME COURT OF OMBERLANDS

MEMORANDUM FILED ON BEHALF OF RESPONDENTS

COUNSELS APPEARING ON BEHALF OF RESPONDENTS

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………….……………….……...P. 3

STATEMENT OF JURISDICTION………………………………………………....…....P. 6

STATEMENT OF FACTS…………………….…………………………….…………......P. 7

STATEMENT OF ISSUES...………….……………………………………….……..........P. 9

SUMMARY OF ARGUMENTS………………………………………….……....…..........P. 10

ARGUMENTS ADVANCED……..……………...………….…………………………......P. 11
1. Whether the instant appeal is maintainable before the Hon’ble Avalon
Competition Law Appellate Tribunal or not?..............................................................P. 11
2. Can shooting up of price could tantamountly mean being in “Dominant Position”
and that would presume abuse of dominant position by the Gollum Paper Mills?......P. 16
3. Whether assessing the “appreciation of evidence” and evaluating the standard
for penalizing the party is within the parameters of law and in compliance with
the principle of natural justice?....................................................................................P. 20
4. Whether acquiring the asset of Gollum by Bain Industries results in being
“Super Dominant” and that to cause “appreciable adverse effect on the market”?.....P. 24

PRAYER…………………………….......…….….…………………..……………………....P.29

INDEX OF AUTHORITIES

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A. STATUTES REFERRED:
1. The Constitution of India, 1950 [Act No. 12 of 2003]
2. The Citizenship Act, 1955 [Act No. 3 of 1930]
3. Foreigners Act, 1946 [Act No. 9 of 1872]

B. TABLE OF CASES:

Sl. TABLE OF CASES Pg

No. No.
1. AKZO Chemie BV v. Commission, 1991 ECR I-3359, ¶60 (ECJ) 17, 12
2. Allarakha K. Mansuri v. State of Gujurat, (2002) 3 SCC 57 11
3. American Tobacco Co. et al v. United States, 328 US 781 16
4. Bowes v Shand, (1877) 2 AC 455: (1874-80) All ER Rep 174 (HL) 23, 22
5. BPB Industries Plc v. Commission [1993] ECR-II 385 17
6. Brown Shoes Co. V United States, 370 US 294 25
7. CBEM V. CLT AND IPB (1985) ECR 3261 19
8. China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd, AIR 1961 SC 22
1925
9. Container Line AB v. Commission, 2003 ECR II-3275, ¶907 12
10. Davis Contractors Ltd v Fareham Urban Distt Council, 1956 AC 696, 715: 23
(1956) 3 WLR 37: (1956) 2 All ER 145 (HL)
11. FTC V. Morton Salt 334 US 37 17
12. GKB Hi Tech Lenses Pvt. Ltd. v. Transitions Optical India Pvt. Ltd., Case No. 13
01/2010, ¶84.16 (CCI)
13. Hilti AG v. Commission, 1991 ECR II-1439, ¶92 17
14. HiltiAktiengesellschaft v. Commission, 1991 ECR II-1439, ¶92 12
15. Hitkari Motors v Attar Singh, AIR 1962 J&K 10 22
16. Jet Airway (India) Limited and Eithad Airways PJSC, C- 2013-05-122 Order 15
121113
17. Megan v Updike Grain Corpm, 94 F 2d 551(1938) 23
18. Mersey Steel Co. v Naylor & Co, 1884) 9 AC 434) 21
19. Michelin v. Commission [1983] ECR 3461/[1985] 1 CMLR 282 17
20. Motilal v The Netha Coop. Spinning. Mills Ltd, AIR 1975 A.P. 169) 22
21. Peeco Hydraulic (P) Ltd v East Anglia Plastics ( India) Ltd, (1987) 0 CALLT 551 22
HC, 92 CWN 453
22. Sachindra Nath v Gopal Chandra. AIR 1949 Cal 240 23
23. SaurabhTripathy v. Great Eastern Energy Corporation Ltd., Case No. 63/2014, 13, 17
¶18 (CCI)
24. Travancore Devaswom Board v Thanath International, (2004) 13 SCC: (2004) 23
25. United Brands v Commission [1978] ECR 207, [1978] 1 CMLR 429. 16
26. United States v. United States Steel Corporation et al 251 US 417 27

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C. BOOKS REFFERED:
1. Competition Law by Dr. Ashok K. Jain, 1st edition 2016, Ascent Publications.
2. Competition Law by Abir Roy and Jayant Kumar,
3. Competition law by Dr. S. C. Tripathi, 2017 edition, Central Law Publications.
4. Competition Law and Practice by D.P. Mittal, 3rd edition, Taxmann Publications.
5. Guide to Competition Law by SM Dugar, 5th edition 2010, LexisNexis.
6. Competition Law by Richard Whish & David Bailey, 6th edition, Oxford.
7. EU Competition Law by Alison Jones & Brenda Sufrin, 4th edition, Oxford.
8. Contract and Specific Relief by Avtar Singh, 12th edition, Eastern Book Company.
9. Law of Contract and Specific Relief by Hiamanshi Mittal, 2011 edition.
10. Sale of Goods Act by Dr. Ashok K. Jain, 2015 edition, Ascent Publications.
11. Sale of Goods Act by R.K. Bangia, 9th Edition, Allahabad law Agency.

D. JOURNALS AND REPORTS:

Journal of Competition Law & Economics, Volume 14, Issue 3, Oxford University Press.

E. DATABASES AND WEBSITES:

1. LexisNexis [www.lexisnexis.com]
2. Manupatra [www.manupatra.com]
3. SCC Online [www.scconline.co.in]
4. Indian Kanoon [www.indiankanoon.org]

F. LIST OF ABBREVIATIONS:
SL. NO. ABBREVIATIONS EXPANSION
1. & And
2. ¶ Paragraph
3. AAEC Appreciable Adverse Effect on Competition
4. ACLAT Avalon Competition Law Appellate Tribunal
5. AIBC Avalon Insolvency and Bankruptcy Code
6. AIR All India Reporter
7. ANR. Another
8. Art. Article
9. CCA Competition Commission of Avalon
10. CCI Competition Commission of India
11. Co. Company
12. COC Committee of Creditors
13. COMPAT Competition Appellate Tribunal
14. DG Director General

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15. EC European Commission

16. ECJ European Court of Justice
17. Etc. Etcetera
18. EU European Union
19. Hon’ble Honourable
20. Ltd. Limited
21. ORS. Others
22. PG. Page
23. SC Supreme Court of India
24. Sec. Section
25. The Act The Competition Act,2002
26. U.S. United States
27. USSC Supreme Court of the United States
28. Vs. Versus
STATEMENT OF JURISDICTION

THE RESPONDENTS, HAVE THE HONOUR TO SUBMIT THIS MEMORANDUM IN

RESPONSE TO THE APPEALS PREFERRED BY THE APPELLANTS IN BOTH THE
APPEALS BEFORE THE HON’BLE AVALON COMPETITION LAW APPELLATE
TRIBUNAL, UNDER SECTION 53B1 OF COMPETITION ACT, 2002.

1
53B Appeal to Appellate Tribunal. —

(1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by
any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate
Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of
the direction or decision or order made by the Commission is received by the Central Government or the State
Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such
form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it
within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal,
an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the
direction, decision or order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the
appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the
appeal.

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THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

STATEMENT OF FACTS

1. Omberlands is a quasi-federal structure with 25 states and is home to some of the oldest
civilizations and has attracted a lot of foreign invaders and migrants, some of which have
eventually settled in various parts of the country. The laws of Avalon are in pari materia with
the laws of India and the Avalon Courts often refer to decisions of Courts, Tribunals, and
Commissions in India which have high persuasive value in Avalon and also gives due regard
to the competition regulators of the European Union and the United States
2. Shadowfax Industries is a leading printing and publishing house in Avalon. In 2011,
Shadowfax ventured into paper manufacturing and raised its production capacity to 14,000
MTPA second to Gollum Paper Mills’ total capacity of 24,000 MTPA. In 2014, the paper
production unit of Shadowfax went through an insolvency process and was acquired by Bain
Industries. Shadowfax started procuring paper for its printing business from other suppliers in
the market, including Gollum. In November 2017, Shadowfax placed an order for about 4000
MTs of a special quality glazed paper to be supplied in 4 tranches over the course of six
months. Meanwhile, Shadowfax had won a contract for Ostrich Publications’ global
assignments.
3. Gollum supplied the first tranche of 1000 MTs of glazed paper in 15 days. On 9 December,
2017, Gollum informed Shadowfax about a breakdown in the machinery at one of their plants
causing some delay in subsequent supplies. However, they were willing to divert supplies
from their other production facilities to meet Shadowfax’s order but with an increased price of
1.5 times the original price.

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4. Shadowfax filed an Information before the CCA alleging abuse of dominant position by
Gollum for demanding exorbitant prices and refusal to supply paper to Shadowfax, which
amounted to a violation of Section 3 of the Competition Act. Also, Shadowfax informed CCA
about its termination of contract by Ostrich Publications due to delayed supplies and sub-
standard quality. Ostrich also invoked the arbitration proceedings against Shadowfax for
violation of contractual terms and instituted claims for damages. The CCA found that there
was a prima facie case of contravention of the Competition Act, and directed the Director
General to investigate the matter.
5. The DG in its investigation found as follow:
a) There was a long breakdown in one of the units of Gollum causing huge loss. Gollum
submitted that he was listed as defaulter due to continuous breakdown of machinery and
inability to pay debts.
b) Gollum’s claim of freight charges was held insignificant by the DG as a cause of increasing
price.
c) Further, the DG found that Gollum could have easily started production of this special
quality glazed paper at any of its other units at a minimal additional cost.
d) The agreement between Shadowfax and Gollum contained a price variation clause
consisting of a condition of ‘unforeseen circumstances’. Shadowfax had agreed to the terms
of the agreement as they were in dire need of glazed paper which could have only been
supplied by Gollum.
e) Further found, Shadowfax had reached out for price quotations to at least three other small
paper mills, including Frodo Paper Mills who had assured that they will be able to develop
the capacity to meet Shadowfax’s requirement through imports.
6. The DG in its report held Gollum to be dominant in the relevant market and found them to be
liable for charging exorbitant prices charging them under Section 3 and 4 of the Competition
Act and imposed a penalty amounting to 6 percent of Gollum’s average turnover for the
preceding three years.
7. During the insolvency process of Gollum, Bain presented its resolution plan for acquisition of
the assets of Gollum before the Committee of Creditors of Gollum, making it a combination
under the Act. Bain had to obtain approval of the CCA prior to approval by the COC. The
approval of the resolution plan was halted till Bain had obtained CCA’s approval.

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8. Bain filed a notice under Section 6 of the Competition Act before the CCA for seeking
approval of their proposed acquisition of Gollum. Shadowfax opposed the proposed
acquisition and submitted that the combined entity of Bain and Gollum would become super
dominant in the market. However, the CCA proceeded to approve the combination.
9. Gollum filed an appeal before the Appellate Tribunal against the order of the CCA penalizing
it for abuse of dominance. Shadowfax filed an appeal before the ACLAT against the CCA’s
order approving the acquisition of Gollum by Bain, stating it to be anti-competitive. The
ACLAT decided to club the two appeals and has listed both for final hearing on
maintainability as well as merits.
STATEMENT OF ISSUES

The following question of law arises for the consideration before the Hon’ble Supreme Court of
Omberlands

I: Whether the following petition can be hit by the doctrine of laches

II: Whether Section 6A of Omberlands Citizenship Act is considered unconstitutional

2.1 Whether Section 6A is ultra-vires to the Constitution of Omberlands
2.2 Whether the amendment of Section 6A is valid as passed on the basis of agreement

III: Whether Section 3 of Omberlands Citizenship Act is to be held unconstitutional on the basis
of granting citizenship to children born to atleast one illegal immigrant of Omberlands

IV: Whether the Republic of Omberlands is to be held liable for compensation for committing a
breach on other provisions of the 1999 Tripartite Agreement

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SUMMARY OF ARGUEMENTS

1. The council would like to submit that the appeals filed by Gollum and Shadowfax is not
maintainable under section 53B of the Competition Act of Avalon, 2002 before the Competition
Appellate Tribunal and the orders given by the Competition Commission of Avalon shall sustain.

2. In the present case the council humbly submits that the Gollum Industries have abused its
dominant position under section 4 of the Competition Act of Avalon, 2002 and has made an
agreement with Shadowfax which is anti-competitive in nature under section 3 of the
Competition Act of Avalon, 2002. The Competition Commission of Avalon found that there was
a prima-facie case of contravention of the Competition Act and directed the Director General to
investigate the matter. After hearing both the parties the CCA agreed with the Director General
and found that Gollum has abused its dominant position by charging exorbitant prices. Further it
was held that the agreement between Shadowfax and Gollum was anti-competitive in nature.

3. The penalty imposed by the Competition Commission of Avalon on Gollum Industries under
section 27(b) is justified as the CCA found the Gollum Industries to be in contravention of
section 3 and section 4 of the Competition Act of Avalon, 2002. The penalty was exercised on
Gollum Industries after assessing the appreciation of all the evidence submitted and accordingly
the standard for compensating the party was evaluated.

4. The counsel would humbly like to submit that the combined entity of Gollum and Bain would
not result in being super-dominant and it would not create appreciable adverse effect under the
relevant market. After evaluating the factors that determine AECC under section 20(4) of the
Competition Act of Avalon 2002 the CCA approved the combination unconditionally and the
order of CCA shall sustain.

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ARGUMENTS ADVANCED

ISSUE I: Whether the following petition can be hit by the doctrine of laches

It is humbly submitted before this Hon’ble Court that the Petition W.P. (C) No. 23/2019
submitted is not maintainable as per the Doctrine of Laches, wherein it has been stipulated that
the suit may be filed not more than a period of three years since the date of occurrence of the
incident in question. It is brought to the notice of this Hon’ble Court that the said Petition has
been filed in 2019 i.e. 10 years after the Tripartite Agreement and inclusion of Section 6A in the
Constitution of Omberlands.

In Tilokchand Motichand v. H.B. Munshi2, a Constitution Bench was asked to decide on the
Constitutional validity of Section 12A(4) of the Bombay Sales Tax Act. The precise ground for
challenge was a violation of Article 19(1)(f) of the Constitution. A majority of three out of five
Judges held that the petition was hit by the doctrine of laches3 and hence dismissed the petition.

It is clear from a reading of these differing judgments that the ratio of this Constitution bench
judgment can broadly be stated to be that a writ petition filed Under Article 32 can be dismissed
on the ground of delay.

Another judgment in Rabindranath Bose and Ors. v. Union of India and Ors. 4, a fervent plea
was made to reconsider the judgment in Tilokchand Motichand. This plea was turned down and
it was held that a stale claim of 15 years to challenge appointments and promotions already made
without any explanation for so moving after 15 years would result in dismissal of an Article 32
petition, more so when rights had accrued to the Respondents in that case.

2
MANU/SC/0127/1968 : (1969) 1 SCC 110
3
https://legaldictionary.net/doctrine-of-laches/
4
MANU/SC/0506/1969 : (1970) 1 SCC 84

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In Ramchandra Shankar Deodhar v. State of Maharashtra 5, a Constitution Bench was invited

to dismiss a petition filed Under Article 32 on the ground of laches. The Petitioner having
approached the court after a delay of at least eight years, the Court held that barring a writ
petition containing stale claims is not a rule of law but a rule of practice based on sound and
proper discretion.

In Express Publication (Madurai) Ltd. v. Union of India 6, the employer newspaper wished to
challenge paragraph 80 of the Employees Provident Fund Scheme, 1952, which came into force
in 1956. The challenge was made in a writ petition Under Article 32, 45 years later in 2001. This
was turned down by a Bench of two Judges with a caveat, that if it was the case of the Petitioners
that with the passage of time, a certain provision had become unconstitutional, then obviously
the very passage of time would not amount to delay for which a writ petition would not be
entertained.

Similarly in T.K. Dingal v. State of West Bengal7, a Bench of two Judges held that there is no
upper and no lower limit when it comes to an Article 32 petition. It all depends on the breach of
the particular fundamental right, the remedy claimed, and how the delay arose. On facts, the
petition was turned down as there was an unexplained delay of ten years.

It is therefore contended, based on the stipulations of the Limitations Act,1963 and The above
stated precedent judgements, that the said Petition is not maintainable in this Hon’ble Court and
deserves to be dismissed on such grounds.

ISSUE II: Whether Section 6A of Omberlands Citizenship Act is considered unconstitutional

2.1 Whether Section 6A is ultra-vires to the Constitution of Omberlands
2.2 Whether the amendment of Section 6A is valid as passed on the basis of agreement

It is humbly submitted to this Hon’ble Court that Section 6A of the Omberlands Citizenship Act
is not ultra vires to the Constitution of Omberlands.

A brief background of the history of the matter is as below :

5
MANU/SC/0391/1973 : (1974) 1 SCC 317
6
MANU/SC/0213/2004 : (2004) 11 SCC 526
7
MANU/SC/8382/2008 : (2009) 1 SCC 768

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1. The state of Aurom is rich in natural resources and one of the largest rivers of Omberlands,
Nihel, flows through it. As per the historical records available, going as far back as in the 2nd
century AD, Aurom was ruled and inhabited by the Auro race. The Auro people have had
language and customs that has made them culturally distinguishable from the other people in
and around the Omberlands region. Aurom, like the rest of Omberlands, was invaded and also
colonized during different periods in history. There have also been instances of marriages
between the Auro and Mumbarian people. However, the Auro people have managed to
preserve their distinct culture all throughout, and they voluntarily decided to be part of
Omberlands when it attained independence from the colonial rule.

2. While there was a negligible rate of incursions by Mumbarians into Aurom earlier, the major
illegal incursions in thousands by Mumbarians began in 1990, during their war for
independence from the United Provinces of Balian whose armed forces committed severe
atrocities on the local Mumbarian populace. The Government of Omberlands decided to
provide food and shelter to the Mumbarian refugees, in keeping with human rights values and
to support humanity. This was to be a temporary measure with the Omberlands Government
stating that the Mumbarian refugees would be deported back to Mumbaria once the situation
became conducive for their return.

3. Over the next few months, millions of Mumbarians illegally entered the state of Aurom in
Omberlands through its porous borders. Although some of the refugees were taken to the
temporary camps set up by the Government of Omberlands, most of them mingled with the
local population and started making their own settlements in Aurom.

4. Although Mumbaria became an independent nation in 1991 putting an end to the persecution
of Mumbarians, the migration in Aurom continued. Reports stated that a lot of Mumbarians
had also obtained land and employment in Aurom and other neighbouring states on the basis
of some forged and fabricated documents showing them as citizens of Omberlands.

5. In December 1998, several local organisations in Aurom, led by the Auro Youth United started
protesting against the governments of Omberlands and Aurom, alleging that the governments
were deliberately not taking effective measures to detect and deport the immigrants as most of
them had managed to get their names on to the voters’ lists and the governments therefore,
wants to ensure their support in the elections. By January 1999, thousands of Auro people

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took to the streets demanding detection and deportation of Mumbarians who had illegally
entered Aurom and were staying in the state. The protestors claimed that the continued illegal
immigration in Aurom has not only affected the culture of the Auro people, who face a threat
to be reduced to a minority in their own land, but has also adversely affected their access to
natural resources, opportunity of education and employment, and the law and order situation
in the state. The protests often grew violent resulting in serious loss of life and property.

6. The threat to the centuries old traditions, language and customs of the Auros’ is genuine and
has been propagated by the influx of the foreign Mumbarians in hordes of millions thereby
reducing the Auros’ to a status of minority in their own state.

The respondents hereby submit that keeping in view the history of the matter and the current
situation prevailing, the following points were deliberated and legislated upon, in consonance
with the Constitution of Omberlands, before arriving at the formulation of Section 6A :

1. Eroding of the Cultural Heritage, traditions and language of the Auros :

Heritage is the identity of a state8. It features a belonging to the culture of a particular

society, such as traditions, languages, or buildings that were created in the past and still have
historical importance9. Cultural and natural heritage of outstanding universal value is the
common heritage of humanity. Everyone’s cultural right and right to quality environment are
recognized by Human Rights law10 . Right to development as an inalienable human right
includes cultural well being11 . Preservation of heritage, however formidable it may appear,
is an inevitable responsibility.

The Preservation of National Heritage is a duty imposed by the Constitution of Omberlands

(which is parimateria with the Constitution of India) under Article 51 A, Fundamental
Duties, - Article 51 A (f) - ‘It shall be the duty of every citizen of India to value and preserve
the rich heritage of our composite culture12.’ Fundamental Duties are mandated provisions of
the Constitution. It is a duty imposed upon every citizen.
8
Heritage – definition, Merriam – Webster Dictionary
9
Heritage – definition, Cambridge English Dictionary
10
Universal Declaration of Human Rights 1948, International Covenant on Civil & Political Rights 1966,
International Covenant on Economic, Social & Cultural Rights 1966, U. N. Declaration on Right to Development
1986.
11
Ibid 3
12
P.M. Bakshi, The Constitution of India

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The cultural heritage and ethos of the Auros’ was clearly under threat due to the illegal
immigration and settlement of millions of Mumbarians.

2. Reduced access to the rich local natural resources to the Auros:

Life, livelihoods, culture and society, are fundamental aspects of human existence - hence
their maintenance and enhancement is a fundamental human right. Destruction of
environment and thereby of the natural resources, is therefore, a violation or leads to the
violation of human rights - directly by undermining the above aspects of human existence,
or indirectly by leading to other violations of human rights, for example through social
disruption, conflicts and even war. Conversely, human rights violations of other kinds can
lead to environmental destruction, for instance, displacement by social strife/war can cause
environmental damage in areas of relocation; or breakdown in sustainable common property
management. The manifestations of such violations present themselves through a loss of
access to clean air and water; loss of access to productive land; loss of energy sources and
biomass; loss of food and health security; social and economic marginalization; and physical
displacement. Several hundred million people have been increasingly forced to live far
below the minimum levels required for a decent human existence, deprived of adequate
water, food, clothing, shelter and education, health and sanitation.

The drastic increase in population of the state of Aurom mainly due to the millions of
Mumbarian refugees, has placed a tremendous strain on the rich natural resources of Aurom
thereby leading to strife and violence. The Auros’ were also unable to access and harness the
rich natural resources of the state due to their forcibly reduced numbers.

Article 21 of the Omberland Constitution states: 'No person shall be deprived of his life or
personal liberty except according to procedures established by law.' Article 21 is the heart of
all other fundamental rights. Article 21 has very expansive scope and has immense content
into of with lesser words. Law is never still, it is ever evolving and ever changing
accordingly to meet the challenges of time. Therefore constitution provisions, especially
fundamental rights and in particular Article 21 has been broadly construed by the judiciary.
The court attempted to expand the reach and ambit of Article 21 rather than accentuate their

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meaning and content by judicial construction. Thus the judiciary broadened the concept of
life, extended the scope of personal liberty so as to include within itself all the varieties of
rights which go to making the personal liberties of man. Basic principles were compiled to
understand procedure established by law. The judiciary has resolved most of the
environmental cases where they considered right to good environment as fundamental for
life and upheld as fundamental right. Thus we can consider Article 21 as mandate for life
saving environment.

3. Reduced education opportunities for the Auros :

The Constitution of Omberlands has provisions to ensure that the State provides education to
all its citizens. Right to education is the only right which finds its place in three parts of our
Constitution- Fundamental Rights, Directive Principles of State Policy and Fundamental
Duties. The three articles in all these three above mentioned parts were added by The
Constitution (Eighty Sixth) Amendment Act, 2002.

The 86th amendment added Article 21-A, a fundamental right which says that- ‘The State
shall provide free and compulsory education to all children of the age of six to fourteen years
in such manner as the State may, by law, determine’.

Due to the unbridled illegal Mumbarian immigrations into Aurom, the native Auros’ right to
education was being severely hampered as also laying a tremendous strain on the state
provided educational facilities.

4. Reduced opportunities for employment in State Services for Auros :

Equal Opportunities for State Services: As per Article 16 of the Constitution, no

discrimination will be exercised against any citizen for any government employment,
appointment or post only on grounds of religion, caste, class or race. Thus, all citizens of India
can occupy any post in India however high it may be. No discrimination will be made
between a man and woman.

As millions of the Mumbarian illegal immigrants had obtained forged documents indicating
their “citizenship” of Aurom, they were illegally gaining access for State Services

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employment opportunities at the cost of the native Auros, who are the originally intended
beneficiaries of Article 16.

In the landmark Keshavanda Bharati vs State of Kerala (1973) 13 case judgment, the Supreme
Court by a majority held that Parliament can amend any and every provision of the Constitution
subject to condition that such amendment does not violate Basic Structure of the Constitution.
The answer which the court deduced was DOCTRINE OF BASIC STRUCTURE. This doctrine
implies that though Parliament has the prerogative to amend the entire Constitution but subject to
the condition that they cannot in any manner interfere with the features so fundamental to this
Constitution that without them it would be spiritless. To understand the essence of this doctrine,
Justice K.S.Hegde & Justice B.M.Mukherjea opined that the Indian Constitution is not a mere
political document, rather it is a social document based on a social philosophy. Every philosophy,
like religion, contains features that are basic and circumstantial. While the former cannot be
altered, the latter can have changes (just like the core values of a religion cannot change but the
practices associated with it may change as per needs & requirements).

It is very evident that the illegal Mumbarian immigrations and subsequent forged citizenships
have deprived the very rights of the native Auros as explicitly laid down in the Constitution of
Omberland. The Govt. of Omberland was therefore duty bound to protect the interest and rights
of its own citizens, i.e. the Auros and in order to resolve the situation, on 15th May 1999, the
Prime Minister of Omberlands entered into a Tripartite Agreement with the Government of
Aurom and Auro Youth United, which then culminated in the amendment of the Constitution of
Omberland to include Section 6A.

Thus it is humbly submitted before this Hon’ble Court that Section 6A was legislatively and
legally inducted into the Constitution to protect the Constitutional Rights of the Auros and
therefore cannot be considered as ultra vires to the Constitution as it is allied to the Doctrine of
Basic Structure of the Constitution.

ISSUE III: Whether Section 3 of Omberlands Citizenship Act is to be held unconstitutional on

the basis of granting citizenship to children born to atleast one illegal immigrant of Omberlands

13
AIR 1973 SC 1461

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After receiving the report and hearing both the parties, the CCA held Gollum to be in
contravention of Section 3 and Section 4 of the Competition Act, 2002.

Sec 27(b) of the Competition Act, 2002 imposes penalty which shall not be more than ten
percent of the average turnover for the last three preceding financial years in case of
contravention of Sec 3 and Sec 4 of the Act. Under this Section, CCA imposed a penalty on
Gollum amounting to 6 percent of Gollum’s average turnover for the preceding three years. The
above penalty was exercised on Gollum after assessing the appreciation of all the evidence
submitted and accordingly the standard for compensating the party was evaluated.

3.1 Examination of DG Report.

CCA under Sec 41(1) of the Competition Act, 2002 provides DG with the power of investigating
into any contravention of the provisions of this Act. The CCI is not bound by the findings in the
report of the DG, it is obligatory for the CCI to refer the matter for investigation to the DG and
seek investigation report once it forms a prima facie opinion that a case of infringement of Sec 3
and Sec 4 has occurred. After conducting the inquiry, The DG in its report had found Gollum to
be dominant in the market, abusing its position and charging exorbitant prices. The elements
found in the report were strong enough to validate the report. There was a clear case of charging
exorbitant price in the name of freight charges but it was held to be insignificant as the charges
of transportation cannot be great enough to increase the original price to 1.5 times more. Further,
If Gollum’s other units of production had the capacity to produce the special quality Glazed
paper then it should have done so with minimum additional cost and without any unnecessary
delay.
This makes a clear case of penalizing Gollum for the contravention of Sec 3 and Sec 4 of the Act.
3.2 Section 38 of Sales of Goods Act & Consumer Protection Act.
It particularly deals with Instalment Deliveries. Instalment deliveries.—Sec 38(1) says that
unless otherwise agreed, the buyer of goods in not bound to accept delivery thereof by
instalments and in this case, the agreement between Gollum and Shadowfax provides for
instalment deliveries of special quality glazed paper supplied in 4 tranches over the course of six
months.

Where the contract for the sale of good provides for instalments deliveries which have to be
separately paid for, the problem arises as to what should happen if the seller fails to deliver an

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instalment or delivers defective goods in one instalment? Does the breach by the seller in respect
of one or more instalments amount to a breach of only a part of the contract or the whole of it?
Sec 38(2) says that it is a question of fact, in each case depending on the terms of contract and
the circumstances of the case, whether the breach of contract is a refusal of the whole contract or
whether it is a severable breach giving rise to a claim for compensation.

Two factors are to be kept in mind while assessing the above question.
1. The quantitative proportion which the breach bears to the whole contract. It means that if the
failure of the performance of a part of the contract goes to the root of the contract it maybe be
considered to be a breach of whole of it, but if the contract is a severable one and the failure to
perform a part of it is not going to affect the performance of the remaining one, then it should be
considered to be a breach only in respect of that part. (Mersey Steel Co. v Naylor & Co )14

If the first factor is considered, then Gollum’s breach fulfils both the aspects. The failure of
providing the second tranche of 1000 MTs of glazed paper not only has an effect on second part
but also to the entire contract. Delay in fulfilling the second installment delivery amounted to the
breach of second part, but also due to this failure, there would have been an obvious delay in
subsequent deliveries. As a result of which, there would be delay of the entire contract. But since
it’s a severable contract, CCA weighed the breach only on the second part and has imposed the
penalty accordingly.
2.The degree of probability of repetition of the breach. It would be safe to assume that the breach
performed by Gollum in respect of the second tranche of supply gives rise to the assumption that
Gollum may repeat such breach again during the further instalment of deliveries. According to
Gollum, the delay in supply of second tranche was a result of breakdown of machinery and the
entire situation went beyond his control of and was something that went against his will. But the
fact that he had other units of productions contradicts his own point. No doubt, breakdown of
machinery was not in his control but he could have avoided the breach of the contract by
immediately starting the production in his other units which he says had the capacity of
production. This displays his irresponsible behavior and establishes his intent of breach. Further,
the price variation by Gollum was not justified on the basis of transportation charges from his
production facility to Shadowfax warehouse. Thus, the entire situation could have been handled
in much ease. Yet the party chose not to. If he could attempt to make this mistake with the
14
(1884) 9 AC 434)

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knowledge, there are every chance that there may be repetition of breach. If he could breach the
contract now, chances are that he could do the same with the subsequent deliveries.
In Motilal v The Netha Coop. Spinning. Mills Ltd 15. There was a contract for the supply of 500
bales of cotton. The first instalment of 50 bales was supplied and accepted but the buyers
rejected the second instalment of 50 bales as they were adulterated with waste cotton mix, and
asked the sellers not to supply further goods. It was held that the buyer was justified in
repudiating the whole contract.
Considering the above case, Gollum too failed to supply the Glazed paper in the desired quality.
The paper provided was of sub standard quality and not upto the mark. Because of this
Shadowfax lost his agreement with Ostrich Publications and was also invoked with arbitration
proceedings by them.
3.3 In business matter time generally of essence.
Businessmen attach importance to Time. In commercial contracts time is ordinarily of the
essence of the contract.16 This is so because the business world requires certainty17 and also
because “merchants are not in habit of placing upon their contracts stipulations to which they do
not attach some value and importance. 18 Thus, in a contract to supply imported goods in October
to November19, in a contract for the purchase of chassis for a diesel truck to be supplied within
two months20 time was held to be the essence of the contract.
Sale Transactions. The courts would have to see on the facts of each case involving a sale
transaction whether time factor was essential to performance or not. In a contract of sale of
goods, the time of shipment is of the essence. There is a considerable authority in support of this
rule and it has been recognized and accepted in Bowes v Shand.21

3.4Commercial Hardship (Doctrine of Hardship)

Hardship in a contract is intended to cover cases in which unforeseen events occur in such a way
that they fundamentally alter the equilibrium of a contract resulting in an excessive burden being
placed on one of the parties involved. Hardships typically recognize that parties must perform

15
AIR 1975 A.P. 169)
16
China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd, AIR 1961 SC 1925. See also, Peeco Hydraulic
(P) Ltd v East Anglia Plastics ( India) Ltd, (1987) 0 CALLT 551 HC, 92 CWN 453.
17
Hitkari Motors v Attar Singh, AIR 1962 J&K 10.
18
Bowes v Shand, (1877) 2 AC 455, 463
19
China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd, AIR 1961 SC 1925
20
Hitkari Motors v Attar Singh, AIR 1962 J&K 10.
21
(1877) 2 AC 455: (1874-80) All ER Rep 174 (HL)

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their contractual obligations even if events have rendered performances more onerous than
would reasonably have been anticipated at the time of the conclusion of the contract.
In Sachindra Nath v Gopal Chandra22 The plaintiff let certain premises to the defendant for a
restaurant for somewhat higher rent. The defendant agreed to pay high rent because the British
troops were stationed in the town and a clause in the agreement specially provided that “this
agreement will remain in force so long as British troops will remain in this town”. After some
months, the locality was declared out of bounds to the British troops.
The question was whether this frustrated the contract; HENDERSON J held that this was not
sufficient to make out a case of frustration.
A situation like this has been described as one of the commercial hardship, which may make the
performance unprofitable or more expensive or dilatory, but is not sufficient to excuse
performance, for it does “not bring about a fundamentally different situation such as to frustrate
the venture.23 The doctrine of frustration does not apply to a situation so as to excuse
performance “where performance is not practically cut off, but only rendered more difficult or
costly.24 “Disappointed expectations do not lead to frustrated contracts”.25
After examining all the above elements and assessing all the evidence, it is clear that the standard
of compensating is well within the purview of contractual terms and that the penalty of 6 percent
of the average turnover of preceding three years is well and justified.

ISSUE IV: Whether the Republic of Omberlands is to be held liable for compensation for
committing a breach on other provisions of the 1999 Tripartite Agreement

It is humbly contended before this Hon’ble Court that the present Government of Omberlands
and the State Government of Aurom have been focused on fulfilling the commitments made in
the Tripartite Agreement despite the diplomatic and financial hurdles being posed.

22
AIR 1949 Cal 240.
23
Travancore Devaswom Board v Thanath International, (2004) 13 SCC: (2004)
24
Megan v Updike Grain Corpm, 94 F 2d 551(1938)
25
Davis Contractors Ltd v Fareham Urban Distt Council, 1956 AC 696, 715: (1956) 3 WLR 37: (1956) 2 All ER
145 (HL)

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Post Mumbaria gaining independence in 1991 and after repeated dialogues between the two
countries, the new government in the Republic of Mumbaria assured the then Government of
Omberlands that they are taking necessary steps to stop their citizens from entering Omberlands.
It also stated that they were willing to take back those persons living in Omberlands, who have
valid proof to show that they are Mumbarian citizens.

The Government of Omberlands have indicated difficulties in deporting any person unless
Mumbaria is willing to take them back- the detected illegal immigrants do not contain valid
documents proving their Mumbarian origin, and the Government is in continuous dialogue with
the Republic of Mumbaria in this regard. The Government of Omberlands also stated that
although the Agreement was signed by the then Prime Minister in his capacity as such and the
present government is not bound by the same, steps are being taken to ensure the welfare of the
Auro people. The Government is also facing difficulties in securing the riverine boundary due to
the technical complications involved in fencing etc.

However, despite the above hurdles, the Governments have definitely made progress on the
various commitments made in the Tripartite Agreement and are fully focussed on achieving
completion in order to ensure that the Auros receive and benefit their Constitutional Rights.

The Governments propose to release a white paper shortly on the status of various initiatives
launched towards fulfilling the Tripartite Agreement conditions, which will indicate the progress
on ground as well as the huge financial commitments already incurred, which would clearly
indicate the positive intent of the Governments towards the Auros.

In view of the above, it is prayed before this Hon’ble Court that the Governments have not
committed any breach of contract towards fulfilling the terms of the Tripartite Agreement and on
the contrary have been focussed on fulfilling the terms despite the diplomatic and other hurdles
being faced.

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PRAYER

Wherefore in the light of the above facts stated, issues raised, arguments advanced, contentions
submitted, legal precedents and principles cited, it is most respectfully prayed that this Hon’ble
Supreme Court of Omberlands-

(i) That, the instant case is not maintainable at the Hon’ble Appellate Tribunal of Avalon.
(ii) That, the Gollum is not to be exonerated from charges of Section 3 and Section 4 of the Act.
(iii) That the penalty of 6% imposed on Gollum shall not be struck off.
(iii) That, the combination between Gollum and Bain is not to be restricted but it is to be
allowed.

The Court may also be pleased to pass any other order/orders, or any directions which this
Hon’ble Court may deem fit and proper in the ends of justice, equity and good conscience.

And for this act of kindness, the Respondents as in duty bound shall ever humbly pray.

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ALL OF WHICH IS RESPECTFULLY SUBMITTED

Place- Omberlands S/d-

Date- 15.07.2019 (Counsel for the Respondents)

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