The Hon Ble High Court of Delhi, New Delhi

-Index of Authorities- -Respondent-

Before

The Hon’ble High Court of Delhi, New Delhi

Application No _____/2013

Athletica Ganges……………………...………………….………………………... Petitioner

Government of India.………………………...………………...... Respondent

With

Contempt Petition No _____/2013

Athletica Ganges………………………………………………………………….Petitioner

Government of India …………………………...…………..….………..……… Respondent

-Memorandum for the Respondent-

-Index of Authorities- -Respondent-

Table of Contents I

Index of Abbreviations II

Index of Authorities III

Statement of Jurisdiction VII

Statement of Facts VIII

Questions Presented XI

Summary of Pleadings XII

Pleadings and Authorities - 1 -

1. The Respondent is justified in Rescinding the Contract and Invoking Arbitration: - 1 -

1.1 The Petitioner has failed to make necessary disclosures to the Respondent: - 1 -

1.2 The Petitioner has been involved in Crimes of Financial Impropriety: - 2 -

1.3 The Respondent has not violated the Company’s trade secret rights: - 4 -

2 The Arbitral Award is not liable to be Set Aside: - 4 -

2.1 The Petitioner has accepted the jurisdiction of the Arbitrator: - 5 -

2.2 The Arbitrator is the sole judge of quality and quantity of Evidence submitted: - 6 -

2.3 The Arbitrator’s view is in keeping with the Public Policy of India: - 7 -

3 The Respondent is not Guilty of Civil Contempt of Court. - 13 -

4. The Respondent is not liable for Perjury. - 15 -

Prayer - 18 -

-Memorandum for the Respondent-

-Index of Authorities- -Respondent-

Index of Abbreviations

§ : Section

§§ : Sections

¶ : Paragraph

¶¶ : Paragraphs

A.P. : Andhra Pradesh

A.C. : Appellate Cases

AIR : All India Reporter

Anr. : Another

Bom. : Bombay

Cri.L.J : Criminal Law Journal

K.B. : King’s Bench

Mad. : Madras

n. : Note

Ors. : Others

MMDR : Mines and Minerals (Regulation

and Development) Act, 1957

SC : Supreme Court

SCC : Supreme Court Cases

Sd/- : Signed

Supp. : Supplementary

U.P. : Uttar Pradesh

U.S. : United States

-Memorandum for the Respondent-

-Statement of Jurisdiction- -Respondent-

Index of Authorities

Cases

1974] AC 113 - 11 -

A.G. v. Walt Hamstow, UDC (1895) 11 TLR 533 - 15 -

Adikanda Swain v. Emperor, AIR 1947 Pat 251, p 542; Kali Shankar Chatterjee v. Sarat Chandra Dey, (1977) Cal HCN 538 - 17 -

All India Anna Dravida Munnetra Kazhagam v. l.K. Tripathi, (2009) 5 SCC 417 - 15 -

Asgarall v. Emperor AIR 1942 Nag 80 - 16 -

Ashish Kumar Kundu v. A.K.Tandon, 1994 (4) SLR 319 - 16 -

Attorney General v. Guardian Newspapers Ltd [1988] AII ER 545 - 11 -

Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1582 - 14 -

Badat & Co v. East India Trading Co, AIR 1964 SC 538 - 13 -

Bhagwati Foundation v. Commissioner MCD, Writ Petition (C) Nos. 146 - 2 -

BSNL vs. BWL Industries Pvt. Ltd., O.M.P. 415/2003 - 7 -

BWL Ltd. v. MTNL, 2007 (4) ARB LR 398 (Delhi) - 8 -

Castrol Australian Pty Ltd v. EmTech Associated Pty Ltd, (1980) 51 FLR 184 - 11 -

Coco v. A.N. Clark Ltd, [1969] RPC 41 - 4 -

Dharmavir Singh & Ors. v. Smt. Navraj Sindhu, 1997 AIHC 259 - 15 -

Edpuganti Bapanaiah v. Sri K.S.Raju & Ors, 2007 AP High Court, Contempt Case No.915 of 2002 - 16 -

Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 - 2 -

House of Spring Gardens Point Blank, [1983] FSR 213 - 4 -

In the Matter of the Application of Federation Internationale de Basketball for a Subpoena Pursuant 28 U.S.C.S 1782 - 10 -

Initial Services Ltd v. Pueterils, [1968] 1 QB 396 - 11 -

Konrad Wiedemann Gmbh v. Standard Castings Pvt. Ltd,[1985] (10) IPLR 243 - 4 -

Krishna Bhagya Jala Nigam Ltd. v. Harishchandra Reddy, AIR 2007 SC 817 - 6 -

M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 - 11 -

Moorgate Tobacco Co Ltd v. Philips Morris Ltd, [1991] AII ER 341 - 11 -

Municipal Corporation of Delhi v. Jagan Nath Ashok, (1987) 4 SCC 497 - 7 -, - 13 -

N., J., Y., W., v. FINA, CAS 98/208 - 8 -

Narayana Panicker v. The Sub – Divisional Magistrate, Fort Coshin & Ors, 1979 Ker LT 346 - 15 -

Nisha Kanta Roy Choudhary v. Smt. Saroj Bashini Goho, AIR 1948 Cal 294 (DB) - 14 -

ONGC v. Saw Pipes, (2003) 5 SCC 705 - 7 -

Padarath Singh v. Rattan Singh, (1920) Pat 419 - 16 -

Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364 - 11 -

Queen v. Ahmed Ally, 11 WR 25, 27 - 16 -

R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 - 11 -

R.S. Joshi v. Ajit Mills Ltd, (1977) 4 SCC 98 - 3 -

Rashtriya Ispat Nigam v. Dewan Chand Ram Saran, (2012) 5 SCC 306 - 5 -, - 12 -

Ratansi Daya v. Emperor, AIR 1916 Sind 70 (2) - 16 -

Renusagar Pvt. Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644 - 7 -

S C Gupta v. Emperor, AIR 1924 Rang 17 - 16 -

S.N. Malhotra v. Airport Authority of India, 2008 (2) ARB LR 76 (Delhi) - 6 -

S.R. Bommai v. Union of India, (1994) 3 SCC 1 - 16 -

Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Govt of West Bengal, 2004 (4) CHN 602 - 15 -

Saltman Eng'g Co. Ltd. v. Campbell Eng'g Co. Ltd., [1948] 65 RPC 203 - 4 -

Shiv Raman Gour v. Madan Mohan Kanda, (1990) Cr LJ 1033 - 16 -

Shyni Varghese v State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del) - 11 -

State (NCT of Delhi) v. Navjot Sandhu, (2005)11 SCC 600 - 11 -

State of M.P. v.Ramesh C.Sharma, (2005) 12 SCC 628 - 11 -

State of Uttar Pradesh v. Allied Constructions, (2003) 7 SCC 396 - 5 -, - 12 -

Sudarsan Trading Co. v. Government of Kerala, (1989) 2 SCC 38 - 5 -

Thirupathy Kumar Khemka v. CIT, (2007) 210 CTR (Mad) 287 - 3 -

Thomas Marshall v. Guinle, [ 1979] 1 Ch 237 - 4 -

United States v. Conte, (N.D. Cal. 2004) - 9 -

USADA v. G., CAS 2004/O/649 - 9 -

USADA v. M. and IAAF, CAS 2004/O/645 - 9 -

Statutes

Indian Penal Code, 1860 - 16 -

The Arbitration and Conciliation Act, 1996 - 5 -

The Arbitration And Conciliation Act, 1996 - 13 -

The General Clauses Act, 1971 - 16 -

The Indian Evidence Act, 1872 - 11 -, - 13 -

The Prevention of Money Laundering Act, 2002 - 3 -

Rules

The 2012 Prohibited List International Standard, The World Anti-Doping Code - 9 -

The Anti-Doping Rules, The National Anti Doping Agency, India - 9 -

The World Anti-Doping Code, 2009 - 8 -

James A.R. Nafziger, ‘Circumstantial Evidence of Doping: BALCO and Beyond’, 16 Marq. Sports L. Rev. 45 (2005) - 9 -

OP Malhotra and Indu Malhotra, ‘The Law and Practice of Arbitration and Conciliation’, Lexis Nexis Butterwoerths Wadhwa, Gurgaon (2006) - 5 -

Patrick K. Thornton, ‘Sports Law’, Jones and Bartlett Publishers, (Boston) (2011) - 10 -

Henry Campbell Black, et.al, Black’s Law Dictionary, 6th Edition, p.1079, St. Paul Minn. West Publishing Company, 1990. - 14 -

Statement of Jurisdiction

The Respondent humbly submits this memorandum in response to two petitions filed before this Honourable Court, and clubbed together by the Honourable Court. The first application invokes its territorial ordinary original civil jurisdiction under section 34(1) of the Arbitration And Conciliation Act, 1996 read with section 5(1) and section 5(2) of The Delhi High Court Act, 1966. The second Contempt Petition invokes its original jurisdiction under section 11 of The Contempt of Court Act, 1971. It sets forth the facts and the laws on which the claims are based.

-Memorandum for the Respondent-

-Statement of Facts- -Respondent-

Statement of Facts

Pan Atheletica Inc. is a company incorporated in the United States of America with the purpose of providing a spectrum of services in the Sports Industry.. Pan Athletica set up a research wing to investigate the local flora and fauna in the nearby Amazon forests in Brazil. The company then set-up a research station near the Indo-Nepal border after incorporating a subsidiary in Nepal (Athletic Everest) in 1989. Till now Pan Athletica did not have a food and nutrition department.

In 1991, the company signed a local football team in Brazil, Desvalidos which, did very well. Eventually 66% percent of the team members went on to become a part of the national football team. Beginning in 1992 Athletica Machu signed them for a decade. Between 1992 and 2002, Brazil won the World cup twice and reached the final once. By now the company had a fully functional food department.

II.

The means and methods employed by the company were kept completely secret and the players were made to sign a 99 year non disclosure agreement. In 2000, Mr. Sumanto Hajela, the Indian Minister for Sports and International Affairs, approached Mr. Laurie to help out with the Indian Hockey Team. Pan Athletica incorporated a wholly owned subsidiary in the Cayman Islands (Athletica Atlantica), and Athletica Ganges served as a wholly owned subsidiary of Athletica Atlantica in India . Following negotiations between Pan Athletica and the Indian Government (hereinafter, ‘Government’), wherein all the government’s concerns were taken care of, the parties entered into a contract on an ‘as is where is basis’ through ‘Athletica Ganges’ (hereinafter, ‘Company’), in 2003. The Contract contained an Arbitration Clause. During the negotiations, the Company made it clear that as per this contract, the government would not be allowed to compel the Company to reveal its means and methods. Along with this contract, members of the Indian Hockey Team were made to sign an agreement containing a non-disclosure clause. The Indian Hockey Team fared well between 2002 and 2012.

III.

In 2003, the Brazilian Government did not re-sign with Athletica Machu rather an enquiry was launched to look into the practices of the company and the enquiry lasted over five years. In February 2012, during the celebration in an after party, a drunk member of the Indian Hockey contingent revealed the success to the magic biscuits the company gave. This caused uproar in the country. A high level enquiry was launched by the Government, while The Indian Hockey Federation engaged the services of a private detective company. The Indian Government also invoked the Arbitration clause and served a notice on the company.

IV.

Athetica Ganges filed a petition for interim relief, to stop the Government from breaking the contract. The Delhi High Court admitted the petition and during the course of proceedings, the Addl. Solicitor General who appeared before the Court gave an undertaking that pending proper resolution of the issue it would not break the contract. In the meantime the Brazillian enquiry was published, and relying on that a local Brazillian Court held Atheletica Machu to be guilty of environmental violations and paying several bribes. The United States commenced investigations under the Foreign Corrupt Practices Act, 1977.

Bowing to increasing global pressure, the Indian Government rescinded the contract and terminated all of the Company’s contractual obligations.

In the ongoing Arbitration proceedings, the Arbitrator took note of the above facts along with Brazilian judgment, the intimation of the U.S. investigations, the WADA guidelines and quotes all aspects of Indian law. The Government was also able to present the report of the private investigators, which relied on several emails which was privileged communication and excerpts of the Brazilian judgment. The Government also produced the affidavits of the player, Sushant Singh Lakkarbagha. Amongst the evidence submitted for arbitration, there were a large number of e-mails which dealt with very sensitive information about the formula of the food and nutrition products administered to the athletes, information of bank A/c’s, and certain communication which were supposed to be lawyer-client privileged information. All these e-mails were forwarded by an e-mail id . The company went on record to say that there was no person in the employ of the company by the name of Ace Ventura. In the affidavit submitted by the athlete, he spoke at length about the procedure of the training and the diet. The Company raised many objections to the procedure of the conduct of the proceedings and the rules to evidence attached, but each objection was rejected. The Company also filed a Civil Contempt Petition against the Government.

VI.

At the end of the arbitration, the award held that the company was indeed engaged in doping and that it had both illegal and unethical means to administer the team. The arbitrator awarded unliquidated damages to the tune of $1 billion dollars to the Government. Aggrieved by this award, the Company approached the Delhi High Court in the instant petition. The company submitted that the entire arbitration was a farce as information obtained by the RTI indicated that the decision to break the contract was already taken by the minister even before the interim relief application.

-Memorandum for the Respondent-

-Statement of Facts- -Respondent-

Questions Presented

The following questions are presented before the court in the instant matter-