SYMBIOSIS INTERNAL MOOT ELIMINATION 2018

Memorial on behalf of the Appellant

SYMBIOSIS INTERNAL MOOT ELIMINATION 2018

IN THE HON’BLE SUPREME COURT OF SWADESH

APPELLATE JURISDICTION

IN THE MATTER OF SPECIAL LEAVE PETITION UNDER ARTICLE 136

OF THE CONSTITUTION OF SWADESH

PUBLIC INTREST LITIGATION NO. 18/2018

SMALL TRADERS ASSOCIATION&OTHERS V. UNION OF SWADESH

ALONG WITH

WRIT PETITION NO. 2000/2018

ROLANDO V. UNION OF SWADESH

ALONG WITH

COMPANY PETITION NO. /2018

PROMOTERS OF CLEAN POWER INDUSTRIES LIMITED V. SWACHH POWER LIMITED

BEFORE THE HON’BLE JUDGES OF

SUPREME COURT OF SWADESH

MEMORIAL ON BEHALF OF THE APPELLANT

Page 1
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

TABLE OF CONTENTS

Table Of Contents………………………………………………………………………….
Error! Bookmark not defined.

Index of authorities

[A]CASES…………………………………………………………………………………….4

[B] REPORT………………………………………………………………………………..4

[C]JOURNALS………………………………………………………………………........…6

[D]BOOKS………………………………………………………………………………....…6

[E] LEGISLATIONS………………………………………………………. 7

[F] ONLINE DATABASES ………………………………………………………………7

Statement Of Jurisdiction………………………………………………………….....
Error! Bookmark not defined.

Statement Of
Facts………………………………………………………………………..Error! Bookmark
not defined.

Issues Raised
…………………………………………………………………………….Error!
Bookmark not defined.

Summary Of Arguments……………………………………………………………….
Error! Bookmark not defined.

Arguments Advanced………………………………………………………………..
Error! Bookmark not defined.

ISSUE I: WHETHER THE PRAYERS SOUGHT FOR BY THE PIL PETITIONERS

BEFORE THE HIGH COURT IS MAINATINABLE

[1.1]THE APPELLANTS HAVE LOCUS STANDI , WHICH IS A MATTER

OF PROBONO PUBLICO, AND THE PETITIONERS EX DEBITO JUSTITIAE

[1.1.1]ARTICLE 226 HAS WIDE AMBIT

Page 2
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

[1.1.2]THE PETITION FILED BY APPELLANT IS A MATTER OF

PRO BONO PUBLICO

[1.1.3]THE POLICY DECISIONS INFRINGES “ RULE OF LAW”

[1.1.4] THE PUBLIC INTEREST LITIGATION WAS

DISMISSED IN LIMINE

[1.3]THE POLICY DECISION OF THE GOVERNMENT

VIOLATES ARTICLE 14 and 19(1) G OF THE CONSTITUTION OF SWADESH

[1.3.1] ARBITRARY ACTS OF THE STATES ARE

INVALIDATED BY ARTICLE

[1.3.2] INFRINGEMENT OF ARTICLE 19 (1) G OF THE

CONSTITUTION OF SWADESH

ISSUE 2: WHETHER THE ALLEGATIONS CONSTITUTE PRIMA FACIE OFFENCE AND

COURTS JURISDICTION OVER THE CRIME COMMITEED AND ASSESTS LOCATED

IN UK

[2.1]THE FIR AND THE COMPLAINT REGISTERED AGAINST

MR.ROLANDO SHOULD BE QUASHED

[2.2]THE ALLEGATIONS DO NOT CONSTITUTE ANY PRIMA FACIE

OFFENCE

[2.3]NO OFFENCE IS CONSTITUTED UNDER PREVENTION OF

CORRUPTION ACT ,1988 AND SWADESH MONEY LAUNDERING ACT,2000

[2.3.1] PREVENTION OF CORRUPTION ACT ,1988

[2.3.2]SWADESH MONEY LAUNDERING ACT,2000

Page 3
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

[3.1]SWADESH COURTS DO NOT HAVE JURISDICTION OVER THE CRIMES

COMMITTED AND ASSETS SITUTAED IN UK

ISSUE 3: WHETHER THE PROMOTERS OF CPIL ARE ENTITLED ARE ENTITLED TO

MAINTAIN A PETITITION FOR OPPRESSION AND MISMANAGEMENT IN RELATION

TO SPL

[3.1] PROMOTERS OF CPIL HAS LOCUS STANDI ,TO

MAINTAIN A PETITION FOR OPPRESSION AND MISMANAGEMENT

[3.2]EXISTENCE OF OPPRESSION AND

MISMANAGEMENT UNDER SECTION 241 AND 242 OF THE SWADESH COMPANIES

ACT,2013.

[3.2.1]INCLUSION OF FAIT ACCOMPLI

[3.3]PIERCING THE CORPORATE VEIL

Prayer……………………………………………………………………………………………30

Page 4
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

INDEX OF AUTHORITIES

[A] CASES

Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376).......... 20

Arun v. Inspector General of Police (1986) 3 SCC 696 :AIR 1971 SC 1497 .......................... 17

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 .... 19

Budhan Choudhary v. State of Bihar.,1966 SCR (3)744 ......................................................... 18

Entertainment Network Ltd v. Super Casette Industries [2008 (a) Scale 69] ......................... 17

Exen Industries v. Controller of Imports &Exports (1972) 3 SCC 472 :AIR 1977 SC 567 .... 17

G.Sundarrarjan v. Union of India.,(2013) 6 SCC 620............................................................. 16

H.Radio &General Inustries Ltd v. State of Rajasthan AIR 1954 Raj 205 .............................. 20

Jai Singh Hany v. Union of India.,AIR 1993 Raj 177 .............................................................. 16

Jolly George Varghese v. Bank of Cochin.,1980 AIR 470 ,1980 SCR (2) 913 ........................ 17

K.Murugan vs Union Of India.,(2014) 4 SCC 242 .................................................................. 16

Kasturi Lal Lakshmi Reddy v. State of Jammu &Kashmir and another., 1980 AIR 1992. ...... 18

Page 5
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

Maneka Gandhi v. Union of India.,1978 AIR 597,1978 SCR (2) 621 ..................................... 18

Pratap Rosin &Turpentine Factory v. State of Punjab.,AIR 1966 .......................................... 20

Rahbihari Panda v. State of Orissa., 1969 AIR 1081 ,1969 SCR (3) 374 ............................... 20

Ramana Dayaram Shetty v. International Airport Authority Of India.,1979 AIR 1628 ,1979

SCR (3)1014 ......................................................................................................................... 19

S.P.Chokalingam v. Union of India.,AIR 1961 SC 82 ............................................................. 18

S.Rangarajan Etc v. Jagjivan Ram .,1989 SCR (2) 204,1989 SC (2) 574 ............................... 20

Shughavi Elekor v. Government of Nigeria., HL 24 [1931] AC 662 ....................................... 18

State Of Tamil Nadu vs Union Of India [Air 1983 SC 130] .................................................... 19

Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69 .................................................... 15

Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376). .... 21

Ajay Harkemi v. State of W.B., 1993(2) Crimes 248., 1993(2) Crimes 248 ............................ 23

Arun v. Inspector General of Police (1986) 3 SCC 696 :AIR 1971 SC 1497 .......................... 18

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 .... 20

BasisthaNarayan Misra v. State of W.B., 1993 Cri. L.J. 10 (Cal.). ......................................... 24

Budhan Choudhary v. State of Bihar.,1966 SCR (3)744 ......................................................... 19

Commissioner of Income Tax v. West Coast Electric Supplies.,1977 107 ITR 483 Mad ....... 30

Entertainment Network Ltd v. Super Casette Industries [2008 (a) Scale 69] ......................... 18

Exen Industries v. Controller of Imports &Exports (1972) 3 SCC 472 :AIR 1977 SC 567 .... 18

Fatima Bibi Ahmed Patel v. State of Gujarat ,AIR 2008 SC 2392 .......................................... 26

G.Sundarrarjan v. Union of India.,(2013) 6 SCC 620............................................................. 17

H.Radio &General Inustries Ltd v. State of Rajasthan AIR 1954 Raj 205 .............................. 21

Jai Singh Hany v. Union of India.,AIR 1993 Raj 177 .............................................................. 17

Jolly George Varghese v. Bank of Cochin.,1980 AIR 470 ,1980 SCR (2) 913 ........................ 18

K. Ashoka V. N.L. Chandrashekar & Ors., AIR 2009 SC 3288 ............................................... 23

Page 6
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

K.Murugan vs Union Of India.,(2014) 4 SCC 242 .................................................................. 17

Kasturi Lal Lakshmi Reddy v. State of Jammu &Kashmir and another., 1980 AIR 1992. ...... 19

M.Moorthy v. Drivers and Conductors Bus service Private Ltd.,(1991) 71 Comp Cas 136

Mad....................................................................................................................................... 30

Maneka Gandhi v. Union of India.,1978 AIR 597,1978 SCR (2) 621 ..................................... 19

Manoj Sharma V. State & Ors., 2008(4) CRIMES 359 (SC) ................................................... 23

Mrs. Dhanalakshmi v. R. Prasanna Kumar., AIR 1990 SC 494 .............................................. 23

N.N.Murty v. Industrial Development Corporation of Orissa Ltd.,53 Comp. Cas .888(Cal) . 28

P.Satyanarayana Murthy v. District Inspector Of Police and Anr.,(2014) 13 SCC 55.9. ....... 25

Pratap Rosin &Turpentine Factory v. State of Punjab.,AIR 1966 .......................................... 21

Punjab National Bank v. Surendra Prasad Sinha., 1992 Supp. (1) SCC 335 ......................... 24

R.P.Kapur v. State of Punjab., AIR 1960 SC 866 .................................................................... 22

Rahbihari Panda v. State of Orissa., 1969 AIR 1081 ,1969 SCR (3) 374 ............................... 21

Ramana Dayaram Shetty v. International Airport Authority Of India.,1979 AIR 1628 ,1979

SCR (3)1014 ......................................................................................................................... 20

Rupan Deol Bajaj v. K.P.S. Gill, 1996 Cri. L.J. 381(387)....................................................... 24

S.N. Sharma v. Bupen Kumar Tiwari[1970] (3) SCR 946 ....................................................... 25

S.P.Chokalingam v. Union of India.,AIR 1961 SC 82 ............................................................. 19

S.Rangarajan Etc v. Jagjivan Ram .,1989 SCR (2) 204,1989 SC (2) 574 ............................... 21

Saih Giridhira Supply Co v. Collector of Central Exercise.,1989 AIR 1218, 1989 SCR(1) 870.

.............................................................................................................................................. 28

Scottish Cooperative wholesale Society Ltd v. Meyer., HL 1959,[1959] AC 324 ................... 30

Shambhu Singh v. State ofM.P., 1991(2) Crimes 205 (M.P.). ................................................. 23

Sheth Mohanlal Ganpatram v. Shri Sayaji Jubliee Cotton and Jute Mills Co Ltd.,(1964) 0

GLR 804. .............................................................................................................................. 30

Page 7
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

Shughavi Elekor v. Government of Nigeria., HL 24 [1931] AC 662 ....................................... 19

State of A.P v. Golconda Linga Swamy & Anr , AIR 2004 SC 3967. ...................................... 23

State of Andhra Pradesh v. Vangaveeti Nagaiah., AIR 2009 SC 2646 .................................... 22

State of Bihar v. Rajindra Agrawalla., Criminal Appeal No. 66 of 1996 ................................ 23

State of Himachal Pradesh v. Pirthi Chand., (1995) 9 JT (SC) 411 ....................................... 23

State Of Tamil Nadu vs Union Of India [Air 1983 SC 130] .................................................... 20

State of U.P. v. R.K. Srivastava., AIR 1957 SC 912 ................................................................ 24

State of West Bengal v. Swapan Kumar Guha.,(1982) AIR 949,1982 SCR (3) 121 ................ 25

Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69 .................................................... 16

[B] REPORTS

1. Review of FATF Anti-Money Laundering Systems and Mutual Evaluation

procedures 1992-1999

[C] JOURNALS

1. Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, Black

Money White Paper, May 2012 (pg. 8, Box. 2.1) ................................................................ 25

[D]BOOKS

1. Basu, D.D., Commentary on The Constitution Of India, Vol. I,Vol. II, Vol. V,Vol.
VIII,Vol. IX,Vol. X, (8th Ed. 2009)

2. Seervai, H.M., Constitutional Law of India, Vol. I, Vol. II, Vol. III (4th Ed., 2007)

3. Jain, M.P., Indian Constitutional Law, (5th ed. 2003)

4. Tushar Shah, Commentaries on The Prevention of Money Launder Act, (1st Ed.
2012)

5. M.C. Mehanathan, Law on Prevention of Money Laundering in India (1st ed. 2014)
6. Lawrence W Newman, Attachment of Assets (1st ed. 2014)

7. Ratanlal and Dhirajlal, The Code of Criminal Procedure (17th ed. 2016)

Page 8
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

8. R. V. Kelkar’s, Criminal Procedure (6th ed. 2016)

[E] LEGISLATIONS

1. Indian Penal Code, 1860

2. Code of Civil Procedure, 1908

3. The Constitution of India, 1950

4. The Code of Criminal Procedure, 1973

5. The Customs Act, 1962

6. The Prevention of Money Laundering Act, 2002

[F] ONLINE DATABASES

1. Westlaw (www.westlawindia.com)

2. Manupatra (www.manupatra.com)

3. SCC Online (www.scconline.in)

4. JSTOR (www.jstor.org)

5. Lexis Nexis (www.lexisnexis.com)

Page 9
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Swadesh has Jurisdiction to hear the matter under Article 136
of the Constitution of Swadesh.

Article 136 of the Constitution of Viscara reads as:

“136. Special leave to appeal by the Supreme Court -

(1) Notwithstanding 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.

(2) 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.”

Page
10
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the chronological order:

1. The Union of Swadesh is a vast South Asian Country and it was one of the Global

Super powers. The SVM Government entered into an bilateral treaty with Wakanda ,

which contained Four clauses , which contained an Indemnification clause and an

arbitrary clause.

2. Clean Power Industries Limited (CPIL) [hereinafter CPIL] is Government Company

which negotiated with Wakanda Energy Corporation Company Ltd for transfer of

solar plants and for this purpose, Swachh Power Limited , a wholly owned subsidiary

was incorporated. The Solar plant did not give expected productions . It was found

that actually Grade II vibranium was supplied in the place of Grade III vibranium.

3. The solar site collapsed causing widespread injury to life and property. SPL sold the

assets hastily, which were transferred by CPIL to SPL. The promoters of CPIL filed a

petition for Oppression and mismanagement. A PIL was also filed saying that the

treaty entered into by the state is unconstitutional. At the same time, the promoters of

CPIL revealed through a private investigation agency ,that Mr.Rolando, a former

Governor of Reserve Bank and a citizen of UK and Indian origin has swapped the

grade II Vibranium with Grade III vibranium for a illegal gratification of Rs.250

crores. A complaint and FIR was filed against him , He filed an writ petition for

quashing the FIR and the complaint . The PIL petitioners and Writ Petitioners and

The promoters of CPIL filed a SLP before the Supreme Court. The Supreme Court

decided to hear all the appeals together.

Page
11
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

ISSUES RAISED

ISSUE [I]

Small traders association &others v. Union of Swadesh

WHETHER THE PRAYERS SOUGHT FOR BY THE PIL PETITIONERS BEFORE THE

HIGH COURT IS MAINTAINABLE

ISSUE [II]

Ronaldo v. Union of Swadesh

WHETHER THE ALLEGATIONS CONSTITUTE PRIMA FACIE OFFENCES AND

THE COURTS OF SWADESH HAVE JURISDICTION OVER THE

CRIMES COMMITTED AND ASSETS LOCATED IN UK

ISSUE [III]

Promoters of Central Power Industries Limited v. Swachh Power Limited

WHETHER THE PROMOTERS OF CPIL ARE ENTITLED TO MAINTAIN A

PETITION FOR OPPRESSION AND MISMANAGEMENT

IN RELATION TO SPL

Page
12
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE PRAYERS SOUGHT FOR BY THE PIL PETITIONERS BEFORE

THE HIGH COURT IS MAINATINABLE

The prayers sought by the petitioners under Article 226 before the High Court are

maintainable, as it is their matter of right. The policy decision of the Government had

infringed the Fundamental Rights of the People and the decision is arbitrary.

. ISSUE II

WHETHER THE ALLEGATIONS CONSTITUTE PRIMA FACIE OFFENCES AND

COURTS HAVE JURISDICTION OVER THE CRIMES COMMITEED AND

ASSESTS LOCATED IN UK

The allegations do not constitute prima facie offence as there are no proper legal

evidence to prove the allegations. They do not have any basic claim or evidence to support

the FIR and the complaint. Also, as Mr. Rolando is a UK citizen.Also,courts do not have

jurisdiction over the crimes and assets located in UK as he is not a citizen of India

ISSUE III

WHETHER THE PROMOTERS OF CPIL ARE ENTITLED TO MAINTAIN

PETITION FOR OPPRESSION AND MISMANAGEMENT IN RELATION TO SPL

The promoters of CPIL are entitled to maintain an petition against SPL for

oppression and mismanagement as they are the parent company of SPL. SPL is the wholly

owned Subsidiary of the CPIL. Also, CPIL , acts as heart and brain of the SPL.It has

appointed the director in SPL.It maintains a control over the company’s affairs

Page
13
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

ARGUMENTS ADVANCED

ISSUE 1:

Small traders association &others v. Union of Swadesh

WHETHER THE PRAYERS SOUGHT FOR BY THE PIL PETITIONERS

BEFORE THE HIGH COURT IS MAINATINABLE

The Public Interest Litigation , filed by the Small Traders Association before the High Court

of Vindhya , under Article 226 is maintainable , as the ambit of article 226 is wide and the

Bilateral Treaty entered into by the Government is wholly arbitrary, unjust , unconstitutional,

against public interest and violative of Article 14,19(1)g and 21 of the Constitution of

Swadesh.

[1.1]THE APPELLANTS HAVE LOCUS STANDI , WHICH IS A MATTER

OF PROBONO PUBLICO, AND THE PETITIONERS EX DEBITO JUSTITIAE

The petition filed in this case in maintainable under article 226 as it was not filed with any

ulterior motives or private reasons. The PIL was filed as it infringes the fundamental rights of

the citizens and also it is matter of right of the people.

[1.1.1]ARTICLE 226 HAS WIDE AMBIT

It is contended that the petition filed by the petitioners is valid owing to the wide ambit of

Article 226. There is violation of Fundamental Rights in furtherance of the treaty entered into

by the state. The Doctrine of Parens Patriae states that it is the obligation of the state to

Page
14
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

protect and take into custody rights and the privileges of its citizens , for discharging its

obligations.

The people can turn to courts , when their fundamental rights are infringed by the policy

decisions of the Government. The Petioners Fundamental rights are violated and hence , the

petition is maintainable. The Public Interest Litigation under article 226 is still maintainable

for any “other purposes1” as well .

[1.1.2]THE PETITION FILED BY APPELLANT IS A MATTER OF PRO

BONO PUBLICO

The Public Interest Litigation filed by the petitioners , are for the public good , where the

treaty entered into was arbitrary and there was wide spread employment as SPL suffered

huge loss. The court can intervene when there is a callous neglect on the part of the state2.

Traders of Swadesh were deprived of their rights. In the present case , the treaty which was

entered into by the state with Wakanda is unconstitutional depriving people of their rights. If

an administrative decision ,infringes the rights of the people, the basis for the decision calls

for the most anxious scrutiny according to the principle of ‘anxious scrutiny3 ’. Individual

interest or, smaller public interest must yield to larger public interest and inconvenience of

some shall be bypassed for larger interest or cause of society4.

1
Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69.
2
K.Murugan vs Union Of India.,(2014) 4 SCC 242
3
Bugdaycay [1987] AC 514, where Lord Bridge said at 531E-G
4
G.Sundarrarjan v. Union of India.,(2013) 6 SCC 620.

Page
15
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

[1.1.3]THE POLICY DECISIONS INFRINGES “ RULE OF LAW”

Rule of Law, is derived from the French term , la principe de legalite is the basic foundation

for the concept of state that revolves around law and not around men.In any democratic

country , Rule of Law is the basic element. It interprets that law should rule the people and

the decisions should be taken in consideration to the rule of law5. When there is violation of

Fundamental Rights and when the decisions are taken against Rule of Law , Public Interest

Litigation can be relaxed.

[1.1.4] THE PUBLIC INTEREST LITIGATION WAS DISMISSED IN LIMINE

The High Court dismissed the PIL on the ground of maintainability of the petition

without going into the merits of the issue. A writ petition should not be dismissed in limine ,

if an public policy is questioned on grounds of being unlawful , arbitrary or unjust6.

Dismissal in limine without speaking order is not just and the High Court must pass reasoned

orders7.

[1.2]THE BILATERAL TREATY ENTERED INTO BY THE GOVERNMENT OF

SWADESH WITH THE GOVERNMNET OF WAKANDA IS UNCONSTITUTIONAL

Basically , India follows Dualistic Doctrine with respect to International Law , which means

that International Law and the Internal Law of the States , are two separate and distinct legal

systems. International Treaty can be enforced , so long as , it is not in conflict with municipal

laws of the state8. International Treaty can be pressed into service, for interpreting domestic

5
Jai Singh Hany v. Union of India.,AIR 1993 Raj 177
6
Exen Industries v. Controller of Imports &Exports (1972) 3 SCC 472 :AIR 1977 SC 567
7
Arun v. Inspector General of Police (1986) 3 SCC 696 :AIR 1971 SC 1497
8
Jolly George Varghese v. Bank of Cochin.,1980 AIR 470 ,1980 SCR (2) 913

Page
16
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

law , if the domestic law , will not be breached as a result. In case, if that is inconsistent ,

domestic legislation will prevail9.

[1.3]THE POLICY DECISION OF THE GOVERNMENT VIOLATES ARTICLE 14

and 19(1) G OF THE CONSTITUTION OF SWADESH

The petitioner contends that the policy decisions of the government has rendered to be

arbitrary , thus violating Right to Equality under Article 14, Right to livelihood under Article

21 and Right to profession under Article 19(1)g.

[1.3.1] ARBITRARY ACTS OF THE STATES ARE INVALIDATED BY

ARTICLE 14

The petitioner hereby contends that the Jurisdiction of Article 14 , extends to prevent

arbitrary and unreasonable actions of state , which are “antithesis” to the rule of equality.

Every action taken by the Government must be in Public Interest and the Government should

not act arbitrarily10. Even if the legislative action , contravenes Article 14, it is held to be

void11. In this case , there is an exclusionary clause , which states that the technology can be

transferred only to state owned corporation and not to any private entities which do not

ensure fairness and equality of treatment12. The policy decision by the Government , if it

violative of article 14 ,can be challenged under article 226 of the Constitution of Swadesh13.

9
Entertainment Network Ltd v. Super Casette Industries [2008 (a) Scale 69]
10
Kasturi Lal Lakshmi Reddy v. State of Jammu &Kashmir and another., 1980 AIR 1992.
11
Budhan Choudhary v. State of Bihar.,1966 SCR (3)744
12
Maneka Gandhi v. Union of India.,1978 AIR 597,1978 SCR (2) 621
13
State Of Tamil Nadu vs Union Of India [Air 1983 SC 130]

Page
17
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

Matters of National importance cannot be implemented negligently which was done in the

present matter .The State should not enter into any treaty or contract with any other country ,

which violates our Fundamental Rights14. Such Treaty would be null and Void15.

States cannot act arbitrarily , in entering into relationship , contractual or otherwise with a

third party ,but its action must conform to some standard or norm which is rational and non

discriminatory16 . Excluding private entities from the treaty , is a difference which will have a

greater impact on society17.

Test of reasonableness

According to the Test of reasonableness, the classification must be founded on intelligible

differentia , which distinguishes persons or things that are groups together , from others left

out of the group. Secondly there should be some rational nexus , between the differentia and

the object sought to be achieved. In this case there is no nexus between the differentia and the

object sought to be achieved. The government entered into the bilateral treaty for promoting

clean energy and for knowledge and technology transfer and the exclusionary treaty do not

have any nexus with this object. The essence of the rule is that discretion can be exercised,

but should be coupled with equity and sound reason18.

The Wednesbury Test of Unreasonableness

When there is no reasonable authority , for a decision, the decision tends to be unlawful

.This is the underlying principle in the Known Wednesbury case19 , Lord Greene MR

expounded that it is the duty of an authority to consider the facts , which they are bound to

14
S.P.Chokalingam v. Union of India.,AIR 1961 SC 82
15
Shughavi Elekor v. Government of Nigeria., HL 24 [1931] AC 662.
16
Ramana Dayaram Shetty v. International Airport Authority Of India.,1979 AIR 1628 ,1979 SCR (3)1014
17
State Of Tamil Nadu vs Union Of India [Air 1983 SC 130]
18
H.W.R.WADE & C.F.FORSYTH, ADMINISTRATIVE LAW, OXFORD PUBLICATIONS, 293 - 294 (10thed, 2009)
19
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223

Page
18
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

keeping the consequences and impact in the mind. The Government would have achieved its

objective without the exclusionary class in the Bilateral treaty.

[1.3.2] INFRINGEMENT OF ARTICLE 19 (1) G OF THE CONSTITUTION OF

SWADESH

Article 19(1)G contemplates that that all citizens have the right to practise any profession or

to carry on any occupation, trade or business. The petitioner submits that this right is

infringed by the policy decision of the Government. There is no reasonable justification for

formulating such policy .The main aim of the Government’s policy in this context is to

promote clean energy ,knowledge and technology transfer , which do not have any nexus

with this restriction. The object of the policy decision, should have proximate and direct

nexus with the exercise of the restriction20.

When the state creates monopoly in favour of a third party , it can be questioned21.The

restriction should be placed in a manner and to the extent that it is inevitable in the given

situation22. Monopoly favouring one class is unconstitutional , as it amounts to

discrimination23. In this case, The state had favoured State owned Corporation without any

proper reason. The Constitution did not favour monopoly decisions executed even on pre

constitution dates24.

[1.4]ALTERNATIVE RELIEF

The petitioners have also prayed for an alternative relief. Also, a relief under article 226 can

be granted , in spite of availability of alternative remedy25. CPIL is one of the major profit

20
S.Rangarajan Etc v. Jagjivan Ram .,1989 SCR (2) 204,1989 SC (2) 574
21
Rahbihari Panda v. State of Orissa., 1969 AIR 1081 ,1969 SCR (3) 374
22
S.Rangarajan Etc v. Jagjivan Ram., 1989 SCR (2) 204,1989 SC (2) 574
23
Pratap Rosin &Turpentine Factory v. State of Punjab.,AIR 1966 P H 16.
24
H.Radio &General Inustries Ltd v. State of Rajasthan AIR 1954 Raj 205.
25
Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376).

Page
19
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

making companies, and the largest number of employees second to the Government of

Swadesh. In this case , it was prayed that the court should issue directions to the to the

Swadeshi Government to enforce its rights under the Bilateral Treaty and should adopt the

claims on behalf of SPL against Wakanda.

ISSUE 2:

Ronaldo v. Union of Swadesh

WHETHER THE ALLEGATIONS CONSTITUTE PRIMA FACIE OFFENCES

AND COURTS HAVE JURISDICTION OVER THE CRIMES

COMMITEED AND ASSESTS LOCATED IN UK

It is Humbly submitted before this Hon’Ble Court that ,according to the facts of the case ,

none of the allegations constitute prime facie offences and the FIR should be quashed. Also,

the courts of Swadesh do not have Jurisdiction over the crimes committed and situated in UK.

[2.1]THE FIR AND THE COMPLAINT REGISTERED AGAINST

MR.ROLANDO SHOULD BE QUASHED

The FIR and the complaint registered against Mr.Rolando should be quashed as the

allegations do not constitute prima facie offences . Even though they constitute an offence ,

there is no legal evidence in support of the case , which actually fails to prove the charge26. In

this case, there is no appreciating evidence. Basically a proper offence should be disclosed at

the complaint or the first information report27 .The FIR should be quashed, under the inherent

powers of Section 482 of Criminal Procedure Code , in order to prevent abuse of power of

26
State of Andhra Pradesh v. Vangaveeti Nagaiah., AIR 2009 SC 2646.
27
R.P.Kapur v. State of Punjab., AIR 1960 SC 866.

Page
20
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

court or otherwise to secure the ends of Justice28, if the allegations do not make prima facie

offences.

Courts can quash an FIR or complaint , if the basic facts are incomplete and hazy , when the

evidence has not been collected and produced before the court, when the issues involved are

not seen in their true perspective , without sufficient material29. When continuing the

investigation proceedings would be a futility, the FIR can be quashed30. The FIR and the

complaint was simply based on the allegations by the promoters of CPIL and it was not based

on a proper material31. A case can be quashed if it is completely lack of evidence32. If the FIR

and the Complaint is not quashed, there would be manifest injustice or there would be abuse

of the process of the Court33.

Also , the court should not exercise its jurisdiction under article 226, for frustrating the

investigation of criminal cases as the social stability would be jeopardized34. Courts should

interfere, when the investigation procedure may result in gross negligence35.

[2.2]THE ALLEGATIONS DO NOT CONSTITUTE ANY PRIMA

FACIE OFFENCE

The appellants contend that the allegations which are mentioned , do not constitute prima

facie offences. The Promoters of CPIL , made certain allegations against Mr.Rolando. In this

case , the Directorate of Enforcement and the Central Agency of Investigation did not take

any reasonable steps , to check whether the said allegations were true. The Complaint and the

FIR was filed only upon the revelations of the allegations by the Promoters of CPIL , through

28
Mrs. Dhanalakshmi v. R. Prasanna Kumar., AIR 1990 SC 494
29
State of A.P v. Golconda Linga Swamy & Anr , AIR 2004 SC 3967.
30
Manoj Sharma V. State & Ors., 2008(4) CRIMES 359 (SC)
31
K. Ashoka V. N.L. Chandrashekar & Ors., AIR 2009 SC 3288
32
Shambhu Singh v. State ofM.P., 1991(2) Crimes 205 (M.P.).
33
State of Bihar v. Rajindra Agrawalla., Criminal Appeal No. 66 of 1996.
34
State of Himachal Pradesh v. Pirthi Chand., (1995) 9 JT (SC) 411.
35
Ajay Harkemi v. State of W.B., 1993(2) Crimes 248., 1993(2) Crimes 248.

Page
21
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

a Private Investigation Agency. The allegation do not form a proper offence with proper

evidence in its entirety, which shows that FIR should be quashed36.

Mr.H. N. Salve and Mr. Arun Jaitley , learned senior counsel , contended that assertions

made in the FIR , even taken on face value , sometimes do not satisfy the ingredients of the

offence alleged to have been made and on the other hand , it indicates that the case was

instituted with ulterior motives for wreaking vengeance37. This can be inferred from the facts

of the case, when the promoter directors of CPIL , voted’

against the incorporation of SPL. When an FIR , does not constitute an prima facie offence,

the FIR can be quashed38.The allegations put forth in this case are so absurd without a and

inherently improbable that no prudent person can even reach a just conclusion that there is

sufficient ground for proceeding against the accused39. Even though , when a complaint and

FIR has prima facie offences , they are not maintainable without any proper evident material.

Justice Chandrachud held that if the materials do not disclose an offence, no investigation

should normally be permitted40. As it will result in unnecessary harassment to a party, whose

liberty and property may be put to jeopardy for nothing . The liberty and property of any

individual are sacred and sacrosanct and the court zealously guards them and protects them 41.

It is because basically an investigation is carried on for the purpose of gathering necessary

materials for establishing and proving an offence which is disclosed.

36
State of U.P. v. R.K. Srivastava., AIR 1957 SC 912
37
Punjab National Bank v. Surendra Prasad Sinha., 1992 Supp. (1) SCC 335.
38
BasisthaNarayan Misra v. State of W.B., 1993 Cri. L.J. 10 (Cal.).
39
Rupan Deol Bajaj v. K.P.S. Gill, 1996 Cri. L.J. 381(387)
40
State of West Bengal v. Swapan Kumar Guha.,(1982) AIR 949,1982 SCR (3) 121
41
S.N. Sharma v. Bupen Kumar Tiwari[1970] (3) SCR 946

Page
22
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

[2.3]NO OFFENCE IS CONSTITUTED UNDER PREVENTION OF

CORRUPTION ACT ,1988 AND SWADESH MONEY LAUNDERING ACT,2000

The appellants contend that there no offence was actually committed under Prevention of

Corruption Act , 1988 and Swadesh Money Laundering Act.

[2.3.1] PREVENTION OF CORRUPTION ACT ,1988

The primary requisite of an offence , under section 13(1)(d) of the act ,is proof of a demand

or request of a valuable thing or pecuniary advantage from the public servant .In absence of

proof of demand or request from the public servant , section 13(1)(d) can’t be quashed42. In

this case , there is no proper legal proof to convey that Mr. Rolando has actually received

illegal Gratification.

[2.3.2]SWADESH MONEY LAUNDERING ACT,2000

Section 45 of Prevention of Corruption Act,2002 was held unconstitutional. In Nikesh

Tarachand Shah v. Union of India, Justice R.F.Nariman and Justice S.K.Kaul , striked down

section 45(1) of the act as being violative of article 14 and 21 of the Constitution.

[3.1]SWADESH COURTS DO NOT HAVE JURISDICTION OVER THE

CRIMES COMMITTED AND ASSETS SITUTAED IN UK

Section 4 , clause(1) of Indian Penal Code , extends the operation of the

code, when the offence is committed by a citizen without and beyond India and clause (2),

when any person commit offence , on any ship or aircraft registered in India. The Code has

42
P.Satyanarayana Murthy v. District Inspector Of Police and Anr.,(2014) 13 SCC 55.9.

Page
23
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

no applicability when the offence is committed by a Foreigner outside India43, even though if

he acquires citizenship later on.

ISSUE 3:

Promoters of Central Power Industries Limited v. Swachh Power Limited

WHETHER THE PROMOTERS OF CPIL ARE ENTITLED TO MAINTAIN

PETITION FOR OPPRESSION AND MISMANAGEMENT

IN RELATION TO SPL

It is humbly submitted before this honourable Court , that the petition filed by the promoters

of CPIL are maintainable under section 241 and section 242 of the swadeshi companies act ,

2013 as there were instances of oppression and mismanagement according to the facts of the

cases.

[3.1] PROMOTERS OF CPIL HAS LOCUS STANDI ,TO MAINTAIN A

PETITION FOR OPPRESSION AND MISMANAGEMENT

The promoters of CPIL has the locus standi to maintain the petition against SPL under

section 241 and 242 of the Swadesh Companies Act ,2013. From the facts it could be

interpreted , that there existed instances of oppression and mismanagement by SPL. Also, the

appellants are the minority shareholders of the holding company. The main aim of Section

241 and 242 is to protect the interest of the minority shareholders44.

In Palghat Export Pvt Ltd v. T.V.Chandran., the affairs of the company were conducted in a

manner prejudicial to the interest of the members of the company. It was held by the court,

that the object of the section 241 is to terminate or prevent an existing, present state of

43
Fatima Bibi Ahmed Patel v. State of Gujarat ,AIR 2008 SC 2392
44
Lalita Rajya Lakshmi v. Indian Motor Company , AIR 1962 Cal.127 ; [1962]32 Comp Cas. 207.

Page
24
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

prejudicial45 , oppressive, harsh and unfair conduct. But also, according to the Companies

Act, 2013, past conduct and closed affairs are also included. The aggrieved shareholders can

get relief for the acts done by controlling shareholders, in the management of the affairs of

the company.

Wholly owned subsidiaries are those companies , where the Parent company owns 100%

shares of the subsidiary ,which allow the parent company to appoint the directors of the

subsidiary or control the subsidiary company . In this case , SPL, is a wholly owned

subsidiary of CPIL , where the Board of Directors of SPL were appointed by CPIL, which

implies that “affairs of the holding company” also includes, “affairs of the parent company”,

hence promoters of CPIL are entitled to maintain a suit against SPL.

In Life insurance Corporation of India v. Hari Das Mundhra , it was held that , a holding

company and a subsidiary company are separate legal entities. But the expression , “holding

company” and “subsidiary company” denotes close connection between the affairs of the two

companies. It was also held that in certain circumstances affairs of subsidiary has been

treated as affairs of the corresponding holding company.

Since , Section 241 and Section 242 , refers to the term “affairs of the Company”, which

means it includes “affairs of subsidiaries”, since these sections are to protect the interest of

the minority shareholders , a liberal construction should be adopted .

Section 241(a), includes the term “ Prejudicial to public Interest”. In N.N.Murty v. Industrial

Development Corporation of Orissa Ltd, The court refers the term “Public Interest “ to an

elusive abstraction. Basically, it means general social welfare or consideration or social good,

45
Sheth Mohanlal Ganpatram v. Shri Sayaji Jubille Cotton and Jute mills Co Ltd., .,(1964) 0 GLR 804.

Page
25
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

keeping in mind the interest of social public46. SPL has acted prejudicial to public interest ,

which resulted in widespread injury to life and property ,which attracted a large outcry.

In Queen’s Bench Division Case, R v. Board of Trade , where in it was held that the term

“affairs of the company47 ”incudes it’s subsidiaries. In most of the cases, the issue related to

subsidiary company, were decided with the merits of the company and not as preliminary

issue48. In Tata Sons v. Cyrus Mistry, the tribunal held that when an allegation is made

against a company , such a company should also be made party to the petition.

[3.2]EXISTENCE OF OPPRESSION AND MISMANAGEMENT UNDER SECTION

241 AND 242 OF THE SWADESH COMPANIES ACT,2013

The interpretation of the term “oppression”, is explained in the case Elder v. Elder and

Watson Ltd, where it means lack of standards of fair dealing and element of probity with

members of the company According to the facts of the case , there are instances of oppression

and mismanagement .If the affairs of the company are being conducted in a manner

prejudicial to public interest , it should be considered as mismanagement49.

If a company hastily sold the property for a nominal price, without complying with the

provisions of the act, it would amount to oppression and mismanagement. The sale of assets

of a company at a nominal price, without complying with the requirements of the act,

constitute mismanagement50. When the property of the company is sold at throw away price,

it would amount to oppression under section 241 of the Companies Act, 2013.

46
N.N.Murty v. Industrial Development Corporation of Orissa Ltd.,53 Comp. Cas .888(Cal)
47
S.165 , Companies Act , 1948
48
Saih Giridhira Supply Co v. Collector of Central Exercise.,1989 AIR 1218, 1989 SCR(1) 870.
49
Suresh Kumar v. Supreme Motors Ltd.,1983 54 Comp Cas 235 Delhi ,1981RLE 418
50
Malayalam Plantations Ltd v. State of Kerala.,[1991]5 Corpt LA 361 9Ker).

Page
26
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

In this case, all the assets which were transferred from CPIL to SPL were sold at a much

lower price than their actual valued cost. It is also mentioned that the sale of assets was also a

“hasty decision”, which proves the gross neglect of the interest of the company51.

Also , the company should have taken reasonable precaution in confirming that whether

vibranium which was supplied is actually Grade II vibranium , even though the export book

of WEC did reflect that Grade II Vibranium was supplied. Such reasonable steps should have

been taken by SPL atleast considering the magnitude of the project and people as the

Vindhya Mountain ranges ,were actually inhabited by some people . Also, on 18th December

2017,the project site actually collapsed actually causing widespread injury to life and

property . The Committee, through investigation submitted their report that the collapse was

due to excessive digging. It is reasonable anticipated ,that large scale digging may cause the

hillock to collapse. But such precautions were not taken by SPL.

Also , even though the people has been compensated for their displacement, necessary and

reasonable steps should have been taken by SPL to check whether the localities have vacated

the region. This is enough proof to show the gross neglect of the interest of the company and

the company acting prejudicial to public interest and the total inattention to the affairs of the

company52 .In these circumstances of the cases, the court should adopt liberal construction as

the holding company had fairly dealt with the affairs of the subsidiary company53 .

[3.2.1]INCLUSION OF FAIT ACCOMPLI

Previously , past oppressive acts will not be considered54 . But according to the Swadesh

Companies Act , 2013, Section 241 (a) and Section 242 (a) reads as “the affairs of the

51
M.Moorthy v. Drivers and Conductors Bus service Private Ltd.,(1991) 71 Comp Cas 136 Mad.

52
M.Moorthy v. Drivers and Conductors Bus service Private Ltd.,(1991) 71 Comp Cas 136 Mad.
53
Scottish Cooperative wholesale Society Ltd v. Meyer., HL 1959,[1959] AC 324.
54
Sheth Mohanlal Ganpatram v. Shri Sayaji Jubliee Cotton and Jute Mills Co Ltd.,(1964) 0 GLR 804.

Page
27
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

company have been or are being”, which shows that acts which had already happened will

also amount to oppression. Therefore all these acts of selling of assets by a hasty decision,

acting prejudicial to the public interest and mismanagement in implementing the project

amounts to oppression and mismanagement.

[3.3]PIERCING THE CORPORATE VEIL

It is very important to consider that whether the members of the subsidiary company are

appointed by the parent company and whether the parent company is the head and brain of

the subsidiary company. This could be relied only by interpreting the facts of the case.

According to the facts of the case , it could be inferred that the members of the subsidiary

company were appointed by CPIL . Even though , CPIL did not have parental and constant

control over SPL , but everything to SPL is given to them by CPIL.55 These Guidelines given

in Smith, Stone & Knight Ltd.'s, are not conclusive , but these are the guidelines used in

several cases. In order to do Justice , in certain circumstances, the corporate veil should be

lifted56.

55
Commissioner of Income Tax v. West Coast Electric Supplies.,1977 107 ITR 483 Mad
56
State of U.P and Others v. Renusagar Power Co and others., 1988 AIR 1737, 1988 SCR Supl.(1) 627.

Page
28
 SYMBIOSIS INTERNAL MOOT ELIMINATION 2018
Memorial on behalf of the Appellant

PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it
is humbly prayed before this Hon’ble Court to hold that

1. The prayers sought by the PIL Petitioners is maintainable before the high
court .
2. The allegations against Mr.Rolando constitute Prima Facie offences and the
Courts of Swadesh do have Jurisdiction over the crimes committed and
assets located in UK
3. The promoters of CPIL are entitled to maintain a petition for oppression and
management in relation to SPL.

AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the

circumstances of the case and in the interest of Justice, Equity and Good Conscience.

Page
29