Sahil Khanna.docx

B.B.A., LL.B. (HONS.) TENTH SEMESTER

COURT DIARY / INTERNSHIP REPORT

COURT DIARY/INTERNSHIP REPORT SUBMITTED IN PARTIAL FULFILLMENT OF REQUIREMENTS OF THE DEGREE OF B.B.A., LL.B. (H.) SUBMITTED BY:-

PRITAM ANANTA

UNIVERSITY SCHOOL OF LAW & LEGAL STUDIES GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY DWARKA SECTOR—16 C, DELHI MAY 2013

TABLE OF CONTENTS

S. No.

Description of Page

Pg No.

1.

Declaration

2

2.

Acknowledgement

3

3.

Certificate

4

4.

Introduction

5

5.

Report of the internship for the month of February, 2013

6-10

6.

Report of the internship for the month of March, 2013

11-16

7.

Report of the internship for the month of April, 2013

17-19

8.

True copy of ‘Certificate of Internship’

20-21

9.

True Copies of the Annexures

22-41

Annexure A

Petition under Article 129 of the Constitution of India read with section 2(b) and section 12 of Contempt of Courts Act 1971 and under rule 3(c) of rules to regulate proceedings for Contempt of Supreme Court, 1975

22–31

Annexure B

Application under section 151 C.P.C. for revival of the execution petition no. 241/2009

32-41

Page | 1

DECLARATION

This declaration is made on this ____ day of May 2013 at Delhi that this internship report has been prepared and drafted by me under the supervision of Ms. Tanya Khare, Associate at O.P. Khaitan & Co., Khaitan House, B-1 Defence Colony, New Delhi-110024. It contains the work accomplished by me which was assigned to me during internship. This work was done in respect of the partial fulfillment of the requirement for the award of degree of Bachelor of Law [B.B.A., LL.B (H)]. This has not been submitted either in whole or in part to any other Law University or affiliated Institute under University, recognized by the Bar Council of India for the award of any law degree or diploma within the territories of India.

Dated: May

, 2013 SAHIL KHANNA Enrollment No. 0191653508 Vth Year, Xth Semester. University School of Law & Legal Studies, B.B.A.,LL.B (H)

Page | 2

ACKNOWLEDGEMENT

At the outset, I would like to thank God for his blessings and benevolently granting me vigor and audacity to complete my internship successfully.

This is to express gratitude towards all persons who guided and motivated me throughout my internship period. It gives me immense pleasure to acknowledge my indebtedness and deep sense of gratitude and respect to Ms. Tanya Khare, Associate, O.P. Khaitan and Co. and Mr. Mohd. Saeed Husain, Junior Associate, O.P. Khaitan and Co., B-1, Defence Colony, New Delhi-110024, without whose constant guidance, this internship would have been impossible. I am thankful to them for their invaluable teachings, guidance, advice given to me, for helping me in exploring and understanding the legal drafting preparation for cases and research methodology better. I would also like to thank Mr. Arihant Jain, Junior Partner, O.P. Khaitan and Co. for his invaluable help and guidance.

Dated: May

, 2013

Place: New Delhi SAHIL KHANNA

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CERTIFICATE

The documents attached herein are the true copy of the certificate received by me in lieu of the work undertaken during the course of my internship and the drafts prepared by me for the drafting purposes.

Dated: May

, 2013 SAHIL KHANNA

Page | 4

INTRODUCTION

The classroom study and practical training in the field of law is considered as two sides of coin. The legal profession is one of the professions which is considered incomplete without the practical training. During our five year course, we are taught both substantive as well as procedural laws but in order to understand their real application, it becomes very essential to understand the court proceedings and drafting for the purpose of submissions in the Hon’ble courts. Theoretical knowledge is not complete without practical experience. Practicing in court, only for a few months can make you learn more than your entire five year span of the college, practically. Internship period is a phase which provides a golden opportunity to a law student, before his graduation, to work in the Courts for understanding the functioning and proceeding of the Court and the most importantly, it helps in better understanding of the pleading before the Hon’ble courts. It is due to these reasons, internship is considered as incorporated as part of the curriculum and is given such significance. I got an opportunity to associate myself and work under the guidance of Ms. Tanya Khare, Associate, O.P. Khaitan & Co., for the span of two and a half months. During that period, I learnt a lot about the art of Drafting, Presentation of Pleadings and the Research on different aspects of law and the challenging propositions that she asked me to undertake, were always the best teachers. I also got an opportunity to associate myself and work under the guidance of Mr. Mohd. Saeed Husain, Junior Associate, O.P. Khaitan & Co., for the span of two and a half months. During that period, I learnt a lot about the art of pleadings in the court and analysis of various provisions of the statutes involved in the case. This internship period was of valuable work experience to start my legal career and helped me to develop necessary understanding of this field and its future prospect. The experience taught me how the written laws are applied in the real world. It also showed me the minute details of the drafting and pleadings which are either not mentioned or overlooked. Following pages show the range, variety and versatility of work that I have done during my Internship period.

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INTERNSHIP REPORT FROM 1ST OF FEBRUARY, 2013 TILL 28TH OF FEBRUARY, 2013

FEBRUARY 2013 1st February, 2013 (Friday) 

Joined the office and was assigned Litigation department and Ms. Tanya Khare (associate at O.P. Khaitan and Co.) as my principle mentor under whose expert guidance I had to work for the period of my internship.



Was assigned a task to proof read a lease deed and mark key points which may require editing.

2nd February, 2013 (Saturday) 

Was assigned research on the topic: Can a person posing as an advocate, be punished under the Advocates Act, if not, then under what law can he be punished?

3rd February, 2013 (Sunday) 

The date was a holiday on account of Sunday

4th February, 2013 (Monday) 

Attended Court proceeding in the matter of Shaan Singh vs. Sarabjit Singh.  Case No.: Suit No. 2048/2012  Facts: The present suit was filed by a minor through his mother, against his father and other family members of the father, claiming partition of properties, rendition of account, mesne profits, permanent injunction etc.  Judge Name: HMJ Rajiv Sahai Endlaw  Court: Hon’ble Delhi High Court  Next Date: Disposed off as suit withdrawn  Proceedings: The Hon’ble Judge permitted the counsel for the Plaintiff to file the application for withdrawal of the present suit stating that a Deed of Settlement dated 15th December, 2012 for maintenance of the minor son and his mother and has been reached which is in interest of the minor and it was further pointed that the settlement is not as regards the property in dispute in the suit. The minor may pursue them on attaining majority. No costs. Page | 6



Continued research on the previously assigned subject and tried to find newspaper articles for the same.

5th February, 2013 (Tuesday) 

Attended Court proceeding in the matter of Progetto Grano S.P.A. vs. Shri Lal Mahal  Case No.: EX.P. 52/2012  Judge Name: HMJ A.K. Pathak  Court: Court No. 20, Delhi High Court  Next Date: 1st May, 2013  Proceedings: An application for stay of execution of the award granted by the Learned arbitrator has been filed before the Hon’ble Supreme Court. No stay on execution has been granted by the Hon’ble Supreme Court but the Hon’ble Bench of the Delhi High Court deems it fit to not pass any orders until the Hon’ble Supreme Court has decided the petition filed before it.



Was assigned the task to brief the paper book for the matter titled CBI vs. M.K. Menon and ors.

6th February, 2013 (Wednesday) 

Attended Court proceeding in the matter of India Poly Roads Pvt. Ltd. vs. India Polymer Pavement  Case No.: OMP No. 453/2012  Judge Name: HMJ Manmohan Singh  Court: Court No. 21, Delhi High Court  Next Date: 8th February, 2013  Proceedings: Reply as required under the previous order had not been filed by the respondent rather a brief reply on behalf of the respondent was handed over and has been taken on record. The counsel for respondent undertook to supply the copy of the reply to the learned counsel for the petitioner. Listed for arguments on 8th February, 2013



Continued the task of briefing of the paper book for the matter titled CBI vs. M.K. Menon and ors.

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7th February, 2013 (Thursday) 

Continued the task of briefing of the paper book for the matter titled CBI vs. M.K. Menon and ors.



Was assigned the task of vetting certain lease documents.

8th February, 2013 (Friday) 

Attended Court proceeding in the matter of India Poly Roads Pvt. Ltd. vs. India Polymer Pavement  Case No.: OMP No. 453/2012  Judge Name: HMJ Manmohan Singh  Court: Court No. 21, Delhi High Court  Next Date: 27th February, 2013  Proceedings: Learned counsel for the petitioner seeks one week time to file the rejoinder. Let the same be filed within a week. List on 27th February, 2013



Was assigned the task to make an application under order XIII Rule 9(1) of C.P.C.



Was assigned the task of summing up the e-mail communications made with a client pertaining to a suit to be filed in UAE

9th February, 2013 (Saturday) 

The date was a holiday on account of second Saturday

10th February, 2013 (Sunday) 

The date was a holiday on account of Sunday

11th February, 2013 (Monday) 

Was assigned the task to research on the effects of the Judgment of the Hon’ble Supreme Court in Venture Global Engineering vs. Satyam Computer Services Limited (2008) and in Bhatia International vs. Bulk Trading S.A. (2002)

12th February, 2013 (Tuesday) 

Continued research on the previously assigned task relating to the effects of the two Supreme Court Judgments.

13th February, 2013 (Wednesday) Page | 8



Was assigned the task to draft a Contempt petition as the Respondents in the matter titled M/s Actia India Ltd. vs. H.K.A. Agencies had disregarded the settlement recorded by the Hon’ble Supreme Court. [Marked as Annexure A]

14th February, 2013 (Thursday) 

Continued the process of drafting the petition.



Was assigned the task to prepare a sale deed.

15th February, 2013 (Friday) 

Was assigned the task to draft a revival of execution petition in the Delhi High Court, as the Respondents in the matter titled M/s Actia India Ltd. vs. H.K.A. Agencies had disregarded the settlement recorded by the Hon’ble Supreme Court. [Marked as Annexure B]

16th February, 2013 (Saturday) 

Continued the process of drafting the petition.



Was assigned the task to research for case laws on grounds for quashing of FIR

17th February, 2013 (Sunday) 

The date was a holiday on account of Sunday.

18th February, 2013 (Monday) 

Continued the research for case laws on grounds for quashing of F.I.R.

19th February, 2013 (Tuesday) 

Had taken leave due to a minor accident and consequent knee injury

20th February, 2013 (Wednesday) 

Had taken leave due to a minor accident and consequent knee injury

21st February, 2013 (Thursday) 

Was assigned the task to prepare details of litigation handled by the firm for Sima Tectubi. Page | 9



Was assigned the task to vet and edit a suit which was required to be filed in the subsequent week.

22nd February, 2013 (Friday) 

Was assigned the task to research on the requirements for Assignment of Debt In Hong Kong

23rd February, 2013 (Saturday) 

Was assigned the task to research on the topic “the documents which need not be sealed by the company, a mere signature of a director is sufficient” for Hong Kong.

24th February, 2013 (Sunday) 

The date was a Holiday on account of Sunday.

25th February, 2013 (Monday) 

Was assigned the task to draft a reply to application filed under section 151 CPC in the matter titled as M/s Lerros Fashion vs. M.R.L. Retail Private Ltd.

26th February, 2013 (Tuesday) 

Continued the process of drafting the reply in the matter titled as M/s Lerros Fashion vs. M.R.L. Retail Private Ltd.

27th February, 2013 (Wednesday) 

Was assigned the task to research on the liability of a non-executive and non-resident director, to pay tax under ‘West Bengal State Tax on Professions, Trades, Calling and Employments Act, 1979’

28th February, 2013 (Thursday) 

Was assigned the task to brief to be submitted in Court in the matter titled Ashok Jaipuria vs. Pragya Electronics

Page | 10

ITERNSHIP REPORT FROM 1ST OF MARCH, 2013 TILL 31ST OF MARCH, 2013

MARCH, 2013 1st March, 2013 (Friday) 

Attended Court proceeding in the matter of Arun Kapur vs. Vikram Kapur  Case No.: FAO 57/2002  Judge Name: HMJ V.K. Shali  Court: Court No. 25, Delhi High Court  Next Date: 17th May, 2013  Proceedings: The appellant had expired on 7/2/2013 but no steps for substitution of his legal heirs had been taken, therefore listed on 17.5.2013



Continued the task of Briefing the matter titled Ashok Jaipuria vs. Pragya Electronics



Completed the task of research on the liability of a non-executive and non-resident director, to pay tax under ‘West Bengal State Tax on Professions, Trades, Calling and Employments Act, 1979’

2nd March, 2013 (Saturday) 

Completed the task of Briefing the matter titled Ashok Jaipuria vs. Pragya Electronics

3rd March, 2013 (Sunday) 

The date was a holiday on account of Sunday.

4th March, 2013 (Monday) 

Was assigned the task to draft a Writ Petition for quashing of F.I.R. No. 54/2012 under section 482 in the matter titled Sarabjit Singh vs. State.

5th March, 2013 (Tuesday) 

Attended Court proceeding in the matter of Project and Equipment Service vs. Union of India  Case No.: FA/327/2007  Judge Name: Justice Ashok Bhan  Court: National Consumer Dispute Redressal Commission Page | 11

 Next Date: 1st April, 2013  Proceedings: As the documents filed by the appellants were received by the respondents on 1st March, time was requested for to file a reply. The same was granted. List on 1.4.2013 

Was assigned the task to draft a Writ Petition for quashing of F.I.R. No. 42/2012 under section 482 in the matter titled Sarabjit Singh vs. State.

6th March, 2013 (Wednesday) 

Attended Court proceeding in the matter of Essjay Ericsson Pvt. Ltd. vs. Sanjay Sharma  Case No.: Suit No. 906/08 and Suit No. 50/05  Judge Name: Mr. Sunil Kumar Aggarwal, ADJ  Court: Court no. 306, Tis Hazari Court Complex  Next Date: 22nd March, 2013  Proceedings: Fresh notices issued to the defendant’s witnesses for evidence. List on 22.3.2013



Was assigned the task to research on the requirements for creation of a public trust, if any, under the Indian Trust, 1882 and its management, registration, and any related statutory requirements.

7th March, 2013 (Thursday) 

Attended Court proceeding in the matter of Girish Kapur and Ors. vs. Arun Kapur  Case No.: CS(OS) 430/2004  Judge Name: HMJ. Hima Kohli  Court: Court No. 22, Delhi High Court  Next Date: 8th May, 2013  Proceedings: It was submitted that the Defendant has expired on 7/2/13 and the Counsel for Plaintiffs No. 1 to No. 4 seeked permission of the Hon’ble Court to take necessary steps to file an appropriate application to bring on record his legal heirs. Matter listed on 8th May, 2013 before the Joint Registrar for further proceedings.

Page | 12



Continued the task of research on the requirements for creation of a public trust, if any, under the Indian Trust, 1882 and its management, registration, and any related statutory requirements.

8th March, 2013 (Friday) 

Was assigned the task to draft an evidence by way of an affidavit for the matter titled M/s Actia India vs. H.K.A. Agencies

9th March, 2013 (Saturday) 

The date was a holiday on account of second Saturday.

10th March, 2013 (Sunday) 

The date was a holiday on account of Sunday.

11th March, 2013 (Monday) 

Was assigned the task to research on the topic “What constitutes a publication of an artwork under the Copyright Act, 1957”, pertaining to a specific issue at hand in a related matter.

12th March, 2013 (Tuesday) 

Was assigned the task to research on the topic of renewal of lapsed patent due to nonpayment of fee, under the Patents Act, 1970



Continued the task to research on the topic “What constitutes a publication of an artwork under the Copyright Act, 1957”, pertaining to a specific issue at hand in a related matter.

13th March, 2013 (Wednesday) 

No Listed Matters & No work assigned as the office was closed for the day due to renovation.

14th March, 2013 (Thursday) 

Attended Court proceeding in the matter of E.C.E Industries vs. Surya  Case No.: Cr. Com 104/1/12 Page | 13

 Judge Name: Ms. Ambika Singh, MM  Court: Court No. 4, Patiala House Courts  Next Date: 18th May, 2013  Proceedings: Fresh Process to be served. 

Continued the task to research on the topic “What constitutes a publication under the Copyright Act, 1957”, pertaining to a specific issue at hand in a related matter.

15th March, 2013 (Friday) 

Was assigned the task to draft a criminal complaint under section 142 read with Section 138 of the Negotiable Instruments Act in the matter of M/s Actia India vs. H.K.A. Agencies.

16th March, 2013 (Saturday) 

Continued the drafting of the criminal complaint.



Was assigned the task to research on case laws where condonation of delay was granted, beyond the limitation on appeal against arbitral award as provided under the Arbitration and Concilliation Act, 1996.

17th March, 2013 (Sunday) 

The date was a holiday on account of Sunday.

18th March, 2013 (Monday) 

Attended Court proceeding in the matter of E.C.E Industries vs. Surya  Case No.: Cr. Com 82/12  Judge Name: Ms. Jageet Kaur, MM  Court: Court No. 10, Patiala House Courts  Next Date: 14th May, 2013  Proceedings: Fresh Process against accused issued.



Was assigned the task to draft a reply to the leave for amendment of objections filed to the execution petition in the matter titled as Kali Ltd. vs. Ashok Chawla.

Page | 14

19th March, 2013 (Tuesday) 

Was assigned the task to prepare status report of litigations between M/s Actia India and H.K.A. Agencies.



Was assigned the task to research on the topic acertainability of land under order VII Rule 3

20th March, 2013 (Wednesday) 

Was assigned the task to research on case laws relating to requirement of filing a layout plan of the land under Order VII Rule 3 of C.P.C., in cases of encroachment.

21st March, 2013 (Thursday) 

Was assigned the task to research and prepare a jurisdiction and court fee comment pertaining to matter of which a suit was to be subsequently filed.

22nd March, 2013 (Friday) 

Was assigned the task to draft an affidavit for change of name of the product.



Was assigned the task to research on the changes brought due to the Hon’ble Supreme Court’s Judgment titled Bharat Aluminium Co. vs. Kaiser Aluminium Technical Services.

23rd March, 2013 (Saturday) 

Was assigned the task to draft a suit to be filed pertaining to the dispute between Zamil Infra Ltd and Sunergy India Ltd. & Others.

24th March, 2013 (Sunday) 

The date was a holiday on account of Sunday.

25th March, 2013 (Monday) 

Continued the task of drafting a suit to be filed pertaining to the dispute between Zamil Infra Ltd and Sunergy India Ltd. & Others.

Page | 15

26th March, 2013 (Tuesday) 

Completed the task of drafting a suit to be filed pertaining to the dispute between Zamil Infra Ltd and Sunergy India Ltd. & Others.

27th March, 2013 (Wednesday) 

The date was a holiday on account of Holi

28th March, 2013 (Thursday) 

Was assigned the task to write a speech on the enforcement of foreign arbitral awards in India, for a Partner of the firm to be delivered by her at a conference meeting with delegates of law firms from various countries.

29th March, 2013 (Friday) 

Continued the task of writing a speech on the enforcement of foreign arbitral awards in India.

30th March, 2013 (Saturday) 

Continued the task of writing a speech on the enforcement of foreign arbitral awards in India.

31st March, 2013 (Sunday) 

The date was a holiday on account of Sunday.

Page | 16

INTERNSHIP REPORT FROM 1ST OF APRIL, 2013 TILL 15TH OF APRIL, 2013

APRIL, 2013 1st April, 2013 (Monday) 

Attended Court proceeding in the matter of Project and Equipment Service vs. Union of India  Case No.: FA/327/2007  Judge Name: Justice Ashok Bhan  Court: National Consumer Dispute Redressal Commission  Next Date: 16th May, 2013  Proceedings: The matter was listed for arguments but as the main counsel for neither the Petitioner nor the Respondent were present, matter was adjourned. Listed on 16.5.2013



Was assigned the task to Researched on General Power of Attorney, enforcement of Power of Attorneys and Intestate Succession under the Transfer of Property Act, 1882 after Suraj Lamps Judgment in the states of Uttar Pradesh, Punjab, Haryana and Delhi

2nd April, 2013 (Tuesday) 

Continued the Research on General Power of Attorney, enforcement of Power of Attorneys and Intestate Succession under the Transfer of Property Act, 1882 after Suraj Lamps Judgment in the states of Uttar Pradesh, Punjab, Haryana and Delhi. Prepared a note for the same.

3rd April, 2013 (Wednesday) 

Was assigned the task to research on the topic of “enforcement of Foreign Arbitral awards when the Arbitration clause or the contract itself was void ab-initio”.

4th April, 2013 (Thursday) 

Had taken a leave for research for the dissertation.

5th April, 2013 (Friday) 

Had taken a leave for research for the dissertation. Page | 17

6th April, 2013 (Saturday) 

Had taken a leave for research for the dissertation.

7th April, 2013 (Sunday) 

The date was a holiday on account of Sunday.

8th April, 2013 (Monday) 

Was assigned the task to research on the issue scope of interference by the courts in the matters of administrative action.

9th April, 2013 (Tuesday) 

Was assigned the task to analyse and brief the Novatis Judgment given by the Hon’ble Supreme Court.

10th April, 2013 (Wednesday) 

Was assigned the task to Research on Statutory requirements for manufactured cosmetic products under The Legal Metrology (Packed Commodities) Rules 2011, Drugs and Cosmetics Act, 1940 & Drugs and Cosmetics Rules, 1945.

11th April, 2013 (Thursday) 

Was assigned the task to comment on the compliance of statutory requirements on the label of cosmetic product “Eye Kajal”.



Editing of a suit to be filed in the subsequent week.

12th April, 2013 (Friday) 

Was assigned the task to comment on the compliance of statutory requirements on the label of cosmetic product “Pedicure and Manicure Kit”.

13th April, 2013 (Saturday) 

The date was a holiday on account of second Saturday

14th April, 2013 (Sunday) 

The date was a holiday on account of Sunday. Page | 18

15th April, 2013 (Monday) 

Was required to submit a note on the tasks handled during the course of internship

Page | 19

Internship Certificate

Page | 20

Internship Certificate

Page | 21

ANNEXURE - A

IN THE SUPREME COURT OF INDIA

CONTEMPT PETITION NO.

OF 2013

IN SPECIAL LEAVE PETITION (CIVIL) NO. 15426 / 2011

IN THE MATTER OF: …..Petitioner

M/s Actia India Pvt. Ltd Versus

HKA Agencies and Ors.

….Respondents

PETITION UNDER ARTICLE 129 OF THE CONSTITUTION OF INDIA READ WITH SECTION 2(b) AND SECTION 12 OF CONTEMPT OF COURTS ACT 1971 AND UNDER RULE 3(C) OF RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF SUPREME COURT, 1975

MOST RESPECTFULLY SHOWETH:

1. That the Petitioner had filed the above captioned petition challenging the judgment dated 11th January, 2011 passed by the Hon’ble High Court of Kerala at Ernakulam in Arbitration Appeal No. 2 of 2011. The said petition was filed in the following back ground: a) On March 4,2009 an award was passed in favour of the Petitioner wherein the details of the amount awarded are as under: “In total Rs. 2,52,79,787/- was awarded (comprising of principal sum of Rs. 2,30,43,558.72/- and interest upto the date of filing of the claim amounting to Rs.

Page | 22

12,36,228.68/- and the cost of Rs. 10 Lakhs) with interest on principal amount @ 7.5% p.a post filing of statement claim until payment .” b) That there after the Petitioner initiated the

execution proceedings seeking

execution and enforcement of the award dated March 4, 2009 and filed an Execution Petition no. 241 of 2009 before the Hon’ble Delhi High Court

c) The Respondents in the said execution raised the plea that the execution petition was not maintainable before the Hon’ble Delhi High Court as “the branch concerned falls within the jurisdiction of the Kerala High Court,” wherein the Respondents have filed application being Arbitration O.P. No. 744 of 2009 challenging the award and whereunder the District Court, Ernakulam has passed an interim order staying the operation of the award.

d) Immediately, thereafter the petitioner entered appearance in the

proceedings

pending before the District court Ernakulam and also filed an application being I.A No. 104 of 2010 under Order 7 Rule 10 CPC interalia on the ground that since during the pendency of the Arbitration proceedings, Actia(Petitioner) had filed before the Hon’ble High Court of Delhi at New Delhi a petition under Section 9 of the Arbitration and Conciliation Act being OMP No. 655 of 2008 praying for the restraint order with respect to the bank account of HKA and ors(Respondents), particulars of which were given in the said petition under reference. The Respondents had entered appearance and also filed their reply. The Hon’ble High Court of Delhi at New Delhi vide its order dated April 2, 2009 passed the order for attaching the amount lying deposited in the said bank account of the Respondents with specific direction that the same shall not be disbursed and

Page | 23

disturbed till further orders and without the leave of the court. In view thereof, in accordance with section 42 of the Act, the Hon’ble Delhi High Court had exclusive jurisdiction in respect of all proceedings including petition under 34 of the act to the exclusion of all other courts including the court at Ernakulam.

e) In view of the pendency of proceedings before Kerala District Court, the Hon’ble Delhi High Court adjourned the execution Petition sine die with liberty to the parties to revive the same as & when the occasion therefore arises.

f) The Petitioner’s application being I.A No. 104 of 2010 before the Ld. District Court Ernakulam, Kerala for rejection of Respondents’ section 34 application on account of section 42 of the Act, was allowed on 10.12.2010 and the Respondents’ application under section 34 was directed to be returned.

g) That the Respondents still took their chances and challenged the said order of District Judge before the Hon’ble Division Bench of Kerala High Court , which ultimately vide its order dated January 11,2011 dismissed their appeal; however, despite the said dismissal, the Division Bench in para 18 of the said judgment of January 11,2011 passed the direction permitting the Respondents to prefer section 34 application before the Delhi High Court within 30 days.

h) On February 6, 2011 Respondents filed section 34 application before Delhi High Court which on February 28, 2011 issued notice on Respondents’ application under section 34 of the Act.

Page | 24

i) Aggrieved by the direction of the Hon’ble Division Bench Kerala High court, the Petitioner preferred the abovementioned SLP before this Hon’ble Court. j) In the SLP this Hon’ble Court vide its order dated July 6,2011 stayed the proceedings before the Hon’ble Delhi High Court in the section 34 petition of the Judgement Debtors being OMP no. 173 of 2011. Here to annexed and marked as ANNEXURE ______ is the copy of the said order dated July 6,2011.

2. Sometime around November, 2011 the parties i.e. the Petitioner and the Respondents deliberated and reached an amicable settlement. A joint application being I.A. no. 2 of 2012 under order 23 Rule 3 CPC was filed before this Hon’ble Court. Here to annexed and marked as ANNEXURE _______ is the copy of the joint application filed before this Hon’ble Court.

3. As per the settlement as arrived between the parties, the Respondents were to pay Rs 2 crore to the Petitioner in full and final settlement of all dues; the said sum was to be paid in twelve installments i.e. eleven PDCs of Rs 16,65,000/ and a demand draft of Rs 16,85,000/;.

4. The terms of settlement were incorporated in para 2 of the application ; under clause 2(g) of the application the Respondents undertook that the post dated cheques shall be honoured by their bank as and when they are presented for payment.

5. Under Clause 2( i) of the application it was agreed that on payment of Rs 2 crore by the Respondents the award passed by the learned arbitrator dated Marc 4,2009 would stand satisfied. Page | 25

6. That the Hon’ble Supreme Court disposed off the aforementioned SLP on March 15, 2012 in terms of settlement as recorded in the joint application as referred hereinabove. The following order was passed by this Hon’ble Court: “IA 2 of 2011, has been filed in the Special Leave Petition, praying for the matter to be disposed of, since the parties have arrived at a mutual settlement, which is part of the application itself. In terms of paragraph 2(d) of the application, a cheque for the sum of Rs. 16,65,000/- has been made over by the respondents to the petitioner’s learned advocate. Accordingly, let the Special Leave petition be disposed of, in view of the settlement incorporated in the application.” Hereto annexed and marked as ANNEXURE _____ is the copy of the order dated March 15, 2012 passed by this Hon’ble Court.

7. That around one month after the order of this Hon’ble Court, the Respondents requested for rescheduling of payment dates of its PDC’s and the demand draft. Hereto annexed and marked as ANNEXURE _______ is the email dated 20.04.2012 by the Respondents to the Petitioner. Agreeing to the Respondents’ request, the Petitioner presented the cheques on the dates as confirmed by the Respondents.

8. That accordingly, out of the total agreed settled sum of Rs 2 Crore the Respondents paid an amount of Rs 1,33,40,000/ only i.e. out of the twelve installments, eight installments were duly paid.

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9. That thereafter, however, for the remaining four installments totaling to Rs 66,60,000/ falling due from July 2012, the Respondents again requested for an accommodation to extent of the deferment/rescheduling of payments on account of certain alleged financial constraint as faced by them in their business.

10. That on the request of the Respondents, the Petitioner accordingly and bonafide believing the request of the Respondents did not present the two cheques dated July 31, 2012 and August 31,2012 respectively on their due dates. Pertinent to mention that even for the cheque dated June, 2012 the Petitioner on the request of Respondents further accommodated the Respondents by extending the time with respect to the Payment of Rs. 16,65000/- due against the cheque dated June, 2012. The said payment was made by the Respondents in two installments in November 2012. The reason cited by Respondents for delayed payment was heavy income tax paid by the Respondents as a result of which they pleaded inadequacy of funds in their accounts.

11. That thereafter as the Respondents were not forthcoming with the new date for the presentation of the aforesaid cheques,

several mails were issued by the Petitioner

inquiring as to by when he could present the cheques. To this, Respondents kept asking for further time with repeated assurances portraying a very dismayed picture about the Non availability of finances. The Respondents cited various reasons/excuses to the Petitioner for non-payment. The patience of the Petitioner was being tested.

12. Ultimately, Respondents via email dated December 5, 2012 stated that for the balance 4 installments he needed some more time and he would clear the balance 4 installments via 4 new cheques from Jan 30 to April 30 ,2013. In furtherance of the

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Respondents’ email and as per the recent RBI notification regarding the new format of the cheques the Petitioner sent an e-mail dated December 6, 2012 to the Respondent asking for reissuance of fresh cheques dated 30th December 2012, 30th January 2013, 28th February 2012 and 30th march 2012

13. The copies of the emails exchanged between the Petitioner and the Respondent is annexed hereto and marked as ANNEXURE _______ colly.

14. Unfortunately, no new/fresh cheques were issued.

15. That the Petitioner states that since the Respondents failed to issue new cheques, the Petitioner on December 24,2012 presented the two cheques dated September 29,2012 and October 31, 2012 for Rs. 16,65,000/- each drawn on ING Vysya Bank Ltd Pallrivattom Branch, Kochi 682025, for encashment. That both the cheques were returned unpaid by the bankers of Respondents for the reason “funds insufficient”. The copy of the memos received from the Bank is annexed hereto and marked ANNEXURE ________ colly. That cheque dated October 31, 2012 was represented by the Petitioner on January 18, 2013 but the same was again dishonoured. The copy of the memo received from the Bank is annexed hereto and marked as ANNEXURE _______.

16. That the Petitioner has issued legal notices under section 138 of Negotiable Instrument Act, 1881 to the Respondents on January 25, 2013 and January 28, 2013 with respect to cheque dated 29.09.2012 and 31.10.2012 respectively. Annexed hereto and marked ANNEXURE _____ & ______ respectively are the copies of legal

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notices dated 25.01.2013 and 28.01.2013. It is submitted that the same was being issued without prejudice to the right of the Petitioner to recover the entire due amount as per the original award and to initiate the present contempt proceedings against the Respondents.

17. In the meanwhile, mails were exchanged between Petitioner and Respondents between December 25, 2012 and January 21, 2013 i.e. subsequent to the presentation of two cheques by Petitioner for encashment and before issuance of Legal Notices by Petitioner to Respondents; the copies of mails is annexed hereto and marked as ANNEXURE _____ colly. In one of the mails dated December 31,2012 the Respondents informed that they have issued a new cheque in lieu of the cheque which had become date invalid. The said cheque was received by the Petitioner on January 5,2013 and is dated February 28,2013; subsequently in one of the mails dated 19.01.2013 the Respondents informed that instead of the four due instalments, they can only pay two instalment and that too in between March 15 & 30, 2013. The said mail was replied by Petitioner on 21.01.2013 informing that any renegotiation of the terms was not acceptable to the Petitioner.

18. It is submitted that the sequence of events as detailed herein above ex facie demonstrate that the Respondents have not only deliberately and contumaciously not complied with the terms of joint application filed before this Hon’ble Court in which the order dated March 15,2012 was passed by this Hon’ble Court but have also deliberately violated the undertaking given to this Hon’ble Court under the said application and therefore, the Respondents clearly are

guilty of contempt of this

Hon’ble Court.

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19. It is submitted that since the Respondents have deliberately flouted the terms of compromise/settlement, have deliberately failed to fulfill their commitment under the settlement as recorded in the joint application filed before this Hon’ble Court and have failed to pay the due amount for which undertaking was given them. Moreover, as the Respondents /contemnors had failed to satisfy the award, as settled in terms of the compromise, the Petitioner moved an application for the revival of the execution proceedings before the Hon’ble Delhi High Court for recovering the remaining award amount in which notice has been issued by the Hon’ble Delhi High Court .

20. It is submitted as the Respondents have not complied with the terms of joint application filed before this Hon’ble Court and are guilty of violating and that too deliberately the undertaking as given before this Hon’ble Court as well as the order of this Hon’ble Court dated March 15, 2012 disposing the present matter in terms of the joint application, the Petitioner is moving the present petition before this Hon’ble Court for initiation of contempt proceedings against the Respondents.

21. It is submitted that the order dated March 15, 2012 passed by this Hon’ble Court was based on the undertaking given by the Respondents to this Hon’ble Court. The Respondents have deliberately and intentionally infringed and violated the order, which is contumacious. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.

22. That the willful disobedience and breach of the settlement order Respondents constitutes contempt of Court and the Respondents are liable to be proceeded against

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under article 129 of the Constitution of India read with section 2 (b) and Section 12 of the Contempt of Courts Act, 1971 and under Rule 3 (c) of the Rules to regulate proceedings for contempt of Supreme Court, 1975.

23. That the present application is made bonafide and is in the interest of justice.

PRAYER In the premises, it is most respectfully prayed that this Hon’ble Court may be pleased to:a) pass an order holding the respondents guilty of committing contempt of Court by deliberate and willful disobedience of the undertaking given by them to this Hon’ble Court b) detain the respondents in civil prison c) attach the properties of the Respondents for deliberately flouting the orders of this Court. d) Pass such further or other order and/or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

PETITIONER

THROUGH:

O.P. KHAITAN & CO. ADVOCATES FOR THE PETITIONER

NEW DELHI DATED: FEBRUARY, 2013

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ANNEXURE - B IN THE HIGH COURT OF DELHI AT NEW DELHI I.A. No.

Of 2013 IN

EXECUTION PETITION NO. 241 of 2009 IN THE MATTER OF: …DECREE HOLDER

M/s ACTIA INDIA PVT. LTD. VERSUS HKA AGENCIES & ORS.

…JUDGMENT DEBTORS

APPLICATION UNDER SECTION 151 CPC FOR REVIVAL OF THE EXECUTION PETITION NO. 241/2009 The Decree Holder/Applicant respectfully submit as under:

1.

The Decree holder had filed the present execution proceedings seeking execution and enforcement of the award dated March 4, 2009 passed in favour of the decree holder by the learned arbitrator Justice A.M. Ahmadi (Retd).The details of the amount as awarded by the learned arbitrator are as under: In total Rs. 2,52,79,787/- was awarded (comprising of principal sum of Rs. 2,30,43,558.72/- and interest upto the date of filing of the claim amounting to Rs. 12,36,228.68/- and the cost of Rs. 10 Lakhs) with interest on principal amount @ 7.5% p.a. post filing of statement claim until payment .

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2.

By an order dated 30.09.2010, this Hon’ble Court was pleased to adjourn the present execution proceedings sine die with liberty to the parties to revive the same. The said order was passed in the following back ground: a)

In the present execution proceedings this Hon’ble Court vide its Order dated October 07,2009 had directed the Judgment/Debtors to interalia “file affidavits before the next date of hearing disclosing all their assets and properties both movable and immovable including bank a/c and also to disclose about sales encumbrances if any of their assets after making of the award”

b)

Pursuant to the said order, the Judgment Debtors filed the Counter Affidavit raising the plea that the present execution petition was not maintainable before this Hon’ble Court as “the branch concerned falls within the jurisdiction of the Kerala High Court,” wherein the Judgment Debtors have filed application being Arbitration O.P. No. 744 of 2009 challenging the award and whereunder the District Court, Ernakulam has passed an interim order staying the operation of the award.

c)

In response there to the decree holder in its rejoinder affidavit clarified that till the time of filing of the present execution petition, neither was the Decree Holder aware of the proceedings initiated by the Judgment Debtors in the District Court Ernakulam, Kerala nor had it received any notice to that effect; It was only subsequent to the filing of the present petition that the Decree Holder was served with a court notice of the proceedings pending in the District Court, Ernakulam.

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d)

Immediately, thereafter the Decree Holder entered appearance in the said proceedings and also filed an application being I.A No. 104 of 2010 under Order 7 Rule 10 CPC interalia on the ground that since during the pendency of the Arbitration proceedings, Actia(Decree Holder) had filed before the Hon’ble High Court of Delhi at New Delhi a petition under Section 9 of the Arbitration and Conciliation Act being OMP No. 655 of 2008 praying for the restraint order with respect to the bank account of HKA and ors(Judgment Debtors), particulars of which were given in the said petition under reference. The Judgment debtors had entered appearance and also filed their reply. The Hon’ble High Court of Delhi at New Delhi vide its order dated Aprial 2, 2009 passed the order for attaching the amount lying deposited in the said bank account of the Judgment Debtor with specific direction that the same shall not be disbursed and disturbed till further orders and without the leave of the court. In view thereof, in accordance with section 42 of the Act, the Hon’ble Delhi High Court had exclusive jurisdiction in respect of all proceedings including petition under 34 of the act to the exclusion of all other courts including the court at Ernakulam.

3.

In view of the pendency of proceedings before Kerala District Court, this Hon’ble Court adjourned the present Petition sine die with liberty to the parties to revive the same as & when the occasion therefore arises.

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4.

It is stated that the decree holder’s application being I.A No. 104 of 2010 before the district court Erankulam, Kerala for rejection of Judgment Debtors’ section 34 application on account of section 42 of the Act, was allowed on 10.12.2010 and the Judgment debtors’ application under section 34 was directed to be returned. Here to annexed and marked as ANNEXURE ______ is the copy of the said order dated 10.12.2010 passed by district Court , Ernakulam, Kerala.

5.

That the Judgment Debtors still took their chances and challenged the said order of District Judge before the Hon’ble Division Bench of Kerala High Court , which ultimately vide its order dated January 11,2011 dismissed their appeal; however, despite the said dismissal, the Division Bench in para 18 of the said judgment of January 11,2011 passed the direction permitting the Judgment Debtor to prefer section 34 application before the Delhi High Court within 30 days. Here to annexed and marked as ANNEXURE _______ is the copy of the said order dated 11.01.2011 passed by Hon’ble Division Bench of Kerala High Court.

6.

On February 6, 2011 Judgment Debtors filed section 34 application before Delhi High Court which on February 28, 2011 issued notice on judgment Debtors’ application under section 34 of the Act.

7.

Aggrieved by the direction of the Hon’ble Division Bench Kerala High court, the Decree Holder preferred an SLP before the Hon’ble Supreme Court.

8.

In the SLP as filed by the Decree Holder, the Hon’ble Supreme Court vide its order dated July 6,2011 stayed the proceedings before the Hon’ble Delhi High Court in the

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section 34 petition of the judgment debtors being OMP no. 173 of 2011. Here to annexed and marked as ANNEXURE _____ is the copy of the said order dated July 6, 2011.

9.

Sometime around November, 2011 the parties i.e. decree holder as well as judgment debtors deliberated and reached an amicable settlement. A joint application under order 23 rule 3 CPC was filed before the Hon’ble Supreme Court. Here to annexed and marked as ANNEXURE _____ is the copy of the joint application being I.A No. 2 of 2011 as filed before the Hon’ble Supreme Court.

10.

As per the settlement as arrived between the parties , the judgment debtors were to pay Rs 2 crore to the decree holder in full and final settlement of all dues; the said sum was to be paid in twelve installments i.e. eleven PDCs of Rs 16,65,000/ and a demand draft of Rs 16,85,000/;. The terms of settlement are in para 2 of the application ; in clause 2(g) the judgment debtors undertook that the post dated cheques shall be honored by their bank as and when they are presented for payment. Under Clause 2( i) of the application it was agreed that on payment of Rs 2 crore by the judgment debtors the award passed by the learned arbitrator dated Marc 4,2009 would stand satisfied.

11.

That the Hon’ble Supreme Court disposed off the aforementioned SLP on March 15, 2012 in terms of settlement as recorded in the joint application as referred hereinabove. Hereto annexed and marked as ANNEXURE _____ is the copy of order dated March 15, 2012 passed by the Hon’ble Supreme Court. Pertinent to mention

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that around one month after the order of Supreme Court, the Judgment Debtors requested for rescheduling of payment dates of its PDCS and the dd---- hereto annexed and marked as ANNEXURE ____

dated 20.04.2012 by the Judgment

Debtors to the Decree Holder. Receiving the Judgment debtor request, the Decree holder presented the cheques on the defendant is confirmed by the Judgment Holders.

12.

That the Decree Holder states that out of the total agreed settled sum of Rs 2 Crore the judgment debtors paid an amount of Rs 1,33,40,000/ only

i.e. out of the twelve

installments, eight installments were duly paid. However, for the remaining four installments totaling to Rs 66,60,000/ falling due from July 2012, the judgment debtors again requested for an accommodation on account of certain financial constraint as faced by them in their business. On the request of the judgment debtors, the Decree holder did not present the two cheques dated July 31,2012 and August 31, 2012 respectively. Pertinent to mention that even for the cheque dated June, 2012 the Decree Holder on the request of Judgment Debtors further accommodated the Judgment Debtors by extending the time with respect to the Payment of Rs. 16,65000/- due against the cheque dated June 26, 2012. The said payment was made by the Judgment Debtors in two installments 4 November 2012. The reason cited by Judgment Debtors for delayed payment was heavy income tax paid by the Judgment Debtors as a result of which they pleaded inadequate -----of funds in their accounts.

13.

That thereafter several mails were exchanged between the parties wherein the decree holder kept asking as to by when he could present the cheques. Several assurances were given to the decree holder by the judgment debtors and a very dismayed picture was portrayed about the Non availability of finances. The Judgment Debtors cited

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various reasons/excuses to the decree holder for non-payment. The patience of the decree holder was being tested. The Judgment Debtor via email dated December 5, 2012 stated that for the balance 4 installments he needed some more time and he would clear the balance 4 installments via 4 new cheques from Jan 30 to April 30 ,2013. In furtherance of the Judgment Debtor’s email and as per the recent RBI notification regarding the new format of the cheques the Decree holder sent an e-mail dated December 6, 2012 to the Judgment Debtor asking for reissuance of fresh cheques dated 30th December 2012, 30th January 2013, 28th February 2012 and 30th march 2012 The copies of the emails exchanged between the Decree holder and the Judgment Debtor is annexed hereto and marked as ANNEXURE ____

14.

Perusal of the same reveals and substantiates that fact that the judgment debtors had requested for the deferment of payment date and not for the reduction of the amount due ; in larger interest the decree holder agreed for the same. Taking advantage of the leniency as shown by the decree holder, the judgment debtors acted in defiance of the agreement and the undertaking as given before the Hon’ble Supreme Court.

15.

That the decree holder states that Since the Judgment Debtors failed to issue new cheques, the decree holder on December 24,2012 presented the two cheques dated September 29,2012 and October 31, 2012 for Rs. 16,65,000/- each drawn on ING Vysya Bank Ltd Pallrivattom Branch, Kochi 682025, for encashment. That both the cheques were returned unpaid by the bankers of Judgment Debtors for the reason “funds insufficient”. The copy of the memo received from the Bank is annexed hereto and marked ANNEXURE _____. That cheque dated October 31, 2012 was

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represented by the Decree holder on January 18, 2013 but the same was again dishonored. The copy of the memo received from the Bank is annexed hereto and marked as ANNEXURE _____. That the Decree holder has issued legal notices under section 138 of Negotiable Instrument Act, 1881 to the Judgment Debtors on January 25, 2013 and January 28, 2013 with respect to cheque dated 29.09.2012 and 31.10.2012 respectively. ANNEXURE _____ hereto and marked ANNEXURE ____ & _____ respectively are the copies of legal notices dated 25.01.2013 and 28.01.2013.

16

It is submitted that the Judgment Debtors have not complied with the joint application filed before the Hon’ble Supreme Court and are also guilty of violating the undertaking as given before the Hon’ble Supreme Court for which the Decree holder would be taking appropriate steps. That the Decree holder is also filing herewith the copies of mails exchanged between Decree holder and Judgment Debtors between December 25, 2012 and January 21, 2013 i.e. subsequent to the presentation of two cheques by Decree Holder for encashment and before issuance of Legal Notices by Decree Holder and Judgment Debtors, the copies of mails is annexed hereto and marked as ANNEXURE _____ colly. In one of the mails dated 19.01.2013 the Judgment Debtors informed that instead of the four due installments, they can only pay two installment and that too in between March 15 & 30, 2013. The said mail was replied by Decree Holder on 21.01.2013 informing that any renegotiation of the terms was not acceptable to the Decree Holder.

It is submitted that the same is

being issued without prejudice to the right of the decree holder to recover the entire due amount as per the original award.

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17.

It is submitted that since the Judgment Debtors have broken the terms of compromise/settlement, have failed to fulfil their commitment under the settlement as recorded in the joint application filed before the Supreme court and have failed to pay the undertaken due amount, the non-payment by the Judgment debtors entitles the Decree holder to recover the entire original amount due for which the Decree Holder is moving the present application for the revival of the execution proceedings before this Hon’ble Court . It is submitted that the present is a fit case for the recovery of the entire outstanding amount.

18.

It is pertinent to mention that as per clause 2(h) of the joint application moved before the Hon’ble Supreme Court the parties had inter alia agreed that on disposal of the petition in terms of the settlement , the judgment debtors would withdraw OMP no. 173 of 2011 filed before the Hon’ble Delhi High court and the decree holder would withdraw the above captioned execution petition being 241 of 2009 before this Hon’ble Court.

19.

It is stated that neither the judgment debtors withdrew their section 34 nor did the Decree holder withdrew its execution. It is stated that since the Judgment debtors were not complying with the terms of settlement, the question/opportunity of Decree Holder withdrawing the execution never arose. In view of the aforesaid facts and circumstances the decree holder is seeking the revival of the above captioned execution petition which was adjourned sine die. The revival is sought for the purposes of recovering the due decreetal amount.

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20.

In the aforesaid circumstances, the execution proceedings may be revived and proceeded with by this Hon’ble Court. Accordingly, the Decree Holder is filing the present application.

PRAYER The Decree Holder most respectfully pray that this Hon’ble Court may be pleased to: (a)

direct revival of the Execution Petition No.241/2009; and

(b)

pass such other or further order(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

DECREE HOLDER/APPLICANT

THROUGH:

NEW DELHI BHARTI BADESRA O.P.KHAITAN & CO, ADVOCATES FOR THE DECREE HOLDER/APPLICANT KHAITAN HOUSE B-1, DEFENCE COLONY NEW DELHI-110024 PH. 46501000 DATED: FEBRUARY __, 2013

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