NUJS-HSF Moot Court Competition, 2015: Finalists - Respondents

IN THE HIGH COURT OF CALCUTTA
AT CALCUTTA
Letters Patent Appeal No. ____/2013

(Under Clause 15 of Letters Patent for the High Court of Calcutta, 1865)
Celltone plc. ...Appellant
v.
IndMobile Telecoms Limited,
5G Star Networks Limited.........Respondents
Clubbed with
Celltone plc . ...Appellant
v.
Band Bank........Respondent
Clubbed With
Celltone plc .... .Appellant
v.
M/s Darsh Legal Associates....Respondent
Written submissions on behalf of,
Team Code: HS15F
Counsel for the Respondents.
TABLE OF CONTENTS
7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015
List of Abbreviations..................................................................................................................4
Index of Authorities....................................................................................................................6
Statement of Jurisdiction............................................................................................................9
Questions Presented.................................................................................................................10
Statement of Facts....................................................................................................................11
Summary of Pleadings.............................................................................................................15
Pleadings..................................................................................................................................18
I. The Incidents Surrounding the LoI do not Constitute a Fraudulent Breach of the SAA..18
[A]. The LoI does not Interfere with the Execution of the SAA......................................18
[B]. The Clause Restricting the Transferability of the Shares is Unenforceable Against
5G Star.............................................................................................................................18
[C] The LoI is not Legally Binding on the Parties and is Unenforceable Against
IndMobile.........................................................................................................................20
[D]. No Fraudulent Misrepresentation has been Made....................................................23
II. The Incidents Surrounding the Calcutta License do not Constitute a.............................25
Breach of the SAA...............................................................................................................25
[A]. License Set Apart on a Lower Standard...................................................................25
[B]. The Payments Made were Legitimate.......................................................................27
[C]. The License was not Quashed until after Completion of the Deal...........................28
III. The Incidents Surrounding the ARPU do not Constitute a Breach Of Representation..28
[A]. The Correct Figures were Supplied..........................................................................28
[B]. Celltone had The Ability to Conduct Due Diligence................................................29
[C]. In any event, There was No Fraudulent Misrepresentation......................................30
IV. The Damages Claimed are Incorrect and should not be Awarded..................................31
V.
Band Bank is not Obligated to Release the Escrow Amount....................................32

[A]. The Indemnification Obligations have Not been Triggered.....................................32
[B]. The Suit filed by Celltone is Premature....................................................................32
MEMORIAL FOR THE RESPONDENTSPAGE 2

[C]. Celltone Cannot Seek Indemnity for Damage Caused by its Own Negligence........33
VI. DLA is not Liable to Pay Damages to Celltone.............................................................34
[A]. An Incorrect Opinion is not Actionable....................................................................34
[B]. DLA owed No Duty Of Care towards Celltone........................................................35
[C]. In any case, the Opinion cannot be Considered Incorrect in light of its Assumptions
..........................................................................................................................................35
[D]. Celltones Own Negligence Exceeds that of DLA...................................................37
Prayer.......................................................................................................................................38
Appendix I................................................................................................................................39
LIST
OF
ABBREVIATIONS
Paragraph
AC
Appeal Cases
AIR
All India Reporter
All ER
All England Reports
AoA
Articles of Association
ARPU
Average Revenue Per Unit
BCC
British Company Law Cases
BCLC
Butterworths Company Law Cases
Cal.
California Supreme Court
Ch
Chancery
Ch.D.
Chancery Division
Cir.
Circuit
Comm
Commercial
Comp Cases
Company Cases
Del. Ch.
Delaware Court of Chancery
Del. SC.
Delaware Supreme Court
DLA
Darsh Legal Associates
Edn.
Edition
EWCA
England and Wales Court of Appeal
EWHC
England and Wales High Court
F.Supp
Federal Supplement
HL
House of Lords
KB
Kings Bench
Lloyds Rep
Lloyd's Law Reports
LoI
Letter of Intent
Mass. App. Ct.Massachusetts Appeals Court

N.Y.
New York Court of Appeals
PC
Privy Council
QB
Queen's Bench

QBD
Queen's Bench Division, Law Reports
SAA
Share Acquisition Agreement
SC
Supreme Court
SCC
Supreme Court Cases
Supp.
Supplement
TLR
The Times Law Reports
UKHL
UK House of Lords
WLR
Weekly Law Reports
INDEX
OF
Indian Cases
AUTHORITIES
1. Centre for Public Interest Litigation v. Union of India, AIR 2012 SC 1.25
2. Dresser Rand S.A. v. M/s. Bindal Agro Chemical Ltd. & Another,
AIR 2006 SC 871.........20
3. Gujarat Urja Vikas Nigam Ltd. vs. Tata Motors, (2013) Indlaw Mum 679.33
4. Iridium India Telecom Ltd v. Motorola Incorporated & Ors., AIR 2011 SC 74.26
5. Jet Airways v. Sahara Airlines, Final Award, 12 April 2007 (Bombay HC)....33
6. Kokanda Poondacha v K.D Ganapathi, AIR 2011 SC 600..35
7. M. Radha Krishnamurthy v. State of AP, AIR 2009 SC 386...26
8. Mafatlal Industries Ltd. V. Gujarat Gas Co. Ltd. And Ors. (1999) 97 CompCases
301 Guj......................................................................................................................19
9. Ninagawwa v. Byrappa Shiddapa Hirekubar, AIR 1978 SC 956.24
10. Pushpa Katoch v. Manu Maharani, (2006) 131 Comp Cases 42 (Delhi)......19
11. RC Thakkar v. Gujarat HSG Board, AIR 1973 Guj 34.30
12. Rickmers Verwaltung Gmbh v. Indian Oil Corporation Ltd., AIR 1999 SC 504.21
13. S.P. Jain v. Kalinga, AIR 1965 SC 1535...19
14. Shankar Nimbaji Shintre & ors. vs. Laxman Supdu Shelke, AIR 1940 Bom 16132
15. Shri Krishnan v. Kurukshetra University, AIR 1976 SC 376..24,30
16. State Bank of Saurashtra v. Ashit Shipping, AIR 2002 SC 1993.33
17. Tata Cellular v. Union of India, AIR 1994 SC 651..26
18. V.B. Rangaraj v. V.B. Gopalakrishnan and Others, AIR 1992 SC 453....19
19. Western Maharashtra Development Corp v. Bajaj Auto Ltd, (2010) 154 Comp Cases
593.19
U.K Cases
1. Barbudev v. Eurocom Cable Management Bulgaria, [2011] EWHC 1560 (QBD,
Comm)................................................................................................................20,22, 23
Bechey Lal v. Rex [1950] ALJ 57...27
2. Bell v. Lever Bros Ltd, [1932] AC 16123
3. Bottin International Investments Ltd v. Venson Group plc, [2004] EWCA Civ
1368...29
4. Courtney and Fairbairn Ltd v. Tolaini Bros (Hotels) Ltd., [1975] 1 All ER 716.23
5. Eurocopy v Teesdale, [1992] B.C.L.C. 106724
6. Foley v. Cassique Coaches Ltd., [1934] 2 KB 1...21
7. Malik v. Bank of Credit, [1997] UKHL 23...32
8. Pagnan SpA v. Feed products, [1987] Lloyds Rep 601...21
9. Phoenix International Life Sciences v. Rilett, [2001] BCC 115...28
10. Procter and Gamble (Health and Beauty Care) Ltd v. Carrier Holdings, [2003] EWHC
83...28
11. Re.Denver Hotel Co., [1893] (1) Ch. D 495.19
12. RTS Flexible Systems Limited v. Molkerei Alois Mller GmbH & Co KG,
[2010] 1 WLR 753....21
13. Smith v. South Wales Switchgear, [1978] 1 WLR 16533
14. Strover v. Harrington, [1988] Ch 390...24
15. Sudbrook Trading Estates Ltd. v. Eggleton, [1983] 1 AC 444....21
16. Tesco Supermarkets Ltd v. Nattrass, [1971] 2 WLR 1166.26,27

US Cases
1. ABRY Partners v. F&W Acquisition, 891 A.2d 1032 (Del. Ch. 2006)...................24,30
2. Browne v. Robb, 583 A.2d 949, 955 (Del. 1990).24
3. Carlsen v. Security Trust & Sav. Bank, 205 Cal. 302 (Cal. 1928)32
4. Coastal Ortheopadic Institute PC v. Bongiorno, 807 N e 2d (2004)...34
5. Fortress Credit Corp v. Dechert, LLP 934 N.Y.S.2d 119 (App. Div. 2011)36
6. Greyhound Leasing co v. FinNorwest Bank, 854 F.2d 1122 (8th Cir, 1988)37
7. Kirkland Constr. Co. v. James, 39 Mass.App.Ct. 559, (1995)..35
8. Lamare v. Basbanes, 418 Mass. 274, 276 (1994)..35
9. Lucas v. Hamm, 364 P.2d 685 (1961)...34
10. Miller v. Mooney, 431 Mass. 57, 63 (2000)..35
11. Nolte v. Pearson, 994 F.2d 1311 (8th Cir. 1993)..36
12. Washington Elec Coop Inc v. Mass Mun Wholesale Elec Co, 894 F Supp (1995)..34
13. Zimmerman v. Kent, 575 N.E.2d 70 (Mass. App. Ct. 1991)34
Statutes
1. Companies Act, 195619
2. Companies Act, 201319
3. Indian Contract Act, 187221,29
4. Prevention of Corruption Act 1988...............................................................................27
Books
1. Beatson et al, ANSONS LAW OF CONTRACT (29th edn., 2010)......................................24
2. M. Gurson et al, LEGAL OPINIONS IN INTERNATIONAL TRANSACTIONS
(4th edn, 2003)...35
3. M.P. Jain & S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW (17th edn. 2013).....25
4. P.V. Ramakrishnan, A TREATISE ON ANTI-CORRUPTION LAWS IN INDIA (13th edn., 2005)
.26
STATEMENT
OF JURISDICTION
APPEAL I
The appellant has approached this Honourable Court under Clause 15 of Letters Patent for the
High Court of Calcutta, 1865. The respondents humbly submit to the jurisdiction of this
Honourable Court.
APPEAL II
High Court of Calcutta, 1865. The respondent humbly submits to the jurisdiction of this
Honourable Court.
APPEAL III
High Court of Calcutta, 1865. The respondent humbly submits to the jurisdiction of this
Honourable Court
QUESTIONS PRESENTED
I. WHETHER
BREACH OF THE
II. WHETHER
CONSTITUTE A FRAUDULENT
SAA?
THE INCIDENTS SURROUNDING THE
BREACH OF THE
III. WHETHER
LOI
CALCUTTA
LICENSE CONSTITUTE A
SAA?
CONSTITUTE A FRAUDULENT BREACH OF THE
AVERAGE REVENUE PER UNIT
SAA?
IV. WHETHER THE DAMAGES CLAIMED BY CELLTONE SHOULD BE AWARDED?

V. WHETHER THE ESCROW AMOUNT SHOULD BE RELEASED OR NOT?
VI. WHETHER DARSH LEGAL IS LIABLE TO PAY DAMAGES OR NOT?
VII.
STATEMENT
OF
FACTS
THE BACKGROUND
IndMobile Telecoms Limited [IndMobile], a company incorporated in India and a member
of Nifty 50, is a successful telecom equipment company. The chairman and managing director
of the company is Mr Sardar, who along with his family, is also the promoter of the IndMobile
and holds 35% of the shares in the company with them.
In order to enter the telecom services business, IndMobile decided to bid for the licenses for
5G mobile networks to be granted by the Government of India [GoI]. For housing this
telecom service business, a wholly owned subsidiary named 5G Star Networks Limited [5G
Star] had been set up by IndMobile.
THE AWARD OF LICENSES
In the bidding process conducted by the GoI in 2013, bids were placed by 5G star for Kolkata,
Chennai and Hyderabad circles. 5G star satisfied both the technical and financial criteria and
was successful in bagging the license for Kolkata and Hyderabad. The actual license
agreements were executed between 5G Star and the GoI on November 1, 2013. In order to
source the expertise required to run this new business, IndMobile invited Celltone plc, a UK
based leading telecom services company who agreed to invest US $490 million for a stake of
49% in 5G star.
THE DUE DILIGENCE PROCESS
Celltone had a zero tolerance policy for corruption and hence adopted a cautious approach
before finalizing the deal. It decided to conduct a full blown due diligence and for this
purpose, appointed M/s Lexman Associates, a leading Indian law firm and DBAB Partners, a
leading accounting firm. During a meeting in Kolkata, Mr Gangston, the project manager of
Celltone, was assured by 5G Stars representatives that the process of award of licenses was
transparent and entirely above board. Celltone and their lawyers and accountants were
provided full access to all the relevant books and records of 5G Star and to the extent
necessary, those of IndMobile.
During further investigation, Mr Gangston came across a former employee of IndMobile who
revealed that in the past the company entertained government employees and showered them

with gifts. Although concerned about this, Mr Gangston decided not to escalate this issue to
the senior management of Celltone since the deal was too important to be scuttled.
THE SHARE ACQUISITION AGREEMENT
Under the terms of the SAA, Celltone was to subscribe for 49% shares of 5G Star for a
consideration of US$ 490 million. 40% of these shares were to be subscribed to Celltone out
of a new issue of shares undertaken by the company for a consideration of US$ 400 and the
remaining 9% representing 125,998 shares were to be acquired from IndMobile for a
consideration of US$ 90 million paid to IndMobile [Sale shares]. The SAA was executed on
October 3, 3013.
THE LEGAL OPINION
A condition precedent to the SAA was the issue of a closing legal opinion by M/S Darsh Legal
Associates [DLA], the legal counsel representing IndMobile and 5G star which was issued
on 25th November, 2013. DLA gave various opinions based on the assumption that it had not
come across any event or circumstances that would render the SAA void or voidable by
reason of fraud, misrepresentation, default or lack of consideration. DLA also obtained
professional liability insurance worth at least US $100 from ProInsure for this purpose. On
satisfaction of the conditions precedent, Celltone completed the acquisition under SAA on
November 25, 2013.
THE ESCROW AGREEMENT
Celltone, IndMobile and 5G star entered into an escrow agreement dated November 25, 2013
with Band Bank [Bank], the escrow agent. Based on the terms of this agreement, Band Bank
was to hold 10% of the consideration payable by Celltone to IndMobile and 5G Star for a
period of 3 years from the closing date which was to be applied towards satisfaction of any
indemnification obligations of IndMobile and 5G Star that may arise under the SAA. The
indemnification clause (10.1) under the SAA provided inter alia, that in the event of damages
caused due to the breach of any representation, warranty, covenant or agreement made by the
IndMobile and 5G Star, they would undertake to indemnify and hold harmless the purchaser
to the extent of any and all damages suffered. In the absence of such claim, the escrow agent
was to the pay the escrow amount to IndMobile and 5G Star at the end of the said three-year
period.

THE CANCELLATION OF KOLKATA METRO LICENSE
After the business had commenced and huge financial investments had been made, it came to
light that the award of license to 5G star in the Kolkata Metro, was challenged under a writ
petition filed by Navro Telecom Limited in December 2013. It was alleged that Mr. Bantha
Ranga, a project manager at IndMobile, paid Rs 2, 50,000 to a company owned by Mr.
Debraya, a member of the committee deciding upon the bids. This sum was paid from 5G star
and was shown as consulting fees in its books. Mr Sardar claimed to be unaware of any such
actions by Mr Bantha Ranga and was quite shocked. The Calcutta High Court after weighing
the seriousness of the allegations and following the law laid down by the Supreme Court,
cancelled the license awarded to 5G Star for Kolkata. A special leave petition to Supreme
Court made by 5G star was dismissed at the admission stage itself.
INCIDENTS SURROUNDING CALCULATION OF ARPU
While Celltone was still assessing its situation, more new discoveries were made. Celltone
had been operating on the assumption that the projected ARPU for the Hyderabad metro area
was Rs 250. On being advised by DBAB partners to clarify the components that went into
calculation of ARPU, Mr Beanman, the Vice President (Finance) of Celltone, raised this issue
during a telephone conference call with the finance personnel of 5G Star. During the call, 5G
Star personnel clarified that the projected ARPU was without regards to discounts and rebates.
5G Star remained under the assumption that the information had been disclosed, however due
to poor connectivity and continuous disruptions in the conference call, the information was
not received properly by Celltone. Celltone did not find an opportunity to clarify the same.
Only after closing of Celltones investment in 5G Star it was discovered that the net figure of
ARPU without taking into account the discounts and rebates was only Rs 175 implying that
Celltone had considerably overpaid for its stake in 5G Star.
THE LETTER OF INTENT
After the incidents surrounding ARPU, Celltone got another shock on receiving a legal notice
from Grovera Inc, [Grovera] a telecom consultancy company based in Greenwich,
Connecticut which claimed that the sale of 125,998 shares to Celltone was illegal since
IndMobile had signed an LoI with Grovera to sell it those shares.

THE SUITS
Celltone decided to take remedial actions and filed three civil suits before the Calcutta High
Court. It sued IndMobile and 5G stars to refund the purchase consideration or pay equivalent
damages. (First suit) It sued Band Bank seeking release the Escrow amount in favour of
Celltone pursuant to the Escrow Agreement. (Second suit). It sued DLA seeking damages to
the tune of $490 million for rendering an incorrect legal opinion. (Third suit). In parallel,
Celltone also initiated an arbitration claim under the India-UK Bilateral Investment Treaty
against the Government of India, on the ground that the action of cancellation of the licence
for the Kolkata metro area amounted to an expropriation of its investment in 5G Star.
All three suits were dismissed on their merits by the Calcutta High Court. Celltone has
preferred an appeal against all the orders to a division bench of the Calcutta High Court. It has
decided to club all the appeals and hear them in a composite fashion.

SUMMARY
I.
OF
PLEADINGS
THE INCIDENTS SURROUNDING THE LOI DO NOT CONSTITUTE A FRAUDULENT

BREACH OF THE SAA
It is submitted that the shares sold to Celltone are correct and legal. First, the LoI did not
hinder the transferability of the Sale Shares to Celltone. The LoI that was entered into between
IndMobile and Grovera was simply concerning the sale of 9% shares owned by IndMobile in
5G Star. Even if those shares are sold to another party, it would not constitute a breach of the
LoI as the obligation under the LoI could still be met out of the remaining 51% shares held by
IndMobile in 5G Star. Secondly, in any event, the clause restricting the transfer of shares to a
party other than Grovera is patently illegal as it is against the spirit of free transferability of
shares as provided in the Companies Act, 2013. Since the private agreement does not find a
place in the AoA of 5G Star, it cant be enforced against 5G Star. Thirdly, on a correct
construction of the LoI in question, it can be concluded that it was too uncertain and
incomplete to constitute a binding contract between the parties and hence the parties could not
have intended to enter into legal relations. Neither party came forward to negotiate in good
faith at any time nor did they act in furtherance of the understanding set forth in the LoI at all.
This is indicative of a lack of intention to enter into a binding contract with each other.
Therefore, the LoI is not even enforceable against IndMobile. Fourthly, there is no fraudulent
misrepresentation as even though the LoI was not binding, the document was brought to the
knowledge of Celltone while it was conducting due diligence. IndMobile and 5G Star cannot
be held liable when it was aware of a contractual representation of fact before the closing and
nonetheless elected to close on the contract, despite having a contractual right to terminate.
II.
THE INCIDENTS SURROUNDING THE CALCUTTA LICENSE DO NOT CONSTITUTE

A
BREACH OF THE SAA.
It is submitted that the incidents surrounding the cancellation of the Calcutta license do not
constitute a breach of the SAA. First, the Calcutta license was set apart by the Court on a
standard of possibility of bias and not existence of bias. No actual corruption was proven
and the license was set aside on a lower standard. Thus, 5G Star were not in violation of any
law. Second, the payments made to the consultancy firm were legitimate. The payments were

duly accounted for and were quid pro quo for strategic advisory services. These payments do
not constitute a bribe, as they are not in respect of official acts, but for the services rendered
by Mr. Debarayas company. Third, the license was not quashed until the completion of the
deal. 5G Star held all valid licenses at the time of completion of the deal, which is the only
date at which the warranty can be breached. Thus, Clause 6.5 of the SAA has not been
breached and there has been no breach of the SAA.
III.
THE INCIDENTS SURROUNDING THE ARPU DO NOT CONSTITUTE A BREACH OF

REPRESENTATION
It is submitted that there was no breach of representation with respect to the ARPU. First, the
correct figures were supplied by 5G Star without any hesitation during due diligence. The
failure of Celltone to assimilate this information cannot be used to hold 5G Star liable.
Further, the conduct of Celltone indicated that they were satisfied with the response and thus
the communication of the information was complete. Second, Celltone had the means of
discovering the truth by ordinary due diligence. The principle of caveat emptor applied and
the appellant ought to have safeguarded its own interest. Third, there was no fraudulent
misrepresentation since there was no intention on the part of 5G Star to deceive the other
party and no reliance was placed on this representation by Celltone. Celltone did not raise any
objection regarding the projection after the phone call, which is indicative of the information
being immaterial to them. Hence, there was no fraudulent breach of representation.
IV.
THE DAMAGES CLAIMED ARE INCORRECT AND SHOULD NOT BE AWARDED
It is submitted that since there is no breach of warranty or representation, the damages claimed
should not be awarded. In any case, the damages are limited by the SAA to 50% of the
purchase consideration. It is only the actual loss that is suffered by Celltone that should be
awarded as damages. This amount should be calculated by the Courts on the basis of the
difference between the purchase consideration and actual value of the business. This is an
action of actio quanti minoris and should be treated as such. Hence, the damages claiming
the entire purchase consideration are incorrect and should not be awarded.

V.
BAND BANK IS NOT OBLIGATED TO RELEASE THE ESCROW AMOUNT
It is submitted that Band Bank is not obligated to release the escrow amount since the
conditions for releasing the amount under the escrow agreement have not been met. As per the
escrow agreement, the escrow amount was to be applied towards any indemnification
obligations that may have arisen under the SAA. It is submitted the indemnification
obligations have not been triggered since first, there has been no breach of warranty,
representation, et al. Second, the suit filed by Celltone is premature since no actual damage
has been suffered by them. Celltone has also not incurred an absolute liability or crystallized
its claim since no absolute liability can be said to have been incurred while the suit is still
pending before the court. Hence, the suit is premature. Thirdly, Celltone was negligent in its
dealings with IndMobile and cannot claim indemnity for damage caused by its own
negligence.
VI. DLA IS NOT LIABLE TO PAY DAMAGES TO CELLTONE
It is submitted that DLA cannot be held liable for rendering an incorrect opinion. First, a
statement on which liability can be based must be one of fact and not of opinion. In the instant
case, DLAs opinion letter was not a factual guarantee and did not make it an insurer of the
soundness of its opinion. Thus, it cannot be held liable for an incorrect opinion. Second, DLA
owed no duty of care towards Celltone since Celltone was a third party and had conflicting
interests with DLAs client, IndMobile. While Celltone wanted to protect its investments,
IndMobiles interests lied in ensuring that Celltone invested in its company. Owing to such
conflicting interests, DLA owed no duty of care towards Celltone and cannot be held liable by
it. Third, in any case, the opinion was circumscribed and qualified by the assumptions on
which it was based and thus DLA cannot be held liable for misrepresentation. Fourth,
assuming DLA was negligent; the negligence of Celltone exceeds that of DLA and exculpates
DLA of any liability. In light of above submissions, it is submitted that DLA is not liable to
pay any damages

PLEADINGS
I. THE INCIDENTS SURROUNDING
THE
BREACH
LOI
DO NOT
OF THE
CONSTITUTE
FRAUDULENT
SAA
1. It is submitted that the shares sold to Celltone are correct and legal and IndMobile is
the sole legal and beneficial owner of the Sale Shares in question, free and clear of all
liens and is absolutely entitled to sell them to Celltone. This is owing to three reasons:
First, the LoI does not interfere with the execution of the SAA [A]. Second, the clause
restricting the transferability of the shares is unenforceable against 5G Star [B]. Third,
the LoI is not legally binding on the parties and is unenforceable against
IndMobile[C]. Fourth, in any event, there was no fraudulent misrepresentation [D].
[A]. THE LOI DOES NOT INTERFERE WITH THE EXECUTION OF THE SAA
2. It is submitted that even if the LoI is assumed to have been binding on IndMobile and
Grovera Inc., it does not render the SAA unenforceable. The LoI was simply
concerned with the transfer of 125,988 shares. 1 The agreement in the LoI did not
pertain to the specific 9% shares acquired by Celltone in 5G Star but any 125,988
shares of the company. The obligation under the LoI can still be met out of the
remaining 51% shares held by IndMobile in 5G Star. Therefore, the claim of Grovera
Inc. that the sale of the specified number of shares in 5G Star to Celltone was illegal
does not hold good.
[B]. THE CLAUSE RESTRICTING THE TRANSFERABILITY OF THE SHARES IS UNENFORCEABLE
AGAINST 5G STAR
3. It is submitted that the terms of the LoI restricting IndMobile from selling or
transferring the shares is unenforceable against 5G star on account of it not being
incorporated in the AoA of the company.
1 Appendix C, Factsheet.

4. Section 58 of the Companies Act 2013 holds that shares of a public company are freely
transferable.2 Section 44 of the Companies Act, 2013 simultaneously provides that
shares of any member in a company shall be movable property transferable in the
manner provided in the Articles of the company. It therefore allows members to lay
down the manner in which shares of a company shall be transferable. Courts have
either refused to recognize clauses in the shareholders agreements that restrict
transferability of shares or have enforced such clauses only if they have been
incorporated in the AoA of the company.3
5. In the instant case, the restriction on transfer of the specific shares as envisaged in the
LoI does not find a place in the AoA of 5G Star.4 Moreover, 5G Star was not even a
party to the agreement in the LoI.5 Therefore, in light of the provisions of the
Companies Act, such a restriction on the free transferability cannot be enforced against
a public company and the company cannot be bound by it.6
6. The Supreme Court of India in Rangaraj7 affirmed that shares are movable property
and the Articles regulate their transfer. The only permissible restrictions on the
transfer of shares are those, which are contained in the AoA. Additionally, in Mafatlal
Industries,8 the Court held that obstacles to transferability of shares, including but not
limited to, pre-emptive rights of shareholders unincorporated in the AoA cannot be
enforced. It is thus a firmly established position of law that a public company in India
2 Section 58 (2), COMPANIES ACT, 2013. Section 111A (2) of Companies Act, 1956 is the corresponding
provision.
3 S.P. Jain v. Kalinga, AIR1965 SC1535; V.B. Rangaraj v. V.B. Gopalakrishnan and Others,
AIR 1992 SC 453.
7 V.B. Rangaraj v. V.B. Gopalakrishnan and Others, AIR 1992 SC 453.
8 Mafatlal Industries Ltd. v. Gujarat Gas Co. Ltd. And Ors.,(1999) 97 CompCas 301 Guj.

cannot provide for restrictions on the transferability of its shares since it is patently
illegal.9
7. Admittedly, the proviso to Section 58(2) of the Companies Act, 2013 which states that
any agreement in respect of transfer of securities shall be enforceable as a contract,
governs the LoI in question. However, in the absence of anything to the contrary
provided in the Companies Act, 2013 on whether covenants restricting transferability
of shares in SAAs are necessarily required to be incorporated in the AoA, the rationale
behind Rangaraj continues to be the law of the land.
8. Therefore, it is submitted that even though contractual arrangements in respect of
transfer of securities have been granted legitimacy by virtue of the proviso to Section
58(2) of the Companies Act, 2013, the blanket restriction on sale, transfer or creation
of security over the shares in the LoI is not binding on 5G Star. This is on account of
the non-inclusion of the agreement in its AoA. Thus, the consensual agreement
between IndMobile and Grovera does not interfere with 5G Stars ability to transfer
its shares to Celltone. The shares were freely transferable to Cellltone and the sale was
a valid and legal one.
[C] THE LOI IS NOT LEGALLY BINDING ON THE PARTIES AND IS UNENFORCEABLE AGAINST
INDMOBILE
9. It is submitted that the LoI signed by IndMobile and Grovera was merely a
preliminary agreement that lacked the characteristics of a binding contract and thus
was not legally binding on them.10 The question of whether the LoI is merely an
expression of future interest to transact, or is a final and binding contract has to be
decided through a construction of the terms of the LoI. 11 Upon a reading of the LoI, it
is clear that it merely required IndMobile to keep the offer open for three months
during which the parties had to work in good faith towards the completion and
9
Pushpa
Katoch
v.
Manu
Maharani,
(2006)
131
Comp
Cas
42
(Delhi);
Re.Denver Hotel Co., [1893] (1) Chancery Division 495 affirmed in Western Maharashtra
Development Corp v. Bajaj Auto Ltd, (2010) 154 Comp Cas 593.
10 Dresser Rand S.A. v. M/s. Bindal Agro Chemical Ltd. & Another, AIR 2006 SC 871.
11 Dresser Rand S.A. v. M/s. Bindal Agro Chemical Ltd. & Another, AIR 2006 SC 871.

execution of the definitive documentation.12 Thus, it is evident that the LoI was merely
an expression of future interest to transact and not a binding contract.
10. Furthermore, the test for determining whether the agreement is legally enforceable, as
laid down in Barbudev13 is not satisfied in the instant case as the LoI was not intended
to create legal relations[i], it was merely an agreement to agree [ii], and it wasnt a
sufficiently complete and certain contractual agreement [iii].
[i]. There was no intention to create legal relations.

11. It is submitted that in the absence of a formally concluded contract, the intention of the
parties can only be derived from conduct.14 An objective theory of contract formation
is applicable which lays emphasis not on the parties subjective state of mind, but upon
a consideration of what was communicated between them by words or conduct and
whether it was indicative of a legally binding agreement. 15 The fact that the parties
start working in furtherance of a contract is a significant factor in determining the
same.16 Applying these principles, it is submitted that Celltone had not come forward
to negotiate in good faith, anytime during the three months that followed the execution
of the LoI, nor towards the end of that period, let alone, acting in furtherance of the
understanding set forth in the LoI. The degree of certainty required for creating
obligations varies according to whether the transaction remains wholly executor or has
been partly performed or acted upon. Where the parties have acted upon the
agreement, the courts have been more reluctant to find the agreement void for
13 Barbudev v. Eurocom Cable Management Bulgaria, [2011] EWHC 1560 (QBD, Comm).
[Barbudev]
14 RTS Flexible Systems Limited v Molkerei Alois Mller GmbH & Co KG, [2010] 1 WLR 753 [RTS].
15 RTS, [2010] 1 WLR 753.

16 Pagnan SpA v. Feed products, [1987] Lloyds Rep 601.

uncertainty17. However, the matter in hand did not even reach its negotiation stage,
and there was no attempt to execute the agreement partly or wholly.18
12. The LoI provided that the parties shall negotiate in good faith the detailed definitive
documentation to give legal effect to the understanding set forth.19 This clearly
indicates that parties intended to give a legal effect to the agreement only after
negotiation on the definitive documentation had been concluded. There was no
delivery of shares, payment of consideration or conduct to indicate that the parties
were aware of the various other material terms of the contract for them to be ad idem
on.20 There was no other document that was signed between IndMobile and Grovera,
pursuant to the agreement.21 This clearly indicates the fact that IndMobile did not
intend to create a legal relation with Grovera.
[ii]. It was merely an agreement to agree
13. It is submitted that the LoI was not a binding contract since it was unworkable and
failed for uncertainty. It was no more than an agreement to agree as other terms that
go into documenting an SAA were left for them to negotiate upon in future. 22 An
agreement to agree is legally unenforceable and it requires additional and final
negotiations to make it a binding contract.23
17 Foley v. C;assique Coaches Ltd., [1934] 2 KB 1, Sudbrook Tradomg Esattes Ltd. V. Eggleton, [1983] 1 AC
444.
18 13, Factsheet.
19 Appendix C, Factsheet
20 Sec. 13, Indian Contract Act, 1872; Rickmers Verwaltung Gmbh v. Indian Oil Corporation Ltd.,AIR 1999
SC 504.
21 13, Factsheet.
22 Barbudev, [2011] EWHC 1560 (QBD, Comm).

14. As has been submitted above, the LoI provided that the parties shall negotiate in
good faith the detailed definitive documentation to give legal effect to the
understanding. Thus, even though the broad terms of the investment in the form of
number of shares and purchase consideration were set out in the side letter, it still left
the agreement open-ended because of the terms used in the side letter. Something
similar had been held in Barbudev where the courts refused to consider an LoI binding
since the terms were to be negotiated in good faith in the future and it was not certain
and sufficient to constitute a binding contract. 24 The LoI in the instant case was not
intended to create binding legal relations between the parties to it. It was at best a
Letter of Comfort pending the conclusion of the proposed definitive documentation to
give it a legal effect.25 Hence, it is submitted that the side letter was, on its proper
interpretation, only an agreement to agree which was unenforceable.
[iii]. The agreement wasnt sufficiently complete and certain
15. In Barbudev it has been held that an agreement cannot be intended to create legal
relations "if it is unenforceable in its entirety". It was held that in a shareholders
agreement, what is contemplated is not merely a simple sale of a certain number of
shares in the new, merged business, for a certain price. Rather it is an agreement that
would determine the ongoing relationship between the shareholder and the
company.26 In order to make it sufficiently certain and workable, the side letter must
contain certain essential terms such as shareholders rights and other corporate
governance provisions.27 Thus, in the instance case, simply identifying purchase
consideration and the amount of shares is insufficient to create certainty as to the
proposed relations between the parties.

26 Barbudev,[2011] EWHC 1560 (QBD, Comm).
27 Barbudev, ,[2011] EWHC 1560 (QBD, Comm).

16. Furthermore, in Tolaini Bros (Hotels) Ltd,28it has been held that if the law does not
even recognize a contract to enter into a contract (when there is a fundamental term yet
to be agreed), it can definitely not recognize a contract to negotiate since it is too
uncertain to have any binding force. The terms such as negotiating in good faith
cannot be granted legitimacy since "the concept of a duty to carry on negotiations in
good faith is inherently repugnant to the adversarial position of the parties when
involved in negotiations".29 It is also too vague to be enforced since damages are
impossible to calculate as it cannot be predicted whether the negotiations would be
successful or fall through and if successful, what the result of the negotiation would
be.30
17. Hence, on the correct construction of the LoI in question, it can be concluded that the
agreement between the parties merely provided Grovera an opportunity to invest in the
company. It was too uncertain to constitute a binding contract and hence the parties
could not have intended to enter into legal relations. It is therefore submitted that the
LoI is not even enforceable against IndMobile.
[D]. NO FRAUDULENT MISREPRESENTATION HAS BEEN MADE
18. It is submitted that, in any case, no fraudulent misrepresentation has been made by
IndMobile and 5G Star. The failure to disclose a material fact does not give the right to
the affected party to sue for fraudulent misrepresentation.31 It is settled law that a nondisclosure is not fraudulent if the person on whom the fraud has been committed can
discover the truth with due diligence. 32 In the instant case, Celltone was in fact
provided with the LoI during the due diligence and hence cannot hold the respondents
liable for non-disclosure of a material fact.
28 Courtney and Fairbairn Ltd v. Tolaini Bros (Hotels) Ltd.,[1975] 1 All ER 716.
29 Courtney and Fairbairn Ltd v. Tolaini Bros (Hotels) Ltd.,[1975] 1 All ER 716.
30 Courtney, [1975] 1 All ER 716.
31 Bell v. Lever Bros Ltd, [1932] AC 161.
32 Shri Krishnan v. Kurukshetra University, AIR 1976 SC 376.

19. Furthermore, to make a claim of fraudulent misrepresentation it is incumbent upon the
buyer to prove reasonable reliance on the representation made. 33 It is necessary that
this representation must have induced the other contractual party to enter into the
contract.34 In the event, the other party knew the true facts or had an opportunity of
knowing the true facts, he cannot complain of fraud. 35 In the instant case, the
knowledge of the professionals employed by Celltone and documents provided to
them can be imputed to the purchaser.36 Thus, Celltone cannot hold the IndMobile and
5G Star liable when they were aware of a contractual representation of fact before the
closing and nonetheless elected to close on the contract, despite having a contractual
right to terminate.37 This indicates that they have not relied on the representation made
by the respondents and hence cannot hold them liable.
20. Celltone could have enquired in detail on the validity of the LoI if it had been a matter
material enough to change its decision of entering into the SAA. On the other hand, it
was content to rely on its reporting accountants to identify from the documents
supplied to them and to report on the matters about which it needed to be informed.
Therefore, Celltone by entering into the Agreement represented to the IndMobile that
so far as Celltone was aware, there had been full and fair disclosure of all material
facts and circumstances. Therefore, it would be unconscionable and unfair for the it to
seek to complain of non-disclosure or misrepresentations of facts or circumstances of
which it had actual knowledge at the time of entering into the Agreement (especially in
the absence of a knowledge-saving provision) Celltone is therefore to be estopped or
precluded from doing so.38
33 Browne v. Robb, 583 A.2d 949, 955 (Del. 1990).

34 Ninagawwa v Byrappa Shiddapa Hirekubar, AIR 1978 SC 956.
35 Ansons Law of Contract, 3019 (Beatson et al, 29th edn., 2010).
36 Strover v. Harrington [1988] Ch 390.
37 ABRY Partners v. F&W Acquisition, 891 A.2d 1032 ( Del. Ch. 2006).
38 Eurocopy v Teesdale, [1992] B.C.L.C. 1067

II. THE INCIDENTS SURROUNDING
THE
CALCUTTA LICENSE
DO NOT
CONSTITUTE
BREACH
OF THE
SAA
21. It is submitted that the incidents of the Calcutta license do not amount to a breach of a
warranty in the SAA for three reasons. First, the license was set apart on a standard of
suspicion of biases and not existence of bias [A]. Second, the payments to the
consulting firm were legitimate payments and do not indicate corruption or bribery
[B]. Third, the license was not quashed until after the completion of the deal and thus
no breach of warranty can be claimed[C].
[A]. LICENSE SET APART ON A LOWER STANDARD.
22. It is submitted that the Calcutta license was set apart by the High Court on the wellestablished standard of suspicion of bias and not because of its actual existence.39
Therefore, all that was proven before the Court was simply the possibility of
corruption, but no actual corruption. Therefore, there is no violation of a law or
regulation by 5G Star or IndMobile.
23. The allegations before the Calcutta High Court were allegations against the bidding
process40 and not allegations against 5G Star. The case was therefore, decided on
whether a reasonable outsider might assume bias in the tendering process.41 The
decision of the High Court in this case therefore, in no way alleges a breach of a law or
regulation by 5G Star or IndMobile.
24. The judgment in Centre for Public Interest Litigation also affirms the same principle,
by stating that proving corruption is not necessary to set aside a tender award. 42
Therefore, the representations made by 5G Star that the process was above board43
39 M.P. Jain & S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW, 542 (17th edn., 2013).
40 11, Factsheet.
41 Supra, note 39.
42 Centre for Public Interest Litigation v. Union of India, AIR 2012 SC 1.
43 5, Factsheet.

have not been breached as there was no actual tampering with the process. The test
laid down in Tata Cellular44 is not applicable, as it requires sufficient nexus between
the two parties to be proven. In this case, the alleged corrupt payments were paid to a
consulting firm, and were duly accounted for in the books as payment of consulting
fees.45 Therefore, the identity of Mr. Debaraya as the receiver of the payment does not
meet the standard required by the POCA for establishing bribery.46
25. Further, the license was awarded to 5G Star due to the phenomenal nature of the
bids47 placed by 5G Star. This was done after an evaluation of stipulated financial
and technical criteria.48 On a consideration of all these facts, it is submitted that the
decision of the High Court in no way proves the violation of a law or regulation, but
is merely on the grounds of a possibility of bias. In this case, there is no direct or
corroborative evidence of demand and acceptance of bribe, which as per the decision
in M.Radha Krishnamurthy,49 meets the standard to waive corruption charge.
26. In any event, even if it were to be accepted that Mr. Bantha Ranga was engaging in
corrupt dealings, the blame for the same cannot be imputed to the Company. The Court
in Iridium,50 dealing with the question of attribution of mens rea, followed the standard
laid down in Tesco,51 which held that the mens rea of an employee can only be
attributed to the company if the person was the directing will and mind of the
Company. In this case, Mr. Bantha Ranga was a mere manager in the 5G Star,52 and
44 Tata Cellular v. Union of India, AIR 1994 SC 651.
45 10, Factsheet.
46 P.V. Ramakrishnan, A TREATISE ON ANTI-CORRUPTION LAWS IN INDIA, 414, (13th edn.,2005).
47 3, Factsheet.
48 2, Factsheet.
49 M. Radha Krishnamurthy v. State, (2002) Cl.LJ 262
50 Iridium India Telecom Ltd v. Motorola Incorporated & Ors., AIR 2011 SC 74.
51 Tesco Supermarkets Ltd v. Nattrass, [1971] 2 WLR 1166.
52 Q.7, Clarifications.

was not the alter ego of the Company. Even with regard to the licensing process, Mr.
Ranga was not leading the license committee,53 and therefore, was not granted
executive authority by the Company. In this scenario, therefore, he was not acting as
the company and his mind was not the mind of the company.54 He had been entrusted
with his tasks by a system of delegation, and therefore, following the rule in Iridium
and Tesco, a mere managers mens rea cannot be imputed to the Company.
[B]. THE PAYMENTS MADE WERE LEGITIMATE
27. It is submitted that the payments made by 5G Star to the consulting company were
legitimate payments, thoroughly accounted for and therefore there is no breach of
warranty.
28. The payments made were quid pro quo for strategic advisory services55 obtained
from the consultancy firm, as is shown in the books of 5G Star.56 These payments were
not in respect of an official act57, but were simply compensation for services
provided. The nature of these services is inherently vague and intangible, and failure to
provide precise58 details about these services cannot be a ground for rendering the
transaction as corrupt or a scam.
29. In any event, these payments were only for the advisory services provided by Mr
Debarayas company. These payments and the factual matrix in no manner indicate
any motive on the part of Mr. Debaraya to engage in corrupt practices. The exception
in Bechey Lal59 is therefore satisfied, which stated that if a person accepts money for
an act which cannot be said to be an official act, he would not be guilty of an offence
54 Tesco Supermarkets Ltd v. Nattrass, [1971] 2 WLR 1166.
55 10, Factsheet.
56 Id.
57 Sec. 7, Prevention of Corruption Act, 1988.
58 10, Factsheet.
59 Bechey Lal v. Rex, [1950] ALJ 57.

of bribery.60 In the instant case, the payments were compensation for the act of
providing advisory services, and though admittedly may raise a suspicion of bias; do
not prove an existence of bias.
[C]. THE LICENSE WAS NOT QUASHED UNTIL AFTER COMPLETION OF THE DEAL
30. It is submitted that 5G Star validly held all the licenses and approvals to carry on
business at the time of the signing of the SAA, therefore any later challenge to the
license would not amount to a breach of warranty. The only date at which the
warranty can possibly be breached, with respect to Clause 6.5 of the SAA, is the date
at which the delivery of the shares was made. 61 In the instant case, on this date, 5G
Star was the valid holder of all licenses. Therefore, at the time of signing the contract,
5G Star was not in breach of any warranty regarding the Calcutta license, as there was
no misrepresentation regarding the availability of licenses.
III. THE INCIDENTS SURROUNDING
THE
ARPU
DO NOT
CONSTITUTE
BREACH
OF REPRESENTATION
31. It is submitted that there was no breach of representation as the correct figure of ARPU
had been supplied to Celltone. The submission is on three grounds. First, the correct
figures were supplied. [A] Second, Celltone had the opportunity of conducting due
diligence [B]. Third, in any case, there was no fraudulent misrepresentation. [C].
[A]. THE CORRECT FIGURES WERE SUPPLIED
32. It is submitted that 5G Star provided the correct figures after enquiry during due
diligence, and therefore, there was no suggestion of a wrong fact.
33. The initial figure of Rs.250 was not a representation of fact, but merely preliminary
information subject to the purchasers ability to check that information in the course of
the due diligence investigation of the company, which all parties understood would
60 Bechey Lal v. Rex, [1950] ALJ 57.

61 Procter and Gamble (Health and Beauty Care) Ltd v. Carrier Holdings, [2003] EWHC 83.

follow.62 The initial figure was not a representation to be carried into the contract, but
merely a preliminary indicator of projected revenue, which is inherently uncertain,63
and subject to due diligence. The information provided by 5G Star during the due
diligence exercise, which is the disclaimer about discounts and rebates provided
during the conference call, is the representation to be carried into the contract, and the
said information was true and correct.
34. Further, under Section 12 of the IT Act, in the absence of a stipulation that the
acknowledgement of information should be communicated in a certain manner, the
communication of information is said to be completed when the conduct of the
addressee is sufficient to indicate to the originator that the information has been
acknowledged.64 This provision is applicable in the instance case because the
information was transmitted in a format which meets the definition of electronic
record as per the IT Act.65 In the present case, there was no such stipulation and
Celltone without raising any objections regarding this issue proceeded with the
contract.66 The conduct of Celltone therefore indicates either assimilation of the
information, or insignificance of this information to Celltone. A reasonable third party
would assume them to be satisfied with the response. The burden of disclosure is
therefore lifted from 5G Star, who made the correct representation, and Celltones
conduct indicates acknowledgement of this representation.
[B]. CELLTONE HAD THE ABILITY TO CONDUCT DUE DILIGENCE
35. It is submitted that Celltone had the means of discovering the truth by ordinary
diligence. During the due diligence exercise, 5G Star had no intention to conceal this
information and promptly responded to the enquiry.67 Thus, the exception laid down in
62 Phoenix International Life Sciences v. Rilett, [2001] BCC 115.

63 Bottin International Investments Ltd v. Venson Group plc, [2004] EWCA Civ 1368.
64 Sec. 12(b), Information Technology Act, 2000.
65 Sec. 2(t), Information Technology Act, 2000.
66 12, Factsheet.

Section 19 of the Indian Contract Act applies and the respondents cannot be held liable
for misrepresentation or fraud.68
36. Additionally, the principle of caveat emptor applies, and the parties ought to have
safeguarded their own interest.69 Celltone cannot escape its own negligence during due
diligence, and impute the blame for its own failure of assimilation of information onto
5G Star.
[C]. IN ANY EVENT, THERE WAS NO FRAUDULENT MISREPRESENTATION
37. In order to successfully bring a claim for fraud, it must be proven that there was
suggestion of an untrue fact, with the intention to induce the other party to enter into
the contract, and this suggestion was relied upon by the other party.70
38. It is submitted that in this case, none of the three elements have been met, and
therefore a claim for fraud cannot be sustained.
39. In the instant case, 5G Star has not made a suggestion of an untrue fact. The correct
information was disclosed by 5G Star personnel during due diligence. 71 The fault for
Celltones inability to assimilate such information, and proceed without clarification
cannot be imputed to 5G Star.72 The representation made by the 5G Star officials is
67 12, Factsheet.
68 Sec 19, Indian Contract Act, 1872.
69 Shri Krishnan v. Kurukshetra University, AIR 1976 SC 376
70 RC Thakkar v. Gujarat HSG Board, AIR 1973 Guj 34.
71 12, Factsheet.
72ABRY Partners v. F&W Acquisition, CA No.1756-N. (Del. Ch 2006).

therefore that the figure was without regard to discounts, rebates and refunds,73 and
this representation is categorically true.
40. 5G Star had no intention to deceive the other party into entering the contract. This is
indicated by the response given by the 5G Star official during the telephone call. 74 The
fact that the response about discounts and rebates was given promptly indicates a
lack of mens rea on the part of Celltone, who did not try to hide or obfuscate this
information.
41. Celltone might contend that the issue was material and reliance was being placed on it
by them. However, the respondents submit otherwise. They had the means of
discovering the truth. The fact that Celltone went ahead with the contract, despite
knowledge and information from DBAD partners that the components that went into
the calculation of the ARPU may not be uniform across countries,75 and without
assimilation of the conveyance during due diligence means that reliance was not
placed on this information. A reasonable third party might assume, after the frustrated
phone call, that Celltone were reassured with the response, even if they were unable to
assimilate it. The fact that no further enquiry was made by Celltone is indicative of the
fact that this information was not material and was not relied upon while entering the
contract. Hence, there was no fraudulent breach of the SAA.
IV. THE DAMAGES CLAIMED
ARE INCORRECT AND SHOULD NOT BE
AWARDED.
42. It is submitted that there has been no breach of representation or warranty by the
respondents, as proven above. In the instant case, therefore, no damages should be
awarded to Celltone.
43. In any case, even if the Court finds the respondents to be in breach of a warranty, it is
submitted that the damages claimed are incorrect and should not be awarded. The
indemnification obligations of the respondents are limited to 50% of the purchase
consideration and damages greater than this should not be awarded.76
73 12, Factsheet.
74 12, Factsheet.
75 12, Factsheet.
76 Cl. 10.1, Appendix A, Factsheet.

44. In any event, if it is judged to be a fraudulent breach of warranty, the heads of damages
as established in Lion Nathan Ltd77 require that only actual loss suffered by Celltone
should be awarded as damages. In the instant case, the rule of actio quanti minoris
should be applied and the damages should be calculated by the Court on the basis of
the difference between the purchase consideration and the actual valuation of the
business.78 Hence, damages seeking the entire purchase consideration should not be
awarded.
V.
BAND BANK
IS NOT
OBLIGATED
TO
RELEASE
THE
ESCROW AMOUNT
45. It is submitted that Band Bank is not bound to release the escrow amount since the
escrow agent is bound to follow the instructions in the escrow agreement strictly and
the conditions for its release have not been met. 79 According to the agreement, the
escrow amount was to be applied towards satisfaction of any indemnification
obligations of IndMobile and 5G Star that may arise under the SAA. 80 It is submitted
that no indemnification obligation has arisen for three reasons. First, there was no
breach of warranty, representation, covenant, agreement, fraud or deliberate omission.
[A] Second, the suit filed by Celltone is premature [B]. Third, Celltone cannot claim
indemnity for damages caused due to its own negligence[C].
[A]. THE INDEMNIFICATION OBLIGATIONS HAVE NOT BEEN TRIGGERED
46. As submitted above, there has been no breach of warranty, representation etc. and thus
no indemnification obligations have arisen. The escrow agent is bound to follow the
instructions strictly and cannot release the escrow amount before the conditions have
been met.81 Furthermore, no liability attaches to the escrow holder for his failure to do
77 Lion Nathan Ltd v. CC Bottlers, [1996] 1 WLR 1438.
78 Fortune v. Fraser, [1993] SCLR 470.
79Malik v. Bank of Credit, [1997] UKHL 23.
80 9, Factsheet.
81 Malik v. Bank of Credit, [1997] UKHL 23.

something not required by the terms of the escrow or for a loss incurred while
obediently following his escrow instructions.82 Hence, it is submitted that Band Bank
cannot be ordered to release the escrow amount.
[B]. THE SUIT FILED BY CELLTONE IS PREMATURE
47. It has been held by the Courts that a cause of action for seeking indemnity would arise
only when the damage is suffered by the indemnity holder and if a suit is brought
before actual loss it will be a premature suit.83 It is submitted that the suit filed is
premature since no damage has been caused or no actual loss has been incurred by the
parties. In cases of indemnities a proof that loss is suffered is required.84 In the instant
case, the loss would occur only in the event of its allegations of breach of warranty,
representation etc being upheld by the Court. Filing a suit before the damages being
proved to have been suffered is premature. Even if it is accepted that suffering actual
loss is not necessary and the indemnifier can be called upon to indemnify even when
an absolute liability has been incurred by the indemnity holder or his claim has
crystallized, the claim of the appellant fails.85 In this case, the claim of the appellant
has not been crystallized since the judgment has not yet been passed in its favor. No
absolute liability can be said to have been incurred when the matter is still pending
before the court.86
[C]. CELLTONE CANNOT SEEK INDEMNITY FOR DAMAGE CAUSED BY ITS OWN NEGLIGENCE.
48. It is a well-established principle that the scope of an indemnity clause cannot extend to
cases where the party has caused harm to itself due to its own negligence unless the
82Carlsen v. Security Trust & Sav. Bank, 205 Cal. 302 (Cal. 1928).
83 Shankar Nimbaji Shintre and others vs. Laxman Supdu Shelke and others, AIR 1940 Bom
161.
84 State Bank of Saurashtra v. Ashit Shipping, AIR 2002 SC 1993.
85 Jet Airways v. Sahara Airlines, Final Award, 12 April 2007 (Bombay HC).
86 Gujarat Urja Vikas Nigam Ltd. vs. Tata Motors, (2013) Indlaw Mum 679.

clause expressly provides so.87
The words any and all damages in the
indemnification clause cannot be read as equivalent to an express reference to

negligence since they are no more than words of emphasis.88 It is submitted that
Celltone was negligent in the instant case. The corruption matter was not investigated
even after Mr. Gangston acquired knowledge about the dealings of the company with
the government.89 A clarification was not sought regarding the components included in
calculation of ARPU even though the conference call got interrupted mid-way.90
Furthermore, LoI had even been provided to the professional agents engaged by
Celltone during the due diligence but no action was taken at the time. 91 Thus, Celltone
failed to take steps that were reasonably required on its part and hence was negligent
in its dealings with IndMobile. Celltone thus cannot claim indemnity for the losses
incurred due to its own negligence.
VI. DLA
IS NOT
LIABLE
TO
PAY DAMAGES
TO
CELLTONE
49. It is submitted that DLA cannot be held liable for rendering an incorrect opinion. The
submission is on four grounds. First, an incorrect opinion is not actionable [A].
Second, DLA owed no duty of care to Celltone and cannot be sued by them [B]. Third,
in any case, the opinion cannot be considered incorrect in light of the assumptions on
which it was based [C] Fourth, Celltones own negligence exceeded that of DLA and
hence it cannot be held liable by them [D].
[A]. AN INCORRECT OPINION IS NOT ACTIONABLE
87 Smith v. South Wales Switchgear, [1978] 1 WLR 165.

88 Smith v. South Wales Switchgear, [1978] 1 WLR 165.
89 6, Factsheet.
90 12, Factsheet.

50. A statement on which liability can be based must not be one of opinion, estimate or
judgment.92 Legal opinions are expressions of professional judgment, not guarantees
that a court will reach the same conclusions as the opinion giver.93 Based on their
very title, the opinion letters cannot be characterized as factual guarantees.94 It is
submitted that the opinion provided by DLA, was not a factual guarantee and did not
make it an insurer of the soundness of its opinion and hence cannot be held liable on
the ground that it is incorrect. 95 Attorneys do not profess to know all the law or to be
incapable of error or mistake in applying it to the facts of the case. Thus, an opinion is
not to be measured by perfection in predictability of outcome, nor by infallibility in
opinion determination.96 Hence, Celltone cannot hold DLA liable on the grounds that it
is incorrect.
[B]. DLA OWED NO DUTY OF CARE TOWARDS CELLTONE
51. Admittedly, an attorney can be held liable for negligent misrepresentation to a third
party non-client. However, for there to be liability, the plaintiff must establish that the
defendant owed the non-client a duty.97 It is a well-established principle that the most
important duty of an attorney is to uphold the interest of the client. 98 A duty of
reasonable care of the attorney to the non-client cannot exist if such an independent
duty would potentially conflict with the duty the attorney owes to his or her client. 99
The conflict need not necessarily be actual, even potential conflict of interest can be
92 Zimmerman v. Kent, 575 N.E.2d 70 (Mass. App. Ct. 1991).
93 Washington Elec Coop Inc v. Mass Mun Wholesale Elec Co, 894 F supp 777, 790 (1995). [Washington
Elec]
94 Washington Elec, 894 F supp 777, 790 (1995).

95 Lucas v. Hamm, 364 P.2d 685 (1961).
96 Coastal Ortheopadic Institute PC v. Bongiorno, 807 N e 2d (2004).
97 Kirkland Constr. Co. v. James, 39 Mass.App.Ct. 559, 561-63 (1995).
98 Kokanda b Poondacha v K.D Ganapathi AIR 2011 SC 600.

used to determine the existence of a duty towards a non-client. 100Assuming that the
documents perused by DLA, indicated a possible breach of SAA, DLA had no duty to
disclose it to Celltone since there existed conflicting interests between the two parties.
While Celltone wanted to protect its investments, IndMobiles interests lied in
ensuring that Celltone invested in its company. Owing to such conflicting interests,
DLA had no duty of care towards Celltone and thus cannot be held liable by it.
[C]. IN ANY CASE, THE OPINION CANNOT BE CONSIDERED INCORRECT IN LIGHT OF ITS
ASSUMPTIONS
52. The legal opinion has been clearly and unequivocally circumscribed by the
qualifications that the respondents assumed all statements as to matter of fact
contained in the SAA to be true, accurate and complete.101 It is further qualified by
the assumption that there were no facts or circumstances in existence which could
render the SAA void or voidable due to reasons of fraud or misrepresentation. 102 The
respondents based this assumption on the SAA and the documents perused by them
and undertook no further investigation in ascertaining those facts. Stated assumptions
shift the responsibility to the opinion recipient for confirming the assumed facts for
itself or taking the risk that what is assumed might turn out to be untrue.103
53. Therfore, it is submitted that DLAs statements in the legal opinion, based on these
assumptions do not amount to misrepresentation. This has been held in the case of
Fortress Credit Corp.104 In this case the opinion letter consisted of an assumption that
the signatures on all of the documents were genuine and that all of the documents it
99 Lamare v. Basbanes, 418 Mass. 274, 276 (1994).
100 Miller v. Mooney, 431 Mass. 57, 63 (2000).
101 Appendix B, Factsheet.
103 M. Gurson et al, LEGAL OPINIONS
IN INTERNATIONAL
TRANSACTIONS, 53 (4th edn,
2003).
104 Fortress Credit Corp v. Dechert, LLP 934 N.Y.S.2d 119 (App. Div. 2011).

had seen were authentic. As it turned out, all of these documents were forged, but the
Court held that the opinion letter was clearly and unequivocally circumscribed by
these qualifications.105 The opinion was allowed to be read as if all of the documents
were approved and signed by the borrowers and the law firm was not held liable. The
same has been held in Nolte106 where the court held that the investors could not
reasonably have relied on the opinion that contained more "red flags" than assurances
and the opinion was not false because it stated it was based on the facts provided by
the client and that the opinion giver had not conducted any investigation.
54. In this case, DLA has explicitly stated in the opinion letter that the opinion is based
on and subjected to the assumptions stated therein.107 Hence it cannot be held liable
for an incorrect opinion even if there was a fraud or misrepresentation in the
transaction since it had not taken undertaken any independent inquiry and had based
their opinion on the assumptions explicitly stated.
[D]. CELLTONES OWN NEGLIGENCE EXCEEDS THAT OF DLA
55. Assuming DLA was negligent in investigation, the negligence of Celltone exceeded
that of DLA. It had ample opportunities to discover about the corruption issue and the
LoI in question. When the opinion recipients negligence exceeds that of the opinion
giver, the opinion giver is exculpated entirely for not making proper investigation
before giving the opinion due to the recipients own negligence.108
56. In the instant case, Mr. Gangston, the project manager of Celltone, had come across
certain revelations about corruption while investigating, but the matter was not
pursued further.109 The LoI too was given to Lexman Associates and DBAD Partners
during the due diligence process.110 This indicates they had sufficient opportunities to
discover the fraud and misrepresentation. There negligence, in this case, exceeds that
106 Nolte v Pearson, 994 F.2d 1311 (8th Cir. 1993).
108 Greyhound Leasing co v. FinNorwest Bank, 854 F.2d 1122 (8th Cir, 1988).
109 6, Factsheet.

of DLA, if any, and thus DLA cannot be held liable for the same. Hence, it is
submitted that DLA is entirely exculpated from liability in this case since Celltones
negligence exceeded that of DLA. In light of the above submissions, it is averred that
DLA is not liable to pay any damages to Celltone.
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Court may be pleased to hold, adjudge and declare that;
1. The appeals filed by the appellant are dismissed.
2. IndMobile and 5G Star are not liable to refund the purchase consideration of US$ 490
million or pay any damages to Celltone.
3. Band Bank is not obligated to release the escrow amount.
4. Darsh Legal Associates is not liable to pay any damages to Celltone.
And pass any other order it may deem fit in the interest of justice, equity and good
conscience.
All of which is humbly prayed,
Team Code HS15F,
Counsel for the Respondents.

APPENDIX I
A. RELEVANT PROVISIONS FROM LEGISLATIONS:

1. Sec. 2(t), Information Technology Act 2000.
"electronic record" means data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer generated micro fiche.
2. Sec. 12, Information Technology Act 2000.
(1) Where the originator has not agreed with the addressee that the acknowledgment of
receipt of electronic record be given in a particular form or by a particular method, an
acknowledgment may be given by
(a) any communication by the addressee, automated or otherwise; or
(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic
record has been received.
3. Sec. 19, Indian Contract Act 1872.
Voidability of agreements without free consent.
When consent to an agreement is caused by coercion, fraud or misrepresentation, the
agreement is a contract voidable at the option of the party whose consent was so caused.
(Exception) If such consent was caused by misrepresentation or by silence, fraudulent
within the meaning of section 17, the contract, nevertheless, is not voidable, if the party
whose consent was so caused had the means of discovering the truth with ordinary diligence.
4. Proviso to Section 58(2), Companies Act, 2013:
(2) Without prejudice to sub-section (1), the securities or other interest of any member in a
public company shall be freely transferable:

Provided that any contract or arrangement between two or more persons in respect of transfer
of securities shall be enforceable as a contract.
5. Section 111A(2), Companies Act, 1956:

(2) Subject to the provisions of this section, the shares or debentures and any interest therein
of a company shall be freely transferable :
[Provided that if a company without sufficient cause refuses to register transfer of shares
within two months from the date on which the instrument of transfer or the intimation of
transfer, as the case may be, is delivered to the company, the transferee may appeal to the 3
[Tribunal] and it shall direct such company to register the transfer of shares].
SUMMARIES OF RELEVANT CASE LAWS
1. Centre for Public Interest Litigation v. Union of India111
In this case regarding the allocation of 2G Spectrum, the standard for setting aside of the
tendering process was laid down. The Court held that any distribution over natural resources
should take place in a manner that maximizes the common good. Further, the doctrine of
reasonable bias was adopted by the Courts, which held that the standard for setting aside
Government contracts was the standard of a possibility of bias in the eyes of a reasonable
third person and not the existence of bias.
2. Tesco Supermarkets Ltd v. Nattrass112
The appellant was offering a discount on washing powder which was advertised on posters
displayed in stores. Once they ran out of the lower priced product the stores began to replace
it with the regularly priced stock. The manager failed to ensure the signs were taken down
and a customer was charged at the higher price. In its defence the appellant argued that the
company had taken all reasonable precautions and all 'due diligence', and that the conduct of
the manager could not attach liability to the corporation.
111 Centre for Public Interest Litigation v. Union of India, 2012 3 SCC 1.
112 Tesco Supermarkets Ltd v. Nattrass, 1971 UKHL 1.

The House of Lords accepted the defence and found that the manager was not a "directing
mind" of the corporation and therefore his conduct was not attributable to the corporation.
The corporation had done all it could to enforce the rules regarding advertising.
Lord Reid held that "The person who acts is not speaking or acting for the company. He is
acting as the company and his mind which directs his acts is the mind of the company. If it is
a guilty mind then that guilt is the guilt of the company."
3. Phoenix International Life Sciences Inc. v. Rilett113
The plaintiffs entered into negotiations to purchase a company in respect of which receivers,
the defendants, had been appointed. The plaintiffs were particularly interested in the extent of
the companys outstanding debtors and the value of a backlog of contract work. During the
course of preliminary discussions, the defendant gave an estimate of both those values and
the plaintiff made an offer to purchase the company subject to certain conditions, a due
diligence exercise and the "execution of a mutually satisfactory contract". One of the
conditions was that a payment of GBP 200,000, made by the plaintiff on acceptance of the
offer, would be returned if the plaintiff were to withdraw from the transaction due to breach
of any of the specified conditions or significant due diligence findings.
The plaintiff subsequently discovered that the values were substantially less than those given
in the estimate. The plaintiff withdrew its offer and issued proceedings for recovery of the
GBP 200,000
It was held by the Court that the offer letter was not in itself a contract, but an agreement to
contract in the future. The estimate was the best which the defendant could provide at the
time but was subject to the plaintiff carrying out detailed checks, as understood by all parties
at the time. The preliminary estimate therefore, was not actionable and no misrepresentation
had taken place by virtue of the preliminary information.
4. Fortress Credit Corp v. Dechert114
In this case, the lender (petitioner) agreed to loan the borrowers some money on the condition
that the borrowers hire an independent law firm to issue an opinion letter to the lender.
113 Phoenix International Life Sciences Inc v. Rilett, 2001 BCC 115.

Dreier, the lawyer representing the borrowers, engaged Dechert to serve in that role. The
lender made the additional loan of $50 million to the borrowers, but the borrowers had no
knowledge of it, did not authorize it, did not sign the loan documents, and never received the
loan proceeds. Dechert's only contact regarding the borrowers was with Dreier. Dechert
undertook no due diligence to determine the involvement, or lack of involvement, of the
borrowers in the loan transaction. Dechert, as "special corporate counsel" to the borrowers
and Dreier (collectively, the "Loan Parties", rendered an enforceability opinion in favor of the
lender. Dechert's letter included the opinion that "each of the Loan Parties has duly executed
and delivered each of the Transaction Documents to which it is a party." On discovering the
forged documents, the lender sued Dechert.
Although the court held that the lender could sue Dechert because it found "near privity,"it
ultimately declined to hold Dechert liable for damages to the lender. The court noted that
because the complaint did not allege that the lender advised Dechert that its obligations were
not limited to the review of only specified documents and the complaint did not allege that
the lender advised Dechert that it needed to investigate, verify, and report on the legitimacy
of the loan transaction, the lender could not establish that Dechert breached a duty of care.
The court also found that Dechert had no reason to suspect that the borrowers were not
actually participants in the loan transaction or that their signatures had been forged. The court
found that Dechert's statements in the opinion letter were not misrepresentations, as would be
required to find liability because the opinion letter stated that Dechert had not made an
independent inquiry into the accuracy of the factual representations or certificates.
Significantly, Dechert included in its opinion letter an assumption that the signatures on all of
the documents were genuine and an assumption that all of the documents it had seen were
authentic. The court said that the opinion letter "was clearly and unequivocally circumscribed
by the[se] qualifications." Essentially, these assumptions had the effect of enabling Dechert to
issue the opinion letter as if the certificates of the borrowers, the resolutions of the borrowers,
and the loan documents were authorized by the borrowers and that they were properly signed
and delivered by them.
5. Greyhound Leasing co v. FinNorwest Bank115
In this case, the transaction was intended to be a lease/purchase, structured in such a manner
as to permit the lender to take maximum advantage of various tax credits. Greyhound dealt
with a loan broker in structuring the transaction with a farmer who needed to obtain farm
115 Greyhound Leasing co v. FinNorwest Bank, 854 F.2d 1122 (8th Cir, 1988).

machinery and equipment. Greyhound intended to secure the loan by a first lien on numerous
items of farm equipment. However, the documents created by Greyhound for the transaction
did not reveal its true nature. The documents indicated that the equipment was newly
purchased from a farm equipment dealer when, in fact, the equipment was used and had been
owned and possessed by the borrower for many months. He had also created liens on it to
various vendors and this fact was not disclosed by the borrower. One of the documents
required by Greyhound was an opinion letter to be signed by the borrowers counsel. The
borrowers counsel, without any inquiry and in reliance solely upon its clients statements
opined that he was not aware of any liens or encumbrances...created or suffered by the
(borrower) of any nature. When the loan failed, the attorney was sued by the plaintiffs for
its failure to conduct a lien search before signing the opinion letter. The court held that the
wording of the opinion letter imposed no duty of investigation upon the attorney to make any
investigation as to the existence of liens, and even if there were such a duty, Greyhounds
own negligence exceeded any negligence of the attorney. It was held that Greyhound had an
independent obligation to investigate the existence of liens and that it was unreasonable for it
to have paid out millions of dollars in reliance of an opinion of a lawyer whom it had never
contacted or instructed. It was therefore held that the attorneys negligence, if any, was
substantially outweighed by that of Greyhound.
6. B. Rangaraj v. V.B. Gopalakrishnan and Others116
In this case the shares of a private company were held by two brothers and there was an
agreement between the brothers that each branch of the family would hold equal number of
shares. If any member of the branch wished to sell its share, first option to purchase was to be
given to member of that branch. The agreement was not incorporated in AOA. One of the
members sold the shares in contravention of agreement. Contention arose as to since the
restriction was not envisaged by AOA, it was not binding on shareholders or a vendee of the
shares. It was unenforceable at law and not binding on the company. Supreme Court of India
observed that Companies Act makes it clear that AOA is binding on company and
shareholders and transfer of shares is regulated by AOA. The only restriction on transfer of
shares are one contained in AOA. Restrictions not specified in AOA is neither binding on
company nor on the shareholders.
116 B. Rangaraj v. V.B. Gopalakrishnan and Others, AIR 1992 SC 453

7. Dresser Rand S.A. v. M/s. Bindal Agro Chemical Ltd. & Another117
In this case, the Court held that that a letter of intent merely indicates a partys intention to
enter into a contract with the other party in future. A letter of intent is not intended to bind
either party ultimately to enter into contract. However, it might be construed as a letter of
acceptance if such intention is evident from its terms. The question whether the letter of
intent is merely an expression of an intention to place an order in future or whether it is a
final acceptance of the offer thereby leading to a contract, is a matter that has to be decided
with reference to the terms of the letter. Parties may express negative contractual intention,
but where this is not so, the court can hold parties bound by the document, especially when
parties have acted on it, or have spent money on its reliance. A letter of intent, for example,
might merely provide that the offer shall be left open.
8. Barbudev v. Eurocom Cable Management Bulgari118
Barbudev concerned a side letter to a Share and Purchase Agreement in relation to the
proposed sale of a Bulgarian cable TV and internet company which appeared to offer Mr
Barbudev (the investor) the opportunity to invest in a newly merged entity on terms that
were to be agreed in an Investment and Shareholders Agreement. The side letter confirmed
that Eurocom Cable Management Bulgaria EOOD & Ors (the sellers of the company)
would negotiate the sale of the company in good faith and some of the principal terms of
the investment (including a minimum sale figure for the company of not less than
1.65million) were included. The side letter was drafted by lawyers, contained legal
terminology such as in consideration of your agreeing to enter into and ended with an
English law jurisdiction clause. Ultimately, the Investment and Shareholders Agreement
was never entered into and Mr Barbudev sought to enforce the terms of the side letter in
relation to the lost investment opportunity he said he suffered when his investment fell
through. The Court of Appeal disagreed with the High Court that the parties had intended
the side letter to be legally binding, but agreed that the terms of the side letter were too
117 Dresser Rand S.A. v. M/s. Bindal Agro Chemical Ltd. & Another, AIR 2006 SC 871
118 Barbudev v. Eurocom Cable Management Bulgaria, [2011] EWHC 1560 (QBD, Comm).

vague to be enforceable. The outcome was therefore the same in the High Court as in the
Court of Appeal.
The side letter did no more than provide Mr Barbudev with the opportunity to invest in the
Purchase on terms to be agreed between us, which was not the language of a binding
commitment, regardless of the commercial context and purpose for which the side letter was
produced. What Mr Barbudev was left with, therefore, was an agreement to agree.
9. Pagnan SPA v. Feed Products.119

In this case, there was a dispute between the parties as to whether negotiations for the sale
and purchase of corn gluten feed pellets that had been conducted via intermediary brokers
had resulted in a binding contract. The Court of Appeal held that they had. Lord Justice Lloyd
usefully set out the relevant principles as follows: 1. Where an agreement is being negotiated
in an ongoing exchange of correspondence, all the correspondence has to be looked at to
determine whether a binding contract has been concluded in the course of that
correspondence. 2. Even if the parties have reached agreement on all the terms of the
proposed contract, they may still intend that the contract is not to become binding until a
further condition has been fulfilled. That is the usual subject to contract situation. 3. The
parties may intend that the contract is not to become binding until some further term or terms
have been agreed. 4. On the other hand, the parties may intend to be bound even though there
are further terms to be agreed or some further formality to be fulfilled. If the parties fail to
reach agreement on such further terms, the existing contract is not invalidated. 5. There is no
legal obstacle preventing parties from agreeing to be bound while deferring important matters
to be agreed later (for example, when parties enter into heads of agreement). What is an
essential term for the purposes of a binding contract will vary from case to case but, in
essence, they are terms without which the contract is unworkable and the absence of which
cannot be remedied by the court implying a term into the contract.
119 Pagnan SPA v. Feed Products, [1987] Lloyds Rep 601


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IN THE HIGH COURT OF CALCUTTA

Letters Patent Appeal No. ____/2013

7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015

Band Bank is not Obligated to Release the Escrow Amount....................................32

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All India Reporter

All England Reports

Average Revenue Per Unit

British Company Law Cases

Butterworths Company Law Cases

California Supreme Court

Delaware Court of Chancery

Delaware Supreme Court

Darsh Legal Associates

England and Wales Court of Appeal

England and Wales High Court

Lloyd's Law Reports

Mass. App. Ct.Massachusetts Appeals Court

New York Court of Appeals

MEMORIAL FOR THE RESPONDENTSPAGE 4

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Queen's Bench Division, Law Reports

Share Acquisition Agreement

Supreme Court Cases

The Times Law Reports

Weekly Law Reports

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7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015

THE INCIDENTS SURROUNDING THE

THE INCIDENTS SURROUNDING THE

THE INCIDENTS SURROUNDING THE

CONSTITUTE A FRAUDULENT BREACH OF THE

AVERAGE REVENUE PER UNIT

IV. WHETHER THE DAMAGES CLAIMED BY CELLTONE SHOULD BE AWARDED?

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MEMORIAL FOR THE RESPONDENTSPAGE 13

7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015

THE INCIDENTS SURROUNDING THE LOI DO NOT CONSTITUTE A FRAUDULENT

THE INCIDENTS SURROUNDING THE CALCUTTA LICENSE DO NOT CONSTITUTE

BREACH OF THE SAA.

7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015

THE INCIDENTS SURROUNDING THE ARPU DO NOT CONSTITUTE A BREACH OF

THE DAMAGES CLAIMED ARE INCORRECT AND SHOULD NOT BE AWARDED

MEMORIAL FOR THE RESPONDENTSPAGE 15

7TH NUJS-HSF NATIONAL CORPORATE MOOT COURT COMPETITION, 2014-2015

BAND BANK IS NOT OBLIGATED TO RELEASE THE ESCROW AMOUNT