MEMORIAL for RESPONDENT

TABLE OF CONTENT

LIST OF ABBREVIATION……………………………………………………….……………iii

INDEX OF AUTHORITIES………………………………………………………..……………iv

STATEMENT OF JURISDICTION…………………………………………………………….vi

SUMMARY OF FACTS………………………………………………………………………....vii

ISSUES RAISED ............................................................................................................ ….......ix

SUMMARY OF ARGUMENTS………………………………………………………………….x

ARGUMENTS ADVANCED .............................................................................................. …..1

1. WHETHER THE PETITION FILED UNDER SECTION 37 OF THE

ARBITRATION AND CONCILIATION ACT, 1996, IS MAINTAINABLE………1

A. Section 37 is an exceptional appellate provision and does not apply to final awards… 1
B. The remedy for challenging an arbitral award lies under Section 34…………………..2
C. The petition is attempting to appeal a concluding observation, not a ruling under Section
16………………………………………………………………………………………. 2
D. The reliefs sought by the Claimant are outside the Court’s power under Section 37…. 3
E. Entertaining this petition would undermine finality and encourage parallel litigation…4

2. WHETHER THE PETITION FILED UNDER SECTION 11 OF THE

ARBITRATION AND CONCILIATION ACT, 1996, BEFORE THE HIGH
COURT OF KISHANGANJ, IS MAINTAINABLE…………………………………4

A. The Existence of an arbitration agreement is a precondition under Section 11………5

B. The Mere exchange of drafts or correspondence does not constitute a binding arbitration
agreement……………………………………………………………………………..5
C. The Petition under Section 11 was filed prematurely………………………………...6
D. The Respondent consistently denied the existence of an arbitration agreement……...7
E. Entertaining the petition undermines party autonomy and contractual consent………8

3. WHETHER THE LEARNED ARBITRAL TRIBUNAL HAD JURISDICTION

OVER THE ARBITRATION PROCEEDINGS OR NOT…………………………..9

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MEMORIAL for RESPONDENT

A. The Jurisdiction of the Tribunal depends on the existence of a valid arbitration

agreement………………………………………………………………………………
B. The Arbitration proceedings were initiated in the absence of party consent…………....
C. The Tribunal’s own conclusion affirms lack of jurisdiction……………………………
D. Non-compliance with Section 16(5) does not validate a jurisdictionally deficient
proceeding………………………………………………………………………………
E. Arbitration without jurisdiction defeats the legitimacy of the entire process………….

4. WHETHER THE SECTION 16 PETITION BEFORE THE ARBITRAL

TRIBUNAL OUGHT TO HAVE BEEN DECIDED AS A PRELIMINARY ISSUE
OR NOT……………………………………………………………………………… 12
A. Section 16(5) of the Act requires jurisdictional challenges to be decided promptly…..
B. Failure to decide Jurisdiction at the threshold caused prejudice to the Respondent…...
C. The Tribunal’s Deferment violates principles of natural justice and procedural fairness.
D. The legislative intent behind Section 16 favours early resolution of jurisdictional
challenges……………………………………………………………………………...
E. Jurisdictional questions, if not decided preliminarily, render the final award vulnerable
to challenge…………………………………………………………………………….
F. Jurisdiction without consent defeats the legitimacy of the entire process…………….

V. WHETHER THE FINAL ARBITRAL AWARD IS LIABLE TO BE SET ASIDE

UNDER SECTION 34(2)(A)(IV) OF THE ACT ON THE GROUND THAT THE
ARBITRAL PROCEDURE WAS NOT IN ACCORDANCE WITH LAW……… 13

A. Section 34(2)(a)(iv) provides a ground to set aside awards where procedure is not in
accordance with law……………………………………………………………………
B. The Tribunal failed to decide the Section 16 application as a preliminary issue………
C. Failure to follow mandatory procedure undermines the fairness and validity of the
award……………………………………………………………………………………
D. The procedural lapse is not curable as it goes to the root of the Tribunal’s competence.
E. The Tribunal’s non-compliance with procedural mandates renders the award liable to
set aside………………………………………………………………………………

PRAYER…………………………………………………………………………………XXIX

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MEMORIAL for RESPONDENT

LIST OF ABBREVIATION

S. NO. ABBREVIATION EXPANSION

1. & And
2. ¶ Paragraph
3. §, sec. Section
4. AIR All India Reporter
5. Anr. Another
6. art. article
7. cl. Clause
8. Consti. Constitution
9. HC High Court
10. Hon’ble Honourable
11. Ltd. Limited
12. No. Number
13. Ors. Others
14. Pvt. Private
15. SC Supreme Court
16. SCC Supreme Court Cases
17. Sch. Schedule
18. u/a Under Art.
19. u/s Under Section
20. UOI Union of India
21. v. Versus

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MEMORIAL for RESPONDENT

INDEX OF AUTHORITIES

INDIAN CASES
Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd., (2023) SCC 11
OnLine SC 33
Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd., 2022 SCC OnLine Del 5
2622

Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755 3

Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 5

Chintels India Ltd. v. Bhayana Builders Pvt. Ltd., Civil Appeal No. 4028 of 3
2020

Duro Felguera S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 11

Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd., 10
(2022) 1 SCC 131

Gayatri Balasamy v. ISG Novasoft Technologies Ltd., (2014) 3 Mad LJ 1 11

Haryana Tourism Ltd. v. Kandhari Beverages Ltd., Civil Appeal No. 266 of 2022 2

Harmanprit Singh Sindhu v. Union of India, (2014) 9 SCC 632 13

Indian Farmers Fertiliser Cooperative Ltd. v. Bhadra Products, (2018) 2 SCC 5

534

Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 10

K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 13

Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715 2

McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181 11

National Highways Authority of India v. Addl. Commissioner, Nagpur, (2022) 3

SCC OnLine Bom 1234

Nimet Resources Inc. v. Essar Steels Ltd., (2000) 7 SCC 497 10

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MEMORIAL for RESPONDENT
NTPC Ltd. v. Siemens Atkeingesellschaft, (2007) 4 SCC 451 14

N.V. International v. State of Assam, (2020) 2 SCC 109 3

OTHER CASES
Trimex International FZE Ltd. v. Vedanta Aluminium Ltd., (2010) 3 SCC 1 3

Union of India v. Modern Laminators, (2008) 7 SCC 310 5

Wellington Associates Ltd. v. Kirit Mehta, (2000) 4 SCC 272 7

CONSTITUTIONAL PROVISIONS
INDIA CONST. Article 14 10
INDIA CONST. Article 136 14
INDIA CONST. Article 227 5
INDIA CONST. Article 141 1

LEGISLATIVE MATERIAL
The Arbitration and Conciliation Act, 1996 1

The Indian Contract Act, 1872 1

The Constitution of India 1

BOOKS
Avtar Singh – Law of Arbitration and Conciliation
P.C. Markanda – Law Relating to Arbitration and Conciliation
T. Bhattacharya – The Arbitration and Conciliation Act with Case Law
O.P. MALHOTRA & INDU MALHOTRA – THE LAW OF ARBITRATION AND CONCILIATION.
Redfern & Hunter – Law and Practice of International Commercial Arbitration

INTERNET SOURCES
www.scconline.com
www.manupatra.com
www.lexisnexis.com
www.jstor.org

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MEMORIAL for RESPONDENT

STATEMENT OF JURISDICTION

The Respondent respectfully submits that this Hon’ble High Court of Kishanganj, Mahanrashtra,
has jurisdiction to hear and decide the present matter under Sections 11, 16, 34, and 37 of the
Arbitration and Conciliation Act, 1996.

While the Respondent firmly disputes the existence of a valid and binding arbitration agreement
between the parties, the arbitral proceedings were initiated pursuant to an order passed by this
Hon’ble Court under Section 11(6) of the Act. Thereafter, the Respondent raised a jurisdictional
objection before the learned Arbitrator under Section 16(2), asserting that the Tribunal lacked
authority to adjudicate the dispute. However, the learned Arbitrator failed to determine the plea at
the preliminary stage, and instead made only a vague reference to jurisdiction in the Final Award.

Aggrieved by this procedural lapse, the Respondent has invoked Section 34(2)(a)(iv) of the Act to
challenge the award, on the ground that the arbitral procedure was not in accordance with law.
Simultaneously, the Petitioner has preferred an appeal under Section 37(2)(a), seeking to overturn
the Tribunal’s finding on jurisdiction. In light of the above, this Hon’ble Court is vested with
jurisdiction to adjudicate both petitions under the relevant provisions of the Arbitration and
Conciliation Act, 1996.

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STATEMENTS OF FACTS

Parties to the Dispute

Hydel Maestro Corp. Ltd. (hereinafter referred to as the “Petitioner”) is a company engaged in the
business of manufacturing, supplying, and installing hydropower turbines and related
infrastructure. The Petitioner provides such services for the purpose of promoting renewable
energy systems. Del Agro Solutions Pvt. Ltd. (hereinafter referred to as the “Respondent”) is a
reputed agro-infrastructure enterprise involved in sustainable agricultural practices. The
Respondent aims to integrate hydropower technology into its agro-processing operations in
Himachal Pradesh to enhance productivity and environmental sustainability.

Initial Negotiations and Draft Agreement

On 15th January 2022, the Petitioner and the Respondent began discussions regarding the supply
and installation of five hydropower turbines at the Respondent’s facility in Himachal Pradesh. A
draft agreement, including an arbitration clause under Clause 12, was prepared but never signed
by the Respondent. As there was no written and signed consensus, no valid arbitration agreement
existed under Section 7 of the Arbitration and Conciliation Act, 1996. Nonetheless, in March 2022,
the Petitioner unilaterally delivered two turbines, and the Respondent acknowledged the delivery
under protest, seeking clarification on terms and specifications.

Dispute Arises Over Scope and Performance

By May 2022, issues arose regarding the quality and specifications of the delivered turbines. The
Respondent expressed concerns about the turbines being non-compliant with the standards
discussed during the negotiation stage. Communications were exchanged via email throughout
June and July 2022, in which the Respondent clearly stated that no binding agreement had been
executed, and the Petitioner’s actions were premature and not authorized. The Petitioner, however,
insisted that the contract had been concluded, and attempted to enforce the arbitration clause
contained in the unsigned draft agreement.

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MEMORIAL for RESPONDENT

Invocation of Arbitration and Section 11 Proceedings

In August 2022, the Petitioner issued a notice invoking arbitration under the disputed Clause 12.
The Respondent, through legal counsel, objected to the invocation, reiterating that no valid
arbitration agreement existed between the parties. Despite this, the Petitioner approached the
Hon’ble High Court under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking the
appointment of an arbitrator. The Respondent strongly opposed the maintainability of such a
petition, citing the absence of a written and signed arbitration agreement.

Arbitrator Appointed and Jurisdictional Objection Raised

On 10th October 2022, the Hon’ble High Court, without examining the Respondent’s objection in
detail, appointed a sole arbitrator. During the preliminary hearing, the Respondent filed a
jurisdictional objection under Section 16(2) of the Arbitration and Conciliation Act, arguing that
the tribunal had no authority to adjudicate the dispute due to the lack of a valid arbitration
agreement.

Arbitrator’s Ruling and Procedural Irregularities

In February 2023, the Arbitral Tribunal issued an order declaring the jurisdictional objection “not
maintainable,” without providing a reasoned decision or treating it as a preliminary issue, as
required under Section 16(5) of the Act. The Respondent contends that the arbitrator's approach
resulted in a procedural violation, affecting the fairness of the process.

Challenge to Arbitral Award and Pending Appeal

Subsequently, the Petitioner continued with arbitration, resulting in an award dated June 2023, in
favor of the Petitioner. The Respondent promptly filed an application under Section 34 to set aside
the arbitral award on grounds including lack of jurisdiction and procedural irregularities. The
Petitioner also filed an appeal under Section 37(2)(a) challenging the Section 16 order.

The Respondent now contests the maintainability of the Petitioner’s appeal and prays that the
arbitral award be set aside, as it was rendered without jurisdiction and in violation of due process.

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MEMORIAL for RESPONDENT

ISSUE RAISED

~I~

WHETHER, IN THE ABSENCE OF A SIGNED AND BINDING AGREEMENT, THERE

EXISTS A VALID ARBITRATION AGREEMENT UNDER SECTION 7 OF THE
ARBITRATION AND CONCILIATION ACT, 1996?

~II~

WHETHER THE APPOINTMENT OF A SOLE ARBITRATOR UNDER SECTION 11(6) OF

THE ARBITRATION AND CONCILIATION ACT, 1996 IS VALID DESPITE THE
RESPONDENT’S OBJECTION TO THE EXISTENCE OF AN ARBITRATION
AGREEMENT?

~III~

WHETHER THE ARBITRAL TRIBUNAL ACTED BEYOND ITS JURISDICTION BY

DISMISSING THE RESPONDENT’S SECTION 16(2) OBJECTION WITHOUT
DECIDING IT AS A PRELIMINARY ISSUE UNDER SECTION 16(5) OF THE ACT?

~IV~

WHETHER THE FINAL ARBITRAL AWARD IS LIABLE TO BE SET ASIDE UNDER

SECTION 34(2)(a)(iv) OF THE ACT ON THE GROUND THAT THE ARBITRAL
PROCEDURE WAS NOT IN ACCORDANCE WITH LAW?

~V~

WHETHER THE PETITIONER’S APPEAL UNDER SECTION 37(2)(a) IS

MAINTAINABLE IN THE ABSENCE OF A REASONED AND CONCLUSIVE ORDER
ON JURISDICTION FROM THE TRIBUNAL?

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MEMORIAL for RESPONDENT

SUMMARY OF ARGUMENTS

~I~

The Respondent respectfully submits that there exists no valid arbitration agreement under Section
7 of the Arbitration and Conciliation Act, 1996. The alleged agreement containing the arbitration
clause was never signed by the Respondent, nor was there any mutual consent to arbitrate disputes.
A valid arbitration agreement, as per the Act, must be in writing and signed by both parties, which
is absent in this case1. The Respondent has consistently denied entering into any binding
agreement. In the absence of consensus ad idem, there can be no legal basis for arbitration. The
Petitioner’s reliance on an unsigned and unexecuted draft is untenable 2. Therefore, the arbitration
proceedings initiated by the Petitioner are without jurisdiction and legally unsustainable.

~II~

The Petitioner’s application under Section 11(6) of the Act is not maintainable, as this provision
applies only where a valid arbitration agreement exists. The Respondent objected to the
maintainability of the petition at the very outset, highlighting the lack of a binding agreement.
Despite this, the Hon’ble High Court proceeded with appointing a sole arbitrator, leaving
jurisdiction to the arbitral tribunal. This decision undermined the Respondent’s objections and
bypassed the statutory safeguards. The Respondent participated only under protest and did not
waive its right to object. Therefore, the appointment of the arbitrator itself stands vitiated and open
to challenge under Section 34.

~III~

The Respondent submitted a jurisdictional objection under Section 16(2), which the arbitral
tribunal failed to decide as a preliminary issue in accordance with Section 16(5). Instead of passing
a reasoned order, the tribunal merely proceeded with the merits of the dispute. In the final award,

1
“K.K. Modi v. K.N. Modi, (1998) 3 SCC 573”. The Supreme Court held that arbitration requires a clear intention to
be bound by arbitration, which must be mutual.
2
“Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.”

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MEMORIAL for RESPONDENT

it made an ambiguous statement that it “may not have jurisdiction,” while still deciding the case.
This contradicts the statutory framework and deprives the Respondent of a fair hearing on
jurisdiction. The tribunal's failure to first resolve this foundational question invalidates the entire
arbitral process and renders the award procedurally defective.

~IV~

The arbitral award is liable to be set aside under Section 34(2)(a)(iv) for not following the
prescribed procedure, and under Section 34(2)(b)(ii) for being passed without jurisdiction. The
tribunal relied on an unsigned and disputed agreement and proceeded without first ruling on the
Section 16 objection. This amounts to a breach of procedural fairness and natural justice. The
award is not in accordance with the provisions of the Act and fails to meet the standards required
of arbitral decisions. Therefore, the final award lacks legal sanctity and must be set aside by this
Hon’ble Court.

~V~

The Petitioner’s appeal under Section 37(2)(a) is not maintainable3 as the arbitral tribunal never
passed a final or reasoned order on jurisdiction under Section 16(5). The right to appeal under this
provision arises only when the tribunal explicitly rejects a jurisdictional objection. In this case, no
such ruling was made—only a vague, non-conclusive observation was recorded in the final award.
The Petitioner’s attempt to appeal against a non-existent order is both premature and impermissible
in law. Hence, the appeal is not maintainable 4 and deserves to be dismissed in at the very beginning.

3
Arbitration and Conciliation Act, 1996, § 37(2)(a). Section 37(2)(a) permits an appeal only against an order accepting
or rejecting a plea under Section 16(2) or 16(3) regarding the arbitral tribunal's jurisdiction.
4
“Bharat Sanchar Nigam Ltd. v. Motorola India Pvt. Ltd., (2009) 2 SCC 337”.

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MEMORIAL for RESPONDENT

ARGUMENTS ADVANCED

I. WHETHER THE PETITION FILED UNDER SECTION 37 OF THE ARBITRATION

AND CONCILIATION ACT, 1996, IS MAINTAINABLE.

1. It is humbly submitted before this Hon’ble Court that the petition filed by the Claimant
under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as
"the Act") is not maintainable, as it fundamentally misconstrues the scope and legislative
intent behind Section 37. The Claimant seeks to challenge the conclusions arrived at in a
Final Arbitral Award. However, such a challenge is permissible only under Section 34 of
the Act. Section 37 provides an appellate mechanism against specified interim orders and
not against final awards. The remedy invoked is therefore not merely inappropriate but
procedurally untenable. This submission is supported by a combined reading of the
statutory scheme, judicial interpretation, and the overarching objective of minimizing
judicial interference in arbitral proceedings 5.

A. SECTION 37 IS AN EXCEPTIONAL APPELLATE PROVISION AND DOES

NOT APPLY TO FINAL AWARDS.

2. Section 37 of the Act serves as a statutory exception to the general principle of non-
intervention by courts in arbitration matters. It is a narrowly drafted provision that
enumerates the specific orders from which an appeal may lie. These include: (i) orders
refusing to refer parties to arbitration under Section 8; (ii) orders granting or refusing
interim measures under Section 9; (iii) orders accepting or rejecting a jurisdictional
challenge under Section 16; and (iv) orders under Section 17 granting or refusing interim
reliefs by the tribunal. This list is exhaustive and not illustrative, as emphasized in Kandla
Export Corporation v. OCI Corporation, (2018) 14 SCC 7156.

5
Section 37, Arbitration and Conciliation Act, 1996 – Scope and Objective.
6
Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715.

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MEMORIAL for RESPONDENT

3. In the present case, the Claimant seeks to assail a final award passed after twenty-five
substantive hearings, involving detailed examination of witnesses, including the CEOs of
both parties, and the submission of post-hearing briefs. The Award spans 130 pages and
deals comprehensively with all claims and evidence placed on record. The mere fact that
the Tribunal has made a concluding remark about jurisdiction does not detract from the
finality of the award. The impugned decision is not an interim order, nor does it qualify as
a ruling under Section 16 of the Act.

B. THE REMEDY FOR CHALLENGING AN ARBITRAL AWARD INCLUDING

ONE THAT DISCUSSES JURISDICTION LIES UNDER SECTION 34.

4. Section 34 provides a structured and exhaustive mechanism for setting aside an arbitral
award. It encompasses a wide range of grounds, including but not limited to, the incapacity
of a party, procedural impropriety, contravention of public policy, and importantly, want of
jurisdiction under Section 34(2)(a)(iv). Even where an arbitral tribunal has not separately
ruled on a Section 16 plea, a party retains the right to challenge the tribunal's jurisdiction
post-award under Section 347.
5. Allowing parties to bypass this framework by invoking Section 37 would be to distort the
careful bifurcation created by the Act between challenges to interim orders and those to
final awards. In Indian Farmers Fertiliser Cooperative Ltd. v. Bhadra Products, (2018) 2
SCC 534, the Hon’ble Supreme Court expressly held that once an arbitral award is passed,
the only permissible challenge is under Section 348, even if the issue raised pertains to
jurisdiction.

C. THE PETITION IS ATTEMPTING TO APPEAL A CONCLUDING

OBSERVATION, NOT A RULING UNDER SECTION 16.

7
See Final Award excerpts and procedural record of the Tribunal (as per facts).
8
Section 34(2)(a)(iv), Arbitration and Conciliation Act, 1996.

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MEMORIAL for RESPONDENT

6. In the present case, it is an admitted fact that while a Section 16 application was filed before
the Tribunal by the Respondent, neither party pressed arguments on it during the final stage
of proceedings. The Tribunal deferred the issue and no separate, reasoned order under
Section 16 was ever passed. Instead, the final award contains a brief observation that the
Tribunal "may not have jurisdiction". Such a vague and incidental remark does not
constitute a formal ruling.
Judicial precedent mandates that for a Section 37(2)(a) appeal to be maintainable, there
must be a clear, specific, and reasoned determination under Section 16. In its absence, the
award must be treated as final in all respects, and any challenge must follow the route of
Section 34.

D. THE RELIEFS SOUGHT BY THE CLAIMANT MODIFICATION OR

REMAND ARE OUTSIDE THE COURT’S POWER UNDER SECTION 37.

7. The Claimant has prayed for either a modification of the Final Award or a remand to the
same arbitral tribunal. It is respectfully submitted that neither Section 34 nor Section 37
grants the Court such powers. The jurisdiction of the Court under both these provisions is
supervisory, not appellate. Courts cannot revisit the merits or reasoning of arbitral awards.
8. In McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 1819, the
Hon’ble Supreme Court unequivocally held that courts cannot correct errors in an arbitral
award. They may only set aside the award, leaving parties to recommence arbitration if
they so desire. The Claimant's attempt to repackage a jurisdictional objection into a ground
for modification is legally impermissible and contrary to the statutory framework.

E. ENTERTAINING THE PETITION UNDER SECTION 37 WOULD

UNDERMINE FINALITY AND ENCOURAGE PARALLEL LITIGATION.

9. Finality is the bedrock of arbitration. Parties opt for arbitration expecting speedy resolution,
minimal court intervention, and closure of disputes. Allowing a Section 37 petition against

9
McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181: AIR 2006 SC 3366.

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MEMORIAL for RESPONDENT

a Final Award would lead to overlapping remedies, delay, and forum shopping. It would
also dilute the sanctity and authority of arbitral tribunals.
10. The Hon’ble Supreme Court has repeatedly emphasized that arbitration proceedings must
be insulated from unnecessary judicial interference, save in clearly defined statutory
circumstances. Entertaining this petition would defeat the legislative mandate of limiting
appeals and ensuring procedural discipline.

II. WHETHER THE PETITION FILED UNDER SECTION 11 OF THE ARBITRATION

AND CONCILIATION ACT, 1996, BEFORE THE HIGH COURT OF KISHANGANJ, IS
MAINTAINABLE.

11. It is humbly submitted before this Hon’ble Court that the petition filed under Section 11 of
the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") by the
Claimant is not maintainable, as there existed no valid and enforceable arbitration
agreement between the parties at the time the petition was preferred. The existence of an
arbitration agreement is a sine qua non for invoking the jurisdiction of a court under Section
In the absence of such an agreement, the invocation of Section 11 stands vitiated. The
present petition, thus, is premature, procedurally defective, and legally unsustainable. The
Respondent respectfully advances the following submissions:

A. THE EXISTENCE OF AN ARBITRATION AGREEMENT IS A PRECONDITION

UNDER SECTION 11.

13. Section 11 of the Act empowers the High Court to appoint an arbitrator where the parties
fail to do so, but only when there exists a valid arbitration agreement. Section 7 of the Act
defines an arbitration agreement as an agreement by the parties to submit disputes to
arbitration, which must be in writing and reflect consensus ad idem. The jurisprudence
developed by the Hon’ble Supreme Court in Duro Felguera S.A. v. Gangavaram Port Ltd.,
(2017) 9 SCC 729, and Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1,
emphasizes that the court must undertake a prima facie determination of the existence and
validity of the arbitration agreement before referring parties to arbitration under Section
11.

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MEMORIAL for RESPONDENT

14. In the present case, the purported contract containing the arbitration clause was never
signed or executed by the parties. The factual matrix indicates that while discussions took
place at the 2020 Dubai Expo and a draft EPC contract was prepared in February 2022, it
was never formally signed. The parties themselves understood that the contract would only
become binding upon a formal site visit and subsequent execution, which never occurred.

B. THE MERE EXCHANGE OF DRAFTS OR CORRESPONDENCE DOES NOT

CONSTITUTE A BINDING ARBITRATION AGREEMENT.

15. It is a well-settled principle that a mere exchange of contractual drafts or business

communications does not constitute a binding contract unless there is clear intention to be
bound. In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573, the Hon’ble Supreme Court held
that an arbitration agreement must disclose a clear intention to submit disputes to
arbitration, failing which no reference can be made. Similarly, in Jagdish Chander v.
Ramesh Chander, (2007) 5 SCC 719, the Court reiterated that the use of terms like "may"
or the presence of conditional language weakens the enforceability of an alleged arbitration
clause.
16. In the instant case, the communication between the parties lacks contractual finality. The
emails exchanged merely suggest a willingness to collaborate and refer to a possible future
agreement. There is no signed instrument reflecting mutual assent to arbitrate. Annexure A
of the facts states that "an impression existed" that the contract would be signed later. Such
language reflects the tentative and incomplete nature of the understanding. In law, such
arrangements do not crystallize into a binding arbitration agreement under Section 7.

C. THE PETITION UNDER SECTION 11 WAS FILED IN A PREMATURE

MANNER, PRIOR TO THE FORMALIZATION OF THE CONTRACT.

17. It is respectfully submitted that the arbitration clause in Clause 25 of the EPC
contract could not have been invoked before the execution of the contract itself. A
clause within a draft, unsigned agreement has no legal force until the contract as a
whole is executed. Since no such execution occurred in this case, the arbitration

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MEMORIAL for RESPONDENT

clause remained inoperative. The invocation of arbitration by the Claimant on 7th

October 2022, and the filing of the Section 11 petition on 11th October 2022, were
therefore premature.
18. The Hon’ble Supreme Court in M.R. Engineers and Contractors Pvt. Ltd. v. Som
Datt Builders Ltd., (2009) 7 SCC 696, held that for an arbitration clause to be
enforceable, it must be incorporated by reference into a contract that is validly
executed. In the absence of such incorporation, Section 11 proceedings are not
maintainable.

D. THE RESPONDENT CONSISTENTLY DENIED THE EXISTENCE OF AN

ARBITRATION AGREEMENT.

19. From the outset, the Respondent has taken a consistent position that no arbitration
agreement existed between the parties. This position was communicated in
response to the Claimant's notice invoking arbitration and reiterated before the
Hon’ble High Court during Section 11 proceedings. The absence of a signed
contract and mutual assent was clearly raised as a jurisdictional objection, which
was wrongfully overruled.
20. Moreover, the Tribunal itself, at the conclusion of proceedings, acknowledged that
it may not have jurisdiction in light of the Section 16 application filed by the
Respondent. This post-facto observation reinforces the Respondent's position that
arbitration was initiated without a foundational agreement in place.

E. ENTERTAINING THE SECTION 11 PETITION WITHOUT A VALID

AGREEMENT UNDERMINES PARTY AUTONOMY AND THE CONTRACTUAL
NATURE OF ARBITRATION.

21. Arbitration is a consensual process. It is rooted in the autonomy of parties to decide

how and when to resolve disputes. Imposing arbitration where no valid agreement
exists erodes this foundation. The Hon’ble Supreme Court in Booz Allen and

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MEMORIAL for RESPONDENT

Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, reiterated that
arbitration arises out of contract and cannot be imposed unilaterally.
22. Allowing a Section 11 petition to succeed in the absence of a valid arbitration
agreement sets a dangerous precedent. It undermines the sanctity of contractual
intent and exposes parties to arbitration without their consent. Such an outcome
would be antithetical to the principles underlying the Arbitration and Conciliation
Act, 1996.

III WHETHER THE LEARNED TRIBUNAL HAD JURISDICTION OVER THE

ARBITRATION PROCEEDINGS OR NOT.

23. It is humbly submitted before this Hon’ble Court that the Learned Arbitral Tribunal
did not have jurisdiction over the arbitral proceedings as there was no valid
arbitration agreement between the parties. Jurisdiction of an arbitral tribunal is
derived from party consent, and more specifically, from a valid arbitration
agreement in accordance with Section 7 of the Arbitration and Conciliation Act,
1996 (hereinafter "the Act"). In the absence of such agreement, the tribunal lacks
authority to entertain the matter. The Respondent respectfully makes the following
submissions:

B. THE JURISDICTION OF THE TRIBUNAL DEPENDS ON THE EXISTENCE OF

A VALID ARBITRATION AGREEMENT.

24. It is a settled proposition that an arbitral tribunal derives its jurisdiction from the
arbitration agreement entered into by the parties. Section 16(1) of the Act empowers
the tribunal to rule on its own jurisdiction, but such power presupposes the
existence of a valid agreement under Section 7. The Hon’ble Supreme Court in
Reva Electric Car Company Pvt. Ltd. v. Green Mobil, (2012) 2 SCC 93, held that
the jurisdiction of an arbitral tribunal cannot be presumed and must flow from a
legitimate arbitration clause.
25. In the present case, the document that allegedly contains the arbitration clause – the
EPC contract – was never signed or executed by the parties. Both parties understood

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MEMORIAL for RESPONDENT

that the contract would be finalized only after a formal site visit or a similar
undertaking. Therefore, the contract, including the arbitration clause under Clause
25, never came into force.

B. THE ARBITRATION PROCEEDINGS WERE INITIATED IN THE ABSENCE

OF PARTY CONSENT.

26. Arbitration, by its very nature, is a consensual process. The tribunal's jurisdiction
arises only when both parties have unequivocally agreed to submit their disputes to
arbitration. In Trimex International FZE Ltd. v. Vedanta Aluminium Ltd., (2010) 3
SCC 1, the Supreme Court reiterated that mere reference to an arbitration clause
without agreement does not suffice. The facts of the present case clearly show that
Hydel Maestro Corp invoked arbitration based on a draft contract, despite the
absence of any binding agreement or subsequent ratification of the terms.
27. Moreover, the emails exchanged between the parties suggest ongoing negotiations,
not contractual finality. In fact, the language used – "an impression existed that the
contract would be formalized" – clearly suggests that both parties treated the
agreement as incomplete. Thus, the initiation of arbitration was premature and
unsupported by any binding document.

C. THE TRIBUNAL’S OWN CONCLUSION AFFIRMS LACK OF

JURISDICTION.

28. Significantly, the Tribunal itself, in its final award, observed that it "may not have
jurisdiction" in the present matter. Though this observation was made at the end of
the proceedings, it is nonetheless indicative of the tribunal’s understanding that a
jurisdictional defect existed. While it is unfortunate that the Section 16 application
was not taken up earlier as a preliminary issue, the Tribunal was still duty-bound to
decline jurisdiction if it believed the arbitration was improperly invoked.
29. Such an acknowledgment, albeit belated, supports the Respondent’s long-held
position that the proceedings were ultra vires. As per Kvaerner Cementation India
Ltd. v. Bajranglal Agarwal, (2012) 5 SCC 214, the jurisdiction of the arbitral

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tribunal is not unfettered and must be confined strictly within the bounds of the
arbitration agreement.

D. NON-COMPLIANCE WITH SECTION 16(5) DOES NOT VALIDATE A

JURISDICTIONALLY DEFICIENT PROCEEDING.

30. It is respectfully submitted that the Tribunal’s decision to reserve the Section 16
objection until the final hearing does not remedy the defect of jurisdiction. Section
16(5) of the Act mandates that the tribunal shall decide on a plea of lack of
jurisdiction as a preliminary issue. In the instant case, the Tribunal failed to
adjudicate the plea in a timely manner, causing prejudice to the Respondent.
31. However, even if this procedural lapse is overlooked, the substance remains that
the Tribunal lacked the foundational authority to adjudicate the matter. Jurisdiction
cannot be conferred by omission or waiver; it must be affirmatively established.
E. ARBITRATION WITHOUT JURISDICTION DEFEATS THE LEGITIMACY
OF THE ENTIRE PROCESS.

32. Permitting an arbitral tribunal to continue and conclude proceedings in the absence
of jurisdiction renders the award legally vulnerable. As held in Nimet Resources
Inc. v. Essar Steels Ltd., (2000) 7 SCC 497, arbitration proceedings conducted
without jurisdiction are nullities in law. Party autonomy and procedural fairness
demand that tribunals act strictly within the scope of their conferred authority.
33. Allowing a tribunal to rule on substantive issues without first establishing
jurisdiction undermines the legal framework that underpins arbitral autonomy. In
this case, the Tribunal operated without legal foundation, and the resulting award,
despite its detailed reasoning, is rendered unenforceable.

IV. WHETHER THE SECTION 16 PETITION BEFORE THE ARBITRAL TRIBUNAL

OUGHT TO HAVE BEEN DECIDED AS A PRELIMINARY ISSUE OR NOT.

34. It is humbly submitted before this Hon’ble Court that the Section 16 petition filed
by the Respondent before the Learned Arbitral Tribunal ought to have been decided

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as a preliminary issue. The failure of the Tribunal to rule on the jurisdictional

challenge at the threshold stage violated both the letter and spirit of Section 16(5)
of the Arbitration and Conciliation Act, 1996 (hereinafter "the Act"). The statutory
framework mandates that jurisdictional objections raised under Section 16 must be
addressed before proceeding to adjudicate the merits of the dispute. The
Respondent respectfully submits the following:

A. SECTION 16(5) OF THE ACT REQUIRES JURISDICTIONAL

CHALLENGES TO BE DECIDED PROMPTLY.

35. Section 16(5) of the Act clearly stipulates that the arbitral tribunal shall decide the
plea that it does not have jurisdiction as a preliminary issue. The use of the word
“shall” in the statute makes the obligation mandatory. The Hon’ble Supreme Court
in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., (2009) 1 SCC 267,
emphasized the importance of dealing with jurisdictional issues at the outset to
avoid wastage of time and resources.
36. In the present case, the Respondent filed a Section 16 application challenging the
jurisdiction of the Tribunal. However, instead of adjudicating this objection before
proceeding to the merits, the Tribunal chose to defer its decision and took it up only
at the final stage, thereby violating Section 16(5).

B. FAILURE TO DECIDE JURISDICTION AT THE THRESHOLD CAUSED

PREJUDICE TO THE RESPONDENT.

38. The procedural delay in deciding the Section 16 plea led to significant hardship for
the Respondent. Over twenty-five arbitral hearings were conducted, involving
cross-examination of witnesses and the submission of extensive documentation. All
of this occurred while the Respondent continued to maintain that the Tribunal
lacked jurisdiction. Had the Tribunal decided the issue at the outset, these
proceedings might have been avoided entirely.

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39. The object of Section 16(5) is to avoid precisely this kind of procedural inefficiency.
As held in Wellington Associates Ltd. v. Kirit Mehta, (2000) 4 SCC 272, the validity
of an arbitral reference must be established at the threshold to protect parties from
the burden of protracted proceedings.

C. THE TRIBUNAL’S DEFERMENT VIOLATES PRINCIPLES OF NATURAL

JUSTICE AND PROCEDURAL FAIRNESS.

40. It is respectfully submitted that natural justice mandates that a party should not be
subjected to proceedings before a forum whose jurisdiction is seriously disputed.
The Respondent's consistent objection to the tribunal’s jurisdiction was never
conclusively addressed. This undermined the confidence of the Respondent in the
fairness of the arbitral process.
41. Even more concerning is that, despite the application being on record, the Tribunal
did not provide any substantive ruling during the course of proceedings. The belated
and ambiguous observation in the Final Award that the Tribunal “may not have
jurisdiction” is no substitute for a clear and reasoned order on jurisdiction.

D.THE LEGISLATIVE INTENT BEHIND SECTION 16 FAVOURS EARLY

RESOLUTION OF JURISDICTIONAL CHALLENGES.

42. The 1996 Act, as amended, is designed to ensure speed, efficiency, and minimal
judicial intervention. Section 16 is a reflection of the principle of kompetenz-
kompetenz, allowing tribunals to rule on their own jurisdiction. However, this
autonomy is balanced by the obligation under Section 16(5) to do so early in the
proceedings.
43. Failure to do so creates a procedural vacuum and disrupts the balance intended by
the Act. As per the Law Commission’s 246th Report, premature engagement with
merits before determining jurisdiction undermines procedural clarity and increases
the likelihood of post-award challenges, precisely what has occurred in the present
case.

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E. JURISDICTIONAL QUESTIONS, IF NOT DECIDED PRELIMINARILY,

RENDER THE FINAL AWARD VULNERABLE TO CHALLENGE.

44. A final award passed without first resolving a jurisdictional plea lacks legal
certainty. The validity of such an award becomes questionable and invites avoidable
litigation under Sections 34 and 37 of the Act. As observed in NTPC Ltd. v. Siemens
Atkeingesellschaft, (2007) 4 SCC 451, failure to resolve jurisdictional issues early
can invalidate otherwise valid proceedings.
45. In the present case, the Tribunal’s hesitation to address the Section 16 objection
preliminarily has led to confusion, additional litigation, and undermined the very
efficiency that arbitration promises to deliver.

V. WHETHER THE FINAL ARBITRAL AWARD IS LIABLE TO BE SET ASIDE UNDER

SECTION 34(2)(a)(iv) OF THE ARBITRATION AND CONCILIATION ACT, 1996, ON
THE GROUND THAT THE ARBITRAL PROCEDURE WAS NOT IN ACCORDANCE
WITH LAW.

46. It is humbly submitted before this Hon’ble Court that the Final Arbitral Award
passed by the Learned Sole Arbitrator is liable to be set aside under Section
34(2)(a)(iv) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as
"the Act") as the arbitral procedure was not in accordance with the agreement of
the parties and the mandatory provisions of the Act. The Tribunal failed to comply
with statutory requirements, particularly in relation to Section 16(5), thereby
rendering the award procedurally defective and legally unsustainable.

A. SECTION 34(2)(a)(iv) PROVIDES A GROUND TO SET ASIDE AWARDS

WHERE PROCEDURE IS NOT IN ACCORDANCE WITH LAW.

47. Section 34(2)(a)(iv) allows a party to challenge an arbitral award where the
composition of the tribunal or the arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was not in accordance with the

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provisions of the Act. The section upholds the principle that procedure forms an
integral part of the fairness and legality of arbitration. In Oil & Natural Gas
Corporation Ltd. v. Western Geco International Ltd., (2014) 9 SCC 263, the
Hon’ble Supreme Court observed that arbitral fairness and legality cannot be
divorced from procedural compliance.

B. THE TRIBUNAL FAILED TO DECIDE THE SECTION 16 APPLICATION AS A

PRELIMINARY ISSUE IN VIOLATION OF SECTION 16(5).

48. Section 16(5) requires that any plea regarding the tribunal’s jurisdiction must be
decided as a preliminary issue. In the present case, the Respondent had raised a
jurisdictional objection under Section 16 at an early stage. However, the Tribunal
neither decided this objection preliminarily nor passed a reasoned order before
proceeding to hear the case on merits. Instead, it reserved the application until the
final hearing and only made a passing reference to it in the award, stating that it
“may not have jurisdiction.”
49. This failure is a direct breach of the statutory procedure contemplated under the
Act. As held in NTPC Ltd. v. Siemens Atkeingesellschaft, (2007) 4 SCC 451, non-
compliance with mandatory procedural requirements under the Act can form a valid
ground for setting aside an award under Section 34(2)(a)(iv).
C. FAILURE TO FOLLOW MANDATORY PROCEDURE UNDERMINES THE
FAIRNESS AND VALIDITY OF THE AWARD.

50. The arbitral process is governed not only by substantive outcomes but also by the
adherence to procedural fairness. By failing to adjudicate the jurisdictional plea
under Section 16 at the outset, the Tribunal denied the Respondent a timely ruling
on a fundamental objection. This caused serious prejudice and uncertainty
throughout the arbitral process, affecting the Respondent’s ability to plan its
defence and strategy. As observed in S.B.P. & Co. v. Patel Engineering Ltd., (2005)
8 SCC 618, procedural integrity is foundational to the validity of an arbitral award.

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D. THE PROCEDURAL LAPSE IS NOT CURABLE AS IT GOES TO THE ROOT

OF THE TRIBUNAL’S COMPETENCE.

51. It is respectfully submitted that the irregularity is not a mere technical error but
strikes at the core of the tribunal’s competence. Jurisdictional objections are
threshold matters, and the failure to resolve them as mandated by Section 16(5)
means that the Tribunal proceeded without establishing its authority. Such an
omission vitiates the very foundation of the award. In Antrix Corporation Ltd. v.
Devas Multimedia Pvt. Ltd., (2023) SCC OnLine SC 33, the Hon’ble Supreme
Court reaffirmed that disregard for statutory procedure can render an award
vulnerable to annulment.

E. THE TRIBUNAL’S NON-COMPLIANCE WITH PROCEDURAL MANDATES

RENDERS THE AWARD LIABLE TO BE SET ASIDE.

52. The Tribunal’s approach in ignoring its obligation under Section 16(5), proceeding
on merits without deciding jurisdiction, and ultimately delivering a 130-page award
despite admitting doubt over its own competence, cumulatively renders the entire
process defective. This constitutes a clear violation of the arbitral procedure
prescribed under the Act.

VI. WHETHER THE PETITIONER’S APPEAL UNDER SECTION 37(2)(a) OF THE

ARBITRATION AND CONCILIATION ACT, 1996, IS MAINTAINABLE IN THE
ABSENCE OF A REASONED AND CONCLUSIVE ORDER ON JURISDICTION FROM
THE TRIBUNAL.

53. It is humbly submitted before this Hon’ble Court that the appeal filed by the
Petitioner under Section 37(2)(a) of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as “the Act”), is not maintainable, as there exists no reasoned
or conclusive order by the Arbitral Tribunal under Section 16 accepting or rejecting
its jurisdiction. Section 37(2)(a) permits an appeal only against an order passed by
the Tribunal expressly deciding a plea under Section 16. In the absence of such an

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order, the appeal lies outside the statutory scheme and is therefore liable to be
dismissed in limine.

A. SECTION 37(2)(a) REQUIRES A SPECIFIC AND REASONED ORDER ON A

SECTION 16 PLEA.

54. Section 37(2)(a) of the Act provides a right to appeal against an order of the arbitral
tribunal accepting the plea referred to in Section 16(2) or (3), i.e., that it has no
jurisdiction or that it is exceeding the scope of the arbitration agreement. The
provision presupposes that the Tribunal has passed a definitive and reasoned order
disposing of a jurisdictional challenge. A mere observation or inference without a
formal ruling does not fulfill the statutory precondition.
55. In Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715, the
Hon’ble Supreme Court clarified that appellate remedies under the Act are available
only in cases where the Tribunal has conclusively ruled on the jurisdictional plea.
Therefore, a passing reference within the final award, such as the Tribunal’s
comment that it “may not have jurisdiction,” does not satisfy the threshold for
maintainability under Section 37(2)(a).

B. THE TRIBUNAL NEVER RENDERED A FORMAL RULING UNDER

SECTION 16.

56. In the instant case, the Tribunal deferred consideration of the Respondent’s Section
16 application and did not adjudicate the matter during the course of the
proceedings. At no point did the Tribunal issue a separate, reasoned decision
rejecting or accepting the jurisdictional plea. Instead, it proceeded to hear the case
on merits, concluding with a detailed Final Award wherein it made a late-stage
observation that it “may not have jurisdiction.”
57. Such a remark, devoid of legal reasoning or conclusive determination, does not
meet the statutory requirements of an order under Section 16. As such, the appeal

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filed under Section 37(2)(a), which hinges upon the existence of a valid order under
Section 16, is not maintainable.

C. SECTION 37 CANNOT BE INVOKED TO CHALLENGE PASSING

OBSERVATIONS MADE IN THE FINAL AWARD.

58. The Petitioner is attempting to characterize the Tribunal’s concluding remarks on

jurisdiction as an order under Section 16, merely to fit within the ambit of Section
37(2)(a). However, such a characterization is legally impermissible. In Indian
Farmers Fertiliser Cooperative Ltd. v. Bhadra Products, (2018) 2 SCC 534, the
Hon’ble Supreme Court held that final awards are to be challenged under Section
34 and not under Section 37, and that Section 37 is confined to challenges against
specific interim orders.
59. In this case, since the Tribunal’s observation formed part of the Final Award and
not a standalone order under Section 16, the Petitioner’s invocation of Section
37(2)(a) is procedurally flawed.

D. THE APPEAL UNDER SECTION 37(2)(a) SEEKS TO CIRCUMVENT THE

REMEDY UNDER SECTION 34.

60. Permitting an appeal in the absence of a Section 16 order undermines the structure
of the Act, which clearly demarcates different avenues for different stages of
proceedings. Challenges to interim rulings fall within Section 37, whereas
challenges to the final award, including findings that touch on jurisdiction, lie
exclusively under Section 34.
61. If the Petitioner is aggrieved by the Tribunal’s treatment of the jurisdictional issue,
the appropriate remedy is to file a petition under Section 34(2)(a)(iv) to set aside
the award on grounds of excess of jurisdiction or lack thereof—not an appeal under
Section 37. Allowing the present appeal would result in procedural confusion and
duplicative litigation.

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MEMORIAL for RESPONDENT

E. ALLOWING THE PRESENT APPEAL WOULD DEFEAT THE SCHEME AND

OBJECT OF THE ACT.

62. The Arbitration and Conciliation Act is built upon the principles of limited judicial
intervention and procedural clarity. Expanding the scope of Section 37 to include
appeals against informal or inconclusive remarks in final awards would dilute these
principles. As emphasized in McDermott International Inc. v. Burn Standard Co.
Ltd., (2006) 11 SCC 181, judicial interference must be strictly within the bounds
prescribed by the statute.
63. Accepting the Petitioner’s appeal under Section 37(2)(a) would blur the lines
between interlocutory and final stages of arbitration, destabilizing the finality that
the arbitral process is meant to ensure.

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PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced, and authorities
cited, the Counsel on behalf of the Respondent humbly prays before this Hon’ble Court that it may
be pleased to hold, adjudge, and declare that:

I. That the petition filed under Section 37 of the Arbitration and Conciliation Act, 1996 is not
maintainable as it seeks to challenge a Final Award in the absence of a conclusive order
under Section 16, and the remedy lies solely under Section 34.
II. That the petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 was
not maintainable due to the absence of a valid, concluded, and enforceable arbitration
agreement between the parties.
III. That the Learned Arbitral Tribunal lacked jurisdiction to adjudicate the present dispute as
the invocation of arbitration was based on an unexecuted and incomplete contract.
IV. That the Section 16 application filed before the Learned Arbitral Tribunal ought to have
been decided as a preliminary issue in accordance with the mandate of Section 16(5), and
the Tribunal’s failure to do so renders the proceedings procedurally defective.
V. That the Final Arbitral Award is liable to be set aside under Section 34(2)(a)(iv) of the
Arbitration and Conciliation Act, 1996 as the arbitral procedure was not in accordance with
the provisions of the Act.
VI. That the Petitioner’s appeal under Section 37(2)(a) is not maintainable as there was no
reasoned or conclusive order passed by the Tribunal under Section 16.

And/or may pass any other order that this Hon’ble Court may deem fit in the light of equity, justice,
and good conscience. And for this act of kindness, the Respondent shall, as in duty bound, ever
pray.

Sd/-
COUNSEL FOR RESPONDENT

xxix