ORDER

OF MOOTING:

P7

IN

THE

HIGH COURT

OF

JUDICATURE

AT

DELHI

JODHABAI PICKLES LTD, NEW DELHI (PLAINTIFF)

V.

AKBAR RESTAURANTS LTD (DEFENDANT) [CIVIL PETITION NO. -------OF

2011]

ON SUBMISSION

TO THE

HIGH COURT JUDICATURE

AT

DELHI

MEMORIAL ON BEHALF

OF THE

PLAINTIFF

COUNSEL

ON

BEHALF

OF THE

PLAINTIFF

TABLE OF CONTENTS

A. INDEX OF AUTHORITIES..(iii) (i) BOOKS REFERRED.. .. (iii) (ii) WEBSITES REFFERED ......(iii) (iii) ACTS AND STATUTES REFFERED(iii) (iv)TABLE OF CASES ... . (iv) B. LIST OF ABBREVIATIONS (iv) C. STATEMENT OF JURISDICTION 1 D. STATEMENTS OF FACTS... ...2 E. IDENTIFICATION OF ISSUES .. ..3 F. SUMMARY OF ARGUMENTS ....4-6 G. ARGUMENTS ADVANCE. 6-13 H. PRAYER FOR RELIEF .

A. INDEX OF AUTHORITIES (i)BOOKS REFERRED 1. Aravind. P. Datar, Commentary on the Constitution of India, 2nd Ed., 2007 2. H.M. Seervai, Constitutional Law of India, 4th Ed., Vol 2, 1993 3. M.P. Jain, Indian Constitutional Law, 5th Ed., Vol 1, 2003 4. M.P. Jain, Indian Constitutional Law, 5th Ed., Vol 2, 2003 5. Oxford Dictionary of Quotations and Proverbs, Eighteenth Impression, Oxford University Press 6. V.N. Shukla, Constitution of India, 10th Ed., 2001 7. Avtar Singh, Contract &Specific Relief, 9th Ed., 2005 8. Pollock and Mulla, The Sale of Goods Act, 7th Ed., 2001 (ii)ACTS & STATUTES 1. Code of Civil Procedure, 1908 2. Indian Contract Act, 1872 3. Sale of Goods Act, 1930 (iii)TABLE OF CASES

B. LIST OF ABBREVIATION

A.I.R A. P. All. Art. Bom. Etc. H. C. Ltd. L. R. S.C. S.C.C. S.C.J. S.C.R. U.O.I.

All India Reporter Andhra Pradesh Allahabad Article Bombay et cetra High Court Limited Law Reports Supreme Court Supreme Case Cases Supreme Court Journal Supreme Court Review Union of India

C. STATEMENT OF JURISDICTION

The petitioner Jodhabai Pickles Ltd, New Delhi submits the following matter to the Honble Delhi High Court pursuant to Sec 20 of the Civil Procedure Code :Section 20 of Code of Civil Procedure states as follows: 20. Other suits to be instituted where Defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction: (a) the Defendant, or each of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the Defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.

D. STATEMENT OF FACTS Reputation of Jodhabai Pickles Ltd. Jodhabai pickles Ltd. Supplies organic eye birds pickle around the world. The owner of Akbar Restaurants, Mr. Humayun Jahangir, was scoring variety and gourmet food for his restaurant in a food festival at Paris called, "La nourriture en inde". Mr. Jahangir liked the pickle very much and took samples back home. He tested the pickle throughout the year and it went down well with most of his Indian cuisine. Contract of Akbar - He then decided to procure it in bulk for his restaurant. He wrote an offer letter for three years supply for the pickle for 10,000. The letter was posted to the agent in Paris and same was communicated to the company in India. MD, Ms. Mumtaz Bano Begum, went to Paris to liason with the agent. The offer is debated and the contract value is hiked to 15,000 in return for including the courier and delivery charge as, by Jodha. When Akbar receives this letter for the hike he thinks about the same and sends his letter agreeing to the terms but requesting that the payment will be made only by draft on delivery of the goods. Jodha writes to Akbar stating it has no objection the same. Both the parties decide to reduce this agreement to writing

in Paris. The contract does not stipulate which law would govern the contract, though while sending all communication (including subsequent), Akbar's communication read the base read "Subject to The exclusive Jurisdiction of the Courts of the city of London" while Jodha's communication (including subsequent communication) read "All Disputes subject to Delhi jurisdiction".
Difference in quality - Due to the increased demand of the product Jodha has to

import the major ingredient from i.e Bird's eye chilli from Thailand. It posts a letter informing the same to Akbar. Akbar however does not receive the letter. Three days later, Akbar reads news about Jodha's import from Thailand. Akbar gets upset about this news and writes a letter of recalling his acceptance. The

letter sent by airmail gets delayed and in the meantime Pickles are sent by sea cargo. Akbar refused to take the consignment when they reach England. When the news reaches India, Jodha immediately files a suit.
Eurozone Crisis - In the pendency of the suit the value of the pound crashes to

almost 1/6 of its original price (0.R 1=INR 90). Jodha also files an application that the damages be given at the original intended price in Rupees and not the present value in pounds.

E. IDENTIFICATION OF ISSUES 1. Whether the Delhi High Court has the territorial jurisdiction and the pecuniary jurisdiction to entertain the suit? 2. Whether the refusal to take the delivery of the goods on the part of defendantbuyer gives a right to plaintiff-seller to sue him for damages? 3. Whether the plaintiff is entitled to get the damages as per the original intended price in rupees and not the present value in pounds or not?

F. SUMMARY OF ARGUMENTS 1. Whether the Delhi High Court has the territorial jurisdiction and the pecuniary jurisdiction to entertain the suit? The petitioner, Jodhabai Pickles Ltd., claims that since the cause of action arises in the local limits of the Delhi High Court and further, the acceptance of offer from the defendant was made and the information regarding the refusal or non-acceptance by the defendant of goods delivered by the plaintiff was received at its registered office in Delhi which gives rise to such cause of action. Moreover, the fact that the contract was reduced in writing at London can alter the place where the contract actually took place i.e. Delhi. Hence the Delhi High Court has territorial jurisdiction to entertain the suit. 2. Whether the plaintiff is entitled to get the damages as per the original intended price in rupees and not the present value in pounds? Since the plaintiff has incurred all the expenses in the Indian currency in manufacturing the pickles, if he is be given the damages at the rate of present value of Pound in Indian currency, he would suffer huge losses which will be against the justice, equity and good conscience.

G. ARGUMENTS ADVANCED ON BEHALF OF PETITIONER 1. Whether the Delhi High Court has the territorial jurisdiction and the pecuniary jurisdiction to entertain the suit? It is humbly submitted that the Delhi High Court has both the territorial jurisdiction and the pecuniary jurisdiction over the matter presented before it. A. Territorial Jurisdiction: Section 20(c) of the Code of Civil Procedure 1908 says that every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. Black's Law Dictionary defines the expression "cause of action" to mean the fact or facts which give a person a right to judicial relief. In Halsbury's Laws of England (4th Edn.), the expression "cause of action" is explained as: 'Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. In National Taxtile Corporation Ltd. v. Haribox Swalram and Ors 1., it was observed that the "Cause of action" is the bundle of facts which, taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. Each and every fact pleaded does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing on the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. In A.B.C. Laminart (P) Ltd. v. A.P. Agencies2 "Cause of action" is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It is further submitted that if the cause of action, wholly or in part, arises at a place where the plaintiff resides, notwithstanding the fact that the defendant or defendants do not reside at the
1 2

AIR 2004 SC 1998 (1989)2 SCR 1.

place where the plaintiff resides, a suit can be instituted at a place where the plaintiff resides. In such a situation, it is at the option of the plaintiff that a Court gets jurisdiction - be it the place of residence of the plaintiff or the defendant.3 It is argued that the non-acceptance or refusal to take delivery of goods by the defendant amounts to repudiation and the information regarding such repudiation was received at the registered office of the plaintiff company in Delhi. This refusal constitutes the cause of action. The counsel puts its reliance on M/s. Angile Insulations v. M/s. Davy Ashmore India Ltd. , in which it was held that the cause of action will, if the contract is repudiated, at a place where such repudiation is received. B. Pecuniary Jurisdiction: It is humbly submitted that the Honble Court has pecuniary jurisdiction over the suit under section 5(2) of the Delhi High Court Act, 1966 which says Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds [rupees twenty lakhs]. So this gives the further discretionary power to the Court to take up the suit even if its value exceeds rupees twenty lakhs. In other words it is implied in this section that the Court can also take up the suits where their value is less than rupees twenty lakhs or the section does not take away the power of the court to entertain the suit the value of which is less than rupees twenty lakhs. In the present case the value of the original suit made by the plaintiff is about fourteen lakhs which is less than twenty lakhs. But in view of the above provisions of the Act, the suit should be entertained by this Honble High Court.

3. Whether the plaintiff is entitled to get the damages as per the original intended price in rupees and not the present value in pounds or not? It is humbly submitted that Akbar Restaurant should pay the damages in initial value of pound in Indian currency and in the reduced value of pound in Indian currency. Since the contract for sale of goods was entered for 15000 which was equivalent to Rs 135000 at that time and during the pendency of the suit which was filed on the ground of non-acceptance
3

Syed Saleema Bee v. Syed Noorjahan and Anr. (2006)2 ALD 721.

or refusal by Akbar to take the delivery of the goods, the country is hit by Euro zone crisis due to which the value of pounds falls at almost to 1/6 of its original price i.e. O.R 1=INR90. Because the Jodhabai Pickles Ltd. had incurred all the expenses in the value of rupees and now if the damages are paid in terms of current value of Pounds in Indian currency, Jodhabai Pickles Ltd. will incur huge losses. So Jodhabai Pickles Ltd. should be paid in rupees not in pounds but in the original value of pounds in Indian currency at the time of making the contract.