1

LIST OF ABBREVIATIONS

1. A.I.R
2. Govt.
3. Honble
4. S.
5. Ss.
6. i.e.
7. No.
8. Pg.
9. Para
10. Sd/11. V.
12. Vol.

ALL INDIA REPORTER

GOVERNMENT
HONOURABLE
SECTION
SECTIONS
THAT IS
NUMBER
PAGE
PARAGRAPH
SIGNED
VERSUS
VOLUME

INDEX OF AUTHORITIES
STAUTES
Constitution of India, 1949
Indian Contract Act, 1872
DICTIONARIES
Whartons Law Lexicon, Universal Law Publishing Co. Pvt. Ltd.
Oxford Advanced Learners Dictionary

LIST OF CASES

Arunachalam v. P.S.R. Sadhanatham, 1979 (3) SCC 482

Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715.
State of HP v. Gujarat Ambuja Cement Co. Ltd, (2005) 5 SCALE 548

STATEMENT OF JURISDICTION
The Petitioner approaches the Honble Supreme Court of India under Article 136 of
Constitution of India.

STATEMENT OF FACTS

Brooke Inc. is a high end technologically advanced Construction Company. It

enjoys a reputation of taking up highly challenging construction works around
the globe.

In 2010, the Common Wealth Games were to be held in India. The

Government of India through the Delhi Municipal Corporation entered into a
contract with Brooke Inc. for a thirty phase development project for the
country.

The relevant terms of the contract were:

a. The payments for construction would be made in ten allotments, i.e.,

on completion of every third phase of the project
b. Time is of the essence

The Government of India set up a Grievance Redressal Commission for

addressing of disputes.

By the end of 2007, Brooke Inc. Had successfully completed twenty-one

phases of the project. By mid-2008 the twenty-three phases were completed
and the twenty-fourth phase was underway.

The sub-prime crisis leading to economic recession had hit Brooke Inc.
Lehman Brothers; a Non-Banking Financial Corporation (NBFC) was the
shadow banker of Brooke Inc. which called for winding up.

Along with recession, high inflation resulted in heavy increase of Cash

Reserve Ratio by the Reserve Bank of India thus resulting in low flow of
credit.

Brooke Inc. requested the Government for an advance payment of the eighth
allotment stating reasons that there was substantial change in circumstances
which were not predictable when the contract was entered into.

On receiving the request, the Government of India revoked the contract

and called for fresh tender for the completion of the remaining seven
phases.

The Government of India also sent a notice to Brooke Inc. demanding

damages for breach of contract.

Brooke Inc. approached the Ld. High Court of Delhi under Article 226. The
High Court dismissed the writ holding it to be a question of fact and observing
the presence of an alternative remedy.

Hence the present petition before Honble Supreme Court under Article 136 of
Constitution.

STATEMENT OF ISSUES
1. IF SPECIAL LEAVE TO APPEAL SHOULD BE ALLOWED OR NOT?
2. IF THE REVOCATION OF CONTRACT BY GOVERNEMNT IS JUSTIFIED
OR NOT?
3. IF PETITIONER IS LIABLE FOR BREACH OF CONTRACT AND TO PAY
ANY DAMAGES OR NOT?

ARGUMENTS
ARGUMENT 1: THAT SPECIAL LEAVE TO APPEAL BE ALLOWED

Article 1361 of the Constitution of India provides that the Supreme Court may in its
discretion grant special leave to appeal from any judgment, decree, determination,
sentence or order in any case or matter passed or made by any Court or tribunal in
the territory of India except the Court or tribunal constituted by or under any law
relating to armed forces.
The following are the conditions that must be satisfied for invoking a Special leave to
petition:
(1) The proposed appeal must be against a judicial or quasi judicial and not
purely executive or administrative order; and
(2) The determination or order must have been made or passed, by any court or
tribunal, in the territory of India.
In Arunachalam v. P.S.R. Sadhanatham 2, the Supreme Court explaining the scope
of Article 136 observed:
It is a plenary power exercisable outside the purview of ordinary law to meet
the pressing demands of justice. Article 136 neither confers on anyone the right to
invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the
courts jurisdiction.

Also in Sanwat Singh v. State of Rajasthan 3, the Supreme Court will grant special
leave to appeal in exceptional cases, where grave and substantial injustice has been
done, by disregard to the forms of legal process or violation of the principles of
natural justice or otherwise. Also the mere fact that in some other similar cases,

Special leave to appeal by the Supreme Court:

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces

1979 (3) SCC 482

AIR 1961 SC 715

leave was not granted or that the SLP was dismissed, does not constitute resjudicata and it would be open to Court to examine the question on merits.
It is therefore submitted that Supreme Court should allow Special Leave to appeal on
following grounds:1) The case involves mix question of law and fact.
2) The Alternative remedy available is not efficacious.
3) Mere Presence of alternative remedy does not bar petitioner for invoking writ
jurisdiction of the court.

That the case involves mix question of law and fact .

The provisions of Article 136 of Constitution does not confer upon any person the
right to appeal but only a limited right to apply for the appeal. It accordingly casts an
obligation upon the SC to interfere and adjudicate a matter, if the ends of justice so
demands, irrespective of the nature of the proceedings. This article must be
understood in the light of Article 142 4, which cast upon the SC the obligation to do
complete the justice. It is further submitted by the petitioner that the decision of High
court is not in accordance with the sound provisions of law.

The alternative remedy available is not efficacious.

Article 142- Enforcement of decrees and orders of Supreme Court and unless as to
discovery, etc:
( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any cause or matter pending before it, and any decree
so passed or orders so made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall,
as respects the whole of the territory of India, have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or production of any documents, or
the investigation or punishment of any contempt of itself

In the case of State of HP v. Gujarat Ambuja Cement Co. Ltd 5, the Supreme Court
held that the High Court may exercise its writ jurisdiction under article 226 under at
least three contingencies:
1. Where the writ petition seeks enforcement of any of the fundamental rights
2. Where there is failure of principles of natural justice
3. Where the orders or proceedings are wholly without jurisdiction or the vires
of an Act is challenged.
In addition to this, the alternative remedy in this case being the Grievance
Redressal Commission was not an appropriate forum as it had been set up by the
Government and there was an apprehension of bias which did not leave the
petitioner with any other alternative than to ultimately approach the Honble Supreme
Court under Article 136.
Thus, petitioner humbly submits that Special leave to appeal ought to be allowed.

ARGUMENT 2- THE

REVOCATION

OF CONTRACT

IS ILLEGAL AND

ARBITRARY AND VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE

Parties to a contract, are liable under law to perform their contractual duties,
failure of which can result in a breach of contract followed by a lawsuit and/or other
legal liabilities.
However, termination of contract can be considered to be lawful when a
legitimate reason exists to end the contract before performance has been completed
like Impossibility of Performance, Mistake, Fraud, Misrepresentation, Breach of
Contract, according to an agreement etc... Due to any of the aforementioned
agreements parties can revoke the contract but such revocation or termination must
go through a proper channel like notice of revocation and/or opportunity to defend.

(2005) 5 SCALE 548

In the present case, Govt. of India has without any notice and without giving any
chance to defend revoked and terminated the contract and called for fresh tender for
the completion of the remaining seven phases.
Under the Indian Law, there is no statute explicitly laying down the minimum
procedure which administrative agencies ought to follow while exercising
administrative discretion but exists in the form of an underlining principle called
Principle of Natural Justice.
Principles of natural justice are rooted in Article 14 & 21 6 of the
Constitution of India. With the introduction of concept of substantive and
procedural due process in Art. 21, all that fairness which is included in the
principles of natural justice can be read into Art. 21. The violation of principles
of natural justice results in arbitrariness; therefore, violation of natural justice
is a violation of Equality clause of Art. 14.

AUDI ALTERAM PARTEM OR RULE OF FAIR HEARING

The maxim audi alteram partem is the foundation of principle of natural justice. It
implies that a person must be given opportunity to defend himself.
Right to fair hearing thus includes:1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
(i) Right to cross examination
(ii) Right to legal representation
4. Disclosure of evidence to party
5. Report of enquiry to be shown to the other party
6. Reasoned decisions or speaking orders

Article 14- Equality before law: The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
Article 21- Protection of life and personal liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law

10

After a humble request for payment made by the petitioner, the government
arbitrarily revoked the contract and called for a fresh tender for the completion of the
remaining seven phases and no notice for the same was intimated to the petitioner
beforehand. This shows that the respondent did not follow the principles of natural
justice and this revocation is arbitrary and illegal.

ARGUMENT 3- THAT THE PETITIONER IS NEITHER LIABLE FOR ANY BREACH

OF CONTRACT NOR PAYMENT OF ANY DAMAGES
Non-performance of a binding agreement leads to breach of contract i.e. the party
does not fulfil his/her contractual promise.
There is no Breach of contract on the part of petitioner i.e. Brooke Inc.
because the work has not been halted. The sudden economic crunch and recession
could not have been reasonably foreseen by the petitioner at the time of the making
of the contract. The petitioner commands huge respect and possesses an excellent
track record and has already completed twenty three phases right on schedule. The

11

Petitioner was just requesting for an advance payment which was not an
unreasonable demand considering more than two out of the tree phases had been
completed and only some parts of the twenty-fourth phase were left and the
government could be expected to help the petitioner overcome the economic
impediment.
The petitioner had only asked for an advance payment of the money that was
already due to him and did not in any way ask for money that did not accrue to him.
Moreover, the petitioner never asked for any amount exceeding the value already
agreed upon in the contract.
Therefore, since the intentions of the petitioner were bona fide and his hands were
tied due to unforeseeable circumstances but was otherwise willing to perform his
part of the contract should not be held liable to pay the damages.

PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the Counsel for
the Petitioner humbly pray before this Honble Court to kindly:

Quash the order calling for fresh tender application.

Pass an order directing respondent for specific performance of contract.
Respondent be directed to make advance payment of 8th installment.

12

Respondent be ordered to pay compensation and cost of litigation.

Or pass any other appropriate order as the court may deem fit in favour of the Petitioner
and against the Respondent.
And for this act of Kindness, the Petitioner as in duty bound, shall forever pray.