Sample Memo (IUMCC 13)

048-129 P
5TH INTRA UNIVERSITY MOOT COURT COMPETITION

2013-14
Before Submission to
THE HONBLE SUPREME COURT OF INDIA
CASE CONCERNING
ENFORCEABILITY OF SHRINK-WRAP, CLICK-WRAP AND BROWSE-WRAP CONTRACTS
&
COUNTERFEITING AND PIRACY OF SOFTWARE
Transferred Case No. _____/ 2013

IN THE MATTER OF
M/S DAS & BHULLAR
(PLAINTIFF)
V.
M/S BUSINESS SOLUTIONS

(DEFENDANT)
SUBMITTED AS AN AMICUS CURIAE
TABLE
OF
CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS__________________________________________________IV
INDEX OF AUTHORITIES__________________________________________________VI
SYNOPSIS OF FACTS_____________________________________________________XIII
STATEMENT OF JURISDICTION____________________________________________XV
ISSUES RAISED__________________________________________________________XVI
SUMMARY OF ARGUMENTS_____________________________________________XVII
ARGUMENTS ADVANCED__________________________________________________1
[I]
ISSUE: WHETHER OR NOT, THE MATTER IS MAINTAINABLE IN THE HONBLE
SUPREME COURT OF INDIA.___________________________________________________1

[I. 1.]
Submission: The Anti-Suit Injunction filed U / O. 39 R. 1 is Maintainable._____1
[I. 1. A.]
It is within the Power of the Courts to grant the Injunction.______________1
[I. 1. B.]
Judicial Pronouncements in Favor of the submission.__________________2
[I. 1. C.]
The Defendant was Amenable to the Personal Jurisdiction of the Indian
Courts.
_____________________________________________________________3
[I. 1. D.]
Cause of Action arose within the Limits of Jurisdiction of India._________4
[I. 1. E.]
Indian Courts are the Forum Conveniens.___________________________4
[I. 1. F.]
There is no Contractual Relation between the Parties.__________________5
[I. 2.]
[II]
FOR
Submission: The suit is Correctly instituted U / S. 20 of CPC._______________5
ISSUE: WHETHER OR NOT, THERE IS A VALID CONTRACT BETWEEN THE PARTIES

LICENSE NO. 1983/11/21.________________________________________________7
[II. 1.]
Submission: There is no Valid Contract for Sale.__________________________7
[II. 1. A.]
There is no Delivery of the Goods._________________________________7
[II. 1. A. (i).]
Custody was with the Customs Officials.________________________7
[II. 1. A. (ii).]
There is No acceptance without Delivery.________________________8
PAGE | 1
TABLE
[II. 1. B.]
OF
CONTENTS
Arguendo, the Goods were not accepted due to Non-Merchantable Quality._9
[II. 1. B. (i).]
The goods were not of Merchantable quality.______________________9
[II. 1. B. (ii).]
The goods were not Accepted due to the quality.___________________9
[II. 2.]
Submission: Contract is Unenforceable because it is Unconscionable._______10
[II. 2. A.]
Unconscionability as a Principle of Contract Law.____________________10
[II. 2. A. (i).]
Unconscionability in United Kingdom.__________________________11
[II. 2. A. (ii).]
Unconscionability in the United States._________________________11
[II. 2. A. (iii).]
Unconscionability and UNIDROIT Principles.___________________12
[II. 2. A. (iv).]
Unconscionability in India.__________________________________12
[II. 2. B.]
There is No Meaningful Negotiation.______________________________13
[II. 2. C.]
Bargaining Power of the Parties.__________________________________13
[II. 3.]
Submission: Shrink-wrap, Click-wrap and Browse-wrap agreements are
unenforceable.______________________________________________________________14
[II. 3. A.]
Shrink-wrap is Unenforceable.___________________________________14
[II. 3. B.]
Click-wrap is Unenforceable.____________________________________15
[II. 3. C.]
Browse-wrap is Unenforceable___________________________________16
[II. 4.]
Submission: Alternately, if the contract between the parties for License No.-
1983/11/ 21 is held to be enforceable, it will be against public policy.__________________17

[II. 5.]
Submission: Alternately, if the contract between the parties for License No.-
1983/11/ 21 is held to be enforceable, it will give rise to Selective Litigation.____________18
[III]
ISSUE: WHETHER OR NOT, THERE HAS BEEN MISUSE OF THE LICENSE, WHICH
HAS RESULTED INTO THE COUNTERFEIT AND PIRATED COPIES BEING MADE.___________19
[III. 1.]
Submission: Alternately, Mr. Bhullar is not responsible for the negligent
handling of the License No.-1983/11/21._________________________________________19

[III. 1. A.]
The tort of negligence does not cover purely economic losses___________19
[III. 1. B.]
The act of Mr.Bhullar was remote________________________________20
[IV]
ISSUE: WHETHER OR NOT, DAMAGES SHOULD BE GRANTED FOR THE PIRATED
COPIES.
__________________________________________________________________20
PAGE | 2
TABLE
OF
CONTENTS
PRAYER_______________________________________________________________XVIII
PAGE | 3
LIST
OF
ABBREVIATIONS
LIST OF ABBREVIATIONS
ABBREVIATIONS
AC
AIR
ALL
ANR
ART
BOM
CAL.
CIR
CO.
CPC
DEL
ED.
GOVT.
HONBLE
I.E.
LAH
LTD.
M.P.
NO.
O.
ORI
ORS
P.
PP.
PVT.
R.
SC
SCC
SCR
SUPL.
U/
UOI
V.
VOL.
W.B.
EXPANSIONS
PARAGRAPH
PARAGRAPHS
SECTION
APPEAL CASES
ALL INDIA REPORTER
ALLAHABAD
ANOTHER
ARTICLE
BOMBAY
CALCUTTA
CIRCUIT
COMPANY
CODE OF CIVIL PROCEDURE, 1908
DELHI
EDITION
GOVERNMENT
HONOURABLE
ID EST
LAHORE
LIMITED
MADHYA PRADESH
NUMBER
ORDER
ORISSA
OTHERS
PAGE
PAGES
PRIVATE
RULE
SUPREME COURT
SUPREME COURT CASES
SUPREME COURT REPORTER
SUPPLEMENTARY
UNDER
UNION OF INDIA
VERSUS
VOLUME
WEST BENGAL
PAGE | 4
INDEX
OF
AUTHORITIES
INDEX OF AUTHORITIES
1. CASES.
P.
No.
F.
No.
Airbus Industries GIE v. Patel and Ors., (1998) 2 All ER 257
14
Alec Lobb, (Garages) Ltd. v. Total Oil, (GB) Ltd, [1983] 1 WLR 87
11
85
Case Name
Am. Online, Inc. v. Superior Court, 108 Cal. Rptr. 2d 699, 702 (Cal. Ct. App.
2001)
America Online, Inc. v. Superior Court, 108 Cal. Rptr. 2d 699, 702 (Cal. Ct.
App. 2001)
Ariz Retail Systems, Inc v. Software Link Inc., 831 F. Supp. 759, 763-66
(D.Ariz, 1993)
Arizona Retail Systems v. Software Link, Inc. 831 F.Supp. 759, 763-66 (D. Ariz.
1993)
18
16
14
16
Ballard v. Savage 65 F.3d 1495, 1498 (9th Cir. 1995)
Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781,784
20
British Indian Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries

and Ors., 1990 (48) ELT 481 (SC).
Campbell v. Gen. Dynamics Government Systems Corp, 407 F.3d 546,556-57
(1st Cir.2005)
2
17
Cario Inc v. Crossmedia Services Inc, (N.D Cal. Apr. 1, 2005)
16
Caspi v. The Microsoft Network, 732 A.2d 528 (N.J. Super. Ct. App. Div., 1999)
16
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly,

[1986] 2 SCR 278 : AIR 1986 SC 1571 at 1612, (1986) 3 SCC 156
Century 21 Canada Limited Partnership v. Rogers Communications Inc, 2011
BCSC 1196
Chunnilal Kasturchand v. Dundappa Damppa, AIR 1951 Bom 190 : (1950) ILR
Bom 640
18
16
4
14
6
12
8
111
12
3
25
15
5
11
13
2
12
8
12
9
14
5
12
4
13
5
PAGE | 5
INDEX
OF
AUTHORITIES
Cohen v. Rothfield, [1919] 1 KB 410, 414 : [1918-19] All ER 260, 262
39
Comb v. PayPal, Inc., 218 F. Supp. 2d 1165, 1175 (N.D. Cal. 2002).
11
80
Commercial bank of Australia Ltd. v. Amadio, (1983) 151 CLR 447
11
83
Cybersell Inc v. Cybersell Inc and Ors., 130 F.3d 414
24
D &F Estates Ltd v. Church Commissioners, (1988) 2 All ER 992: (1987) 7 Com
LR 40 (HL)
D Muhammad Shafi v. Karamat Ali, (1896) PR 76
Dhanraj Yugulkishore v. Babulal Ramchandra, AIR 1943 Bom 206 : (1943) Bom
286 : 45 BLR 396
Fender v. Mildmay, [1983] AC 1 : [1937] 3 All ER 402
Goodwin v. Ford Motor Credit Company, 970 F.Supp. 1007, 1014 (U.S. Dist. Ct.
Middle Distr. Alabama 1997)
20
15
6
31
18
18
14
3
14
9
Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541
45
Guardian Assurance v. Shiva Mangal, AIR 1937 All 208 : (1937) ILR All 234
49
Hardy & Co. v. Hillerns and Fowler, [1923] 1 KB 658
60
Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366 (E.D.N.Y. 2009)
17
IR and ICS (Pvt) Ltd v. Jenner, Fenton, Slade Ltd, AIR 2003 Bom 418
Janson v. Driefontein Consolidated Mines Limited, [1902] AC 484 : [1900-3] All

ER Rep 426 (HL)
Kanshi Ram v. Dule Rai, AIR 1933 Lah 11 : (1993) 14 Lah 42
18
14
0
12
14
4
48
19
KLF Systel Ltd. v. Fujitsu ICIM Ltd, AIR 2001 Del 357
34
Kumar Ganga v. Prithichand Lal, (1922) 1 Pat 356.
Kwan v. Clearwire Corp., 2012 WL 32380
17
Lakhmiram v. Poonam Chand, (1921) 45 Bom 550 : AIR 1921 Bom 128
18
M Framrose & Co v. State of Maharashtra, (1977) 40 STC 36 (Bom)
62
40
20
Karaha Bodas Company, LLC v. Perusahaan Pertambangan Minyak Dan Gas

Bumi Negara, 2010 ABQB 172
MacShannon v. Rockware Glass Ltd, [1978] A.C. 795 at p. 812 : [1978] 1 All
E.R. 625 at p. 630 (H.L.)
Macshannon v. Rockware Glass Ltd., (1978) 1 All ER 525
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, 1962 AIR 527 :
1962 SCR Supl. (1) 450
Maqbul Ahmed v. Onkar Pratab, (1935) 37 Bom LR 533
14
0
PAGE | 6
INDEX
OF
AUTHORITIES
McHenry v. Lewis (1882) 22 Ch D 397
38
12
Mulchand v. Gill & Co., (1920) 44 Bom 283, 294 : 53 IC 518
Multiservice Bookbinding Ltd. v. Marden, [1979] Ch 84, [1978] 2 All ER 489
11
84
Mungle Chand v. Gopal Ram, (1907) 34 Cal 233
Murphy v. Brentwood District Council, (1900) 2 All ER 908 (HL).
20
Muthaya v. Allan, (1882) ILR 4 Mad 209
46
Naik v. Balvant, AIR 1927 Bom 135 : (1927) 29 Bom LR 138
18
Nandan Iron and Metal Indutries v. Fentsy Inc, AIR 1992 Del 364
30
Northwest Airlines, Inc. v. R&S Company S.A, 176 F.Supp.2d 935 (2001)
18
ONGC v. Western Co of North America, AIR 1987 SC 674 : (1987) 1 SCC 496
Pollstar v Gigamania Ltd, (ED Cal 17 2000)
17
Pollstar v. Gigmania Ltd, 170 F. Supp. 2d 974, 982 (E.D. Cal. 2000)
16
Modi Entertainment Network v. WSG Cricket Pte Ltd, AIR 2003 SC 1177 :
(2003) 4 SCC 341
PPN Power Generating Co. Ltd. v. PPN (Mauritius) Co., (2005) 3 Arb LR
15
7
13
6
12
5
13
ProCD Inc v. Zeidenberg, 86 F.3d 1447 (Court of Appeals, 7th Cir.1996)
14
110
Register.com, Inc v. Verio, Inc., 126 F. Supp 2d 238 (Dist.Court S.D.N.Y 2000)
10
78
Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1435 (Mid. Dist. Ala. 1998)
18
Ruttonjey v. Jamnadas, (1882) 6 Bom 692
62
Settlement Corp. v. Hochschild, [1966] Ch 10 : (1965) 3 All ER 486
39
Shivbhagwan v. Onkarmal, AIR 1952 Bom 223
46
Sita Ram v. Ram Chandra (1918) PR 26
31
Smith v. Indian Textile Co., AIR 1927 All 413 : (1927) ILR 49 All 669
SNI Aerospatiale vs. Lee Kui Jak & Anr, (1987) 3 All.ER 510
43
Spiliada Maritime Corporation v. Consulex Ltd., [1987] AC 460
37
40
Step-Saver Data Systems Inc v. Wyse Tech., 939 F.2d 91, 102-03 (3d Cir.1991);
14
111
Straus v. Victor Talking Machs. Co., 243 U.S 490, 501 (1917)
19
Usha Beltron Ltd. v. State of Punjab, (2005) 7 SCC 58
52
V/O Tractoroexport, Moscow v. Tarapore & Company, AIR 1971 SC 1 : 1970 3
21
354 : (2004) 4 MLJ 434 : (2006) 129 Com Cases 849 (Mad)
St. Pierre v. South American Stores (Gath and Chaves) Ltd. [1936] 1 K.B. 382 at
p. 398 (C.A.)
14
9
15
1
PAGE | 7
INDEX
OF
AUTHORITIES
SCR (3) 53
Vanichand v. Lakhimchand, (1920) 44 Bom 550
18
th
Vault Corporation v. Quaid Software Ltd, 847 F.2d 255,268-70 (5 Cir.1988)
14
111
Wagon Mound No. 2,(1966) 2 All ER 404: (1967) 1 AC 617 (PC).
20
Waters v. Earthlink, Inc, 91 F Appx 697,98 (1st Cir.2003)
17
Wilkinson v. Osborne, (1915) 21 CLR 89 at 97
17
Williams v. Walker-Thomas Furniture Co, 350F 2rd 445, (DC Cir 1965)
11
Winfield (1928) 42 HLR 76.
18
16
1
13
2
13
9
88
14
2
2. STATUTES.
CODE OF CIVIL PROCEDURE, (ACT 5 OF 1908)
DIRECTIVE 2000/31/EC L178 OF THE EUROPEAN PARLIAMENT AND COUNCIL (8TH JUNE 2000)
10
INDIAN CONTRACT ACT (ACT 9 OF1872)
12
THE CUSTOMS ACT, (ACT 52 OF 1962)
THE DELHI HIGH COURT ACT (ACT 26 OF 1966)
THE SALE OF GOODS ACT (ACT 3 OF 1930)
UCC S 2-302; Restatement 2d 208
11
UNIFORM ELECTRONIC COMMERCE ACT (1999)
10
UNIFORM ELECTRONIC TRANSACTIONS ACT (1999)
10
3. BOOKS.
ALAN DAVIDSON, LAW OF ELECTRONIC COMMERCE (1st ed., 2010, p. 118)
13
ANDREW MURRAY, INFORMATION TECHNOLOGY LAW: INTERNET AND SOCIETY (1st ed., 2010,
p. 419)
13
BENJAMIN WRIGHT, THE LAW OF ELECTRONIC COMMERCE EDI, FAX AND E-MAIL
TECHNOLOGY, PROOF, AND LIABILITY (3rd ed., 1991, p. 235).
10
PAGE | 8
INDEX
OF
AUTHORITIES
DICEY AND MORRIS, CONFLICT OF LAWS (13th ed., 1999, p. 408)
HALSBURY'S, LAWS OF ENGLAND (3rd ed., Vol. 4, p. 196)
JONATHAN BICK, JIMMY POSTER, 101 THINGS YOU WANT TO KNOW ABOUT INTERNET LAW
(1st ed., 2000 p. 21)
13
JUSTICE R S BACHAWAT, LAW OF ARBITRATION AND CONCILIATION (5th ed., 2010, Vol. I, p.
1098)
MARK A. LEMLEY, TERMS OF USE IN E CONTRACTS: EMERGING DIMENSIONS (1st ed., 2008,
p. 31)
15
MULLA, THE CODE OF CIVIL PROCEDURE (15th ed., 2012, Vol. 1).
POLLOCK & MULLA, INDIAN CONTRACT AND SPECIFIC RELIEF ACTS (14th ed., 2012, p. 39) 10
RATANLAL & DHIRAJLAL, THE LAW OF TORTS (26th ed., 2012, p. 476)
20
ROBERT BOND, SOFTWARE CONTRACT AGREEMENTS: TECHNIQUES IN STRUCTURING AND

NEGOTIATING CONTRACTS: REVIEW AND ANALYSIS, (5th ed., 2007, p. 47)
10
RODNEY D RYDER, INTRODUCTION TO INTERNET LAW AND POLICY (1st ed., 2007, p. 6)
10
V.C. GOVINDARAJ, THE CONFLICT OF LAWS IN INDIA, (1st ed., 2011, p. 229)
W.V.H ROGERS, WINFIELD & JOLOWICZ , THE LAW OF TORT (18th ed., 2010, p. 218)
20
4. ARTICLES.
ANDREW BURGESS, CONSUMER ADHESION CONTRACTS AND UNFAIR TERMS: A CRITIQUE OF
CURRENT THEORY AND SUGGESTION (1986) 15 Anglo American LR 255
10
BLEIMAIER, JOHN KUHN, DOCTRINE OF COMITY IN PRIVATE INTERNATIONAL LAW (24 Cath.
Law. 327, 1978-1979)
JOHN P. TOMASZEWSKI, THE ENFORCEABILITY OF ADHESIVE ARBITRATION CLAUSES IN

INTERNATIONAL SOFTWARE LICENSES, 3 J. TECH. L. & POL'Y 4 (1997)
13
KAUSTUV M. DAS, NOTE, FORUM-SELECTION CLAUSES IN CONSUMER CLICK WRAP AND

BROWSE WRAP AGREEMENTS AND THE "REASONABLY COMMUNICATED" TEST, 77 WASH.
L. REV. 481, 482 (2002).
14
KIMBERLIANNE PODLAS, LET THE BUSINESS BEWARE: CLICK-WRAP AGREEMENTS IN

INTERNATIONAL B2C E-COMMERCE, 8 J. L. & Bus. 38, 2001
15
PAGE | 9
INDEX
OF
AUTHORITIES
MARK A LEMLEY, INTELLECTUAL PROPERTY AND SHRINK WRAP LICENSES, 68 S. CAL.

LAW. REV. 1239, 1248-53 (1995)
14
TANA PISTORIUS, CLICK-WRAP AND WEB-WRAP AGREEMENTS, 16 S. Afr. Mercantile L.J.

568 2004
10
TODD D RAKOFF, 'CONTRACTS OF ADHESION: AN ESSAY IN RECONSTRUCTION' (1983) 96

Harvard LR 1174
10
WILLIAM J. CONDON, JR., ELECTRONIC ASSENT TO ONLINE CONTRACTS: DO COURTS

CONSISTENTLY ENFORCE CLICKWRAP AGREEMENTS? 16 Regent U. L. Rev. 433 2003-2004.
19
5. DICTIONARIES.
HENRY CAMPBELL BLACK, BLACKS LAW DICTIONARY (9th ed., p. 552)
6. Internet Resources.
Art. 3.10, UNDROIT Principles. Available at:
http://www.unidroit.org/english/principles/contracts/principles2004.pdf (last visited: Aug
10, 2013)
12
Gary Dunn, 'On-Line Contract Formation - Contracting Issues for Businesses on the Net'
(2001), Available at: httlp://vtwv.dunn.c om/l)er/ll)aer_14.shtml (last visited: Aug 10,
2013)
17
Glenn Murray, Is the Internet Historys Greatest Hoax? October 15, 2005, Available at:
http://www.isnare.com(last visited: Aug 10, 2013)
13
Rohas Nagpal, Electronic Contracts and the Indian Law in E-commerce-Legal Issues, Asian
School of Cyber Laws, March 7th, 2008, Available at:
http://dict.mizoram.gov.in/uploads/attachments/cyber_crime/electronic-contracts.pdf (last
visited: Aug 10, 2013)
10
PAGE | 10
INDEX
OF
AUTHORITIES
7. LAW REPORTS.
THE 103RD REPORT OF THE LAW COMMISSION OF INDIA (1984)
12
THE 199TH REPORT OF LAW COMMISSION OF INDIA (2006)
12
PAGE | 11
SYNOPSIS
OF
FACTS
SYNOPSIS OF FACTS
[PARTIES]
I.
M/s Das & Bhullar (Party 1) is a partnership formed by one Narendra Nath Das and another
Premendra Pal Singh Bhullar for the purposes of import/export of goods. Mr. Bhullar is an
erstwhile hacker, tech and software wizard.
II.
M/s Business Solutions (Party 2) is a North Korean Company, which manufactures

packaged software of the Brand- Valley, meant for Enterprise Resource Planning (ERP).
[CONTRACT BETWEEN THE PARTIES]
Party 1 enteres into a contract with Party 2s branch at New Delhi (India) for importing a
consignment, which contained box packaged software manufactured by Party 2.
[ENSUING EVENTS]
1. After the receipt of the consignment on January 10, 2003, the Customs officials open the seal
of the container.
2. Mr. Bhullar takes one of the box packages and opens it. The box package is printed in
Mandarin. The only English words were:
License No. 1983/11/21, Beware: Shrink wrap, Click Wrap, Browse Wrap Product of
North Korea, All Rights Protected under Applicable Laws.
3. It is noted that every other box other than the one taken by Mr. Bhullar, is printed in English.
[ACTIVITIES OF MR. BHULLAR]
PAGE | 12
SYNOPSIS
OF
FACTS
1. Consequently, Mr. Bhullar takes out the CD, leaves the manual and other papers inside the
box and runs it on his handheld Linux notebook computer. This computer has no anti-virus
software or licensed Operating System.
2. Mr. Bhullar keeps on clicking OK on the screen till it reached the EULA page and asked for
internet connection. In response, he connects to the Internet following which, a website opens
wherein he again repeatedly clicks OK in rapid pace. Finally, he reaches the ERP front face
of the software and was very pleased to operate the same. This process took 13 minutes.
[OTHER EVENTS]
1. Meanwhile, the Customs officials sounds an alert that the container contained some boxes
which were pirated and non-original version.
2. Party 1 immediately decides to send the consignment back to Party 2.

3. After approximately 1 year, 1 month and 13 days (February 23, 2005), Party 1 receives a
notice from a law firm on behalf of Party 2. It states - the usage of License No. 1983/11/21
(hereinafter LN) has resulted into piracy due to some hacking in Turkmenistan and thousands
of pirated copies have been made out of it. It further states firstly, that no amounts towards
the said License No. has ever been made and secondly, that the clients are contemplating
action under WTO laws and further demand immediate interim damages under the Indian
laws of license fees for at least 10,000 copies.
[THE LITIGATION]
I.
Party 1 institutes a suit in the Original side of Delhi High Court and makes UOI as 1st
Defendant (the party is later on, deleted as a defendant) and Party 2 as the 2 nd Defendant.
Party 1 prays firstly, that declare that there is no contractual relation between the parties
whatsoever and secondly, on account of this absence, pass an anti-suit injunction or relief of
similar nature against Party 2.
II.
Party 2 files an application U / O. 7 R. 11; and in alternative raises a counter-claim in the

following terms:
a. Assumption of jurisdiction by the High Court due to the place of cause of action.
PAGE | 13
SYNOPSIS
OF
FACTS
b. Hold and declare existence of contractual relation between Parties 1 & 2 for the LN.
c. Declare that Party 1 misused LN, which resulted in the piracy and counterfeit copies.
d. Grant damages to the tune of copies pirated till date multiplied by its unit price.
III.
The Honble High Court realizes that the matter involves substantial question and appoints
two Ld. Add. Solicitor General as Amicus Curiae. Meanwhile, the Ld. Attorney General
prayed before the Supreme Court for transfer of the case. The Supreme Court allows the
prayer and the matter is now listed for further arguments.
PAGE | 14
STATEMENT
OF JURISDICTION
STATEMENT OF JURISDICTION
The Honble Supreme Court is vested with jurisdiction, to hear the present transferred matter
under Article 139A of the Constitution of India and also as the cause of action arises within
the jurisdiction of the Honble Court under S. 20 of the Civil Procedure Code, 1908.
139A. Transfer of certain cases
(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or an application made by the Attorney
General of India or by a party to any such case that such questions are substantial questions
of general importance, the Supreme Court may withdraw the case or cases pending before
the High Court or the High Courts and dispose of all the cases itself: Provided that the
Supreme Court may after determining the said questions of law return any case so withdrawn
together with a copy of its judgment on such questions to the High Court from which the case
has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the
case in conformity with such judgment
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court
S. 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
PAGE | 15
STATEMENT
OF JURISDICTION
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.
PAGE | 16
ISSUES RAISED
ISSUES RAISED
ISSUE 1
WHETHER OR NOT, THE MATTER IS MAINTAINABLE IN THE HONBLE SUPREME COURT OF
INDIA.
ISSUE 2
WHETHER OR NOT, THERE IS A VALID CONTRACT BETWEEN THE PARTIES FOR LICENSE NO.
1983/11/21.
ISSUE 3
WHETHER OR NOT, THERE HAS BEEN MISUSE OF THE LICENSE NO. 1983/21/11, WHICH HAS
RESULTED INTO THE COUNTERFEIT AND PIRATED COPIES BEING MADE.
ISSUE 4
WHETHER OR NOT, DAMAGES SHOULD BE GRANTED FOR THE PIRATED COPIES.
PAGE | 17
SUMMARY
OF
ARGUMENTS
SUMMARY OF ARGUMENTS
I. THE ANTI-SUIT INJUNCTION
FILED BY THE
PLAINTIFF
IS
MAINTAINABLE
FOR
THREE
REASONS.
First, the anti-suit injunction filed U / O. 39 R. 1 of CPC can be invoked as it is within the
courts power to do so.
Secondly, the defendant is amenable to the personal jurisdiction of the court.
Lastly, there is no contractual relationship between the parties.
II. THERE
IS NO
VALID
CONTRACT BETWEEN THE
PARTIES
FOR
LICENSE NO. 1983/11/21
FOR FOUR REASONS.
First, there is no valid contract for sale of goods under The Sale of Goods Act, 1930.
Secondly, the contract is unconscionable on the basis of general principles of contract law.
Thirdly, Shrink-wrap, Click-wrap and Browse-wrap agreements are legally unenforceable in
India.
Fourthly, enforceability of the same will be against public policy.
Lastly, enforceability of the same will not lead to selective litigation.
III. THERE IS NO MISUSE OF THE LICENSE NO. 1983/11/21
BY THE
PLAINTIFF, FOR FOUR
REASONS.
First, there was no contractual relationship.

Alternatively, Mr. Bhullar is not liable for negligent handling of the aforesaid license no.
1983/11/21.
IV. THUS, there arises no right of the defendant to seek damages.
PAGE | 18
ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
PRELIMINARY QUESTIONS
[I] ISSUE: WHETHER OR NOT, THE MATTER IS MAINTAINABLE IN THE

HONBLE SUPREME COURT OF INDIA.
In the opinion of the Amicus Curiae, the matter listed before the Honble Supreme Court of
India is admissible as [I.1.]
SUBMISSION: THE ANTI-SUIT INJUNCTION
FILED
U / O. 39 R. 1
IS
MAINTAINABLE.
1.
It is humbly opined by the Amicus Curiae that the plaintiff can pray for an Anti-suit
injunction before the Honble High Court of Delhi as it is not barred by law1 and the court
reserves the power to pass such an injunction in the apprehension of proceedings in the
WTO filed by a foreign entity.
A IT IS WITHIN THE POWER OF THE COURTS TO GRANT THE INJUNCTION.

2.
In this context, it may be necessary to point out that Indian Courts have granted antisuit injunctions to prohibit proceedings in foreign courts.2 The courts have inherent power
to issue temporary injunctions in cases, which were not covered by the provisions of O.
39 R. 1, CPC.3 It does not lay down rules for guidance in respect of all situations nor does
it seek to provide rules for decision of all conceivable cases, which may arise. 4 Moreover,
inherent jurisdiction of the court to make order ex debito justitiae is undoubtedly affirmed
by S. 1515 of the Code.6
1 Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, 1962 AIR 527 : 1962 SCR Supl. (1) 450.
2 ONGC v. Western Co of North America, AIR 1987 SC 674 : (1987) 1 SCC 496.
3 Supra note at 1; See also, Maqbul Ahmed v. Onkar Pratab, (1935) 37 Bom LR 533.
4 MULLA, THE CODE OF CIVIL PROCEDURE (15th ed., 2012, Vol. 1).
5 151, CODE OF CIVIL PROCEDURE, (ACT 5 OF 1908).
6 V.C. GOVINDARAJ, THE CONFLICT OF LAWS IN INDIA, (1st ed., 2011, p. 229).
PAGE | 1
ARGUMENTS ADVANCED
In addition, the High Courts, 7 in their original jurisdiction have held that the power
3.
U / O. 39 R. 1 can be exercised even if the defendant did not reside within the limits of
jurisdiction8and is a non-resident foreigner.9
[I.1.B.]
JUDICIAL PRONOUNCEMENTS IN FAVOR OF THE SUBMISSION.
In ONGC v. Western Co of North America, 10the Supreme Court restrained an
1.
American company from proceeding with a suit filed in New York seeking to confirm
awards made in India in a dispute governed by Indian law.11
The judgment of Modi Entertainment Network v. WSG Cricket Pte Ltd,12 which was
2.
similar to the principles laid down in PPN Power Generating Co. Ltd. v. PPN (Mauritius)
Co.,13 sheds light on the principles involved in Anti-suit injunctions:
(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of
the following aspects: a. The defendant, against whom injunction is sought, is amenable to the personal
jurisdiction of the court;
b. If the injunction is declined the ends of justice14 will be defeated and
injustice15 will be perpetuated; and
c. The principle of comity16 respect for the court in which the commencement
or continuance of action/proceeding is sought to be restrained must be borne
in mind;
7 Mungle Chand v. Gopal Ram, (1907) 34 Cal 233; followed in Mulchand v. Gill & Co., (1920) 44 Bom 283,
294 : 53 IC 518.
8 Dhanraj Yugulkishore v. Babulal Ramchandra, AIR 1943 Bom 206 : (1943) Bom 286 : 45 BLR 396; See also,
Kumar Ganga v. Prithichand Lal, (1922) 1 Pat 356.
9 Smith v. Indian Textile Co., AIR 1927 All 413 : (1927) ILR 49 All 669; Supra note at 4. MULLA, p. 442
10 Supra note at 2.
11 British Indian Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries and Ors., 1990 (48) ELT 481
(SC).
12 Modi Entertainment Network v. WSG Cricket Pte Ltd, AIR 2003 SC 1177 : (2003) 4 SCC 341; See also, IR
and ICS (Pvt) Ltd v. Jenner, Fenton, Slade Ltd, AIR 2003 Bom 418.
13 PPN Power Generating Co. Ltd. v. PPN (Mauritius) Co., (2005) 3 Arb LR 354 : (2004) 4 MLJ 434 : (2006)
129 Com Cases 849 (Mad).
14 Airbus Industries GIE v. Patel and Ors., (1998) 2 All ER 257; Amchem Products Inc. v. Workers
Compensation Board, (1993) 102 DLR 96.
15 Castanho v. Brown & Root (UK) Ltd. and Anr, 1981 AC 557; See also, DICEY AND MORRIS, CONFLICT OF
LAWS (13th ed., 1999, p. 408).
16 BLEIMAIER, JOHN KUHN, DOCTRINE OF COMITY IN PRIVATE INTERNATIONAL LAW (24 Cath. Law. 327, 19781979).
PAGE | 2
ARGUMENTS ADVANCED
(2) Determination of appropriate forum17 (Forum conveniens) when more than one forum
available in light of convenience of parties, oppression and vexation.18
(3) (6)
(7) The burden to establishing that the forum of the choice is a forum non-conveniens or
the proceedings therein are oppressive or vexatious19 would be on the party so
contending to aver and prove the same.20
3.
One of the criteria used by foreign Courts to grant anti-suit injunctions, namely
prevention of oppressive proceedings, was recognized in V/O Tractoroexport, Moscow
v. Tarapore & Co.21 where an injunction was ordered restraining a party from proceeding
with an arbitration proceedings in Russia on the ground that such an arbitration would be
oppressive.22
[I.1.C.]
THE DEFENDANT
THE INDIAN
WAS
AMENABLE
TO THE
PERSONAL JURISDICTION
OF
COURTS.
The Modi cases23 first criterion is the existence of personal jurisdiction upon the
1.
defendant. In order to understand the context of personal jurisdiction, the Amicus

Curiae humbly submits the case of Cybersell Inc v. Cybersell Inc and Ors,
24
which
clearly laid down the celebrated three-fold test for determination of personal jurisdiction:
1) The non resident defendant must do some act or consummate some transaction with
the forum or perform some act by which he purposefully avails himself of the
privilege of conducting activities in the forum, thereby invoking the benefits and
protections;
2) The claim must be one which arises out of or results from the defendants forumrelated activities; and
17 Macshannon v. Rockware Glass Ltd., (1978) 1 All ER 525.
18 Naik v. Balvant, AIR 1927 Bom 135 : (1927) 29 Bom LR 138; See also, Vanichand v. Lakhimchand, (1920)
44 Bom; Lakhmiram v. Poonam Chand, (1921) 45 Bom 550 : AIR 1921 Bom 128; Northwest Airlines, Inc. v.
R&S Co. S.A, 176 F.Supp.2d 935 (2001).
19 Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan gas Bumi Negara, 2010 ABQB 172.
20 Supra note at 12.
21 V/O Tractoroexport, Moscow v. Tarapore & Co., AIR 1971 SC 1 : 1970 SCR (3) 53.
22 JUSTICE R S BACHAWAT, LAW OF ARBITRATION AND CONCILIATION (5th ed., 2010, Vol. I, p. 1098).
24 Cybersell Inc v. Cybersell Inc and Ors., 130 F.3d 414.
PAGE | 3
ARGUMENTS ADVANCED
3) Exercise of jurisdiction must be reasonable.25

2.
Firstly, the North-Korean defendant had entered into the contract for importing
through its Indian branch at New Delhi.26 Secondly, the consignment was received within
the Indian Territory.27 Lastly, it is manifest that the North-Korean defendant purposefully
availed itself at its Indian branch with the intention of conducting business within India 28
and the dispute regarding the receipt of consignment arose at one port, which forms part
of the Indian Territory.
29
Moreover, the exercise of jurisdiction by Indian courts in
relation to the present case is reasonable as for the convenience of both the parties and it
therefore has personal jurisdiction over the defendant.
[I.1.D.]
1.
CAUSE OF ACTION AROSE WITHIN THE LIMITS OF JURISDICTION OF INDIA.
In this context, the Amicus Curiae would deem necessary to submit the case of
Nandan Iron and Metal Indutries v. Fentsy Inc. 30 The facts of the case are pari materia to
the present case as in this case, the plaintiff entered into a contract with a foreign
company incorporated in United States of America for the supply of brass dross of
guaranteed 90 percent of metallic recovery. The foreign company had been carrying on its
business in India through its branch. The offer for supply was given and a contract signed
by an Indian branch on behalf of a foreign company in New Delhi. 31 It was held that a suit
against the foreign company could be filed in New Delhi. 32 It is therefore submitted that
the cause of action U / S. 20 of the CPC33 arose within the limits of jurisdiction of India.34
2.
In arguendo, a case may be admissible if the cause of action arises outside India but
the foreigner carries on business through its agent within the local limits of an Indian
court.35 Similarly in the present case, the North-Korean company had a branch at New
Delhi (India) through which it contracted with the plaintiff.36
25 Ballard v. Savage 65 F.3d 1495, 1498 (9th Cir. 1995).

26 MOOT PROPOSITION, p. 1.
27 Id.
28 Id.
29 Id.
30 Nandan Iron and Metal Indutries v. Fentsy Inc, AIR 1992 Del 364.
31 D Muhammad Shafi v. Karamat Ali, (1896) PR 76; Sita Ram v. Ram Chandra (1918) PR 26.
32 Supra note at 4, MULLA, p. 444.
33 Supra note at 5, 20(c).
34 KLF Systel Ltd. v. Fujitsu ICIM Ltd, AIR 2001 Del 357.
35 Chunnilal Kasturchand v. Dundappa Damppa, AIR 1951 Bom 190 : (1950) ILR Bom 640.
PAGE | 4
ARGUMENTS ADVANCED
[I.1.E.]
1.
INDIAN COURTS ARE THE FORUM CONVENIENS.
The basic principle is that a stay will be granted on the ground of forum nonconvenience where the court is satisfied that there is some other available forum, having
competent jurisdiction, which is the appropriate forum for the trial of the action. 37 The
defendant is contemplating proceedings in the WTO. Such a proceeding would firstly, be
oppressive38 and vexatious39 for the parties involved, as inconvenience would prevail 40 if
the plaintiff is unfairly troubled to attend international proceedings. Secondly, having
proved that Indian courts have personal jurisdiction, it is safe to construe that Indian
courts are competent to take up the proceedings, if any, filed by the defendant, thus,
deeming Indian courts as Forum Conveniens.
2.
In arguendo, in this context it may be necessary to point out that there is no proper
alternate forum available with the defendants as it cannot in anyway, initiate proceedings
under the WTO laws. Thus, the only remaining proper available forum remains with the
Indian courts.
[I.1.F.]
THERE IS NO CONTRACTUAL RELATION BETWEEN THE PARTIES.
The plaintiff and defendant lack any contractual relation 41 in regards to the issue of
1.
piracy, which the defendant seeks to raise in the WTO.42 There is no connection between
the defendant and the plaintiff with regards to any alleged existence of a contract on the
basis of which the piracy has resulted. On account of such absence, the Amicus Curiae is
of the opinion that it would be unjust, inconvenient 43 and unfair on the part of the
defendant to implead the plaintiff in a baseless proceeding.
[I.2.]
1.
SUBMISSION: THE SUIT IS CORRECTLY INSTITUTED U / S. 20 OF CPC.
The suit filed in the Honble High Court of Delhi by the plaintiff is correctly instituted
37 Spiliada Maritime Corporation v. Consulex Ltd., [1987] AC 460.

38 McHenry v. Lewis (1882) 22 Ch D 397.
39 Settlement Corp. v. Hochschild, [1966] Ch 10 : (1965) 3 All ER 486; Cohen v. Rothfield, [1919] 1 KB 410,
414 : [1918-19] All ER 260, 262.
40 MacShannon v. Rockware Glass Ltd, [1978] A.C. 795 at p. 812 : [1978] 1 All E.R. 625 at p. 630 (H.L.); St.
Pierre v. South American Stores (Gath and Chaves) Ltd. [1936] 1 K.B. 382 at p. 398 (C.A.).
41 Infra, SUBMISSION [II], p. 7.
42 Supra note at 26, p. 2.
43 SNI Aerospatiale vs. Lee Kui Jak & Anr, (1987) 3 All.ER 510.
PAGE | 5
ARGUMENTS ADVANCED
as S. 20(a)44 provides that suits may be instituted where the defendant carries on business.
It is submitted that the North-Korean company carried on its business through its branch
in New Delhi and with this branch, the contract with the plaintiff was made.
2.
The intention of the expression carries on business is related to the business in which
a man may contract debts and is liable to be sued by persons having business transactions
with him. 45 It is to be noted that the business need not be carried on personally.46 It does
not involve actual presence or personal effort. 47 The defendant was not personally
involved in the business or present but had contracted with the other party through the
Indian branch.
At this juncture, it may be relevant to state the case of Kanshi Ram v. Dule Rai,48
3.
where a Bombay firm had a branch office at Amritsar, where orders were received subject
to confirmation by the head office at Bombay. It was held that the party was liable to be
sued at Amritsar, where the branch existed.
Moreover, in Guardian Assurance v. Shiva Mangal,49 a company was incorporated
4.
outside India did business in a place in India through its authorized branch. The branch
was supposed to accept insurance proposals, and to pay claims, and to do other incidental
work. It was held that the place of carrying business was India.
5.
On a clear perusal of the law stated, it can be concluded that the North-Korean
company was carrying on its business in India at the New Delhi branch and thus, the suit
is correctly instituted in the Original Side50 of the High Court of Delhi.
44 Supra note at 5, 20(c).

45 Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541.
46 Muthaya v. Allan, (1882) ILR 4 Mad 209; Shivbhagwan v. Onkarmal, AIR 1952 Bom 223.
47 Supra note at 4, MULLA, p. 446
48 Kanshi Ram v. Dule Rai, AIR 1933 Lah 11 : (1993) 14 Lah 42.
49 Guardian Assurance v. Shiva Mangal, AIR 1937 All 208 : (1937) ILR All 234.
50 5, THE DELHI HIGH COURT ACT (ACT 26 OF 1966).
PAGE | 6
ARGUMENTS ADVANCED
MERITS
[II]ISSUE: WHETHER OR NOT, THERE IS A VALID CONTRACT BETWEEN

THE PARTIES FOR LICENSE NO. 1983/11/21.
1.
In the opinion of the Amicus Curiae, the contract between the parties for License No.1983/11/21 is unenforceable. Firstly, it is submitted that there exists no valid contract for
sale. Secondly, the contract between the parties is unenforceable because it is
unconscionable. Thirdly, relying upon judicial precedents from common law jurisdiction,
it is submitted that shrink-wrap, click wrap and browse wrap are unenforceable.
Alternately, in any case if the court holds the aforesaid contract to be a valid one, it will
be against public policy. Alternately, if the contract is held to be enforceable by the court,
it will give rise to selective litigation.
SUBMISSION: THERE IS NO VALID CONTRACT FOR SALE.

A contract for sale under The Sales of Goods Act51 necessitates some pre-requisites.
2.
Two such pre-requisite are firstly, the need of delivery from one party to another and
secondly, the goods should be of merchantable quality.
A THERE IS NO DELIVERY OF THE GOODS.
3.
The property in the goods is supposed to pass after the delivery and successful testing
and other stipulations as provided in the contract.52 Therefore, to prove that property in
the goods has passed from the defendant to the plaintiff, it is imperative that the delivery
of the consignment has to take place.53
CUSTODY WAS WITH THE CUSTOMS OFFICIALS.
In this context, it may be appropriate to reproduce S. 45 of The Customs Act 54 as
4.
stated hereunder:
45. Restrictions on custody and removal of imported goods.
51 THE SALE OF GOODS ACT (ACT 3 OF 1930).
52 Usha Beltron Ltd. v. State of Punjab, (2005) 7 SCC 58.
53 Supra note at 51, 33.
54 45(1), THE CUSTOMS ACT, (ACT 52 OF 1962).
PAGE | 7
ARGUMENTS ADVANCED
(1) Save as otherwise provided in any law for the time being in force, all imported goods
unloaded in a customs area shall remain in the custody of such person as may be approved
by the Commissioner of Customs until they are cleared for home consumption are or are
ware housed or are transhipped in accordance with the provisions of Chapter VIII.
5.
In light of the present facts, it may be stated that the Customs officials first opened
the Consignment and it was in their custody.55 Moreover, the goods were not given
clearance as the consignment contained some counterfeited goods.56 No other formality
was followed in order to transfer the custody from the Customs officials to the plaintiff.
6.
Delivery is defined as The formal act of transferring something, the giving or

yielding possession or control of something to another.57 It is submitted that control
could not have been transferred without transferring the custody from the customs
officials.
[II.1.A.II).]THERE IS NO ACCEPTANCE WITHOUT DELIVERY.
There is no acceptance of goods U / S. 42 without delivery.58 S. 42 requires that the
1.
delivery should take place in order to attract acceptance or rejection by the buyer. 59 Even
if there was delivery, it is to be noted that the mere fact that the buyer has taken delivery
of the goods does not amount to an acceptance.60 In the present case, there has been no
delivery as the goods were under the custody of the Customs officials and consequently
there was no acceptance.
2.
Thus, it is opined by the Amicus Curiae that since delivery requires transferring of
custody and it is custody that provides for control, the same is lacking in the present case
and therefore, there is no delivery of goods as such and the plaintiff has not accepted the
goods thereof.
55 Supra note at 26, pp. 1,2.

56 Id.
57 HENRY CAMPBELL BLACK, BLACKS LAW DICTIONARY (9th ed., p. 552).
58 ART. 481, HALSBURY'S, LAWS OF ENGLAND (3rd ed., Vol. 4, p. 196).
60 Hardy & Co. v. Hillerns and Fowler, [1923] 1 KB 658, p 663, per GREER J.
PAGE | 8
ARGUMENTS ADVANCED
[II.1.B.] ARGUENDO,
THE
GOODS
WERE
NOT
ACCEPTED
DUE
TO
NON-
MERCHANTABLE QUALITY.
[II.1.B.I).] THE GOODS WERE NOT OF MERCHANTABLE QUALITY.
1.
It is submitted that the phrase Merchantable quality is not defined anywhere in the
legislation. According to a commentary on The Sale of Goods, POLLOCK & MULLA use
the phrase as the quality which a reasonable man, acting reasonable, would after a full
examination accept it under the circumstances of the case in performance of his offer to
buy that article, whether he buys for his own use or to sell again. 61 In other words, the
term merchantable quality stands tantamount to commercially saleable. When a bulk is
delivered in a contract, it is proper for the buyer to scrutinize a few of the samples out of
the bulk and form the response on the basis of the quality of those samples.62
2.
On a close and careful analysis of the facts, it can be concluded that the goods
received, it was alleged that some samples were pirated and non-original 63 and thus,
according to a reasonable mans view, the same were not commercially saleable.
[II.1.B.II).] THE GOODS WERE NOT ACCEPTED DUE TO THE QUALITY.
1.
Even if there was delivery, it is to be noted that the mere fact that the buyer has taken
delivery of the goods does not amount to an acceptance until the goods are of
merchantable quality64 or in other words there is no acceptance until the goods are of
merchantable quality. S. 16 of The Sale of Goods Act65 carries that there is an implied
condition with regards to the merchantable quality of the goods so received, which was
prima facie not the case66 and the buyer has the right to reject the goods if the samples do
not conform to the merchantable quality of the goods. 67
2.
It is already submitted that the goods were not of merchantable quality and thus, the
opinion of the Amicus Curiae that the buyer had not conveyed his acceptance by any
means whatsoever and therefore there is no contractual relation between the two parties in
61 Supra note at 4, MULLA, p. 164.

62 M Framrose & Co v. State of Maharashtra, (1977) 40 STC 36 (Bom); Ruttonjey v. Jamnadas, (1882) 6 Bom
692.
66 M Framrose & Co v. State of Maharashtra, (1977) 40 STC 36 (Bom).
PAGE | 9
ARGUMENTS ADVANCED
relation to any good in question.

[II.2.]
SUBMISSION:
CONTRACT
IS
UNENFORCEABLE
BECAUSE
IT
IS
UNCONSCIONABLE.
[II.2.A.]
1.
UNCONSCIONABILITY AS A PRINCIPLE OF CONTRACT LAW.
The principles of contract law are old and were formulated at a time when there was
no internet.68 An important aspect of contract law is consensus ad idem or meeting of
minds.69The meeting of minds in cyberspace was never envisaged, along with the validity
and effect of the use of electronic offer and acceptance. 70 So the advent of the use of
electronic communications for commercial transactions posed unexpected and complex
legal problems.71 These uncertainties largely flow from the shift from paper to electronic
trading, and the practical steps involved in negotiating a contract.72
Of late, jurisprudence regarding e-commerce has developed at a rapid pace. 73 The
2.
Indian Contract Act, 1872 governs the manner in which contracts are made and executed
in India74 while countries, like the United States75, Canada76 and the European Union77
have adopted elaborate legislation for e-commerce. While new commerce on the Internet
has posed difficulty to the judiciary, it has not fundamentally changed the principles of
contract.78 Therefore, established principles of contract law will be applicable in the
present case.
3.
These contracts are by nature contracts of adhesion- the possibility of negotiation is

excluded; one simply declares one's acceptance or goes without, entering into a contract.79
Unconscionability is a defense to contracts; therefore, it may be used to prevent the
68 RODNEY D RYDER, INTRODUCTION TO INTERNET LAW AND POLICY (1st ed., 2007, p. 6).
69 POLLOCK & MULLA, INDIAN CONTRACT AND SPECIFIC RELIEF ACTS (14th ed., 2012, p. 39).
70 TANA PISTORIUS, CLICK-WRAP AND WEB-WRAP AGREEMENTS, 16 S. Afr. Mercantile L.J. 568 2004.
71 Id.
72 BENJAMIN WRIGHT, THE LAW OF ELECTRONIC COMMERCE EDI, FAX AND E-MAIL TECHNOLOGY, PROOF,
LIABILITY (3rd ed., 1991, p. 235).
73 ROBERT BOND, SOFTWARE CONTRACT AGREEMENTS: TECHNIQUES IN STRUCTURING AND NEGOTIATING
CONTRACTS: REVIEW AND ANALYSIS, (5th ed., 2007, p. 47).
74 Rohas Nagpal, Electronic Contracts and the Indian Law in E-commerce-Legal Issues, Asian School of Cyber
Laws, March 7th, 2008, Available at: http://dict.mizoram.gov.in/uploads/attachments/cyber_crime/electroniccontracts.pdf (last visited: Aug, 10, 2013).
75 UNIFORM ELECTRONIC TRANSACTIONS ACT (1999).
76 UNIFORM ELECTRONIC COMMERCE ACT (1999).
77 DIRECTIVE 2000/31/EC L178 OF THE EUROPEAN PARLIAMENT AND COUNCIL, 8TH JUNE 2000.
78 Register.com, Inc v. Verio, Inc., 126 F. Supp 2d 238 (Dist.Court S.D.N.Y 2000).
AND
PAGE | 10
ARGUMENTS ADVANCED
enforcement of certain terms of a contract.80 Take it or leave it type condition imposed is a
PAGE | 11
ARGUMENTS ADVANCED
clear evidence of unequal bargaining power81 that exists between the two parties.
Unconscionability is seen as defendant-sided and concerned with defendants
PAGE | 12
ARGUMENTS ADVANCED
exploitation of the plaintiffs vulnerability.82

UNCONSCIONABILITY IN UNITED KINGDOM.
4.
Unconscionable dealings look to the conduct of the stronger party in attempting to
PAGE | 13
ARGUMENTS ADVANCED
enforce, or retain larger benefit from the transaction due to the position of the plaintiff. 83
English cases provide support for recognition of general principle entitling a court to
PAGE | 14
ARGUMENTS ADVANCED
intervene on the grounds of unconscionable bargains. 84The elements of Alec Lobb
PAGE | 15
ARGUMENTS ADVANCED
(Garages) Ltd. v. Total Oil85 were laid down as one party must be at a serious
disadvantage vis a vis another, this weakness must be exploited by the other party to its
advantage and the transaction must be overreaching. It is submitted, that in the present
case, all these conditions are satisfied.
PAGE | 16
ARGUMENTS ADVANCED
[II.2.A.II).]UNCONSCIONABILITY IN THE UNITED STATES.
PAGE | 17
ARGUMENTS ADVANCED
The general doctrine of unconscionability is also recognized in the US.86It does not
1.
only deal with transactions in goods, but by analogy, has been applied to other kinds of
PAGE | 18
ARGUMENTS ADVANCED
contracts.87The relief granted by the court extends from refusal to enforce the entire
contracts or the clauses, which are unconscionable. A contract or clause will be held to be
unconscionable, if it satisfies the test of procedural as well as substantive
unconscionability which includes the absence of meaningful choice and terms
PAGE | 19
ARGUMENTS ADVANCED
unreasonably favorable towards one party.88

2.
Procedural unconscionability is invoked when there is an element of oppression or

wrong doing in the process of making the contract and would include employment of
sharp bargaining practices and unfair surprises, use of fine print or language other than
PAGE | 20
ARGUMENTS ADVANCED
English or technical language, lack of understanding and inequality of bargaining power.89

All the other boxes were printed in English; the software consignment in question was
PAGE | 21
ARGUMENTS ADVANCED
printed in Mandarin.90
[II.2.A.III).]
1.
UNCONSCIONABILITY AND UNIDROIT PRINCIPLES.
A party can avoid a contract in cases where there is a gross disparity between the
PAGE | 22
ARGUMENTS ADVANCED
obligations of the parties, which gives one party an unjustifiably excessive
PAGE | 23
ARGUMENTS ADVANCED
advantage.91Such excessive advantage must exist at the time of entering into the contract.
Not only must be the advantage be excessive, it must also be unjustifiable. In the facts of
the present case, there is a gross disparity arising from the aforesaid contract.
PAGE | 24
ARGUMENTS ADVANCED
[II.2.A.IV).]
UNCONSCIONABILITY IN INDIA.
PAGE | 25
ARGUMENTS ADVANCED
1.
In India unconscionable contracts are judged on the grounds of public policy.92The
PAGE | 26
ARGUMENTS ADVANCED
test laid down by the Apex court lays stress upon procedural unconscionability.93The
requirement of great disparity in economic strength of the parties, inequality between the
position of the parties and lastly, whether the weaker party has no meaningful choice but
PAGE | 27
ARGUMENTS ADVANCED
to give assent to the contract, or to sign on the dotted line.94
PAGE | 28
ARGUMENTS ADVANCED
In its Report on the unfair Terms of Contract of 198495, the aspect of standard form of
2.
contracts imposing unfair and unreasonable terms upon unwilling consumers or persons
who had no bargaining power. It considered the adequacy of the present statute law to
PAGE | 29
ARGUMENTS ADVANCED
give justice to the weaker party.96 It recommended adding a new chapter (IV) and (67A)
PAGE | 30
ARGUMENTS ADVANCED
into the Contract Act regarding unconscionability.97
PAGE | 31
ARGUMENTS ADVANCED
The 199th report of Law Commission of India98considered in greater detail the Unfair
3.
(Procedural and Substantive) Terms in Contracts. The report makes a similar demarcation,
of procedural and substantive unconscionability, like the one, which exists in the USA.
According to the Law Commission Report, a contract or its term is procedurally unfair if
it has resulted in an unjust advantage to one party on account of the conduct of the other
PAGE | 32
ARGUMENTS ADVANCED
party.99
[II.2.B.]
1.
THERE IS NO MEANINGFUL NEGOTIATION.
In an adhesion contract, the parties do not negotiate because the terms and conditions
that are presented to adherents are nonnegotiable. The lack of meaningful bargaining
between the parties leaves the adherent in the position that the deal is accepted or there is
PAGE | 33
ARGUMENTS ADVANCED
no deal.100It has been argued that adherents have not made a meaningful choice by
clicking on an icon or downloading software. In some cases, when clicking the 'I agree'
icon, adherents do not even know they made a choice of law determination associated
PAGE | 34
ARGUMENTS ADVANCED
with their Internet contract.101

2.
In a contract, where a party who is in a stronger position and signed by a weaker
PAGE | 35
ARGUMENTS ADVANCED
party, which exercises very little option, but to sign it, making it a contract of adhesion.102
These contracts give no scope for negotiation and strictly offered on a take it or leave it
PAGE | 36
ARGUMENTS ADVANCED
basis.103 Such contracts are commonly used in todays economy as a way for large
companies to form binding agreements with large numbers of individual consumers. If
these contracts are held to be enforceable, it will have wide ramifications on the Internet,
economy and society at large.
[II.2.C.]
BARGAINING POWER OF THE PARTIES.
PAGE | 37
ARGUMENTS ADVANCED
The Internets new master is money and power. 104 Most ordinary people do not read
1.
these favorable provisions and jurisdiction clauses or other provisions in click wrap or
PAGE | 38
ARGUMENTS ADVANCED
shrink wrap agreements.105 Even if the provisions are read, most people do not understand
PAGE | 39
ARGUMENTS ADVANCED
the language.106The courts will not enforce an unfair and unreasonable clause in a contract
PAGE | 40
ARGUMENTS ADVANCED
entered in between parties who are not in equal bargaining power.107

2.
Reasonably sufficient notice of the existence of the contractual terms, unambiguous

assent to those terms by consumers and unbiased jurisdiction clauses are essential if
PAGE | 41
ARGUMENTS ADVANCED
electronic bargaining is to have integrity and credibility.108An ordinary consumer is pitted

against large multinational corporations. This is reflective of the unusual bargaining
power that exists in such contracts of adhesion. Exposing consumers to litigation based
upon contracts having unreasonable terms and unequal bargaining power will go against
the very purpose of contract law. For all the reasons stated above there exists no valid
contract for License No. 1983/21/11.
[II.3.]
SUBMISSION:
SHRINK-WRAP,
CLICK-WRAP
AND
BROWSE-WRAP
AGREEMENTS ARE UNENFORCEABLE.
1.
Relying upon judicial precedents from common law jurisdiction, it is submitted that
shrink-wrap, click wrap and browse wrap are unenforceable. The enforceability of these
PAGE | 42
ARGUMENTS ADVANCED
contracts has been determined on a case-to-case basis. 109It is submitted that in the present
case, these agreements are unenforceable.
A SHRINK-WRAP IS UNENFORCEABLE.
2.
The shrink wrap agreement gets its name from the fact that retail software packages
are covered in plastic or cellophane and have written licenses that become effective as
PAGE | 43
ARGUMENTS ADVANCED
soon as one tears it open.110No court till 1996 had enforced a shrink-wrap license and
PAGE | 44
ARGUMENTS ADVANCED
much less treated them as a unilateral statement of preferences as a binding agreement.111

3.
Also the fact that it contains terms additional to those agreed upon at the time of
acceptance of the order such as terms governing warranties, disclaimers of liability,
limitations of remedies, choice of law, and a host of other issues that will in all probability
PAGE | 45
ARGUMENTS ADVANCED
not have been raised or discussed at the time of placing of the order for the software. 112
The problem with this concept is not that ones actions cannot signify contract
PAGE | 46
ARGUMENTS ADVANCED
acceptance, rather that there is probably no meeting of the minds.113

4.
Mere reference to the terms at the time of initial contract formation does not present
PAGE | 47
ARGUMENTS ADVANCED
buyers an adequate opportunity to decide whether they are acceptable. 114 They must be
PAGE | 48
ARGUMENTS ADVANCED
able to read and consider the terms in their entirety. 115As happens with most shrink wrap
agreements, all terms and conditions are not presented to the buyer at the time of
purchase. Moreover, additional conditions are presented to the buyer, those to which he
PAGE | 49
ARGUMENTS ADVANCED
had not consented at the time of purchase. 116The initial response had been to limit the
PAGE | 50
ARGUMENTS ADVANCED
application of such agreements.117
PAGE | 51
ARGUMENTS ADVANCED
In Step-Saver Data Systems Inc v. Wyse Tech118 the court held that the terms of the
5.
shrink-wrap license were not enforceable because Step Saver had not assented to them. In
US, some cases suggest that such licenses are unenforceable, as they attempt to modify
PAGE | 52
ARGUMENTS ADVANCED
the terms of the contract already made and understood by the buyer and seller.119 In
PAGE | 53
ARGUMENTS ADVANCED
shrink-wrap licenses, the user never clicks or signs an agreement to any such terms. 120
Rather, the theory of the shrink-wrap license is that the user manifests assent to those
terms by engaging in a particular course of conduct that the license specifically
PAGE | 54
ARGUMENTS ADVANCED
constitutes acceptance.121
[II.3.B.]
CLICK-WRAP IS UNENFORCEABLE.
PAGE | 55
ARGUMENTS ADVANCED
The phrase click wrap agreement has its origin in the shrink wrap agreement. 122 These
1.
are digital variations of the shrink wrap license agreements and are becoming more and
more common in electronic e commerce, cyber trade and website shopping where no
paper contract precedes or follows the making of a contract by the provider to the
PAGE | 56
ARGUMENTS ADVANCED
customer.123 As technology evolved, purchase of software occurred over the Internet with
PAGE | 57
ARGUMENTS ADVANCED
no box or physical medium being involved. 124This led to the concept of click wrap
agreement.
2.
Typically, consumers complained, and courts agreed, that, since consumers could not
review license terms (which substantially deviated from the average consumer's
understanding of purchase and sale) prior to purchase, they were not part of the
bargained-for exchange. Consequently, this aspect of the contractual understanding was
PAGE | 58
ARGUMENTS ADVANCED
unenforceable.125Legality and enforceability of online contracts and click-wrap

agreements has been a problem because they contain the merchants standard terms of
PAGE | 59
ARGUMENTS ADVANCED
conditions prepared without negotiation or consultation with the customer.126

3.
The purchaser will indicate the assent to the terms by clicking on the button I agree,
very often without reading the terms, which would conclude the contract on the terms
PAGE | 60
ARGUMENTS ADVANCED
displayed.127 Further those courts that have enforced shrink wrap and browse wrap have
PAGE | 61
ARGUMENTS ADVANCED
done so to protect consumers against certain unreasonable clauses. 128 If there has been
ample opportunity to assent to the forum selection clause, the agreement has features such
as: it was written in "plain language" that the average consumer could understand; its
terms were scrollable;" and this portion of the agreement looked the same, in terms of
PAGE | 62
ARGUMENTS ADVANCED
font size and placement, as the balance of the contract. 129 In the present case, we cannot
conclusively say that all the above preconditions were fulfilled.
[II.3.C.]
1.
BROWSE-WRAP IS UNENFORCEABLE
A browse wrap agreement is an assemblage of terms presented electronically through

the provider of goods or services to the other party at some point during the contractual
PAGE | 63
ARGUMENTS ADVANCED
process.130 The general terms and conditions regarding the use of website or download of
PAGE | 64
ARGUMENTS ADVANCED
products are posted on the website, usually as a hyperlink at the bottom of the screen.131
2.
The law has paid some attention to the impact of terms of use on the customers:
virtually all the courts that have refused to enforce a browse wrap license have done so to
PAGE | 65
ARGUMENTS ADVANCED
protect the consumer.132If courts enforce browse wrap licenses at all, enforcement should
be limited to the context in which it has so far occurred-against sophisticated commercial
PAGE | 66
ARGUMENTS ADVANCED
entities who are repeat players. 133 But it remains uncertain whether a web wrap agreement
is enforceable on the basis of quasi-mutual assent established through browsing or
PAGE | 67
ARGUMENTS ADVANCED
continued use.134
3.
It is argued that it is obvious that web-wrap agreements are, unlike click wrap
agreements, not a response to the commercial practicality involved in selling pre-
PAGE | 68
ARGUMENTS ADVANCED
packaged software subject to an enforceable license. 135 In Pollstar v Gigamania Ltd, the
terms and conditions were so inconspicuous that the court held that the defendant had not
PAGE | 69
ARGUMENTS ADVANCED
assented to them.136 The court expressed concern about the enforceability of the browsewrap license as most visitors to the website may not be aware of the license agreement in
PAGE | 70
ARGUMENTS ADVANCED
a hyperlink by small gray text on a gray background. 137For all the reasons above stated,
the browse agreement should be unenforceable.
[II.4.]
SUBMISSION: ALTERNATELY, IF THE CONTRACT BETWEEN THE PARTIES FOR
LICENSE NO.- 1983/11/ 21 IS HELD TO BE ENFORCEABLE, IT WILL BE AGAINST PUBLIC

POLICY.
1.
Public policy is the principle, which declares that no man can lawfully do that which
has a tendency to be injurious to the public welfare. Public policy or opposed to public
PAGE | 71
ARGUMENTS ADVANCED
policy is not defined under the Contract Act.138 Also, the court is not the legislator; it
PAGE | 72
ARGUMENTS ADVANCED
cannot initiate the principle, it can only state or formulate what already exists. 139Public
PAGE | 73
ARGUMENTS ADVANCED
policy comprehends the protection and promotion of public welfare 140 connoting some
PAGE | 74
ARGUMENTS ADVANCED
matter, which concerns public good and public interest.141

2.
Public policy is stated as a principle of judicial legislation or interpretation founded
PAGE | 75
ARGUMENTS ADVANCED
on the current needs of the community and hence it is necessarily variable. 142 But the duty
PAGE | 76
ARGUMENTS ADVANCED
of the court is to expound and not expand the doctrine of public policy. 143This doctrine
PAGE | 77
ARGUMENTS ADVANCED
can only be invoked when harm to the public is substantially incontestable. 144In the
present case, if the contract in question is enforced, the harm caused to the public will be
incontestable.
3.
In order to invalidate a click wrap agreement or one of the terms present therein, it
should be proved by the party contesting the validity of the agreement that at least one
PAGE | 78
ARGUMENTS ADVANCED
term of the agreement either violates public policy or is unconscionable. 145Click wrap
agreements have held to be unenforceable on the grounds of public policy in a number of
PAGE | 79
ARGUMENTS ADVANCED
cases.146 One such policy is to protect the states' citizens from unfair business practices
PAGE | 80
ARGUMENTS ADVANCED
that impair their rights.147Therefore, if the contract is held to be enforceable, it would

expose citizens to unfair business practices sometimes adopted by corporations.
4.
It is submitted that always respecting the binding nature of the Terms of Use, would
be contrary to public policy, as it would have negative effects on the operation of the
PAGE | 81
ARGUMENTS ADVANCED
Internet.148 By permitting sellers to divest consumers of territorial jurisdictional rights and

award a choice of most favorable law or jurisdiction to themselves, businesses obtain all
PAGE | 82
ARGUMENTS ADVANCED
of the benefit of the agreement while the consumer all of the detriment. 149It is suggested
defendants that accepting use of a website as conduct that serves as acceptance sufficient
to form a contract would have very wide ramifications on the Internet as it currently
PAGE | 83
ARGUMENTS ADVANCED
functions.150 The biggest concern being the chilling effect it will have on the structure and
function of Internet usage in India.
[II.5.]
SUBMISSION: ALTERNATELY, IF THE CONTRACT BETWEEN THE PARTIES FOR
LICENSE NO.- 1983/11/ 21
IS HELD TO BE ENFORCEABLE, IT WILL GIVE RISE TO
SELECTIVE LITIGATION.
1.
It is a very common phenomena that people rarely read the terms of use of a software
PAGE | 84
ARGUMENTS ADVANCED
license,151those multiple contracts which are likely to contain a variety of different terms
PAGE | 85
ARGUMENTS ADVANCED
that may create obligations inconsistent with each other and companys own terms.152It is
submitted that claims for breach of contract would encourage selective and differential
treatment of website visitors undertaking the same activity, who may not even be aware
PAGE | 86
ARGUMENTS ADVANCED
of the existence of the Terms of Use.153
[III]
ISSUE: WHETHER OR NOT, THERE HAS BEEN MISUSE OF THE
LICENSE, WHICH HAS RESULTED INTO THE COUNTERFEIT AND

PIRATED COPIES BEING MADE.
1.
It is submitted before this Honble court that the original plaintiff is not responsible
for the misuse of License No. 1983/11/21, which resulted into the counterfeit and pirated
copies being made. Firstly, it is submitted that the plaintiff is not responsible for the
misuse of the aforesaid License No. as he was exercising his right U / 41 of the Sales of
PAGE | 87
ARGUMENTS ADVANCED
Goods Act.154Secondly, in the alternative, it is submitted before the Honble court that
Mr.Bhullar is not responsible for the negligent handling of the aforesaid License No.
1
SUBMISSION: ALTERNATELY, MR. BHULLAR

NEGLIGENT HANDLING OF THE
2.
IS
NOT
RESPONSIBLE
FOR
THE
LICENSE NUMBER-1983/11/21.
Negligence is the branch of duty caused by the omission to do something which a

reasonable man guided by those considerations which, ordinarily regulate the conduct of
PAGE | 88
ARGUMENTS ADVANCED
human affairs would do, or something which a prudent or reasonable man would not. 155It
is submitted that in the present case, there has been no negligence.
A THE TORT OF NEGLIGENCE DOES NOT COVER PURELY ECONOMIC LOSSES
PAGE | 89
ARGUMENTS ADVANCED
It is submitted that the tort of negligence does not cover purely economic losses. 156In
3.
considering whether this requirement is met in a particular given case one has to exclude
that property, the defective condition of which is alleged to give rise to the danger or
PAGE | 90
ARGUMENTS ADVANCED
damage for which the action is brought.157 Even if the loss is unquestionably only
financial in nature, no difficulty is felt about allowing its recovery if it is a consequence of
PAGE | 91
ARGUMENTS ADVANCED
physical damage or injury to the claimants property.158 In the present case, negligence
therefore cannot be attributed to the plaintiff because negligence does not cover pure
economic losses. The loss suffered by the defendants is purely economic in nature.
[III.1.B.] THE ACT OF MR.BHULLAR WAS REMOTE
1.
There would be manifest injustice if a person were held to be responsible for all
PAGE | 92
ARGUMENTS ADVANCED
consequences of his act, which in theory may be endless. 159A person is, therefore, held
PAGE | 93
ARGUMENTS ADVANCED
responsible in law only for the consequences, which are not remote. 160A tort- feasor is
only liable for any damage which he can reasonably foresee, may happen as a result of
PAGE | 94
ARGUMENTS ADVANCED
breach of duty however unlikely it may be, unless it can be brushed aside. 161Therefore,
Mr.Bhullars conduct could not reasonably have led to such huge losses being caused to
Business Solutions.
[IV]
ISSUE: WHETHER OR NOT, DAMAGES SHOULD BE GRANTED
FOR THE PIRATED COPIES.

1.
It is submitted that M/s Das &Bhullar are not responsible for paying such exemplary
damages as contended. It has already been established before this Honble court that there
exists no valid contract for the License Number-1983/23/11. Further, it has also been duly
established that the original plaintiff cannot be held responsible for the misuse of
aforesaid License Number. Therefore, the original plaintiff is not liable to pay damages.
PAGE | 95
PRAYER
PRAYER
Wherefore in the light of the facts stated, issues raised, authoritsies cited and arguments
advanced, it is most humbly prayed before this Honble Court that it may be pleased to:
I.
II.
III.
Allow the application of anti-suit injunction against the defendant.

Hold and declare that the contract for License No. 1983/11/21 to be invalid.
Hold and declare that the plaintiff is not responsible for the misuse of License No.
1983/11/21, which resulted in the counterfeiting, and piracy of the software.
IV.
To not grant any damages whatsoever.

And / Or
Pass any other order that it deems fit in the interest of justice, equity and good conscience.
-Amicus Curiae
PAGE | XVIII
PRAYER
79 ANDREW BURGESS, 'CONSUMER ADHESION CONTRACTS
AND UNFAIR TERMS: A CRITIQUE OF CURRENT

THEORY AND SUGGESTION' (1986) 15 Anglo American LR 255; TODD D RAKOFF, 'CONTRACTS OF ADHESION:
AN ESSAY IN RECONSTRUCTION' (1983) 96 Harvard LR 1174.
80 Comb v. PayPal, Inc., 218 F. Supp. 2d 1165, 1175 (N.D. Cal. 2002).
81 Id.
83 Commercial Bank of Australia Ltd. v. Amadio, (1983) 151 CLR 447.
84 Multiservice Bookbinding Ltd. v. Marden, [1979] Ch 84, [1978] 2 All ER 489
85 Alec Lobb, (Garages) Ltd. v. Total Oil, (GB) Ltd, [1983] 1 WLR 87.
86 UCC S 2-302; Restatement 2d 208.
88 Williams v. Walker-Thomas Furniture Co, 350F 2rd 445, (DC Cir 1965).
91Art.
3.10,
UNDROIT
Principles.
Available
at:
http://www.unidroit.org/english/principles/contracts/principles2004.pdf (last visited: Aug 10, 2013).
92 23, INDIAN CONTRACT ACT (ACT 9 OF1872); Dai-ichi Karkaria Ltd. v. Oil and Natural Gas Commission,
AIR 1992 Bom 309.
93 Central Inland Water Transport Corporation Ltd v. Brojo Nath Ganguly, [1986] 2 SCR 278, AIR 1986 SC
1571, (1986) 3 SCC 156.
94 Id.
95 THE 103RD REPORT OF THE LAW COMMISSION OF INDIA (1984).
98 THE 199TH REPORT OF LAW COMMISSION OF INDIA (2006).
100 JONATHAN BICK, JIMMY POSTER, 101 THINGS YOU WANT TO KNOW ABOUT INTERNET LAW (1st ed., 2000
p. 21).
101 Id.
102 ANDREW MURRAY, INFORMATION TECHNOLOGY LAW: INTERNET AND SOCIETY (1st ed., 2010, p. 419).
103 ALAN DAVIDSON, LAW OF ELECTRONIC COMMERCE (1st ed., 2010, p. 118).
104 Glenn Murray, Is the Internet Historys Greatest Hoax? October 15, 2005 Available at:
http://www.isnare.com, (last visited: Aug 10, 2013).
105 JOHN P. TOMASZEWSKI, THE ENFORCEABILITY OF ADHESIVE ARBITRATION CLAUSES IN INTERNATIONAL
SOFTWARE LICENSES, 3 J. TECH. L. & POL'Y 4 (1997).
106 Id.
108 KAUSTUV M. DAS, NOTE, FORUM-SELECTION CLAUSES IN CONSUMER CLICK WRAP AND BROWSE WRAP
AGREEMENTS AND THE "REASONABLY COMMUNICATED" TEST, 77 WASH. L. REV. 481, 482 (2002).
PAGE | XVIII
PRAYER
110 ProCD Inc v. Zeidenberg, 86 F.3d 1447 (Court of Appeals, 7th Cir.1996).
111 MARK A LEMLEY, INTELLECTUAL PROPERTY AND SHRINK WRAP LICENSES , 68 S. CAL. LAW. REV. 1239,
1248-53 (1995); Step-Saver Data Systems Inc v. Wyse Tech., 939 F.2d 91, 102-03 (3d Cir.1991); Vault
Corporation v. Quaid Software Ltd, 847 F.2d 255,268-70 (5 th Cir.1988); Ariz Retail Systems, Inc v. Software
Link Inc., 831 F. Supp. 759, 763-66 (D.Ariz, 1993).
112 CAREY R. RAMOS & JOSEPH P. VERDON, SHRINK WRAP AND CLICK-ON LICENSES AFTER PROCD V.
ZEIDENBERG, COMPUTER L., SEPT. 1996, AT 2; LLOYD L. RICH, MASS MARKET SOFTWARE AND THE
SHRINKWRAP LICENSE, 23 COLO. L. REV. 1321 (1994) .
115 Id.
116Supra note at 102.
118 Step-Saver Data Systems Inc v. Wyse Tech, 939 F.2d 91 (3rd Cir.1991).
120 Supra note at 110, p. 1450.
121 MARK A. LEMLEY, TERMS OF USE IN E CONTRACTS: EMERGING DIMENSIONS (1st ed., 2008, p. 31).
122 KIMBERLIANNE PODLAS, LET THE BUSINESS BEWARE: CLICK-WRAP AGREEMENTS IN INTERNATIONAL B2C
E-COMMERCE, 8 J. L. & Bus. 38, 2001.
123 Supra note at 73, p. 17. (ROBERT BOND, SOFTWARE CONTRACT AGREEMENTS: TECHNIQUES IN
STRUCTURING AND NEGOTIATING CONTRACTS: REVIEW AND ANALYSIS, (5th ed., 2007, p. 47).
124 Century 21 Canada Ltd. Partnership v. Rogers Communications Inc, 2011 BCSC 1196.
125 Supra note at 122; Arizona Retail Systems v. Software Link, Inc. 831 F.Supp. 759, 763-66 (D. Ariz. 1993).
127 Supra note at 69, p. 164
128 Cario Inc v. Crossmedia Services Inc, (N.D Cal. Apr. 1, 2005); America Online, Inc. v. Superior Court, 108
Cal. Rptr. 2d 699, 702 (Cal. Ct. App. 2001).
129 Caspi v. The Microsoft Network, 732 A.2d 528 (N.J. Super. Ct. App. Div., 1999).
131 Kwan v. Clearwire Corp., 2012 WL 32380; Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366
(E.D.N.Y. 2009).
132 Campbell v. Gen. Dynamics Govt. Systems Corp, 407 F.3d 546,556-57 (1st Cir.2005); Waters v. Earthlink,
Inc, 91 F Appx 697,98 (1st Cir.2003).
135 Gary Dunn, 'On-Line Contract Formation - Contracting Issues for Businesses on the Net' (2001), Available
at: httlp://vtwv.dunn.c om/l)er/ll)aer_14.shtml (last visited: Aug 10, 2013).
136 Pollstar v Gigamania Ltd, (ED Cal 17 2000).
137 Id.
PAGE | XVIII
PRAYER
139 Wilkinson v. Osborne, (1915) 21 CLR 89 at 97.

142 Winfield (1928) 42 HLR 76.
143 Fender v. Mildmay, [1983] AC 1 : [1937] 3 All ER 402.
144 Janson v. Driefontein Consolidated Mines Ltd., [1902] AC 484 : [1900-3] All ER Rep 426 (HL).
146 Am. Online, Inc. v. Superior Court, 108 Cal. Rptr. 2d 699, 702 (Cal. Ct. App. 2001).
148 Supra note at 124, 109. Refer to submissions made by the Defendant.
149 Goodwin v. Ford Motor Credit Co., 970 F.Supp. 1007, 1014 (U.S. Dist. Ct. Middle Distr. Alabama 1997);
Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1435 (Mid. Dist. Ala. 1998).
150 Supra note at 124, 109. Refer to submissions made by the Defendant.
151 Straus v. Victor Talking Machs. Co., 243 U.S 490, 501 (1917).
153 WILLIAM J. CONDON, JR., ELECTRONIC ASSENT TO ONLINE CONTRACTS: DO COURTS CONSISTENTLY
ENFORCE CLICKWRAP AGREEMENTS? 16 Regent U. L. Rev. 433 2003-2004.
154 Supra SUBMISSION [II.1].A, p. 7.
155 Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781,784.
156 D &F Estates Ltd v. Church Commissioners, (1988) 2 All ER 992: (1987) 7 Com LR 40 (HL).
157 Murphy v. Brentwood District Council, (1900) 2 All ER 908 (HL).
158 W.V.H ROGERS, WINFIELD & JOLOWICZ , THE LAW OF TORT (18th ed., 2010, p. 218)
159 RATANLAL & DHIRAJLAL, THE LAW OF TORTS (26th ed., 2012, p. 190).
160 Id.
161 Wagon Mound No. 2,(1966) 2 All ER 404: (1967) 1 AC 617 (PC).
PAGE | XVIII

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048-129 P

5TH INTRA UNIVERSITY MOOT COURT COMPETITION

Transferred Case No. _____/ 2013

M/S BUSINESS SOLUTIONS

SUBMITTED AS AN AMICUS CURIAE

ISSUE: WHETHER OR NOT, THE MATTER IS MAINTAINABLE IN THE HONBLE

SUPREME COURT OF INDIA.___________________________________________________1

Submission: The Anti-Suit Injunction filed U / O. 39 R. 1 is Maintainable._____1

It is within the Power of the Courts to grant the Injunction.______________1

Judicial Pronouncements in Favor of the submission.__________________2

The Defendant was Amenable to the Personal Jurisdiction of the Indian

Cause of Action arose within the Limits of Jurisdiction of India._________4

Indian Courts are the Forum Conveniens.___________________________4

There is no Contractual Relation between the Parties.__________________5

Submission: The suit is Correctly instituted U / S. 20 of CPC._______________5

ISSUE: WHETHER OR NOT, THERE IS A VALID CONTRACT BETWEEN THE PARTIES

Submission: There is no Valid Contract for Sale.__________________________7

There is no Delivery of the Goods._________________________________7

Custody was with the Customs Officials.________________________7

There is No acceptance without Delivery.________________________8

SUBMITTED AS AN AMICUS CURIAE

Arguendo, the Goods were not accepted due to Non-Merchantable Quality._9

The goods were not of Merchantable quality.______________________9

The goods were not Accepted due to the quality.___________________9

Submission: Contract is Unenforceable because it is Unconscionable._______10

Unconscionability as a Principle of Contract Law.____________________10

Unconscionability in United Kingdom.__________________________11

Unconscionability in the United States._________________________11

Unconscionability and UNIDROIT Principles.___________________12

There is No Meaningful Negotiation.______________________________13

Bargaining Power of the Parties.__________________________________13

Submission: Shrink-wrap, Click-wrap and Browse-wrap agreements are

1983/11/ 21 is held to be enforceable, it will be against public policy.__________________17

1983/11/ 21 is held to be enforceable, it will give rise to Selective Litigation.____________18

Submission: Alternately, Mr. Bhullar is not responsible for the negligent

handling of the License No.-1983/11/21._________________________________________19

The tort of negligence does not cover purely economic losses___________19

The act of Mr.Bhullar was remote________________________________20

ISSUE: WHETHER OR NOT, DAMAGES SHOULD BE GRANTED FOR THE PIRATED

SUBMITTED AS AN AMICUS CURIAE

SUBMITTED AS AN AMICUS CURIAE

Airbus Industries GIE v. Patel and Ors., (1998) 2 All ER 257

Ballard v. Savage 65 F.3d 1495, 1498 (9th Cir. 1995)

Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781,784

British Indian Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries

Cario Inc v. Crossmedia Services Inc, (N.D Cal. Apr. 1, 2005)

Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly,

SUBMITTED AS AN AMICUS CURIAE

Cohen v. Rothfield, [1919] 1 KB 410, 414 : [1918-19] All ER 260, 262

Commercial bank of Australia Ltd. v. Amadio, (1983) 151 CLR 447

Cybersell Inc v. Cybersell Inc and Ors., 130 F.3d 414

Goswami v. Goverdhanlalji, (1890) ILR 14 Bom 541

Hardy & Co. v. Hillerns and Fowler, [1923] 1 KB 658

Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 366 (E.D.N.Y. 2009)

Janson v. Driefontein Consolidated Mines Limited, [1902] AC 484 : [1900-3] All

Kumar Ganga v. Prithichand Lal, (1922) 1 Pat 356.

Kwan v. Clearwire Corp., 2012 WL 32380

M Framrose & Co v. State of Maharashtra, (1977) 40 STC 36 (Bom)

Karaha Bodas Company, LLC v. Perusahaan Pertambangan Minyak Dan Gas

SUBMITTED AS AN AMICUS CURIAE

McHenry v. Lewis (1882) 22 Ch D 397

Mulchand v. Gill & Co., (1920) 44 Bom 283, 294 : 53 IC 518

Multiservice Bookbinding Ltd. v. Marden, [1979] Ch 84, [1978] 2 All ER 489