IN THE HON’BLE HIGH COURT OF JHARKHAND,

AT RANCHI

UNDER SECTION 9 OF THE CIVIL PROCEDURE CODE, 1908

PLAINT NO.............../2017
IN THE MATTER OF

Sinima E-Service Pvt. Ltd. ....................................................................................... PLAINTIFF

V.
Jackal Technologies Pvt. Ltd. ................................................................................ DEFENDANT

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE DEFENDANT

COUNSEL ON BEHALF OF THE DEFENDANT

MAYANK CHATURVEDI
SEMESTER- V
SECTION – B
ROLL NO. – 584

MEMORIAL ON BEHALF OF THE DEFENDANT 1

 TABLE OF CONTENTS

1. List of Abbreviations
2. Index of Authorities
 Statutes
 Books
 Websites
 Cases
3. Statement of Jurisdiction
4. Statement of facts
5. Issues Raised
6. Summary of Arguments
7. Arguments Advanced
8. Prayer

MEMORIAL ON BEHALF OF THE DEFENDANT 2

 LIST OF ABBREVIATION

1. & - And
2. Hon’ble - Honorable
3. KB - Kings Bench
4. Ltd - Limited
5. M.P. - Madhya Pradesh
6. NSWJR - North and South Western Junction Railway
7. SC - Supreme Court
8. SCC - Supreme Court Cases
9. SCR - Supreme Court Records
10. v - Versus

MEMORIAL ON BEHALF OF THE DEFENDANT 3

 INDEX OF AUTHORITIES

STATUTES:
 Sales of Goods Act,1930
 Code of Civil Procedure, 1908

BOOKS:

WEBSITES:

 www.manupatra.com
 www.ssconline.com

LIST OF CASES:

SO. NAME OF THE CASES CITATION PAGE NUMBER

NO.
1. Commissioner of Sales Tax M.P. v. (1970) 2 SCC 287 10
Purshottam Premji
2. Commissioner of Sales Tax, Madhya [1969]2 SCR 939 10
Pradesh, Indore v. Madhya Pradesh
Electricity Board, Jabalpur
3. Mahesh Gupta v. Mr. Ranjit Singh MANU/DE/0204/2009 9

4. Patnaik & Co. v. State of Orissa (1964)2 SCR 879 10

5. Robinson v. Graves (1935) KB 579 10

6. Seelan Raj & Ors. v. The Presiding (2001) 4 SCC 634 10

Officer 1st Additional Labour Court,
7. Toby Construction Ltd. v. Computa (1983) 2 NSWJR 48 10
Bar (Sales) Pty. Ltd.

MEMORIAL ON BEHALF OF THE DEFENDANT 4

 STATEMENT OF JURISDICTION

The counsel for the defendant most humbly submits himself to its jurisdiction of this Hon’ble Court
under section 9 of Civil Procedure Code1, to hear the present matter and adjudge accordingly.

1
Courts to try all civil suits unless barred. - The Courts shall (subject to the provisions herein contained) have jurisdiction
to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation 1.—As suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation Il—For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to a particular place.
MEMORIAL ON BEHALF OF THE DEFENDANT 5
 STATEMENTS OF FACTS

The facts of the case are as follows-

 Sinima E – Services Pvt. Ltd. entered into an agreement with Jackal Technologies Pvt. Ltd.
for development of software for their e – services.
 The software also required timely updates and services needed to be rendered by Jackal
Technologies Pvt. Ltd. Jackal and Sinima have entered into a technology transfer agreement.
 After the software was loaded onto the systems of Sinima E – services Ltd., it ran errors
after a certain point of run times in a day. Upon examination, Jackal claimed that it is the
computer of Sinima which is developing compatibility issues. Sinima has filed a suit for
breach of contract.

 The matter is before the High Court of Jharkhand.

MEMORIAL ON BEHALF OF THE DEFENDANT 6

 ISSUES RAISED

I. Whether the present petition is maintainable?

II. Whether technology is a good within the meaning of Sale of Goods Act, 1930?
III. Whether there is breach of contract?

MEMORIAL ON BEHALF OF THE DEFENDANT 7

 SUMMARY OF ARGUMENTS

I. Whether the present petition is maintainable?

It is most humbly submitted before the hon’ble court that the present petition is not maintainable
because the petitioner has exhausted his local remedies. The doctrine of exhaustion of alternative
remedies directs that a litigant must approach the forum that is nearest him/her in the chain of the
judicial structure, and that precious judicial resources, both at the higher level, and at the lower,
perhaps specialized level, should not be wasted in the wake of a forum shopping exercise.

II. Whether technology is a good within the meaning of Sale of Goods Act, 1930?

In the present case the petitioner entered into the contract of development of a software specific
to their requirements and based on the defendant expertise. Therefore rendering the contract as
contract of service rather the contract to sale, which in terms of present case proves that
technology is not a good under sale of goods act rather it is a service provided by the defendant.

III. Whether there is breach of contract?

It is most humbly submitted before the hon’ble court that there is no breach of contract as the
contract of services is not governed under Sales of Goods Act, 1930.

MEMORIAL ON BEHALF OF THE DEFENDANT 8

 ARGUMENSTS ADVANCED

I. WHETHER THE PRESENT PETITION IS MAINTAINABLE?

It is most humbly submitted before the hon’ble court that the present petition is not maintainable
because the petitioner has exhausted his local remedies. The doctrine of exhaustion of alternative
remedies directs that a litigant must approach the forum that is nearest him/her in the chain of the
judicial structure, and that precious judicial resources, both at the higher level, and at the lower,
perhaps specialized level, should not be wasted in the wake of a forum shopping exercise.2 The
hierarchical structure of court is being endorsed by the Constituency of India with the level of power
exercised by the different level of courts and the same should be maintained.

Further under section 15 of civil procedure code, “Every suit shall be instituted in the Court of the
lowest grade competent to try it.”

This Section is a rule of procedure and has been incorporated in Code of Civil Procedure so that the
different Courts exercise their jurisdiction as per law and no single Court becomes overcrowded with
the suits3 and also to avoid overcrowding of suits in the higher Courts and also for the convenience
of the parties and witnesses.

II. WHETHER TECHNOLOGY IS A GOOD WITHIN THE MEANING OF SALE OF

GOODS ACT, 1930?

It is most humbly submitted before the hon’ble court that technology is NOT a good within the
meaning of Sale of Goods Act, 1930.

Section 2(7) of the Indian Sale of Goods Act provides:--

"Goods means every kind of moveable property other than actionable claims and money; and
includes stock and shares, growing crops, grass; and things attached to or forming part of the land
which are agreed to be severed before sale or under the Contract of Sale."

2
Venkatesh Vijayaraghaven, The Doctrine of Exhaustion of Alternative Remedies: Convenience Rules, 13 Student
Advoc. 1, 27 (2001))
3
Mahesh Gupta v. Mr. Ranjit Singh MANU/DE/0204/2009
MEMORIAL ON BEHALF OF THE DEFENDANT 9
The expression ‘movable property’ follows a fortiori that intangibles which are not recognized by the
law as property, e.g., information or an opportunity do not come within the definition.4 Software
comprises the instructions that cause the hardware to work in a particular manner, for example, to
process the payroll of an office. From that angle, software is intangible and difficult to classify in
legal terms. It appears to be pure information enjoying no physical form except that of magnetic
notation on a tape or disk. Since it appears that information is not goods one might conclude neither
is software.5

A contract of sale is a contract whose main object is the transfer of the property in, and the delivery
of possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the
payee of the price is not the transfer of a chattel quo chattel the contract is one for work and labour.6

The Supreme Court, in Commissioner of Sales Tax M.P. v. Purshottam Premji7 has held the
distinction between a contract for work or services and a contract for sale of goods is that in the
former there is in the person performing work or rendering service no property in the thing produced
as a whole notwithstanding that a part or even the whole of the materials used by him may have been
his property. In the case of a contract for sale, the thing produced as a whole has individual existence
as the sole property of the party who produced it, at some time before delivery, and the property
therein passes only under the contract relating thereto to the other party for price. Mere transfer of
property in goods used in the performance of a contract is not sufficient; to constitute a sale there
must be an agreement express or implied relating to the sale of goods and completion of the
agreement by passing of title in the very goods contracted to be sold. Ultimately the true effect of an
accretion made pursuant to a contract has to be judged, not by an artificial rule that the accretion may
be presumed to have become by virtue of affixing to a chattel, part of that chattel, but from the
intention of the parties to the contract.

Further, in the case of Robinson v. Graves8 where it was held that a contract by an artist to paint a
portrait of a lady was a contract for work and labour and not for the sale of goods as the substance of
the contract was that skill and labour should be exercised upon the production of the portrait and that
it was only ancillary to the contract that there would pass from the artist to his customer some
material.

4
Toby Construction Ltd. v. Computa Bar (Sales) Pty. Ltd. (1983) 2 NSWJR 48. Holding a ‘package’ of computer
software and hardware to be a sale of goods, but it was doubted whether this would be true of the software alone.
5
Seelan Raj & Ors. v. The Presiding Officer 1st Additional Labour Court, (2001) 4 SCC 634
6
Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur [1969]2 SCR 939
7
(1970) 2 SCC 287; Patnaik & Co. v. State of Orissa (1964)2 SCR 879
8
(1935) KB 579
MEMORIAL ON BEHALF OF THE DEFENDANT 10
In the present case the petitioner entered into the contract of development of a software specific to
their requirements and based on the defendant expertise. Therefore rendering the contract as contract
of service rather the contract to sale, which in terms of present case proves that technology is not a
good under sale of goods act rather it is a service provided by the defendant.

III. WHETHER THERE IS BREACH OF CONTRACT?

It is most humbly submitted before the hon’ble court that there is no breach of contract as the
contract of services is not governed under Sales of Goods Act, 1930.

Further when the services were provided as the programmed software worked accordingly but after
few run times it started to show error which shows that it was the device was not having
compatibility issues, there was nothing wrong in the software.

It can be inferred from the facts that the software was compatible with the given device as it was
working from the beginning but it was the fault of the plaintiffs due to which compatibility issues
rose.

MEMORIAL ON BEHALF OF THE DEFENDANT 11

 PRAYER

Wherefore, in the lights of the facts stated, issues raised, arguments advanced, and authorities cited,
this Hon’ble Court may be pleased to:
1. There is no breach of contract on the part of the defendant and
2. Dismiss the plaint with cost.
And to pass any other order(s) in favor of the defendant.

ALL OF WHICH IS MOST RESPECTFULLY AND HUMBLY SUBMITTED.

Dated- 2017
Sd/-
(Counsel on behalf of the Defendant)

MEMORIAL ON BEHALF OF THE DEFENDANT 12