TC 40 - Res

-3rd JAMIA MILLIA ISLAMIA INTER FACULTY MOOT COURT COMPETITION, 2017-
TEAMCODE: TC 40
JAMIA MILLIA ISLAMIA
FACULTY OFLAW(INTRA) MOOT COURT COMPETITION, 2017
BEFORE
THE HON’BLE SUPREME COURT OF DEMOCRATIC STATE OF

ASNARD
WRIT PETITION NO.____/2018
[UnderArticle 133 of Constitution of Democratic State Of

“Asnard”]
In the Matter of
HPC Ltd., & Amy Santiago……….Petitioner

Versus
Steve Rovers …………Respondent
MEMORIAL ON BEHALF OF THE RESPONDENT
-
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………………………………………….
INDEX OF ABBREVIATIONS……………………………………………………………….
INDEX OF AUTHORITIES…………………………………………………………………...
STATEMENT OF JURISDICTION…………………………………………………………...
STATEMENT OF FACT………………………………………………………………………
STATEMENT OF ISSUES…………………………………………………………………
SUMMARY OF THE THE ARGUMENT…………………………………………………...
-
INDEX OF ABBREVIATIONS
A.I.R.All India Reporter
Co. Company
Ed.Edition
Hon’ble Honourable
Ltd. Limited.
Ors. Others
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sr. Senior
&And
U.O.I Union of India
v. /vs. Versus
Page 3 of 30
-ARGUMENTS ADVANCED- -MEMORIAL ON BEHALF OF
RESPONDENT-
INDEX OF AUTHORITIES
INDIAN CASES.
1. ARSP Subramanian Chetty v. Official Assignee of Madras, AIR 1931 Mad 603.
2. of A.P.SEB v. Patel & Patel
3. Abdur Rahman v. Nasir Ali Khan, AIR 1931 Lah 657
4. Bhagwani Bai v. Life Insurance Cooperation of India, AIR 1984 MP 126.
5. Bazpur Coop Sugar Factory Ltd. V. Surendra Mohan Agarwal, Air 1984 All 174.
6. Beoco Ltd. V. Alfa Laval Co. Ltd (1995) QB 137.
7. Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933
8. Edwards v. Society of Graphical and Allied Trade, (1971) Ch 354.
9. Fateh Chand v. Balkishan Das, 1964 (1) SCR 515
10. Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
11. Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
12. Jain Mills and Electrical stores v. State of Orissa, AIR 1991 Ori 117.
13. Kailash Nath Associates v. Delhi Development Authority (2015) 4 SCC 136.
14. K.C. Skaria v. Govt of State of Kerela (2006) 2 SCC 285
15. M Licha Setty & Sons Ltd v. Coffee Board AIR (1981) SC 182
16. Municipal Corpn. Of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
17.
18. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
19. Sri Krishnan v. krurkshetra university (1976) 1 SCC 311.
20. Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
21. State of A.P v. Associated Engg. Enterprises, AIR 1990 AP 294.
22. Sindh Biscuits Mfg. co. v. Delight Engg. Works, 1984 All Lj 964.
23. State of Kerala and Ors. v. United Shippers and Dredgers Ltd AIR 1982 Ker 281
INTERNATIONAL CASES
1. Bell v. Lever Bros, (1932) AC 161
2. Blyth v. Birmingan Waterworks Co., (1856) 11 Ex 781.
3. Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd (1989) 2 All ER 952 at 1010
4. Derry v. Peek (1889) 14 App Cas 337.
Page 4 of 30
-ARGUMENTS ADVANCED- -MEMORIAL ON BEHALF OF RESPONDENT-
5. Horsefall v. Thomas (1862) 1 H & C 90

6. Keats v. Earl of Cadogen (1851) 10 CB 591
7. Laidlaw v. Organ 15 US, (2 Wheat) 178, (1817)
8. Nocton v. Lord Ashburton (1914) AC 932 (HL)
9. Pilkington v. Wood, (1953) Ch 770
10. Roper v.Johnson (1873) LR 8 CP 167
11. Timbo Lrmaos Ltd. V. Jorge Anibal Motos Sequeira, (1977) 2 SCR 451
BOOKS, JOURNALS, ARTICLES:
 Arvind P. Datar, Datar Commentary On Constitution Of India (2nd Ed. Reprint 2010)
th
 Durga Das Basu, Law of The Press (5 Ed. 2010, Lexis Nexis Butterworths Wadhwa, Nagpur)
 Avtar Singh, Contract & specific relief (12th Ed. Reprint 2016)
 Pollock & Mulla, The Indian contract and specific relief act, Voll 1 (14th Ed. Reprint 2016)
 Pollock & Mulla, The Indian contract and specific relief act, Voll 2 (14th Ed. Reprint 2016)
 Rattan Lal, Law of torts, (4th Ed. Reprint 2015)
STATUTES, LEGISLATIONS:
The Constitution of India, 1950
Black law dictionary, end,2014
contract act 1872 Indian
ONLINE SOURCES
www.scc.com
www.LexisNexis.com
www.IndianKanoon.com
www.Manupatra.com
Page 5 of 30
STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum to the judicature of Supreme Court of Democratic State
of Asnard under Art. 133 of the Constitution ofDemocratic State of Asnard. The petition has been posted
before this Hon’ble court for final hearing under Art. 133 of the constitutionDemocratic State of Asnard
reads as hereunder:
133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.—
[(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding
of a High Court in the territory of India [if the High Court certifies under Article 134-A]—
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.]
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1)
may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of
this Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
———
Page 6 of 30
STATEMENT OF FACTS
1. Mr. Tony Snark, is the owner of majority of stakes in one of the leading pharmaceuticals company
named Healing Hand Pharmaceutical Co. Ltd. HPC Ltd. Manufactures a capsule named “Lobanza”.
Lobanza capsule reduces drug addiction for narcotic substances and is prescribed for adults. The
company strongly advised that this capsule must not be consumed when a person is still consuming
narcotic substances such as drugs and tobacco. Intake of these capsule while still consuming
narcotic substances even for a continuous week, may cause death due to volatile and negative
volatile reactions.
2. Mr. Tony Snark and Mr. Steve Rovers were childhood friends who completed their senior secondary
School Examination in 2007, they took an admission in pharmaceutical Bachelor programme and
pharmaceutical technical programme respectively. Steve was a meritorious student and bagged the
position of gold medallist in his Bachelor programme. After hundreds of experiment and failure, he
succeeded in designing his own machine “ labzo pharma tech” (LTP). Which helped in increasing
the production of medicine (including lobanza) by five times at a comparatively cheaper rate. Owing
to its uniqueness its value shot up to $10M owing to its post testing phase.
3. Mr. Snark was planning to purchase the LPT machines in order to speed up the production of the
Lobanza capsule, he conducted a market research to test the viability of this new project and to his
good fortune discovered that LPT machines would reduce the production cost by one-third and
increase the production by roughly 10 times.by this time HPC Ltd. was yet to come up with the logo
of its capsule for its advertisement. HPC Ltd. Purchased the aforesaid machine from Mr. Steve on
4th June 2017, after successfully all necessary compliances and due diligence. Owing to its
efficiency and to broaden his market reach and to increase his turn over to unprecedented figure he
decided to purchase few more LPT machines.
4. On 14th August 2017, HPC Ltd. Entered into an agreement with Steve Rovers regarding the
purchase of three more LPT machines for Lobanza Capsules production. Mr Steve agreed to the
terms of contract ande informed Mr. Snark that he would ensure the delivery of the machines in five
days once the machines are carefully assembled and repaired. However, in the interest of
professional ethics Mr Snark was requested by one of the colleague of Mr.Steve to conduct a routine
check on the machines in the coming few days. Mr. Snark, evidently amused by the preposterous
idea of doubting his friend, nevertheless nodded and smiled. HPC Ltd. eventually received the
delivery of the machines after nine days, assembled as per the agreed terms, and without showing
any apprehensions as to the delay in delivery, promptly made the complete payment of $30 Million
Dollars. Furthermore, HPC Ltd. also used one of its LPT Machines to manufacture other medicines
with different chemical compositions, apart from Lobanza.
Page 7 of 30
5. On 1st September Mr Frank Thunderwood, a rival of Mr. steve managed to get an article published
in the widely distributed journal of Asnardian institute of technology about the infirmities in
machine and this article also hampered the their quarterly turnovers. A research was also conducted
on lobanza capsule by one of the professor of University of Hemsworth , (the same university from
which Mr.Snark and Mr.Steve were graduated) telling about the effects of lobanza on humans. The
report stated that adults who are prone to narcotics substances are prescribed these capsules on
reiteration that these have no side effects but this is not the case, a person having allergy of any type
should not consume this capsule as this may cause severe neurological damage. Apprehnsions to
this article were raised but nothing could disprove professors assertion.
6. Mr Pablo Escocar, a janitor in government school, was prone to drug and smoking, saw an
advertisement about lobanza. The banner contained a blurry image of the Lobanza stating that to
purchase lobana you may contact, “Riverrum Medicos situated on border of state of Westeros and
other States”. Mr Pablo purchased the medicine and started consuming it but could not refrain from
smoking.
7. . A week prior to the sale of 3 LPTs on 14 August 2017, Mr. Steve received a detailed report from
the auditor categorically highlighting certain patent defects in those machines. Faced with extreme
pressure to meet the rising demand, Mr. Steve ignored the report and failed to disclose that
information to HPC Ltd. Consequently, on certain occasions, HPC nd Ltd. encountered frequent
problems with few LPT Machines, and unfortunately on 22 October 2017 all machines
malfunctioned. Mr. Tony appointed Mr. Steve and his tech- team for the repair. Few instances of
illness were reported amongst a few people but no serious medical catastrophe had occurred.
8. Unfortunately Mr Pablo died 8 days after consuming the lobanza, his pregnant wife went into
mental trauma as he was sole bread earner of family. Meanwhile Mr. Snark aggrieved by such a
huge loss in production accused Mr Rover of fraud and initiated civil proceedings against him for
breach of contract before Drone District Court, and sought to avail Doctrine of Restitution and
prayed for compensation of $100M, Furthermore through certain local report Mr Snark found about
death of the janitor and asked his wife to join the suit against Mr.Rovers to which she agreed to, due
to the dwindiling financial situation. Owing to the lack of pecuniary jurisdiction of the Hon’ble
District Court, Court on 22 June, 2018 transferred the case to the High Court of Westeros upon a
motion by both the parties. The Hon’ble High Court of Westeros dismissed the suit on the grounds
that it lacked sufficient merit.
Hence , the Case is now before this Hon”ble Court
Page 8 of 30
SUMMARY OF ARGUMENT
1. Whether fraud was committed by Mr Steve Rovers under Section 17 of the Indian Contract
Act 1872?
Fraud has not been committed by Mr Steve Rovers in the contemporary landscape. There is no fraud
on behalf of Mr Rovers as according to section 17 of the Asnardian Contract act 1872.
1. No intent to deceive –as to constitute Fraud there must have been to intention to deceive on
behalf of the respondents which solely was absent in the present case
2. Mere silence is no fraud- mere silence as to the facts in no way is ground for fraud ,here Mr
Steve’s silence could not become a ground for fraud.
3. No duty to speak on behalf of Mr. Steve Rovers
2. Whether Mr Steve Rover, being the supplier and service provider of LPT Machine, is liable to
compensate Mr. Tony Snark for breach of contract?
Mr Steve would in no way be liable to Mr Snark for the breach of contract.As a breach of contract
occurs when a party to a contract fails to perform his part of thecontract. Here in our case Mr. rovers had
in no way failed to perform his part of contract and also here it is put forth that, [a] time was not the
‘essence of the contract’ in the instant case, no fraud
3. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony Snark?
The contract dated 14 Aug 2017 was not voidable at the option of Mr. Tony Snark. As for a contract
to become voidable there must be of the following elements present:-
1.Coercion
2. undue influence
3. fraud
4. misrepresentation
Page 9 of 30
But in the above case , no such element is present, hence the contract would not be voidable.
4. Whether Mr Steve Rovers is liable to compensate Amy Santiago for death of her husband and
her consequent loss of livelihood?
Here Mr Rover in no way would be liable for the death of husband of Amy Santiago and consequently
would not be liable for her loss of livelihood. As according to the concept of privity of contract, only a
party contract may sue for damages and Amy Santiago was not a party to contract.
Page 10 of 30
STATEMENT OF ISSUES
The following questions have been framed by the Hon’ble Court for the final hearing of the matter:
1. Whether fraud was committed by Mr Steve Rovers under Section 17 of the Indian Contract Act
1872?
4. Whether Mr Steve Rovers is liable to compensate being Amy Santiago for death of her husband and
her consequent loss livelihood?
Page 11 of 30
ARGUMENTS ADVANCED
Is is most humbly submitted before this Hon’ble Court that fraud has not been committed by Mr Steve
Rovers in the contemporary landscape. There is no fraud on behalf of Mr Rovers as according to section 17
of the Asnardian Contract act 1872
1. THERE HAS BEEN NO FRAUD ON BEHALF OF MR. STEVE ROVER
“Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party
to a contract, or with his connivance, or by his agent with intent to deceive another party thereto or
his agent, or to induce him to enter into the contract.
Here according to this definition, to constitute Fraud there must be an intention to deceive but there was
no intention to deceive on behalf of Mr steve.
1.1 NO INTENT TO DECEIVE
As according to section 17(1) of Asnardian Contract Act 1872,to constitute a fraud there must be an
intention to deceive which clearly was not there in the present circumstances
In the case of “Derry v. Peek”1 as stated by Lord Harshell
“fraud is proved when it is shown that a false representation has been made”
Here in the present case there no false representation could be proved on behalf of Mr Steve
Mere non-disclosure some immaterial fact does not give a right to recission unless it is further found
that consent has been obtained by false representation.2Here Mr Steve in no way obtained the consent
of Mr Steve by false representation, so in no way he will be liable for fraud.
In an American case of Laidlaw v. Organ 3in a contract for sale of tobaccoa party to a contract knew
but the other party didn’t knew that peace had been made between Great Britain and the United States;
but on the party having knowledge didn’t reveal it to the other party of the changes in price, the
Supreme Court of USA held that there was nothing fraudulent in his silence.
1
(1889) 14 App Cas 337.
2
Bhagwani BAi v. Life Insurance Cooperation of India, AIR 1984 MP 126.
3
15 US, (2 Wheat) 178, (1817)
Page 12 of 30
When there no misrepresentation has been made nor did the plantiff act on any impression
produce by any conduct on the part of seller and also he has a duty to make investigation before he
signed the contract. In such a case there can be no fraud.4
1.2 MERE SILENCE IS NO FRAUD
Mere silence is no fraud, as according to illustration (a) of section 17 of the Asnardian Contract act
1872 says
A sells by an auction, to B, a horse which A knows to be unsound A says nothing to B about the
horse’s unsoundness. This is not fraud in A.
Here in our case though Mr. Rovers was aware of patent defects in the LPT machines but his silence
to this fact would in no way amount to fraud on his behalf.
Again according to illustration(d) of section 17 of the Asnardian Contract act 1872 says
A and B, being traders, enter upon a contract. A has private information of change in price which
could affect B’s willingness to proceed with the contract. A is not bound to B.
Similarly here Mr. Steve is not bound to inform Mr. Snark of the patent defects in machine.
Silence to the fact is not per se fraud unless there is a duty to speak, or unless it is equivalent to
speak5. There is no general duty to disclose facts which are or might be equally within the means of
knowledge of both parties.6
In Bell v. Lever Bros Ltd.7a company agreed to pay large compensation to two employees, the
subsidiary company director, whose service were being dispensed with. After paying the money the
company discover that director had committed breach of duty, which could have justified their
dismissal without compensation. The House of Lords held that director had not these breaches in
mind, and were under no duty to disclose them.
Similarly in our case Mr. Steve had no duty of disclosing the fact of material defects in LPT
machines
In the case of Sri Krishnan v. krurkshetrauniversity8 here a candidate who has full knowledge of the fact
that he was short of attendance but he did not mention in exam form. This was held to be no fraud, it being
4
Keats v. Earl of Cadogen(1851) 10 CB 591.
5
Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933. ARSP Subramanian Chetty v. Official
Assignee of Madras, AIR 1931 Mad 603. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
6
Bell v. Lever Bros, (1932) AC 161,
7
8
(1976) 1 SCC 311.
Page 13 of 30
the duty of university to scrutinize form and to call for the verification or information in case of doubt. The
university having failed to do so, was stopped from cancelling the examination of the candidate.
The principle here is that
A contrary party is under no obligation to disclose the whole truth to the other party or to give the whole
information to other party affecting the subject matter of the contract.
Hence here in the present instance Mr Rovers was under no obligation to disclose to Mr Snark the fact of the
patent defects in machine. Moreover it was the duty of Mr Snark to enquire about the infirmities or defects
in machine.
The principle that there is no duty to disclose in every contract appear to rest on the view that each party
must obtain the necessary information for himself and cannot expect it to be, supplied by the other , even
when that other is aware of his ignorance and could easily put him to right.
In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.9 Slade J said;
“The general principle that there is no obligation to speak within in the context of negotiation, for an
ordinary commercial contract is one of the foundation of one of our law of contract and must have been the
basis of many decision over the year. There are countless cases in which one party to a contract has in
course of negotiation failed to disclose a fact known to him which the other party would have regarded as
highly material, if it had been revealed. However our law leaves that other party entirely without a remedy.”
Similarly in our case following Slade J there was no obligation on Mr Rovers for disclosing the fact of
patent defects in LPT machines, though Mr.Snark regard as highly material, if it had been revealed. Mr
Snark would be without any remedy.
In the case of Horsefall v. Thomas10court found that there was no evidence to support the claim of the
plaintiff that the defendant had acted fraudulently. With regards to the inspection, the court found it
impossible that the plaintiff hides a defect from the defendant, as the defendant had not considered looking
at this at the time of inspection. Moreover, the court found that the letter that was later sent by the defendant
did not contain any fraudulent statement as the defendant believed the statement was correct and accurate.
In our case also there is no evidence to support the claim of Mr Snark that Mr Steve acted fraudulently. It
was impossible to hide a patent defect if he would inspected the LPT machines once, which he didn’t abide
by. Hence it is in no way fraud on behalf of Mr Steve.
9
(1989) 2 All ER 952 at 1010
10
(1862) 1 H & C 90
Page 14 of 30
11
In the case of Nocton v. Lord Ashburton it was pointed out that a mere passive non -disclosure of the
truth, however deceptivein fact, does not amount to fraud.
Hence in our case also the non-disclosure of the truth of patent defects in the LPT machines would be no
fraud on behalf of the respondents.
2.1 .No breach of contract
It is submitted before this Hon’ble court that there has been no breach of contract in the present
case.As a breach of contract occurs when a party to a contract fails to perform his part of the 12
contract. Here in our case Mr. rovers had in no way failed to perform his part of contract and also
here it is put forth that, [a] time was not the ‘essence of the contract’ in the instant case, [2] no
fraud
. TIME IS NOT THE ‘ESSENCE OF THE CONTRACT’
Whether the time is of an ‘essence of the contract’ is a question of law and fact 13. Further, not
merely because of the specification of time, but a contract may be avoided only if it is intended
by the parties that time is of an ‘essence of the contract’ 14. Such intentions must be in the
language which is unambiguous15.It may also be inferred from the nature of property agreed to be
sold and conduct of the parties16. The time is not of an essence where the contract provides for
damages for delayed completion, or for extension of time17. Here though there was delay in the
delivery of LPT machines but nowhere in the contract it was signified that time would be the
essence of contract and also, the property is neither perishable nor there is any urgency shown by
Mr Snark regarding the delivery of the LPT machines.
Time of performance is of the essence of contract, any delay will render the contract voidable at
the option of other party. He may reject the performance and immediately sue for the breach. But
he may at his option accept the delay performance. If he does so he cannot afterward recover
11
(1914) AC 932 (HL)
12
BLACK’S LAW DICTIONARY 1315 (Ed. 9 2009)Error! Reference source not found..
13
Municipal Corpn. of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
14
Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
15
Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
16
Id
17
Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
Page 15 of 30
compensation for the delay.18Here Mr Snark had the option to not accept the contract and rescind
the contract when there was late delivery of LPT machines, but he accepted the delivery and
made the payment so in no way he now have the option of rejecting the contract on the basis of
late delivery.
ACT OR OMISSION OF PLANTIF HIMSELF
The plantiff may have suffered a loss through his voluntary act or omission, in such a case he
will not be entitled to damages.19Here Mr Snark suffered a loss due to his own voluntary
omission of getting the machines checks when HPC Ltd. encountered frequent problems with the
machine before on 22nd oct 2017 when all of them malfunctioned. So here he himself is at fault
of not performing his part of professional ethics so in no way he could claim for damages on the
basis of breach of contract.
Loss which is cause dbu plaintiff’s failure to fulfil his duty is not recoverable from the
defendant.20
A party to a contract cannot be in abetter position by reason of his own default than if he had
fulfilled his obligation. 21
In contractual terms, the party who has the right to terminate can elect to end the contract or to
affirm it and continue to perform it. They can wait for a time in order to make the decision, so
long as the delay does not cause any confusion. Once a decision is made, the effect of electing to
continue with the contract is that the right to terminate will no longer be available. 22 Similarly
here Mr Snark had the opportunity to avoid the contract when the machines were delivered after
9 days instead of 5 days, but he accepted the contract by accepting the machines and paying $30
million.23
Negligence is a breach of duty caused by the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affair would do, or do something which
a prudent and reasonable man would not do24
18
State of A.P v . Associated Engg. Enterprises, AIR 1990 AP 294. Bazpur Coop Sugar Factory Ltd. V. Surendra Mohan Agarwal, Air
1984 All 174.
19
Beoco Ltd. V. Alfa Laval Co. Ltd (1995) QB 137.
20
Roper v. Johnson (1873) LR 8 CP 167. Pilkington v. Wood, (1953) Ch 770.
21
Timblo Irmaos Ltd v. Jorge Anbibal Motos Sequeiia, (1977) 2 SCR 451.
22
1984 All 174. Sindh Biscuits Mfg. co. v. Delight Engg. Works, 1984 All Lj 964.
23
Moot proposition para 6.
2424
Blyth v. Birmingan Waterworks Co., (1856) 11 Ex 781.
Page 16 of 30
Moreover Mr Snark himself was negligent in conducting a routine check on the machines, as there were
25
frequent problems in the LPT machines , to which he negligently neglected and kept on producing the
Lobanza capsules. Until all the machines malfunctioned on 22nd Oct 2017. Moreover he was also asked by
one of the colleague of Mr Rovers to conduct on routine check on the machines in the coming few days,
which also he neglected. Here is one more point to be noted that as according to the terms of contract he
purchased the LPT machines for production of Lobanza capsules but he used one of the machines in
producing other medicines with different chemical composition.26which also proves his negligent behaviour.
Hence Mr Snark himself was negligent here and was just busy in increasing his profit.
In case of contract party having right to select or rescind the contract, selects the contract, it results in
waiving of his right to rescind and latter he cannot rescind.27
2.2 NO COMPENSATION AS NO BREACH OF CONTRACT
It is humbly submitted before this Hon’ble court that there has been no breach of contract so demand of
compensation on behalf of Mr Snark is pointless. As it is a established fact that to demand for compensation
the there must have been a non -abiding from the terms of contract resulting in breach of contract. The court
has to adjudge in every case reasonable compensation to which the plaintiff is entitled from the defendant
on breach of the contract. Such compensation has to be ascertained having regard to the conditions existing
on the date of the breach. There is no evidence that any loss was suffered by the plaintiff in consequence of
28
the default by the defendant. Compensation is provided for any damage which a person to
a contract sustains through the non-fulfilment of the contract, where he rightfully rescinds a contract29.Here
a Mr Snark in no way rescinded the contract on right time which was at the time when there was late
delivery of machines and also behaved negligently in knowing about the conditions of machine. Section 74
occurs in Chapter 6 of the Asnardian Contract Act 1872 which reads "Of the consequences
of breach of contract". It is in fact sandwiched between Sections 73 and 75 which deal
with compensation for loss or damage caused by breach of contract and compensation for damage which a
party may sustain through non-fulfillment of a contract after such party rightfully rescinds such. It is
important to note that like Sections 73and 75, compensation is payable for breach ofcontract under Section
74 only where damage or loss is caused by such breach.30
25
Moot proposition para12
26
Moot proposition para 6.
27
Abdur Rahman v. Nasir Ali Khan, AIR 1931 Lah 657.
28
Fateh Chand v. Balkishan Das, 1964 (1) SCR 515
29
State of Kerala And Ors. v. United Shippers And Dredgers Ltd AIR 1982 Ker 281
30
Kailash Nath Associates v. Delhi Development Authority (2015) 4 SCC 136.
Page 17 of 30
Loss which is caused by plantiff’s failure to fulfill his duty is not recoverable from the defendant. 31Similarly
here though some losss may have been caused to the Mr. Snark but it was due to his own fault. He didn’t got
the machines serviced periodically and was also negligent while taking in note of the patent defects in the
LPT machines.
Moreover a party cannot be in a better position by reason of his own default, than if he had fulfilled his
obligation.32the plaintiff here wants to be in a better position by taking advantage of his own mistake by
claiming damages of $100 million, which apparently is much more the actual loss and that to of his own
default.
In M Licha Setty & Sons Ltd v. Coffee Board in case it was held that the plaintiff must take all reasonable
steps to mitigate the loss and if he fails to do so he cannot claim such loss which could have been avoided.
The plaintiff is only required to act reasonably and whether he has done so or not is not a question of law but
a question of fact in each case. He must act reasonably not only in his own interest but also in the interest of
the defendant and lower the damages by acting reasonably in the matter33
Here Mr Snark should have taken reasonable steps of mitigating the loss by getting the machines regularly
checked, and taking note of the defects in machine beforehand only, which he failed to do so. Here he must
have acted reasonably and performed the contract with due diligence.
3. Mr.Steve rovers is not liable to compensate Amy Santiago for death of her husband
There is a Privity of contract
The rule of “privity of contract” which means that a stranger to contract cannot sue that is , only those
persons who are parties to the contract can enforce the same. A stranger to contract can’t enforce contract
even though the contract may have been entered into for his benefit. If the contract between A and B some
benefit have been conferred upon X, X cannot file a suit to enforce a contract because A and B are the only
party to contract and only the can sue each other and not the third party.
Here , as given in paragraph 6, the contract was between HPC Ltd and Mr. Steve, regarding the purchase of
three more LPT Machines for Lobanza Capsule’s production. Mr. Pablo or Ms. Amy Santiago was a
31
Roper v.Johnson (1873) LR 8 CP 167, Pilkington v. Wood, (1953) Ch 770, Edwards v. Society of Graphical and Allied Trade,
(1971) Ch 354.
32
Timbo Lrmaos Ltd. V. Jorge Anibal Motos Sequeira, (1977) 2 SCR 451
33
AIR (1981) SC 182
Page 18 of 30
stranger to contract, and stranger to contract can’t sue. It means that only party to contract can sue as in this
case HPC Ltd and Mr. Steve are only party to contract and only the same can sue each other and not any
other ,that is, Ms. Amy can’t sue, being a stranger to contract.
Jamna Das v Ram Autar
A borrowed Rs. 40,000 by executing a mortgage of her zamindari in favour of B. Subsequently she sold the
property to C for Rs 44,000 and allowed C, the purchaser, to retain Rs 40,000 of the price I order to redeem
the mortgage if he thought fit . B sued C for the recovery of the mortgage money, but he could not succeed
because he was no party to the agreement between A and B.
Advertising Bureau v C.T. Devaraj
The circus owner, placed order with the plaintiff-appellant for making advertisements for circus. The
plaintiff-advertiser did not make any agreement with the financer of circus. The advertiser was not a party to
the contract between the financer and the circus owner. There being no privity of contract between the
advertiser and the financer, the suit by the advertiser against the financer wass, therefore, dismissen.
Narayani Devi V. Tagore Commercial Corporation Ltd34
The rule that “privity of contract” is needed and a stranger to the contract cannot bring an action is
equally applicable in india as in England. Even though under the Indian Contract Act the definition of
consideration is wider than under the English law, yet the common law principle of privity of contract is
generally applicable in india, with the effect that only a party to the contract is entitled to enforced the same.
Raj Shipping Agencies v. M.V. Bunga Mas Tiga, 2001
In a suit for recovery of oil price, it was held, that there was no privity of contract between the plaintiff and
defendant vessel or its owner and in the absence of any existing right in the plaintiff against owner of the
vessel, maritime lien could not be claimed. There being no cause of action against defendant, plaint was
liable to be reject.
Continental and Eastern Agencies v Coal India Limited, 2003.
Where plaintiff an agent of Italian company had entered into contract of sale of machinery todefendant. As
such, privity of contract between plaintiff and defendant purchaser had flowed from the term of order itself
as it provided deduction of price by defendant and payment of commission to agent by defendant directly.
Plea by defendant that plaintiff had independent contract with the said Italian company for payment of
commission, and suit for recovery of commission against them was not maintainable, was not tenab
34
AIR 1973 Cal 401.
Page 19 of 30
National Insurance Co. Ltd. versus Yellamma & Anr35
Insurance Law— privity of contract—Motor Vehicles Act, 1988—Section 147—High Court held that
policy can be issued against issuance of cheque and liability commenced from date of issuance of cheque
and not from date of encashment, as no provision in law that consideration for policy should flow from
insured and not from third party, therefore, cancellation of policy for untenable reason was bad in law—
Whether, privity of contract came into being between appellant and second respondent for which
insurance policy can be enforced by respondent no 1 against appellant—Held, no privity of contract came
into being between appellant and second respondent and as such question of enforcing purported contract
of insurance not arise—Thus, when insured failed to pay premium promised, or when cheque issued by
him towards premium returned dishonoured by bank concerned insurer need not perform his part of
promise, therefore, corollary was that insured could not claim performance from insurer in such
situation—Interest of justice would be subserved if it was directed that awarded amount be paid by
appellant to first respondent with liberty to recover same from second respondent by initiating appropriate
proceeding—Appeal allowed with directions.—
National Insurance Co. Ltd. versus Yellamma & Anr36
Insurance Law— privity of contract —Motor Vehicles Act, 1988—Section 147—High Court held that
policy can be issued against issuance of cheque and liability commenced from date of issuance of cheque
and not from date of encashment, as no provision in law that consideration for policy should flow from
insured and not from third party, therefore, cancellation of policy for untenable reason was bad in law—
Whether, privity of contract came into being between appellant and second respondent for which
insurance policy can be enforced by respondent no 1 against appellant—Held, no privity of contract came
into being between appellant and second respondent and as such question of enforcing
purported contract of insurance not arise—Thus, when insured failed to pay premium promised, or when
cheque issued by him towards premium returned dishonoured by bank concerned insurer need not perform
his part of promise, therefore, corollary was that insured could not claim performance from insurer in
such situation—Interest of justice would be subserved if it was directed that awarded amount be paid by
appellant to first respondent with liberty to recover same from second respondent by initiating appropriate
proceeding—Appeal allowed with directions.—
35
(2008) 7 SCC 526.
36
ID.
Page 20 of 30
MOHD. SERAJUDDIN ETC. Vs. STATE OF ORISSA37
Article 286(1) (b)Constitution of India, 1950, — Central Sales Tax Act , 1956 (Act), Section 5(2)—
contract by corporation with foreign buyers for sale of identical goods purchased by Corporation from
Appellant—Transaction taxed under Central Sales Tax Act —High Court held sales were not exempt from
Sales Tax—Impugned order challenged—No privity of contract between appellant and foreign buyer— of
privity contract is between corporation and foreign buyer— Appellant Act were in performance of its
obligation under contract with corporation—Sale were not in course of export—Exigible to Central Sales
Tax Act — contract between appellant and corporation were not entitle to claim exemption under Section
5(1) of Act—Appeals dismissed.
Death not caused by lobanza capsule
Death of Pablo was not the consequence of consumption of Lobanza capsule . as it is given in that “…..he
died after eight days of consumption of capsule”. This means that the death of the Pablo was not the
consequence of consumption of capsule. It can be that as he was addicted to drugs which may be the cause
of his death because there is nothing given that the death was caused by capsule.
SMT USHA versus STATE OF RAJASTHAN AND ORS
High Court of Rajasthan
Investigating Officer Mr. Pyare Lal, CO, Laxmangarh, Alwar is present in person alongwith case diary. He
has submitted investigation progress report, which is taken on record.
Learned Public Prosecutor submits that as per
P.M.R. and FSL report,death occurred due to respiratory arrest which is natural cause of death and the
injuries mentioned in P.M.R. are not sufficient to cause death in ordinary cause of nature.
He submits that there are many causes of respiratory arrest like COPD (bronchaetis, asthma, severe lundgs
disease, drugs carcfns), collapse of lungs
due to alecohalic intoxication, heavy smoking, dust pollution heavy metal disposition in lungs. He further
submits that respiratory arrest may be due to regergitation of vomit or fluid in unconscious condition. All
these causes can lead to respiratory arrest. He submits that Investigating Officer has interrogated the named
persons but their involvement has not been found. He further submitted that from investigation it is found
natural death therefore, negative final report is submitted before the court on 12.08.2015,
37
(1975) AIR 1564.
Page 21 of 30
In view38 of it, since negative final report has been already submitted on 12.08.2015 before the concerned
court, therefore, the misc. petition is dispmissed.
Jyothi Ademma Versus Plant Engineer, Nellore and Anoth39
 Workmen's Compensation Act (8 of 1923), Section 3(1) death of employee due to heart attack He was
suffering from heart disease His work did not involve any stress and strain Death is not due to acci-dent
arising out of and in the course of his employment Employer not liable to pay compensation
 Kedar Nath v State of M.P , 199140
Though there is no specific evidence as to the cause of death, the prosecution proceeded on the
presumption from the recovery of an empty cartridge seized from the side of the dead body that the
deceased should have been murdered by shooting. Apart from this conjecture there is no evidence how the
deceased met his end.
Facts: The appellant Baijnath was a licensee, owning a gun. His gun was seized and sent for examination to
the Ballistic Expert (PW-23) to examine whether the flattened lead pellets recovered from near the deadbody
couald have been fired by the gun of Baijnath. PW-23 opined that the said pellets could have been fired from
the gun of Baijnath.
4. THE CONTRACT DATED 14 AUG 2017 VOIDABLE AT THE OPTION OF MR. TONY
SNARK?
NO VOIDABILITY OF CONTRACT
It is most humbly submitted before this Hon’ble court that the contract dated 14 Aug 2017 was not
voidable at the option of Mr. Tony Snark. As a Voidable Contract is a valid contract which may be
either affirmed or rejected at the option of one of the parties. At most, one party to the contract
is bound. The unbound party may repudiate (reject) the contract, at which time the contract
becomes and also according to section 19 of the Asnardian contract Act 1872“When consent to an
agreement is caused by coercion, 1[* * *] fraud or misrepresentation, the agreement is a contract
voidable at the option of the party whose consent was so caused.” henceforth the consent to contract
has neither been obtained by fraud, coercion, undue influence or misrepresentation , which is proved
below:-
a. Coercion, according to section 15 of the Asnardian contract act

b. Undue Influence, section 16 of the Asnardian contract act
c. Fraud, section 17 of the Asnardian contract act
38
2004 (4) SC 2089.
39
2006 (6) SC 300.
40
AIR 1991 SC 1224.
Page 22 of 30
d. Misrepresentation, section 18 of the Asnardian contract act
However in the following case none of the above could be proven
4.1 NO COERCION
It is most humbly submitted before this Hon’ble court that there was no coercion on behalf of
Mr.Steve as according to section 15 of the Asnardian contract act 1872
“Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal
Code (XLV of 1860), or the unlawful detaining, or threatening to detain, any property, to the
prejudice of any person whatever, with the intention of causing any person to enter into an
agreement.”
From the definition itself it is evident that there was no Coercion on behalf of Mr Steve, so
coercion will not become a ground to render the contract voidable.
4.2 NO UNDUEINFLUENCE
It is most humbly submitted before this Hon’ble court that there was no undue influence on
behalf of Mr.Steve as according to section 16 of the Asnardian contract act 1872 :-
“A contract is said to be induced by “undue influence” where the relations subsisting between the
parties are such that one of the parties is in a position to dominate the will of the other and uses that
position to obtain an unfair advantage over the other”.
From the facts it is very evident that there had been no undue influence on behalf of Mr. Steve as for
undue influence there must be some relation between the parties in which one party would be in a position to
dominate the will of other, but in the present circumstances there was no such relation between Mr Steve
and Mr Snark, and also other party should take some unfair advantage of that position. Hence as both the
essentials of undue influence were absent so undue influence in way would become ground for voidability of
contract.
4.3 NO FRAUD, NO VOIDABILITY OF CONTRACT

It is most humbly submitted before this Hon’ble court that there was no fraud on behalf of
Mr.Steve in the present case as according to section 17 of the Asnardian contract act 1872 :-
“Fraud means and includes any of the following acts committed by a party to a contract, or with his
connivance, or by his agent with intent to deceive another party thereto or his agent, or to induce him to
enter into the contract”.
Page 23 of 30
Here as proved in the first issue itself that there was no fraud on behalf of Mr. Steve, moreover once
again going through section 17 of the Asnardian Contract Act 1872 to constitute fraud there must be an act
done with an intent to deceive other party to induce that other party to enter into a contract. Here Mr. Steve
in no way committed any act to deceive Mr. Snark .
However mere silence to the fact of patent defects in the machine would in no way amount to fraud as,
silence to the fact is not per se fraud unless there is a duty to speak, or unless it is equivalent to speak.41
In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.42 Slade J said;
“The general principle that there is no obligation to speak within in the context of negotiation, for an
ordinary commercial contract is one of the foundation of one of our law of contract and must have been the
basis of many decision over the year. There are countless cases in which one party to a contract has in
course of negotiation failed to disclose a fact known to him which the other party would have regarded as
highly material, if it had been revealed. However our law leaves that other party entirely without a remedy.”
Similarly in our case following Slade J there was no obligation on Mr Rovers for disclosing the fact of
patent defects in LPT machines, though Mr.Snark regard as highly material, if it had been revealed. Mr
Snark would be without any remedy.
In Bell v. Lever Bros Ltd.43a company agreed to pay large compensation to two employees, the subsidiary
company director, whose service were being dispensed with. After paying the money the company discover
that director had committed breach of duty, which could have justified their dismissal without compensation.
The House of Lords held that director had not these breaches in mind, and were under no duty to disclose
them.
Similarly in our case Mr. Steve had no duty of disclosing the fact of material defects in LPT machines.
Hence Fraud in the contemporary landscape would become no ground for Fraud on behalf of Mr.Rover.
5. It is most humbly submitted before this Hon’ble court that there has been no misrepresentation on
behalf of Mr. Steve in the present case as according to section 18 of the Asnardian contract act 1872
:-
“Misrepresentation means and includes— (1) the positive assertion, in a manner not
warranted by the information of the person making it, of that which is not true, though he
believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an
advantage to the person committing it, or any one claiming under him; by misleading another
41
Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933. ARSP Subramanian Chetty v. Official
Assignee of Madras, AIR 1931 Mad 603. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
42
(1989) 2 All ER 952 at 1010
43
Page 24 of 30
to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however
innocently, a party to an agreement, to make a mistake as to the substance of the thing which
is the subject of the agreement.”
Hence according to section 18 of the Asnardian act 1872 to prove misrepresentation there
must be some act done with an intent to deceive, but here there has been no such act on
behalf Mr. Steve, therefore fraud would be no ground for voidability of contract.
3.4 DELAY IN ITSELF WILL NOT 44RENDER THE CONTRACT VOIDABLE

To prove voidable contract it is necessary to avoid the contract at the right time, “you cannot
both eat your cake and return your cake”. As here Mr. Tony Snark should have avoid the
contract when machine were nine days instead of five days but there after he accept the
machine and now he wants to avoid the contract.
Section 55 of the Asnardian contract act 1872, declare that “If it was not the intention of the
parties that time should be the essence of the contract the contract does not become voidable
by the failure to do such thing at or before the specified time.” It means that the contending
party have to accept performance have to accept performance even if delayed. He does not
have a right to reject.
In the case of A.P.SEB v. Patel & Patel45 there was some delay on part of the contractor to
supply to state electric board certain goods by the prescribed date and the court, finding no
evidence whatsoever of the parties intention to regard time as of essence, held that board was
bound to accept delay deliveries.
Whether the time is of an ‘essence of the contract’ is a question of law and fact 46. Further, not
merely because of the specification of time, but a contract may be avoided only if it is intended
by the parties that time is of an ‘essence of the contract’47. Such intentions must be in the
language which is unambiguous48. It may also be inferred from the nature of property agreed to
be sold and conduct of the parties49. The time is not of an essence where the contract provides
for damages for delayed completion, or for extension of time50. Here though there was delay in
the delivery of LPT machines but nowhere in the contract it was signified that time would be the
essence of contract and also, the property is neither perishable nor there is any urgency shown by
Mr Snark regarding the delivery of the LPT machines.
44
AIR 1977 AP 172, K.C. Skaria v. Govt of State of Kerela (2006) 2 SCC 285
45
46
Municipal Corpn. of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
47
Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
48
Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
49
Id
50
Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
Page 25 of 30
Time of performance is of the essence of contract, any delay will render the contract voidable at
the option of other party. He may reject the performance and immediately sue for the breach. But
he may at his option accept the delay performance. If he does so he cannot afterward recover
compensation for the delay.51Here Mr Snark had the option to not accept the contract and rescind
the contract when there was late delivery of LPT machines, but he accepted the delivery and
made the payment so in no way he now have the option of rejecting the contract on the basis of
late delivery.
Delay by itself does not put an end to the contract.52
Here apparently mere late delivery of the LPT machines on behalf of Mr. Steve would in no
way would become the ground for voidability of contract.
....
51
1984 All 174.
525252
Jain Mills and Electrical stores v. State of Orissa, AIR 1991 Ori 117.
Page 26 of 30
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, counsel for the
Respondents humbly pray that this Hon’ble Supreme court of Democratic State of Asnard , may be pleased
to adjudge and declare that:
1. Whether fraud was committed by Mr Steve Rovers under Section 17 of the Indian Contract Act
1872?
4. Whether Mr Steve Rovers is liable to compensate being Amy Santiago for death of her husband and
her consequent loss livelihood?
And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the interests of justice,
equity and good conscience.
All of which is humbly prayed.
Page 27 of 30
Page 28 of 30
Page 29 of 30
Page 30 of 30
-PRAYER - -MEMORIAL ON BEHALF OF
RESPONDENT-

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-3rd JAMIA MILLIA ISLAMIA INTER FACULTY MOOT COURT COMPETITION, 2017-

JAMIA MILLIA ISLAMIA

FACULTY OFLAW(INTRA) MOOT COURT COMPETITION, 2017

THE HON’BLE SUPREME COURT OF DEMOCRATIC STATE OF

WRIT PETITION NO.____/2018

[UnderArticle 133 of Constitution of Democratic State Of

HPC Ltd., & Amy Santiago……….Petitioner

MEMORIAL ON BEHALF OF THE RESPONDENT

SUMMARY OF THE THE ARGUMENT…………………………………………………...

A.I.R.All India Reporter

SCC Supreme Court Cases

SCR Supreme Court Reports

U.O.I Union of India

5. Horsefall v. Thomas (1862) 1 H & C 90

BOOKS, JOURNALS, ARTICLES:

 Rattan Lal, Law of torts, (4th Ed. Reprint 2015)

The Constitution of India, 1950

Black law dictionary, end,2014

contract act 1872 Indian

her consequent loss of livelihood?

1. THERE HAS BEEN NO FRAUD ON BEHALF OF MR. STEVE ROVER

1.1 NO INTENT TO DECEIVE

In the case of “Derry v. Peek”1 as stated by Lord Harshell

1.2 MERE SILENCE IS NO FRAUD

The principle here is that

In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.9 Slade J said;

ACT OR OMISSION OF PLANTIF HIMSELF

2.2 NO COMPENSATION AS NO BREACH OF CONTRACT

There is a Privity of contract

Jamna Das v Ram Autar

Advertising Bureau v C.T. Devaraj

Narayani Devi V. Tagore Commercial Corporation Ltd34

Raj Shipping Agencies v. M.V. Bunga Mas Tiga, 2001

Continental and Eastern Agencies v Coal India Limited, 2003.

National Insurance Co. Ltd. versus Yellamma &amp; Anr35

National Insurance Co. Ltd. versus Yellamma &amp; Anr36

MOHD. SERAJUDDIN ETC. Vs. STATE OF ORISSA37

SMT USHA versus STATE OF RAJASTHAN AND ORS

High Court of Rajasthan

Learned Public Prosecutor submits that as per

Jyothi Ademma Versus Plant Engineer, Nellore and Anoth39

a. Coercion, according to section 15 of the Asnardian contract act

d. Misrepresentation, section 18 of the Asnardian contract act

However in the following case none of the above could be proven

4.3 NO FRAUD, NO VOIDABILITY OF CONTRACT

In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.42 Slade J said;

3.4 DELAY IN ITSELF WILL NOT 44RENDER THE CONTRACT VOIDABLE

All of which is humbly prayed.

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