1​st​ Super Intra Moot Court Competition 2015

TABLE OF CONTENTS

List of Abbreviations……………………………………………………………………………...
Index of Authorities………………………………………………………………………………
Statement of Jurisdiction………………………………………………………………………….
Statements of Facts……………………………………………………………………………..
Settlement of Issues…………………………………………………………………………….
Summary of Arguments………………………………………………………………………..
Arguments Advanced…………………………………………………………………………….

1. WHETHER THE PETITION FILED BY THE PLAINTIFF IS MAINTAINABLE UNDER SECTION 9

OF THE CODE OF CIVIL PROCEDURE, 1908? …………….
2. WHETHER THE FRANCHISE AGREEMENT MEANS 3 MILES IN A DIRECT RADIUS FROM
THIS RESTAURANT? ……………………………………………..
3. WHETHER THE RIGHT OF FIRST REFUSAL OF BILLU IS VIOLATED BY THE WKB INDIA INC.
OR NOT? ………………………………………………………….

PRAYER…………………………………………………………………………………….

Page | 1
 1​st​ Super Intra Moot Court Competition 2015

LIST OF ABBREVIATIONS

& And
AIR All India Reporter
Ors. Others
SCC Supreme Court Cases
SCR Supreme Court Records
Art. Article
Vol. Volume
Edn. Edition
v. Versus
Govt. Government
Hon’ble Honorable
i.e. That is
SC Supreme Court

Page | 2
 1​st​ Super Intra Moot Court Competition 2015

INDEX OF AUTHORITIES

STATUTES

1. Indian Contract Act, 1872.

2. Code of Civil Procedure, 1908.

CASES REFERRED AND CITED

1. Dwarka Prasad Agarwal and another v. Ramesh Chandra Agarwala and other AIR 2003
SC 2696
2. Amina Beevi v. Thachi​ AIR 2011 SC 244
3. Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd.​ AIR 2011 SC 3507
4. MP Sugar Mills v​ ​. State of Uttar Pradesh AIR 1979 SC 621.

BOOKS REFERRED AND CITED

Singh Avtar, ​Contract and Specific Relief​, [Eastern Book Company, Lucknow, 11​th​ Edn., 2013].

REPORTS
Law Commission of India, 108​th​ Report on Promissory Estoppel, 1984 (December, 1984).

Page | 3
 1​st​ Super Intra Moot Court Competition 2015

STATEMENT OF JURISDICTION

The Petitioner have approached the Honorable Court of District and Session Court, Lucknow
under Section 9 of Code of civil procedure 1908 among the parties to the dispute concerning
restraint of trade being implemented on the agreement between the parties to the contract.

Page | 4
 1​st​ Super Intra Moot Court Competition 2015

STATEMENT OF FACT
For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are
summarized as follows:

1. Billu is a franchise who owns a WKB at Lucknow. His franchise agreement with WKB
India, Inc. after several negotiations provides in part: “WKB India, Inc. will not license a
WKB franchise within 3 miles of Billu’s restaurant.
2. WKB with a wish to expand its market in the vicinity announces to award a franchise to
Dilshad to build up a WKB restaurant down the road from Billu’s restaurant.
3. Dilshad’s restaurant in a direct line is 2.5 miles away from that of Billu. If a customer is
to drive through kaccharasta route from Billu’s restaurant to Dilshad’s, it distance is
approximately 3.1 miles
4. Billu being upset writes to the WKB insisting that franchise agreement means 3 miles in
a direct radius from his restaurant.
5. WKB replies by saying “3 miles “ by road, Further by showing a copy of the franchise
brochure which was also sent to Billu which stated that: “Every franchise is protected by
our ‘3 mile guarantee ’. A customer would have to drive at least three miles away from
your Restaurant before they can find another Waqas Ki Biryani.”
6. Billu also has a letter that WKB India, Inc. sent him just a week before he signed his
franchise agreement. The letter states, in part:
7. “If you sign a franchise agreement with us, we will give you a right of first refusal on any
new franchises within 10 miles of your store.”
8. Without giving first opportunity to Billu for acquiring it WKB awarded a franchise to
Dilshad.

Billu has instituted a lawsuit to enjoin WKB India, Inc. from granting the franchise to Dilshad
and to get a declaratory judgment that he has a 10 mile right of first refusal on future franchises.

Page | 5
 1​st​ Super Intra Moot Court Competition 2015

STATEMENT OF ISSUES
1. Whether the petition filed by the plaintiff is maintainable under section 9 of the Code of
Civil Procedure, 1908?
2. Whether the franchise agreement means 3 miles in a direct radius from this restaurant?
3. Whether the right of first refusal of Billu is violated by the WKB India Inc.?

Page | 6
 1​st​ Super Intra Moot Court Competition 2015

SUMMARY OF ARGUMENTS

Page | 7
1​st​ Super Intra Moot Court Competition 2015

SUMMARY OF ARGUMENTS

Page | 8
 1​st​ Super Intra Moot Court Competition 2015

ARGUMENTS ADVANCED

Page | 9
 1​st​ Super Intra Moot Court Competition 2015

ARGUMENTS ADVANCED

1. ISSUE 1: ​Whether the petition filed by the plaintiff is maintainable under

Section 9 of the Code of Civil Procedure, 1908?

It is humbly submitted to the kind concern of this court that the civil right of the plaintiff has
been violated and the plaintiff has approached the court on the violation of the civil right i.e. the
breach of contract.

The section 9 of the Code of Civil Procedure Act, 1908 states that:

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.

The Section 9 means that every person has a right to institute a suit which is of a civil nature
and the civil court has jurisdiction to try all the suits of a civil nature.

1
In the case of ​Dwarka Prasad Agarwal and another v. Ramesh Chandra Agarwala and other
the Supreme Court held t​ hat the normal rule of law is that Civil Courts have jurisdiction to try all
suits of civil nature except those of which cognizance by them is either ​expressly or impliedly
excluded as provided under Section 9 of the ​Code of Civil Procedure but such exclusion is not
readily inferred and t​ he presumption to be drawn must be in favor of the existence rather than
exclusion of jurisdiction of the Civil Courts to try civil suit. In this case, the S.C. held that where
the rival claims of the parties were as to whether one party had illegally been dispossessed by the
other, such rival claims of illegal dispossession were civil disputes and a civil suit was
maintainable.

1
​AIR ​2003 ​SC 2696
Page | 10
 1​st​ Super Intra Moot Court Competition 2015

2
In another case of ​Amina Beevi v. Thachi a suit was filed by a tenant for recovery of
possession. The Court found that such suit was neither expressly nor impliedly barred by Kerala
Land Reforms Act, 1964. It was therefore held that the civil court would have jurisdiction to
entertain the suit.

Another suit was filed for the enforcement of a mortgage by sale in the case of ​Booz Allen and
3
Hamilton Inc. v. SBI Home Finance Ltd.,​ ​it was held to be enforcement of a right ​in rem. The
suit was to be held by a Civil Court and not by the arbitral tribunal. Reference to arbitration was
not tenable.

It is therefore submitted for the perusal of this court that the petition filed by the petitioner is
maintainable under Section 9 of the CPC Act, 1908 as the terms and conditions of the agreement
between the contracting parties were violated and therefore the petition of the plaintiff is
maintainable.

2
​AIR 2011 SC 244
3
​AIR 2011 SC 3507
Page | 11
 1​st​ Super Intra Moot Court Competition 2015

ISSUE 2: Whether the franchise agreement means 3 miles in a direct radius from
this restaurant?

2.1 It is humbly submitted to the honorable court that according to the factsheet, the agreement
which Billu signed states that WKB India, Inc. will not license a WKB franchise within 3 miles
of Billu’s restaurant and the brochure which they provided also mentioned that every franchise
will be protected with 3 mile guarantee but the agreement did not mean that 3 miles by road as it
was not mentioned anywhere in the agreement. As per the factsheet Dilshad restaurant is 2.5
miles from direct radius which is clearly result in breach of contract.
“A breach of contract occurs when a party to renounce his liability under it or by his own act
makes it impossible that he should perform his obligations under it or totally or partially fails to
4
perform such obligations.”

2.2 According to section 39 of Indian Contract Act 1872 “when a party to a contract has refused
to perform, or disabled himself from performing, his promise in his entirety, the promise may put
to an end to the contract, Unless he has signified by words or conduct , has occupations in its
continuance” which means when a party thereto renounce to his liability under it ,or by his own
act makes it impossible that he should perform his obligations under it or totally or partially fails
to perform such obligations. “The failure to perform or renunciation may take place when the
time for performance has arrived or even before that”.

4
​This definition of breach appears in Associated Cinemas of America, Inc v World Amusement Co, (1937) 201
Minn 94 (Minnesota SC)
Page | 12
 1​st​ Super Intra Moot Court Competition 2015

ISSUE 3: Whether the right of first refusal of Billu is violated by the WKB India
Inc. or not?

It is humbly submitted to the honorable court that, according to the factsheet, the letter which
was received by Billu just a week before he signed the franchise agreement clearly said that if
Billu will sign the agreement then he would be awarded with a right of first refusal on any new
franchise within 10 miles of his store but violating which WKB has announced and awarded a
new franchise to Dilshad which was 2.5 miles away from Billu’s restaurant. As per the factsheet
WKB has given him a proposal which was accepted by Billu impliedly as he did not rejected the
proposal. The doctrine of estoppel applies to the present case and the defendant is not entitled to
go back upon it.

Under the Indian Contract Act, 1872, the term ‘contract’ has been defined as an agreement
5
enforceable by law in s. 2(h) . Under s. 2(e), every promise is an agreement. But, unless the
agreement is supported by ‘consideration’ it will not, ordinarily, be enforceable by law.

S. 2(d) defines ‘consideration’ as follows:

When, at the desire of the promisor, the promisee or any other person has done or abstained
from doing, or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise.

Hence, when a person makes a promise, unless the promisee does or promises to do something,
at the desire of the promisor, the promise would be without consideration and the promise cannot
6
be enforced in a court of law.

5
​The​ ​Indian Contract Act, 1972 (Act 9 of 1872)
6
​Law Commission of India, 108​th​ Report on Promissory Estoppel, 1984 (December, 1984).
Page | 13
 1​st​ Super Intra Moot Court Competition 2015

7
The doctrine has been expressed by a bench of two judges of the Supreme Court of India as
follows:

“Where one party has by his words or conduct made to the other a clear and unequivocal promise
which is intended to create legal relationship to arise in the future, knowing or intending that it
would be acted upon by the other party top whom the promise is made and it is in fact so acted
upon by the other party, the promise would be binding on the party making it and he would not
be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to
the dealings which have taken place between the parties, and this would be so irrespective
whether there is any pre-existing relationship between the parties or not.”

Thus the plaintiff has the right of first refusal to the WKB’s move of giving Dilshad a new
franchise within 10 miles of Billus’s radius.

7
​MP Sugar Mills ​v​. State of Uttar Pradesh AIR 1979 SC 621
Page | 14
 1​st​ Super Intra Moot Court Competition 2015

PRAYER

In light of the facts stated, issues raised, authorities cited and arguments advanced May this
Hon’ble Authority is pleased to:

1. Allow the application.

Adjudge and declare that:

Firstly,​ the ​petition filed by the plaintiff is maintainable under Section 9 of the Code of Civil
Procedure, 1908​.

Secondly​, the franchise agreement means 3 miles in a direct radius from this restaurant and
violation of the terms and condition of the contract should be executed by the Hon’ble court.

Thirdly,​ the right of first refusal of Billu is violated by the WKB India Inc.

AND/OR

Pass any other order that it deems fit in the interest of justice, equity and good conscience.

All of which is most humbly prayed.

PLACE: LUCKNOW COUNSELS FOR THE PETITIONER

Page | 15
 1​st​ Super Intra Moot Court Competition 2015

DATE: OCTOBER 28, 2015

Page | 16