Team Code:44

Jamia Millia Islamia

3rd Faculty of Law (Intra) Moot Court Competition

2018-19

BEFORE THE HON’BLE

SUPREME COURT OF
ASNARD

Civil suit No.1525 of 2018

(Under Article 136 of the Constitution of Asnard)

In the Matter of

HEALING HAND PHARMACEUTICAL CO. LTD.………………… Appellant 1

&

Amy Santiago……………………………………………………… Appellant2

Vs.

Steve Rovers…………………………………………………………… Respondent

Memorandum on behalf of Respondents,

Counsels for the Respondents.

1
 TABLE OF CONTENTS

Referred in

Table of Contents………...……………………………………………………… 2-3

List of Abbreviations.............................................................................................. 3
Index of Authorities............................................................................................... 4-5
 Table of Cases.........................................
 Statutes Referred.....................................
 Books Referred........................................
 Journals and Reports................................

Statement of Jurisdiction...................................................................................... 6

Statement of Facts............................................................................................... 7-8

Statement of Issues............................................................................................... 9

Summary of Arguments.........................................................................................10-12

Arguments advanced............................................................................................. 13-21

I. Whether Fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act,1872?
A. THE CONTRACT IS NOT VOIDABLE BY VIRTUE OF FRAUD SINCE
APPELLANT FAILED TO EXERCISE DUE DILIGENCE TO DISCOVER
THE FACT.
II. Whether the contract dated 14th August,2017 voidable at the option of Mr. Tony
Snark ?
III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her
husband and her consequent loss of livelihood ?
A. THE DEFENDANT DID NOT OWE THE “THE DUTY OF CARE”.

B. THERE WAS NO BREACH OF DUTY BY STEVE ROVERS.

2
 C. THE CHAIN OF EVENTS WAS BROKEN.

IV. Whether Mr. Steve Rovers, being the Supplier and Service Provider of LPT
Machines, is liable to compensate Mr. Tony Snark for breach of Contract?
A. CONDUCT OF PLAINTIFF AMOUNTS TO ACCEPTANCE.

Prayer……………………………………………………………………………. 22

LIST OF ABBREVIATIONS

AIR All India Reporter,

V. Versus

S.C Supreme Court

HON’BLE Honorable

GOVT. Government

SCC Supreme Court Cases

SCR Supreme Court Reports

LR Law Reports

HL House Of Lords

3
 INDEX OF AUTHORITIES

TABLE OF CASES

 Derry v. Peek, (1889) LR 14 AC 337

 Gowrishankar v. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310:AIR 1996 SC
2202
 Shri Krishnan v. Kurukshetra University,(1976) 1 SCC 311: AIR 1976 SC 376.
 Haji Ahmad Yarkhan v. Abdul Gani Khan AIR 1937
 Nocton v. Lord Ashburton (1914) AC 932 (HL).
 State of Andhra Pradesh v. Associated Engg Enterprises, AIR 1990 AP 294
 Jain Mills and Electrical stores v. State of Orissa, AIR 1991
 Krishna Wanti v LIC, AIR 2000 Del 63
 L.Baba v.Madras UniversityAIR 1998 Mad 137
 Manirajan Pillai v K.K Karunakaran Nair, AIR 2011 Ker 55
 Kamal Kant Paliwal v.Prakash Devi Paliwal, AIR 1976 Raj 79
 Candlewood navigation Corp ltd v Mitsui O.S.K lines ltd
 Huri alias Alim Khatun v. Roshan Khudabux, AIR 1923 Sind 5 at 14(FB).
 Jackson v. Chrysler 1978, R.T.R. 474.
 Ward v. Hobbes.

 White v. Lodge(1993) 4 All E.R 299 (K.B).

 Spartan steel & Alloys ltd v Martin & co ltd, (1973) 2Eng.Rep.27 (Q.B).
 Candlewood Navigation Corp ltd v Mitsui O.S.K lines ltd1986] A.C. 1

STATUTES REFERRED

 Indian Contract Act, 1872

 The Sale of Goods Act, 1930
 Consumer Protection act, 1986
4
  Restrictive trade practices Act, 1976
 Torts Law

BOOKS REFERRED

1. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF, (11TH ED., 2013)

2. PANDEY J.N., CONSTITUTIONAL LAW OF INDIA (55TH ED., 2018)

3. M. P. JAIN, INDIAN CONSTITUTIONAL LAW (6TH ED., 2011)
4. D.D. BASU, CONSTITUTION OF INDIA (14TH ED., 2009)
5. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2ND
ED. REPRINT 2010)

Websites Reference

 www.indiakanoon.org

 www.indlawinfo.org

 www.legalserviceIndia.com

 www.legalsutra.org

 www.lexisnexisacademic.com

 www.macmillandictionary.com

 www.manupatra.com

 www.scconline.com

 www.scdecision.in

 www.supremeCourtcases.com

 www.vakilno1.com

5
IMPORTANT DEFINITIONS

1. Appellant 1 & Appellant 2 for the purpose of this memorandum shall stand for HPC ltd.
and Amy Santiago respectively.

2. Respondent for the purpose of this memorandum shall stand for Steve Rovers.

Statement of Jurisdiction

The Appellants humbly submits this memorandum filed by the counsels for the Appellants
before this bench of Hon'ble Supreme Court of Asnard. The Hon'ble court has jurisdiction to try,
entertain and dispose of this case proceedings under Article 136 of The Constitution of Asnard.

“Article 136- Special leave to Appeal by the Supreme court”

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the Territory of India(Asnard).

(2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

6
 STATEMENT OF FACTS

 Healing Hand Pharmaceutical Co. Ltd., henceforth referred as HPC ltd. is a leading
Company in the pharmacy industry of Democratic state of Asnard. The company enjoys
absolute monopoly over production of a Capsule named ‘Lobanza’, that is prescribed for
adults in order to get rid from their addiction of drugs and other Narcotic substances.
But it is strongly advised that Lobanza must not be consumed when a person is still
consuming drugs/tobacco as it can cause death because of volatile reactions.
Mr. Tony Snark is a well known business tycoon and owner of HPC ltd.

 4th June,2017: HPC ltd. purchased its first LPT machine from Mr. Steve Rovers, that
proved to be a boon for HPC ltd.

 14th August,2017: An Agreement was entered in between HPC ltd. and Mr. Steve
Rovers regarding purchase of three more LPT machines intended for the production of
‘Lobanza’ capsules, but one of the 3 machines was used by them for production of a
different medicine with different chemical composition. Mr. Steve Rovers ensured the
delivery of the three machines within 5 days, i.e, till 19 th August, 2017 but eventually the
delivery was made after 9 days, i.e, on 23rd August, 2017. Despite the delay in delivery
no apprehensions were shown by HPC ltd. and complete agreed sum of $30 million was
paid to Mr. Steve. On the above mentioned date Mr. Steve received a detailed report
from the auditor categorically highlighting certain patent defects in those 3 LPT
machines that were intended to be sold to HPC ltd.

 Some critics were made against both, LPT machine as well as ‘Lobanza’ Capsule. For
Instance Mr. Frank Thunderwood on 1st september,2017 managed to publish an article
in the Journal of Asnardian Institute of Technology about infirmities in LPT machines.
Similarly, Prof, Aldus Humbledore at University of Hemsworth published his Research

7
 Paper in 2015 titled ‘Effects of Lobanza on Humans’ the paper was published in an
independent journal named, ‘Journal of advanced sciences’ and discussed about the
various side effects of capsule over person with allergies.

 Mr. Pablo Escocar, a janitor in Government school was prone to drugs and smoking and
wanted to get rid of his addiction. Hence, one day he saw an advertisement of the
Lobanza Capsule on a banner across the road and started consuming made by the
Riverrun Medicos but couldn’t refrain himself from smoking as a consequence of which
he died after 8 days of consumption of the Capsule.

 On 22nd October,2017 all three LPT machines bought under the agreement dated 14th
August, 2017 malfunctioned due to the patent defects reported earlier. Aggrieved by all
this Mr. Tony Snark sued Mr. Steve Rovers for Fraud and initiated civil proceedings for
breach of Contact against him, furthermore Mrs. Amy Santiago also joined the suit
against Mr. Steve Rovers claiming compensation for the loss of livelihood caused to her.
Moreover few minor instances of illness were also reported during this phase among
the consumers of HPC ltd.

8
 Statement of Issues

ISSUE 1

Whether Fraud was committed by Mr. Steve Rovers under Section 17 of the Indian Contract
Act,1872?

ISSUE 2

Whether the contract dated 14th August,2017 voidable at the option of Mr. Tony Snark ?

ISSUE 3

Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her husband
and her consequent loss of livelihood?

ISSUE 4

Whether Mr. Steve Rovers, being the Supplier and Service Provider of LPT Machines, is liable
to compensate Mr. Tony Snark for breach of Contract?

9
 SUMMARY OF ARGUMENTS

I. Whether Fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act,1872?

It is Humbly Submitted to this Hon’ble Bench that no fraud or misrepresentation was committed
by the respondent under section 17 and Section 18 respectively of the Indian Contract Act, 1872
in order to gain consent of Mr. Tony snark for the agreement dated 14th August,2017.
Section 17(2), that states about active concealment as a Fraud under the Act, does’nt fits upon
the facts of this case because no active concealment was done from the Respondent’s side about
the alleged patent defects in those 3 LPT machines sold under agreement dated 14th
August,2017. In the case of Gowrishankar v. Joshi Amba Shankar Family Trust the Hon’ble
Supreme court distinguished between the two and said “Active Concealment is something
different from mere Passive Concealment”. Similarly in Haji Ahmad Yarkhan v. Abdul Gani
Khan, it was held by the court that ‘In the absence of any such relationship as discussed in
Illustration (b) of the Indian Contact act, 1872, i.e, in the Absence of contractrs of Uberrima
fides,i.e contracts of Absolute good faith, there is no duty to speak and mere silence even if it
amounts to misrepresentation, will be no fraud. Therefore silence amounts to fraud only in
contracts of Uberrima fides and the agreement dated 14th August,2017 was in no way a contract
of Uberrima Fides.
Furthermore at the time of the agreement Mr. Snark had told the respondent that all 3 LPT
machines will be used for production of Lobanza Capsules only,but the Appellant 1 used one of
the machine for production of some different medicines with different chemical composition.
In the present case the promise of delivering the LPT machine within 5 days was a bona-fide
promise on the part of the Respondent that was intended to be performed.
In State of Andhra Pradesh v. Associated Engg. Enterprises the court held that once the party
to the contract had accepted the delayed performance, it can’t afterwards recover compensation
for the delay. Hence section 17(3) and Section 55 of the Indian Contract Act,1872 are also not
maintainable in the above mentioned case.

10
 II. Whether the contract dated 14th August,2017 voidable at the option of Mr. Tony
Snark ?

It is most Humbly Submitted to this Hon’ble Bench that the Contract dated 14th August,2017 is
not voidable at the option of Mr. Tony snark because the Appellants have failed to prove that
Fraud was committed by the Respondent in order to gain their Consent. Hence, Section 19 can’t
be applied to the situations of the present case, nor Section 55 of the Act fits upon the facts as
contended by the Appellant’s Counsel. In Krishna Wanti v. LIC the court said that “the onus is
on the plaintiff to prove fraud.
Furthermore, section 55 can also not be contended to make the Contract voidable because for it
Time should be the essence of the contract, and for that both the parties should have agreed upon
a stipulated time, but in the present case Mr. Snark did’nt show any importance as to time of
delivery. Furthermore, at the time of delayed delivery, the Appellant 1 accepted the delivery
without indicating or giving notice of their intention to sue for consequence of delay. In
Jainmills and Electrical stores v. State of Orissa it was held that “Delay in itself does’nt put an
end to the contract.
Therefore it is humbly submitted before this Hon’ble bench that the Contract does’nt stands
voidable under Section 19 and Section 55 on the Part of Mr. Tony Snark.

III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of
her husband and her consequent loss of livelihood?

It is Humbly Submitted to this Hon’ble Bench that no liability arises on the part of
Respondent to compensate Appellant 2 for the death of her husband and consequent loss
of livelihood caused to her. Appellant 2 and Respondent are Independent parties that
don’t have any sort of Contractual or direct relation with each other. The cause of death
of Appellant 2’s Husband was the fact that he consumed Lobanza capsule and parallely
kept of smoking and hence due to the consequent negative and volatile effects his health

11
 deteriorated and as a result he died. The Respondent is neither the manufacturer of
Lobanza Capsule, nor its agent. Therefore, no direct relation can be obtained between the
death of Mr. Escocar and the alleged non-disclosure of the patent defects in the Machine.
The mere fact that the respondent remained silent over the report he got from his Auditor
does’nt makes him liable for compensating Appellant 2 for the loss suffered to her as the
cause of the loss of livelihood caused to her is completely irrelevent from the cause of
action from the Respondent’s side.
Late Mr. Pablo Escocar started consuming the Capsule after subscribing to that
misleading Advertisment that was probably posted by Appellant 1 or its agent, Lobanza
being one of its Product and Respondent had nothing to do with the advertisement.
Moreover, the Appellant’s Counsel have failed to prove beyond any reasonable doubt
that the death of Mr. Escocar was a result of the Bad quality capsules produced by the
malfunctioned LPT machines, additionally no serious medical issue like the one in the
present case have been reported among the Consumers of Lobanza Capsule, that indiactes
that result of death of Mr. Escocar was not the patent defect in the Machine and hence no
liability on the part of Respondent arises.

IV. Whether Mr. Steve Rovers, being the Supplier and Service Provider of LPT
Machines, is liable to compensate Mr. Tony Snark for breach of Contract?

It is humbly submitted to the Hon’ble bench that since there was no breach of Contract by
the Respondent that’s why no liability arises on the part of Respondent to compensate
Mr. Snark. Mr. Snark was himself at fault as he did’nt performed a routine check over
the 3 LPT machines that were to be sold to Appellant 1 by the Respondent, despite the
fact that he was requested to do so by a colleague of the Respondent, hence, the plaintiff
is himself at fault. Furthermore, since the Appellant’s counsel have failed to prove that
Fraud was committed by the Respondent and no cause of action arises under section 55
of the India Contract Act,1872 as time was not an essence of the Agreement dated 14th
August, 2017.
Therefore, it is Contended by the Respondent’s Counsel that no Liablity of Respondent

12
 arises for the Breach of Contract as there is no Breach of Contract.

Arguments Advanced

I. Whether Fraud was committed by Mr. Steve Rovers under Section 17 of the
Indian Contract Act,1872?

It is humbly Submitted by the Counsels for the Respondent that no fraud has been committed by
the Respondent under Section 17 of the Indian Contract Act,1872, as alleged by the Appellants.
Section 17(2) discusses only about ‘Active Concealment’ as fraud.
Active Concealment of material facts is always fraud whereas Passive Concealment which
means mere silence as to material facts, is no fraud until in some exceptional cases.1Since, no
Active Concealment of the fact about the patent defects in those 3 LPTs was committed by the
Respondent, therefore no fraud has been committed.
A.THE CONTRACT IS NOT VOIDABLE BY VIRTUE OF FRAUD SINCE APPELLANT FAILED

TO EXERCISE DUE DILIGENCE TO DISCOVER THE FACT:

Furthermore, the Illustration (b) as given under the Indian Contract act,1872 applies only to
blood and Conjugal Relations where it is the duty to speak but in the present case no such
relation between Mr. Tony Snark and the Respondent is there so as to oblige him or make him
duty bound to speak. The Explanation given under Section 17 also states that Ordinarily, of
Course, mere silence is no fraud, even if its result is to conceal “facts likely to affect the
willingness of a person to enter into a contract.”2 Henceforth, the fact that the Respondent
remained silent over the patent issue reported in the LPT machine does not bound him for the
commission of Fraud.‘In the absence of any such relationship as discussed in Illustration (b) of
the Indian Contact act, 1872, i.e., in the Absence of contracts of Uberrima fides,i.e contracts of

1
Gowrishankar v. Joshi Amba Shankar Family Trust
2
Haji Ahmad Yarkhan v. Abdul Gani Khan

13
Absolute good faith, there is no duty to speak and mere silence even if it amounts to
misrepresentation, will be no fraud. Therefore silence amounts to fraud only in contracts of
Uberrima fides and the agreement dated 14th August,2017 was in no way a contract of Uberrima
Fides.‘ A contracting Party is under no obligation to disclose the whole truth to the other party or
to give him whole information in his possession affecting the subject-matter of the Contract.’3

Furthermore, it is humbly submitted that at the time of the agreement on 14th August,2017 Mr.
Snark was requeted by one of the colleague of the respondent to conduct a routine check over
those 3 LPT machines, but he or any of the agent of Appellant 1 failed to do so, hence bringing
Mr. Snark falling to his own fault. Section 17 of the concerned act explicitly states that duty to
speak arises only when the other party to the Contract don’t have any other way or means to get
hold of the knowldege of that fact, and in the present case Mr. Snark had the means of
discovering the truth himself by conducting routine checks, failing to do so he was himself at
fault, hence, no duty to speak about the above mentioned fact fell on the part of
Respondent.Furthermore at the time of the agreement Mr. Snark had told the respondent that all
3 LPT machines will be used for production of Lobanza Capsules only, and in view of the same
the 3 LPTs were carefully assembled for production of Lobanza capsule only,but not
withstanding upon the ageed terms, the Appellant 1 used one of the machine for production of
some different medicines with different chemical composition that might be the cause of
malfunctioning of the LPT machines and consequent mild cases of illness reported among the
consumers of the Appellant 1.
In the English case of Derry v Peek, Lord Herschell said that “Farud is proved when it is shown
that a false representation has been made, (1) Knowingly; (2) without belief in its truth; (3)
recklessly careless whether it be true or false.”4 Hence, Intentional Misrepresentation is an
essence of fraud, and in the present case no Misrepresentation is been made by the respondent.
Furtherore, section 17(3) states that Fraud is committed when ‘ promise is made without any
intention of performing it’. When Promise is made just to tie-up the person and preventing him
from dealing with others, is such promise referred in section 17(3) of the act, but in the present
case the promise of delivering the LPT machine within 5 days was a bona-fide promise on the

3
Shri Krishnan v. Kurukshetra University
4
(1889) LR 14 AC 337

14
part of the Respondent that was intended to be performed, and somehow due to the extreme
pressure of the market demands the promise was performed late. Furthermore is was held by the
Hon’ble Supreme court thatonce the party to the contract had accepted the delayed performance,
it can’t afterwards recover compensation for the delay, “unless at the time of such acceptance,
the party gives notice to the promisor of its intention to do so”.5 Therefore in the present case Mr.
Snark at the time of delayed delivery of those 3 LPT machines accepted the delivery without
showing any apprehensions and without giving any notice of intention to sue for consequence of
delay, hence setion 17(3) and Section 55 of the Indian Contract Act,1872 are also not
maintainable in the above mentioned case.
Therefore, it is humbly submitted by the Counsels for the Respondent before this Hon’ble Bench
that No fraud is Committed by the Respondent against Mr. Snark and Appellant 1 as Section
17(2) and (3) fails to fit upon the facts of the present case.
According to kerela High Court the plaintiff who was educated had contested the elections is not
likely to have executed document without knowing its contents.6

In the case of L.Baba v.Madras University7 the Madras High Court while adjudicating the
case of fraud the Court held that:

“It is obvious that during this period of four to five months it was the duty of the University
authorities to scrutinise the form in order to find out whether it was in order. Equally it was
the duty of the Head of the Department of Law before submitting the form to the University to
see that the form complied with all the requirements of law. If neither the Head of the
Department nor the University authorities took care to scrutinise the admission form, then the
question of the Appellant committing a fraud did not arise. It is well settled that where aperson
on whom fraud committed is in a position to discover the truth by due diligence, fraud is not
proved.”

Hence,Failure by a person to make such inquiries as an ordinary prudent person would make,
may be evidence of the fact that such person was not deceived.8

5
State of Andhra Pradesh v. Associated Engg. Enterprises
6
Manirajan Pillai v K.K Karunakaran Nair, AIR 2011 Ker 55
7
AIR 1998 Mad 137

15
 II. Whether the contract dated 14th August,2017 voidable at the option of Mr.
Tony Snark ?

It is most Humbly Submitted to this Hon’ble Bench that the Contract dated 14th August,2017 is
not voidable at the option of Mr. Tony snark because the Appellants have failed to prove that
Fraud was committed by the Respondent in order to gain their Consent. Hence, Section 19 can’t
be applied to the situations of the present case, nor Section 55 of the Indian Contract Act fits
upon the facts as contended by the Appellant’s Counsel. It was held by the court that “the onus is
on the plaintiff to prove fraud. The onus is quite as high as the burden to prove in criminal law
that the accused is guilty beyond a reasonable doubt.” 9Since the plaintiff/Appellant are unable to
prove the commission of fraud against them by the respondent beyond any reasonable doubt the
Contract can’nt be held voidable under Section 19 of the Act.
Furthermore the contention of the Appellants made under Section 55 of the Indian Contract
act,1872 can also not be upheld because for that time needs to be the essence of the contract and
explicitly agreed upon by both the parties to the contract, but in the present case no such time
boundation was strictly laid down and agreed by both the parties. Instead, Mr. Tony Snark was at
fault because as per the agreed terms of the Contract he was required to use all the 3 LPT
machines for the Production of Lobanza Capsule only but the Appellant 1 used one of the 3
machines for production of a different medicine with different chemical composition, hence
making a claim for the Respondent to make the contract voidable on his part instead.
Moreover,“Delay in itself does’nt put an end to the contract.”10
The Rajasthan High Court held that:11

“The plaintiff had all the means to know the contents of the document. That apart his father
was the attesting witness and it cannot be imagined that he joined hands with his wife and his
brother-in-law against his son. In the circumstances I am unable to believe that any fraud was

8
Huri alias Alim Khatun v. Roshan Khudabux, AIR 1923 Sind 5 at 14(FB).
9
Krishna Wanti v. LIC
10
Jain mills and Electrical stores v. State of Orissa
11
Kamal Kant Paliwal v.Prakash Devi Paliwal, AIR 1976 Raj 79

16
practised. To me it rather appears that the plaintiff's suit is collusive. With a view to get
thetrust cancelled he has come to the court of law. The learned trial judge has rightly stayed
his hands from granting the declaration sought by the plaintiff. I do not believe in the
truthfulness of the plaintiff's averment.”12 Therefore the appeal for declaring the contact
viodable failed and was hereby dismissed.

Henceforth, it is Most Humbly Submitted that the Contract dated 14th August,2017 does’nt
stands voidable at behest of Tony Snark as the essentials for a Contract to be declared
voidable have failed to be fulfilled in the present case as neither Fraud under Section 17 of the
Indian Contract act,1872 is proved nor Section 55 that makes a contract voidable if not
performed on time is fulfilled as against the Respondent.

III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the
death of her husband and her consequent loss of livelihood?

It is Humbly Submitted to this Hon’ble Bench that no liability arises on the part of
Respondent to compensate Appellant 2 for the death of her husband and consequent loss of
livelihood caused to her because Appellant 2 and Respondent are Independent parties that
don’t have any sort of Contractual or direct relation with each other. The cause of Death of
Mr. Pablo Escocar was the negative and volatile effects of Lobanza Capsule over his body
because he did’nt quit smoking while consuming the capsule. The Appellants have strongly
contended that they had strictly issued guidelines that smoking while still consuming Lobanza
Capsule can cause severe health effects, and even death, but the advertisement after
subscribing to which Mr. Pablo started consuming the Capsule did’nt had any mention of that
guideline. The Advertisement of the Lobanza Capsule simply stated “Lobanza Capsule-
Lifeline for drug addicts, smokers, and tobacco consumers. Please Contact Riverrum Medicos
for the Capsule situated on the border of State of Westeros and other states.” 13 The
Advertisement is in itself a misleading one that does’nt states the Statutory warning before

12
ibid
13
Para 11, proposition.

17
consuming the Lobanza Capsule. As a Result of Which Mr. Escocar was unaware of the fact if
he smoked while still consuming capsule it could lead even to his death and due to that lack of
knowledge due to the negligence of Appellant 1 and its Agent, Riverrun Medicos, Mr. Pablo
had to pay off with his life.

Since the Respondent is Neither the manufacturer of Lobanza Capsule nor its Retailer or any
agent, no duty to take care arises on the part of Respondent towards Appellant 2 which is
alleged to be breached. Moreover, a detailed Research Paper, titled ‘Effects of Lobanza on
Humans’14 by Prof. Aldus Humbledore published in 2015 in the journal for advanced sciences
is also evident that the Lobanza Capsule had severe side effects upon human body that could
lead to various neurological disorders. Hence, it was due to this reason stated by Professor
Humbledore, that some other mild instances of illness were also reported among the
consumers of Lobanza Capsule and not because of the patent defects as they were immaterial
with the effect on the health of Consumers.

Furthermore The action based on the negligence have to be based on the four requirement: duty,
breach, causation and damages and.claimant have to full fill these requirement which they
have been unable to fulfil.

A. THE DEFENDANT DID NOT OWE THE “THE DUTY OF CARE”

This particular approach was reaffirmed in case of Candlewood navigation Corp ltd v
MitsuiO.S.K lines ltd15where time charterers of the damaged vessel(who did not have
possession of it) failed to recover the hire which they had to pay even when the vessel was out
of action and the revenue which they through being unable to make use of the vessel.

B. THERE WAS NO BREACH OF DUTY BY STEVE ROVERS

The second element required to prove negligence is that the duty of care has been breached .
However ,as mentioned above ,Defendant did not owe duty of care to the claimant .Therefore

14
Para 8, proposition
15
[1986] A.C. 1

18
second element is not satisfied.the test for deciding where there has been breach or not in oft-
cited dictum of Alderson B in Blyth v Birmingham Waterworks co16.

C. THE CHAIN OF EVENT WAS BROKEN

The basic test for establishing causation it the “But For test” is that Court will hold the defendant
liable only if the accident would not have occurred but for the defendant’s negligence.17

The case of Spartan steel & Alloys ltd v Martin & co ltd18 illustrates the distinction between pure
economic loss and other kinds of the loss can be a very fine one. In this case, the defendant case
all three types of loss .the defendant was held not liable for the pecuniary loss.

Therefore it is Humbly Submitted to this Hon’ble bench that no liability of the Respondent arises
on the part of Appellant 1 for the loss of livelihood caused to her and for the death of her
husband, instead the liability should arise on the part of Appellant 1 and its agent Riverrum
Medicos that was the publisher of that misleading advertisement and retailer of Lobanza
Capsule.

IV. Whether Mr. Steve Rovers, being the Supplier and Service Provider of LPT
Machines, is liable to compensate Mr. Tony Snark for breach of Contract?

It is humbly submitted to the Hon’ble bench that since there was no breach of Contract by the
Respondent that’s why no liability arises on the part of Respondent to compensate Mr. Snark and
hence the claim of $100 million as made by the Appellants is completely irrelevant.

For suing the Respondent for Breach of contract the Appellant counsel was required to prove that
the Contract is Voidable on their behalf which they have completely failed to prove both under
Section 17 as well as section 55 of the Indian Contract act, 1872. The Respondent being the
service provider and supplier of LPT machines fulfilled all his obligations for a valid contract
towards Mr. Snark. Even Mr. snark was requested by one of the colleague of the Respondent to

16
(1986) 11 Ex.
17
White v. Lodge(1993) 4 All E.R 299 (K.B).
18
Spartan steel & Alloys ltd v Martin & co ltd, (1973) 2Eng.Rep.27 (Q.B).

19
conduct a routine check on the 3 LPT machines that were to be sold to the Appellant 1 under the
Agreement dated 14th August,2017, but it was his own Negligence and his own fault that he
did’nt conducted routine check over them. The Respondent did’nt disclosed the report that he got
from his auditor regarding Patent defects in the machine to Mr. Tony Snark because he thought
that a routine Check had already been conducted by Mr. Snark and hence, the patent defects are
in his knowledge, and since no objection regarding the same were made by the him against the
Respondent, thus the Respondent was misled that Mr. Snark had impliedly by his conduct
accepted the 3 LPT machines along with those minor defects itself.

A) CONDUCT OF PLAINTIFF AMOUNTS TO ACCEPTANCE:

The buyer is deemed to have accepted the goods when he intimates to the seller that he has
accepted them, or when the goods has been delivered to him and he does any act in relation to
them which is inconsistent with the ownership of the seller, or when, after the lapse of reasonable
time, he retains the goods without intimating to the seller that he has rejected them. 19If defendant
did not reject goods within reasonable time he is deemed to have accepted the goods. A gap after
which goods were ostensibly rejected on the face of being defective is clearly fatal in context of
statutory law i.e. section 41 and 42 of the sale of goods act.20

In Jackson vs. Chrysler the learned judge held that by retaining car for months during which
period there was a series of repairs and replacements, the plaintiff had accepted the car so as to
have now lost the right of rejected.21At present buyer has no right of rejection where he is
deemed to have accepted the goods even though without inspecting or testing them.22

Lord O. Hagan said in Ward vs. Hobbs23 that although the vendor is bound to employ no
artifice or disguise for the purpose of concealing defects in the article sold, as that may amount to
a positive fraud on his part; yet under the general doctrine of Caveat Emptor, he is not generally
bound to disclose every defect of which he may be cognizant.

19
Section 42 of sale of goods act ,1930.
20
Sohman rausher GMBL vs. Medisphere Mkt. Pvt Ltd 117(2005) DLT 95.
21
1978, R.T.R. 474.
22
Ibid.
23
(1878) 4 AC 13.

20
In the case ofWard Vs Hobbs24a contract of sale gets formed according to the terms of which
defendant has to sell an animal from his farm to plaintiff. Negligently plaintiff selects an animal
which has been suffering from some sickness. That sickness is characterized by propagation
from one animal to the other and the ultimate effect is death of the animal. It should be noted that
the sickness is externally visible. plaintiff, negligently selects such animal and as a result all
animals present in plaintiff’s farm comes across death. plaintiff sues defendant. Court decides
that plaintiff is negligent, he cannot blame the seller for his defendant for his own negligence and
therefore he cannot claim any compensation. Thus caveat emptor rule protects the seller.

Therefore it is Humbly Submitted to this Hon’ble bench that the Respondent is not liable to
compensate Mr. Tony Snark for Breach of Contract because the concerned contract dated 14th
August, 2017 was a valid Contract of Sale that could not be held voidable and hence could not be
Breached.

24
Supra note 10.

21
 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for
the Petitioner humbly prays that this Hon’ble Court and declare:

1. Declare that Fraud was not committed by Mr. Steve Rovers under Section 17 of the
Indian Contract Act, 1872.

2. Declare that the contract dated 14th August,2017 is not voidable at the option of Mr.
Tony Snark.

3. Declare that Mr. Steve Rovers is not liable to compensate Amy Santiago for the death of
her husband and her consequent loss of livelihood.

4. Declare that Mr. Steve Rovers, being the Supplier and Service Provider of LPT Machines,
is not liable to compensate Mr. Tony Snark for breach of Contract.

AND

Pass any order that this Hon’ble Court may deem fit in the interest of equity, justice, and
good conscience.

And for this act of kindness, the Counsels for the Respondent shall duty bound forever
pray.

Respectfully Submitted
Sd/-______________________

Counsels for the Respondent

22