TEAM CODE-TC 15

INTRA MOOT COURT COMPTETION, 2017

14th -15th NOVEMBER, 2017

ICFAI LAW SCHOOL, DEHRADUN

AK BUILDERS (APPEALLANT)

V.

KHURANA ARCHITECTS (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE HIGH COURT OF EDHAMPUR

MEMORIAL FOR THE APPEALLANT- AK BUILDERS

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Table of Contents
INDEX OF AUTHORITIES......................................................................................................................... 2
ACTS & REFERENCES .............................................................................................................................. 2
List of Abbreviation ...................................................................................................................................... 3
STATEMENT OF JURISDICTION ............................................................................................................. 4
STATEMENT OF FACTS ........................................................................................................................... 5
STATEMENT OF ISSUES .......................................................................................................................... 7
...................................................................................................................................................................... 8
SUMMARY OF ARGUMENT .................................................................................................................... 8
ARGUMENT ADVANCED ........................................................................................................................ 9
PRAYER ..................................................................................................................................................... 14

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INDEX OF AUTHORITIES

www.Indiankanoon.org

www.supremecourtofindia.nic.in

halsburylawofengland

Manupatra

Contract & Specific relief By Avtar Singh, 23rd Edition

Pollock & Mulla 14th Edition

Law of Torts By R.K. Bangia

ACTS & REFERENCES

Indian Contract Act, 1872

Specific Relief Act, 1963

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List of Abbreviation

AIR: All India Reporter

CH: Chapter

ICA: Indian Contract Act

SRA: Specific Relief Act

JUST: Justice

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STATEMENT OF JURISDICTION

The Appellant humbly submits this memorandum in response to the petition filed before this
Hon’ble Court of Edhampur. The jurisdiction of this Hon’ble High Court has been invoked under
Section 96 of Code of Civil Procedure, 1908. It sets forth the facts and the laws on which the
appeal is based.

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STATEMENT OF FACTS

AK Builders which is one of the finest construction firm in the city of Edhampur owned by Mr.
Mahesh Edhampur is one of the most important industrial cities in the nation and is solely owned
by industries. AK Builders built nearly 16 apartment society in tenure of 10 years and thereby
came a well-known name in the city itself. District magistrate of Edhampur was transferred and a
new magistrate assumed office, he planned on constructing an elite housing complex for
businessmen and upper class of the society. The tender for the construction was given to AK
Builders and the responsibility was entrusted in the hand Mahesh to build the finest housing
complexes. The only problem which Mahesh faced was to find an architect who would design
the complex. While searching Khuranna architects came to the knowledge of Mahesh which was
owned by Mr. Naveenwho turned out to be his school friend. One day Mahesh told Naveen that
he want him to be the chief architect of his project. Naveen denied the proposal stating that
Khuraana architects actually did not prefer working on government projects Mahesh accepted
this and promised each other to stay in touch.

One day Mahesh went to a bar to get drinks. He saw Naveen sitting alone and decided to
accompany him and ordered Beer for themselves. They both started talking casually and Mahesh
again started telling Naveen that he would appreciate if he would accompany him in the
construction project. Naveen took out a piece of paper from his pocket and wrote down that if
three of the next five people entering the bar would be girls then he would agree to work on the
project till the end. Mahesh signed on that piece of paper and took it with himself. Later for of
the five people who entered the bar were girls and now Naveen had to work with Mahesh on this
project. Naveen agreed to this and promised to start the work next week.

After a week Naveen came to head office of AK Builders with his tem of architects and started
working. Mahesh told Naveen that since it was a important project he would like to have his full
focus on this project only and not on any other project till this project is finished to which
Naveen smilingly nodded his head. Officially the work started. After two months of work
Mahesh observed that Naveen left the office two hours earlier than the usual time and took
atleast a day off in the week. Further he came to know that Naveen has taken up another project
two weeks ago and started working on it also. Mahesh asked Naveen to drop this project because
he promised him to work on the original project till the date is finished. Naveen denied Mahesh
stating that most of his work is almost done so he could work on the another project. Naveen
assured Mahesh that his team of architects is very proficient in their jobs and not always need his
supervision to there job.

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After a week one of the architect of his team delivered a slightly faulty blue print of the entrance
doorway which was to be constructed on the front gate of the complex. Which lead to faulty
structure being constructed and ultimately collapsed.

Mahesh therefore went to the Hon’ble district court of Edhampur, in order to ask the court to
grant a remedy of Injunction. The court dismissed the appeal stating that there is lack of evidence
proving breach. The case now lies before the Hon’ble High court.

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STATEMENT OF ISSUES

ISSUE I: Whether there was contract formed between both the parties?

ISSUE II: Whether there was breach of contract on part of Naveen?

ISSUE III: Whether there was negligence on part of Khurana Architects?

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SUMMARY OF ARGUMENT

I. Whether there was contract formed between both the parties.

There was a contingent contract formed between both the parties under chap. 3 sec.31 of ICA,
1872 which defines contingent contract as “a contract to do or not to do something, if some
event, collateral to such contract, does or does not happen. In this case the contingency of the
event happened. In this present case there was a agreement between Mahesh and Naveen that if
three out of five peoples entering the bar are girls then Naveen would give his assent and would
start of the work. Four out of five people entering the bar were girls so contingency arised
because of the happening of the event collateral to it, hence the contract was formed between
both the parties.

II. Whether there was breach of contract on part of Naveen?

In this case there is a breach of contract on part of Naveen because he readily agreed to the
condition put up by Mahesh that he would focus only on this project because this was an
important project and would not take or work on any other project till the completion of this
project to which Naveen gave his consent by way of conduct. But Naveen breached the contract
because he had taken another project before the completion of the main project.

III. Whether there was negligence on part of Khurana Architects?

In this present case there was a negligence on the part of Khurana architects as one of the
member of the team delivered a slight faulty blue print of the entrance doorway which was to be
constructed on the front gate of the complex which led to a faulty structure being constructed
which ultimately collapsed and there was also lack of supervision which was to be conducted but
they failed to do, hence there was negligence on part of them.

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ARGUMENT ADVANCED

I. Whether there was contract formed between both the parties.

There was acontract formed between both the parties Mahesh and Naveen, the contract which
was formed arrised out of contingency which means event based on uncertain future happening.
Contingent contract is defined under Section 31 of the ICA, 1872 which means a contract to do
or not to do something if some event, collateral to such contract does or does not happen, it is
also a sort of conditional contract as it is based on uncertain happening1. Collateral event
according to Pollock and Mulla, A collateral event means an event which is neither a
performance directly promised as part of the contract nor the whole of the consideration for a
promise also it means an event which does not form part of consideration of the contract, and is
independent of i2t. In this present case Naveen put forward a condition that if three out of five
people entering the bar are girls then he may start of the work. Four out of five people entered
the bar were girls so the contract between both of them was enforced as it was based on
uncertainty but the event collateral to the contract happened so it was enforced by the law.

Section 32 of ICA, 1872 deals with enforcement of contract contingent on an event happening.
This section lays down two basic principle first a contract to do an act on the happening of a
future uncertain condition cannot be forced unless and until that event happens. Second, if the
happening of the event has become impossible, the contract becomes void3.

For example, A makes a contract with B to buy B’s horse if A survives C. This contract cannot
be enforced by law unless and until C dies in A’s lifetime.

A makes a contract with B to sell a horse to B at a specific price if C, to whom the horse has
been offered, refuses to buy. The contract cannot be enforced by law until and unless C refuses
to buy the horse. In these both illustrations the principle in this section is clarified. An option to
buy shares of a bank if and when the bank is converted into a financial corporation is a
contingent contract of this kind, namely, which is to be performed on the happening of a future
uncertain event.

The contract would also not be enforceable where the event does not happen in the way
contemplated by the contract. Where a car was insured against loss in transit, the car was

1
Avtar singh, contract and specific relief (11th ed 2013).
2
Pollock & Mulla, the Indian contract and specific relief act (14th ed 2012).
3
Avtar singh, contract and specific relief (11th ed 2013)

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damaged without being put in the course of transit, the insurer was held to be not liable4. Once
the event has happened, the contingent contract ripens into an absolute one5.

4
V.P. Desa v union of india, AIR 1958 MP 297.
5
N. Peddanna ogeti Balayya v Kotta V. Srinivasayya Setti Sons, AIR 1954 SC 26.

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II. Whether there was breach of contract on part of Naveen?

There was a breach of contract on part of Naveen because Naveen had taken another project
before the completion of the original project because of which Mahesh had to incur losses for the
act of Naveen. Naveen by way of conduct gave his assent that he would not take any other
project but breached the condition. In certain case of breach of contract damages may not be
adequate remedy the court may direct the party in breach to carry out his promise according to
terms of the contract. In general the court will only grant the specific performance where it
would be just and equitable to do so Mahesh initiated a suit for injunction and not for the
monetary relief. An Injunction is an order of a court restraining a person form doing an act the
court may in his discretion issue an order to the respondent restraining him from doing what he
promised not to do. Injunction has been provided under Part 3 of Specific Relief Act, 1963. In
Burney “ injunction has been defined to be a judicial process, by which one who has invaded or
is threatening to invade the rights, legal or equitable, of another is restrained from continuing or
commencing such wrong full act “6.

In the case of Lumley v. Wagner7, Petitioner had contracted with Respondent that she would
sing in a theater for next three month but she had done contract with third party and she would
sing in his theater while the first contract was still in subsistence. afterwards petitioner came to
know that she agreed to work with another party then he challenged it in the court of law seeking
for Injunction to keep away the petitioner from singing in another theater, the court gave the
verdict in favor of the petitioner because there was a breach of contract between both the parties
because of which the petitioner was suffering thus Injunction was granted in favor of Lumley8.

6
Bangia, RK (2013) - Law of Contract and Specific Relief (6th ed 2015).
7
(1852) 42 ER 687
8
Beatson, J (2010): Anson‘s law of contract, Oxford university press, India.

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III. Whether there was negligence on part of Khurana Architects?

In this present case there has been a negligence on part of Naveen as his tem of architect did not
conduct proper supervision of the work and also one of the architect of his team delivered slight
faulty blueprint of the entrance doorway which was to be constructed on the front gate of the
complex, but it led to a faulty structure being constructed which ultimately collapsed. Naveen
owns a duty of care in favor of Mahesh and should carry out the work with proper care and
caution but there was a breach of duty9 which ultimately resulted in the legal injury caused to
Mahesh. In the case of Pillutla Savitri v. G.k. Kumar10, the plaintiff husband, who was a
practicing advocate at Guntur, was relaxing in front of his tenanted premises on the ground floor
5-5-1991. Suddenly, a portion under construction on the first floor of the building collapsed and
the sun-shade and parapet wall fell down on the advocate resulting in death. The court in this
case gave its verdict in favor of a petitioner because the respondent had done a breach of duty
and was negligent in part of performing their obligation which resulted in death of petitioner.
The court gave verdict in favor of petitioner side.

Also like any other profession the architect incurs liability for the failure of his performance
which he is bound to do so. His duty is independent of contract. He shall apply proper skills care
and diligence In case of S.P. Dhavaskar v. The housing commissioner, Karnataka Housing
Board11, the builders constructed houses which were not upto the expected level due to the use
of low cost technolo0gy, houses were constructed using soil, mudblocks. But the soil stabilized
mud blocks used for structure could not withstand heavy range. The national commission held
that there was gross deficiency as a builders failed to exercise, reasonable care in not forcing the
risk involved in the use of soil stabilized mud blocks the builders were held liable for their act.

In the case of Chairman, Tamil Naidu Hosing Board v. N.Sivasailam12, The National
commission held that the cracks in the hose due to the defective design would amount to
deficiency in service.

In the case Brickhill v. Cooke13, the prospective purchasers of the property engaged an engineer
to inspect the property and prepare a written report. The engineer concluded that the property
was structurally sound. After the property had been purchased, the new owner discovered that
the property was not structurally sound and that the engineer had failed to identify five structural
defects. The engineer’s duty of care in relation to negligence14 existed alongside the engineers

9
Dr R.K bangia, Law of torts (23rd ed 2013).
10
A.I.R 2000 A.P. 467.
11
(1996) 1 C.P.J. 65 (N.C.).
12
(1996) 1 C.P.J. 321 (N.C.).
13
( 1984) 3 NSWLR 396
14
Dr R.K bangia, Law of torts (23rd ed 2013)

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contractual obligation. In this case the court held that, the engineer was liable to owner and also
recognized that the engineer could be liable to the new owner in the negligence.

So in the present case Khuranna architects are to be held liable for their negligent act because of
the faulty design and because of lack of supervision they failed to provide which resulted in
breach of duty which they were compelled to do so.

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PRAYER

In the light of issues raised, arguments advanced and authorities cited, the counsel for the
appellant humbly praise before the Hon’ble court to grant the remedy of injunction and pass any
order that this Hon’ble court may deem fit in the interest of equity, justice, good conscience. And
for this act of kindness, the counsel for the appellant shall duty bound and counsel rests

Sd/-

(Counsel for appellant)

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