TC - 018

ICFAI UNIVERSITY, DEHRADUN

VII INTRA MOOT COURT COMPETITION - 2017

BEFORE THE HON’BLE HIGH COURT OF EDHAMPUR

AK BUILDERS
(PETITIONER)

v.

KHURANA ARCHITECTS
(RESPONDENT)

PETITION INVOKED UNDER SEC. 100 OF CODE OF CIVIL

PROCEDURE 1908

___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE HGH COURT OF EDHAMPUR

MEMORANDUM ON BEHALF OF PETITIONER

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER
PETITIONER TC-018

TABLE OF CONTENTS

Table of contents……………………………………………………………………...I
Index of abbreviations……………………………………………………………......II
Index of authorities…………………………………………………………………..III
Statement of jurisdiction…………………………………………………………….IV
Statements of facts…………………………………………………………………...V
Statement of issiues…………………………………………………………...……...VI
Summary of arguments………………………………………………………………VII
Arguments advanced…………………………………………………………………VIII
Prayer…………………………………………………………………………………XI

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PETITIONER TC-018

LIST OF ABBREVIATIONS

A.I.R All India Reporter

C.p.c. Code of Civil Procedure

ICA Indian Contract Act

Hon’ble Honorable

r/w Read with

u/s Under Section

Sec Section

Co. Company

Ltd Limited

SCC Supreme Court Cases

SC Supreme Court

& And

Bom Bombay

AP Andhra Pradesh

Acc. According

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PETITIONER TC-018

INDEX OF AUTHORITIES

STATUES

The Indian Contract Act, 1872

The Code of Civil Procedure, 1908

BOOKS

Avtar Singh, Contract and Specific Relief, 12th Edition(2017)

C. K. Takwani, Civil Procedure with Limitation Act, 1963, 8th Edition(2017)

CASES

1. Bharat Petroleum v. General Eastern Shipping Co. Ltd

2. Chandulal Harjivandas v. CIT,AIR 1967 SC 816,818 (1967) 1 SCR 921, 925

3. Jethalal C. Thakkar v. R .N .Kapoor, 1956 Bom 74

4. N.Peddanna Ogeti Balayya v. Kotta V. Srinivasayya Setti Sons, AIR 1954 SC 26.

5. Nawab Mir Barkat Ali v. Nawab Zulfiquar AIR 1982 AP 384

6. Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas Lallubhai, (1986) 3 SSC 300:

AIR 1986 SC 1912

7. V. P. Desa v. Union of India AIR 1958 MP 297

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PETITIONER TC-018

STATEMENT OF JURISDICTION

Before the hon’ble High Court of Edhampur U/S 100 of C.p.c

The petitioner is appearing before this hon’ble court on suo moto motion this hon’ble
court, this power is inherent U/S 100 of the C.p.c which read as under-
(1) Save as otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any Court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve such
question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the court to hear, for reasons to be recorded, the appeal on any other substantial
question of law formulated by it, if it is satisfied that the case involves such question.

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PETITIONER TC-018

STATEMENT OF FACTS

1. “AK Builders” is one of the finest construction firms in the city of Edhampur.
2. The new District Magistrate of Edhampur planned a tender for constructing elite
housing complex for upper class citizen and businessmen which was undoubtedly
given to AK Builders.
3. While searching for architects Mahesh came into contact with “Khurana Architects”
which was owned by his High School Friend Naveen.
4. When Mahesh put forward the proposal before Naveen to work with him, Naveen
humbly denied stating that Khurana Architects did not preferred working on
Government Projects.
5. While having Beer in a bar, Mahesh told Naveen that he would appreciate the fact if
Naveen accompany him in his project and being in jolly mood Naveen wrote down on
a piece of paper that if three of next five people entering the bar would be girls the he
would agree to work on this project and that too happened.
6. A week later Naveen and his team officially started working with AK Builders and in
the meantime Mahesh asked him for his full focus on this project and not on any other
project till this one finishes to which he simply nodded.
7. Mahesh came into the knowledge that Naveen has taken up another project and asked
him to drop the new project to which Naveen denied.
8. Due to the faulty blue print made by the architects the doorway structure collapsed.
9. Due to this incident Mahesh again asked Naveen to drop his other projects to which
he denied.
10. When the matter was laid before the Hon’ble District Court of Edhampur to grant a
remedy of Injunction was dismissed statting the lack of evidence proving breach.

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PETITIONER TC-018

STATEMENT OF ISSUES

ISSUE.1 WHETHER THE CONTRACT WAS VALID OR NOT.

ISSUE.2 WHETHER THE REMEDY OF INJUNCTION SHOULD BE GRANTED TO

AK BUILDERS.

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SUMMARY OF ARGUMENTS

ISSUE.1 WHETHER THE CONTRACT WAS VALID OR NOT.

It is humbly contented before the hon’ble court that the contract is contingent contract and the
acceptance was expressly given through the reasonable manner and conduct of the work.
Therefore the contract between the plaintiff and the defendant was a valid contract.

ISSUE.2 WHETHER THE REMEDY OF INJUNCTION SHOULD BE GRANTED TO

AK BUILDERS.

It is humbly contented before the hon’ble court that there was a breach of contract while
performing the contract due to the fact that the defendant contracted to third party while
being in the contract with the plaintiff already. Therefore the remedy for injunction should be
granted.

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PETITIONER TC-018

ARGUMENT ADVANCED

ISSUE.1: WHETHER THE CONTRACT WAS VALID OR NOT.

[1.1] Contingent Contract

It is humbly contented before Hon’ble court that the contract of the defendant is totally
sustainable because ingredients of contract u/s 31 r/w 32 of ICA 1872 can be made out in the
facts and circumstances of this case. It would be profitable to set out sec 31 & 32 of the ICA.

“Contingent contract is a contract to do or not to do something, if some event, collateral to

such contract does or does not happen.

The word contingent ordinarily means subject to chance. In the ICA 1872, this word has been
used to mean conditional, just the way we use it generally. Uncertainty is the hallmark for the
future. Estimating the chance of an uncertainty becoming certain, calculating the results, if
the event doesn’t happen and then measuring the potentiality to deal with its consequences
are all about contingent contract. For e.g. a contract to pay a sum of money on the destruction
of the premises by a fire, is a contingent contract for that contingency may or may not
happen. From this point of view, all contracts of insurance is a contingent contract1.
Ordinarily therefore a contingent contract with contemplate a future event. But a contract
may also relate to an event which already happened and the only thing uncertain being that
the parties do not know which way it happened

Sec. 32 of ICA talks about- “Enforcement of contract contingent on an event happening

Contingent Contract to do or not to do anything if an uncertain future event happens cannot
be enforce by law unless and until that event has happened. If the event becomes impossible,
such contract become void.”

Sec. 32 lays down two basic principles. First a contract to do an act on happening of a future
uncertain condition cannot be enforced unless and until that event happen2. Second if the
happening of that event has become impossible contract become void. An option to buy share
of a bank if when the bank is converted financial corporation is a contract f this kind which is
to be performed on the happening future uncertain event3.

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

1
Chandulal Harjivandas v. CIT,AIR 1967 SC 816,818 (1967) 1 SCR 921, 925.Commision payable on success of
litigation this part was held to be a contingent contract. N.Peddanna Ogeti Balayya v. Kotta V. Srinivasayya
Setti Sons, AIR 1954 SC 26.
2
On the of the requisite contingency specific performance of the contract can be demanded .Rojasara
Ramjibhai Dahyabhai v. Jani Narottamdas Lallubhai, (1986) 3 SSC 300: AIR 1986 SC 1912
3
Jethalal C. Thakkar v. R .N .Kapoor, 1956 Bom 74

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PETITIONER TC-018

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.

[1.2] There was a acceptance by Khurana Architects

The term acceptance is defined u/s 2(b) of ICA 1872 which says “When the person to whom
the proposal is made signifies his accent thereto the proposal is said to be accepted. A
proposal, when accepted, becomes a promise.”

As per the facts of the case Naveen signed on a piece of paper containing the condition that if
three of the next five people entering the would be girls then he would agree to work on the
project till the end and Mahesh also signed too. It is clearly seen that the acceptance is
expressed in reasonable manner i.e. in written form6 .

Reliance can be placed on judgement The Supreme Court in the case of Bharat Petroleum v.
General Eastern Shipping Co. Ltd7. It was held that under certain circumstances offree
silence coupled with his may constitute an acceptance.

It is clearly shown in the facts that a week later Naveen came to the head office of AK
Builders with his team and started work. The conduct of the activity by Naveen clearly
shows his acceptance toward the contract.

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.

6
Sec. 7(2) of ICA 1872
7
(2008) 1 SCC 503: AIR 2008 SC 357

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PETITIONER TC-018

ARGUMENT ADVANCED

ISSUE.2: WHETHER THE REMEDY OF INJUNCTION SHOULD BE GRANTED

TO AK BUILDERS.

It is humbly submitted before Hon’ble court that there was a breach of contract. Breach of
contract is a legal cause of action in which a binding agreement or bargained-for exchange is
not honored by one or more of the parties to the contract by nonperformance or interference
with the other party’s performance. If the party does not full fill the contractual promise or
has given information to the other party that will not perform his duty as mentioned in the
contact or if by his action and conduct he seems to enable to perform the contract he is said to
breach the contract.

The breach of contract may be ( i ) Actual or , ( ii ) Anticipatory or, (iii) Minor breach or, (iv)
Material breach . As per the facts this is a pure concept of actual breach. The actual breach
may take place either at the time the performance is due or when actually performing the
contract.

The law on this issue is dealt within two statuses viz. the Specific Relief Act 1963 & ICA
1872. The remedies for breach of contract are suits for :

 Damages or compensation
 Specific performance
 Injunction
 Rescission
 Quantum meruit

In this case the remedy asked for the breach of contract is injunction.

Acc. per Order 39 rule 1-5 of c.p.c 1908 “an injunction is a judicial process where by a party
is required to do or to refrain from doing any particular act. It is a remedy in the form of the
order of the court addressed to a particular person that either prohibit him from doing or
continuing to do a particular act is a prohibitory injunction or order him to carry out of
certain act (Mandatory Injunction).” Injunction thus act in personam and not in rem.

As per the facts the remedy for temporary injunction is asked by the plaintiff. Temporary
injunction restrains a party temporarily from doing the specified act and can be granted only
until the disposal of the suit or until the further order of the court. “The court must be
satishfied that plantiff may suffer from irrepairble loss or injury which cannot be adequately
compensated by damges if the injunction is not granted”8

8
Nawab Mir Barkat Ali v. Nawab Zulfiquar AIR 1982 AP 384

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PETITIONER TC-018

PRAYER

Wherefore in the lights of facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before Honourable Court that it may pleased to :
1. Remedy of injunction should be granted
2. To give any other such direction which the petitioner are ever ready to be bound by.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and
Good Conscience
For which the counsel shall ever pray,

And for this the petitioner as in duty bound , shall humbly pray

COUNSELS ON BEHALF OF PETITIONER

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