TC 33

0
6TH INTRA-AMITY VIRTUAL MOOT COURT COMPITITION,2021

------------------------------------------------------------------------------------
BEFORE
THE HON’BLE SUPREME COURT OF TRENTLAND

(Under Article 133 of Constitution of Trentland)

In the Matter

of

RICHARDGARRY.....................................................................................APPEALANT

Versus

MODI GROUP.........................................................................................RESPONDENT

------------------------------------------------------------------------------------
Memorial on Behalf of the Respondent
-----------------------------------------------------------------------------------

COUNSELS FOR RESPONDENT

 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

TABLE OF CONTENTS

List of abbreviations

Index of authorities

 Table ofcases
 Statutes referred
 Books referred
 Journals and reporters

Statement of jurisdiction

Statement of facts

Statement of issues

Summary of pleadings

Arguments advanced

1. IS THE MODI ADMINISTRATION GUILTY OF WILLFUL AND

MEDICAL NEGLIGENCE ?
2. WAS THERE A BREACH OF CONTRACT BY ONE OF THE PARTIES ?
3. IS RICHARD LIABLE TO MODI GROUP FOR CIVIL DEFAMATION ?
3.1 False and defamatoryStatement
3.2 Statement must refer toplaintiff
3.3 Publication

2
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

4. IS EITHER PARTY ENTITLED TO COMPENSATION FOR THE

LOSS/HARM SUFFERES ?
4.1 Compensation for breach ofcontract
4.2 Compensation for the loss incurred due to defamation

Prayer

3
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

LIST OF ABBREVIATIONS

Abbreviation Definition

AIR ALL INDIA REPORTER

ALL. ER ALL ENGLAND REPORTER

Edn. EDITION

L.R. LAW REPORT

Q.B. QUEEN’S BENCH

K.B. KING’S BENCH

CO. COMPANY

ER ENGLAND REPORTER

SC SUPREME COURT

SCC SUPREME COURT CASES

V VERSUS

4
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

INDEX OF AUTHORITIES

TABLE OF CASES

CASES CITATION
Kusum Sharma v. Batra Hospital and (2010) 3 SCC 480
Medical Research Centre

Girdhar Gopal Garg v. Indraprastha Medical

Mrs. B. Beena & Ors.vs M/S. Kvm

Superspeciality

Achutrao Khodwa v. State of Maharashtra (1996) 2 SCC 634

Universal Cargo Carriers Corp. v Citati [1957] 2 QB 401

Dhanraj Mills Ltd Liability Co v Narsingh AIR 1949 Pat 270

Prasad Boobna

Wilberforce in Wooden Investment Devo Ltd (1980) 1 WLR 277 (HL).

vs Wimpey Construction UK Ltd

B.V. Nagaraju v Oriental Insurance Co. Ltd. (1996) 4 SCC 647

Heyman v Darwin’s Ltd (1942) AC 356,361

White& Carter Ltd vs McGregor 1962 AC 413

State of Kerala vs Cochin Chemical AIR 1968 SC 1361.

Refineries Ltd

Ogilvie v. The Pnjab Akhbarat & Press Co (1929) ILR 11 Lah 45

Lt. Col. Gidney v. The A.I. &D.E. Federation (1930) ILR 8 Ran 250

Narayanam v. Narayana AIR 1961 Mad 254

Clarke v. Malyneux (1877) 3 QBD 237

Dhurmo das v. Kaylash (1869) 12 WR 372.

5
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

Sim v. Strtch (1936) 52 T.L.R. 669, 671

Mst. Ramdhara v. Mst. Phulwatibai 1969 Jab. L.J. 582

R v. Adams (1880) 22 QBD 66

Hadley vs Baxendale (1854) 9 Exch 341

Ramgopal vs Dhanji Jadvaji Bhattia (1927-28) 55 IA 299: AIR 1928 PC 200.

Mackertich vs Nobo Coomar Roy ILR (1903) 30 Cal 477.

Oil and Natural Gas Corp. Ltd. Vs Saw Pipes AIR (2003) SC 2696.
Ltd.

Robinson vs Harman (1848) 18 LJ Ex 202

Hebditch v. Macllwaine (1894) 2 Q. 54

Darshan Singh v. Yudhishthir singh

Union Benefit Guarantee Company v. (1935) 37 Bom LR 1033

Thakorlal Thakor

STATUTES REFERRED

1. Indian Contract Act, 1872

BOOKS REFERRED

1. Law of Torts by Dr. R.K.Bangia

2. The Law of Torts by Ratanlal andDhirajalal
3. Contract and Specific Relief by AvatarSingh

6
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

STATEMENT OF JURISDICTION

The hon’ble court has jurisdiction to try the instant matter under article 133 of Constitution of
India.

Article 133:

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order ina
civil proceeding of a High Court in the territory of India if the High Court certifies under
article134A—

(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
SupremeCourt.

(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 lawas
to the interpretation of this Constitution has been wronglydecided.

(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 HighCourt.

7
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

STATEMENT OF FACTS

1. Modi Group is a Trentland based multinational company. Richard Garry is a heavy-

metal vocal artist, resident of Trentland. Richard signed a contract with ModiGroup.
2. According to contract, Richard was to be paid a total amount 3.5 Million US Dollars,
for a total of 10 performances in different countries. Modi group was also responsible
for management of hospitality and other event management related responsibilities of
theartist.
3. First event was hosted in Finland which was a success. The next lined-up event was in
Clerden which is an underdeveloped country with limited fan base. Artist insisted in
shifting the location but all the arrangements were started with, the organizers denied
therequest.
4. Clerden residents were infected with PHARYNGITIS at the time of concert. After the
concert Richard observed some issues with his throat, then later he had a headache
and severetonsils.
5. He was then admitted to Modi Hospital where he was taken to a care room, which
increased his discomfort as the room was not well-ventilated. Medicines given to him
reactednegatively.
6. Richard and his team then left for Trentland for treatment without conveying thisto
the organisers. The organisers started preparing for the third concert in Sweden
believing it to be a minorinfection.
7. When organisers came to know that Richard has no intention to perform. They
threatened his manager to face appropriateconsequences.
8. Next day Richard Garry went live on social media and narrated - “I signed up for this
event to reach out to maximum fans of metal music; I signed up to give power to the
people through our music. The Finland event was a great success; I don’t know what
made them treat me and my staff poorly. Clerdon was a black chapter of my career,
the facilities were worst. Doctors here have told me that medicine provided in Clerdon
didn’t suit my body and the infection is serious. My career is on stake, maybemoney
is the only thing which those inhumane capitalists care about”

8
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

9. Artist’s statement went viral and a social media campaign was launched against Modi
Group. Fans pelted stones on property of Modi Group and hashtags were started
againstthem.
10. Modi Group faced substantial loss of finance due to the campaign. They suedRichard
for breach of contract and civil defamation. Richard cross sued for negligence and
medical negligence. A judgement was passed in favour of Modi group by the lower
court.

9
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

STATEMENT OF ISSUES

Issue 1.

IS THE MODI ADMINISTRATION GUILTY OF WILLFUL AND

MEDICAL NEGLIGENCE ?

Issue 2.

WAS THERE A BREACH OF CONTRACT BY ONE OF THE PARTIES ?

Issue 3.

IS RICHARD LIABLE TO MODI GROUP FOR CIVIL DEFAMATION?

Issue 4.

IS EITHER PARTY ENTITLED TO COMPENSATION FOR THE LOSS/HARM SUFFERED?

10
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

SUMMARY OF PLEADINGS

Issue 1.
IS THE MODI ADMINISTRATION GUILTY OF WILLFUL AND
MEDICAL NEGLIGENCE ?
It is humbly submitted before the hon’ble court that Modi Group has not committed willful and
medical negligence. The doctors made a mere error of judgement due to the confusion made by the
spread of Pharyngitis in the locality. They provided Richard with apt standard of care. All the duties
of doctor-patient relationship were fulfilled. Different doctors have different opinions and Richard
must have given time to Modi Hospital for understanding the origin of his disease. As at that time
the city was suffering from infection which made it difficult to understand that whether certain
person is suffering from basic fever and cold or Pharyngitis infection.

Issue 2.
WAS THERE A BREACH OF CONTRACT BY ONE OF THE PARTIES ?

It is humbly submitted before the honourable court that Mr. Richard Garry, the appellant
had breached the contract. The appellant, firstly, without conveying to the organizers, along
with his team left Clerdon and returned back to Trentland and secondly, repudiated to
perform his promise. The manager on behalf of the appellant refused to perform and had no
intention to continue performances making the breach an anticipatory breach dealt by
section 39 of the Indian Contract Act, 1872. The respondent signified expressly his
acquiesce in continuance of the contract but the appellant rather than performing made
defamatory statement on social media against the respondent which led to financial losses to
therespondent.

11
 6th INTRA-AMITY VIRTUAL MOOT COURT COMPETITION, 2021

Issue 3.

IS RICHARD LIABLE TO MODI GROUP FOR CIVIL DEFAMATION?

Richard is liable for civil defamation as his statement made on a live video checked all the
essentials of defamation. The words he spoke were false as well as derogatory in respect of
Modi Group. They were spoken to degrade the reputation of Modi and it was published
within millions of people. The right thinking members of the society has reacted negatively
to Richard’s speech and had reacted in an abrupt manner by damaging Modi Group’s
property and making negative hashtags trending.

Issue 4.

IS EITHER PARTY ENTITLED TO COMPENSATION FOR THE

LOSS/HARM SUFFERED?

It is humbly submitted before the Hon’ble Court as contended earlier that the respondent is a
reputed and well settled Firm and the appellant Mr Richard Garry is a famous metal-music
artist. The respondent signed a contract with the appellant which after part performance was
breached by the appellant. Also the appellant published a defamatory video on his social
networking site which egregiously injured the respondent’s goodwill and reputation also
resulted to financial losses. The actions of the appellant were such that makes him liable to
compensate respondent for the losses incurred by him.

12
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

ARGUMENTS ADVANCED

1. IS THE MODI ADMINISTRATION GUILTY OF WILLFUL AND

MEDICALNEGLIGENCE?
Every person who enters into a particular profession undertakes to bring to the exercise
of it a reasonable degree of care and skill. A person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a patient owes him certain
duties:
 A duty of care in deciding whether to undertake thiscase.
 A duty of care in deciding what treatment togive.
 A duty of care in the administrating that treatmentproperly.

A breach of any of these duties gives a right of action for negligence to the patient.

It is contented that in the present case Modi Hospital has taken proper care of Richard
for the time he was in the hospital. He was given the treatment which was proper at that
moment of time. Clerdon was suffering the infection of Pharyngitis at the time of
concert and it needs time to understand any disease that a patient is facing.

Doctors have certainly prescribed him medications but it was a mere error of judgement
on the part of doctors. In case of Kusum Sharma v. Batra Hospital and Medical
Research Centre1, Justice Dalveer Bhandari held that Negligence is an essential
ingredient of the offence. The negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error of judgment.

In the present case the doctors made a mere error in judging that whether the tonsils,
headache of Richard are result of cold or Pharyngitis. The infection was new to the city
of Clerdon and doctors were still adapting to its nature. Time was required for actually
understanding what exactly Richard was suffering from and that he didn’t give to the
doctors of Modi Hospital.

3
(1996) 2 SCC 634

13
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

In the case of Girdhar Gopal Garg v. Indraprastha Medical…2, it was held that the
error of judgement is no medical negligence.

The Supreme Court in Achutrao Khodwa v. State of Maharashtra3laid down the law
as follows: “The skill of medical practitioners differs from doctor to doctor. The very
nature of the profession is such that there may be more than one course of treatment
which may be advisable for treating a patient. Hence, the doctor of Modi Hospital
chose one course which did not suit Richard and didn’t give time to the doctor to rectify
theerror.

Hence, it is contented that Modi Hospital is not liable for medical negligence keeping in
mind the error of judgement made by doctors at the time when a severe infection has
already infected many residents of Clerdon.

2
Mrs. B. Beena & Ors. vs M/S. Kvm Superspeciality
3
(1996) 2 SCC 634

14
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

2. WAS THERE A BREACH OF CONTRACT BY ONE OF THE PARTIES?

It is humbly submitted before the honourable court that the appellant breached the
contract by refusing to perform the promise. The appellant, Mr Richard Garry is a
heavy-metal vocal artist, who signed a contract with the respondent to perform in 10
different countries. The first two concerts were a huge success, but the appellant refused
to perform in the third country, i.e., Sweden also had no intention to continue
performances. It was only after Clerdon concert the appellant complained about his
discomfort and headache. The Modi Group with utmost sincerity provided with the best
possible medication to the appellant in its own hospital with best doctors and facilities.
Richard along with his team, though being treated by best doctors, left the city without
conveying the organizers and returned back to his hometown Trentland initially
breaching the terms and conditions of the contract. The organizers started preparing for
the third event because they were not having knowledge that the appellant has left for
Trentland and has breached the contract. It was then later the Manager, on behalf of the
of the appellant, after the preparations were done, refused to perform in the concert and
had no intention to continue performances. The organizers did not accept the repudiation
and compelled the appellant to perform. This action of the appellant invoked the
Doctrine of Anticipatory Breach; Justice Delvin defined anticipatory breach as:

“Anticipatory breach means that a party is in breach from the moment that his actual
breach becomes inevitable. Since the reason for the rule is that a party is allowed to
anticipate an inevitable event and is not obliged to wait till it happens, it must follow
that the breach which he anticipates is of just the same character as the breach which
would actually have occurred if he had waited.”4

When a party to the contract renounce his obligation or refuses to perform, prior to the
promised date of performance and such repudiation or refusal should have been
communicated to the other party then the party is said to make an anticipatory breach of
contract. This doctrine is expressed under Section 39 of the Indian Contract Act which
states that:

4
Universal Cargo Carriers Corp. v Citati[1957] 2 QB 401

15
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

“When a party to a contract has refused to perform, or disabled himself from

performing, his promise in its entirety, the promisee may put an end to the contract,
unless he has signified, by words or conduct, his acquiescence in its continuance.”

The following are the essentials to invoke anticipatory breach:

1. The refusal should beclear.

2. The refusal should becommunicated.
3. The refusal should be absolute, i.e., refuse to perform the promiseentirely.
4. The refusal should be of act not yet be performed, i.e., the repudiation should be
before due date ofperformance.

In the case of Dhanraj Mills Ltd Liability Co v Narsingh Prasad Boobna5 the Court
held that, “it is necessary that the refusal should have been communicated to the other
party and should make the intention not to perform quite explicit.” Also, Lord
Wilberforce in Wooden Investment Devo Ltd vs Wimpey Construction UK Ltd6
observed that, “Repudiation is a drastic conclusion which should only be held to arise in
clear cases of a refusal, in a manner going to the root of the contract to perform
contractual obligations.”

In another case of B.V. Nagaraju v Oriental Insurance Co. Ltd.7 The Supreme Court
held that “Every contract contains a core or fundamental obligation which must be
performed. If one party fails to perform this fundamental obligation, he will be guilty of
a breach of contract whether or not any exempting clause has been inserted which
purports to protect him”. In the present case the fundamental or the core of the contract
was the performance by the appellant which he refused to perform breaching the
contract under section 39 of the Indian Contract Act, 1872. Also, all the above
mentioned essentials of section 39 are duly followed by the appellant making the breach
an anticipatory breach.

5
AIR 1949 Pat 270.
6
(1980) 1 WLR 277 (HL).
7
(1996) 4 SCC 647.

16
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

It is further submitted that on the anticipatory breach of contract the injured or aggrieved
party has two options namely:

1. As soon as the anticipatory breach has been committed, the injured party can
rescind or repudiate the contract and can bring an action for damages for
anticipatory breach of contract without waiting for the due date for the
performance of thecontract.
2. The other option is that the injured or the aggrieved party waits till the due date
fixed for the performance of contract and then brings a case against the
defaulting party for breach ofcontract.

In the present case the respondent denied to accept the repudiation made by the
appellant and expressly signified his intention to acquiesce in the continuance of the
contract.

It is further submitted that mere repudiation by one does not mean acceptance of such
repudiation by another. In the case of Heyman v Darwin’s Ltd8 the law was stated in
the speech of Viscount Simon LC that: “repudiation by one party standing alone does
not terminate the contract. It takes two to end it, by repudiation, on the one side, and
acceptance of the repudiation, on the other.” Also, in State of Kerala vs Cochin
Chemical Refineries Ltd9 the Supreme Court held that the contract does not terminate
unless the repudiation is accepted by other party. So in the present case the respondent
did not accept the repudiation rather waited for the performance by the appellant.

It is further submitted that the respondent was expecting the appellant to perform his
promise on the date of performance though he refused to do so. But the appellant did not
perform his promise and therefore breached the contract.

8
(1942) AC 356,361; similarly in White& Carter Ltd vs McGregor 1962 AC 413 the House of Lord considered the
rule to be well-established.
9
AIR 1968 SC 1361.

17
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

3. IS RICHARD LIABLE TO MODI GROUP FOR CIVIL DEFAMATION ?

It is humbly submitted before the hon’ble court that Richard is liable for defamation. It is
an injury to the reputation of a person i.e. harm made to the goodwill or character of an
individual. A statement to be defamatory must be:
 False
 Refer to a specific person and must be understood by right thinking or reasonable
Minded persons, as referring to that specificperson.
 Published
The statement made by Richard Garry fulfils all the essentials of statement to be
derogatory as well as defamatory. His statement was false which he published on the
internet in front of millions of people provoking them in the wrong direction.

3.1 False and defamatoryStatement

It is contented that the words spoken by Richard Garry were indecent in respect of Modi
Group. The statement which he refers to as opinion was never an opinion but a mere step
of depleting Modi Group’s reputation among the millions of people. It is rightly said that
if a man has stated that which is false and defamatory, malice is also assumed.10

Any words will be deemed defamatory which

 Expose the plaintiff to hatred, contempt, ridicule or obloquy;or

 Tend to injure him in his profession or trade;or
 Cause him to be shunned or avoided by hisneighbours.

It is hence contended that Modi Group was exposed to hatred, contempt and obloquy of
many people as clear of the facts about the negative reaction of fans and other public.

10
Ogilvie v. The Pnjab Akhbarat & Press Co., (1929) ILR 11 Lah 45; Lt. Col. Gidney v. The A.I. &D.E.
Federation, (1930) ILR 8 Ran 250; Narayanam v. Narayana, AIR 1961 Mad 254; Clarke v. Malyneux, (1877) 3
QBD 237; Dhurmo das v. Kaylash (1869) 12 WR 372.

18
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

3.2 Statement must refer toplaintiff

Defamation is the Publication of a statement which tends to lower a person in the

estimation of right thinking members of society generally,11 or which tends to make them
shun or avoid that person.12In the present case statement of Richard is defamatory and
derogatory because it is clear from the aftereffects of his publishing the same. The fans,
the public started acting negatively against the Modi Group as soon as the video got
viral. Negative hashtags were on trending #inhumaneModi and #boycottModi. This
campaign has led to cancellation of all the events that were scheduled in thefuture.

It is further contended that whether a statement is defamatory or not depends upon how
the right thinking members of the society are likely to take it. The standard to be applied
is that of a right-minded citizen, a man of fair average intelligence, and not that of a
special class of person whose values are not shared or approved by the fair minded
members of the society generally.13

3.3 Publication

Publication means making the defamatory matter known to some person other than the
person defamed.14 In the present case it is clear from the facts that Richard published his
statement on a live video over social media which connects millions and billions of
people. Each and every word said by Richard reached those people which resulted into
destruction of property and substantial loss of finances. The live video was clearly seen
by many people as no doubt Richard Garry has great amount of fans, hence the words
were communicated to some person other than Modi Group; it is publication of
defamatory statement

It is further contended that destruction of property, trending hashtags, substantial loss of

finances are all a proof of published message of the artist making him liable for civil
defamation.

11
Sim v. Strtch, (1936) 52 T.L.R. 669, 671.
12
Winfield, Tort, 12th ed., 293.
13
Mst. Ramdhara v. Mst. Phulwatibai, 1969 Jab. L.J. 582
14
R v. Adams (1880) 22 QBD 66.

19
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

4. IS EITHER PARTY ENTITLED TO COMPENSATION FOR THE

LOSS/HARM SUFFERED?

It is humbly submitted before the Hon’ble Court as contended earlier that the
respondent is a reputed and well settled Firm and the appellant Mr. Richard Garry is a
famous metal-music artist. The respondent signed a contract with the appellant which
after part performance was breached by the appellant. Also the appellant published a
defamatory video on his social networking site which egregiously injured the
respondent’s goodwill and reputation also resulted to financial losses. The actions of
the appellant were such that makes him liable to compensate respondent for the losses
incurred by him.

4.1 Compensation for breach ofcontract

It is humbly submitted before the Hon’ble Court that the appellant had breached the
contract by repudiating to perform his promise. The appellant successfully performed in
the first two concerts but refused to perform in the concert to be conducted in Sweden
also with the intention to not continue his performances. With this the appellant
breached the contract under section 39 of the Indian Contract Act, 1872, i.e., the
anticipatory breach of contract.

It is further submitted that when an anticipatory breach of contract is committed the

injured or the aggrieved party generally has two options at his/her disposal. The options
available to the injured party in case of anticipatory breach of contract are as follows:

 As soon as the anticipatory breach has been committed, the injured party can rescind
or repudiate the contract and can bring an action for damages for anticipatory breach of
contract without waiting for the due date for the performance of thecontract.

 The other option is that the injured or the aggrieved party waits till the due date fixed
for the performance of contract and then brings a case against the defaulting party for
breach ofcontract.

The respondent expressly signified his acquiesce to continuance of the contract but the
respondent didn’t perform it. This attracted the section 73 of the Indian Contract Act,
1872 which states that:

20
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

“Compensation for loss or damage caused by breach of contract.—When a contract has been
broken, the party who suffers by such breach is entitled to receive, from the party who has
broken the contract, compensation for any loss or damage caused to him thereby, which
naturally arose in the usual course of things from such breach, or which the parties knew,
when they made the contract, to be likely to result from the breach of it.”

It is further submitted that in the landmark judgement of Hadley vs Baxendale15the

two rules were established which are incorporated in the section 73 of the Indian
Contract Act. The Section lays down the rule of reasonable foresight as well as the rule
of contemplation of the parties. The Section clearly lays down two rules. Compensation
is recoverable for any loss or damage:

a) Arising naturally in the usual course of things from such breach:General

damages;and

b) Which the parties knew at the time of the contract as likely to result fromsuch
breach: Specialdamages.

In order to compute the damages for the breach, if the anticipatory repudiation is
accepted then the damages will be assessed from the date of repudiation. In the leading
case of Ramgopal vs Dhanji Jadvaji Bhatia16 the Court held the plaintiff entitled to
recover the estimated loss of profits at the time of repudiation. And if the anticipatory
repudiation is not accepted then the damages will be assessed at the time fixed for
performance.17 Also, in the leading case of Oil aand Natural Gas Corp. Ltd. Vs Saw
Pipes Ltd.18 Four propositions of law:

a) The terms of the contract are required to be taken intoconsideration.

b) If the terms are clear and unambiguous stipulating the damages in case of
breach and such is neither unreasonable, nor penal, such compensation attracts
section73.

c) Section 74 is to be read along with section73.

d) The court can award a pre estimated genuine loss asrecoverable.

15
(1854) 9 Exch 341.
16
(1927-28) 55 IA 299: AIR 1928 PC 200.
17
Mackertich vs Nobo Coomar Roy, ILR (1903) 30 Cal 477.
18
AIR (2003) SC 2696.

21
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

Also in Robinson vs Harman19 it was held that “the primary aim or governing purpose
of the damages is to put the party whose rights have been violated in the same position,
so far as money can do so, as if his rights have been observed.”

It is further submitted that the respondent had suffered the loss due to breach of contract
and as the remedy he can only claim monetary damages and is entitled to be
compensated.

4.2 Compensation for the loss incurred due todefamation

In legalese, "damages" is another word for the harmed person's losses resulting from
the at-fault party's actions. Generally, there are two types of damages in a defamation
case: (1) actual damages, (2) assumed damages.

Actual damages are compensatory damages, which in a defamation case are usually
somewhat quantifiable and are meant to restore the injured party, as nearly as possible,
to the position he or she would have been in had the wrongful conduct (the harmful
statement in a defamation case) never occurred. Actual damages include all financial
losses the plaintiff has suffered with respect to his or her property, business, trade,
profession or occupation.

Presumed damages (also called assumed damages) are those that, in the eyes of thelaw,
necessarily result from the publication of some kinds of defamatory matter (they are
presumed to exist). In other words, even if the plaintiff cannot prove actual damages,
the court can assume that the plaintiff has suffered harm to his or her reputation or
some otherloss.

The respondent has suffered with losing his reputation in the society. The appellant
being a famous artist influenced his fans and the public at a large no. by the video.
People started pelting stones outside his office and started protesting against the group
with some taglines. This has destroyed the future of the group as the criticism by the
public of the group reached a large no. of people.

It is further submitted that the group shall be compensated for the actual as well as
presumed damages. Although there is no amount of money which could be fixed for a
person’s reputation but after all, the group faced a major loss in the company due to the

19
(1848) 18 LJ Ex 202

22
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

criticism and also lost his reputation, so he shall be compensated with an adequate
amount.

In the present case, the artist had an interest with the Group as there was a breach of
contract and trust by the artist.

In Sullivan’s Law of defamation of page 80 learned authors has referred to the case of
Hebditch v. Macllwaine20 where it was observed that the interest must exist in the party
to whom the communication was made as well as in the party making it. It is sufficient
that the defendants honestly and reasonably believe that the person to whom he made
communication had an interest in the subject matter thereof.

In Darshan Singh v. Yudhishthir singh, it was held that in a suit

seeking defamation, compensation to the tune of Rs. 50,000/- has been awarded by
the trial court.

In the case of Union Benefit Guarantee Company v. Thakorlal Thakor21, it was held
that a company or a trading corporation, words calculated to reflect upon it in the way
of its property or trade or business, and to injure it therein, are actionable without proof
of special damage; but if they refer only to the personal character or reputation of its
officers, then proof of special damage is necessary.

20
(1894) 2 Q. 54
21
(1935) 37 Bom LR 1033

23
 1st LMLRO NATIONAL TORT LAW MOOT COURT COMPETITION

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, and authorities cited, the
counsels for the prosecution humbly prays to this Honourable Court to declare:

A. That, Mr Richard Garry had wilfully breached the contract under Section 39 of the
Indian Contract Act,1872.
B. That, Mr Richard Garry had published defamatory statement on the social media
which had egregiously injured the reputation of the ModiGroup.
C. That, Modi Group is entitled to receive the compensation for the loss incurred duethe
breach of contract under section 73 and 74 of the Indian Contract Act as well as
entitled for the compensation for the financial loss incurred due to defamatory
statement.

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 Prosecution shall
duty bound forever pray.

Date S/d1

Place 2

(Counsels for the Respondent)

24