MOOT COURT MEMO

BA. LLB (Hons.) Semester II

Submitted To-
Adv. A.K. Shukla
SCHOOL OF LAW, NMIMS
DEEMED TO BE UNIVERSITY

Submitted By-
Vidhi Doshi
BA.LLB (HONS)
A015

MEMORIAL ON BEHALF OF PETITIONER 1

 BEFORE

THE HON’BLE HIGH COURT OF BOMBAY

CIVIL CASE NO. /2022

(Under section 6 of the code of civil procedure,1908)

IN THE MATTER OF

THE PETITIONER (PETITIONER)

V.

TRAVEL SOLUTIONS PRIVATE LIMITED (RESPONDENT)

MEMORIAL ON BEHALF OF PETITIONER 2

 TABLE OF CONTENTS

List of abbreviations ................................................................................................................ 3

Index of authorities .................................................................................................................. 4

Statement of jurisdiction ......................................................................................................... 5

Statement of facts ..................................................................................................................... 6

Issues Raised ............................................................................................................................. 8

Summary of arguments ........................................................................................................... 9

Arguments advanced ............................................................................................................. 11

Prayer ...................................................................................................................................... 15

MEMORIAL ON BEHALF OF PETITIONER 2

 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

¶ Paragraph

Ltd. Limited

Ors. Others

AIR All India Reporter

SCC Supreme Court Cases

SC Supreme Court

HC High Court

Co. Company

Hon’ble Honourable

V. Versus

& And

Art. Article

Ed. Edition

Vol. Volume

Rs. Rupees

Corp. Corporation

Sec. Section

MEMORIAL ON BEHALF OF PETITIONER 3

 INDEX OF AUTHORITIES

Cases Referred:

Pooja Ravinder Devidasani vs State of Maharashtra & Ors

M/s Rakesh Kumar Dinesh Kumar v. U.G Hotels & Resorts Ltd
Morris v Ford Motor Company Limited

Statutes reserved:

1. The Indian Contracts Act,1872

2. The Indian Evidence Act,1872

MEMORIAL ON BEHALF OF PETITIONER 4

 STATEMENT OF JURISDICTION

The petitioner has the honor to submit before the Hon’ble High court of Bombay, which has
the inherent jurisdiction to try, entertain and dispose of the present case by the virtue of the
Bombay High Court Rules (Original Side),1980 along with Sec. 6 of the Code of Civil
Procedure,19082.

MEMORIAL ON BEHALF OF PETITIONER 5

 STATEMENT OF FACTS
➢ The petitioner is working with a law firm called Dark Industries which is situated in Pune
and his work requirement is such that he barely gets any days off. Owing to the severe
workload, in case of any planned leaves, he must apply for a leave several weeks in
advance.
➢ is a highly reputed private limited company basedin Mumbai that provides travel services
such as booking of air tickets, processing the request for visas, hotel reservations etc.

• Despite the hectic work schedule, The petitioner makes it a point to take a family vacation
once every few years with his wife and two kids. During July 2017, The petitioner was
planning for a family vacation to Australia in the second week of September 2017. For
making arrangements for his trip to Sydney via Singapore, The petitioner contacted Travel
solutions private limited.
• The sales team of Travel solutions private limited met The petitioner and explainedto him
about the services provided by them. Heisenberg was particularly concerned aboutthe visa
process. He was informed that the process of issuance of a tourist visa generally takes 10-
15 days.
• Heisenberg was given a list of documents required for the processing of visa on by
Mr. Mr. Tommen of Travel solutions private limited. He had requested him to secure the
documents and give it to him personally so that he may scrutinize it and send it to their
Delhi Office for filing it with the embassy.
• Heisenberg managed to submit the documents to Travel solutions private limited onthe
evening of 11.08.2017 at the reception desk, however, by that time Mr. Tommenhad already
left the office. Heisenberg called up Mr. Tommen who instructed thereceptionist to dispatch
the documents immediately.
• On 21.08.2017, The petitioner got a call from the Delhi office of Travel solutions private
limited informing him that an additional document was required.
• He was informed that on 12.08.2017 to 13.08.2017 the office was closed on account of
Christmas and New Year Holiday. The documents were dispatched on 16.08.2017 and

received only on 18.08.2017. On 03.01.2022 upon verification, they realized that a

document was missing.
• The petitioner obtained the required document and sent it to Delhi by express courier on
22.08.2017 which was received by them on 23.08.2017. Travel solutions private limited
filed the visa form along with the documents on 23.08.2017.

MEMORIAL ON BEHALF OF PETITIONER 6

 • On 06.09.2017, the Visas were issued to The petitioner by the Australian embassy. Travel
solutions private limited received copies of the passports and sent an image of the visas on
WhatsApp to The petitioner.
• The petitioner requested that the passports be dispatched immediately. Travel solutions
private limited advised The petitioner that owing to the paucity of time, itwould be too risky
for the passports to be dispatched to Mumbai and instead passports would be sent to the
Chennai airport directly.
• The petitioner left Mumbai on 08.09.2017 with his wife and two kids to Chennai. He
reached Chennai airport by 14:00 hours and was waiting for the passports so board his flight
to Australia. Unfortunately, the passports reached the airport only by 21:00 hours bywhich
time The petitioner had missed his flight.
• Out of frustration, he tweeted "Travel solutions private limited- a bunch of liars, cheats and
thieves with no ethics. The worst company ever". Further, The petitioner uploaded a picture
of his entire family stranded at the airport along with a detailed post placing the entire blame
on the company. He ended the post with #TSPLsucks and a logoof the company.

• The petitioner sued before the High Court of Mumbai for negligence. He claimed a sum of
Rs. 50 lakhs towards cancelled air tickets, hotel reservations, mental trauma, agony etc.
suffered by him and his family owing to the negligence on the part of.
• The petitioner filed a counterclaim against. It wascontended by them that owing to the
malicious propaganda, has suffered a tremendous loss of image, reputation and good-will.
The social media misinformation is false and defamatory in nature.

MEMORIAL ON BEHALF OF PETITIONER 7

 ISSUES RAISED

1) Whether i s liable for negligence and vicarious liability?

2) Whether the act of the respondents was fraudulent?

3) Was there breach of contract arising between both the parties which made the
respondent liable to pay damages?

MEMORIAL ON BEHALF OF PETITIONER 8

 SUMMARY OF ARGUMENTS
1. Whether liable for negligence ?

Mr. Tommen who was an employ at Travel pvt Ltd where he told the petitioner that he would
scrutinize all the documents before sending it to the embassy but the employee of Travel Pvt
Ltd failed to do that which caused the delay in processing of visa and this action caused the
petitioner a huge economical loss and according to the legal maxim of Res Ipsa Loquitor
which means the thing speaks for itself there was negligence on the part of Mr. Tommen,
thus Travel Pvt ltd have to compensate the petitioner for their negligence. Travel Pvt ltd are
hence liable for the negligence of their employee according to Qui facit per alium facit per se
which means “he who does an act through another is deemed in law to be have done it by
himself. However, for liability to arise, two parties must have certain relation such as
employer and employee which can be seen in the legal maxim of Respondent Superior and
according to the principal of vicarious liability which means the superior is responsible for
the acts done by the subordinate.

2. Whether the act of the respondents was fraudulent?

It is further submitted to the Hon’ble court that Travel Solutions Private Limited was also
fraudulent in their act as facts suggest that the co. did not inform the plaintiff about the
vacation break and also did not inform about the refund rules of both the different flights.
3. Was there breach of contract arising between both the parties which made the
respondent liable to pay damages?
It is further submitted due to the negligent acts of the co. Mr. Heisenberg suffered multiple
damages. As the facts of the case suggest Mr. Heisenberg missed his flight from Chennai as the
passports did not reach on time and further, he got to know that the flight was non-refundable.
He also lost all his money in visa and hotel reservations. Owing to the negligence on the part
of the co. Mr. Heisenberg and his family faced mental trauma, agony, stress etc.
Since the contract is broken when the petitioner couldn’t board the flight there was a loss
faced by him as the flight was also completely non-refundable and the respondent
company had the duty to inform the passengers about the non-refundability of the flights
and also it was their duty to courier the documents on time which they failed to comply
with and hence there was a breach of duty and hence the respondent is liable to pay
damages.

MEMORIAL ON BEHALF OF PETITIONER 9

 ARGUMENTS ADVANCED

I. Whether liable for negligence and vicarious liability?

1. According to Black’s law dictionary3 Negligence is defined as “The failure to exercise the
standard of care that a reasonably prudent person would have exercised in a similar
situation; any conduct that falls below the legal standard established to protect others
against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or
willfully disregardful of others' rights.”
2. The petitioner worked as a data analyst in a data analyst company called DataMax and has
a heavy workload. He has to plan any vacation several weeks in advance due to the nature
of his profession, workload, and hectic schedule4.
3. In July’17 he planned a vacation to Australia in the second week of September. At the same
time, he contacted Travel Solutions Private ltd. The petitioner was approachedby the sales
staff of, who described their services to him. The petitioner was specifically worried about
the visa procedure5.
4. The petitioner was promised by 's sales staff that the process of obtaining a tourist visa
usually takes 10-15 days and not more than that6.
5. The petitioner states that he was given a list of documents required for the processing
of visa by Mr Tommen of the respondent company.
6. The petitioner was asked to secure the documents and give it to Mr. Tommen personally
so that he could check them and send it to their Delhi Office for filing it with the
embassy.
7. Prioritizing the process of compiling all the documents, the petitioner managed to
submit the documents to Travel Solutions Private Limited on the evening of
11.08.2017 at the reception desk by which time Mr Tommen had already left the office.
8. Mr. Heisenberg the petitioner, called up Mr Tommen who instructed the receptionist
to dispatch the documents immediately.
9. Mr. Tommen who was an employ at Travel pvt Ltd where he told the petitioner that he
would scrutinize all the documents before sending it to the embassy but the employee
of Travel Pvt Ltd failed to do that which caused the delay in processing of visa and
this action caused the petitioner a huge economical loss .
10. According to the legal maxim of Res Ipsa Loquitor which means the thing speaks for
itself there was negligence on the part of Mr Tommen, thus Travel Pvt ltd have to
compensate the petitioner for their negligence.

MEMORIAL ON BEHALF OF PETITIONER 10

 11. This principle is cited in Morris v Ford Motor Company Limited that a company
would be liable for the negligence of its employees.
12. Travel Pvt ltd are hence liable for the negligence of their employee according to Qui
facit per alium facit per se which means “he who does an act through another is deemed
in law to be have done it by himself.
13. However, for liability to arise, two parties must have certain relation such as employer
and employee which can be seen in the legal maxim of Respondent Superior and
according to the principal of vicarious liability which means the superior is responsible
for the acts done by the subordinate.
14. This case laws are used in Pooja Ravinder Devidasani vs State of Maharashtra &
Ors a supreme court case which speaks about vicarious liability.

II. Whether fraudulent in their act?

15. In Sec.17 of Indian Contract Act12 “Fraud” means and includes any of the following
actscommitted by a party to a contract, or with his connivance, or by his agent , with
intent to deceive another party thereto of his agent, or to induce him to enter into the
contract. Further, Sec. 17 (2) the active concealment of a fact by one having
knowledge.
16. The petitioner was not informed about the holiday break; if he had known about the break,
he would have attempted to provide the documents earlier.
17. The petitioner was informed that while the flight from Mumbai to Sydney was refundable
while the one from Chennai to Sydney was non-refundable. These facts were concealed
from The petitioner by the co. which led to all the unfortunate events.
18. The petitioner left Mumbai on 08.09.2017 with his wife and two kids to Chennai. He
reached Chennai airport by 14:00 hours and was waiting for the passports so board his flight
to Australia. Unfortunately, the passports reached the airport only by 21:00 hours bywhich
time The petitioner had missed his flight14.
19. The co. didn't realize, that Chennai is significantly far away from Delhi than Mumbai. As a
result, the probability of passports arriving at the airport were minimal, and the petitioner
would miss his departure. This shows that the co. never intended to perform the act.
20. Finally concluding the argument, we would like to submit that there was an active
concealment of facts from the respondent company.
21. In Black’ Law Dictionary15 Damages is defined as “Loss or injury to person or property
actionable damage resulting from negligence”
MEMORIAL ON BEHALF OF PETITIONER 11
 22. The petitioner was left stranded at the airport with his entire family along with their entire
luggage. To add on to his misery, he was informed that while the flight from Mumbai to
Sydney was refundable while the one from Chennai to Sydney was non- refundable.

23. It came as a shock to The petitioner for he had lost a lot of money towards the flight tickets
in addition to the money spent on the hotel reservations. However, more than that he was
aghast at the fact that his family had to undergo the entire ordeal17.
24. Finally, concluding the argument we would like to submit to the Hon’ble court that Rs.50
Lakhs should be provided as compensation against the damages.

III. Was there breach of contract arising between both the parties which made the
respondent liable to pay damages?
25. The petitioner sued the respondent before the High Court of Mumbai for negligence.

He claimed a sum of Rs. 50 lakhs towards cancelled air tickets, hotel reservations,

mental trauma, agony etc. suffered by him and his family owing to the negligence on

the part of Travel Solutions Private Limited.

26. According to Section 2(a) of the Indian Contracts Act,1872 , “When one person

signifies to another his willingness to do or to abstain from doing anything, with a view

to obtaining the assent of that other to such act or abstinence, he is said to make a

proposal”.

27. With respect to the facts it can be stated that when the petitioner approached the

respondent for booking the tickets and for the visa process a proposal is said to be made.

28. According to section 2(d) of the Indian Contracts Act,1872 , “ When, at the desire of

the promisor, the promisee or any other person has done or abstained from doing, or

does or abstains from doing, or promises to do or to abstain from doing, something,

such act or abstinence or promise is called a consideration for the promise.”

29. As per the stated facts it is said that the respondent acted on the advice of the petitioner

and booked the tickets hence establishing consideration and similarly cited in M/s

Rakesh Kumar Dinesh Kumar v. U.G Hotels & Resorts Ltd.

MEMORIAL ON BEHALF OF PETITIONER 12

 30. According to section 8 it was shown that the conduct of the parties that petitioner had

impliedly accepted the offer and hence there existed acceptance and a valid legal

contract.

31. According to Section 73 of the Indian Contracts Act,1872, “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.”

32. Here since the contract is broken when the petitioner couldn’t board the flight there

was a loss faced by him as the flight was also completely non-refundable and the

respondent company had the duty to inform the passengers about the non-refundability

of the flights and also it was their duty to courier the documents on time which they

failed to comply with and hence there was a breach of duty and hence the respondent

is liable to pay damages.

MEMORIAL ON BEHALF OF PETITIONER 13

 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed by the counsel on behalf of the petitioner that this Hon’ble Court may be pleased
to adjudge and declare that:

1. The present case be admitted.

2. Travel Solutions Private Limited should be held liable for negligence.

3. Compensation of Rs.50 Lakhs should be granted to the petitioner towards the damages.

And pass any other order that this Hon’ble Commission may deem fit in the interests of
justice, equity and good conscience.

All of which is most humbly prayed

Respectfully Submitted,

Counsel for Petitioner

MEMORIAL ON BEHALF OF PETITIONER 14