(Team Code: RNM 15) : (Civil Case) No. - of 2022 in The Matter Of: V

1 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced
1. [Team Code: RNM 15]
3nd Intra Moot Competition, 2022
(Civil Case) No. ______ of 2022

In the matter of:
Jordan Jakhar………………………………………. Petitioner
V.
Platinum Group……………………………………………...…. Respondant
~ WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDANT ~

~ Platinum Group ~
MEMORIAL ON BEHALF OF RESPONDANT

i 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced
Table of Contents
List of Abbreviations…………………………………………………………………...…….a
Table of Authorities.................................................................................................................b
The statement of Jurisdiction..................................................................................................1
Statement of Facts....................................................................................................................2
Issues..........................................................................................................................................4
Summary of Arguments..........................................................................................................4
Arguments Advanced...............................................................................................................5
Prayer........................................................................................................................................9

a 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced
LIST OF ABBREVIATIONS
AIR All India Reporter
DW Defence Witness
PW Prosecution Witness
IPC Indian Penal Code
SCC Supreme Court Cases
SC Supreme Court
Sec. Section
v. Versus
A Accused
rw. Read with
Anr. Anothers
IA Interlocutory Appeal
n. Note

b 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced
Table of Authorities
CASES
 Inc. v. Ulen, 186 F.2d 529 (D.C. Cir. 1949)
 Pekelis v. Transcontinental and Western Air, Inc., 187 F.2d 122 (2d Cir. 1951)
 De Beers UK Ltd v Atos Origin IT Services Ltd, [2010] EWHC 3276 (TCC)
 Rakapalli Raja Rama Gopala Rao vs Naragani Govinda Sehararao & Anr on 12
September, 1989, AIR 2185, 1989 SCR Supl
 Shawinigan Ltd. v. Vokins & Co. Ltd. – (1961) 3 All E.R. 396
 Forder v Great Western Railway Co [1905] 2 KB 532
 Naurang Lal v. B.B. and G.I. Ry. Co. 16 P.L.T. 817: 160 Ind Cas 1086: A.I.R. 1936 Pat.
84: 2 B.R. 290, 8 R.P. 424
 Indian Airlines vs Kurian Abraham on 27 January, 2010, AS.No. 904 of 1998(A)
 Air India Ltd vs India Everbright Shipping & … on 20 April, 2001
 B.N. Ry. Co. Ltd. vs Dhanjishah Pestonji And Anr. on 7 June, 1929, AIR 1930 Cal 298
 Graham v. Belfast & Nothern Counties Ry. (1901) 2 I.R. 13:
 Air India vs S.V. International on 18 October, 1985, ILR 1985 KAR 3983, 1986
 Achutrao HaribhauKhodwa and Others v. the State of Maharashtra and Others [(AIR)
1996 SC 2377]
 Vinod Jain V. Santokba Durlabhji Memorial Hospital And Another
 Lok Nayak Hospital vs Prema
 Jacob Mathew v. State of Punjab & Another
 Indian Medical Association v. V.P. Shantha
 Dr. Harsih Kumar Khurana vs Joginder Singh
 Poussard v Spiers
 Fateh Chand v. Balkishan Das
 Rambal Company vs Kerala State Science
 Krishna Jute And Cotton Mills vs J. Innes And Ors

c 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced
 Council of Scientific and Industrial Research Vs Goodman Drug House (p) Ltd.
 SMC Pneumatics v. Jogesh Kwatra
 Lankesh v Shivappa
 D.P.Choudhary v/s. Manjulatha
 T.V.Ramasubha Iyer Vs. A.M.A.Mohideen
 Mahendra Ram Vs. Harnandan Prasad,
 Arun Jaitley v. Arvind Kejriwal
 Organo Chemical Industries v. Union of India
STATUTES
 Indian Contract Act 1872

 The Constitution of India, 1950
 Section 66A of the Information Technology Act
ONLINE DATABASE
 SCC Online
 Hein Online
 Westlaw Asia
 Global Freedom of Expression
BOOKS
AVTAR SINGH CONTRACT AND SPECIFIC RELIEF ACT 13TH EDN
CONSTITUITION BY M.P JAIN
DUTT ON CONTARCT THE INDIAN CONTRACT ACT 1872 11 TH EDN BY H.K
SAHARY

d 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced

The Statement of Jurisdiction
The petitioner has approached the honourable Supreme Court under Article 133 - “133.
Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil
matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A
(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
Supreme Court
(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 law as
to the interpretation of this Constitution has been wrongly decided
(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 High Court” of the Constitution. The petitioner reserves the right to contest the
Jurisdiction of this honourable court.
The petitioner claims that the respondent has committed Medical negligence with no
appropriate reason.
The memorial present here sets forth the facts and arguments in the present case.
All of which is respectfully submitted:

Counsels of The Respondent

Statement of Facts
1. Platinum Group which is a Vidhyanchal based company which has its chain of
business across the Bharat gets into a contract with Jordan Jakhar (JJ), a vocal artist
based in Prayag. He travels to different countries to promote heavy metal music.
2. According to the contract, JJ was to be paid a total amount 3.5 Crores, for a total of 5
performances across India. Platinum Group was also responsible for the management
of hospitality and other event management related responsibilities of the artist.
3. The first event was hosted in Vidharbh which was a huge success according to social
media and reliable news sources followed by next lined-up event in Ahilya Nagar, an
underdeveloped city with a limited fan base of music. Artist insisted in shifting the
location but since all the arrangements were started with, the organizers denied the
request.
4. At the time of the event, a large number of residents of Ahilya Nagar were infected
with ‘SARS Virus’. The event was conducted on a beach of Ahilya Nagar post which
JJ observed some issues with his throat; he decided to take some rest in his room. This
wasn’t the appropriate solution because sooner than later JJ had a headache and
severe tonsils.
5. He was then admitted to Platinum Hospital where he was taken to a care room
however, the discomfort increased because the room was not very well ventilated.
6. The medicines which were provided to JJ were affecting him negatively as per his
claims owing to which JJ and his team decided to leave for Indraprasth immediately
for better treatment but without conveying the same to organizers.
7. Assuming the infection to be a minor one, the organizers started preparing for their
third and flagship line-up which was to be conducted in Madras.
8. Later on, when the organizers came to know that the artist had left and had no
intention to continue the performances with the organizers they called up the manager
of the artist and threatened them to face appropriate consequences if the artist did not
make himself available for the next event.
9. The next day, the artist went live on social media and told that he had been treated
poorly by the organizers and that organizers are planning to harm the artist. The artist
said - “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 Vidarbh event was a
great success; I don’t know what made them treat me and my staff poorly. Ahilya
Nagar was a black chapter of my career, the facilities were worst. Doctors here have
told me that medicine provided in Ahilya Nagar didn’t suit my body and the infection
is serious. My career is on stake, maybe money is the only thing which those
inhumane capitalists care about”
10. This went viral and a social media campaign was launched against the Platinum
Group. Triggered by the message, fans of the artist pelted stones on the property of
Platinum Group. Hashtags like #inhumaneplatinum and #boycottplatinum started
trending over social media.
11. This campaign led to cancellation of the whole tour of artists. The Platinum group
observed substantial loss of finances due to the campaign. In reply, Platinum Group
sued JJ for breach of contract and civil defamation and JJ cross sued the group for
Negligence and Medical Negligence.
12. After being decided in favour of the Platinum Group, JJ went to the Supreme Court
of Bharat at Indraprasth where the matter is listed for final arguments.

Issues
1. Whether the Platinum group has committed willful and medical negligence?
2. Whether there was a breach of Contract by either of the parties?
3. Whether JJ is liable for civil defamation against Platinum Group?
4. Whether either of the parties shall be compensated for the loss/harm incurred?
5. Whether there existed some substantial question of law or not under Article 133?
Summary of Arguments
1. Jordan Jhakar (JJ) should be held liable for breach of contract acting on their
spontaneous decision to leave Indraprasth while conveniently denying the
accountability to fulfil the terms of the contract which were well agreed upon at the
time of signing of the contract. In addition, JJ did not even inform the Platinum
Group, something which formed a part of their obligation. Being a party to the actual
contract, there existed a quasi-contract between the parties by way of which non-
performance should have been communicated before the actual time of fulfilment of
obligations, as agreed upon, in the contract.
2. Also, JJ insisting on changing the place of 2 nd lined-up event of Ahilya Nagar at the
eleventh hour complaining of a limited fan base of music is much impractical and
unprofessional on his part for all concerns (if present) regarding the terms of the
contract ought to be well negotiated before signing the contract.
3. Platinum Group acting on their agreement with JJ as part of the contract has well
fulfilled their duty of ensuring hospitality management to JJ as has already been
decided between the two parties. Primary medical assistance during the onset of his
infection, though standing completely out of the purview of ‘Hostpitality’ was
ensured to JJ on mere grounds of humanity.
4. Also, JJ is liable for slander civil defamation for taking to social media and making
false statements which certainly proved to be detrimental to Platinum group's
reputation. JJ had malafied intentions which translated into them launching
defamatory statements against the respondent so as to avoid liability of breach of
contract on their part. Moreover, the respondent's threat to JJ that they would have to
face appropriate consequences shall only be seen as a means to accomplish the
obligations of their Part, lack of fulfillment of which shall lead to them being sued in
the court of law.

Arguments Advanced
Issue 1: Whether the Platinum group has committed wilful and medical negligence?
To begin with, the terms ‘willful’ and ‘negligence’ are antagonistic and stand in stark
contrast to each other. For the same reason, these cannot be used together. There
exists no such thing as ‘wilful negligence’ for negligence (if committed) has to be
unintentional. Negligence committed intentionally would constitute crime.
ELEMENTS OF WILLFUL NEGLIGENCE
The elements of willful negligence are same as the elements of negligence but the
additional constituents are the intentional or deliberate or reckless act. So, elements
can be stated as following:
 A serious or high degree of negligence and unmistakable abuse of duty of
legal right towards others.
 Behavior of not taking reasonable care
 An absence of acting diligently
 Behavior of taking no care.
Willful misconduct is a concept of English Law and is on same line as that of concept
of willful negligence under Indian Law. Practically in current times there is no
distinction between willful misconduct and willful negligence is considered under
Indian Law.
Same as willful negligence Willful misconduct can be understood as an act of

intentionally doing something or abstain from doing something in a reckless manner
and appreciating and knowing the fact that the concerned act will proximately cause
harm or injury to another person. It is somewhat a breach of what customs and law
expect a normal prudent person is to do or not to do under a given situation.

As defined by Cambridge dictionary willful misconduct is defined as, “intentional bad

behavior by a person or group in a position of authority.”
In leading case of American Airlines, Inc. v. Ulen, 186 F.2d 529 (D.C. Cir. 1949)
Court for appeals observed that willful misconduct can be defined as intentional doing
of an act and having knowledge that such an act will likely cause harm to another, or
an intentional act done disregarding or ignoring the probable consequences. For a
shorter definition Court quoted that: willful misconduct is “”conscious omissions to
discharge a positive duty necessary to the safety of others”.
And the same definition was defined by the court in the case of Pekelis v.
Transcontinental and Western Air, Inc., 187 F.2d 122 (2d Cir. 1951), cert. denied,
341 U.S. 951 (1951).
So, in simple words willful misconduct can be understood as disregard of one’s duty
intentionally and knowingly causing proximate danger to another’s safety. The main
constituent to willful misconduct is proving the intention and will of the wrong doer.
In leading case of De Beers UK Ltd v Atos Origin IT Services Ltd, [2010] EWHC
3276 (TCC) it was held that, “willful misconduct was conduct by a person who knows
that he is committing and intends to commit a breach of duty or is reckless in the
sense of not caring whether or not he commits a breach of duty.”
ELEMENTS OF WILLFUL MISCONDUCT
WILL OR INTENTION INVOLVED
The word “willful” is the essence of the offence of willful misconduct and it is
important to understand the same. In the leading case of Rakapalli Raja Rama Gopala
Rao vs Naragani Govinda Sehararao & Anr on 12 September, 1989, AIR 2185, 1989
SCR Supl. (1) 115 the word ‘willful’ was inferred to indicate intentional, deliberate,
calculated, conscious. So, to prove an offence of willful misconduct it is necessary to
prove the will in its above dimensions and it should be established that the doer had
full knowledge of the legal consequences flowing from his misconduct.
RECKLESS OR GROSS CARELESS ACT

The act is said to be misconduct if it constitutes the element of recklessness or gross

carelessness. Recklessness is commonly defined as an attitude where one acts
knowingly but ignoring the bad and dangerous results occurring from it.
In leading case of Shawinigan Ltd. v. Vokins & Co. Ltd. – (1961) 3 All E.R. 396,
Megaw, J. described recklessly:
“Recklessness is gross carelessness -the doing of something which in fact involves a

risk, whether the doer realizes it or not; and the risk being such having regard to all
the circumstances, that the taking of that risk would be described as reckless.”
So, in other words reckless act can be said to be an act where one does not even think
about whether it is right or wrong thing to do, which a normal prudent person should
have thought about.
Willful misconduct is often seen as an act opposite to accident or ordinary negligence

and involves an intentional act which the doer knows to be reckless and still does not
care about the ill consequences. The same principle was stated in the leading case of
Forder v Great Western Railway Co [1905] 2 KB 532, Lord Alverstone CJ and it was
stated that:
“Willful misconduct…means misconduct to which the will is party as

contradistinguished from accident, and is far beyond any negligence, even gross or
culpable negligence, and involves that a person willfully misconducts himself, who
knows and appreciates that it is wrong conduct in his part in the existing
circumstances to do, or to fail to omit to do (as the case may be), a particular thing,
and yet intentionally does or fails or omits to do it, or persists in the act, failure or
omission, regardless of the consequences”.
In leading case of Naurang Lal v. B.B. and G.I. Ry. Co. 16 P.L.T. 817: 160 Ind Cas
1086: A.I.R. 1936 Pat. 84: 2 B.R. 290, 8 R.P. 424, Wort, J. it was held that willful
misconduct is a term used under Law of England and there is not much a difference
between ‘misconduct’ and ‘willful misconduct’, willful merely expresses an intention
and will of a person who is guilty of a misconduct and being willful for committing
such an act of misconduct is a precondition attached to simple misconduct.
MPORTANT JUDGMENTS ON WILLFUL MISCONDUCT

Indian Law System adopted the law of negligence and willful negligence or willful
misconduct from the English Law. It was not adopted as it is and was evolved by
various judgments given by the Courts. Few are important judgments stated below
with respect to will misconduct:
Various definitions for willful misconduct have been quoted under various cases like
in case of Indian Airlines vs Kurian Abraham on 27 January, 2010, AS.No. 904 of
1998(A) following definitions were quoted by the Court:
In Words and Phrases Vol.46 Permanent Edition: willful misconduct is seen referred
as:
“Failure to exercise ordinary care to prevent injury to a person who is actually known
to be, or reasonably expected to be within the range of a dangerous at being done is
usually ‘willful misconduct.”
In Stroud’s Judicial Dictionary of Words and Phrases Vol.3 at page 2916 ‘willful
misconduct’ is referred to as:
“Wrong conduct, willful in the sense of being intended, but induced by mere honest
forgetfulness or genuine mistake, does not amount to ‘willful misconduct’
In the same case it was stated by the court that in order to establish willful misconduct
a plaintiff has to prove before the court that the accused while conducting such an act
was willingly doing it and had knowledge, he did it recklessly i.e., he did not care
about whether the act will incur good or bad consequences and the same will
endanger safety of someone else.
The facts of the case were on payment of charges by the plaintiff the defendant was to
carry the goods of plaintiff safely and deliver it to London. The plaintiff did his part
but the defendant lost the consignment.
The court held that the question as to intention of defendant to lose the consignment
was irrelevant, the mere fact it was lost was in itself misconduct and on failure of
defendant to prove contrary the misconduct on part of defendant must be equivalent to
willful misconduct. So, the defendant shall not be awarded any protection available

under Carriage Act as on establishment of willful misconduct there will be no bar to

damages that would be paid to plaintiff, only Court shall decide the reasonable bar.
In case of Air India Ltd vs India Everbright Shipping & … on 20 April, 2001,
National Consumer Disputes Redressal, the above same principle of no protection
under Carriage Act in case of willful misconduct. It was held as follows:
“There is no limitation of liability if the damage is caused by the willful misconduct

of the carrier or by such default on his part as in accordance with the law of the court
seized of the case, is equivalent to willful misconduct.
” The carrier shall not be entitled to avail himself of the provisions of this Schedule
which exclude or limit his liability, if the damage is caused by his willful misconduct
or by such default on his part as is in the opinion of the court equivalent to willful
misconduct.”
In leading case of B.N. Ry. Co. Ltd. vs Dhanjishah Pestonji And Anr. on 7 June, 1929,
AIR 1930 Cal 298, where the plaintiff consigned the defendant with consignment of
cotton piece goods which were damaged due to getting wet. The plaintiff claimed that
the roof of the wagon transmitting the consignment had big holes and due to which
rain water entered the wagon and destroyed the consignment. While deciding the case
the Apex court stated as follows:
The court cited the leading case of Johnson, J., in the case of Graham v. Belfast &
Nothern Counties Ry. (1901) 2 I.R. 13:
“Willful misconduct in such a special condition means misconduct to which the will
is party as contradistinguished from accident, and is far beyond any negligence, even
gross or culpable negligence, and involves that a person willfully misconducts himself
who knows and appreciates that it is wrong conduct on his part in the existing
circumstances to do, or to fail, or to omit to do (as the case may be), a particular thing,
and yet intentionally does, or fails or omits to do it, or persists in the act, failure or
omission, regardless of consequences.”
The court finally decided that on lack of plaintiff to prove and establish misconduct
on behalf of defendant it was held that plaintiff cannot claim the damages.

Thus, from above judgment it can be stated that for claiming the damages against an
offence of willful misconduct, the plaintiff is bound to prove before the court that the
misconduct was willful as well as the ill consequences of the act were disregarded by
the wrong doer.
But in certain cases, it is held by the court that the plaintiff is not bound to prove
willful misconduct on part of defendant under the given facts of the case. The same
was held in leading case of Air India vs S.V. International on 18 October, 1985, ILR
1985 KAR 3983, 1986 (1) KarLJ 34, which was case of lost consignment and plaintiff
filed the recovery of damages based on the valuation of goods lost and the defendant
contending that the plaintiff did not disclose the price of goods at time of
consignment.
It was held that the plaintiff was not bound to prove the willful misconduct, mere non
deliver and lose of goods on part of defendant infers willful misconduct on his part.
Platinum Group acting on their agreement with JJ as part of the contract has well
fulfilled their duty of ensuring hospitality management to JJ as has already been
established between the parties. Primary medical assistance during the onset of his
infection, though stands completely out of the purview of the definition of
‘Hospitality’ was ensured to JJ on mere humanitarian grounds and not as a matter of
obligation. It was taken care of that JJ was sent to the carer room of the Platinum
hospital to cater to his immediate medical requirements. Which further leads the court
on to its next stance that JJ expecting the expertise of a hospital ICU and medical
professionals in a care room and then, not even being bothered to express his
discontentment regarding the room being not being well ventilated, to the Platinum
group authorities before straight up proceeding to sue them in the court of law is
something considerably illogical and unjust to the Platinum Group. And in order to
bring a suit for medical negligence against the respondent, the plaintiff, first, ought to
establish that there existed a ‘duty of care’ under the terms of ‘hospitality’ towards the
plaintiff that the defendant was supposed to abide by.

In addition, JJ was sent to the care room of Platinum Hospital in order to be taken care
of in good faith and was being well taken care of. However, his decision to leave
which without a formal discharge notice rather amounts to negligence on his part.
Hence, the accountability of health complications arising post such act on his part lies
on him and not the Platinum hospital.
And even if accountability for medical negligence is to be taken into consideration,
the charges for the same ought not to be used as defence by JJ against the charges of
breach of contract and slander defamation as imposed by the respondent.
To get relief under CP Act, 1986 the complainant should be a consumer as defined in
Sec. 2(1)(d) of their act and the “service” for the deficiency of which the complaint
has been made should comes within the circle of “service as defined in Sec. 2(1)(o) of
the Act. As soon as the person, who is trying to file a suit for compensation in the
Consumer Forum under the CP Act,1986, proves that he is in under the status of
consumer1, and the act against which the complain is there “service” under CP
Act,1986, he becomes entitled to do so. Unfortunately, in the absence of
consideration paid or promised or partly paid or partly promised, or under any system
of deferred payment, JJ has failed to establish himself as being a consumer which
further discharges all charges of medical negligence against The Platinum Group.
In para 52 of Jacob Mathew case, the Supreme Court realising that doctors have to be
protected from frivolous complaints of medical negligence, has laid down the
following rules:
(i) A private complaint should not be entertained unless the complainant has produced
prima facie evidence before the court in the form of a credible opinion given by
another competent doctor to support the charge of rashness or negligence on the part
of the accused doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical
opinion, preferably from a doctor in government service, qualified in that branch of
medical practice who can normally be expected to give an impartial opinion applying
the Bolam test.
1
Indiankanoon.org. 2022. Section 2(1)(d) in the Consumer Protection Act, 1986. [online] Available at: <https://indiankanoon.org/doc/992267/>
[Accessed 14 June 2022].

(iii) A doctor accused of negligence should not be arrested in a routine manner simply
because a charge has been levelled against him. Unless his arrest is necessary for
furthering the investigation or for collecting evidence or unless the investigating
officer feels satisfied that the doctor proceeded against would not make himself
available to face the prosecution unless arrested, the arrest should be withheld. (Para
47)
The decision in V.P. Shantha case2, should not be understood to mean that doctors
should be harassed merely because their treatment was unsuccessful or caused some
mishap which was not necessarily due to negligence. (Paras 102 to 104)
Moreover, in a case where negligence is evident, the principle of res ipsa loquitur
operates wherein the liability to defend would have lied with the respondent but since
no such prima facie principle is applicable, the burden of proof shall lie with the
plaintiff to prove medical negligence.3
Achutrao HaribhauKhodwa and Others v. the State of Maharashtra and Others

[(AIR) 1996 SC 2377]: The deceased, the petitioner's relative was admitted to a
government hospital for an operation for sterilization. During the operation, a mop
was left inside the body of the deceased resulting in pus formation and subsequent
death. The petitioner move towards the Supreme Court to knock down the order of the
High Court and award the damages worth Rs 1, 75,000. The petitioner couldn't have
proved the negligence of the doctors and hence the principle of Res Ipsa Loquitur was
applied to carry the defendants liable because the court felt that it had been a
negligent act of the defendants which caused the death and that this act was well
within the control of the defendants. Though, commonly, certain foreign bodies are
generally left behind during a patient’s body during an operation, intentionally or
unintentionally which the body generally fights the foreign bodies it had been
observed that leaving a mop was particularly a negligent act. The order of the High
Court was put aside. Res Ipsa Loquitur can't be applied for cases of negligence of
common occurrence but where equivalent negligence is of a high degree causing
serious damage then the principle is often applied.
2
(1995) 6 SCC 651
3
https://www.casemine.com. 2022. V. Kishan Rao v. Nikhil Super Speciality Hospital And Another, Supreme Court Of India, Judgment, Law,
casemine.com. [online] Available at: <https://www.casemine.com/judgement/in/5609aedee4b0149711414f2c> [Accessed 14 June 2022].

Therefore, in the case as mentioned above, in the absence of the principle of ‘Res Ipsa
Loquitur’ the burden of proof shall lie on the plaintiff.
In the case of Vinod Jain V. Santokba Durlabhji Memorial Hospital And Another4
Hon'ble Supreme Court upheld the Order passed by the National Consumer Disputes
Redressal Commission ("NCDRC") exonerating the respondents i.e the hospital and
treating doctor from any medical negligence. The Apex Court in this judgment has
reiterated the vital legal principles in order to identify negligence on part of a skilled
medical practitioner. The Apex Court has also cited various judgments determining
the fundamental aspect required in a medical negligence case. There was no evidence
to indicate any unexplained deviation from the standard protocol. It is also relevant to
note that the deceased was medically compromised by the reason of her past illness.
Hereby, we are presented with a similar case wherein the plaintiff who was already
infected with ‘SARS Virus’ was taken to the care room and the health complications
which later arose have in fact been firstly because of his own negligent conduct of
leaving the care room without the approval of the professionals and 2 nd because of his
initial act of deciding to take rest in his room which wasn’t the appropriate solution,
something which comes well stated in the statement of facts.
In the matter of Lok Nayak Hospital vs Prema5 Brief facts of the case are that the
respondent-plaintiff underwent a sterilization operation in Lok Nayak Hospital.
However, the said operation was not successful and the respondent conceived again
which resulted in the birth of her seventh child. The respondent sued the appellant for
not having taken reasonable care while operating her. However, High Court observed
that medically there is never a 100% chance of success in sterilization operations. The
fact that the operation was not successful, that by itself could not be a reason to hold
the appellant and doctors guilty of negligence. There were no specific allegations
against the doctors for committing negligence while conducting the operation; and in
absence of the same, the appellant could not be held liable in fact or in law. Moreover,
the respondent, before the operation, had signed the forms that clearly stated that the
4
Indiankanoon.org. 2022. Vinod Jain vs Santokba Durlabhji Memorial ... on 25 February, 2019. [online] Available at:
<https://indiankanoon.org/docfragment/170787422/?formInput=medical%20negligence%20cases%20%20%20%20doctypes%3A
%20supremecourt> [Accessed 14 June 2022].
5
Section 96 of the Code of Civil Procedure, 1908 (CPC)
sterilization process is not always successful and there are some chances of failure,
and if the operation is unsuccessful, the appellant or the doctor concerned will not be
liable. In light of the discussion as mentioned herein, the Court allowed the appeal and
set aside the judgment impugned.
In the case of In the case of Jacob Mathew v. State of Punjab & Another, the Supreme
Court while dealing with the case of negligence by professionals also gave illustration
of medical and legal profession and observed as under:
“In the law of negligence, professionals such as lawyers, doctors, architects, and
others are specifically included in the category of profession with certain skills or
skilled persons. Any task that is to be performed with a particular talent will usually
be recruited or implemented if the person possesses the requisite skills to perform that
task. Any reasonable person going into a profession that requires a particular level of
learning to refer to it as a professional of that branch, by briefly addressing that
person, assures him or her that skill he will be practiced and practiced with
appropriate degree of care and caution. He does not assure his client the result. A
lawyer does not tell his client that the client will win the case under all circumstances.
A physician will not assure the patient to recover fully in every case. A surgeon
cannot guarantee that the outcome of the surgery will be beneficial forever, to the
extent of 100% for the person who performed the operation. The only assurance that
such a professional can give or by implication is that he is equipped with the requisite
skills in the branch of the profession he is practicing and performing the work
entrusted to him to the appropriate efficiency Practice your skills with. This is what
the whole person contacting a professional can expect. Given this standard, a
professional may be held liable for negligence on one of two conclusions: either he
did not possess the requisite skills that he had accepted,
In the case of Indian Medical Association v. V.P. Shantha6 it was established by the
Supreme Court that services rendered to a patient by a medical practitioner (except
where the doctor cause services free of charge to every patient or under a contract of
personal service) by way of consultation, treatment and diagnosis, both surgical and
medical, would fall within the service as defined in section 2(1) (o) of the Consumer
Protection Act 1986. Thereby, this case well establishes as to how only the person
6
1996 AIR 550, 1995 SCC (6) 651
who has paid for the medical service under a contract of personal service could sue in
court, the party/ hospital/ doctor whose conduct amounting to medical negligence has
resulted in damage.
Further, in the case of Dr. Harsih Kumar Khurana vs Joginder Singh the court held
that the doctor has complete autonomy in deciding which therapy or treatment is right
for his patient. This autonomy is usually higher in emergency situations. The
correctness or otherwise of the line of treatment and the decision to conduct the
operation and the method followed are all required to be considered in the background
of the medical evidence in the particular facts of this case. Hence, any default to cure,
complication, an occurrence of an infection, or even death, cannot be considered in
segregation and labelled as being an act of medical negligence. Failure of operation
and side effects cannot always be said to be due to medical negligence. A complaint
may not be entertained unless the person giving such complaint produces prima facie
evidence before the court, to support his/her claim of negligence of the accused
doctor.
Issue 2: Whether there was a breach of Contract by either of the parties?
It is pleaded before the hon’able court that under S.37 7 & S.398 of the ICA mentioned below,
breach of contract from behalf of the petitioner has been conducted.
To elaborate, the part of the petitioner i.e., Jordan Jakhar in signing the contract with the
defendant i.e. the platinum group for performing a total of five events was breached by him
due to non-performance. JJ after the second event left for Indraprasth without informing the
defendant about his intention of not continuing with the contract either directly by JJ or
through any of his staff members along with his management team resulted in the violations
of S.37 & S.39 through his actions.
JJ, as a participant to the contract, was legally bound to fulfil his part of the agreement, but he
refused to do so.
In the case of Hochster v. De La Tour 9 Whether or not a party's failure to perform under an
agreement before its commencement date resulted in a breach of contract by the specified
party was addressed in this case.
7
The parties to a contract must either perform, or offer to perform, their respective promises, unless such
performance is dispensed with or excused under the provisions of this Act, or of any other law.
Promises bind the representatives of the promisers to fulfil the obligations mentioned in the contract.
8
Effect of refusal of party to perform promise wholly.—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.
9
Hochster v De La Tour (1853) 2 E & B 678

According to the court, when a contract stipulates future conduct, the failure to perform the
agreement leads in the revocation of the contract, and as a result, the party refusing to
perform the agreement is accountable for breach of contract. As a result, in the event of a
breach of contract, the aggrieved party may bring a claim for damages against the party
responsible for the failure to perform future duties promptly. The court ruled in favour of the
person that had been hurt. Any failure to fulfil the requirements set forth in the contract is a
breach of that agreement, as can be shown in this instance.
In H.R. Patel vs C.G. Venkatalakshamma And Anr. on 16 December, 195410
In that case the Punjab Restitution of Mortgaged Lands Act set aside the normal procedure
for redemption in the case of mortgages witii possession and empowered the Collector, on
application by the mortgagor, to extinguish the mortgage in certain circumstances or declare
it extinguished and restore possession to him. The Act also barred jurisdiction of the Civil
Court to entertain any claim regarding mortgages declared estinguished or any question
regarding the validity of any proceedings under the Act. Varadachariar J., as he then was,
pointed out "that Section 37 of the Indian Contract Act which lays down that 'parties to
a contract must either perform or offer to perform their respective promises' " qualifies this
statement by the words "unless such performance is dispensed with or excused under the
provisions of any other law." When the statement of the general Rule itself is so qualified, it
is difficult to see how a law which excuses performance of any particular kind of contract can
be said to be inconsistent with the section, which must be taken-as a whole. The impugned
law will only be one of the special cases contemplated or saved by the main or
paramount Act.
The term 'agreement' is defined under section 2(e)11 as 'reciprocal promises'. Thus,
both the parties are subjected to an obligation to do or not to do something. In case
any of the parties fails to carry out his agreed obligation or by his act makes it
impossible to perform his obligations under the contract, he is said to have committed
the breach of that contract.
Jordan Jhakar, despite being the party to a valid contract resorted to intentional breach
by non- performance of a significant part of the agreed upon obligations by
immediately leaving, that too without informing Platinum Group. As provided in the
statement of facts, the organizers aassuming the infection to be a minor one, the
organizers started preparing for their third and flagship line-up which was to be
conducted in Madras who unaware of the same went ahead with further preparations
for the next lined-up event after the event of Ahilya Nagar due to which the Platinum
10
AIR 1955 Kant 65, AIR 1955 Mys 65
11
Indiankanoon.org. 2022. Section 2 in The Indian Contract Act, 1872. [online] Available at:
<https://indiankanoon.org/doc/831280/> [Accessed 7 June 2022].

Group has ended up incurring a huge loss and are liable for compensation under
Section 7312 and Section 75 of Indian Contract Act, 1872 for not only loss suffered as
a result of the event scheduled at Madras but also due to venue bookings at the
remaining places agreed upon in the contract. JJ is also liable for breach of contract
under section 39 for effect of refusal of party to perform promise wholly resulting
from his willful absenting of himself.
In the case of Poussard v Spiers 13

the Claimant (Poussard) was an opera singer. She
was contracted by the defendant to perform in that capacity for a duration of three
months. This was to subject to certain conditions, such as a salary of £11 per week, a
start of “on or about” the 14th of November and an option to re-engage the Claimant’s
services for another three months for a salary not exceeding 14 pounds per week.
Instead of the 14th of November however, the launch performance was subsequently
scheduled for the 28th of November, to which the Claimant gave no objection.
However, she fell ill just before the start of the opera and could not sing for the first
three days. The defendant hired another singer as potential cover and then actual
cover when the claimant could not sing for the first three days of performances. Once
the Claimant was well again, she wanted to take up her position in the performance
but this was refused by the Defendant. An action for wrongful dismissal was then
launched against the defendant. At trial, the jury found in favor of the defendant and
awarded them the right to claim £83 from the Claimant, as it had been reasonable to
hire her replacement. The Claimant appealed against this. The issue in this case was
whether failing to turn up to the first day of performance amounted to a breach of a
condition of the contract. It was held that failure to turn up did amount to a breach of
a condition of the contract as this went to its very root and that Spiers were therefore
free to rescind the contract.
In the matter Fateh Chand v. Balkishan Das14, the plaintiff made a claim to forfeit a
sum of Rs. 25,000 which consisted of Rs. 1,000 paid as earnest money and an
advance amount of Rs. 24,000 which the defendant paid against delivery of
possession of property. The plaintiff’s above claim was based solely on his
12
Indiankanoon.org. 2022. Section 73 in The Indian Contract Act, 1872. [online] Available at:
<https://indiankanoon.org/doc/339747/> [Accessed 6 June 2022].
13
(1875) LR 1 QBD 410
14
1963 AIR 1405, 1964 SCR (1) 515

contractual entitlement. No evidence was led by plaintiff to prove that any actual
loss was caused to him due to the breach committed by defendant. Speaking for
the Constitutional Bench, Justice JC Shah held that, “[Section 74] does not justify
the award of compensation when in consequence of the breach no legal injury at
all has resulted”. Accordingly, the plaintiff’s claim for forfeiture of advance
amount was rejected due to lack of proof that plaintiff suffered any loss or legal
injury. Further, in the case of Fateh Chand, the Supreme Court considered the
forfeiture clause to be in the nature of penalty. In this regard, the Supreme Court
clarified that, “In all cases, therefore, where there is a stipulation in the nature of
penalty for forfeiture of an amount deposited the court has jurisdiction to award
such sum only as it considers reasonable, but not exceeding the amount specified
in the contract as liable to forfeiture.”
Also in Rambal Company vs Kerala State Science15 , The petitioner had entered into
agreement with the first respondent Kerala State Science and Technology for the
construction of planetarium building of the Kerala State Science and Technology
Museum and allied Civil Works. Dispute has arisen and agreement came to be
terminated. According to the petitioner, there was a long silence after which was
broken, the petitioner received demand notice from the 2nd respondent. The request
of the petitioner was resisted by the first respondent contending, inter alia, that there is
no provision for arbitration in agreement. Then the court held that "When a contract is
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.
The court held that this principle of Section 73 of the Contract Act equally applies
where one of the contesting parties is the Government. It is the breach of the contract
that gives rise to the cause for damages. The primary duty therefore is to fix the
liability for the breach. Assessment of damages is only an incidental or subsidiary
function. The liability to pay damages is thus fastened where there is breach of
contract. "When a contract is 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. This principle of Section 73 of the Contract Act
15
AIR 2000 Ker 296
equally applies where one of the contesting parties is the Government. It is the breach
of the contract that gives rise to the cause for damages. The primary duty therefore is
to fix the liability for the breach. Assessment of damages is only an incidental or
subsidiary function. The liability to pay damages is thus fastened where there is
breach of contract.
In Krishna Jute And Cotton Mills vs J. Innes And Ors 16, the Supreme court held that
“the breach being the defendants' refusal to perform, the plaintiff is then entitled,
under Section 73, to compensation for any loss or damage caused to him thereby
which naturally arose in the usual course of things from such breach. Section 73
provides 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.”
In another case, Council of Scientific and Industrial Research Vs Goodman Drug

House (p) Ltd. where drugs company entered into agreement with the Council of
Scientific and Industrial Research (CSIR) for converting Menthone to Menthol for
which technical knowledge was to be supplied by the Indian Institute of Petroleum
(IIP) and the company was required to pay consolidated sum and royalties to IIR and
after incurring huge expenditure on setting up plant by company, still IIP could not
successfully convert Menthone to Menthol and correspondences between parties
showed that work which was required to be done within 5 months could not be done
after three years. It was held that IIP had committed breach of contract and under
Section 73 of the Contract Act, it was justified in awarding compensation to the drug
company.
Issue 3: Whether JJ is liable for civil defamation against Platinum Group?

Cyberspace defamation: currently in India, cyberspace defamation laws are the same
as the normal civil and criminal defamation laws. Section 66A of the Information
Technology Act was often used to charge people in instances related to cyber
16
(1911) 21 MLJ 182
defamation. It said that “Any person who sends by any means of a computer resource
any information that is grossly offensive or has a menacing character; or any
information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a
term which may extend to three years and with fine.”
Section 179 of Code of Criminal Procedure and Section 19 of Code of Civil
Procedure essentially say that when an offence, either civil or criminal, has been
committed, it has to be inquired into or tried in that court which is within the
territorial jurisdiction of the place of the offence committed.
This applies to cases of defamation as well. It is very easy to determine the territorial
jurisdiction in cases where there has been only one publication of the defamatory
material, but in cases where there have been several instances of publication of the
defamatory material, for example where there has been defamatory material published
in a newspaper which has been circulated all over the country, it becomes difficult to
determine where the suit for defamation has to be instituted.
There was a case that dealt with similar facts called Lankesh v Shivappa and in this
case it was decided that the act of defamation does not come to an end with the first
instance of the printing of the newspaper. That is just the first instance of the offence
and if the defamatory material is published at more than one place, then the offence is
committed in all these places.
So, essentially, if there has been a wide publication of defamatory material throughout
the Indian subcontinent, a suit against it can be brought about in any court that lies
within the territorial jurisdiction of where it was published.
The first case that dealt with cyber defamation in India was SMC Pneumatics v.
Jogesh Kwatra. Here the court recognised cyber defamation and ruled the respondent
guilty of defamation because of sending defamatory content via emails to people.
The laws for online defamation are also quite the same as observed in the case of
Lankesh v Shivappa. The Supreme Court has as recently as in a case decided two
years ago held that “territorial jurisdiction does not remain confined to the place of

actual defamation…the jurisdiction would be at both the places i.e.at the place where
the actual defamation takes place and the place where such defamatory material is
transmitted through website, telecast, etc.”
JJ, beyond any reasonable doubt is liable for slander civil defamation since he has
attempted to manifest his mala fide intention of tarnishing the goodwill of The
Platinum Group in order to conveniently escape the liability for breach of contract
after the respondent demands for specific performance in accordance with the signed
contract by ‘threatening to to face appropriate consequences (by suing them in the
court of law for breach of contract) if the artist did not make himself available for the
next event’. JJ, taking to social media alleged of being poorly treated by the organisers
despite the fact that the respondent went beyond their obligation of mere ‘hospitality
management’ to get him admitted to Platinum Hospital where he was taken to a care
room in good faith when his condition worsened as a result of his own negligent
conduct of deciding to take rest in the room despite being symptomatic of SARS-
Virus, only for him to leave for Indraprasth without even informing the Platinum
Group. The plaintiff even publicly alleged of being threatened even though the threat
given was of persecution in court in case of non-performance. In addition, no ‘poor
treatment’ was ensured, neither to JJ nor to his staff and all sorts of facilities provided
were well suited to the terms of the contract and in accordance with the pre-
established duty of care. Also, claiming Ahilya Nagar event to be a ‘black chapter’ of
his career post wilfully agreeing to the terms of the contract wherein, Ahilya Nagar
was clearly mentioned as being one among the 5 places where the events were to take
place, stands immaterial. Terming or referring to the respondent as ‘inhuman
capitalists’ publicly is rather highly defamatory in nature for neither of the statements
publicly made with an intent to attack the reputation and goodwill of the firm publicly
are neither true nor have been made for public good, the burden of proof for which
lies on the plaintiff.
The statement given by JJ acts beyond Article 19 (1) of Constitution as protection of

reputation of another person falls within the ambit of reasonable restriction. Right to
reputation is enshrined in Right to life and dignity under Article 21. The Constitution
of India gives its citizens the right to freedom of speech and expression. But this right
comes with reasonable restrictions. It is not acceptable if a person lowers the respect

of another person in society by using false claims. The law of defamation allows a
person to be able to uphold his Right to reputation as per the law applicable in matters
in which the statement is false.
In the case of D.P.Choudhary v/s. Manjulatha17, a publication was made in the local
newspaper, Dainik Navjyothi that the plaintiff a 17 year old college girl ran away with
a boy after she went out of the house by saying she was having lectures. This false
news item had adverse effects on her and ruined her marriage prospects. It was
actionable per se and she was awarded damages of Rs.10000/- by way of general
damages. Chintaman Rao Vs. The State of Madhya Pradesh: The Supreme Court
explained the meaning of “reasonable restrictions” imposed in Article 19 (2). It
implies intelligent care and deliberation and that is required in the interests of the
public.
In the matter of T.V.Ramasubha Iyer Vs. A.M.A.Mohideen18 the defendants published

a statement without any intention to defame the defendants. It related to a particular
person carrying on business of Agarbathis to Ceylon has been arrested for the offence
of smuggling. The plaintiff was also a person carrying on similar business and since
his reputation was damaged, the court awarded him damages.
Reputation is an asset to each and every one. Any damage to such asset can be legally
dealt with. Defamation laws have been enacted to prevent person maliciously using
their right to freedom of speech and expression.
In the case of Mahendra Ram Vs. Harnandan Prasad, a letter written in Urdu was
sent to the plaintiff. Therefore, he needed another person to read it to him. It was held
that since the defendant knew the plaintiff does not know Urdu and he needs
assistance, the act of defendant amounted to defamation.
In the case of Arun Jaitley v. Arvind Kejriwal, Arun Jaitley filed a defamation case
against Delhi CM Arvind Kejriwal and five other AAP leaders for what he claims are
false and defamatory statements against him and his family members over alleged
irregularities at the Delhi and District Cricket Association (DDCA). After a long
17
AIR 1997 Raj 170
18
AIR 1972 Mad 398

deliberation of the case the court held that statements made by Arvind Kejriwal and
his five other leaders to be defamatory. According the case was settled when the
defendants publicly apologized for their conduct and defamatory remarks. It was
stated that the Plaintiff accepted the apology and further did not wish to prosecute the
suit.
In Madras High Court’s judgment in T.V. Ramasubba Iyer v. A.M. Ahamed

Mohideenṣ19 the court overturned the judgment of the trial court which found the
defendants guilty of defamation. The statement published by the defendants accused a
person of a crime. But the statement could also refer to the plaintiff in the eyes of the
people who knew him. The defendants had published a correction in good faith and
apologized to the plaintiff.
Issue 4: Whether either of the parties shall be compensated for the loss/harm
incurred?
In the case of Common Cause v. Union of India, the Supreme Court of India,
emphasized on the definition of Damages as, “Damages are the pecuniary
compensation, obtainable by success in an action, for a wrong which is either a tort or
a breach of contract, the compensation being in the form of a lump sum which is
awarded unconditionally”.
There are three basic essential of damages that were pointed out by the Supreme
Court in the case of Organo Chemical Industries v. Union of India20; The detriment
caused to one party by the wrongdoing or not doing of another;
Reparation to be awarded to the injured party through the legal remedies; and
Determination of quantum on the basis of pecuniary compensation for the loss
suffered and punitive addition as a deterrent.
As a result of loss incurred by Platinum Group in the form of damage to their
property, loss of goodwill and campaign against them leading to cancellation of whole
tour of artists resulting from civil defamation, makes the plaintiff liable to pay for the
damages21 suffered as the court deems fit.
19
20
1979 AIR 1803, 1980 SCR (1) 61
21
“When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such
breach, or if the contract contains any other stipulation

In the case of Maula Bux v. Union of India, the court has specifically held that the
court is competent to award reasonable compensation in a case of breach even if no
actual damage is proved to have been suffered in consequence of the breach of
contract. The court has, however, also specifically held that in case of breach of some
contracts it may be impossible for the court to assess compensation arising from
breach. In such a case, the sum named by the parties if it be regarded as a genuine pre-
estimate may be taken into consideration as the measure of reasonable compensation,
but not if the sum named is in the nature of a penalty. Where loss in terms of money
can be determined, the party claiming compensation must prove the loss suffered by
him which here, the Platinum Group already has.
In the case of Iron & Hardware (India) Co. v. Firm Shamlal & Bros, it was stated that
an automatic pecuniary liability does not arise in the event of a breach of a contract
which contains a clause for liquidated damages. Till the time, it is determined by the
court that the party complaining of the breach is entitled to damages, the plaintiff shall
not be granted compensation by the mere presence of a liquidated damages clause.
ONGC Ltd. v. Saw Pipes22

In this case it was held that the Supreme Court stated “In some contracts, it would be
impossible for the Court to assess the compensation arising from breach and if compensation
contemplated is not by way of penalty or unreasonable, Court can award the same if it is
genuine pre-estimate by the parties as the measure of reasonable compensation.” The
Supreme Court held that if the parties have pre-estimated such loss after clear understanding,
it would be totally unjustifiable to arrive at the conclusion that the defaulting party is not
liable to pay compensation. The Court in this case also held:
Terms of the contract are required to be taken into consideration before arriving at the
conclusion whether the party claiming the compensation is entitled to the same;
If the terms are clear and unambiguous stipulating liquidated damages in case of the breach
of the contract, unless it is held that such estimate of damages/compensation is unreasonable
or is by way of penalty, the party who has committed the breach is required to pay such
compensation and that is what is provided in section 73 of the Contract Act.
S. 74 to be read along with S. 73 and, therefore, in every case of breach of contract, the
person aggrieved by the breach is not required to prove actual loss or damage suffered by him
before he can claim a decree. The court is competent to award reasonable compensation in
22
AIR 2003 SC 2629

case of breach even if no actual damage is proved to have been suffered in consequence of
the breach of the contract.
In some contracts, it would be impossible for the court to assess the compensation arising
from breach and if the compensation contemplated is not by way of penalty or unreasonable,
the court can award the same if it is a genuine pre-estimate by the parties as the measure of
reasonable compensation.
In accordance to this it is humbly requested that the hon’ble court holds this judgement in
value.
Issue 5: Whether there existedd some substantial question of law or not under Article 133?
Taking the precedence of Express Newspapers Limited v. State of Madras 23, wherein the
Supreme Court held that no case can be treated under Article 133 subclause (a) of clause (1)
unless it conform to legal requirements inasmuch as—
(a) It specify a substantial question of law which the high Court states requires
determination; and
(b) There are reasons in support of the issuance of the certificate therein.
The court held that, due to the unavailability of the above two reasons the petition stands
dismissed.
In another case, that is, M Satyanarayana v. State of Karnataka 24, the supreme court dismissed
the petition on the ground that there was no substantial question of law involved. The court
held that, “The High Court as mentioned hereinbefore has granted a certificate under Article
133(1)(b) of the Constitution. We find that the question is a simple one and the intention and
the purpose of the rule is manifest and in the language, there is no difficulty. The certificate
under Article 133(1)(b) of the Constitution, in our opinion, was therefore unwarranted. We,
therefore, revoke the certificate and dismiss the appeal.”
Further, taking the reference of State Bank of India v. N Sundara Money 25 wherein the
Supreme Court put forward its views on the use of article 133 of the constitution, it said that
“The certificate issued by the High Court under Article 133(1) is bad on its face, according to
Counsel for the respondent and the appeal consequently incompetent. We are inclined to
agree that the grant of a constitutional passport to the Supreme Court by the High Court is
not a matter of easy insouciance but anxious advertence to the dual vital requirements built
into Article 133(1) by specific amendment. Failure here stultifies the scheme of the article
and floods this Court with cases of lesser magnitude with illegitimate entry. A substantial
question of law of general importance is a sine qua non to certify fitness for hearing by the
Apex Court. Nay, more; the question, however important and substantial, must be of such
pervasive import and deep significance that in the High Court's judgment it
imperatively needs to be settled at the national level by the highest Bench.”
23
24
25

The 2 conditions must be satisfied before appealing under Article 133, i.e,:
“A certificate can be granted only if the case involves a question of law:
(i) which is not only substantial but is also of general importance; and
(ii) the said question, in our opinion, needs to be decided by the Supreme Court.
Keeping its views the court pointed that, “It has to be noted that all the above requirements
should be satisfied before a certificate can be granted. It means that it is not sufficient if the
case involves a substantial question of law of general importance but in addition to it the
High Court should be of the opinion that such question needs to be decided by the Supreme
Court. Further, the word “needs” suggests that there has to be a necessity for a decision by
the Supreme Court on the question, and such a necessity can be said to exist when, for
instance, two views are possible regarding the question and High Court takes one of the said
views. Such a necessity can also be said to exist when a different view has been expressed by
another High Court.
THE PRAYER
Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited, the counsel humbly pleads before your Hon’ble Bench to dismiss this appeal.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.

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1 3rd INTRA MOOT COURT COMPETITION 2022Arguments Advanced

1. [Team Code: RNM 15]

3nd Intra Moot Competition, 2022

(Civil Case) No. ______ of 2022

~ WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDANT ~

MEMORIAL ON BEHALF OF RESPONDANT

The statement of Jurisdiction..................................................................................................1

MEMORIAL ON BEHALF OF RESPONDANT

IPC Indian Penal Code

SCC Supreme Court Cases

rw. Read with

MEMORIAL ON BEHALF OF RESPONDANT

 Vinod Jain V. Santokba Durlabhji Memorial Hospital And Another

 Lok Nayak Hospital vs Prema

 Jacob Mathew v. State of Punjab & Another

 Indian Medical Association v. V.P. Shantha

 Dr. Harsih Kumar Khurana vs Joginder Singh

 Fateh Chand v. Balkishan Das

 Rambal Company vs Kerala State Science

 Krishna Jute And Cotton Mills vs J. Innes And Ors

MEMORIAL ON BEHALF OF RESPONDANT

 SMC Pneumatics v. Jogesh Kwatra

 D.P.Choudhary v/s. Manjulatha

 T.V.Ramasubha Iyer Vs. A.M.A.Mohideen

 Mahendra Ram Vs. Harnandan Prasad,

 Arun Jaitley v. Arvind Kejriwal

 Organo Chemical Industries v. Union of India

 Indian Contract Act 1872

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

The Statement of Jurisdiction

All of which is respectfully submitted:

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

Same as willful negligence Willful misconduct can be understood as an act of

MEMORIAL ON BEHALF OF RESPONDANT

As defined by Cambridge dictionary willful misconduct is defined as, “intentional bad

ELEMENTS OF WILLFUL MISCONDUCT

WILL OR INTENTION INVOLVED

RECKLESS OR GROSS CARELESS ACT

MEMORIAL ON BEHALF OF RESPONDANT

The act is said to be misconduct if it constitutes the element of recklessness or gross

“Recklessness is gross carelessness -the doing of something which in fact involves a

Willful misconduct is often seen as an act opposite to accident or ordinary negligence

“Willful misconduct…means misconduct to which the will is party as

MPORTANT JUDGMENTS ON WILLFUL MISCONDUCT

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

under Carriage Act as on establishment of willful misconduct there will be no bar to

“There is no limitation of liability if the damage is caused by the willful misconduct

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

Achutrao HaribhauKhodwa and Others v. the State of Maharashtra and Others

MEMORIAL ON BEHALF OF RESPONDANT

Issue 2: Whether there was a breach of Contract by either of the parties?

MEMORIAL ON BEHALF OF RESPONDANT

MEMORIAL ON BEHALF OF RESPONDANT

In the case of Poussard v Spiers 13

MEMORIAL ON BEHALF OF RESPONDANT

In another case, Council of Scientific and Industrial Research Vs Goodman Drug