MOOT COURT CASE SUBMISSION- TYLLB (SEMESTER 5TH) ,2022-2023

BEFORE THE HON’BLE HIGH COURT OF SARDAM

UNDER ARTICLE 225 OF CONSTITUTION OF SARDAM
ORIGINAL JURISDICTION OF HIGH COURT
FIRST APPEAL.NO. _______ OF 2022

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M/S.SHARMA & SHARMA

…PLAINTIFF
VERSUS
JAYDEEP PATIL
…Respondents
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UPON THE SUBMISSION TO THE HON’BLE HIGH COURT

JUDGE
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS
SUBMITTED BY,
KHAN SABERA TABASSUM AURANGZEB SWALEHA BANO
ROLL NO-12
DIVISION-C

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TABLE OF CONTENTS

1) LIST OF ABBREVIATIONS USED

2) INDEX OF AUTHORITIES

3) SATAEMENT OF JURISDICTION

4) STATEMENT OF FACTS

5) SATEMENT OF ISSUES

6) SUMMARY ARGUMENTS

7) WRITTEN PLEADINGS

8) PRAYERS

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 LIST OF ABBREVIATIONS USED

LIST OF ABBRIVIATION

AIR ALL INDIA REPORTER

S.C SUPREME COURT
VS. VERSUS
H.C HIGH COURT
SEC. SECTION
PW. PROSECUTION WITENESS
U/S UNDER SECTION
DW DEFENCE WITNESS
IPC INDIAN PENAL CODE
NJ NATURAL JUSTICE
PC PROSECUTION WITNESS
SCC SUPREME COURT CASES
UOI UNION OF INDIA
& AND
ORS OTHERS
LTD. LIMITED

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 INDEX OF AUTHORITIES

JUDICIAL DECISIONS

BOOKS REFERRED
C.JAMNADAS & CO.
MP JAIN INDIAN CONSTITUTIONAL LAW

STATUES REFERRED
• CONSTITUTION OF INDIA 1950
• INDIAN CONTRACT ACT.

WEBSITES
• www.legalservicesindia.com
• www.indiankanoon.org
• www.lawfinder.com

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 STATEMENT OF JURISDICTION

The current case has been filed by the counsel representing the appellants
under this jurisdiction by the virtue of Article 225 of the Constitution of India
1950.Subject to the provisions of this constitution and to the provisions of any
law of the appropriate legislature made by virtue of powers conferred on that
legislature by this constitution, the jurisdiction of, and the law administered
in, any existing High Court, and the respective powers of the judges thereof in
relation to the administration of justice in the Court, including any power to
make rules of Court and to regulate the sittings of the Court and of members
thereof sitting alone or in Divisions Courts, shall be the same as immediately
before the commencement of this constitution. [Provided that any restriction
to which the exercise of original jurisdiction by any of the High Courts with
respect ton any matter concerning the revenue or concerning any act ordered
or done in the collection thereof was subject immediately before the
commencement of this Constitution shall no longer apply to the exercise of
such jurisdiction].

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STATEMENT OF FACT

1-Jaydeep Patil, a sixteen-year prodigy, citizen of Indiana was the recipient of the "Sensational Voice of the
Nation" award. He was an astounding singer, extremely talented-not only in Rap, Rock, Hip-Hop and Jazz but
also in Classical and Folk. He wanted to develop his musical career by releasing fusion albums combining
different genres and by engaging himself on world music tours. So, he wanted a multi-purpose, ultra-modern
architectural marvel where he could have his recording studio, theatre - for live musical performances and a roof
top pool for hosting parties. He misrepresented himself as a major and put the task out to tender. 2-Sharma &
Sharma was a leading building constructor and infrastructure provider. They offered to do the entire work for
Rs.10,00,000/-. Both the parties knew that this was an unrealistically low-price contract and the amount will be
paid in instalments in order of the completion of different phases of the assigned work. 3-Jaydeep accepted their
offer and entered into a contract for construction of the multi-purpose building and for providing all amenities
therein. According to the contract, the ground floor was for parking, the first floor was for the music theatre, the
second floor was for the recording studio and the last floor for the roof top pool. 4-Sharma & Sharma completed
the construction of the ground floor and first floor and ran out of money and materials for further construction.
They informed Jaydeep that they could not complete the construction unless further capital was made available
to them. 5-Jaydeep had arranged a poolside party to which he had invited top music directors, producers and
other renowned individuals in the music industry whom he believed would fund for his dream music albums and
music tours. So he was desperate to have the construction of the roof top pool completed as stipulated. He had
requested for the continuance of the construction work and further requested to spend the remaining amount of
Rs.7,00,000/- on the work out of their own funds and assured them that the money would be paid to them as
soon as his album is released. The roof top pool was completed and the party was a success. Jaydeep entered
into a contract with Yash Producers who agreed to fund for the fusion albums and world tours. Jaydeep told Ms.
Asha Sharma, the Manager of Sharma & Sharma "Madam, you have saved my career. Don't worry about
Rs.7,00,000/-." Having this as a promise, Sharma & Sharma started a new project. However, Jaydeep's new
fusion music album was a disastrous flop. Social media enthusiasts and meme pages massively trolled him for
his raucous and bizarre fusion music. He then found himself unable to pay the amount of Rs.7,00,000/- to
Sharma & Sharma. 6- Ms. Asha Sharma compelled Jaydeep to render a music performance in her daughter’s-
birthday party . apart from relatives and friends she had also invited rich people, in order to secure contracts
regarding building , construction etc. and in return she agreed to release Jaydeep from paying the debts of
Rs.7,00,000/-. Jaydeep agreed on this point and was ready for the Music Performance the party. He also wanted
to get back his lost reputation and start his career afresh. However, before the party, he suffered from a severe
sore throat due to over-repetition of rehearsals. Then he did not perform in Ms. Asha's party on the advice of his
doctor. 7- On Jaydeep's eighteenth birthday, both the parties, on grounds of humanity, decided to alter the
contract. Jaydeep acknowledged the debt taken from Sharma & Sharma for rendering past services and further
both agreed on the same point that Jaydeep would pay the debt through easy monthly instalments of Rs. 20,000/-
per month till the repayment of the amount of Rs.7,00,000/-. 8- Jaydeep, later on, felt that the work done by
Sharma & Sharma was not performed as he had specified. He further pointed out that the material used for
constructing was substandard and not satisfactory. He estimated that this would have cost them Rs.3,00,000/-
only. He claimed that he had paid the money already . 9-Jaydeep then decided to dispose off his property,
without paying a single dime to Sharma & Sharma. When all this foul play came to their knowledge, they tried
to restrain him by putting enormous pressure in order to recover their money amounting to a total sum-of
Rs.7,00,000/- which they spent on the construction and amenities. Even after such prolonged period and altered
mode of payment, Sharma & Sharma could not recover the debt from Jaydeep. As a last resort, they sent him a
legal notice, stating that the money shall be repaid within 15 days. However, Jaydeep did not send any
correspondence or reply to the said notice. 10- In this context, Sharma & Sharma finally decided to seek remedy
from the Court of Law in this regard. The suit was filed by Sharma & Sharma before the Civil Court of Sardam,
in the State of Indiana on the ground that they had constructed the building as per the terms of the contract and
had taken all the diligent steps to recover the loan made available to Jaydeep Patil for Rs.7,00,000/- but now he
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refused to pay the said amount and alleged fraud against him. They also prayed for injunction restraining
Jaydeep from selling the property until the suit was disposed off. 11- The Civil Court of Sardam heard the matter
and held that a minor's contract is void ab inito and thus set Jaydeep free from all his liabilities towards Sharma
& Sharma by upholding the judgment passed in Mohori Bibee v. Dharmodas Ghose. The plea of restitution
raised by the Plaintiff was rejected and injunction was not granted.

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 STATEMENT OF ISSUES

ARGUMENTS ADVANCED

ISSUE1:

WHETHER THE CASE IS MAINTANABLE?

A doctor is not necessarily liable in all cases where an patient has suffered an
injury. This may either be due to fact that he has a valid defence or that he has
a valid defence or that he has not breached the duty of care.

Doctor not guilty of negligence, he has acted in accordance with the practice
accepted as proper by reasonable eye of medical professionals.

Failure of an operation and side effects are not negligence. The term
negligence is defined as the absence or lack of care that a reasonable person
should have taken in the circumstances of the case. In the allegation of
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 negligence in a case of wrist drop, the following observations were made.
Nothing has been mentioned in the complaint or in the grounds of appeal
about the type of care desired from the doctor in which he failed. It is not said
anywhere what type of negligence was done during the course of the
operation. Nerves may be cut down at the time of operation and mere cutting
of a nerve does not amount to negligence. It is not said that it has been
deliberately done. To the contrary it is also not said that the nerves were cut
in the operation and it was not cut at the time of the accident. No expert
evidence whatsoever has been produced. Only the report of the Chief Medical
Officer of Haridwar has been produced wherein it said that the patient is a
case of post-traumatic wrist drop. It is not said that it is due to any operation
or the negligence of the doctor. The mere allegation will not make out a case
of negligence, unless it is proved by reliable evidence and is supported by
expert evidence. It is true that the operation has been performed. It is also

true that the Complainant has many expenses but unless the negligence of the
doctor is proved, she is not entitled to any compensation.

Hence it is proved not maintainable.

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 ISSUE 2

WHETHER THE GOVERNMENT OF RAMORE NAGAR HELD LIABLE FOR

DEFICIENCY OF SERVICE?

Hospital has filed photocopy of Complained, there is not any complained about
irrigation of eye .

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 It is against the Naina village people.

ISSUE 3

WHETHER NEHTHRA HOSPITAL AND BSC NGO IS LIABLE FOR DEFICIENCY

OF SERVICE

There are not two purposes behind the tortuous liability, firstly, it provides
compensation in terms of money to those injured as a result of negligence of
doctors/hospitals, thereby operates as a source of indemnity. Secondly, by
imposing sanctions on not guilty professionals, it functions as a deterrent to
future negligent behavior.

SUBSTANTIVE PRINCIPLES IN LAW:

MEDICAL NEGLIGENCE
Batra Hospital & Medical Research Centre & Ors.1 as under:“ Negligence.
– Duties owed to patient. A person who holdshimself out as ready to give
medical advice or treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a patient,
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owes him certain duties, namely, a duty of care in deciding whether to
undertake the case; a duty deciding what treatment to give; and a duty of
care in hisadministration of that treatment. A breach of any of these
duties will support an action for negligence by the patient”

. However, the action of the Doctors and staff in the Government Hospital at
providing treatment to the petitioner is contrary to the Code of Medical Ethics
drawn up with the approval of the Central Government under Section 33 of the
Indian Medical Council Act, 1956, which states that every Doctor, whether at the
Government Hospital or otherwise, has professional obligation to extend his
services to protect the life. This obligation being total, absolute and paramount,
laws or procedures, whether in statute or otherwise cannot be sustained and,
therefore must give way.

ISSUE 4

WHETHER FREE SERVICE RENDERED BY ALL THREE ORGANISATIONS

COMES UNDER THE PERVIEW OF SERVICE?

In order to comply with the definition of ‘consumer,’ a person should have

hired or availed of any services for a consideration. The element of
consideration serves as a test to determine whether a patient is a consumer
or not. Although the question of consideration constitutes an important
criterion, nowhere in the Act, the term has been defined.

SERVICE DEFINTION under consumer protection act, 1986

"Section 2(1) (o) : "service" means service of any description which is made
available to the potential users and includes the provision of facilities in
connection with banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both, [housing construction],
entertainment, amusement or the purveying of news or other information,
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 but does not include rendering of any service free of charge or under a
contract of personal service;"

The literal interpretation of the definition shows that a person who wants to fall
within the definition must satisfy three conditions
A) The service must be hired by him;

B) The service should have been rendered to him;

C) For hiring service, he must have paid or promised to pay consideration35.

in the case of Indian Medical Association vs V.P. Shantha & Ors on 13
November, 1995 Equivalent citations: 1996 AIR 550, 1995 SCC (6) 651, it
was held that.
We are of the view that in such a situation the persons belonging to "poor
class" who are provided services free of charge are the beneficiaries of the
service which is hired or availed of by the "paying class". We are, therefore, of
opinion that service rendered by the doctors and hospitals falling in category
(iii) irrespective of the fact that part of the service is rendered free of charge,
would nevertheless fall within the ambit of the expression "service" as
defined.

It would thus appear that medical practitioners, though belonging to the

medical profession, are not immune from a claim for damages on the
ground of negligence. The fact that they are governed by the Indian
Medical Council
Act and are subject to the disciplinary control of Medical Council of
India and/or State Medical Councils is no solace to the person who has
suffered due to their negligence and the right of such person to seek
redress is not affected

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 ISSUE 5

WHETHER THE PATIENTS ARE ENTITLED TO COMPENSATION?

Hence the issue no. 1 to 4 against the petitioner so petitioner is not entitle to
compensation.

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 PRAYER

It is humbly prayed this Hon’ble court discharge the present respondent from all
the charges.

And further pass any order that the Hon’ble court may deem fit. And for this act of
kindness, the counsel on behalf of the respondent, duty bound shall forever pray.

ALL OF WHICH RESPECTIVELY SUBMIITED

_______________________________________________
Sd/-

COUNSELS FOR THE RESPONDENT

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