Nme Memorial (3251)

SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT ELIMINATION, 2021
21010126010 & 21010126011
SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT ELIMINATION,

2021
BEFORE THE HON’BLE SUPREME COURT OF INDUS
UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION
IN THE MATTER OF
ORIGINAL SUIT NO _____/2021

NATURAL HEALTH CARE UNION.……………………………PLAINTIFF
TRUMPEST & CO………………………………………………DEFENDANT
HEARD ALONG WITH
SPECIAL LEAVE PETITION (SLP) NO ______/2021
BIDENCO INDUS LTD……………………………………………PLAINTIFF
TRUMPEST & CO …………………………………………………….DEFENDANT
MEMORIAL ON BEHALF OF THE PLAINTIFF/APPELLANT
Page | 1 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES……………………………………………..……… IV
STATEMENT OF JURISDICTION…………………………………..………….IX
STATEMENT OF FACTS……………………………………………………...…X
STATEMENT OF ISSUES……………………………………………………….XI
SUMMARY OF ARGUMENTS……………………………………...…………XII
ARGUMENTS ADVANCED……………………………………………………...1
ISSUE 1: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE DAMAGES
CAUSED DUE TO THE LEAK OF URANIUM……………………1
[1.1] WETHER TRUMPEST & CO. IS NEGLIGENT.…………………………...1
[1.2] TRUMPEST & CO. IS LIABLE FOR PUBLIC NUISANCE……………….1
[1.3] WHETHER TRUMPEST & CO. IS STRICTLY LIABLE.………………….1
[1.4] TRUMPEST & CO. IS ABSOLUTELY LIABLE..………………………….1
ISSUE 2: WHETHER BIDENCO INDUS LTD IS ENTITLED UNDER THE CONTRACT
DATED FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION EUROS
FROM THE MONTH OF AUGUST 2021.
[2.1] THE CONTRACT DATED FEBRUARY 14, 2021 IS A CONTINGENT CONTRACT
[2.2] TIME FOR PERFORMANCE
[2.3] IMPOSSIBILITY OF PERFORMANCE AND FRUSTRATION
PRAYER……………………………………………………………………..…...21

LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reporter
Anr. Another.
Art. Article
L.J. Law Journal
& And
H.C. High Court
Ors. Others
Ltd. Limited
S.C. Supreme Court
S.C.C. Supreme Court Cases
Hon’ble Honorable
v. Versus
Supp Supplementary
Com cases Company Cases
ILR Indian Law Reports
QB Queen’s Bench
u/s Under section

INDEX OF AUTHORITIES
CASES
Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781, 156 ER 1047 pg 15
Donoghue v Stevenson [1932] A.C. 562 pg 15
Nettleship v Weston [1971] EWCA Civ 6, [1971] 2 QB 691 pg 16
Vaughan v Menlove [1837] 3 Bing NC 468 16
Ishwar Devi v Union of India AIR 1969 Delhi 183 16
Malton Board of Health v Malton Manure Co., [1879] 4 Ex D 302
Lambton v Mellish, [1894] 3 Ch 163
Lister’s Case, [1856] 1D & B 118
Att-Genl. v Proprietors of the Bradford Canal, [1866] LR 2 Eq 71
Ram Raj Singh v Babulal AIR 1982 All. 285
Ishwar Devi v Union of India AIR 1969 Delhi 183
The National Green Tribunal Act, 2010 Act No. 19 of 2010
St Helen’s Smelting Co. v Tipping [1865] 11 HLC 642
Radhey Shyam vs. Gur Prasad AIR 1978 All 86
Rylands v Fletcher [1868] LR 3 HL 330
Northwestern Utilities v London Guarantee and Accident Co. [1936] AC 108
MP Electricity Board v Shail Kumar AIR 2002 SC 55

Meghalaya State Electricity Board v Edentinora Mawthoh 2008 (1) GLT 732
West vs. Bristol Tramways Co., (1908) 2 K.B. 14.
T.C. Balakrishnan vs. T.R. Subramanian, A.I.R. 1968 Kerela 151.
Shiffman vs. Graud Priory, etc, (1936) 1 All. E.R. 557.
State of J And K And Or’s. vs Mohd. Iqbal AIR 2007 J K
Sochacki vs. Sas (1947) 1 All E.R. 344.
Box vs. Jabb (1879) 4 Ex. D 76.
M.C. Mehta v. Union of India (UOI) and Ors. 1987 SCR (1) 819; AIR 1987 965
Hoy v. Miller 2006 WY 147
Klaus Mittelbachert vs East India Hotels Ltd. AIR 1997 Delhi 201, 1999 ACJ 287
Union Carbide Corporation vs Union Of India 1990 AIR 273, 1989 SCC (2) 540
Jagdish And Ors. vs Naresh Soni And Ors 2007 (3) MPHT 234
Chandulal Harjivandas v CIT, AIR 1967 SC 816, 818: (1967) 1 SCR 921, 925.
N. Peddanna Ogeti Balayyav Kotta V. Srinivasayya Setti Sons, AIR1954SC26.
Commr of Excess Profits Tax v Ruby General Insurance Co Ltd, AIR 1957SC669

Parvathammav Uma, AIR2011Kant 58
Rojasara Ramjibhai Dahyabhaiv Jani Narottamdas Lallubhai,(1986) 3 SCC300: AIR 1986
SC1912.
V.P. Desa v Union ofIndia, AIR 1958 MP 297.
Nandkishore Lalbhai Mehta v New Era Fabrics (P) Ltd, (2015) 9 SCC 755: AIR 2015 SC 3796.
Pameshwari Das Mehra v Ram Chand Om Prakash AIR 1952 Punj 34, 38.
R.K. Prasad J, Orissa Textile Mills Ltd v Ganesh Das, AljR. 1961 Pat 107
Bhudra Chand v Betts (1915) 22 Cal LJ 566: 33 IC 347.
China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd AIR 1961 SC 1295
Wasoo Enterpriser v J.J. Oil Mills, AIR 1968 Guj 57.
INTERNATIONAL STATUTES
NEWSPAPER ARTICLE
ACTS
Section 31, The Indian Contract Act, 1872
CONSTITUTIONAL PROVISIONS
Article 21, Constitution of India, 1950
Article 12, Constitutiton of India, 1950
Article 48a, Constitution of India, 1950
Article 51g, Constitution of India, 1950

BOOKS
Ratanlal & Dheerajlal, Law of Torts 508
R.K Bhangia, law of Tort, (378-391).
Singh, A., 1994. Law of contract. 12th ed. Lucknow: Eastern Book Co.
ARTICLES
FOREIGN CASES
Quebec Railway, Light, Heat & Power Co. v Vandry Ll92Ql A.C. 662.
JOURNALS
REPORTS
A.L. Corbin, Recent Developments in Contracts, (1937) 50 Harv L Rev 549, 465-66.

STATEMENT OF JURISDICTION
ARTICLE 131. Subject to the provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more
other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question
(whether of law or fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty,
agreement, covenant, engagement, sanad or other similar instrument which, having been entered
into or executed before the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
ARTICLE 32. (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.

ARTICLE 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

STATEMENT OF FACTS
The Laws of Indus are pari-materia to the Laws of India.
In the month of June 2020, Trumpest & Co. claimed that they had
invented the vaccine for Mahamari (a contagious disease) and were
ready to go for trials. On January 28, 2021, it was declared by
Trumpest & Co. & the Government of Indus in a joint press
conference they were committed to providing vaccines. Following
which Bidenco & Trumpest & Co. established an agreement
wherein Bidenco would invest 30 million euros every month in
INTRODUCTION Trumpest & Co. and supply them with necessary quantities of
AND Uranium needed for storage and transportation of the produced
BACKGROUND vaccines while Trumpest & Co. would in return produce 100 million
doses of vaccine quarterly. On June 21, 2021, during the monthly
regulatory and supervisory visit of a joint team of WHO officials &
officials of Government of Indus one of the WHO officials
accidentally opened the ventilators & disposal system of the
Uranium Storage Area leading to a leak of Uranium around the site.
The residents of Pallet Town (the nearest populated area) and also
several plants and trees and animals were severely affected by the
leak. While so, Bidenco Indus Ltd. issued notice dated July 15,
2021, to Trumpest & Co. informing that Bidenco Indus Ltd. was no
longer liable to make its monthly investment. Trumpest & Co. After
the High Court of Hoenn ruled in favour of Trumpest & Co. for

their suit against Bidenco Indus Ltd, the conglomerate filed an
appeal in the supreme court.
A) NATURAL HEALTH CARE UNION
PARTIES TO THE B) BIDENCO INDUS LTD
DISPUTE C) TRUMPEST & CO
Natural Health Care Union, NGO registered under the laws of
Republic of Indus filed a suit before the Supreme Court of Indus
seeking compensation from Trumpest & Co. for the devastating
damage caused by the Uranium leak. Trumpest & Co. contested the
Public Interest Litigation on the grounds that they are entitled for the
defences available under the principle of strict liability. While so
Trumpest & Co. approached the H.C. of Hoenn seeking directions to

CAUSE OF ACTION
Bidenco Indus Ltd. to specifically perform its part of the contract.
Aggrieved by the court ruling in favour of Trumpest & Co, Bidenco
Indus Ltd. filed an appeal under Article 136 of the Constitution of
Indus before the Supreme Court of Indus.
Public Interest Litigation filed by Natural Health Care
Union seeking compensation from Trumpest & Co. for the
devastating damage caused by the Uranium Leak. Bidenco Indus

ACTION TAKEN BY
Ltd. filed a Special Leave Petition under Article 136. All cases
PARTIES
were clubbed together, to be heard before a Constitution Bench of
Hon’ble Supreme Court of Indus.

STATEMENT OF ISSUES
ISSUE 1: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE
DAMAGE CAUSED DUE TO THE LEAK OF URANIUM FROM ONE OF ITS
PRODUCTION SITES.
[1.1] WHETHER TRUMPEST AND CO. IS NEGLIGENT
[1.2] WHETHER TRUMPEST AND CO. IS LIABLE FOR PUBLIC NUISANCE
[1.3] WHETHER TRUMPEST AND CO. IS STRICTLY LIABLE
[1.4] TRUMPEST AND CO. IS ABSOLUTELY LIABLE
DATED FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION
EUROS FROM THE MONTH OF AUGUST 2021.
[2.1] THE CONTRACT IS A CONTINGENT CONTRACT
[2.2] RESPONDENTS IMPOSSIBILITY TO PERFORM CONTRACT

SUMMARY OF ARGUMENTS
DAMAGES CAUSED DUE TO THE LEAK OF URANIUM
Trumpest and Co. is liable to pay compensation to the residents of Pallet Town on account of
their negligence during the monthly regulatory and supervisory visit of a joint team of WHO
officials & officials of Government of Indus to one of the sites of production of Sanjeevini (the
vaccine) as well as the public nuisance caused due to many effected residents being diagnosed
with mental illnesses and permanent damage to their lungs as result of inhaling Uranium fumes
in addition to drastic damages to the local environment as several plants, trees and animals were
severely affected by the leak. Trumpest & Co. will be held absolutely liable and not strictly liable
as when a harmful object escapes (uranium leak), it might have disastrous consequences for
everyone and the company cannot make an exemption for an act of God or an act of a third
party.
EUROS
The contract between Trumpest & Co. and Bidenco Indus Limited is a contingent contract while
clause 13 of the contract stipulated that in case Trumpest & Co. failed to deliver the quantity of
doses as agreed by the end of each quarter, then Bidenco Indus Ltd. was entitled to immediately
stop the monthly investments to be made in Trumpest & Co. and as such the first press statement
by Trumpest & Co. stating the production of 100 million doses within 3 months was only

possible due the fact that the production happened on each and every day and that the production
was not even halted for a single day, thus indicating Trumpest & Co. had been strained in
meeting the first batch of 100 million doses that came to be delivered on June 01, 2021. On June
21, 2021, the leak of Uranium around a site of production of the vaccine caused it to immediately
shut down and production had to halted for 20 days. The lack of infrastructure to produce the
required number of vaccines in addition to production being halted for 20 days, it is foreseeable
that Trumpest & Co. would not be able to meet its obligation of supplying 100 million doses by
September 01, 2021. The letter of Bidenco Indus Ltd. dated July 15, 2021, was in accordance
with Clause 13 of the contract and that the High Court of Hoenn was incorrect in holding that
Bidenco Indus Ltd. was liable to invest 30 million euros for the month of August 2021 and invest
30 million euros every month thereafter.

ARGUMENTS ADVANCED
DAMAGES CAUSED DUE TO THE LEAK OF URANIUM FROM ONE OF ITS
PRODUCTION SITES
It is humbly contended before the Hon’ble Supreme Court of Indus that the prayers sought for by
the petitioner Natural Health Care Union are maintainable. The prayer seeks damages from the
respondent Trumpest & Co. for the harm caused during the monthly regulatory and supervisory
visit of a joint team of WHO officials & officials of Government of Indus to one of the sites of
production. The claim is sought to be achieved on the following grounds:
[1.1] WETHER TRUMPEST & CO. IS NEGLIGENT
In the case of Blyth v. Birmingham Waterworks Co.1 Judge Alderson B. observed that
“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.”
The Neighbour Principle enunciated by Lord Atkin in Donoghue v Stevenson2 the essential
ingredients of negligence are as follows:
1. The defendant owed duty of care to the plaintiff
2. The defendant made breach of that duty
3. The plaintiff suffered damages as a consequence thereof.
1
Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781, 156 ER 1047
2
Donoghue v Stevenson [1932] A.C. 562

[1.1.A] TRUMPEST AND CO. OWES DUTY OF CARE
In the above case of Donoghue v Stevenson2, the rule of duty of care was established as, “you
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.”
Lord Atkin further defines a neighbour as “persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into question.” Considering the
present case the residents of Pallet Town/ National Health Care Union are closely and directly
affected by the acts of the respondent, and therefore, it is humbly contended that the plaintiff is
owed reasonable care! to avoid actions that could cause grave injuries.
[1.1.B] TRUMPEST & CO. BREACHED DUTY OF CARE
From the case of Nettleship v West3 we determine that the most important general principle
regarding breach of care is the applicable standard of care is that of a reasonably competent
person undertaking the activity.4
In the case of Ishwar Devi v Union of India5, the court observed that the “safety of the public is
the primary concern of those who are in charge and in control”
In the present case, Trumpest & Co. took no preventative precautions to during the monthly
regulatory and supervisory visit of a joint team of WHO officials and officials of the
Government of Indus to one of the sites of production of the vaccine (Sanjeevini). When the
uranium leak
3
Nettleship v Weston [1971] EWCA Civ 6, [1971] 2 QB 691
4
Vaughan v Menlove [1837] 3 Bing NC 468

5
occurred, it is contended that the accident endangered the public’s safety and caused severe
injuries to the residents of Pallet Town but also the local environment.
Hence it is humbly contended before this Hon’ble Court that the carelessness exhibited by
Trumpest & Co’s failure to prevent the uranium fume leak amounts to a probability and can be
expected to fail that standard of foresight expected of a prudent and reasonable man would
observe5, resulting in the breach of duty of care.
[1.1.C] TRUMPEST & CO. CAUSED DAMAGES
It is humbly contended before this Hon’ble Court that the injuries sustained by the residents of
Pallet town such as inhabitants being diagnosed with mental illness and permanent damage to
their lungs by inhaling Uranium fumes as well as various plants, trees and animals being harmed
are directly and conclusively caused by the Uranium fume leak at Trumpest & Co. amounts to
damages
[1.2.] TRUMPEST & CO IS LIABLE FOR PUBLIC NUISANCE
It is contended before this Hon’ble Court that Trumpest & Co. is also liable for causing Public
Nuisance.
Public Nuisance is defined as “an act affecting the public at large or some considerable portion
of it; and it must interfere with rights which members of the community might otherwise enjoy.
Acts which seriously interfere with the health, safety, comfort, or convenience of the public
generally or which tend to degrade public morals have always been considered public nuisance.
E.g. carrying on trades which cause offensive smells 6, or intolerable noises7, keeping an
inflammable substance like gunpowder in large quantities 8, drawing water in a can from a filthy
source9. They are dealt

6
Malton Board of Health v Malton Manure Co., [1879] 4 Ex D 302
7
Lambton v Mellish, [1894] 3 Ch 163
8
Lister’s Case, [1856] 1D & B 118
9
Att-Genl. v Proprietors of the Bradford Canal, [1866] LR 2 Eq 71
with by or in the name of the state.”10
Under section 268 of the Indian Penal Code a person is guilty of Public Nuisance, “who does any
act or is guilty of an illegal omission which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy property in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.”11
In the cases of Ram Raj Singh v Babulal12, the defendant had created a stone crushing machine,
adjoining the plaintiff’s house. It was held that the plaintiff was able to prove that such activity
causes a problem at large and therefore it was a public nuisance and special damages were a
given to the plaintiff. In St Helen’s Smelting Co. v Tipping13, fumes from the defendant
company’s work damaged the plaintiff’s trees and crop. Such damage being an injury to
property, it was held that the defendant was liable. And in the case of Radhey Shyam vs. Gur
Prasad14 the defendant’s alleged to put a permanent injunction to restrain them from installing
and running of flour mill industry in the locality, as that would make already noisy locality
noisier. It was held that the installation of the machine would lead to unreasonable interference
on the plaintiff’s right.
Therefore, the Uranium leak at Trumpest & Co. amounts to Public Nuisance as the Act caused
common injury, endangered the residents of Pallet Town and annoyance to the people in general
who dwell and occupy property in the vicinity.
[1.3] WHETHER TRUMPEST & CO. IS STRICTLY LIABLE
It has been noted that in Rylands v Fletcher15, the House of Lords laid down the rule recognizing

10
Ratanlal & Dheerajlal, Law of Torts 508
11
Section 268, Indian Penal Code, 1860
12
Ram Raj Singh v Babulal AIR 1982 All. 285
13
St Helen’s Smelting Co. v Tipping [1865] 11 HLC 642
14
Radhey Shyam vs. Gur Prasad AIR 1978 All 86
15
Rylands v Fletcher [1868] LR 3 HL 330
‘No Fault’ liability. The liability recognized was ‘Strict Liability’, i.e., even of the defendant was
not negligent or rather, even if the defendant did not intentionally cause the harm or he was
careful he could still be made liable under the rule.16
The basis of the liability in the above case propounded by Blackburn J17 “We think that the rule
of law is, that the person for his own purposes brings on his lands and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie
answerable for all the damage which is the natural consequences of its escape. He can excuse
himself by showing that the escape was owning to the plaintiff’s default, or perhaps that the
escape was the consequence of vis major, or act of God; but as nothing of the sort exists here, it
is unnecessary to inquire what excuse would be sufficient.”
In the present case Trumpest & Co. is not entitled for defenses available under strict liability on
account of Act of Third Party; for two reasons, the exemption does not apply here:
 In the current case since Trumpest & Co. may have foreseen the Third Party’s activities
(one of the WHO officials accidently opening the ventilators and disposal system of the
uranium storage area leading to a leak). The repercussions may have been prevented if
Trumpest & Co. had exercised reasonable care and due diligence.
 So long as the uranium needed for storage and transportation of the produced vaccines is
potentially hazardous and might endanger an individual’s life, it is Trumpest & Co’s
responsibility to take all necessary precautions to avoid any escape of such a dangerous
and radioactive substance.

In Northwestern Utilities v London Guarantee and Accident Co.18 the appellants were a public
16
R.K Bhangia, law of Tort, (378-391).
17
The rule was formulated by Blackburn J in Exchequer Chamber in Fletcher v Rylands, [1868] LR 1 Ex 265
18
Northwestern Utilities v London Guarantee and Accident Co. [1936] AC 108
utility company carrying gas at a high pressure. During construction a gas pipe leaked, resulting
in a fire. Since the operations of the city authorities were conspicuous and the danger of the gas
pipes could have been reasonably foreseen and guarded against, the failure to do that was
negligence and the appellants were held liable. In a decision of the Supreme Court in MP
Electricity Board v Shail Kumar19, the rule of strict liability was applied and defect of a
hazardous substance, the electricity through the transmission lines, the defense of an ‘act of the
stranger’ was not allowed as the same could have been foreseen. A similar judgement was passed
in Quebec Railway, Light, Heat & Power Co. v Vandry20. In the cases of Meghalaya State
Electricity Board v Edentinora Mawthoh21 and State of J And K And Or’s. vs Mohd. Iqbal22 it was
decided that the authorities undertaking an activity involving hazardous exposure to human life
were liable under the Law of Torts to compensate for the injury suffered by any other person in
respect of any negligence or carelessness in the part of the persons/authorities who undertook
such hazardous activity.
In the present case, it is contended before the Hon’ble Supreme Court that Trumpest and Co. had
foreseeability, the ability and duty to prevent the violating act in the case thus establishing that
Trumpest & Co. is not entitle to the defenses of Act of Third Party. It is further contended that
Trumpest & Co. is not Strictly Liable and can be held Absolutely Liable.
[1.4] TRUMPEST AND CO IS ABSOLUTELY LIABLE
It is humbly contended before the Hon’ble court that Trumpest & Co. is Absolutely Liable in the
present case.
In the landmark case of MC Mehta v. Union of India (UOI) and Ors.23 Justice P. N. Bhagwati

19
MP Electricity Board v Shail Kumar AIR 2002 SC 55
20
Quebec Railway, Light, Heat & Power Co. v Vandry Ll92Ql A.C. 662.
22
State of J And K And Or’s. vs Mohd. Iqbal AIR 2007 J K
23
M.C. Mehta v. Union of India (UOI) and Ors. 1987 SCR (1) 819; AIR 1987 965
propounded the principle of Absolute liability and meticulously observed; “We are of the view
that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses
a potential threat to the health and safety of the persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty to the community to ensure that no
harm results to anyone on account of the hazardous or inherently dangerous nature of the activity
which it has undertaken.”24 The court earlier pointed out that this duty is ‘absolute and non-
delegable’ and the enterprise cannot escape liability by showing that it has taken all reasonable
care and there was no negligence on its part.
In Hoy v. Miller25, Justice Golden defined Absolute Liability with precision, ‘absolute liability is
a liability without fault – a liability for which there is no excuse’. The principle of Absolute
Liability is an inalienable part under Article 2126 and Article 3227 of the Indian Constitution, and
NGT Act 201028, under Section 17, incorporated the no-fault law.
In MC Mehta v. Union of India (UOI) and Ors In this case, the claim was arising from the
leakage of oleum gas from the Shriram Food and Fertilizers Industries, as a consequence of this
leakage there was a huge loss of life and many people suffered from serious injuries. The case
was filed by a writ petition under art 32 of the Constitution by way of PIL. The application of
only Strict Liability came as a step-back for the Indian Justice System. The judges refused to
apply the principle of Strict Liability and rendered it obsolete because it is ‘woefully inadequate’
to protect the rights of the citizens Thus an innovative remedy was evolved by the Supreme
Court, which was indirect recognition and application of the ‘polluter pays principle’.
The rule was formulated by PN Bhagwati J in Supreme Court of India in M.C. Mehta v. Union of India (UOI) and
24
Ors. 1987 SCR (1) 819; AIR 1987 965

25
Hoy v. Miller 2006 WY 147
26
27
28
Absolute liability was thus articulated. The Court also made the measure of accountability
compatible with the capacity of the enterprise. This pronouncement was later upheld in Charan
Lal Sahu v. Union of India29.
In Union Carbide Corporation v Union Of India30 the doctrine of Absolute Liability was upheld
in the infamous Bhopal gas tragedy which took place between the intervening night of 2nd and
3rd December 1984. Leakage of Methyl-iso-cyanide (MIC) poisonous gas from the Union
Carbide Company in Bhopal, Madhya Pradesh led to a major disaster and over 3000 people lost
their lives.
There was a heavy loss to property, flora, and fauna. The effect was so grave that even today
when children are born, they have deformities. The Government of India enacted the Bhopal Gas
Disaster (Processing of Claims) Act, 1985 and sued the company for damages on behalf of the
victims. The court applying the principle of Absolute Liability held the company liable and
ordered it to pay compensation to the victims.
In the case of LG Polymers (India) (P) Ltd v AP Pollution Control Board 31 On May 7th, 2020, a
polymer plant of the LG Polymers India Private Limited leaked Styrene Gas, killing 11 [eleven]
people. On prima facie analysis of the cause, it appeared that the leak was a result of the failure
of the company to meet the compliances entailed in the ‘Manufacture, Storage and Import of
Hazardous Chemical Rules. 1989’, which in effect requires a company to maintain certain
emergency plans for preventing onsite and offsite damages to the plant and its surroundings.
Vide the Interim order passed by the Tribunal, the company was made to follow the penalties of
the Polluter Pays Principle, and the Strict Liability Principle only. In taking into account the
mass casualty of the Bhopal Gas Tragedy, and the similar circumstances under which this

incident occurred, the court should have applied the principle ordered in the preceding case, of
‘Absolute
29
Charan Lal Sahu v. Union of India 1988 AIR 107, 1988 SCR (1) 441
30
Union Carbide Corporation vs Union Of India 1990 AIR 273, 1989 SCC (2) 540
31
LG Polymers (India) (P) Ltd v AP Pollution Control Board [2020] 6 SCC 619
Liability’ in the case. In Indian Council for Enviro-legal Action vs. Union of India32 an PIL filed
under Article 32 of the Indian Constitution voiced protests of the petitioners over the presence of
industries that was causing large scale environmental pollution and endangering the lives of the
villagers who resided in the vicinity of the industries. It violated their right to life and liberty
given under Article 21of the Indian Constitution 33 action and ordered the Central Government
and the Pollution Control Board to constitute strict measures against the said industries. The
court upheld the Doctrine of Absolute Liability here stating that the polluted environment must
be restored to a pollution free one conducive for healthy living by utilizing anti-pollution
scientific appliances. The expenditure so incurred in this process must be paid by the industries
even if their properties need to be attached for this purpose. The industries were made absolutely
liable for paying monetary damages for restoration of the environment.
The bases of Absolute Liability as indicated by the Supreme Court are two:
 If an enterprise is permitted to carry on a hazardous or inherently dangerous activity for
its profits, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident arising on account of such hazardous or inherently
dangerous activity as an appropriate item of its over heads.
 The enterprise alone has the resource to discover and guard against hazards or dangers
and to provide warnings against potential hazards.
In the present case it is humbly contended before the Hon’ble Court that Trumpest & Co. is
Absolutely Liable as being a company that deals in production of life saving drugs and is a

dominant player in the market its utilization of industrial grade uranium as a cooling agent for
the vaccines comes under the prerequisite of absolute liability, thus Trumpest & Co.
conditionally
32
Indian Council for Enviro-legal Action vs. Union of India, AIR 1996 SC 144
33
must absorb the cost the uranium leak in the form of compensation to the residents of Pallet
Town. Trumpest & Co. should have undertaken provision to safeguard against foreseeable and
potentially hazardous activities.
EUROS FROM THE MONTH OF AUGUST 2021.
It is humbly contended before the Hon’ble Supreme Court of Indus that the prayers sought for by
the petitioner Bidenco Indus Limited are maintainable. The prayer seeks appeal against the order
of the High Court of Hoenn to perform its part of the contract and duly investing 30 million
euros for the month of August, 2021 and 30 million euros every month thereafter to the
defendant Trumpest & Co. The appeal is sought to be achieved on the following grounds:
[2.1] THE CONTRACT DATED FEBRUARY 14, 2021 IS A CONTINGENT CONTRACT
Under section 31 of the Indian Contracts Act 187234 defines a “Contingent contract” as “—"a
contract to do or not to do something, if some event, collateral to such contract, does or does not
happen.”
In the present case the contract between Bidenco Indus Ltd and Trumpest & Co states that only
following the quarterly delivery of the 100 million doses of the ‘Sanjeevini’ vaccine would

Bidenco Indus Ltd invest 30 million euros every month. Based upon the reciprocal promise of
the contract and definition cited from the Indian contracts act, The contract dated February 14
2021 is a contingent contract governed under Sections 31 to 36 of the Act.

34
Section 31, Indian Contracts Act,1872
[2.1.A] SECTION 32 OF INDIAN CONTRACTS ACT
Under section 32 of the Indian Contracts Act 187235 two basic principles are established. First, a
contract to do an act on the happening of a future uncertain condition cannot be enforced unless
and until that event happens." Second, if the happening of that event has become impossible, the
contract becomes void.
In the case of V.P. Desa v Union of India36 where a car was insured against loss in transit, the car
was damaged without being put in the course of transit, the insurer was held to be not liable. The
contract would also not be enforceable where the event does not happen in the way contemplated
by the contract.
In Nandkishore Lalbhai Mehta v New Era Fabrics (P) Ltd37, A contract for the sale of land with
a factory was to be performed only if the labor unions agreed to the sale and further if the change
of land use was approved by the appropriate authority. None of these contingencies could be
fulfilled because neither there was approval by the labor unions nor by the relevant authority.
The contract was accordingly not allowed to be enforced against the seller.
In the current case, the anticipated inability of Trumpest & Co. to meet its obligation of
supplying 100 million doses by September 01, on account of the production process having been
halted in one of its sites for 20 days, renders the contract unenforceable.
[2.1.B] SECTION 35 OF INDIAN CONTRACTS ACT
Section 35 of the Indian Contracts Act 187238 states “When contracts become void, which are
contingent on happening of specified event within fixed time.”

Thus, in the present case, the first press statement by Trumpest & Co. stating the production of
35
Section 32, Indian Contracts Act, 1872
36
V.P. Desa v Union of India, AIR 1958 MP 297.
37
Nandkishore Lalbhai Mehta v New Era Fabrics (P) Ltd
38
Section 35, Indian Contracts Act,1872
100 million doses within 3 months was only possible due the fact that the production happened
on
each and every day and that the production was not even halted for a single day, thus indicating
Trumpest & Co. had been strained in meeting the first batch of 100 million doses that came to be
delivered on June 01, 2021. On June 21, 2021, the leak of Uranium around a site of production of
the vaccine caused it to immediately shut down and production had to halted for 20 days. The
lack of infrastructure to produce the required number of vaccines in addition to production being
halted for 20 days, it is foreseeable that Trumpest & Co. would not be able to meet its obligation
of supplying 100 million doses by September 01, 2021. Thus, It is contended before the Hon’ble
Supreme Court that after considering the pertinent facts of the case Trumpest & Co would not
have
been able to the delivery by September 01, 2021 being the fixed time as stipulated in the contract
and agreed upon by both parties, rendering the given event impossible and the contract
ultimately void. The failure of a contingent contract is due to non-happening of an anticipated
event.
[2.2] TIME FOR PERFORMANCE
The parties to a contract specify the time for its performance. Ordinarily it is expected that either
party will perform his obligation at the stipulated time. But if one of them fails to do so, the
question arises what is the effect upon the contract. Under Section 55 of Indian Contracts Act
187239,” Effect of failure to perform at fixed time, in contract in which time is essential. —When
a party to a contract promises to do a certain thing at or before a specified time, or certain things
at or before specified times, and fails to do any such thing at or before the specified time, the
contract, or so much of it as has not been performed, becomes voidable” According to this
section, if the intention of the parties was that time should be the essence of the contract, then a
failure to perform at the agreed time renders the contract voidable at the option of the opposite
party.
39
Section 55, Indian Contracts Act, 1872
Time is generally considered to be of the essence of the contract in the following three cases:
 Where the parties have expressly agreed to treat it as of the essence of the contract;
 Where delay operates as an injury;
 Where the nature and necessity of the contract requires it to be so construed, for
example, where a party asks for extension of time for performance."40
The well-known authority is Bhudra Chand v Betts41 The plaintiff stipulated with the defendant
to engage his elephant for the purpose of Kheda operations (to capture wild elephants). The
contract provided that the elephant would be delivered on the 1st October, 1910; but the
defendant obtained an extension of time till the 6th October and yet did not deliver the elephant
till the 11th. The plaintiff refused to accept the elephant and sued for damages for the breach. He
was held entitled to recover as the parties intended that time should be of the essence of the
contract. "This conclusion is confirmed by the circumstance that the defendant obtained an
extension of the time; if the time were not of the essence of the contract, he need not have asked
for extension of time."42
A leading Supreme Court authority is China Cotton Exporters v Beharilal Ramcharan Cotton
Mills Ltd.43 The appellants who carried on an import business at Bombay contracted to supply to
the respondent mill a quantity of Italian staple fibre cotton. The shipment was to take place in

October or November. The contract concluded by the remark: "This contract is subject to import
licence and therefore the shipment date is not guaranteed". A part of the goods was supplied and
accepted, but the rest were not supplied in the time mentioned. The buyer wanted to avoid the
contract on this ground. It was held that in spite of the remark that shipment date was not
guaranteed, time was of the essence and the buyer was entitled to avoid the contract. In a similar
case before the Gujarat

40
R.K. Prasad J, Orissa Textile Mills Ltd v Ganesh Das, AljR. 1961 Pat 107
41
Bhudra Chand v Betts (1915) 22 Cal LJ 566: 33 IC 347.
42
Mookerjee J at p. 567. Followed in Colles Cranes of India Ltd v Speedeo Spares Corpn, AIR 1970 Cal 321.
43
China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd AIR 1961 SC 1295.
High Court Wasoo Enterpriser v J.J. Oil Mills 44 The undertaking was to ship by a particular ship
in August, 1954. The plaintiff failed to ship in August and on their request the defendants
extended the time to September 10. The plaintiffs failed to make good their default even within
the extended time and, therefore, the defendants finally repudiated the contract. The plaintiff
sued them for breach. Bhagwati J, following China Cotton Exporters, above, held that the time of
shipment was of the essence and it was the plaintiff and not the. defendants who were guilty of
breach. An application for extension of time does not take effect unless accepted and the fact that
an extension for a week was offered would not amount to a waiver within the meaning of Section
63 of the right to insist upon the stipulated time
In the present case the contract to that effect came to be executed on February 14, 2021, between
Bidenco Indus Ltd. and Trumpest & Co. wherein it was agreed upon by both parties that the
production would begin from 1st of March 2021 and the first batch 100 million doses would be
delivered by June 01, 2021, and subsequent batches after every 3 months from June 01, 2021.
This cycle was to continue for a period of 5 years, during which time period Bidenco Indus Ltd.
Would invest 30 million euros in Trumpest Co. every month. And noticeably, clause 13 of the
contract stipulated that in case Trumpest & Co. failed to deliver the quantity of doses as agreed

by the end of each quarter, then Bidenco Indus Ltd. was entitled to immediately stop the monthly
investments to be made in Trumpest & Co. It is evident that time is the essence of the disputed
contract.
Thus It is humbly contended before this Hon’ble Court that the contract that exists between
Bidenco Indus Ltd and Trumpest & Co. is based upon the essence of time and the anticipated
delay in this case was due to Trumpest & Co’s inability to supply the 100 million vaccines in
time are vaild grounds for Bidenco Indus Ltd to halt the payments and Trumpest & Co.’s actions
amounting
44
Wasoo Enterpriser v J.J. Oil Mills, AIR 1968 Guj 57
to breach leading the inevitable damages.
[2.3] IMPOSSIBILITY OF PERFORMANCE AND FRUSTRATION
Under Section 56 of the Indian Contracts Acts 187245 lays down the simple principle that "an
agreement to do an act impossible in itself is void"
There are Specific grounds of frustration "The principle of frustration of contract, or of
impossibility of performance is applicable to a great variety of contracts. It is, therefore, not
possible to lay down an exhaustive list of situations in which the doctrine is going to be applied
so as to excuse performance. The law upon the matter is undoubtedly in process of evolution."1
In the present case the contract dated February 14 2021 states that only following the quarterly
delivery of the 100 million doses of the ‘Sanjeevini’ vaccine would Bidenco Indus Ltd invest 30
million euros every month. Based upon the facts of the case; Trumpest & Co. while delivering
the
first batch on June 01, 2021, issued a press statement that the production of 100 million doses
within 3 months was only possible due the fact that the production happened on each and every

day and that the production was not even halted for a single day and would not be able to meet
its obligation of supplying 100 million doses by September 01, on account of the production
process having been halted in one of its sites for 20 days. The appeal is maintainable under
Section 56 of the Indian Contracts Acts 1872.
[2.3.A] CHANGE OF CIRCUMSTANCES
In the case of Pameshwari Das Mehra v Ram Chand Om Prakas46 Kapur J of the Punjab High
Court stated,” a contract will frustrate "where circumstances arise' which make the performance
of the contract impossible in the manner and at the time contemplated.”
45
Section 56 of the Indian Contracts Acts 1872
46
Pameshwari Das Mehra v Ram Chand Om Prakash AIR 1952 Punj 34, 38.
And further explained the principle thus: "It is clear that if there is entirely unanticipated change
of circumstances the question will have to be considered whether this change of circumstances
has affected the performance of the contract to such an extent as to make it virtually impossible
or even extremely difficult or hazardous.”
It is humbly contended before the Hon’ble Court that Trumpest & Co’s lack of infrastructure to
produce the desired number of vaccines and the 20-day halt on production due to a uranium leak
the delivery of the 100 million vaccinees by the stipulated date can be foreseeably not met. Thus
acting as just grounds for the appeal by Bidenco Indus Ltd.

PRAYER
Wherefore, it is humbly prayed to this Hon’ble court that in the light of issues raised, arguments
advanced, and authorities cited may this Hon’ble Court be pleased to declare/adjudge/hold that:
1. Maintain that Trumpest & Co. n is liable to pay compensation for the damages caused to
the residents of Pallet Town
2. Dismiss any counter suit made by Trumpest & Co. to avail defenses available under the
principle of strict liability
3. Declare that the contract between Bidenco Indus Ltd and Trumpest & Co. made voidable
by Bidenco Indus Ltd was in accordance with Clause 13 of the contract and that the High
Court was incorrect in holding Bidenco Indus Ltd liable to pay further investments
AND/OR
Pass any other Order, Direction, Relief that it may deem fit in the Best Interests of

Justice, Fairness, Equity and Good Conscience.
For this Act of Kindness the Plaintiff and Appellant shall duty bound forever pray
Sd/-
Counsel for the
Plaintiff/Appellant

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SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT ELIMINATION, 2021

21010126010 & 21010126011

SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT ELIMINATION,

BEFORE THE HON’BLE SUPREME COURT OF INDUS

UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION

ORIGINAL SUIT NO _____/2021

MEMORIAL ON BEHALF OF THE PLAINTIFF/APPELLANT

Page | 1 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

CAUSED DUE TO THE LEAK OF URANIUM……………………1

[1.1] WETHER TRUMPEST & CO. IS NEGLIGENT.…………………………...1

[1.2] TRUMPEST & CO. IS LIABLE FOR PUBLIC NUISANCE……………….1

[1.3] WHETHER TRUMPEST & CO. IS STRICTLY LIABLE.………………….1

[1.4] TRUMPEST & CO. IS ABSOLUTELY LIABLE..………………………….1

ISSUE 2: WHETHER BIDENCO INDUS LTD IS ENTITLED UNDER THE CONTRACT

DATED FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION EUROS

FROM THE MONTH OF AUGUST 2021.

[2.1] THE CONTRACT DATED FEBRUARY 14, 2021 IS A CONTINGENT CONTRACT

[2.2] TIME FOR PERFORMANCE

[2.3] IMPOSSIBILITY OF PERFORMANCE AND FRUSTRATION

Page | 2 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

ABBREVIATION FULL FORM

AIR All India Reporter

L.J. Law Journal

H.C. High Court

S.C. Supreme Court

S.C.C. Supreme Court Cases

Com cases Company Cases

ILR Indian Law Reports

u/s Under section

Page | 3 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

Donoghue v Stevenson [1932] A.C. 562 pg 15

Nettleship v Weston [1971] EWCA Civ 6, [1971] 2 QB 691 pg 16

Vaughan v Menlove [1837] 3 Bing NC 468 16

Ishwar Devi v Union of India AIR 1969 Delhi 183 16

Malton Board of Health v Malton Manure Co., [1879] 4 Ex D 302

Lambton v Mellish, [1894] 3 Ch 163

Lister’s Case, [1856] 1D & B 118

Att-Genl. v Proprietors of the Bradford Canal, [1866] LR 2 Eq 71

Ram Raj Singh v Babulal AIR 1982 All. 285

Ishwar Devi v Union of India AIR 1969 Delhi 183

The National Green Tribunal Act, 2010 Act No. 19 of 2010

St Helen’s Smelting Co. v Tipping [1865] 11 HLC 642

Radhey Shyam vs. Gur Prasad AIR 1978 All 86

Rylands v Fletcher [1868] LR 3 HL 330

Northwestern Utilities v London Guarantee and Accident Co. [1936] AC 108

MP Electricity Board v Shail Kumar AIR 2002 SC 55

Page | 4 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

West vs. Bristol Tramways Co., (1908) 2 K.B. 14.

T.C. Balakrishnan vs. T.R. Subramanian, A.I.R. 1968 Kerela 151.

Shiffman vs. Graud Priory, etc, (1936) 1 All. E.R. 557.

State of J And K And Or’s. vs Mohd. Iqbal AIR 2007 J K

Sochacki vs. Sas (1947) 1 All E.R. 344.

Box vs. Jabb (1879) 4 Ex. D 76.

Hoy v. Miller 2006 WY 147

Ishwar Devi v Union of India AIR 1969 Delhi 183

N. Peddanna Ogeti Balayyav Kotta V. Srinivasayya Setti Sons, AIR1954SC26.

Page | 5 MEMORANDUM ON BEHALF OF THE PLAINTIFF/APPELLANT

Parvathammav Uma, AIR2011Kant 58

Rojasara Ramjibhai Dahyabhaiv Jani Narottamdas Lallubhai,(1986) 3 SCC300: AIR 1986

V.P. Desa v Union ofIndia, AIR 1958 MP 297.

Bhudra Chand v Betts (1915) 22 Cal LJ 566: 33 IC 347.

Wasoo Enterpriser v J.J. Oil Mills, AIR 1968 Guj 57.