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Before
THE HON‟BLE HIGH COURT OF SARDAM

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PETITION NUMBER XXXX/2023

FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908

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IN THE CASE CONCERNING THE RIGHTS OF M/S BRAHMASTRA & CO

IN THE MATTER BETWEEN

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M/S BRAHMASTRA & CO [PETITIONER]

Versus

MR. SHIVA [RESPONDENT]

MEMORIAL for RESPONDENT

 TABLE OF CONTENTS

Table of Contents ....................................................................................................................... 1

Index of Authorities ................................................................................................................... 3
Index of Abbreviations .............................................................................................................. 3
Statement of Jurisdiction............................................................................................................ 4
Statement of Facts ...................................................................................................................... 5
Issues Raised .............................................................................................................................. 6
Summary of Arguments ............................................................................................................. 7
Arguments Advanced................................................................................................................. 8
I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva? .......... 8
A. Doctrine of Estoppel ................................................................................................. 8
II. Whether the Civil Court of Sardam was correct in rejecting the plea of restitution? ....... 9
A. Doctrine of restitution ................................................................................................... 9
B. Restoration of benefit Under Special Relied Act, 1963. ............................................. 10
C. Doctrine of supply od necessities ................................................................................ 11
III.Whether Shiva was liable for the offence of defamation under the Indian Penal Code? 12
A. Good faith: .................................................................................................................. 12
B. Reputation ................................................................................................................... 13
C. Freedom of speech and expression.............................................................................. 14
Prayer for Relief ....................................................................................................................... 15

MEMORIAL for RESPONDENT

 INDEX OF AUTHORITIES

Cases
1. B. Manjunath v. C.G.Srinivas AIR 2005 Kant 136 ....................................................... 8
2. Sanatan Gauda v. Bharampur University, 1990 AIR 1075, 1990 SCR (2) 273............ 8
3. Mohori Bibee V. Dharmodas Ghose, [1903] UKPC 12................................................. 9
4. Khan Gul Vs. Lakha Singh 1928 Lah HC .................................................................... 10
5. Leslie Ltd. vs Sheill (1914) 8 K B 607 ......................................................................... 10
6. Nash V. Inman [1908] 2 KB 1 ..................................................................................... 11
7. Jagon Ram v Mahadeo Prasad Sahu. (1909) ILR 36 Cal 768 .................................... 11
8. Chappel V. Cooper (1844) 153 ER 105 ....................................................................... 11
9. Kunwarlal vs. Surajmal.1988 AIR 1963 MP 58 .......................................................... 11
10. Waghela Rajsanji vs. Shekh Masluddin (1889) ILR 13 Bom 330 ............................... 13
11. T.V. Ramasubba Iyer and another Vs. A. M. Ahamed Mohideen AIR 1971 Mad 13
12. State of Bihar v Lal Krishna Advani 2003 8 SCC 361 ................................................ 13
13. Naresh Sridhar Mirajkar v State of Maharashtra AIR 1967 SC 1.............................. 14
14. M.P. Lohia v State of West Bengal, (2005) 2 SCC 686 ............................................... 14
15. Reliance Petrochemical v Proprietors of Indian Express Newspapers Bombay (P.) Ltd. AIR
1989 SC 190.) ...................................................................................................... 14

Statutes
1. Indian Contract Act, 1872
2. Civil procedure Code, 1908
3. Special Relief Act, 1963
4. Indian Penal Code, 1860
5. Constitution of India, 1950
6. Indian Evidence Act, 1872

MEMORIAL for RESPONDENT

 INDEX OF ABBREVATION

ABBREVIATIONS EXPANSION
& And
§. Section
p. Page Number
AIR All India Reporter
Anr. Another
Art. Article
e.g., exemplis gratia (Latin)
ed. Edition
etc. Etcetera
HC High Court
Hon’ble Honourable
Ltd. Limited
v. Versus
No. Number
Ors. Others
CPC Civil Procedure Code
SC Supreme Court
SCC Supreme Court Cases
u/s Under Section

MEMORIAL for RESPONDENT

 STATEMENT OF JURISDICTION

Petitioner humbly submit that this Hon‟ble High Court of Sardam have the jurisdiction to
entertain the appeal under Section 96 of Civil Procedure Code, 1908, which reads as

96. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to hear appeals from the
decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of
the original suit does not exceed ten thousand rupees.

MEMORIAL for RESPONDENT

 STATEMENT OF FACTS

Shiva, a sixteen-year prodigy is citizen of Indiana who was an astounding singer. He wanted
a multi-purpose building with a recording studio and a roof top pool. He misrepresented
himself as a major and put the task out to tender. M/s. Brahmastra & Co. was a leading
building constructor. They offered to do the entire work for Rs.10, 00,000/- and the amount
will be paid in installments. Shiva accepted their offer and entered into a contract. M/s.
Brahmastra & Co. completed the construction of the ground floor and first floor and ran out
of money and materials and informed Shiva that they could not complete the construction
unless further capital was made available to them. Shiva had arranged a poolside party to
which he had renowned individuals in the music industry. 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. Shiva entered into a contract with Dev Producers who agreed to fund for the
albums. However, Shiva‟s new fusion music album was a disastrous flop. He then found
himself unable to pay the amount of Rs.7, 00,000/- to M/s. Brahmastra & Co. On Shiva‟s
eighteenth birthday, both the parties, on grounds of humanity, decided to alter the contract.
Shiva acknowledged the debt taken from M/s. Brahmastra & Co. for and further both agreed
on the same point that Shiva would pay the debt through easy monthly installments (EMIs)
of Rs.20,000/- per month till the repayment of the amount of Rs.7,00,000/-. Shiva, later on,
felt that the work done by M/s. Brahmastra & Co. was not performed as he had specified. He
estimated that this would have costed them Rs.3, 00,000/- only. He claimed that he had paid
the money already. Shiva then decided to dispose off his property, without paying a single
dime to M/s. Brahmastra & Co. He posted an offensive post against M/s. Brahmastra & Co.
on his social media having nearly 15,000 followers where he accused them of cheating
people with their below par construction work In this context, M/s. Brahmastra & Co. finally
decided to seek remedy from the Court of Law in this regard. The Civil Court of Sardam
heard the matter and held that a minor‟s contract is void ab inito and thus set Shiva free from
all his liabilities towards M/s. Brahmastra & Co. M/s. Brahmastra & Co. preferred an appeal
before the High Court of Sardam.

MEMORIAL for RESPONDENT

 ISSUES RAISED

I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva?

II. Whether the Civil Court of Sardam was correct in rejecting the plea of restitution?

III. Whether Shiva was liable for the offence of defamation under the Indian Penal
Code?

MEMORIAL for RESPONDENT

 SUMMARY OF ARGUMENTS

I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr.
Shiva
The Respondent would like to humbly submit before this hon‟ble court that there is no valid
contract as Mr. Shiva, is a minor at time of entering into this contract and thus, not competent to
contract as per the provision 11 of the Indian Contract Act, 1872. Thus a contract entered by him
is void-ab-initio and not entitled to give valid consent for such contract. The submissions on this
issue are of four folds, Capacity of minor to enter into contract [A]; Ratification of minor
contract [B]; knowledge that Mr. Shiva was a minor [C]; Principle of estoppel [D].

II. Whether the Civil Court of Sardam was correct in rejecting the plea of restitution?

The counsel on behalf of the defendant most humbly and respectfully submits before this hon‟ble
court that Shiva is a minor and not a competent party according to Indian Contact Act, 1872.
According to statement of facts he misrepresented his age at the time of entering into building
construction contract at a consideration INR 10,00,000.

III. Whether Shiva was liable for the offence of defamation under the Indian Penal Code?

The respondent would like to humbly submit before this hon‟ble court that the acts of the
defendants do not amount to defamation. The defendants have expressed the opinions
honestly, done so upon facts accurately stated and hence there is hardly any scope for
complaint of defamation. Free speech is the apex of democratic government and defamation
law strikes at the heart of Article 19. A man has a right to publish, for the purpose of giving
the public information, that which it is proper for the public to know. At common law, a
qualified privilege attaches to any occasion „where the person who makes a communication
has an interest or a duty, legal social or moral, to make it to the person to whom it is made,
and the person to whom it is so made has a corresponding interest or duty to receive it.

MEMORIAL for RESPONDENT

 ARGUMENTS ADVANCED

ISSUE I: WHETHER THERE IS A VALID CONTRACT BETWEEN BRAHMASTRA &

CO. AND MR. SHIVA?

1) The Respondent would like to humbly submit before this hon‟ble court that there is no valid
contract as Mr. Shiva, is a minor at time of entering into this contract and thus, not competent to
contract as per the provision 11 of the Indian Contract Act, 1872. Thus a contract entered by him
is void-ab-initio and not entitled to give valid consent for such contract. The submissions on this
issue are of four folds, Capacity of minor to enter into contract [A]; Ratification of minor
contract [B]; knowledge that Mr. Shiva was a minor [C]; Principle of estoppel [D].

A. CAPACITY OF MINOR TO ENTER INTO CONTRACT

2) Section 10 Indian Contract Act, 1872 says agreements are contracts when it is entered by the
free consent of the competent parties in which consideration is lawful with a lawful object1.
Section 11 of the Indian Contract Act, 1872 states that “Every person is competent to contract
who is of the age of majority according to the law to which he is subject, and who is of sound
mind, and is not disqualified from contracting by any law to which he is subject.”2
3) Section 11 of Indian Contract Act, says minors are not competent to contract. If we read
section 10 along with section 11 we come to know that minors are not competent to enter into a
contract, the reason being minors are not competent to make a rational decision for themselves,
their decisions can be manipulated and to protect them from being exploited the law assumes
minors does not have the understanding capacity
4) The respondent would like to submit that Mr. Shiva was sixteen years old when he entered
into a contract with the petitioner to build recording studio, theatre and a roof top pool. Therefore
the respondent was incompetent to enter into contract.

5) In the leading case of Mohori Bibee v Dharmodas Ghose3 it was held that contracts entered
by minor are void ab initio and therefore the respondent cannot be forced to pay for services of
petitioner. In the case of Latcharao v. Vishwanadham4, it was held by the hon‟ble court that
“as a minor cannot enter into a contract, contract with minor is void ab initio. The petitioner
cannot enforce the contract with Mr. Shiva which he failed to perform, as he was a minor then
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1 Indian Contract Act 1872, § 10
2 Indian Contract Act 1872, § 11
3 [1903] UKPC 12, (1903) LR 30 IA 114
4 S.A NO. 1487 OF 1952

MEMORIAL for RESPONDENT

and the contract was void. As the contract was already void there cannot be any breach of
contract.

6) In the case Sirkulam v. Kurra Subba Rao5, the Lordship whilw referring to the English
competency act, held that a minor is incapable to enter into agreement because the mind of a
minor is not developed to understand what are the basic concept of contract are and what are the
essentials of a valid contract are. Therefore Mr. Shiva is not capable of entering into a contract
with Brahmastra & Co.
.
B. RATIFICATION OF MINOR CONTRACT

7) On the respondent‟s eighteenth birthday, both the parties decided to „alter‟ the contract where
it was agreed that the respondent would pay debt in installments. The respondent would like to
submit that agreement with minors cannot be ratified when they attain majority.6
8) Ratification relates back to the date of making of contract and therefore, a contract which was
then void cannot be made valid by subsequent ratification7. An already void contract cannot be
ratifies. When the initial contract was made between the parties the respondent was a minor and
the contract was void hence it cannot be ratified.
9) The ratification of a minor's contract does not exist. If a person is a minor at the time of
contracting, the contract is invalid and void. After becoming a major, the minor is no longer able
to remedy the contract (the contract, if corrected, will no longer be valid). Furthermore, if the
parties to the contract express interest, they may engage in a new contract with the restriction
that the consideration in the new contract be new, as the prior consideration cannot be utilized
again.

10) If it‟s necessary, a fresh contract should be made on attaining majority and also with a fresh
consideration. In this present case only changes were made in the previous contract and there
was no new consideration. Hence the contract is not valid and therefore there cannot be any
breach, obtained by him under the contract or make suitable compensation to the other party.8

C. KNOWLEDGE THAT MR. SHIVA WAS A MINOR

11) Section 115 of the Indian Evidence Act 1872 from setting up that he was an infant when he
executed the mortgage. The section is as follows: “Estoppel. When one person has by his
declaration act or omission intentionally caused or permitted another person to believe a thing
to be true, and to act upon such belief, neither he nor his representative shall be allowed in any
suit or proceeding between himself and such person or his representative to deny the truth of that

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5 (1948) 50 BOMLR 646
6 Nazir Ahmad v Jiwan Das, AIR 1938 Lah 159
7 ukaram Ramji Shendre v Madhirao Manaji Bhange, AIR 1948 Nag 293.
8 Khan Gul v Lakha Singh ILR (1928) 9 Lah 701: AIR 1928 Lah 609

MEMORIAL for RESPONDENT

thing.”9
12) As per the provision the main essential for this section is for the party to believe a thing to be
true which was misrepresented intentionally caused by other party. In the case of Bhagwati
Vanaspati Traders v. senior Superintendent of Post Offices10 the court held that there was no
misrepresentation made to the plaintiff by the respondent and he ius not liable.
13) Here the petitioners had the knowledge that Mr. Shiva was a minor at the time of entering
into contract as per 6th point in the clarifications given. As there is no misrepresentation this
section will not attract and respondent is not liable under this section.

D. PRINCIPLE OF ESTOPPEL

14) Petitioner is not estopped by Section 115 of the Indian Evidence Act 1872 from setting up
that he was an infant when he executed the agreement. The section is as follows: “Estoppel.
When one person has by his declaration act or omission intentionally caused or permitted
another person to believe a thing to be true, and to act upon such belief, neither he nor his
representative shall be allowed in any suit or proceeding between himself and such person or his
representative to deny the truth of that thing.”11
15) This point is settled in Sadik Ali Khan V. Jai Kishore12 where Privy Council observed that
“a deed executed by a minor is a nullity and incapable of founding a plea of estoppel. The
principle underlying the decision being, there can be no estoppel against a statue.
16) Even if a minor has entered into a contract by misrepresebting his age, he can at any later
stage plead minority and avoid the contract. Minority is a fact and not a privilege and this fact
can be proved at any stage of the proceedings, regardless of the surrounding circumstances.
17) Therefore here Mr. Shiva is not liable under the principle of estoppel as per section 115 if the
Indian Evidence Act, 1872.

ISSUE II: WHETHER THE CIVIL COURT OF SARDAM WAS CORRECT IN REJECTING
THE PLEA OF RESTITUTION?

18) The counsel on behalf of the defendant most humbly and respectfully submits before this
hon‟ble court that Mr. shiva is a minor i.e., below the age of 18 year and not a competent party
according to section 11 of Indian Contract Act, 1872 to enter into a contract/agreement with any
other party who is competent according to Indian Contract Act, 1872.

19) Under the Indian Law, generalis Regula Generaliter Est Intelligenda means a general rule
is to be generally understood, as minor is not a competent party to enter into a valid
contract/agreement and to give a valid consent, as contract with minor is void-ab-initio.
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9 §. 115 of Indian Evidence Act, 1872
10 Civil Appeal No. 4854 of 2009
11§. 115 of Indian Evidence Act, 1872
12 (1928) 30 BOMLR 1346

MEMORIAL for RESPONDENT

According to section 65 of Indian Contract Act, 187213
20) It clearly states that the agreements are discovered to be void i.e., the agreement was valid
earlier but at the time of enforceability it cannot be enforced by law. Every contract means an
agreement enforceable by law, which means firstly there should be an agreement which is
enforceable by law. But in the instant case the agreement was not discovered void but was void-
ab-initial i.e., void from the very beginning.

21) According to section 65 of Indian Contract Act, 1872 It clearly states that the agreements is
discovered to be void i.e., the agreement was valid earlier but at the time of enforceability it
cannot be enforced by law. Every contract means an agreement enforceable by law, which means
firstly there should be an agreement which is enforceable by law. But in the instant case the
agreement was not discovered void but was void-ab-initial i.e., void from the very beginning.
According to this section the person is obliged to restore the advantage received as the contract
valid for brahmastra as shiva misrepresented his age and at the time of enforceability of the
contract. that this contract was void-ab-initio.

22) in the case of Dadasaheb Dasrathrao v. Babi Nahani it was held by the hon‟ble court that,
“minor is order to return to pay a sum equal to the sum borrowed under the void contract not
more than borrowed amount”.
23) In the case of Mahinder Syedol Ariffin v. Yeah Roiled Garg it was held by hon‟ble court
that, “minor had derived advantage from the defendant, had to refund those advantage but not
more than that advantage”. In another case, the defense of an insurance company that the person
on whose behalf the goods were insured was a minor was rejected especially since they had
knowledge of the plaintiff‟s minority.
24) Provisions of Section 65 apply only when an agreement at a subsequent stage is
discovered to be void or when a contract becomes void later on by one person or the other. But
Section 65 will never come into play if the contract was void-ab-initio. i.e., void from the very
beginning. Supreme Court of India in the case of Kujiu Collieries limited v/s Jharkhand mines
ltd held that an agreement which was discovered to be void at a later stage will invite Section 65
into the picture and in such a case an advantageous person is bound to restore the disadvantaged
party.
25) Moreover, if the agreement was entered into between a major person being the plaintiff and
the minor defendant in this case then doctrine of restitution will not be applied, this was held in
the case of Mohiri Bibi v/s Dharmodass Ghosh
26) In another case Bank of Rajasthan Ltd v/s Sh./Pala Ram Gupta it was held that an
agreement or contract which was void and illegal from the very beginning can never apply the
provisions of this doctrine.
27) One of the judges gave a dissenting opinion, according to him though it is totally
unacceptable and monstrous that a minor who fraudulently conceals his age and enter into an
agreement at the same retains the benefit that he has gained out of the void agreement, but the
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13(1903) 30 Cal. 539

MEMORIAL for RESPONDENT

law declares agreement with a minor is wholly void and the benefit received by the minor cannot
be made to pay back because principle who seeks equity must do equity does not apply in the
present case as minor is not asking for equitable relief but a pleading suit that has been filed has
no legal existence, until and unless the legislature changes the law no suit of this nature where a
tort is directly related to contract, can make the minor pay back the benefit or repayment on the
ground of him being a dishonest taking reference from Cowern vs Nield

28) In Ajudhia Prasad v. Chandan Lal the Allahabad High Court noted the following points:

The minor cannot be asked to compensate when he/she is the defendant.

The rule of the equitable doctrine of restitution laid down in Leslie v. Sheill was followed,
according to which a minor can be asked to restore back the property only if it can be traced and
not otherwise.

Great American Insurance Co Ltd vs. Mandanlal Sonulal (1935) 59 Bom 656. For similar
case, see Sathruraja vs. Basappa (1913) 24 Mad LJ 363; Daniel vs. Mariamma AIR (1951)
Mad 466.

ISSUE III: WHETHER SHIVA WAS LIABLE FOR THE OFFENCE OF DEFAMATION
UNDER INDIAN PENAL CODE?

29) It is humbly submitted before this court that Shiva is not liable for defamation under Indian
penal code, because both the party knew that it is impossible to build that construction in said
amount. Shiva made that video, it is not defamation to convey a caution, in good faith, to one
person against another, provided that such caution be intended for the good of the person to
whom it is conveyed, or of some person in whom that person is interested, or for the public good.

A. GOOD FAITH

30) Imputation without publication in section 499 the words “makes or publishes any
imputation” should be interpreted as words supplementing to each other. A maker of imputation
without publication is not liable to be punished under that section; Bilal Ahmed Kaloo v. State
of Andhra Pradesh, (1997)

31) In the present case, the Shiva successfully establishes that he stated the truth and that he
considered in his interest to criticize the poor services of plaintiff‟s work so as to let out his
dissatisfaction and so that other people would not succumb to false and unfulfilled promises of
the plaintiff and end up losing their time and a huge part of their hard-earned money because of
false promise made by plaintiff.

B. FREEDOM OF SPEECH

32) In opposed to the claim filed by the Brahmastra, shiva pleads the Defense of Truth and Fair

MEMORIAL for RESPONDENT

Comment available as exceptions under the Tort of Defamation and the Right to Freedom of Speech
and Expression [Article 19 (1)(a)] guaranteed by the Constitution of India.

33) the court in the case of Ram Jethmalani V. Subramaniam swamy14 explained the defense
of truth, fair comment and privilege available in a suit for defamation as a traditional defense to
action have now become fairly crystallized and can be compartmentalized in three
compartments: “truth, fair comment and privilege”

C. PUBLIC GOOD

34) The term “public good”, “public interest” is a vague concept15 In the case of London Artists
Ltd. v.. Littler16 it was observed that “whenever a matter is such as to affect people at large, so
that they may be legitimately interested in, or concerned at, what is going on; or what may
happen to them or to others; then it is a matter of public interest on which everyone is entitled to
make fair comment.” Similarly in the light of the present case Shiva considered in his and public
interest to criticize the poor services served by Brahmastra, so that other people would not
succumb to false and unfulfilled promises of the plaintiff and end up losing their time and a huge
part of their hard earned money
35) Shiva has shown and proved the fair comment made by them in public interest. It is therefore
argued on behalf of the shiva that the words complained of are really not defamatory of the
Brahmastra, but are only a fair and bona fide comment on a matter of public interest. And as laid
down, if the words are such comment, they are not actionable17

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14 126 (2006) DLT 535
15 Subramanian Swamy v Union of India, Ministry of Law and others 2016 AIR(SC) 2728
16 [1969] 2 QB 375 CA
17 Union Benefit Guarantee Company Limited v Thakorlal P. Thakor and Others AIR 1936 BOM 114

MEMORIAL for RESPONDENT