MEMORIAL ON BEHALF OF THE PLAINTIFF

TABLE OF CONTENTS

Index Of Authorities……………………………………………………………..2

List of Abbreviations…………………………………………………………….3

Statement of Facts……………………………………………………………….4

Statement of Jurisdiction………………………………………………………...6

Issue Raised………………………………………………………...……………7

Arguments Advanced…………………………………………………………….8

Prayer……………………………………………………………………………20

INDEX OF AUTHORITIES
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 MEMORIAL ON BEHALF OF THE PLAINTIFF

List of Cases

S. NO. Case Citation

1. Mohori Bibee v. Dharmodas Ghose (1903) ILR 30 Cal. 539
(PC)
2. Manmatha Kumar Saha v. Exchange Loan co. Ltd 1936
3. Kundan Bibi v. Sree Narayan Cal. HC
4. Leslie Ltd. v. Sheill 1914 3 K.B. 607
5. Khan Gul v. Lakha Singh 1928
6. Varghese v. Iype Kuriakose & Ors. 1973
7. Jagar Nath Singh & Ors. v. Laltha Prasad & Ors. 1908
Statutes Referred

S. No. Statute
1. The Indian Contract Act, 1872
2. The Indian Majority Act, 1875
3. The Specific Relief Act, 1963
4. Civil Procedure Code, 1973
Books

S. No. Book
1. Civil Procedure (CPC) by C.K. Takwani
2. Law of Contract and Specific Relief (Eastern Book Company) by Dr. Avtar Singh

3. Contract-I (Allahabad Law Agency) by Dr. R.K. Bangia

Databases

 https://www.scconline.com/
 https://www.lexisnexis.com/
 https://www.manupatrafast.com/

LIST OF ABBREVIATIONS
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S.No. Abbreviation Word

1. Ors. Others
2. Anr. Another
3. v. Versus
4. Hon’ble Honourable
5. & And
6. CJ Chief Justice
7. ICA Indian Contract Act
8. HC High Court
9. SC Supreme Court
10. AIR All India Report
11. Rs. Rupees

STATEMENT OF FACTS

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1. Vij Malhar, a sixteen-year prodigy, citizen of Indiana 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. M/s. Verma & Verma 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 installments in order of the completion of different phases of the
assigned work. Vij 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.

3. M/s. Verma & Verma completed the construction of the ground floor and first floor and ran out of money
and materials for further construction. They informed Vij that they could not complete the construction
unless further capital was made available to them. Vij had arranged a poolside party to which he had
invited top music directors, producers and other renowned individuals. 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.

4. The roof top pool was completed and the party was a success. Vij told Ms. Asha Verma, the Manager of
M/s. Verma & Verma "Madam, you have saved my career. Don't worry about Rs.7,00,000. Having this
as a promise, M/s. Verma & Verma started a new project. However, Vij's new fusion music album was a
flop. He then found himself unable to pay the amount of Rs.7,00,000/- to M/s. Verma & Verma. Ms.
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Asha Verma compelled Vij to render a music performance in her daughter's birthday party and in return
she agreed to release Vij from paying the debts of Rs.7,00,000/-. Vij agreed on this point and was ready
for the music performance in the party. 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.

5. On Vij's eighteenth birthday, both the parties, on grounds of humanity, decided to alter the contract. Vij
acknowledged the debt taken from M/s. Verma & Verma for rendering past services and further both
agreed on the same point that Vij 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/-.

6. Vij, later on, felt that the work done by M/s. Verma & Verma 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. Vij then decided to dispose off his property, without paying a single dime to M/s. Verma &
Verma. 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, M/s.
Verma & Verma could not recover the debt from Vij. As a last resort, they sent him a legal notice, stating
that the money shall be repaid within 15 days. However, Vij did not send any correspondence or reply to
the said notice.

7. In this context, M/s. Verma & Verma finally decided to seek remedy from the Court of Law in this
regard. The suit was filed by M/s. Verma & Verma 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 Vij Malhar for Rs.7,00,000/- but now he

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 MEMORIAL ON BEHALF OF THE PLAINTIFF

refused to pay the said amount and alleged fraud against him. They also prayed for injunction restraining
Vij from selling the property until the suit was disposed off.

8. The Civil Court of Sardam heard the matter and held that a minor's contract is void ab inito and thus set
Vij free from all his liabilities towards M/s. Verma & Verma 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. M/s. Verma & Verma preferred an appeal before the High Court of Sardam.
The High Court granted injunction and decided to hear the case on merits.

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 MEMORIAL ON BEHALF OF THE PLAINTIFF

STATEMENT OF JURISDICTION

The Petitioner have the honour to submit before the Hon'ble High Court of Sardam, the memorandum for the
petitioner under Section 39 of Specific Relief Act, 1963 and Article 226 of Indian Constitution, 1950.

This Memorial sets forth the facts, laws and the corresponding arguments on which the claims are based in the
instant case. The Petitioners affirm that they shall accept any judgment of this Hon’ble Court as final and
binding upon themselves and shall execute it in its entirety and in good faith.

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ISSUES RAISED

1. WHETHER THERE IS A VALID CONTRACT BETWEEN M/s VERMA & VERMA AND VIJ
MALHAR ?

2. WHETHER THE JUDGEMENT PASSED IN THE MOHORI BIBEE VS DHARMODAS

GHOSE NEEDS A RECONSIDERATION?

3. WHETHER THE CIVIL COURT OF SARDAM WAS CORRECT IN REJECTING THE PLEA
OF RESTITUTION?

SUMMARY OF ARGUMENTS
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ISSUE ONE: WHETHER THERE IS A VALID CONTRACT BETWEEN M/s. VERMA & VERMA AND
Mr. VIJMALHAR?

The Counsel on behalf of the petitioner humbly and respectfully states that there is a valid contract between M/s
Verma & Verma and Vij Malhar. According to section 68 of the Indian Contract Act, 18721 which states that a
contract made by a minor for the procurement of the necessaries of life is a valid contract.

ISSUE TWO: WHETHER THE JUDGEMENT PASSED IN THE MOHORI BIBEE VS DHARMODAS
GHOSE NEEDS A RECONSIDERATION?

The Counsel on behalf of the petitioner humbly and respectfully states that the judgement passed in Mohori
Bibee v. Dharmodas Ghose2 needs reconsideration because the appellant was not aware of the age of the
respondent where there is a breach of contracts, the resulting damages will have to be paid by the party
breaching the contract to the aggrieved party and the Section 73 of the Indian Contract Act, 18723 'deals with
direct damages.

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

The Counsel on behalf of the petitioner humbly and respectfully states that the Civil Court was not correct in
rejecting the Plea of Restitution. Under the Common Law if a minor misrepresented his age and received any
money or benefits from the contract he must restore it to the person from whom he received it provided that it is
still identifiable and within his possession

ARGUMENTS ADVANCED

1
Section 68 of ICA,"If a person who being incapable to enter into a contract or anybody whom such person is legally bound to support, is supplied
by another person with certain necessaries which is suited to such person's condition in life then the person who has furnished such supplies is
entitled to be reimbursed from the property of such person who was incapable or to whom the supplies are transferred".
2
(1903) 30 Cal. 539
3
Section 73 of ICA: 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.
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 MEMORIAL ON BEHALF OF THE PLAINTIFF

ISSUE ONE: WHETHER THERE IS A VALID CONTRACT BETWEEN M/s VERMA & VERMA AND
VIJ MALHAR ?

1. It is highly submitted before the Hon'ble Court that yes there is a valid contract between M/s Verma &
Verma and Mr. Vij Malhar according to Section 68 of the Indian Contract Act, 1872 which states that a
contract made by a minor for the procurement of the necessaries of life is a valid contract.

2. Though the contract with a minor is void ab initio 4 but the person who supplies another with a necessary
is entitled to be reimbursed out of the minor's estate. Section 68 of ICA provides for liability when a
necessary is supplied to a person incapable of entering into a contract under section 11. A minor is a
person incapable of contracting within the meaning of section 11 and hence section 68 of Indian
Contract Act, 1872 applies to this case.

3. 'Necessaries' under section 68 of ICA includes not only 'necessities' but anything which might be
necessary to maintain his stage of life. To render the minor's estate liable for 'necessaries two conditions
must be satisfied - (a) The contract must be for a commodity which was reasonably necessary to
maintain his stage in life, (b) He must not have a sufficient supply of these necessaries.

4. Coming to the first criteria the Facta Probanda 5 'here shows Vij Malhar astound singer of sixteen years
wanted to arrange a pool side party where he invited renowned individuals who could him for him for
his music album. It was a necessity of him whom he hoped to win funds. Now addressing the second
criteria facta probanda shows that Vij Malhar does not have sufficient supply of it.

4
Void from beginning
5
Material facts
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5. In the light of the aforementioned law and the subsequent application of the same to the facts of this
case, he is liable for the necessaries which he got out of his contract. Therefore, this is a quasi- contract
or restitution and on the lines of the judgement of Manmatha Kumar Saha v. Exchange Loan Co.
Ltd6, plaintiff here should be entitled to reimbursement out of minor's estate.

6. Ratification - If a person has received a part of the benefit during the minority and a part after attaining
majority, a promise by him to pay for the both if made after attaining the majority is with valid
consideration and enforceable. In the present case on Vij Malhar's birthday both the parties on the
ground of humanity decided to alter the contract and Vij agreed on it & acknowledged the debt taken
from M/s Verma & Verma.

7. Kundan Bibi v. Sree Narayan7 ,Calcutta High Court, Sree Narayan when was a minor received some
goods from Kundan Bibi in connection with his business and was indebited to him when he attainted
majority he took some more money & executed a bond for paying the total amount to Kundan Bibi. In
an action by Kundan Bibi to recover the said amount, it was contended by Sree Narayan that he was not
liable to pay because of minority However Sree Narayan was made liable to pay the whole amount since
there was a new consideration attached.

8. Here, in this issue, it is clear that both the contracts were valid as the first came under the claim for
necessaries and the second was valid under ratification as the alteration of terms and conditions of the
contract discharged the original contract and a new valid legally binding contract was formed.

ISSUE TWO: WHETHER THE JUDGEMENT PASSED IN THE MOHORI BIBEE VS. DHARMODAS
GHOSE NEEDS RECONSIDERATION?
6
AIR 1936 Cal. 567165 IND CAS 363
7
Calcutta High Court
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1. It is highly submitted before the Hon'ble Court that, yes, the judgement passed in Mohori Bibee v.
Dharmodas Ghose needs reconsideration because the appellant was not aware of the age of the
respondent. Where there is a breach of contracts. the resulting damages will have to be paid by the party
breaching the contract to the aggrieved party and the Section 73 of the Indian Contract Act, 1872 deals
with direct damages.

2. In this case the court also held that Section 648 & 659 are not applicable in void agreements. However,
the law commission of India disagrees with the interpretation given by the Privy Council to Section 65.
In their view Section 65 covers the case of a minor who makes a false representation that he is a major
& such a minor should be asked to pay compensation. They recommended that an application be added
to Section 65 to give effect to their opinion.

3. No amendment of the Indian Contract Act is made so far as to give effect to law commission.
Moreover, the law has a wider scope and is dynamic in nature. It should be amended with the changing
time and circumstances. The case of Mohori Bibee v. Dharmodas Ghose was held many years ago and
the judgement of the case passed as per the circumstances of the case.

4. Nowadays the case filed or suit filed in the court have different circumstances and these suits shouldn't
be upholded on the basis of Mohori Bibee v. Dharmodas Ghose judgement as minors are taking
advantage of it and the aggrieved party is in loss.

8
When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promiser.
The party rescinding a voidable contract shall, if he has received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to
the person from whom it was received.

9
Obligation of person who has received advantage under void agreement, or contract that becomes void.-When an agreement is discovered to be void, or when a
contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the
person from whom he received it.
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5. This case lacked certain aspects. For instance. It didn't discuss the applicability of the principle of
estoppel, as discussed under Section 115 of the Indian Evidence Act, 1872 10, with respect to the
contracts involving minors.

6. Although the minors are able to enjoy the goods, they are stopped from obtaining undue benefit from
any transaction. The doctrine of restitution comes to play, requiring such minors to restore back the
exact goods that have been transferred to them as long as they are traceable and in their possession. But
the doctrine is inapplicable in case such goods are consumed, transferred or become non-traceable due to
which the other party suffers loss.

7. The entire judicial mechanism helps minors, with the judges as their councillors and law as their
guardian. But merely protecting the minors' interest should not amount to their unjust enrichment,
creating unnecessary hardships for the persons dealing with a minor. (A.V. v. iParadigms, Co) The Law
Commission of India in their different reports suggested some amendments, thus new sections are
designed and proposed in doctrine of estoppels, Specific Relief Act and Indian Contract Act. Minority
should be used as a shield and not a sword. The judgment in Mohori Bibee case should not be applicable
where a minor knowingly misrepresents the minority either directly or indirectly. It is suggested that the
majority should not be strictly based on age but on the psychological capacities of the minors at the time
of forming such an agreement. A minor must do equity, if he anticipates the same.

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

1. It is highly submitted before the Hon'ble Court that the Civil Court of Sardam was not correct in
rejecting the Plea of Restitution. Under the Common Law if a minor represented his age and received
10
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.
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 MEMORIAL ON BEHALF OF THE PLAINTIFF

any money or benefits from the contract, he must restore it to the person whom he received it provided
that it is still identifiable and within his possession.

2. In the given facta probanda. Vij requested for the continuance of construction work and further
requested to spend the remaining amount of Rs 7,00,000/- on the work out of their own funds. Rather
M/s Verma & Verma got nothing out of it. The defendant being a prudent minor tricked the plaintiff and
took the undue advantage of his sincerity of the contract. The amount paid by the plaintiff was benefit to
the defendant which he is bound to restore.

3. Defendant obtained loans from plaintiff by fraudulently misrepresenting that he was majority at the time
of contract. Defendant sued him to recover the money. If an infant obtains property or goods by
misrepresenting his age, he can be compelled to restore it so long as the same is traceable in his
possession. This is known as equitable Doctrine of Restitution. In the case of Leslie Ltd. v. Sheill 11,
defendant obtained loans from plaintiff by fraudently misrepresenting that he has attained majority at the
time of contract. Defendant sued him to recover the money.

4. Another principle stated in the former case is that the benefit will only be restored if it is traceable.
Relating it to the present case, the property is traceable. In the case of Khan Gul v. Lakha Singh12,
stated that - (a) Whether a minor who by falsely representing himself to be a major, has induced person
to enter into a contract, is estoppel from pleading minority to avoid the contract. (b) Whether a party
who, when a minor has entered into a contract by means of a false representation as to his age whether
he be defendant or plaintiff in a subsequent litigation, refuse to perform the contract. However according
to the final verdict of this case, the minor was compelled to refund the consideration.

11
1914 3 K.B. 607
12
1928
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5. In the case of Varghese v. lype Kuriakose and Ors.13 1973 the plaintiff filed a suit to cancel a sale
deed signed by him during the minority, the lower court cancelled the suit and issue no restoration but
the High Court overruled the lower court's possession of the property but have to restore the benefits he
received from the defendant.

6. The principle of Restitution is contained in Section 33 of the new Specific Relief Act of 1963. The
amended provisions are as follows - (a) where a void or voidable contract has been cancelled at the
instance of the party, he may be required to repay the benefits he/she has received under the contract and
also make necessary compensation to the other party. (b) when the defendant successfully resists any
suit on the ground that the contract is void against him due to his competence, he may be required to
repay the benefits if any received by him under the contract but only to the extent which his estate has
been benefited.
7. This was seen in the case of Jagar Nath Singh & Ors. v.Laltha Prasad & Ors. 14, 1908. The Allahabad
High Court stated that if any underage person induces another person to purchase property from them,
he/she is liable to pay the benefits received by them due to this transaction before recovering the
possession of the property sold

13
1973
14
1908
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PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble High Court may be pleased to adjudge, hold and declare that:

1. To hold the contract between M/s Verma & Verma and Mr. Vij Malhar as valid.

2. To reconsider the judgement passed in the Mohori Bibee and Dharmadas Ghose case.

3. To allow the plea of restitution of appellant.

AND/OR

To uphold the judgement passed in the civil court of Sardam. Pass any other order, which this Hon'ble Court
may deem fit in light of justice, equity and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

S/D COUNSEL FOR COMPLAINANT

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