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BEFORE THE LEARNED CIVIL JUDGE (JUNIOR DIVISION)

OF BAREILLY

COMPLAINT CASE NO. 002 OF 2008

IN THE MATTER OF:

AMIT GUPTA PETITIONER

VS

KARAN CHOPRA DEFENDANTS

COUNSEL ON BEHALF OF PLAINTIFF:

KAMALIKA SARKAR

PRIYANKA SINGH

ESHA GHOSH

SUTAPA DAS

UPON SUBMISSION TO THE HON'BLE CIVIL JUDGE OF BAREILLY (JUNIOR

DIVISION)

[MEMORANDUM ON BEHALF OF THE PETITIONER]

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Table of Contents
LIST OF ABBREVIATIONS................................................................................................ 3

INDEX OF AUTHORITIES ................................................................................................. 4

STATEMENT OF JURISDICTION ...................................................................................... 5

STATEMENT OF FACTS .................................................................................................... 6

STATEMENT OF ISSUES ................................................................................................... 7

SUMMARY OF ARGUMENTS ........................................................................................... 8

ARGUMENTS ADVANCED ............................................................................................. 10

PRAYER ............................................................................................................................ 14
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LIST OF ABBREVIATIONS

1. Sec. section
2. Art. Article
3. S. Section
4. S. C Supreme court
5. H. C High court
6. SCC Supreme Court Cases
7. Ors. Others
8. AIR All India Reporter
9. Vs/V Versus
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INDEX OF AUTHORITIES

LIST OF CITATIONS

1. Gobindram v. Ganga Dhar (1923) ILR 45 ALL 632

STATUTES

The Indian Contract Act , 1872

Consumer Protection Act , 2019
Trasfer of Property Act , 1882

BOOKS REFERRED

The Indian Contract Act , 1872– BARE ACT

Consumer Protection Act , 2019– BARE ACT
Trasfer of Property Act , 1882– BARE ACT

WEBSITES

Indiankanoon.com
Livelaw.com
Lawctopus
Times of India

IMPORTANT DEFINATIONS

The complainant for the porpuse of this memorial shall stand for “Amit Gupta”
The defendant for the purpose of this memorial shall stand for “Karan Chopra”
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STATEMENT OF JURISDICTION

MOST RESPECTFULLY SHEWETH

THE COMPLAINANT HAS FAILED THIS APPLICATION COMPLAINT UNDER THE

SPECIAL RELIFE ACT 1963, TRASFER OF PROPERTY ACT 1882, AGAINST THE
DEFENDANT PERSONS , THE DEFENDANT MAINTAINS THAT THERE IS A LATENT
DEFECT IN THE PROPERTY SOLD TO THE COMPLAINANT . THEREFORE, THE
LEARNED CIVIL JUDGE ( JUNIOR DIVISION) BENCH NEED NOT ENTERTAIN ITS
JURISDICTION IN THIS APPLICATION.
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STATEMENT OF FACTS

Karan Chopra sold an enclosed flied in Bareily, UP, to Amit Gupta. An agreement for sale is
made on 10th February ,2008. Earnest deposit was also made. Before the sale deed was
registered by Karan Chopra, Amit Gupta discovered that the public have a right of way across
the field of which there is no visible indication on the land. Amit Gupta said that it was not
disclosed by Karan Chopra. So he did not want to register the sale deed and wanted his earnest
deposit back. He filed Civil Suit in local jurisdiction to claim the damages. Karan Chopra
agreed that it was latent defect in title which could not be detected with due diligence.
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STATEMENT OF ISSUES

The Learned Metropolitan Magistrate Courte has set out following issues for adjudication:

1. Was the right way by the public a latent defect?

2. Was the right way by the public a patent defect?
3. Is the seller and buyer jointly responsible if title is defective?
4. Is the seller liable to pay additional damages if the defect cannot be discovered by
buyer?
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SUMMARY OF ARGUMENTS

I. Was the right of way by the public a latent defect?

I.1. The right of way by the public across the field could be considered a latent defect if it was
not readily apparent or visible upon reasonable inspection of the property. Latent defects are
those that are not easily discoverable through ordinary inspection or diligence.

I.2. Yes, the right of way by the public across the field could be considered a latent defect. A
latent defect refers to a flaw or issue that is not readily apparent er visible upon reasonable
inspection. In this case, if there were no visible indications of the public right of way on the
property and it was not disclosed by the seller, it would qualify as a latent defect.

II. Was the right of way by the public a patent defect?

II.1 No, the right of way by the public would not be considered a patent defect. A patent defect
refers to a flaw or issue that is clearly visible or evident upon reasonable inspection. If the right
of way was clearly visible or known, it would not be considered a patent defect. However, if
it's not readily apparent or visible, it falls under latent defects.

III. Is the seller and buyer jointly responsible if title is defective?

III.1. Both the seller and the buyer have responsibilities regarding the title of the property, but
the extent of responsibility depends on various factors, including contractual agreements and
applicable laws.

III.2. Generally, the seller is primarily responsible for disclosing any known defects or issues
with the title, while the buyer is responsible for conducting due diligence. If the title is found
to be defective, both parties may share some responsibility depending on the circumstances
and any contractual agreements in place is the seller liable to pay additional damages if the
defect cannot be discovered by buyer?
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IV. Is the seller liable to pay additional damages if the defect cannot be discovered by
buyer?

IV. Yes, if the defect in the title cannot be reasonably discovered by the buyer, the seller is to
be liable to pay additional damages. This is particularly true if the seller had knowledge of the
defect and failed to disclose it to the buyer. In such cases, the seller's failure to disclose the
defect could be seen as a breach of their day to provide accurate information about the
property's title. The extent of the seller's liability for additional damages would depend on
various factors. including the laws governing the transaction and the specific circumstances of
the case.
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ARGUMENTS ADVANCED

I. Was the right of way by the public a latent defect?

I.1 A latent defect refers to a fault or problem with a property that is not readily parent or visible
upon reasonable inspection. These defects are not immediately noticeable to a buyer during a
typical examination of the property. Latent defects can exist in various aspects of a property,
including its structure, systems (such a plumbing or electrical), or title

I.2. That the plaintiff states Latent defects are significant because they can potentially affect
the property's value, use, or marketability, and may lead to legal disputes or financial losses for
the buyer after the purchase. Sellers have a legal obligation to disclose known latent defects in
the property's title to prospective buyers, as failure to do so could result in legal consequences
such as rescission of the contract, damages, or other remedies for the buyer. Overall, latent
defects in real estate transactions highlight the importance of thorough due diligence and
transparency between buyers and sellers to ensure fair and informed transactions

I.3 That the right of way is often a non-physical easement or access granted to individuals or
entities to pass through the property. Unlike a visible physical Wractare or boundary, such as
a fence or building, a right of way may not be Itulily apparent upon inspection of the property.
Therefore, it qualifies as a latent defect as it may not be easily discovered by the buyer.

I.4.That the existence of a right of way can significantly impact the property's use and value.
For example, if the right of way allows public access through the property, it may limit the
buyer's ability to develop or use the land for certain purposes. Additionally, it may affect the
privacy and exclusivity of the property. preemially reducing its market value. It may restrict
Amit Gupta's ability to jvelop the land or affect its privacy and exclusivity. Additionally, it
could wtentially dininish the property's market value
II. Was the right of way by the public a patent defect?

II.1. In this case, the existence of a right of way across the field is unlikely to be considered a
patent defect.

II.2. A patent defect is one that is readily visible or discoverable upon reasonable inspection of
the property. However, a right of way across the field may not be physically visible on the land,
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especially if there are no visible markers or ndications. Thus, it is not a defect that can be easily
detected through ordinary inspection by a prospective buyer.

II.3. That the right of way is typically an easement granted for passage through a property, and
it may not involve a physical structure or visible boundary. Instead, it is a legal right that may
not be immediately apparent without proper documentation or title searches. Therefore, it does
not fit the criteria of a patent defect, which typically involves visible flaws or issues.

II.4. In the case of Gobindram v. Ganga Dhar (1923) ILR 45 All 632, the Allahabad High Court
held that the existence of a right of way over a property, which was not visible on the ground,
could not be considered a patent defect. The court emphasized that patent defects are those that
are readily visible or discoverable by a prospective buyer upon reasonable inspection. Since
the right of way in this case was not physically apparent on the property and required
investigation beyond mere visual inspection, it was deemed to be a latent defect other than a
patent one.

II.5. This precedent highlights the distinction between patent and latent defects in Indian
property law and reinforces the principle that defects like a right of way, which are not
visibly apparent, should be treated as latent defects. Therefore, sellers may have a duty to
disclose such defects to buyers, as they may not be readily discoverable through ordinary
inspection.
III. Is the seller and buyer jointly responsible if title is defective?
III.1. Under Indian law, ie. principles of contract law, equity, and consumer protection under
various statutes and legal precedents in India, sellers have a duty to disclose material defects
in the property's title to prospective buyers. This duty arises from principles of good faith,
fairness, and the need to provide buyers with accurate information to make informed
decisions. Failure to disclose such defects could render the contract voidable at the option of
the buyer.
III.2. Under Consumer Protection Act, 2019, sellers may have a duty to disclose material
information to consumers (buyers) to prevent unfair trade practices. Failure to disclose
material defects in the property's title could potentially constitute an unfair trade practice
under this act.
III.3. As per the Indian Contract Act, 1872, it governs contracts between parties and imposes
duties such as good faith and disclosure of material facts. Sellers in real estate transactions
have a duty to disclose material defects in the property's title under the principles of contract
law.
III.4. Under Property Laws, various property laws and regulations in India may also impose
obligations on sellers to provide accurate information about the property's title to buyers. For
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example, the Transfer of Property Act, 1882, and state-specific laws governing property
transactions may include provisions related to disclosures by sellers.
III.5. That the plaintiff was unware of the public right of way across the field which
constitutes a latent defect in the property's title. Karan Chopra's failure to se this defect
breached his duty as the seller, and Amit Gupta suffered harm result
III.6. Dhruv Dev Gupta v. Rajiv Kumar Gupta & Ors. (2005), in this case, the Delhi High
Court emphasized the duty of the seller to disclose material facts that dld affect the buyer's
decision. The court held that the seller's failure to disclose usbrances on the property's title
amounted to fraudulent concealment. This vedent underscores the importance of full
disclosure by the seller to the buyer real estate transactions.
III.7. The buyer typically relies on the seller's representation regarding the property's title and
expects the seller to disclose any known defects. The seller is presumed to have greater
knowledge and control over the property's title, making fem better positioned to identify and
disclose defects.
III.8. While the buyer also has a duty to conduct due diligence, their duty is îmerally more
focused on investigating the physical condition of the property and ensuring that it meets
their needs and expectations. The buyer may not have access to the same level of information
or expertise regarding title issues as the seller.
III.9. The plaintiff further submits that a defective title have significant consequences for the
buyer, affecting their ability to use or sell the property and potentially exposing thern to legal
disputes with third parties. Given the seller's greater knowledge and control over the title, the
seller is in a better position to assess and disclose any defects that may affect the buyer's
decision to purchase the property.
IV. Is the seller liable to pay additional damages if the defect cannot be
discovered by buyer?
IV.1. The plaintiff submits that if a defect in the property's title cannot be reasonably
discovered by the buyer and the seller fails to disclose it, the seller may be liable to pay
additional damages to compensate the buyer for any losses incurred as a result of relying on
incomplete or misleading information. These additional damages may include reimbursement
of expenses, compensation for lost opportunities, or other financial losses suffered by the
buyer.
That if the defect in the property's title cannot be reasonably discovered by him despite
diligent efforts, the seller may be liable to pay additional damages for failing to disclose it.
IV.2. Under Indian Contract Act, 1872, sellers have a duty to disclose material facts to buyers
during the course of a contract. Sec 17 of the Act states that "fraud" means and includes any
act or omission which the law specially declares to be fraudulent. Therefore, failure to
disclose material defects in the property's title, especially when such defects are not readily
discoverable by the buyer, may constitute fraud or misrepresentation under the Indian
Contract Act.
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IV.3. Under Consumer Protection Act, 2019, it provides protection to consumers in various
transactions, including real estate transactions. Sellers in real estate transactions are
considered service providers under this act, and they have a duty to provide accurate and
complete information to buyers. Failure to disclose material defects in the property's title
could constitute deficiency of service under this act
IV.4. Doctrine of Caveat Emptor, this principle states "let the buyer beware" traditionally
applied in Indian contract law, courts have increasingly moved towards a more balanced
approach where sellers are required to disclose material facts to buyers, especially in real
estate transactions. This principle supports the idea that sellers have a duty to disclose defects
in the property's title that cannot be reasonably discovered by the buyer.
IV.5. In India, the duty of the seller to disclose defects in the property's title that cannot be
reasonably discovered by the buyer is largely based on principles of contract law, equity, and
consumer protection, rather than specific statutes.
IV.6. In the case Mehboob Beg v. Sukhdev Raj, a case decided by the Supreme Court of
India. In this case, the court emphasized the duty of the seller to disclose material facts to the
buyer and held that failure to disclose such facts could render the contract voidable at the
option of the buyer. While this case may not specifically address undisclosed defects in the
property's title, it underscores the importance of full disclosure by sellers and the potential
consequences of failing to disclose material facts.
IV.7. Sadhana Lodh v. National Building Construction Corporation, where the National
Consumer Disputes Redressal Commission (NCDRC) held that the seller's failure to disclose
material facts about the property amounted to deficiency in service under the Consumer
Protection Act, 1986. This case highlights the consumer protection aspect of the seller's duty
to disclose material defects in real estate transactions.
IV.8. The plaintiff further submits that while these legal precedents may not directly address
the specific issue of undisclosed defects in the title that cannot be reasonably discovered by
the buyer, they provide guidance on the broader principles of disclosure and accountability in
real estate transactions. These precedents support the argument that sellers have a duty to
disclose material facts, including defects in the property's title, to buyers, and failure to do so
may result in legal consequence.
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PRAYER

Whereof in the light of the issues raised, arguments advanced and authorities cited it is
humble prayer before Your Honor that it may be pleased to-

a. To direct the defendant to payback the deposit amount to the plaintiff

b. Direct the defendant to pay the cost for breach of contract and non- discloser of facts.

c. Such further order or orders and/or direction or directions as this Hon'ble Court may
deem fit and proper.

AND FOR THIS ACT OF KINDNESS YOUR PLAINTIFF, AS IN DUTY BOUND,

SHALL EVER PRAY.

S/D……………………………

(Counsel for the Plaintiff)