NOVICE INTERMUNAL MOOT COURT

TEAM CODE: 22003

COMPETITION
Before

THE HON’BLE HIGH COURT OF NTOVOONTUCARCHII

ORIGINAL CIVIL JURISDICTION

CIVIL CASE NO. ____/2020

IN THE MATTER OF

Clean Green Timbuktoo ………………………………….

Petitioner

Versus

Jahlee Solutions Pvt.Ltd. ……………………………..Respondent

UPON SUBMISSION TO

THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICE OF

THE HON’BLE HIGH COURT OF INDIA

MEMORIAL ON BEHALF OF THE RESPONDENTS 1

Written Submission on behalf of the Respondent
 TABLE OF CONTENTS – NEED TO EDIT

A. TABLE OF CONTENTS……………………………………………………………………………………………………2
B. INDEX OF ABBREVIATIONS……………………………………………………………………………………………3
C. INDEX OF AUTHORITIES…....................................................................................................4
D. STATEMENT 0F JURISDICTION ………………………………………………………………………………………..6
E. STATEMENT OF FACTS…………………………………………………………………………………………………….7
F. ISSUES RAISED……………………………………………………………………………………………………………….8
G. SUMMARY OF ARGUMENTS……………………………………………………………………………………………9
H. ARGUMENTS ADVANCED………………………………………………………………………………………………….10
I. PRAYER………………………………………………………………………………………………………………………..13

2
Written Submission on behalf of the Respondent
 TABLE OF ABBREVIATIONS

§ SECTION
i.e That is
Pvt.Ltd Private Limited
AIR ALL INDIA REPORT
Anr. ANOTHER
art. ARTICLE
SC SUPREME COURT
v. Versus
Vol. Volume

3
Written Submission on behalf of the Respondent
 INDEX OF AUTHORITIES

STATUTES
1. The Indian Contract Act, 1872

CASES OF INDIAN COURTS

1. Raja Narayanlal Bansilal v. Maneka Phiroz Mistry And Another 1962 AIR 366
2. Sugesan &Co. Pvt. Ltd v. Hindustan Machine Tools Ltd., 2004 (3) ALD 357
3. M/s. Halliburton Offshore Services Inc. v. Vedanta Limited & Anr. O.M.P. (I) (COMM.)
No. 88/2020, 2020
4. Central Warehousing Corporation v. Aqdas Maritime Agency Private Limited, 2019

4
Written Submission on behalf of the Respondent
 STATEMENT OF JURISDICTION

The petitioner approached the High Court of Timbuktoo under Article 266 of the Constitution in the
matter of Clean Green Timbuktoo VS Jahlee Solutions Pvt.Ltd, 2020 challenging that the force majure
clause was not appropriately invoked. Additionally, COVID-19 pandemic did not qualify as a force
majeure event in the first place, as the EPC Contract did not include the term “pandemic” as a force
majeure event. It further alleged that there had been repeated delays in the completion of the project
without the Employer’s consent. The Contractor had also failed to take steps to reduce the project’s
ecological impact.

The Respondent herein reserves the authority to challenge the maintaibility of the same.

The present memorandum sets forth the facts, contenments, and arguments.

5
Written Submission on behalf of the Respondent
 STATEMENT OF FACTS

1. Clean Green Timbuktoo (hereinafter referred to as “Employer”) is a wholly-owned subsidiary of

the Government of Timbuktoo. It was entrusted with the duty of tackling the growing energy
problem in the country. To meet this end, the Employer set up a committee of environmental
experts, scientists, bureaucrats, et al. The Committee issued the report in December 2017,
whereby the Employer was recommended to embark on a crucial infrastructure project
(hereinafter referred to as “Project”).
2. The Employer issued a formal request for a proposal. It was published on the nation’s official
procurement portal and distributed to all the engineering, procurement, and construction
(hereinafter referred to as “EPC”) contractors. In the Project Overview, it was mentioned that—
"The proposed power plant shall be designed, constructed, and commissioned to generate 500
megawatts (MW) of electricity, utilising the latest technologies and adhering to the highest
industry standards for efficiency, reliability, and environmental sustainability."
3. It was further emphasised that time was the essence of the contract. Due consideration is also
to be given to reducing the project’s ecological footprint by curtailing greenhouse gas emissions,
minimising waste generation, mitigating environmental impact, et al.
4. Jahlee Solutions Pvt. Ltd. (hereinafter referred to as “Contractor”) reviewed the announcement
and assessed that it possessed the expertise, resources, and capacity to meet the government
requirements. Therefore, it submitted a detailed proposal outlining its approach, which was
reviewed and accepted by the Employer after a competitive bidding process. A Letter of Award
was subsequently provided in January 2018.
5. An EPC Contract was consequently drafted in the same month after extensive negotiations. It
specified that the contract had to be executed in three phases:
- Design Phase (involving the development of plans for the construction of renewable energy
infrastructure)
- Procurement Phase (encompassing the sourcing and acquisition of necessary equipment and
materials) and
- Construction Phase (entailing the actual construction of the renewable energy facilities).
6. The first phase was to be completed within eight months, the second phase within twelve
months, and the third phase within twenty-five months from the date of receipt of the Letter of
Award. A percentage of the contract price was payable on completion of each phase. However,
no mention was made about environmental sustainability in the contract.
7. The Contractor started mobilising its resources and began with the Design Phase. For the same,
it requested certain official documents from the Employer through an email sent on 10th May
2018 but did not receive any response. A follow-up email was sent on 20th May 2018, further
requesting the Employer’s assistance for a site visit.
8. A very late reply came on 20th June 2018 with the requisite documents, and the date for the site
visit was proposed to be on 15th October. In response, the contractor specified that the
Employer had impliedly agreed to extend the project by at least three months. The Procurement
and Construction Phases will thus also be delayed. No response was received for this email.

6
Written Submission on behalf of the Respondent
9. After the site visit, the Contractor submitted the designs on 15th February 2019. The Employer
accepted them, confirmed through email, and made the corresponding payments. The
procurement phase started on 1st March 2019. However, owing to farmers’ protests in the
south of Timbuktoo, the supply of goods and materials was severely delayed by three months.
The Contractor communicated the same to the Employer through an email dated 2nd April
2019. The Employer responded lamentingly and strictly mentioned that the overall project
should not be delayed by more than six months, as the energy crisis was significantly looming.
To meet the deadline, the Contractor decided to compromise on the projectνs environmental
sustainability.
10. The Procurement Phase was completed by 21st February 2020. However, the Construction
Phase could not be started immediately as certain permits could not be procured from the
Government. Although they were applied for in time, there were certain deficiencies in the
application. The permits were finally received on 5th March 2020. On 11th March 2020, the
World Health Organisation declared the outbreak of the COVID-19 virus a global pandemic.
11. On 20th March 2020, the Contractor, through an email, invoked the force majeure clause in the
contract. However, the EPC Contract specified that such communication would only be made
through a formal notice. The government of Timbuktoo imposed a nationwide lockdown on
20th March, 11:59 P.M. All the migrant labourers employed to work on the project started
walking to their home states located in various parts of Timbuktoo. Therefore, the continuance
of the project became all the more impossible.
12. Only on 23rd April 2020 did the Employer respond that the Construction Phase be completed at
the earliest. It was further mentioned that the force majeure clause was not appropriately
invoked. Additionally, the COVID-19 pandemic did not qualify as a force majeure event in the
first place, as the EPC Contract did not include the term “pandemic” as a force majeure event. It
further alleged that there had been repeated delays in the completion of the project without
the Employer’s consent. The Contractor had also failed to take steps to reduce the projectνs
ecological impact.
13. In due course, the Employer filed a case in a High Court of Ntovoontucarchii with competent
jurisdiction.
14. Hence, the present petition was filed in the year 2020 by the Clean Green Timbuktoo ie the
“Employer” before the High Court of Ntovoontucarchii under Article 266 of the Indian Contract
Act, 1872 against the the contractor who had on the claims of –
The force majeure clause was not appropriately invoked Additionally, the COVID-19 pandemic
did not qualify as a force majeure event in the first place, as the EPC Contract did not include the
term “pandemic” as a force majeure event. It further alleged that there had been repeated
delays in the completion of the project without the Employer’s consent, it also failed to take
steps to reduce the project the ecological impact.

7
Written Submission on behalf of the Respondent
 ISSUES RAISED

-I-

WHETHER THE PRESENT CASE IN THE HIGH COURT OF NTOVOONTUCARCHII WITH COMPETENT
JURISDICTION IS MAINTAINABLE?

-II-

WHETHER THERE WAS A BREACH OF CONTRACT BY THE PETITIONERS?

-III-

Whether this case falls under the category of ambiguous contract?

8
Written Submission on behalf of the Respondent
 SUMMERY OF ARGUMENTS

Issue 1

WHETHER THE PRESENT CASE IN THE HIGH COURT OF NTOVOONTUCARCHII

WITH COMPETENT JURISDICTION IS MAINTAINABLE?

The respondent most humbly submits that the present petition is prima facie not maintainable
and is a clear case of misuse of process of court. As per Article 226 it specifically stated the
power of the High Court to issue certain order or writs for the enforcement of fundamental right
or any other function. As the petitioners have not exhausted the option of going to the lower
courts and have directly gone to the High Court.

Issue 2

WHETHER THE CONTRACTORS COMITTED THE BREACH OF CONTRACT?

It is most humbly submitted that in the present petition the employers were the ones who were
the first to delay the work of the contractors by not responding to the emails. In response, the
contractor specified that the Employer had impliedly agreed to extend the project by at least
three months. The Procurement and Construction Phases will thus also be delayed. No response
was received for this email.

Issue 3

WHETHER THE CASE FALLS UNDER THE CATEGORY OF AMBIGUOUS CONTRACT

UNDER S29?

When the contractors informed the employers that the procurement phase will be delayed so the
draft which was made as in EPC after extensive negotiation by both the parties do not remain
valid anymore. As there is no time frame and deadline specified. Furthermore the contractors
impliedly agreed upon it. Considering all the facts stated above we can say that the contract was
an ambiguous contract. So, the contractors cannot be forced to execute their work first.

9
Written Submission on behalf of the Respondent
 ARGUMENTS ADVANCED

I. WHETHER THE PRESENT CASE IN THE HIGH COURT OF NTOVOONTUCARCHII WITH COMPETENT
JURISDICTION IS MAINTAINABLE?
1.1 The jurisdiction of the High Court.

Article 2141- 2312 states the power of the High Court. In Article 2263 it is specifically stated the power of
the High Court to issue certain order or writs for the enforcement of fundamental right or any other
function.

1.2 Reason why The Petitioners cannot go to the High Court directly?

Thus the respondent most humbly submits that the present petition which has been bought under
Article 226 in the Indian Constitution4 is not maintainable before the High Court. As the petitioners have
not exhausted the option of going to the lower courts and have directly gone to the High Court.

Issue 2

Whether the contractors comitted the breach of contract?

Ans- As per section 25 of the Indian Contract Act, 1872 the petitioners ie the Clean Green Timbuktoo
(employers) had expressedly accepted to the application of the Jahlee Solutions Pvt. Ltd ie the
employers also known as contractors after a competitive bidding process and entered into a contract.

The employers were the first who did not reply made a late reply which in total led to five months delay.
It completely shows the negligence in the part of the employers.

As per the contract the first phase was supposed to be completed by eight months which was followed
as per contract but the second phase not completed within twenty-five weeks because of delay by the
employers which led to the breach of contract as per sec 296.

Further when the respondents mailed the contractors specifying that the employers had implied agreed
to extend the project by at least three months. The procurement and construction phase will also be
delayed. The employers did not send any response to that as well. Thus sec 137 based on the fact that
they didn't raise any object for the same.

In the case of Murlidhar Chiranjilal v. Harishchandra Dwarkadas8 and others it was stated that as per the
contract it was supposed to be performed on August 5, 1947 by the means of delivery of a railway
receipt, but the delivery was not fulfilled on the same date. Thus the court observed that the appellant
1

21
INDIAN CONST . art. 214
3
INDIAN CONST . art. 231
4
INDIAN CONST . art . 226
5
The Indian Contract Act,1872, § 2
6
The Indian Contract Act,1872, § 29
7
The Indian Contract Act,1872, § 30
8
Raja Narayanlal Bansilal v. Maneka Phiroz Mistry And Another 1962 AIR 366
10
Written Submission on behalf of the Respondent
and respondent were unaware of the fact that the purchase of the goods for resale would lead to the
breach of contract. So, the respondent had to prove the rate from Kanpur to Calcutta to determine the
foreseeable damages resulting from such a breach. However, the respondent's failure to establish this
rate rendered them ineligible for damages.

In this case the Supreme Court had set aside the High Court’s decree and restored the trial court’s order.

2.1 Dispute between the employers and the employees on delay in time?

During the on going procurement phase due to farmers protest the contractors got delayed. Which in
itself a very genuine reason. When this reason was communicated to the contractors the behaved
lamentingly and strictly mentioned that everything needs to be completed by six months. The practice
of ordering the employees to completing the work fist continued. Despite the fact that the employers
were the main reason of delay thus here the employers applied undue influence on the employees thus
sec 169is applied here.

In the case of T.A. Choudhary vs State of A.P. And Ors10 it was stated that-

- Both parties have the option to plead and prove waiver or acquiescence with sufficient reliable
evidence.

- Clause 59 protection is not available to the department in cases where delays, defaults, or breaches
are solely attributable to the department itself.

- Clause 59 cannot be invoked by the department in cases of unreasonable extensions or extensions

beyond 25% of the actual working period.

- Further and most importantly it was stated that the finished rate should be based on the basic rate of
supply which will be supplied by the department itself.

2.2 Invocation of force mejure clause

S3211 and S5612 applies to for force mejure clause. It was invoked by the employees due to covid 19 on
which the employers had pointed out that it was not appropriately invoked. Additionally covid 19
pandemic does not force mejure and was not there in EPC contract.

In the case of M/s . Halliburton Offshore Services Inc. v. Vedanta Limited & Anr . O.M.P. (I) (COMM.)No.
88/202013. Here the court stated that all the cases cannot be considered under force majeure enforced
by the contractors. The parties needs to prove that the non performance was caused due to the
pandemic.

9
The Indian Contract Act,1872, § 16
10
Sugesan &Co. Pvt. Ltd v. Hindustan Machine Tools Ltd., 2004 (3) ALD 357
11
The Indian Contract Act,1872, § 32
12
The Indian Contract Act,1872, § 56
13
M/s. Halliburton Offshore Services Inc. v. Vedanta Limited & Anr. O.M.P. (I) (COMM.) No. 88/2020, 2020
11
Written Submission on behalf of the Respondent
2.3 Compromise on the sustainability by the employees.

The action of the contractors cannot be said that they did breach of contract because they compromised
and did not completely ignored due to the constant pressure which was being put on by the employers
in them.

Issue 3

Whether the case falls under the category of ambiguous contract under S29?

As per Black’s Law dictionary it was clearly stated that the term “ Ambiguous” means doubtfulness or
uncertainity. It is also mentioned in sec 29 of the Contracts Act 1872.14

In the Mr. Central Warehousing Corporation v. Aqdas Maritime Agency Private Limited on 18 February,
201915, arbitrator's interpretation of the contract clauses regarding liability for service tax was
considered reasonable due to ambiguity in the language of the clauses. The arbitrator took into account
various factors such as past practices of the parties, changes in the law, and the nature of the contract to
determine that the service tax liability should not be borne by the contractor but by the employer. This
decision was deemed fair and not unreasonable, so the court decided not to interfere with the
arbitrator's award, and the arbitration petitions were dismissed.

3.1 What situation gave rise to ambiguous contract?

When the contractors informed the employers that the procurement phase will be delayed so the draft
which was made as in EPC after extensive negotiation by both the parties do not remain valid anymore.
As there is no time frame and deadline specified.

Furthermore the contractors impliedly agreed upon it.

Considering all the facts stated above we can say that the contract was an ambiguous contract. So, the
contractors cannot be forced to execute their work first.

Further there is a presence of impuged agreement in the contract as per S9 of Indian Cotract Act. 16

14
The Indian Contract Act,1872, § 29
15
Central Warehousing Corporation v. Aqdas Maritime Agency Private Limited, 2019
16
The Indian Contract Act,1872, § 9
12
Written Submission on behalf of the Respondent
 PRAYER

WHEREFORE IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED, ARGUMENTS ADVANCED,
AND AUTHORITIES CITED, THE COUNSELS FOR THE RESPONDENT HUMBLY PRAY BEFORE THAT
HON’BLE COURT:
- MAY HOLD THE PETITION NOT MAINTAINABLE AND DISMISS THE PETITION THERE OF.
-MAY HOLD THE PETITIONERS RESPONSIBLE FOR CAUSING THE BREACH OF CONTRACT FROM
THEIR SIDE FIRST AND EXCUSE US FOR COMPROMISING ON THE SUSTAINABILITY PART DUE TO
LACK OF TIME.
- MAY CONSIDER THE EPC CONTRACT AS AMBIGUOUS AND GIVE US EXTENTION IN THE
COMPLETION OF THE CONTRACT AS WE HAVE ALREADY INDUCED FORCE MAJURE CLAUSE.

AND/ OR MAY PASS ANY OTHER ORDER THAT THIS HON’BLE COURT MAY DEEM

FIT IN THE LIGHT OF JUSTICE, EQUITY, AND GOOD CONSCIENCE AND FOR THIS

ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND AS EVER PRAY.

SD/-

COUNSELS ON BEHALF OF THE RESPONDENT

13
Written Submission on behalf of the Respondent