TEAM CODE: N13-

50

13TH NASCENT MOOT COURT COMPETITION, 2023

SYMBIOSIS LAW SCHOOL, NOIDA
SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY), PUNE

IN THE HON’BLE DISTRICT COURT OF GAUTAM BUDH NAGAR

[CIVIL ORIGINAL JURISDICTION]

UNDER SECTION 10 OF THE SPECIFIC RELIEF ACT, 1963

IN THE MATTER OF

MS. VERA RUBY

……Plaintiff
Vs.

SKLODOWSKA BUILDERS PRIVATE LIMITED

….....Defendant

MEMORIAL for the DEFENDANT

 TEAM CODE: N13-50

TABLE OF CONTENTS

Table Of Contents..................................................................................................................2
Index Of Authorities..............................................................................................................3
1. Cases...........................................................................................................................3
2. Statutes........................................................................................................................3
3. Books...........................................................................................................................3
4. E- Databases................................................................................................................3
Index Of Abbreviations..........................................................................................................4
Statement Of Jurisdiction.......................................................................................................5
Statement Of Facts.................................................................................................................6
Statement Of Issues................................................................................................................7
Summary Of Arguments........................................................................................................8
Arguments Advanced.............................................................................................................9
1. Whether Time Was Of Essence Under The Agreement, And Whether There Was
Breach Of Agreement By Ms. Ruby?................................................................................9
1.1 Was Time The Essence Of The Agreement Despite Express Condition?...............9
1.2 Was The Agreement Breached By Ms. Ruby?..................................................11
2. Whether Ruby Can Be Granted Specific Performance Of The Contract?................13
3. Assuming Arguendo There Was No Breach Of Contract, Whether Sklodowska Is
Entitled To Demand Payment Of Market Value?............................................................14
Prayer...................................................................................................................................15
 TEAM CODE: N13-
50

INDEX OF AUTHORITIES

1. CASES

1. Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd., (2011) 9 SCC 147
2. Hind Construction v. State of Maharashtra AIR 1979 SC 72
3. Shri Sunil Sehgal v. Shri Chander Batra and Ors., CS (OS) No. 1250/2006, 2015 SCC
OnLine Del 12388.
4. Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337.
5. Smt. Katta Sujatha Reddy & Anr. V Siddamsetty Infra Projects Pvt. Ltd.& Ors, (2023)
1 SCC 355.
6. Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575.

2. STATUTES

1. The Indian Contract Act, 1872

2. The Specific Relief Act, 1963
3. Real Estate (Regulation and Development) Act, 2016,

3. BOOKS

1. Mulla, The Indian Contract Act (Lexis Nexis 13th edn.).

2. Pollock & Mulla – The Indian Contract Act, 1872 (Lexis Nexis 15th edn 2018).
3. Avtar Singh, Law of Contract & Specific Relief (EBC, 12th edn., 2017).

4. E- DATABASES

1. SSC Online
2. Manupatra
3. LeqitQuest
4. Indian Kanoon
5. Live Law
6.
 TEAM CODE: N13-
50

INDEX OF ABBREVIATIONS

ABBREVIATION FULL FORM

% Percentage
& And
§ Section
AIR All India Reporter
Anr Another
Hon’ble Honorable
Ltd Limited
NA Not Applicable
Ors Others
Pvt Private
RERA Act Real Estate (Regulation and Development)
Act, 2016
SCC Supreme Court Cases
Sd/- Signed
Sklodowska Sklodowska Builders Private Limited
Smt Shrimati
 TEAM CODE: N13-
50

STATEMENT OF JURISDICTION

THE COUNSEL FOR THE DEFENDANT MOST HUMBLY SUBMITS BEFORE

THE HON’BLE DISTRICT COURT OF GAUTAM BUDH NAGAR, THE
MEMORANDUM ON BEHALF OF THE DEFENDANT.

The Hon’ble District Court of Gautam Budh Nagar has the original jurisdiction to try,
entertain and dispose of the suit under Section 10 in THE SPECIFIC RELIEF ACT, 1963

10. Cases in which specific performance of contract enforceable. —Except as otherwise

provided in this Chapter, the specific performance of any contract may, in the discretion of
the court, be enforced—

a) when there exists no standard for ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
b) when the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief. Explanation. —Unless and until the
contrary is proved, the court shall presume—
c) that the breach of a contract to transfer immovable property cannot be adequately
relieved by compensation in money; and
d) that the breach of a contract to transfer movable property can be so relieved except
in the following cases: —
a. where the property is not an ordinary article of commerce, or is of special
value or interest to the plaintiff, or consists of goods which are not easily
obtainable in the market;
b. where the property is held by the defendant as the agent or trustee of the
plaintiff.

The present memorandum sets forth the facts, contentions and arguments in the present
case.
 TEAM CODE: N13-
50

STATEMENT OF FACTS

It is most humbly submitted before this Hon’ble Court, that my client, Sklodowska
Builders Private Limited, is an infrastructure and construction company. It functions in the
National Capital Region and has its registered office in Gautam Buddha Nagar. My client
began construction of a residential complex in Sector 62, Noida, which comes under the
jurisdiction of this Hon’ble Court, in 2011.
In 2012, one Ms. Vera Ruby decided to purchase an apartment in the complex. It was
agreed upon by both the parties that the payment would be made in ten installments on a
progress-based milestone system1. After completion of every milestone, an email was to be
sent, giving 60 days from the email to make the payment. The contract also stipulated an
express condition that Ms. Ruby must make payments in a timely fashion since time is the
essence of the contract. My client held the right to terminate or impose penal interest on
delayed payment. It also stipulated that if Sklodowska terminated the contract, it would
refund within thirty days or provide for 1% simple interest per month.
Since the first and second milestone had been completed by my client, Ms. Ruby paid for
them and was issued a letter of allotment after signing of the requisite documents. The next
three payments were also paid on time. However, Ms. Ruby did not pay the sixth, seventh,
eighth and ninth installment in timely manner, neither she did she specify her reasons for
not being able to. My client sent her seven reminder emails for default of payment. On
1.10.2017, another email was sent warning Ms. Ruby that Sklodowska reserves its right to
remedies under the agreement, including termination and imposition of penal interest if
payments are not made in a timely fashion. Further 3 reminders were sent.
The sixth and seventh installments were paid by her on 1.6.2018, after 1 year 10 months
and 1 year 3 months respectively i.e., 1 year 8 months and 1 year 1 months in default. My
client was compassionate and considerate to the amount of each installment and did not
terminate the contract nor impose interest despite clear stipulation in the contract that
time was of essence.
Further two reminder emails were sent for eighth and ninth installment on 15.6.2018 and
1.7.2018. On 1.10.2019, my client completed its tenth and final milestone and sent an
email intimating the same. Ms. Ruby failed to make the payment within 60 days and as the
right reserved by my client, a termination of agreement was sent to Ms. Ruby over email.
Defendant - Sklodowska also informed Ms. Ruby that in terms of the agreement, it will
refund monies paid so far by Ms. Ruby within a period of 30 days and requested Ms. Ruby
to share her bank account details. It has also produced a demand draft of the monies to be
1
Annexure A, 13th NASCENT Moot Court Competition, 2023
 TEAM CODE: N13-
50

paid, before this Hon’ble Court to prove its bonafide. My client is willing to still handover
the apartment to Plaintiff - Ms. Ruby, provided she pays at the market value.
Plaintiff - Ms. Ruby has already costed my client huge monetary loss as a construction
project requires heavy resources and time investment. She had taken undue advantage
already by not responding to the reminder emails and further delaying payments.
Authorizing her act would not only cost opportunity monies of the apartment but also set a
precedent to normalize default for other allotees. Thus, we request this learned court to
dispose this suit and grant damages to the defendant for breach of contract.

STATEMENT OF ISSUES

1. Whether time was of essence under the agreement, and whether there was breach of
agreement by Ms. Ruby?
1.1 Was time the essence of the agreement despite express condition?
1.1.1 Whether Sklodowska should be granted penal interest for the
delayed payment?
1.2 Was the agreement breached by Ms. Ruby?
1.2.1 Whether there was intention on part of Ms. Ruby to honor her
contract?
1.2.2 Whether there was default on part of Ms. Ruby?
2. Whether ruby can be granted specific performance of the contract?
3. Assuming arguendo there was no breach of contract, whether Sklodowska is entitled to
demand payment of market value?
 TEAM CODE: N13-
50

SUMMARY OF ARGUMENTS

[ISSUE 1] WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT,

AND WHETHER THERE WAS BREACH OF AGREEMENT BY MS. RUBY?
It is most humbly submitted before the Hon’ble District Court that time was of essence
under the contract and was stipulated under express condition. In real estate cases, the
value of the property is always appreciating, thus time must be considered of essence. The
contract was breached by Ms. Ruby because she showed no intent to honor her contract by
regularly defaulting her payments. Furthermore, the defendant should be awarded penal
interest for the delayed payments.

[ISSUE 2] WHETHER RUBY CAN BE GRANTED SPECIFIC PERFORMANCE

OF THE CONTRACT?
It is most humbly submitted before the Hon’ble District Court that Ms. Ruby is not
competent to seek specific performance of the contract since she did not intent to honor her
agreement. It is incumbent on party to aver and prove that she has performed or has always
been ready and willing to perform the essential terms of contract. She did not perform her
part of the agreement and had de facto, breached the contract by default payments.

[ISSUE 3] ASSUMING ARGUENDO THERE WAS NO BREACH OF CONTRACT,

WHETHER SKLODOWSKA IS ENTITLED TO DEMAND PAYMENT OF
MARKET VALUE?
It is most humbly submitted before the Hon’ble District Court that even if there was no
breach, the plaintiff had defaulted in her payments. Since time was the essence of the
contract, and real estate properties are always appreciating, the defendant has suffered
monetary loss. The construction of this project was time and resource consuming to begin
with, by defaults in the payment of the installment, the plaintiff has costed my client even
more financial losses and therefore, it reserves the right to demand payment of market
value.
 TEAM CODE: N13-
50

ARGUMENTS ADVANCED

1. WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT, AND

WHETHER THERE WAS BREACH OF AGREEMENT BY MS. RUBY?

1.1 WAS TIME THE ESSENCE OF THE AGREEMENT DESPITE EXPRESS CONDITION?

The counsel on behalf of the defendant, humbly submits that the agreement had an express
condition that the payments must be paid in accordance with the provided schedule.
Defendant - Sklodowska reserved the right to terminate the agreement and/or impose penal
interest on the delayed payment which Ms. Ruby had agreed to.
The Section 55 of the Indian Contract Act, 18722 states that:
55. Effect of failure to perform at a 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 at the option of the promisee, if the intention of the
parties was that time should be of the essence of the contract
In the case of Hind Construction v. State of Maharashtra3 ,the Hon’ble Supreme Court
held that, “The question whether or not time was of the essence of the contract would
essentially be a question of the intention of the parties to be gathered from the terms of the
contract.” It further stated that the clauses of express condition of time shall only be held
ineffective when other clauses of the contract suggested otherwise by rendering an option
of providing for extension of time in certain contingencies etc.
In a similar matter in the case of Citadel Fine Pharmaceuticals v. Ramaniyam Real
Estates (P) Ltd.4, the Apex Court found that in a real-estate cases, the court is inclined to
believe that time was of essence in the court. It was also taken note that the price of real
estate agreement constantly escalating thus, time must be considered of essence. Since
there was no clause which could be construed as rendering ineffective the express
provision, the vendor was well within its rights to terminate the contract for non-
performance by the plaintiff purchaser within the stipulated time.
2
Indian Contract Act, 1872, § 55.
3
Hind Construction v. State of Maharashtra AIR 1979 SC 72
4
Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd., (2011) 9 SCC 147
 TEAM
TEAM CODE:
CODE: N13-
N13-
50
50

1.1.1 WHETHER SKLODOWSKA SHOULD BE GRANTED PENAL INTEREST FOR THE DELAYED
PAYMENT?

Section 74 & 75 of the Indian Contract Act states that:

74. Compensation for breach of contract where penalty stipulated for: 5- When a
contract has been broken, if a sum is named in the contract as the amount to be paid in
case of such breach, or if the contract contains any other stipulation by way of penalty,
the party complaining of the breach is entitled, whether or not actual damage or loss is
proved to have been caused thereby, to receive from the party who has broken the
contract reasonable compensation not exceeding the amount so named or, as the case
may be, the penalty stipulated for.
75.Party rightfully rescinding contract, entitled to compensation. 6—A person who
rightfully rescinds a contract is entitled to compensation for any damage which he has
sustained through the non-fulfilment of the contract. —A person who rightfully
rescinds a contract is entitled to compensation for any damage which he has sustained
through the non-fulfilment of the contract.
This clearly justifies the defendant’s ask for penalty which was already stipulated and
agreed upon in the agreement.
In a similar case of Shri Sunil Sehgal v. Shri Chander Batra and Ors 7., the learned judge
of Delhi High Court found that, “In the facts of the present case, however, I find that
instead of a lower rate of interest, the appellant/defendant should get a higher rate of
interest considering that the transaction pertains to an immovable property and benefit
of which will go to the respondent/plaintiff. Therefore, I hold the appellant/defendant
entitled to pendente lite and future interest @ 21% per annum simple on the amount of
escalation charges as decreed by the trial Court.”
In the case of Desh Raj & Ors v. Rohtash Singh8, the Apex Court observed that,
“Hence, in a scenario where the contractual terms clearly provide the factum of the
pre estimate amount being in the nature of earnest money, the onus to prove that the
same was penal in nature squarely lies on the party seeking refund of the same.
Failure to discharge such burden would treat any pre-estimated amount stipulated in
the contract as a genuine pre-estimate of loss.”
The defendant is just in demanding the penal interest not only because there has been a
breach of contract by the plaintiff, but also because of the huge investment undertaken
5
Indian Contract Act, 1872, § 74.
6
Indian Contract Act, 1872, § 75.
7
Shri Sunil Sehgal v. Shri Chander Batra and Ors., CS (OS) No. 1250/2006, 2015 SCC OnLine Del 12388.
8
Citadel Fine Pharmaceuticals V. Ramaniyam Real Estates P. Ltd. And Another, AIR 2011 SC 3351.
 TEAM CODE: N13-
50

by the defendant. The rate of real estate constantly escalates and had the defendant
invested it; it would have been multifold. 9
1.2 WAS THE AGREEMENT BREACHED BY MS. RUBY?

1.2.1 WHETHER THERE WAS INTENTION ON PART OF MS. RUBY TO HONOR HER CONTRACT?

My client has always been punctual on completion of their milestones and reminder emails
showing its intention to honor the agreement. On the contrary, Ms. Ruby has had a pattern
of default.
The sixth installment was paid after a default of 1 year 10 months, the seventh installment
was paid after a default of 1 year 3 months, whereas the payment was to be made within 60
days.
The eighth, ninth and tenth installment was defaulted for 2 years seven months 3 days, 2
years 2 months 3 days & 2 months 3 days respectively till the date of termination of the
contract.
The Section 51 of the Indian Contract Act, 187210 states that:
51. Promisor not bound to perform, unless reciprocal promisee ready and willing
to perform. - When a contract consists of reciprocal promises to be simultaneously
performed, no promisor need perform his promise unless the promisee is ready and
willing to perform his reciprocal promise. —When a contract consists of reciprocal
promises to be simultaneously performed, no promisor need perform his promise
unless the promisee is ready and willing to perform his reciprocal promise.
Illustration (a) depicts that the delivery of goods need not be made unless the other
party is ready and willing to pay for it. 11
Section 19 (6) of the RERA Act 12 states that:
(6) Every allottee, who has entered into an agreement for sale to take an apartment, plot
or building as the case may be, under section 13, shall be responsible to make necessary
payments in the manner and within the time as specified in the said agreement for sale and
shall pay at the proper time and place, the share of the registration charges, municipal
taxes, water and electricity charges, maintenance charges, ground rent, and other
charges, if any.

9
Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd., (2011) 9 SCC 147.
10
Indian Contract Act, 1872, § 51.
11
The Indian Contract Act, 1872. (n.d.). § 51.
12
Real Estate (Regulation and Development) Act, 2016, §19(6).
The plaintiff had been extremely inconsistent in her payment, did not answer to the
reminder emails nor did she specific any reason for the same to grant her compassionate
grounds. Thus, it indicates that Ms. Ruby did not intend to honor her contract.
1.2.2 WHETHER THERE WAS DEFAULT ON PART OF MS. RUBY?

The conduct of the plaintiff reflects that she never took the payment of the installments
seriously and took undue advantage of my client. Plaintiff -Ms. Ruby has been a chronic
defaulter of her payments and costed huge monetary losses to my client.
Section 37 of the Indian Contract Act, 1872 13, highlights the need to perform the obligation
under contract:
37. Obligation of parties to contract. —The parties to a contract must either perform, or
offer to perform, their respective promises, unless such performance is dispensed with or
excused under the provisions of this Act, or of any other law.
The below table highlights the numerous times of default:

Payment Amount Mileston Payment

schedule of e Met Made Time period of
No. Construction stage (In Rs) default Date Date default
1 On start of excavation 45,00,000 0
On completion of
2 ground floor roof slab 65,00,000 0
On completion of 2nd
3 floor roof slab 10,00,000 0
On completion of 4th
4 floor roof slab 10,00,000 0
On completion of 6th
5 floor roof slab 10,00,000 0
On completion of final 1 year 10
6 roof slab 10,00,000 10,00,000 1.8.2016 1.6.2018 months
On completion of brick 1 year 3
7 work 10,00,000 10,00,000 1.3.2017 1.6.2018 months
On completion of 2 years 7
8 services 10,00,000 Not Paid 1.5.2017 N.A months 3 days
On completion of 2 years 2
9 Interiors 10,00,000 Not Paid 1.10.2017 N.A months 3 days
10 On completion of 20,00,000 Not Paid 1.10.2019 N.A 2 months 3

13
Indian Contract Act, 1872, § 37.
 TEAM CODE: N13-
50

exterior finishing days

2. WHETHER RUBY CAN BE GRANTED SPECIFIC PERFORMANCE OF THE

CONTRACT?
To avail specific relief, the party must follow the rule of “He who seeks equity must do
equity.” Ms. Ruby had breached the agreement by not paying for the installments in a
timely fashion. This reflected her lack of interest in honoring the contract.
Section 16(c) of the Specific Relief Act, 196314 specifically stipulates the incompetency to
receive specific relief in case of parties unwilling to perform their part of the agreement-
Section 16. Personal bars to relief-
(c) who fails to aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be performed by him,
other than terms the performance of which has been prevented or waived by the defendant.
This section was upheld and confirmed in the case of Syed Dastagir v. T.R.
Gopalakrishna Setty.15 Similarly, in the case of Smt. Katta Sujatha Reddy & Anr. V
Siddamsetty Infra Projects Pvt. Ltd.& Ors 16, the Supreme Court found that specific relief
cannot be granted to those purchasers of the immovable property who do not make
payments timely, especially when it was an express condition. The learned judge
Krishna Murari, J commented that:
“We are of the firm opinion that the contract was breached due to the conduct of the
plaintiff/ purchaser, who were not willing to perform the contract after entering into a time
sensitive agreement. In any case, it is an admitted fact that plaintiff had paid only part
consideration.”
In the case of Surinder Kaur v. Bahadur Singh17, it was held that specific performance
cannot be enforced in favor of a person who fails to prove that he has performed or was
always ready and willing to perform essential terms of contract which were to be
performed by him. It is incumbent on party to aver and prove that he has performed or has
always been ready and willing to perform the essential terms of contract.

14
Specific Relief Act, 1963, Section 16(c)
15
Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337.
16
Smt. Katta Sujatha Reddy & Anr. V Siddamsetty Infra Projects Pvt. Ltd.& Ors, (2023) 1 SCC 355.
17
Surinder Kaur v. Bahadur Singh, (2019) 8 sSCC 575.
 3. ASSUMING ARGUENDO THERE WAS NO BREACH OF CONTRACT,
TEAM CODE: N13-
WHETHER SKLODOWSKA IS ENTITLED TO DEMAND PAYMENT
50 OF
MARKET VALUE?
It is mostly humbly submitted by the defendant- Sklodowska that, huge costs were
incurred in making of the project. My client has invested huge amounts in the project, took
pertinent permissions, and put in efforts in the development of the project, which is a time
and fund consuming project. The project was commenced after obtaining requisite
sanctions, permissions, and approvals and in accordance with applicable laws, byelaws,
rules and regulations from regulatory authorities.
As found in the judgement of Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates
(P) Ltd18., the value of property is always appreciating and the builder faces monetary
losses if not installments are not paid in a timely fashion.
Section 53 and 54 of the Indian Contract Act stipulates that:
53. Liability of party preventing event on which the contract is to take effect. 19—When
a contract contains reciprocal promises, and one party to the contract prevents the other
from performing his promise, the contract becomes voidable at the option of the party so
prevented: and he is entitled to compensation from the other party for any loss which he
may sustain in consequence of the non-performance of the contract.
54. Effect of default as to that promise which should be performed, in contract
consisting of reciprocal promises. 20—When a contract consists of reciprocal promises,
such that one of them cannot be performed, or that its performance cannot be claimed till
the other has been performed, and the promisor of the promise last mentioned fails to
perform it, such promisor cannot claim the performance of the reciprocal promise, and
must make compensation to the other party to the contract for any loss which such other
party may sustain by the non-performance of the contract.
Ms. Ruby did not perform her promise of timely payment, and thus, the apartment could
not have been handed over to her or any other potential allotee. This costed my client huge
amounts of monetary loss and thus the defendant holds the right to demand compensation
in the form of market value payment.

18
Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd., (2011) 9 SCC 147.
19
Indian Contract Act, 1872, § 53.
20
Indian Contract Act, 1872, § 54.
 TEAM CODE: N13-
50

PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, may
this Hon’ble District Court be pleased to:

Dismiss the civil suit with all costs.

AND/OR

Pass any other order that this Hon’ble Court may be pleased to grant in the interest of
justice, equity and good conscience.

And for this act of kindness, the Respondent shall forever be duty bound.

Date:

Place:

Sd/-

Respectfully submitted by the Counsel for the Respondent