Moot memorial

Civil Cases on conntract

1. SUB-DIVISIONAL COURT LD. CIVIL
JUDGE, JUNIOR DIVISION

SUIT FILED UNDER SECTION 9 OF CODE OF CIVIL
PROCEDURE CODE, 1908



CASE NO. /2021






MR. RAGHAV
……PETITIONER


VERSUS

MR. SAM …
…RESPONDENT









ON SUBMISSION TO SUB-DIVISIONAL COURT LD. CIVIL JUDGE,
JUNIOR DIVISION
TC- P4

2. MEMORIAL ON BEHALF OF THE PETITIONER
2



TABLE OF CONTENTS

INDEX OF AUTHORITIES ……………………………………………

❖ LEGISLATION
❖ CASES REFERRED

❖ BOOKS REFERRED
❖ LAW LEXICON AND DICTIONARIES

❖ LEGAL DATABASES

LIST OF ABBREVIATIONS …………………………………………...

STATEMENT OF JURISDICTION ……………………………………

STATEMENT OF FACTS ……………………………………………….

ISSUES RAISED ………………………………………………………….

SUMMARY OF ARGUMENTS …………………………………………

ARGUMENT ADVANCED

i. Whether the offer given by the defendant and acceptance communicated
by the plaintiff were valid as per the Indian Contract Act, 1872?
ii. Whether the revocation of offer done by the defendant was as per the
provisions of Indian Contract Act, 1872?
iii. Whether there was a breach of contract by the defendant?

PRAYER ………………………………………………………………………..

3. 3


INDEX OF AUTHORITIES



LEGISLATION


1. Indian Contract Act, 1872
2. Code of Civil Procedure 1908



CASES REFERRED

1. Bhagwandas Goverdhandas Kedia v. M/S.Girdharilal Parshottamdas and Co. &
Ors Jaswinder Saraaf – 1966 AIR 543 1966 SCR (1) 656
2. Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH (1983) 2 AC
34
3. Bruening Rock Products, Inc. V. Hawkeye International Trucks, No.14- 1215 (July
22
nd
2015)
4. Byrne $Co v Leon Van Tien Horen $ Co- [1880] 5 CPD 344
5. Entores Ltd v Miles Far East Corp EWCA Civ 3, 2 QB 327
6. Henthorn v Fraser [1892] 2 Ch 27
7. NM Superannuation Pty Ltd V Hughes & Ors, (1992) 10 ACLC 477
8. Quadricon Pvt. Ltd. vs Bajarang Alloys Ltd. on 12
th
December, 2007- AIR 2008
Bom 88
9. Sadhoo Lal Motilal v. The state of M.P, AIR- 1972 ALL 137

4. MEMORIAL ON BEHALF OF THE PETITIONER
4




BOOKS REFERRED
1. Contract book by RK Bangia
2. Contract and specific relief by Avtar Singh
3. Textbook on law of contract by Dr H.K Saharay
4. Contract law by Robert Duxbury

LAW LEXICON AND DICTIONARIES

1. Bryan A. Garner, BLACK’S LAW DICTIONARY, (2
nd
ed., 2004).
2. Justice R.P. Sethi, SUPREME COURT ON WORDS AND PHRASES, (2
nd
ed.,
2004).
3. Webster’s UNIVERSAL DICTIONARY, (1
st
ed., 1993).


LEGAL DATABASES

1. http://www.indiancaselaws.org
2. http://www.judic.nic.in
3. http://www.lexisnexis.com
4. http://www.scconline.co.in

5. MEMORIAL ON BEHALF OF THE PETITIONER
5



LIST OF ABBREVIATIONS





AIR

All India Reporter

J.

Justice

HC

High Court

SC

Supreme Court

&

And

GOVT

Government

ART.

Article
HON’BLE Honorable
ANR Another
SCC Supreme Court Cases
SCR Supreme Court Report
CONST. Contitution of Republic
P. Page
ORS Others
CO. Company
V. Versus
NO. Number
CORP. Corporation

6. MEMORIAL ON BEHALF OF THE PETITIONER
6



STATEMENT OF JURISDICTION


The Plaintiff has approached this Hon’ble Court under Sec.9 of Civil Procedure Code,1908 in
form of a civil application in civil court.
Sec.9 of CPC- Courts to try all civil suits unless barred. - The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all Suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly barred.
Explanation 1 — As suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
Explanation 2 — For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.

7. MEMORIAL ON BEHALF OF THE PETITIONER
7



STATEMENTS OF FACTS



1. On Monday, June 5th at 10:00 a.m. Mr. Sam, M.D. of Toffscar Ltd. Sent a telex of offer to
Mr. Raghav, a regular customer for selling him a rare vintage car for 50,000 euros.
2. Mr. Raghav received the telex on 1:00 p.m. on 5th June and sends a telex accepting the
offer at 9:00 a.m. on Tuesday, June 6th.
3. Mr. Sam fails to notice the telex and during the day he receives another offer of 60,000
euros for the same car by Mr. Sober.
4. Mr. Sam telexes a revocation to Mr. Raghav at 5:30 pm on Tuesday,6th June knowing the
fact that his office remains closed from 5:00 p.m. and 9:00 a.m. Mr. Sam receives
the revocation telex at 9:00 a.m. on Wednesday, June 7th.
5. Mr. Sam receives Mr. Raghav's telex at 9:30 a.m. on June 07th.

6. Mr. Sam refuses to sell the car to Mr. Raghav.

8. MEMORIAL ON BEHALF OF THE PETITIONER
8



ISSUES RAISED



ISSUE 1

WHETHER THE OFFER GIVEN BY DEFENDANT AND ACCEPTANCE
COMMUNICATED BY THE PLAINTIFF WERE VALID AS PER INDIAN
CONTRACT ACT, 1872?
ISSUE 2

WHETHER THE REVOCATION OF OFFER DONE BY THE DEFENDANT WAS AS
PER THE PROVISIONS OF INDIAN CONTRACT ACT, 1872?


ISSUE 3

WHETHER THERE WAS A CONTACT FORMED BETWEEN THE PLAINTIFF
AND THE DEFENDANT AND WHETHER IT WAS BREACHED?

9. MEMORIAL ON BEHALF OF THE PETITIONER
9



SUMMARY OF ARGUMENTS



1. WHETHER THE OFFER GIVEN BY DEFENDANT AND
ACCEPTANCE COMMUNICATED BY THE PLAINTIFF WERE VALID AS
PER INDIAN CONTRACT ACT, 1872?
It is humbly submitted before the Hon’ble court, the offer given by the defendant is valid offer
under sec. 2(a) of The Indian Contract Act, 1872 and the acceptance communicated by the
Plaintiff is also valid under Sec. 2(b) of The Indian Contract Act, 1872.


II. WHETHER THE REVOCATION OF OFFER DONE BY THE DEFENDANT
WAS AS PER THE PROVISIONS OF INDIAN CONTRACT ACT, 1872?
It is humbly submitted before the hon’ble court, the revocation of offer is not valid as per the
provisions of The Indian Contract Act, as it is not done as per the provision of sec. 5
Revocation of offer under Indian Contract Act.


III. WHETHER THERE WAS ANY BREACH OF CONTRACT ON BEHALF
OF DEFENDANT AS PER THE INDIAN CONTRACT ACT, 1872 AND WHETHER
THE PLAINTIFF IS ENTITLED TO GET DAMAGES?
It is humbly submitted before the Hon’ble court, there was breach of Contract on behalf of
defendant as the Plaintiff is ready to fulfill his obligation but the defendant has revoked the
contract against the provisions of The Indian Contract Act, 1872 and therefore
Plaintiff is entitled to get damages from Defendant.

10. MEMORIAL ON BEHALF OF THE PETITIONER
10






ARGUMENTS ADVANCED

I. WHETHER THE OFFER GIVEN BY DEFENDANT AND
ACCEPTANCE COMMUNICATED BY THE PLAINTIFF WERE VALID
AS PER INDIAN CONTRACT ACT, 1872?
It is humbly submitted before the hon’ble court, the offer given by the defendant is valid offer
under sec. 2(a) of The Indian Contract Act, 1872. The Indian Contract Act, 1872 prescribes
the law relating to contracts in India and is the key act regulating Indian contract law. The Act
is based on the principles of English Common Law. It is applicable to all the states of India. It
determines the circumstances in which promises made by the parties to a contract shall be
legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an
agreement which is enforceable by law.
Sec 2(a) of Indian Contract Act, 1872 defines an offer as, “a proposal made by one person to
another to do an act or abstain from doing it.” The person who makes the offer is known as
the promisor or offeror or and the person to whom an offer is made is known as the promise
or the offeree. Determination of an Offer (Test of an offer) - Every proposal made by an
offeror is not legally regarded as an offer. Three tests are applied to determine whether or not
an offer has actually been made:
1. Does it create a legal relationship?

It is essential for a valid proposal that it must be made with the intention of creating a legal
relationship otherwise it will only be an invitation. A social invitation may not create a social
relationship. An offer must lead to a contract which creates legal obligations and legal
consequences in the case of non-performance of the contract. In the given case, the offer
creates a legal relationship as the intention of the offeror was clearly to create and a contract
with the offeree by giving an offer to sell his car.
2. Are terms of offer clear and definite?

Knowledge of the Intention of the parties is very essential as without this the courts will not
be able to decide what the parties want to do. Therefore, the terms of the offer must be clear
and definite and not vague and loose. In this case the terms of the offer were very clear and
definite, the offer was to sell a car by the offeror to the offeree for consideration of 50,000
euros.

11. MEMORIAL ON BEHALF OF THE PETITIONER
11




3. Whether the offer is communicated or not?

Communication or expression of the willingness by the offeror to enter into a contract
or abstain from doing so is essential for a valid offer. Mere desire or willingness to do or not
to do something is not enough and will not constitute for an offer. In this case the
entire communication for the formation of contract was done through telex, the offer
was communicated and also the acceptance was. Hence in the present case all the requisites of
a valid offer are being fulfilled hence it was a valid offer. And the acceptance communicated
by the Plaintiff is also valid u/s 2(b) of The Indian Contract Act, 1872. A contract comes into
being from the acceptance of an offer. Sec.2(b) of Indian Contract Act states "When the
person to whom the proposal is made signifies his assent thereto, the proposal is said to be
accepted, proposal when accepted becomes a promise"
Thus, acceptance of the offer must be absolute and unqualified. It cannot be condition. And in
the given case the plaintiff's acceptance through telex was absolute and unqualified and the
requisites of a valid acceptance are being fulfilled hence it was a valid acceptance. Sec.4 of
The Indian Contract Act: - Communication of Acceptance
The communication of an acceptance is complete: -

(i) as against the proposer, when it is put in the course of transmission to him, so as to be out
of the power of the acceptor, and
(ii) as against the acceptor, when it comes to the knowledge of the offeror.

As per the clause it states when it comes to the knowledge of the offeror the acceptance is
communicated but in the present case the plaintiff accepted the offer from the same medium
through which offer was sent but it was negligence on part of the Defendant that he didn’t saw
the telex of the plantiff and accepted the offer of another party. Plaintiff had already accepted
the offer therefore in the present case the communication of acceptance on part of Plaintiff
was done as per Indian Contract Act, 1872. Also, in case of communication through
Telephone or Telex is complete only after the message of acceptance has been received by the
acceptor.

12. MEMORIAL ON BEHALF OF THE PETITIONER
12




Therefore, both the Offer and Acceptance are valid as per the provisions of The Indian
Contract Act in the present case and hence it formed a valid contract between the
Plaintiff and the Defendant and both are bound to fulfil their obligations.
In Entores Ltd. v. Miles Far East Corpn.
1
[Denning L.J., said that the postal rule cannot be
applied to instantaneous mode of communications, such as telephone and telex. If a phone line
“went dead” just before the offeree said “yes”, it would be absurd to assume that the contract
was formed and the parties would not have to call each other back. The same applied to telex.
Since the contract was therefore only formed when and where the telex was received, the
place of formation was London. In this case the judgement was held that, "in case of
communication through telex, contract is formed right when and where the acceptance was
received" So, in the present case scenario since acceptance was received by the defendant,
therefore the contract was already formed despite the fact that he was not aware of receiving
the acceptance. So, the precedent formed in Entores Ltd. v. Miles Far East Corpn.[ Denning
L.J., case can be followed in the present case.
The Supreme Court in Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas &
Co.
2
following the English decision in Entores Ltd. v. Miles Far East Corpn has held
that Section 4 of the Contract Act is only applicable in cases of non-instantaneous
forms of communication and would not apply when instantaneous forms of communication
are used. The Court observed that the draftsman of the Contract Act did not
contemplate the use of instantaneous means of communications. Hence, where proposal and
acceptance are made by instantaneous means of communications like telephone, telex, etc.,
and the postal rule does not apply and the contract is made where the acceptance is received.
Since Supreme Court has held in the present case that contract is formed right when the
communication is received so in the given case since the facts are identical so decision
of Supreme court can be used as a precedent.
Also, in the case of Quadricon Pvt. Ltd. v. Bajrang Alloys Ltd.,
3
(A.I.R 2008 Bom. 88.) The
Bombay High Court ruled that, "the normal rule would apply and the contract would
be completed only when the acceptance was received by the offeror". It was also held that by





1
Entores ltd v Miles far east crop EWCA Civ 3,,2 QB 327.
2
Bhagw a nd as Goverd ha nda s Kedi a V. M/s. Girdha ril al Parshott a m da s And Co.& ors-1966 AIR 543 1966 SCR (1)
656.
3
Quad ri c on Pvt.Lt d. V Bajara ng Alloys Ltd. On 12
th
Dece m be r, 2007 – AIR 2008 Bom 88.

13. 13


MEMORIAL ON BEHALF OF THE PETITIONER

Bombay High court that communication is completed when acceptance is received
by the offeror, so in the given case to the acceptance was completed on 6th June at 9:00
a.m.
In N.M. Superannuation Pty. Ltd. v. Hughes,
4
a decision of the New South Wales
Supreme Court, Cohen, J. held that if a fax is left switched on its owner is indicating their
preparedness to receive messages on it and in such circumstances, it was sufficient
for a notice to be communicated by fax, even though the document might arrive outside
normal business hours. In the given case, decision of Supreme Court can be referred that if
acceptance is received by the offeror even if the offeror is not aware of it, the commutation
would be completed.
Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH-
5
. The postal rule
does not apply to direct/instant forms of communication (including telex) – as telex was
used here the postal rule did not apply and the contract was formed in Vienna - Austrian
law applied. Even though with telex the message may not be received by the intended
recipient immediately (there may be agents or other third parties who receive the messages
to be passed on to the intended recipient) a telex that goes directly from the offeree’s
business to the offeror’s business (unlike a telegram which employs the use of a post
office) should be treated as if it were an instantaneous communication.
If a telex is sent to an office acceptance occurs when the telex reaches the place of
business, not when it actually gets to the person to whom it is addressed. It is clearly stated
in the case that in case of Telex, communication is completed when it reaches the place of
business and not when it actually gets to the person to whom it is addressed. Since in the
given case, the acceptance had reached the place of business of the offer so although the
offeror was not aware of it but the communication would be deemed to be completed
and the contract would be formed.









4
NM Super annuati o n pty Ltd vs Hughes & ORS- (1992) 10 ACLC 477
5
Brinki bon Ltd v Stahag Stahl und Stahl w are nh an del sge sel lsc ha ft mbH - (1983) 2 AC 34

14. MEMORIAL ON BEHALF OF THE PETITIONER
14




II. WHETHER THE REVOCATION OF OFFER DONE BY THE DEFENDANT
WAS AS PER THE PROVISIONS OF INDIAN CONTRACT ACT, 1872?


It is humbly submitted before the hon’ble court, the revocation of offer is not valid as per the
provisions of The Indian Contract Act, as it is not done as per the provision of sec. 5 i.e.,
Revocation of offer under Indian Contract Act,1872.

Revocation- Where an offer gives the offeror an option to accept within a fixed period, it may
be withdrawn even before the expiry of that period unless there is some consideration
for keeping it open, Airfred schonlank v. Muthurayna Chetty
Modes of revocation of Offer-

The modes of revocation is given u/s 6 of Indian Contract Act;
A proposal is revoked-
(1) by the communication of notice of revocation by the proposer to the other party;

(2) by the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so
prescribed, by the lapse of a reasonable time, without communication of the acceptance;
(3) by the failure of the acceptor to fulfill a condition precedent to acceptance; or

(4) by the death or insanity of the proposer, if the fact of his death or insanity comes to the
knowledge of the acceptor before acceptance.

According to Sec.5 of The Indian Contract Act,1872 “proposal may be revoked at any time
before the communication of its acceptance is complete as against the proposer, but
not afterwards”.
In the present case the acceptance was already communicated to the Defendant by the
Plaintiff through telex therefore after acceptance the defendant cannot revoke the offer as per
section 5 of The Indian Contract Act,1872.

15. MEMORIAL ON BEHALF OF THE PETITIONER
15




Therefore, the revocation of offer done by the Defendant in the present case is not valid as per
the Indian Contract Act, 1872 and as the Plaintiff has accepted the offer and ready to fulfill his
obligation even the Defendant is bound to fulfill his obligation and cannot just revoke his
offer to get away from his obligation.
In the case Sadhoo Lal Motilal v. The State of M.P.,
6
All, the tender that was presented by
the party to the respective Government was accepted later. But a telegram was subsequently
sent to that respective Government withdrawing the acceptance. The court found the strong
evidence of the conclusion of the contract and could not find any reason to revoke the
contract. The reason is that as soon as the letter of acceptance was posted, the tender
contract was concluded. Thus, revocation could not be made. As in this case it has been
stated that as soon as acceptance is posted, the contract is formed so also in this case the same
precedent can be used to consider that the contract was formed when the telex was received.
In case of Byrne & Co v Leon Van Tien Hoven & Co
7
the High Court's Common Pleas
Division ruled that an offer is only revoked by direct communication with the offeree, and that
the postal rule does not apply in revocation; while simply posting a letter counts as a valid
acceptance, it does not count as valid revocation.






























6
Sadho o Lal Motil al v. The Stat e Of M.P , AIR 1972 ALL 137.
7
Byrne & Co v. Leon Van Tien Hoven & Co ([1880] 5 CPD 344)

16. MEMORIAL ON BEHALF OF THE PETITIONER
16




III. WHETHER THERE WAS ANY BREACH OF CONTRACT ON BEHALF OF
DEFENDANT AS PER THE INDIAN CONTRACT ACT, 1872 AND
WHETHER PLAINTIFF IS ENTITLED TO GET DAMAGES FOR BREACH
OF CONTRACT?
It is humbly submitted before the hon’ble court, there was breach of Contract on behalf of
defendant as it is a valid contract and the Plaintiff is ready to fulfill his obligation
but the defendant has revoked the contract against the provisions of The Indian Contract Act,
1872 and therefore Plaintiff is entitled to get damages from the Defendant.
Section 73 in The Indian Contract Act, 1872

Compensation for loss or damage caused by breach of contract.—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. —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." Such
compensation is not to be given for any remote and indirect loss or damage sustained by
reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract.—
When an obligation resembling those created by contract has been incurred and has
not been discharged, any person injured by the failure to discharge it is entitled to receive the
same compensation from the party in default, as if such person had contracted to discharge it
and had broken his contract. —When an obligation resembling those created by
contract has been incurred and has not been discharged, any person injured by the failure to
discharge it is entitled to receive the same compensation from the party in default, as if such
person had contracted to discharge it and had broken his contract." Therefore, under section
73 of The Indian Contract Act, 1872 it clearly states that whenever any party to contract
denies to fulfill their obligation due to which the other party suffers theloss, the party who
suffers loss specifically because of non-performance of other party obligation, the party
who suffered loss is entitled to get maintenance from the other party.

17. MEMORIAL ON BEHALF OF THE PETITIONER
17




Hence in the present case as there is a valid contract between the Plaintiff and the Defendant,
and the Plantiff is ready to fulfill his obligation but as the defendant has not fulfilled
his obligation as he has wrongly revoked the offer against the Indian Contract Act the
defendant will suffer loss as he won’t get the vintage car which becomes his legal right arising
out of the contract which will be breached and therefore the Plaintiff is entitled to get damages
for breach of legal right arising out of the contract from the Defendant.
In the case Henthorn v Fraser -
8
The defendant and the claimant were situated at Liverpool
and Birkenhead respectively. The defendant called at the office of the claimant in order to
negotiate the purchase of some houses. The defendant handed the claimant a note giving him
the option to purchase some houses within 14 days. On the next day, the defendant withdrew
the offer by post, but his withdrawal did not reach the claimant until 5 P.M. Meanwhile, the
claimant responded by post with an unconditional acceptance of the offer, which was
delivered to the defendant after its office had closed. The letter was opened by the defendant
the next morning. In this case, the Court of appeal ordered that the claimant was entitled to
specific performance.
In Bruening Rock Products, Inc. v. Hawkeye International Trucks,
9
the plaintiff
sought breach of contract damages from a truck company. The claim was simple. The
plaintiff, which was a rock quarry operator, ordered four trucks from the defendant. The
plaintiff required that the trucks have a gross vehicle weight rating of 74,000 pounds. This
meant that each truck would have the capacity to haul 74,000 pounds, including the weight of
the truck. The plaintiff needed the trucks to haul rock from its underground mines. At trial, the
plaintiff testified that the trucks had failed to perform at this level. The wheel rims had
cracked and the rims malfunctioned. The jury found that the defendant had breached its
contract with the plaintiff and issued a verdict in the plaintiff’s favor in the amount of
$1,167,904.85.













8
Henthorn v Fraser [1892] 2 CH 27.
9
Brueni ng Rock Produ ct s, Inc. v Hawkey e Internat i ona l Trucks, No.14- 1215 [July 22
nd
2015]

18. MEMORIAL ON BEHALF OF THE PETITIONER
18



PRAYER



WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED
AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HONORABLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:


1. THAT THE OFFER AND ACCEPTANCE BETWEEN THE PLAINTIFF AND
THE DEFENDANT WAS VALID AND THEREFORE IT IS A VALID CONTRACT
UNDER THE INDIAN CONTRACT ACT, 1872.
2. THAT THE REVOCATION OF OFFER DONE BY THE DEFENDANT WAS NOT
VALID AS PER PROVISIONS OF THE INDIAN CONTRACT ACT, 1872
THEREFORE THE CONTRACT CANNOT BE REVOKED.
3. THAT THERE WAS BREACH OF CONTRACT ON PART OF DEFENDANT AND
THE PLAINTIFF IS ENTITLED TO GET DAMAGES OR AN ORDER SHOULD BE
PASSED AGAINST THE DEFENDANT TO FULFIL HIS PART OF OBLIGATION.


AND/OR

PASS ANY SUCH ORDER, WRIT OR DIRECTION AS THE HONORABLE
COURT DEEMS FIT AND PROPER, FOR THIS THE PLANTIFF SHALL DUTY BOUND
PRAY.










COUNSEL FOR THE PETITIONER