INTERNAL AMITY LAW SCHOOL MOOT COURT COMPETITION, 2011

Internal Amity Law School Moot Court Competition, 2011Honble High Court Of DelhiAt New DelhiBest Deals Estate Agency Plaintiffv.Mr. Abhishek Bach DefendantMemorial for PlaintiffTable of ContentsiTable of Contents

Table of Abbreviations...iiviiiIndex of Authorities

viiiCases

viiiStatutes

viiiArticles

xStatement of Jurisdiction

xiQuestions Presented

xiiStatement of Facts

14Summary of Arguments

16Arguments Advanced

23Conclusion and Prayer for Relief

Table of Abbreviations

/ - Paragraph(s)

/S./ss.- Section(s)

A.C. Appeal Cases

AIR- All India Reporter

All ER All England Law Reports

Am. Rev. Intl. Arb. American Review of International ArbitrationAnr. Another

Art.- Article

Cal. Calcutta

CD Compact Disk

CEO - Chief Executive Officer

Ch. (20)

Cir. Circuit

Co. - Company

Com. - Commercial

Corp. - Corporation

ed./eds. Editior(s)

edn. edition

ER English Reports

EULA - End User License Agreement

EWCA Civ. - England and Wales Court of Appeals (Civil)

EWHC England and Wales High Court

F.2d Federal Reporter, 2nd series

F.3d - Federal Reporter, 3rd series

Ibid Ibidem

Inc. - Incorporated

Intl. Arb. L. Rev. International Arbitration Law ReviewKer Kerala

Ltd.- Limited

Mad. Madras

No. - Number

Ors. Others

PC Privy Council

pp. Pages

Pvt. - Private

QB Queens Bench

Rep. - Reprint

SC Supreme Court

SCC Supreme Court Cases

Sd/- - Signed

SLR Singapore Law Reports

SLT Scot Law Times

Supp. - Supplement

UKHL United Kingdom House of Lords

UNCITRAL - United Nations Commission on International Trade Law

Univ. Miami L. Rev. University Miami Law ReviewUP Uttar Pradesh

USA/US United States of America

v. - Versus

Index of Authorities

Table of Cases

S.noCase Citation

1Shri Sant Singh v. Shri K.G. RingshiaCS (OS) No. 2011/1984 decided on 24th May, 2010

2Anand Bazar Patrika Ltd. v. Biswanath Prasad MaitinAIR 1986 Pat 57

3Premchand Roychand v. Moti Lal52 Bom LR 643

4Dhanraj Mills Ltd. v. Narsingh Prasad BadonaAIR 1949 Pat 270

5Firm Kanhaiyalal v. DineshchandraAIR 1959 MP 234

6Baroda Oil Cakes Traders v. Parshottam Narayandas BaguliaAIR 1954 Bom 491

7 Executive Engineer, Sundergarh v. M.P. SahuAIR 1990 Orrisa 26

8Harris v. Nickerson

(1873) L.R. 8 Q.B. 286

9Bhagwandas v. Girdharlal & CompanyAIR 1966 SC 543 : (1966) 1 SCR 656

10Entores Ltd. v. Miles Far East Corporation(1955) 2 QB 327

11Kilburn Engineering Ltd. v. Oil and Natural Gas Corporation LtdAIR 2000 Bom 405

12Ouseph Varghese v. Joseph Aley

C.A 1782 of 1966 (S.C) decided 18.08.1969; (1969) 2 S.C.C. 539

13Bhopal Singh v. Chatter Singh

AIR 2000 P&H 34

14Narayan Nagorao v. Amrit Haribhau

1957 A.B. 241

15Central London Properties Ltd. v. High Trees House Ltd[1947] K.B. 130

16M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh

(1979) A.SC. 621, 649

TOA \h \c "2" StatutesCode of Civil Procedure, 1908Indian Contract Act, 1872

Delhi High Court Act, 1966

Indian Evidence Act, 1872

Articles

Seana Valentine Shiffrin, Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007)Peter Linzer, On the Amorality of Contract Remedies Efficacy, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981)

Richard R.W. Brooks, The Efficient Performance Hypothesis, 116 Yale L.J. 568 (2006)Books

Pollock and Mulla by J.K Kapur, Indian Contract Act and Specific Relief Acts, N.M Tripathi Pvt. Ltd. 10th Edition, 1986Dictionaries Referred Blacks Law Dictionary, 6th Ed., Centennial Ed. 1891-1991

Statement of Jurisdiction

Best Deals Estate Agency, the Plaintiff in the instant case, has the honor to submit this Memorial before the Honble High Court of Delhi, in pursuance of sub article (2) of Article 226 of the Constitution of India and further sub-section (d) of Section 16 of the Code of Civil Procedure, 1908 and furtherance of sub-section (2) of Section 5 of Delhi High Court Act, 1966.Questions Presented

The following questions have been presented before the Honble court for its determination:

1) Whether the Honble High Court of Delhi has jurisdiction over the instant matter?

2) Whether the agreement is a valid agreement amounting to contract?

2.1 Whether the agreement exists for both apartments or not.

3) Whether the contract is enforceable in accordance with Indian Laws?

3.1 Does doctrine of promissory estoppel apply.Statement of Facts

I

That Mr. Sachin Kumble is sole proprietor of Best Deals Estate Agency [hereinafter Plaintiff] which has its headquarters at New Delhi. Mr. Abhishek Bach [hereinafter Defendant] is a prominent actor who appeared in several films. He permanently resides in Mumbai.

II

That the Plaintiff developed a marketing strategy under which, they inaugurated their website www.best-deals.com, which gave discounts, benefits and privileges to its members.

III

That defendant likes two apartments on the plaintiffs website, one at Greater Kailash- 1 [hereinafter GK- 1], and other at Civil Lines. The defendant emails the plaintiff for apartment at GK-1.IV

That the defendant calls the plaintiff, signifying his intent to buy apartment(s). Mr. Munna negotiates the price for the plaintiff. Mr. Munna puts forward an offer of 30, 00, 000(Rupees Thirty Lacs) for apartment at GK- 1 to the defendant, to which the defendant agrees. However, the defendant later adds his intent to buy the apartment at Civil Lines. But there is no reply from the plaintiff.

V

That during a marketing exercise the plaintiff sends out customary greetings for Independence Day, and a free membership card which entitles members to Holiday Clubs outside Delhi. The plaintiff received such membership

VI

That Defendant flew to Delhi to make two payments towards sale of apartments on August 17, 2011. The plaintiff informs him that he can make the payment for apartment at GK- 1, but there is no contract between the plaintiff and the defendant for the Civil Lines apartment.

VIIThat on August 20, 2011 an earthquake strikes Delhi. The apartment at GK- 1 incurs structural damage. The defendant continues to use the membership card sent by the plaintiff.

VIII

That on August 23, 2011 the plaintiff demands payment of 30, 00, 000 towards sale of apartment in GK- 1. The defendant refuses to pay stating that he would either take both the apartments or none

IX

That plaintiff institutes a civil suit against the defendant before Honble High Court of Delhi. The defendant denies existence of contract for sale of apartment in GK- 1, and claims inter alia that contract was for sale of two apartments. He further claims cost.

Summary of Arguments

1) Whether the Honble High Court of Delhi has jurisdiction over the instant matter?

It is submiited that The Honble High Court of Delhi has territorial jurisdiction in the matter, as the actio ex delicto rises in Delhi. The immovable property owning to its worth falls under the ambit of pecuniary jurisdiction satisfying the sub-section (2) of Section 5 of Delhi High Court Act, 1966. Thus, High Court of Delhi has inherent jurisdiction to entertain, deal with and decide the suit. 2) Whether the agreement is a valid agreement amounting to contract? 2.1) Whether the agreement exists for both apartments or not.

In accordance with S. 4 of Indian Contract Act, 1872, there are two stages for a valid communication of proposal. The communication of the proposal is the first stage. Such knowledge coming to the acceptor is the second stage. Here the email doesnt amount to an agreement, as the email, though, did enter in to the computer resource of the plaintiff; it never came into the knowledge of plaintiff. The telephonic conversation between the plaintiff and the defendant concluded only for apartment at GK-1, for the defendant agreed to purchase the property after series of negotiation with the representative of the plaintiff. However, the defendant also signified his intent to purchase the property at Civil Lines to which he heard no reply. Therefore, its contended by the plaintiff, that the contract was complete for GK-1 apartment however, there was no contract established for apartment at Civil Lines.

3) Whether the contract is enforceable in accordance with Indian Laws?

The contact thus established under the canon of equity should be specifically enforced, as the plaintiff was ready and willing to perform his part of the contract. In light of equity it therefore follows that the Honble court through res ipsa loquitur see the intention of the plaintiff who bought the house from the previous owner, and was ready to hand over possession of the same to the defendant. Hence the plaintiff is entitled to claim specific performance by the virtue of there conduct.3.1 Does doctrine of promissory estoppel apply.

Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, or by his own deed, acts, or representations, either express or implied. Here the defendant permitted the plaintiff to believe a thing to be true, that he was willing to purchase the apartment by contracting for the GK-1 apartment and also continuous availing of the benefits of the membership card, even though according to the defendant some anomalies arose. Here, the plaintiff did act upon such belief and promissory estoppel bars the defendant to deny any existence of such contractArguments Advanced

1) Whether the Honble High Court of Delhi has jurisdiction over the instant matter?1.1 Section 16 of Code of Civil Procedure recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situated has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment1. 1.2 It is humbly submitted to the Honble Court of Delhi, in Anand Bazar Patrika Ltd. v. Biswanath Prasad Maitin2 it was held that the case was covered by Clause (d) of Section 16 of the Code of Civil Procedure, the Proviso had no application and since the property was situated at Dhulia, Subordinate Judge, Dhulia had jurisdiction to entertain and try the suit. 1.3 Since the suit was for specific performance of agreement and possession of immovable property situated in the jurisdiction of High Court of Delhi, it is deemed fit that Delhi High Court clearly posses the jurisdiction to try the suit. It is, therefore, covered by the main part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary provision) would apply and hence High Court of Delhi has inherent jurisdiction to entertain, deal with and decide the cause.______________________________________

1 Shri Sant Singh v. Shri K.G. Ringshia, CS (OS) No. 2011/1984 decided on 24th May, 20102 AIR 1986 Pat 57

1.4 It is humbly submitted, that in perusal of the Article 226(2) as stated below:

The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

This High Court has the adequate jurisdiction to try the suit as actio ex delicto rises in Delhi. 1.5 In pursuance of sub-section (2) of Section 5 of Delhi High Court Act, 1966 which as follows: suits the value of which exceeds the above amount(twenty lacs), this High Court will be the principal Civil Court of original jurisdiction.It humbly submitted that this Honble Court is court of original jurisdiction, fulfilling the territorial and pecuniary qualifications.2) Whether the agreement is a valid agreement amounting to contract?2.1 It is submitted that a proposal (regardless of the mode of communication) is made not at the place where it emanates but where it is received3. This is because a proposal is not complete unless and until it comes to the knowledge of the person to whom it is made4. 2.2 It is therefore submitted in the instant case that the act of defendant sending an email signifying his intent on purchasing the apartment at GK-1, (to which the defendant received an automated email appreciating his interest in services provided by the plaintiffs agency) does not amount to contract as it was an invitation to offer, and not an offer per se. Nobody is bound by such an offer5. Email(here) does not amount to an agreement. The defendant after receiving no response from the plaintiff calls the plaintiff. Hence establishes a contract. ___________________________________3 Premchand Roychand v. Moti Lal, 52 Bom LR 643; Dhanraj Mills Ltd. v. Narsingh Prasad Badona, AIR 1949 Pat 2704 Firm Kanhaiyalal v. Dineshchandra, AIR 1959 MP 234; Baroda Oil Cakes Traders v. Parshottam Narayandas Bagulia, AIR 1954 Bom 491

5 Executive Engineer, Sundergarh v. M.P. Sahu, AIR 1990 Orrisa 26; Harris v. Nickerson (1873) L.R. 8 Q.B. 286

2.1.1) Whether the agreement exists for both apartments or not.

2.1.2 The Honble Supreme Court in Bhagwandas v. Girdharlal & Company6 held that the acceptance on the phone, if drowned by noise of a flying aircraft or is spoken into a telephone after the line has gone down dead or is so indistinct that the proposer does not hear it, or the telex machine has gone out of order, there is no contract7.

2.1.3 The onus is on the acceptor to ensure that the acceptance is audible, heard and understood by the offeror8 the reason being that the acceptance should be absolute and unconditional which in turn requires that it should not be based on any mistake and misrepresentation.

2.1.4 In Kilburn Engineering Ltd. v. Oil and Natural Gas Corporation Ltd9., the Honble High Court observed that the cardinal principle in light of S. 7 of the Indian Contract Act, 1872 (acceptance must be absolute and unqualified) that the offer and acceptance of an offer must be absolute without giving any room of doubt. It is well settled that the offer must be based or founded on three components- Certainty, commitment and communication. If any of the three components is lacking there cannot be said to be a valid contract in the eyes of law.2.1.5 In the instant matter, the agreement between the plaintiff and the defendant came into its being by means of a telephonic conversation. Communication by phone or telex would fall under oral offer and acceptance. Here, Mr. Bach and Mr. Munna negotiated and settled the price for GK-1 apartment at Rs 30, 00, 000 through a telephonic conversation.____________________________________6 AIR 1966 SC 543 : (1966) 1 SCR 656

7 Entores Ltd. v. Miles Far East Corporation, (1955) 2 QB 327; Firm Kanhaiyalal v. Dineshchandra, AIR 1959 MP 234

8 Firm Kanhaiyalal v. Dineshchandra, AIR 1959 MP 234; Bhagwandas v. Girdharlal & Company, AIR 1966 SC 453 at 550, Para 14 :(1966) 1 SCR 6569 AIR 2000 Bom 405 However, later Mr. Bach signified his intent to buy the Civil Lines apartment as well, but he heard no reply from Mr. Munna- the mobile presumably out of network coverage.

2.1.6 The position under S. 4 is clear beyond doubt. A proposal which is made becomes complete only when its communication comes to the knowledge of the person to whom it is made. In other words, unless the proposal is communicated to the person to whom it is made, it is not complete, and in that sense is inchoate and inconclusive. If that be the position, the proposal can be said to have been made by the defendant to the plaintiff only when it comes to the knowledge of the plaintiff.2.1.7 Consequently, the agreement between the plaintiff and the defendant is an agreement amounting to contract for GK- 1 apartment, and not for Civil Lines apartment.

3) Whether the contract is enforceable in accordance with Indian Laws?3.1) The Supreme Court has held that in a suit for specific performance the plaintiff must set out the agreement which the defendant has refused to do so10.3.2) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. The efficient breach hypothesis supposes that the promisor has the legal right--not merely the power--to choose to perform or pay damages. That right belongs to the promisee under the efficient performance hypothesis. Holmess famous claim that a promise imposes an obligation on the promisor to choose whether to perform or pay damages.____________________________________

10Ouseph Varghese v. Joseph Aley C.A 1782 of 1966 (S.C) decided 18.08.1969; (1969) 2 S.C.C. 539

In Holmess view, a promise to do X is interpreted, by default, as a promise to do X or pay damages11. It is settled canon of law that equity follows the law. Equity would tilt in favour of law and not against violation thereof. To claim equity, the petitioner must explain previous conduct12.

3.3) The plaintiff must plead that he has been ready and willing to specifically perform his part of the agreement. In the absence of this allegation the suit is not maintainable. And before a decree for specific performance can be given he must prove his readiness and willingness to perform his part13. The plaintiff without expressly alleging readiness and willingness to perform his part of the contract referred to the notice which he clearly said so. He also made a grievance of the defendant not executing the sales deed. He was held entitled to claim specific performance14.

3.4) Here the plaintiff had the pre-requisite readiness and willingness to perform the contract. The plaintiff bought the house from the previous owner, and was ready to hand over possession of the same to the defendant signifying the plaintiffs clear intention in selling the property. Hence the plaintiff is entitled to claim specific performance by the virtue of there conduct. 3.1.1) Does doctrine of promissory estoppel apply.

3.1.2) Promissory estoppel is the doctrine that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it.____________________________________

12Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.

13Ouseph Varghese v. Joseph Aley C.A 1782 of 1966 (S.C) decided 18.08.1969; (1969) 2 S.C.C. 539 14 Narayan Nagorao v. Amrit Haribhau 1957 A.B. 2413.1.3) This principle of equity made sporadic appearances but it was only in 1947 that it was restated as a recognized doctrine by Lord Denning in Central London Properties Ltd. v. High Trees House Ltd.15, who asserted:A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding.Lord Denning has extrajudically suggested that where there is a deliberate promise which is intended to affect legal relations, it would be inequitable to hold that the promissor is not bound when the promisee has acted upon such promise.

3.1.4) The Supreme Court has observed that the doctrine of promissory estoppel is a principle evolved by equity to avoid injustice and though commonly named promissory estoppel it is neither in the realm of contract nor in realm of estoppel, but it is a doctrine evolved by equity in order to prevent injustice where promise is made by a person knowing that it would be acted upon by the person to whom it is made and in fact it is so acted upon and it is inequitable to allow the party making the promise to go back and act upon it16. Further, S. 115 of Indian Evidence Act, 1872 states:

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.3.1.5) It is humbly submitted in the case, that deliberate promise was made between the defendant and the plaintiff. And, plaintiff on acted upon such promise by purchasing the apartment at GK-1. If, now, the defendant rescinds the contract it would be inequitable and would be in direct violation of the rule of equitable estoppel.

____________________________________

15 [1947] K.B. 13016 M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh (1979) A.SC. 621, 649

Futher, Verba chartarum fortius accipiuntur contra preferentem, i.e the words of deeds are to be interpreted most strongly against him who uses them. The plaintiff, even after alleging that he would buy both the apartments or none continued to use the membership card sent by the plaintiff, which furthers the cause of the defendant. Conclusion and Prayer for ReliefIn light of the facts of the case, issues raised and arguments advanced, Counsel for Plaintiff respectfully requests this Honble High Court may graciously be pleased to:1) Affirm the contract thus established between Defendant and Plaintiff, is only for apartment at GK-1.

2) Affirm the contract is to be specifically enforced

3) Pass any orders that this Honble Court deems appropriate in the interest of equity and good conscience.

And hence render justice. All of which is respectfully affirmed and submittedNEW DELHICounsel for Plaintiff