Before The District Court of Delhi at Delhi: (Under Section 9 of Code of Civil Procedure, 1908)

TEAM CODE: TC-33
ALL INDIA USLLS FIRST YEAR STUDENTS MOOT COURT COMPETITION, 2016
BEFORE THE DISTRICT COURT OF DELHI

AT DELHI
(Under Section 9 of Code of Civil Procedure, 1908)
Civil Suit No. :______ / 2016
IN THE MATTER OF
Mr. Khalbali Plaintiff
Versus
Ms. Sansani Defendant
MEMORIAL ON THE BEHALF OF THE PLAINTIFF
Drawn and filed by the Counsel for the Plaintiff

TABLE OF CONTENTS
LIST OF ABBREVATIONS 3
INDEX OF AUTHORITIES 5
STATE OF JURISDICTION 9
STATEMENT OF FACTS 10
STATEMENTS OF ISSUES 12
SUMMARY OF ARGUMENTS 13
ARGUMENTS ADVANCED 14-27
ISSUE 1: THAT THERE IS CONTRACT BETWEEN THE PLAINTIFF AND THE

DEFENDANT
1.1: That the Construction of Swimming Pool and Party House is Necessary for the
Defendant 14
1.2: Recommendation of the Law Commission 17
1.3: That the Defendant is Liable to Contract under Section 65 of the Indian Contract Act,
1872 18
ISSUE 2: THAT THE DEFENDANT IS BOUND TO RESTORE THE BENEFITS TO THE

PLAINTIFF
2.1: Recommendation of the Law Commission 20
2.2: That the Defendant is Liable to Restore Benefits under Section 33 of the Specific
Relief Act, 1963 23
2.3: That the Defendant is Liable to Restore the Benefits under Section 65 of the Indian
Contract Act, 1872 26
PRAYER 28
Memorial on the Behalf of Plaintiff Page 2

LIST OF ABBREVIATIONS
Abbreviations Full Form
& And
Rupees
Paragraph
AIR All India Reporter
All Allahabad
Anr Another
Bom Bombay
Cal Calcutta
CJ Chief Justice
Exch Exchequer Reports (England)
Honble Honourable
i.e. That is
ILR Indian Law Reporter
J Justice
KB Kings Bench
Kant Karnataka
Ker Kerala
LR Law reporter

Abbreviations Full Form
Lah Lahore
Meeson & Welsby's Exchequer Reports
M&W
(England and Wales)
MP Madhya Pradesh
Mad Madras
Mr. Mister
Ms. Miss
Nag Nagpur
No. Number
Ors Others
PC Privy Council
Pg Page
QB Queens Bench
QBD Queens Bench Division
SCC Supreme Court Cases
Sr. Serial
v. Versus
Viz. Namely
Vol Volume

INDEX OF AUTHORITIES
I. STATUTES:
Sr. No Statutes
1 Indian Contract Act, 1872
2 Special Relief Act, 1963
3 Indian Majority Act, 1875
4 Civil Procedure Code, 1908
II. CASES:
Sr.
Cases Citations Page No.
No.
Abdul Majid Said and Ors v. Ramiza
1 AIR 1931 MAD 468 25
Bivi Sahiba and Ors
2 Anagha Prassad v. M.C Abu ILR (2014) 4 Kerala 175 18
3 Chapple v. Copper (1844) 13 M&W 252 14
4 Dyaviah and Anr v. Shivamma and Anr AIR 1959 Kant 188 26
Govind Keshav Dandavate v. Yeshwant

5 AIR 1941 Bom 378 26
Pandharinath Shete
Jagon Ram Marwari v. Mahadeo
6 (1909) ILR 36 CAL 768 14
Prasad Sahu
7 Jenner v. Walker (1868) 19 L T N S 398 16

Sr.
No.
ILR (1928) 9 Lah 701,
8 Khan Gul v. Lakha Singh 21
715-19
Kunwarlal Daryavsingh v. Surajmal
9 AIR 1963 MP 58 16
Makhanlal
10 Pearce v. Brain (1929) 2 KB 310 25
11 Madura Municiplality v. Raman Servai AIR 1936 Mad 98 26
(1902-03) 30 IA 114: ILR

12 Mohori Bibee v. Dhurmodas Ghose 20
(1903) 30
Mt. Hamidan Bibi v. Nanhe Mal and
13 AIR 1933 All 371 25
Anr
14 Nardan Prasad v. Ajudhia Prasad (1910) ILR 32 ALL 325 19
Nivarti Govind Ingale and Ors v.

15 (1997) 1 SCC 475 24
Revanagouda Bhimanagouda Patil
16 Peters v. Fleming (1840) 6 M. & W. 42 15
Ram Nagina Singh v. Governor

17 AIR 1952 Cal 306 27
General in Council
(1868) L.R. 3 Exch
18 Ryder v. Woombell 15
90:Exch. 32
Sadasheo Balaji v. Firm Hiralal
19 AIR 1938 NAG 65 15
Ramgopal

Sr.
No.
Thakurian Harnath Kaur v. Thakur
20 AIR 1922 PC 403 27
Indar Bahadur
21 Valentini v. Canali [1889] 24 QBD 166 20
22 Varghese v. Iype Kuriakose and Ors AIR 1973 Ker 267 25
23 Walidad Khan v. Janak Singh ILR 35 All 370 27
24 Walter v. Everard ILR 35 All 370 16
25 Watkins v. Dhunoo Baboo (1881) ILR 7 CAL 140 19
III. REFERENCE BOOKS:
Sr. No. Books
Pollock & Mulla; The Indian Contract and Specific Relief Acts,
1
Vol I; 14th Edition; 2013
Pollock & Mulla; The Indian Contract and Specific Relief Acts,
2
Vol II; 14th Edition; 2013
3 Singh, Avtar; Contract and Specific Relief; 11th Edition; 2013
4 Justice P.S. Narayan; Law of Specific Relief; 7th Edition; 2010
5 Mulla; The Code of Civil Procedure,Vol I;18th Edition; 2011

IV. REPORTS
Sr. No. Reports
1 Law Commission of India; 13th Report; 1958
V. RESEARCH DATABASE:
Sr. No Research Database
1 http://www.manupatrafast.com/
2 http://www.scconline.com/
3 http://www.westlawindia.com/
4 http://home.heinonline.org/

STATEMENT OF JURISDICTION
The Counsel on the behalf of the Plaintiff most humbly and respectfully submits to the
jurisdiction of the District Court of Delhi under Section 91of the Civil Procedure Code, 1908.
1
Sec 9 of Civil Procedure Code, 1908: 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.
STATEMENT OF FACTS
Ms. Sansani, the defendant, was a renowned film star of sixteen years and wanted to construct a
small party house and swimming pool in her back garden. She put out a tender for the same,
misrepresenting herself to be a major and accepted the offer of Mr. Khalbali, a building
contractor and the plaintiff, to do the work for 5 lakhs.
Both of them though knowing that the sum was unrealistically low, agreed that the amount shall
be paid in installments, in order of the completion of different phases of the work.
The plaintiff completed the party house and began construction of the swimming pool but ran out
of money and materials for further construction. He informed the defendant that construction
could not be completed unless further capital was made available.
II
The defendant was desperate to have the pool completed as stipulated because she had arranged
a poolside party and invited top film directors, hoping to win new leading roles. So the
defendant, requested for the continuance of the construction and further asked the plaintiff to
spend the remaining amount of 3 lakhs out of his own pocket, which she would return once her
next contract was secured.
The plaintiff agreed to her request, the pool was completed and her party was a success. Due to
this, she was awarded the starring role in the new movie named Tu Kaun Mein Khaamakhaan.

III
After this the plaintiff started a new project and was assured by the defendant that he would get
his money back. But the defendants movie was a complete flop and she found herself unable to
pay the amount of 3 lakhs to the plaintiff.
Upon this, the plaintiff compelled the defendant to render a dance performance in his party, in
which he had invited some rich people in in order to secure contracts regarding building
construction. He agreed to release the defendant from her debt of 3 lakhs in return of the
performance. The defendant agreed for the performance. But before the party, she suffered from
sprain due to over repetition of rehearsals and was advised not to perform by her doctor.
IV
On the defendants eighteenth birthday, both the parties decided to alter the contract, on the
ground of humanity. The defendant acknowledged the debt taken from the plaintiff for rendering
the past services and agreed to pay the debt through easy monthly installments (EMIs) of
10,000/- per month till the repayment of the amount of 3 lakhs.
The defendant upon inspection later felt the work done by the plaintiff was not performed as she
had specified. The materials used for the construction were not of the right kind and she
estimated that it would only cost her 3.5 lakhs.
The defendant then decided to dispose-off her property at the price of 9 lakhs, and not give the
plaintiff a single rupee. Upon the knowledge of this, the plaintiff pressurized the defendant to
recover his 3 lakhs which he had spent and also gave her a notice in this regard. But even after
it the defendant defaulted in the payment and hence this suit.

STATEMENT OF ISSUES
ISSUE 1: WHETHER THERE WAS A CONTRACT BETWEEN THE PLAINTIFF AND THE
DEFENDANT?
ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

BENEFITS?

SUMMARY OF ARGUMENTS
ISSUE 1: THAT THERE WAS A CONTRACT BETWEEN THE PLAINTIFF AND THE
DEFENDANT?
It is humbly submitted before this Court that there is a contract between the Plaintiff and the
Defendant, as it was a contract of necessity and a minor is entitled to the contract for the
necessaries supplied to him under Section 68 of the Indian Contract Act, 1872.
ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

BENEFITS?
It is humbly submitted before this court that the Defendant is liable to restore the benefits gained
by him from the agreement under-
1. Section 33(2)(b) of the Specific Relief Act, 1963; and

2. Section 65 of the Indian Contract Act, 1872

ARGUMENTS ADVANCED
ISSUE 1: THAT THERE IS A CONTRACT BETWEEN THE PLAINTIFF AND

DEFENDANT
It is most humbly and respectfully submitted before this Court that the contract between plaintiff
and defendant for the construction of swimming pool and party house is a valid contract on the
ground of necessity supplied to the defendant.
1.1. THAT THE CONSTRUCTION OF SWIMMING POOL AND PARTY HOUSE IS A NECESSITY FOR THE
DEFENDANT
In the current matter, the construction of swimming pool and party house was a necessity for the
defendant.
In the case of Jagon Ram Marwari v. Mahadeo Prasad Sahu2, Justice MOOKERJEE and Justice
CARNDUFF stated that:
the term necessaries include everything necessary to maintain an incompetent person in

the state, station, or degree of life in which he is, and what is necessary is a relative fact to
determine with reference to the fortune and circumstances of a particular infant. There is
no definition of the term "necessaries" in the Indian Contract Act, 1872.
In the landmark case of Chapple v. Copper3, a very illustrative statement of the meaning of the
term necessaries was laid by ALDERSON B:
Things necessary are those without which an individual cannot reasonably exist. In the
first place, food, raiment, lodging and the like. About these there is no doubt. Again, as the
proper cultivation of mind is as expedient as the support of the body, instruction in art or
trade, or intellectual, moral and religious education may be necessary also.
2
(1909) ILR 36 CAL 768
3
(1844) 13 M&W 252
.Then the classes being established, the subject and the extent of the contract may vary
according to the state and condition of the infant himself. His clothes may be fine or coarse
according to his rank; his education may vary according to the station he is to fill; and the
medicines will depend on the illness with which he is afflicted, and the extent of his
probable means when of full age .But in all these cases it must first be made out that the
class itself is one in which the things furnished are essential to the existence and of
reasonable advantage and comfort of the infant contractor. Thus articles of mere luxury
are always excluded, though luxurious articles of utility are in some cases allowed.
The term necessaries are also not confined to goods. It includes other things such as good
teachings and instruction, and the money enabling an incompetent person to procure these4.
It was ruled by BARON PARKE J in Peters v. Fleming5 that:
from the earliest time down to the present, the word 'necessaries' is not confined in its
strict sense to such articles as were necessary to support life, but extended to articles fit to
maintain the particular person in the state, degree and station in life in which he is and
therefore we must not take the word 'necessaries' in its unqualified sense but with the
qualification as above pointed out.
This definition was adopted by the Exchequer Chamber in Ryder v. Woombell6, which stated
that:
The rule of law is clearly established that an infant is generally incapable of binding
himself by a contract that to this rule, there is an exception introduced not for the benefit of
the tradesman who may trust the infant, but for that of the infant himself, that this exception
is that he may make a contract for necessaries.
4
Pollock and Mulla , Vol.II, Pg no.1047, 2, Sadasheo Balaji v. Firm Hiralal Ramgopal , AIR 1938 NAG 65
5
(1840) 6 M. & W. 42
6
(1868) L.R. 3 Exch 90: 4 Exch. 32
In the case of Walter v. Everard7, it was concisely observed that:
The term "necessaries" means goods suitable to the condition in life of the defendant and
to his actual requirements at the time of the sale and delivery, and whether an article
supplied to an infant is necessary or not, depends upon its general character and upon its
suitability to the particular infant's means and station in life. It was further observed that
as "necessaries" include everything necessary to maintain the infant in the state, station, or
degree of life in which he is, what is necessary is a relative fact, to be determined with
reference to the fortune and circumstances of the particular infant; articles therefore that
to one person might be mere conveniences or matters of taste, may in the case of another
be considered necessaries, where the usages of society render them proper for a person in
the rank of life in which the infant moves. The infant's need of things may also sometimes
depend upon the peculiar circumstances under which they are purchased and the use to
which they are put. For instance, articles purchased by an infant for his wedding may be
deemed necessary, while under ordinary circumstances the same articles might not be so
considered.
In the case of Jenner v. Walker8, it was ruled that wedding presents for the bride of the infant
may be termed as necessaries.
In the case of Kunwarlal Daryavsingh v. Surajmal Makhanlal9, the defendant was living as a
tenant in the plaintiff house for rent of 15 but later on the defendant refused to pay the amount
and resisted on the ground that the agreement with a minor is void, but it was held that the
agreement is not void as it comes under the purview of necessity.
Similarly in the in the current matter, as the facts suggest the defendant had 5 lakhs only, which
she decided to invest in the construction of a swimming pool and a small party house to organize
a party for the top filmmakers in order to secure the film contracts. The defendant being an
7
[1891] 2 Q.B. 369
8
(1868) 19 L T N S 398
9
AIR 1963 MP 58.
actress, securing contracts was a major requirement for the defendant so as to sustain her career
and means of livelihood. As renowned film makers and directors were invited to the party, a
rather lavish party would increase the probability of securing a contract of employment which
was beneficial as well as necessary for her. This is where the construction of swimming pool and
small party house became a necessity for the defendant.
Hence, it is clearly established that the construction of the swimming pool and the small party is
a necessity for the defendant.
1.2. RECOMMENDATION OF THE LAW COMMISSION OF INDIA
In the thirteenth report of Law Commission of India10, the commission was suggested to provide
a statutory definition the term necessaries. The commission gave its opinion that-
The Director of Legal Studies, Madras, has suggested that the word necessaries should
be defined. But the word has been judicially interpreted on a number of occasions and it is
not necessary to give a statuary definition thereof. The word necessaries has been held to
include money urgently needed for the requirements of minors and lunatics and is not
restricted to what is necessary for elementary requirements, such as, food and clothing. It
is now well established that payments or charges connected with legal matters in which
minors are concerned would, under certain circumstances, come under the head of
necessaries. We think this term should remain elastic and we are unable to accept the
suggestion.
Thus, there is no precise definition of the term necessity provided in the Indian Contract Ac, and
can be interpreted for the betterment of the parties in the light of equity and justice.
10
The Law commission of India, Thirteenth Report, 89
1.3. THAT THE DEFENDANT IS LIABLE TO REIMBURSE THE PLAINTIFF AS PER SECTION 68 OF THE
INDIAN CONTRACT ACT, 1872
Section 6811 of the Indian Contract Act, 1872 clearly states that if a minor is supplied with
necessities, then the minor is liable to reimburse that person with his property.
In the recent case of Anagha Prassad v. M.C Abu12, where the plaintiff, who was minor,
borrowed a sum of 2.5 lakhs from the respondent for her education and assured the respondent
that she will return the money when she will get the education loan, later on both the parties
entered into an agreement and the plaintiff acknowledged the debt and stated that she had got the
education loan and also gave 10,000 to the respondent and further give three cheques to the
respondent. But later on it was found that there was no money in the account of the minor.
Kerala High Court while adjudging this case concluded that:
The principle underlying in the Section is that where a person incapable of entering into a
contract (it includes a minor also) or any other person whom he is legally bound to support, is
supplied by another person with necessaries, the supplier is entitled to be reimbursed out of the
property or estate of the incapable person. The liability here is not to pay the agreed price, but to
reimburse. In the case of a minor, he is not personally liable, but his property will be liable.
The Section applies to minors and also to persons of unsound mind. That is evident from the
illustrations given to the Section. It is therefore clear that the Section will not apply where
necessaries have been supplied to someone, who is a person competent to contract. Even though
by virtue of the section it can be contended that the petitioner's liability to reimburse the 1st
Respondent may be enforced against her property.
11
Sec 68 of Indian Contract Act, 1872: Claim for necessaries supplied to person incapable of contracting, or on his
account-
If a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by
another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled
to be reimbursed from the property of such incapable person.
12
ILR 2014(4)Kerala175
Thus from the above stated interpretation it is clear that the minor is liable to reimburse the
person who supplied the minor with the necessities.
In the case of Watkins v. Dhunoo Baboo13, the plaintiff, a high court attorney brought a suit
against the defendant, a minor for the payment of debt of 1,469 for defending a suit for the
defendant. It was held that the minor is liable to reimburse the plaintiff as this debt come under
the purview of necessity.
In the case of Nardan Prasad v. Ajudhia Prasad14, it was held that the money advanced to a
minor for marriage of his sister is recoverable under Section 6815 of the Indian Contract Act,
1872.
In the above mentioned case, the Honble Court expressed that even the expenses for a marriage
can come into the purview of necessity. While, in the present matter the defendant entered into
the agreement in order to ensure her means of livelihood and to sustain her own life, which hold
a great significance in her life. Thus the present matter should be considered as a necessities
supplied to the defendant by the plaintiff and hence the plaintiff is entitled for the reimbursement
of the expenses incurred by him.
13
(1881) ILR 7 CAL 140
14
(1910) ILR 32 ALL 325
15
Supra at note 11
ISSUE 2: THAT THE DEFENDANT IS BOUND TO RESTORE THE BENEFITS TO THE

PLAINTIFF
It is humbly and respectfully submitted before the Court that the defendant is bound to restore
the benefits to the plaintiff in the matter.
Section 1116 of the Indian Contract Act, 1872 states that a person who has not attained the age of
majority17 is incompetent to contract and an agreement so formed is void ab initio18. In the suit
filed the defendant was of the age sixteen (16) years at the time of contract and so was a minor
and thus making the agreement void.
In a transaction between a major and a minor, where the minor seeks unfairly to retain the benefit
under the transaction while setting up its invalidity (and particularly in the case of a minor
fraudulently misrepresenting his age) the English courts have not allowed the minor to retain the
unfair advantage under equity.19
2.1. RECOMMENDATION OF THE LAW COMMISSION OF INDIA
In the thirteenth report of Law Commission of India20 the question was raised as to how far in the
case of a minors agreement procured by the concealment of his age, the Court will relieve the
other party to the agreement from the effects of the fraud.
16
Sec 11 of Indian Contract Act, 1872: Who are competent to contract
Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and
who is of sound mind and is not disqualified from contracting by any law to which he is subject.
17
Sec 3 of Indian Majority Act, 1875: Age of majority of persons domiciled in India.
(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and
not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall
be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.
18
Mohori Bibee v. Dhurmodas Ghose, (1902-03) 30 IA 114: ILR (1903) 30, where the contracts with minors were
declared void ab initio.
19
Valentini v. Canali, [1889] 24 QBD 166
20
The Law commission of India, Thirteenth Report, 35-37
The landmark case of Khan Gul v. Lakha Singh21 was examined for this matter and two
questions in the case were referred to for decision:
1. Whether a minor who, falsely representing himself to be a major, has induced a person to
enter into a contract, is estopped from pleading his minority to avoid the contract?
2. Whether a party who, when a minor has entered into a contract by means of a false
representation as to his age, whether he be defendant or plaintiff, in a subsequent
litigation, refuse to perform the contract and at the same time retain the benefit he may
have derived therefrom?
Sir SHADI LAL CJ giving the majority judgment held in this case-
Where an infant has induced a person to contract with him by means of a false
representation that he was of full age, he is not estopped from pleading his infancy in
voidance of the contract and that Section 11522 of the Evidence Act, 1872 should be
read subject to Section 1123 of the Contract Act, 1872.
A false representation by an infant that he was of full age, give rise to an equitable
liability. The court while relieving him from the consequences of the contract, may in
the exercise of its equitable jurisdiction, restore the parties to the position which they
occupied before the date of the contract; and
The doctrine of restitution which finds expression in Section 4124 of the Specific Relief
Act, 1877 is not confined to the cases covered by that section and rests upon the
principle that an infant cannot be allowed to take advantage of his own fraud. This
doctrine is applicable whether the minor is the plaintiff or the defendant.
21
ILR (1928) 9 Lah 701, 715-19
22
Sec 115 of Indian Evidence Act: Estoppel-
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.
23
Supra at note 15
24
Sec 41 of Specific Relief Act, 1877: Power to require party for whom instrument is cancelled to make
compensation-
On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to
make any compensation to the other which justice may require.
In arriving at the above conclusions, the learned Chief Justice emphasized that the Court in
granting the above relief does so, not because there is a contract which should be enforced but
because the transaction. This is not the performance of the contract but the negation of it.
The Report thus expressed its opinion25 that-
Pollock and Mulla have expressed the view that the judgment of Shadi Lal CJ, in the
Lahore case is correct and we share this view. Indeed, we have already expressed our
preference in favour of the judgement of Shadi Lal CJ, in our report on the Specific Relief
Act. We agree with the proposition that in ordering compensation, the Court is not giving
effect to a contract but is doing its best to put the parties, so far as possible, in the position
which they occupied before the void transaction took place and from which one of them
was induced to depart by reason of the minors fraud. This view appears to be more in
consonance with the principles of equity and justice. It appears to us incongruous that
while sections 38 and 41 of the Specific Relief Act apply to cases of minors, the principles
underlying those sections should not be applicable to cases under the Contract Act. We feel
that the Judicial Committee had not correctly interpreted section 65 and we are of the
opinion that an agreement is void or is discovered to be void even though the invalidity
arises by reason of the incompetency of a party to a contract. We recommend that an
Explanation be added to section 65 to indicate that the section should be applicable where
a minor enters into an agreement on the false representation that he is a major.
The Law commission of India thus observed that restoration of status quo ante would not
amount to the enforcement of the void contract against the defendant. This recommendation was
followed by the legislature and the new Specific Relief Act of 1963 replaced the previous one.26
25
The Law Commission of India, Thirteenth Report, 37
26
Specific Relief Act, 1877
2.2. THAT THE DEFENDANT IS LIABLE TO RESTORE THE BENEFITS UNDER SECTION 33 OF THE
SPECIFIC RELIEF ACT, 1963
Section 3327 of the Specific Relief Act, 1963 gives the court power to make any compensation
which justice may require to the party to whom the relief is granted in the cases where
cancellation of a void or voidable written instrument is ordered. The section embodies the
principle that he who seeks equity must do equity. This provision is applicable to cases where a
transaction is held to be void, and compensation is to be made for the benefit derived under that
transaction.
Sub-section 2(b)28 of the aforesaid section applies where the defendant successfully resists any
suit on the ground that the instrument is void because he was incompetent to contract at the time
the contract was made, in which case he may be ordered to restore to the other party, as far as
may be, any benefit received under the agreement, to the extent he or his estate has benefitted
thereby.
The interpretation of the above clause as given in Contract and Specific Relief by Dr. Avtar
Singh is as follows:
Sub-section (2)(b), provides that, if a minor is brought before the court as a defendant, he
can be compelled to account for such portion of money or anything else received by him as
27
Sec 33 of Specific Relief Act, 1963: Power to require benefit to be restored or compensation to be made when
instrument is cancelled or is successfully resisted as being void or voidable.
(1) On adjudging the cancellation of an instrument, the court may require the party to whom such relief is granted, to
restore, so far as may be any benefit which he may have received from the other party and to make any
compensation to him which justice may require.
(2) Where a defendant successfully resists any suit on the ground
(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if the
defendant has received any benefit under the instrument from the other party, require him to restore, so far as may
be, such benefit to that party or to make compensation for it;
(b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been
competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the court may, if the defendant
has received any benefit under the agreement from the other party, require him to restore, so far as may be, such
benefit to that party, to the extent to which he or his estate has benefited thereby.
28
Ibid
has gone to benefit him personally, such as education or training, or has resulted in an
accretion to his estate.29
In the case of Nivarti Govind Ingale and Ors v. Revanagouda Bhimanagouda Patil30,
Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Pascayapur
Village of Karnataka. According to her, she, with a view to dig a well in the same land, had
obtained a loan in the year 1961 from the father of the respondent, a sum of 1,000. Since she
was not in a position to complete the digging of the well, she approached again for a sum of
2,000 to complete the well. The respondent's father who was a constable had advanced the
money on the condition that she would execute the sale deed in favour of his minor son i.e., the
respondent. Accordingly, she executed the sale deed with an agreement of re-conveyance which
was executed on August 31, 1961. She stated that she has paid from time to time a sum of 7,000
and had asked the respondent to execute the re-conveyance but the respondent did not execute
the deed of re-conveyance; consequently, she filed the suit for specific performance.
The High Court found that since the agreement of re-conveyance was not for the benefit of the
minor, the decree for specific performance cannot be granted. The petitioner then filed a special
leave petition in the Supreme Court. The Apex Court held that:
we find no force in the contention. The appellants have been seeking the remedy in the
civil suit; therefore, the subsequent purchaser is bound by this decree of specific
performance and liable to re-convey the property to the appellants.
The decree of the trial Judge is accordingly restored and that of the High Court and the
Additional Civil Judge stand set aside. The remedy of recovery of the purchased money
from the respondent may be sought in an appropriate action.
29
Singh, Avtar, Contract and Specific Relief, 11th Edition,2013, Pg no. 157, 2
30
(1997) 1 SCC 475.
In the case of Abdul Majid Said and Ors v. Ramiza Bivi Sahiba and Ors31, it was held that:
Where the minors estate is benefitted by the purchase money and if that deed was
cancelled that the minor is liable to restore the benefits.
In the case of Mt. Hamidan Bibi v. Nanhe Mal and Anr32, Justice SEN, while cancelling the
land deed in the favour of the plaintiff, observed that the plaintiff should make good the benefit
which she had received, and ordered the plaintiff to restore the benefits he had obtained from
the agreement.
In the case of Varghese v. Iype Kuriakose and Ors33, the plaintiff filed a suit to cancel a sale
deed signed by him during the minority, the lower court cancelled the suit and issue no
restoration but the High Court overruled the Lower Courts judgment and held that the plaintiff
is entitled to get the possession of the property but have to restore the benefits he received from
the defendants.
In the case of Pearce v. Brain34, the plaintiff, a minor, who was trading goods for others, was not
permitted by the court of law to recover the goods back while retaining the benefit obtained by
trading them.
Similarly, in the present matter, the defendant takes a loan from the plaintiff and asks him to
continue the construction of the swimming pool which the plaintiff does and completes the pool,
where the defendant successfully hosts a party. But at the time of returning the money she does
not fulfill her promise. Now the defendant has enjoyed the benefit while the plaintiff suffered a
loss. So under the aforesaid section of the Specific Relief Act, 1963, the plaintiff is entitled to
recover the benefits procured by the defendant due to the agreement.
31
AIR 1931 MAD 468
32
AIR 1933 All 371
33
AIR 1973 Ker 267
34
(1929) 2 KB 310
2.3. THAT THE DEFENDANT IS LIABLE TO RESTORE THE BENEFITS UNDER SECTION 65 OF THE
INDIAN CONTRACT ACT, 1872
Section 6535 of the Indian Contract Act, 1872 also contains the principle of restitution, where,
after a benefit has been received, and the agreement is later discovered to be void, or when the
contract becomes void, viz., as provided under Section 32 or 56 of the Indian Contract Act, 1872.
This section aims at preventing unjust enrichment. The intention of the section is to prevent a
party from avoiding an agreement and retaining the benefits received under it and it applies to
agreements that are void ab intio.36
In the case of Dyaviah and Anr. v. Shivamma and Anr37, Justice MALIMATH held that:
When the person to whom the proposal is made signifies his assent thereto, the proposal is said
to be accepted. A proposal, when accepted, becomes a promise.
This clause requires that a proposal should be made by one person and assented to by another
in order to constitute a promise. There is nothing to indicate that the word "person" used in this
clause necessarily implies that he must be a major. If a minor enters into an agreement, it may
not become a contract by reason of Section 11 but it may nevertheless be an agreement. In
view of this discussion, it is difficult to accept that the word agreement used in the first part of
Section 65 indicates that it must have been entered into by a person competent to contract i.e.,
by one who is a major. It is wide enough to include cases where the agreement was entered
into by a minor also. In that case, no doubt, the agreement is unenforceable in law and is,
therefore, void. Even then, it comes within the ambit of the provisions of Section 65.
35
Sec 65 of Indian Contract Act, 1872: Obligation of person who has received advantage under void agreement, or
contract that becomes void.
When an agreement is discovered to be void, or when a contract becomes void, any person who has received any
advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from
whom he received it.
36
Harnath Kaur v. Indar Bahadur Singh, AIR 1922 PC 403; Madura Municiplality v. Raman Servai, AIR 1936 Mad
98; Govind Keshav Dandavate v. Yeshwant Pandharinath Shete, AIR 1941 Bom 378
37
AIR 1959 Kant 188
In the case of Thakurian Harnath Kaur v. Thakur Indar Bahadur38, the contract was found not
enforceable in the court of law due to absence of free consent as the consent was obtained by the
undue influence. The lordship held that the though the contract is void, the plaintiff was entitled
to recover the compensation under section 65 of the Indian Contract act, 1872.
In the case of Ram Nagina Singh v. Governor-General in Council39, it was held:
In the case of agreements, Section 65 applies only to cases where benefit or advantage is
derived under an agreement before it is discovered to be void. If the benefit is received
after the agreement is discovered to be void, then the advantage cannot be said to have
been received under the agreement. Section 65 embodies and is an expression of the
principle of restitution and of prevention of unjust enrichment."
In the case of Walidad Khan v. Janak Singh40, certain Zamindari property was sold to
persons who were minors on the date of sale. The purchasers were subsequently ousted by reason
of a decree obtained by third Parties. It was then held that the purchasers were, at any rate,
entitled to recover from the vendors the sum which they had paid as purchase money.
Similarly in the present matter, the agreement was void, yet the defendant received the benefits
from the agreement. So as per the aforesaid section41, the defendant is liable to restore the
benefits to the plaintiff.
38
AIR 1922 PC 403
39
AIR 1952 Cal 306
40
ILR 35 All 370
41
Sec 65 of Indian Contract Act, 1872
PRAYER
Wherefore, in the lights of the facts stated, issues raised, arguments advanced, and authorities
cited, this Court may be pleased to adjudge and declare that:
The Contract is Valid and Enforceable.

The Defendant is Liable to restore the benefits acquired by her.
And/Or to pass any other order(s) that this Court may deem fit in the larger interest of
justice.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
For this act of kindness, the Plaintiff shall duty bound forever pray.
Dated: ___ February 2016
S/d-
(Counsel for the Plaintiff)

Before The District Court of Delhi at Delhi: (Under Section 9 of Code of Civil Procedure, 1908)

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Before The District Court of Delhi at Delhi: (Under Section 9 of Code of Civil Procedure, 1908)

Transféré par

Droits d'auteur :

Formats disponibles

TEAM CODE: TC-33

BEFORE THE DISTRICT COURT OF DELHI

(Under Section 9 of Code of Civil Procedure, 1908)

Civil Suit No. :______ / 2016

Mr. Khalbali Plaintiff

Ms. Sansani Defendant

MEMORIAL ON THE BEHALF OF THE PLAINTIFF

Drawn and filed by the Counsel for the Plaintiff

ARGUMENTS ADVANCED 14-27

ISSUE 1: THAT THERE IS CONTRACT BETWEEN THE PLAINTIFF AND THE

1.2: Recommendation of the Law Commission 17

ISSUE 2: THAT THE DEFENDANT IS BOUND TO RESTORE THE BENEFITS TO THE

2.1: Recommendation of the Law Commission 20

Memorial on the Behalf of Plaintiff Page 2

Abbreviations Full Form

AIR All India Reporter

Exch Exchequer Reports (England)

ILR Indian Law Reporter

Memorial on the Behalf of Plaintiff Page 3

Abbreviations Full Form

QBD Queens Bench Division

SCC Supreme Court Cases

Memorial on the Behalf of Plaintiff Page 4

2 Anagha Prassad v. M.C Abu ILR (2014) 4 Kerala 175 18

3 Chapple v. Copper (1844) 13 M&W 252 14

Govind Keshav Dandavate v. Yeshwant

7 Jenner v. Walker (1868) 19 L T N S 398 16

Memorial on the Behalf of Plaintiff Page 5

10 Pearce v. Brain (1929) 2 KB 310 25

11 Madura Municiplality v. Raman Servai AIR 1936 Mad 98 26

(1902-03) 30 IA 114: ILR

14 Nardan Prasad v. Ajudhia Prasad (1910) ILR 32 ALL 325 19

Nivarti Govind Ingale and Ors v.

16 Peters v. Fleming (1840) 6 M. & W. 42 15

Ram Nagina Singh v. Governor

Memorial on the Behalf of Plaintiff Page 6

21 Valentini v. Canali [1889] 24 QBD 166 20

22 Varghese v. Iype Kuriakose and Ors AIR 1973 Ker 267 25

23 Walidad Khan v. Janak Singh ILR 35 All 370 27

24 Walter v. Everard ILR 35 All 370 16

25 Watkins v. Dhunoo Baboo (1881) ILR 7 CAL 140 19

III. REFERENCE BOOKS:

Sr. No. Books

3 Singh, Avtar; Contract and Specific Relief; 11th Edition; 2013

4 Justice P.S. Narayan; Law of Specific Relief; 7th Edition; 2010

5 Mulla; The Code of Civil Procedure,Vol I;18th Edition; 2011

Memorial on the Behalf of Plaintiff Page 7

Sr. No. Reports

1 Law Commission of India; 13th Report; 1958

Sr. No Research Database

Memorial on the Behalf of Plaintiff Page 8

Memorial on the Behalf of Plaintiff Page 10

Memorial on the Behalf of Plaintiff Page 11

ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

Memorial on the Behalf of Plaintiff Page 12

ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

1. Section 33(2)(b) of the Specific Relief Act, 1963; and

Memorial on the Behalf of Plaintiff Page 13

ISSUE 1: THAT THERE IS A CONTRACT BETWEEN THE PLAINTIFF AND

the term necessaries include everything necessary to maintain an incompetent person in

It was ruled by BARON PARKE J in Peters v. Fleming5 that:

In the case of Walter v. Everard7, it was concisely observed that: