BEFORE THE DISTRICT CONSUMER REDRESSAL FORUM, RANCHI.

Complaint No: ____/2017

(Under Section 11 of The Consumer Protection Act, 1986)

In the matter of:

Mr. Raghav……………………………………………………………………………Complainant

Versus

Trominos India Ltd.……………...…………………………………………………Opposite Party

WRITTEN SUBMISSION ON BEHALF OF OPPOSITE PARTY

Name: SHUBHAM NIWAS

Semester: V, Section:B

Roll No: 598

Counsel on behalf of Opposite party.

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................................... 3

INDEX OF AUTHORITIES .................................................................................................................... 4

STATEMENT OF FACTS.............................................................................................................. 5
STATEMENT OF JURISDICTION ............................................................................................... 6
ISSUES RAISED .................................................................................................................................. 7

SUMMARY OF ARGUMENTS ............................................................................................................... 8

ARGUMENTS ADVANCED .................................................................................................................. 9

ISSUE I: WHETHER THERE IS A BREACH? .................................................................................... 9

1.1. THAT THERE WAS NO VIOLATION OF S.11 OF SALE OF GOODS ACT, 1930. ...................... 9
1.2 THAT THERE WAS NO VIOLATION OF SECTION 16 OF SALE OF GOODS ACT, 1930. ............. 10
1.3 THAT THE TAGLINE OF ADVERTISEMENT WAS ONLY A PUFF. ............................................ 11

2. WHETHER THE OPPOSITE PARTY IS ENTITLED FOR DAMAGES? ............................................. 13

PRAYER ....................................................................................................................................... 14
 LIST OF ABBREVIATIONS

& - And

AIR - All India Reporter

MLR - Madras Law Reports

Mad - Madras

SC - Supreme Court

V - Versus

Del - Delhi

Ltd - Limited

Co. - Cooperation/ Company

Inc. - Incorporated

DJ - District Judge

Anr - Another

Ors - Others

KE - Kerala
 INDEX OF AUTHORITIES

A. CASES:
1. Star Fish Exports and Ors. v V. Mahamood; MANU/KE/0325/2017.
2. Ambience commercial developers Pvt. Ltd. and Anr. v The State and Anr;
MANU/DE/3246/2011.

3. F.A. Tamplin Steamship Co. Ltd. v Anglo Mexican Petroleum Products Co. Ltd.;
(1916) 2 AC 397.
4. Russkoe v John Strik & Sons Ltd; (1922) 10 ILR 214.
5. Dahl v Nelson, Donkin & Co; (1881) 6 AC 38].

6. Turner v Anquetil; (1953) NZLR 952.

7. Pepsi Co. Inc. and Anr. v Hindustan Coca Cola and Ors.; MANU/DE/1269/2001.
8. John Dminick James Mahon v FBN Bank (UK) Ltd.; MANU/UKCh/0137/2011.

9. Thyssen Krupp Werkstoffe GMBH v Steel Authority of India; MANU/DE/0386/2010.

10. British Westinghouse Electric and Manufacturing Company Limited v Underground
Electric Railways Company of London; (1912) A.C. 673.

B. STATUTES:
i. The Sale of Goods Act, 1930.
ii. The Consumer Protection Act, 1986.

C. BOOKS:
i. Shah, Satish J., Pollock & Mulla The sale of Goods Act, Eighth Edition, 2011

D. ONLINE DATABASE
i. www.manupatra.com
ii. www.scconline.com
 STATEMENT OF FACTS

 Mr. Raghav throws a house warming party at his new bachelor pad. He orders 20 large
pizzas amounting to Rs. 11,089/- on 17th May, 2017 at 9.00 pm.
 There is a 30 – minute delivery clause which says that if the pizza arrives later than 30
minutes from the time of the order, Rs. 300 shall be deducted from the bill amount.
 Trominos has also been advertising ‘Tana na na na dheem, ki pizza aaya free’ when the
order arrives after 30 minutes.
 Pizzas at Mr. Raghav’s residence at 10.05 pm and the pizzas were found to be not as
warm as desired.
 He demanded them to be free the delivery boy said that the maximum amount that can be
deducted was Rs. 300/- only.
 Mr. Raghav rejected all the pizzas and later ordered from a local Indian Restaurant where
the bill amount of Rs. 15,324/- was paid by him.
 STATEMENT OF JURISDICTION

The opposite Party Humbly accepts the Jurisdiction of this court under Section 11 of The
Consumer Protection Act, 1986.1

1
Jurisdiction of the District Forum.—
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees twenty
lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of
the complaint, actually and voluntarily resides or 2[carries on business or has a branch office or] personally works
for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually
and voluntarily resides, or 3[carries on business or has a branch office], or personally works for gain, provided that
in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4[carry
on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution;
or
(c) the cause of action, wholly or in part, arises.
 ISSUES RAISED

ISSUE I: WHETHER THERE IS A BREACH?

ISSUE II: WHETHER THE OPPOSITE PARTY IS ENTITLED FOR DAMAGES?

 SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THERE IS A BREACH?

It is most humbly submitted that there has not been any breach of contract by the seller. The 30
min pizza delivery guarantee does not stand equally for bulk orders. Also the quality and fitness
were not compromised as it was implied that for large orders it will take more time to cook and
thus eventually the pizzas are bound to get less hot with time.

ISSUE II: WHETHER THE OPPOSITE PARTY IS ENTITLED FOR DAMAGES?

Section 44 & section 56 of Sale of goods act give right to seller to obtain damages from the
buyer if any loss is incurred by the acts of the buyer. Since the buyer refused to accept the
delivery of 20 pizzas, the seller incurred a loss of worth Rs. 11,089. This loss has to be made
good by the seller for refusing the acceptance of goods.
 ARGUMENTS ADVANCED

ISSUE I: WHETHER THERE IS A BREACH?

It is most humbly submitted that there has not been any breach of contract by the seller. The 30
min pizza delivery guarantee does not stand equally for bulk orders. Also the quality and fitness
were not compromised as it was implied that for large orders it will take more time to cook and
thus eventually the pizzas are bound to get less hot with time.

1.1. THAT THERE WAS NO VIOLATION OF S.11 OF SALE OF GOODS ACT, 1930.

Section 112 talks about contracts with time stipulation. Time was not an essence to this contract.
The seller was not bound to deliver the 20 pizzas within 30 minutes since it was stated in their
terms and conditions that and order of 5 or more pizzas would fall in bulk category and thus it
would not fall within 30 minutes delivery category.

It is a disclaimer given by the seller that such orders cannot be delivered within 30 minutes. It is
necessary for the buyer to see the terms and conditions of the seller. An excuse for not seeing the
terms and condition would not be accepted. The terms and conditions of the compromise cannot
be ignored. It is in this background other terms and conditions in the contract have to be
considered.3

In the case of Ambience commercial developers Pvt. Ltd. and Anr. vs. The State and Anr 4. it
was held that “evident from the application that the applicant had read, understood and signed
the Salient Terms and conditions of allotment, and same is attached to this application. The
applicant had agreed to abide and be bound by the terms and conditions of the allotment. It is
further clear that from the application that the applicant had agreed to sign and execute as and
when desired by the company. The contents of which, had been read and understood and further

2
Stipulations as to time.—Unless a different intention appears from the terms of the contract, stipulations as to time
of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of
the essence of the contract or not depends on the terms of the contract.
3
Star Fish Exports and Ors. vs. V. Mahamood MANU/KE/0325/2017.
4
Ambience commercial developers Pvt. Ltd. and Anr. vs. The State and Anr MANU/DE/3246/2011
agreed that till the commercial space Buyer's Agreement is signed and executed, there shall be
No. complete contract of sale.”

1.2 THAT THERE WAS NO VIOLATION OF SECTION 16 OF SALE OF GOODS ACT, 1930.

Section 16 talks about implied and expressed conditions/ warranty as to the quality or fitness of
goods. It states that in absence of any express or any implied condition/warranty, the seller
would not be liable for any shortcomings.

“A court can and ought to examine the contract and the circumstances in which it was made, not
of course to vary, but only to explain it, in order to see whether or not from the nature of it the
parties must have made their bargain on the footing that a particular thing or a state of things
would continue to exist. And if they must have done so, then a term to that effect would be
implied; though it be not expressed in the contract.”5

“A theory is that the court would exercise power to qualify the absolutely binding nature of the
contract in order to do what is just and reasonable in the new situation.”6

“The meaning of the contract must be taken to be, not what the parties did intend (for they had
neither thought nor intention regarding it), but that which the parties, as fair and sensible men,
would presumably have agreed upon if, having such possibility in view, they had made express
provision as to their several rights and liabilities in the event of its occurrence.”7

In the present matter also there is a reasonable ground that the pizza was not as hot as expected
by the buyer. Average time for cooking a pizza fully is around 8-10 minutes and practically it is
impossible to cook al the 20 pizzas at one go so that the temperature of all the pizzas remain
constant. The forum should also take notice of the time of the order which was 9:00 PM which is
a peak time for restaurants and there must have been other orders of other buyers as well. So
practically it would not be possible to keep all the pizza at same temperature and because of
which the pizaas cooked in the beginning might have not remained as hot as desired. Also when
it comes to implied warranty of serving hot pizza, any prudent man would understand that in
roder to cook 20 pizza it would take considerable time and in the meanwhile all pizzas might not

5
F.A. Tamplin Steamship Co. Ltd. v. Anglo Mexican Petroleum Products Co. Ltd. [(1916) 2 AC 397]
6
Russkoe v. John Strik & Sons Ltd. [(1922) 10 ILR 214
7
Dahl v. Nelson, Donkin & Co. [(1881) 6 AC 38]
remain as hot as desired. Thus it becomes implied that as it would take more time to cook all
pizzas, they were bound to cool with time.

Thus the delivered goods were of merchantable quality and there was no compromise with the
quality and fitness of the delivered goods, Thus there has been no breach of contract by the seller
and that the seller is not bound to pay damages to the buyer.

1.3 THAT THE TAGLINE OF ADVERTISEMENT WAS ONLY A PUFF.

A puff is a vague and extravagant statement so unreasonable in nature that a layman would not
believe it and be misled by it. In Turner v Anquetil8 it was said that the extent to which a
statement can be called a puff depends upon the degree or obviousness of its untruth, the
circumstances of its making.

In the present matter also it is almost very unreal and too ludicrous to believe that a company
would incur such huge losses on its part. Customer should read the terms and conditions of such
offer which are clearly indicted at every possible places with symbolic figure (*), even a layman
would not believe such offers to be true and also.

Puffing is not dishonest and mere ‘marketing offers’ was normal practice of comparative
advertising and was accepted in the market.9 Various other companies in the market have been
using taglines like “magii 2 mins noodle”, fair and lovely instant fairness etc. these all are puffs
and cannot be made binding. In the present matter also the puff was clarified in terms and
conditions of marketing and thus cannot be made binding on the seller.

It appears from DJ Crowley's judgment that he reached a conclusion regarding Puff: that having
regard to FBN's own evidence, those statements may have been inaccurate; they may also have
been "extravagant enticement of new business"; but, they remained "puff", because the terms
agreed were as set out in the offer letters signed by party. Implicit in this approach are
conclusions that all prior statements on behalf of FBN were of no legal effect and the offer letters
accurately contained all terms of the banking arrangement.10

8
Turner v Anquetil (1953) NZLR 952.
9
Pepsi Co. Inc. and Anr. vs. Hindustan Coca Cola and Ors. MANU/DE/1269/2001
10
John Dminick James Mahon v FBN Bank (UK) Ltd. MANU/UKCh/0137/2011
In the present matter also the advertisement remained a puff because it was clarified in the terms
and conditions and by making a contract with the seller, the buyer agreed to have read the terms
and conditions.
2. WHETHER THE OPPOSITE PARTY IS ENTITLED FOR DAMAGES?

Section 4411 & section 5612 of Sale of goods act give right to seller to obtain damages from the
buyer if any loss is incurred by the acts of the buyer. Since the buyer refused to accept the
delivery of 20 pizzas, the seller incurred a loss of worth Rs. 11,089. This loss has to be made
good by the seller for refusing the acceptance of goods.

It is undoubted law that a plaintiff who sues for damages owes the duty of taking all reasonable
steps to mitigate the loss consequent upon the breach and cannot claim as damages any sum
which is due to his own neglect. But the loss to be ascertained is the loss at the date of the
breach. If at that date the plaintiff could do something or did something which mitigated the
damage, the defendant is entitled to the benefit of it.13

The two principles on which damages in such cases are calculated are well-settled. The first is
that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to
get is to be placed, as far as money can do it, in as good a situation as if the contract had been
performed; but this principle is qualified by a second, which imposes on a plaintiff the duty of
taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from
claiming any part of the damage which is due to his neglect to take such steps14

Thus the seller is entitled for damages from the buyer as the breach was done on part of the
buyer and u/s 56 of the said act the buyer will have to pay damages to the seller for non
acceptance of the delivery of the ordered goods.

11
Liability of buyer for neglecting or refusing delivery of goods.—When the seller is ready and willing to deliver
the goods and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request
take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery
and also for a reasonable charge for the care and custody of the goods: Provided that nothing in this section shall
affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of
the contract.
12
Damages for non-acceptance.—Where the buyer wrongfully neglects or refuses to accept and pay for the goods,
the seller may sue him for damages for non-acceptance.
13
Thyssen Krupp Werkstoffe GMBH vs. Steel Authority of India MANU/DE/0386/2010
14
British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company
of London (1912) A.C. 673.
 PRAYER

Wherefore in the lights of facts stated, issues raised, arguments advanced and authorities cited, it
is humbly prayed before this Court that it may be pleased to adjudge and declare that:

 There was no breach on the part of opposite party,

 The complainant is not entitled for any damage,
 Damages must be granted to the opposite party for loss incurred by the actions of the
complainant.

And pass any other order that this Court may deem fit and proper.

All of which is most humbly and respectfully submitted.

Counsel for Opposite Party

Dated: /2017