Memorandum On Behalf Of Plaintiff

Before

THE CITY CIVIL COURT, RANCHI

AT RANCHI

(Under Sec. 09 read with 19 of the Civil Procedure Code, 1908)

CIVIL SUIT NO. _________/2016

IN THE MATTER OF

SHIVRAM NAIK....................................................................................................PLAINTIFF

VERSUS

JIVAJI GODBOLE & OTHERS..............................................................................DEFENDANT

MEMORANDUM ON BEHALF OF THE PLAINTIFF

Written submission on behalf of plaintiff

Shashank Shekhar

Roll no. 409

Counsel for the plaintiff

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 Memorandum On Behalf Of Plaintiff

TABLE OF CONTENTS
Table of Contents……………............................……………............………………...........…1
List of Abbreviations………………………………..................................................................2
Index of Authorities………………………………………………………...............................3
 Cases referred
 Books referred
 Websites referred
 Statutes
Statement of Jurisdiction…………………………………………………................................5
Statement of Facts……………………………………………………......................................6
Issues Raised..............................................................................................................................7

Issue 1 : Whether there has been a breach of contract of sale as established between
the plaintiff and defendants ?
Issue 2 : Whether the plaintiffs can claim damages from the defendants ?
Summary of Argument...............................................................................................................8
Argument Advance....................................................................................................................9
Prayer.......................................................................................................................................14

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 Memorandum On Behalf Of Plaintiff

INDEX OF AUTHORITIES

A. CASES REFERRED

 Abhaya Kumar panda v. Bajaj Auto Ltd; (1992) 1 CPJ 88 NC

 Agricultural Market Committee v. Shalimar Chemical Works Ltd; AIR 1997 SC 2502
 Bank of Baroda v. Moti Bhai; AIR 1985 SC 884
 Bennett Ltd v. Kreeger; (1925) 41 TLR 69
 Brown v. Edgington (1841) 2 Man & G 279, 58 RR 408
 C.N.Anantharam v. M/S Fiat India Ltd & Ors; (2011) 1 SCC 460
 Frost v. Aylesbury Diary Co.; (1905) 1 KB 608
 Grant v. Australian Knitting Mills, AIR 1936 PC 34
 Hindustan Motors Ltd v. N Siva Kumar; (2000) 10 SCC 654
 Jones v. Just (1868); LR 3 QB 197
 K. Narayana v. P Venugopala Reddiar; AIR 1975 AP 84
 Laing v. Fidgeon; (1815) 4 Camp 169, 16 RR 589
 Lockett v. Charles Ltd; (1938) 4 All ER 170
 Motors v. Rajesh Tyagi, and HM Motors Showroom; (2014) CPJ 132 (NC)
 Preist v. Last; (1903) 2 KB 148 (CA)
 R&B Customs Broker Co Ltd v. United Dominions Trust Ltd; (1988) 1 All ER 847(CA)
 R.D. Goyal v. Reliance Industries Ltd; MANU/SC/1025/2002
 Raghava Menon v. Kuttappan Nair; AIR 1962 Ker 318
 Shepherd v. Pybus; (1842) 3 Man & G 868
 Spencer Trading Co Ltd v. Devon; [1947] 1 All ER 284
 Thompson v. Sears; (1926)SC LT 221
B. BOOKS REFERRED
 Takawani, C.K.; Civil Procedure with Limitation Act, 1963; Eastern Book Company,
Lucknow, 7th Edn, 2013.
 Pollock & Mulla; The Sale of Goods Act, 2014; LexisNexis, Nagpur, 9th Edn, 2014
 Aiyar, P. Ramanatha; Law of Sale of Goods;. Universal Law Publishing Co., New
Delhi, 9th Edn, 2015.
 Sweet & Maxwell; Benjamin’s Sale of Goods; Thomson Reuters, London, 8th Edn,
2010.

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 Memorandum On Behalf Of Plaintiff

C. WEBSITES REFERRED
 www.manupatrafast.com
 www.scconline.com
D. STATUES REFERRED
 The Code of Civil Procedure, 1973
 The Sales of Goods Act, 1930

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 Memorandum On Behalf Of Plaintiff

LIST OF ABBREVIATION

& And

AER All England Reporter

AIR All India Reporter

Anr. Another

AP Andhra Pradesh

CA Court of Appeal

Man Manchester

MANU Manupatra

NC National Commission

No. Number

Ors. Others

PC Privy Council

SC Supreme Court

SCC Supreme Court Cases

v. Versus

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 Memorandum On Behalf Of Plaintiff

STATEMENT OF JURISDICTION

The plaintiff humbly submits this memorandum before this court under section 09 read with
19 of The Code of Civil Procedure, 19081.

1
Section 9 : 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 I—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 II—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.

Section 19 : Suits for compensation for wrongs to person or movable— Where a suit is for compensation for
wrong done to the person or to movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in
either of the said Courts.

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 Memorandum On Behalf Of Plaintiff

STATEMENT OF FACTS

Background
Mr Jivaji Godbole sold a second hand buggy to Mr Shiram Naik which he had inherited from
his mother in the year 2008. The buggy was manufactured by m/s Thakore Estatewala in the
year 1987; the manufacturers in the year 1995 had winded up the buggy business and sells
cars using franchisee of Tata Motors. The two hind wheels of the buggy varied thinly and the buggy
was shaky when on road; owing to this defect one day Mr Shiram Naik fell off the buggy and
sustained injuries.
Current Situation
Mr. Shivram Naik, on contacting Mr. Godbole learnt that the buggy was never used and was
always kept as a showpiece at his residence in Jamshedpur and realized the variation in
wheels was a manufacturing defect. Accordingly he brought a suit against the seller and the
manufacturer of the buggy in the City Civil Court, Ranchi.
.

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 Memorandum On Behalf Of Plaintiff

ISSUES RAISED

Issue 1 : Whether there has been a breach of contract of sale as established between the
plaintiff and defendants ?
Issue 2 : Whether the plaintiffs can claim damages from the defendants ?

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 Memorandum On Behalf Of Plaintiff

SUMMARY OF ARGUMENTS

Issue 1 : Whether there has been a breach of contract of sale as established between the
plaintiff and defendants ?
It is humbly contended before this court that there is valid contract of sale between the
plaintiff and the defendants. Essentials as defined in the Section 4 of The Sale of Goods Act,
1930 has been successfully satisfied forming a contract of sale and creating an obligation of
the parties towards each other.
Issue 2 : Whether the plaintiffs can claim damages from the defendants ?
It is humbly contended before this court that the plaintiffs can claim damages from both the
seller and the manufacturers for the fraud caused by the seller by not disclosing the facts
about the buggy and from the manufacturer due to the inherent manufacturing defect that
resulted in the physical injuries to the plaintiff after he fell off the buggy.

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 Memorandum On Behalf Of Plaintiff

ARGUMENT ADVANCED

ISSUE : 1 Whether there has been a breach of contract of sale as established between
the plaintiff and defendants ?

It is humbly contended before this court that there was valid contract of sale between the
plaintiff and the defendants.

Section 42 of the Sales of Goods Act, 1930 defines a sale of goods as “contract of sale”
whereby the seller transfers or agrees to transfer the property in goods to the buyer for a
price”. The contract of sale includes both a sale and an agreement to sell.

In the case of Agricultural Market Committee v. Shalimar Chemical Works Ltd3; the
Supreme Court observed that a contract of sale, like any other contract, is a consensual act in
as much as the parties are at liberty to settle for themselves the term of their bargain. A sale
has two poles one buyer and another seller. One has to give and another has to accept. The
giver has of-course to receive a sum, i.e. negotiated upon, in lieu of the `goods' given by him
or sold by him.

A sale is always a consensual transaction; even when the word `sale' is used in the narrower
sense of a pure conveyance, there is necessarily an antecedent or contemporaneous agreement
to sell. There must be mutual assent, in the objective sense in which this expression is always
understood in the law of contract, to all the elements which make up a sale. The seller must
agree to transfer the property and the buyer to take it, and they must agree to do so in return
for money which is paid and received as the price of goods4.

Goods has been defined in section 2(7) of The Sale of Goods Act as follows:

2
(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in
goods to the buyer for a price. There may be a contract of sale between one part-owner and another. .
(2) A contract of sale may be absolute or conditional. .
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the
contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or
subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the
property in the goods is to be transferred
3
AIR 1997 SC 2502
4
Sweet & Maxwell, ‘Benjamin’s Sale of Goods’, 2010, Eighth Edn. Thomson Reuters (Legal) Limited, London

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 Memorandum On Behalf Of Plaintiff

"Goods" means every kind of movable property other than actionable claims and money;
and includes stock and shares, growing crops, grass and things attached to or forming part
of the land which are agreed to be severed before sale or under the contract of sale.

From this definition, we can say that Goods means every kind of movable property other
than actionable claims and money.

In the case, R.D. Goyal v. Reliance Industries Ltd5; under the category of goods, thing
like goodwill, copyright, trademark, patents, motor vehicles, ships, water, oil, air, gas may
be considered as goods for a contract of sale.

In the given set of facts both the plaintiff and the defendant were on consensual terms for
the plaintiff buying the buggy and the defendant selling the buggy as the seller had
transferred the buggy that form the preface of goods and the buyer taking the buggy
henceforth creates a valid contract of sale.

The performance of a contract is part of the cause of action and a suit in respect of its breach
can be filed at the place where the contract should have been performed or its performance
completed. Thus in a contract for sale of goods, the suit may be filed at the place where the
goods are deliverable or the price payable6.

The plaintiff bought a wrist watch from the defendant and it stopped; the defendant did not
receive attention to the problem and consequently plaintiff filed a suit before court of Munsif,
Thrissur7.

The plaintiff fell of the buggy and sustained injuries as the buggy being shaky while on road
due to thinly varied size of the hind wheels. This is being attributed to the manufacturing
defect in the buggy.

There is a breach of Contract for sale as the implied condition of fitness and quality that had
to present in the buggy were missing.

5
MANU/SC/1025/2002
6
Bank of Baroda v. Moti Bhai; AIR 1985 SC 884
7
Raghava Menon v. Kuttappan Nair, AIR 1962 Ker 318

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 Memorandum On Behalf Of Plaintiff

ISSUE 2 : Whether the plaintiffs can claim damages from the defendants?

It is humbly contended before this court that the plaintiffs can claim damages from the
defendants.

The principle of Caveat Emptor will not be applicable

The maxim caveat emptor states that it is for the buyer to satisfy himself that the goods which
he is purchasing are of the quality which he requires or, if he is buying for any specific
purpose, that they are fit for that for purpose.

The rule regarding Caveat Emptor in the case of Sale of Goods states, goods which are in
esse and may be inspected by the buyer, and there is no fraud on the part of the seller, the
maxim Caveat Emptor applies, even though the defect which exists in them is latent, and not
discoverable on examination, at least where the seller is neither the grower nor the
manufacturer.8

The principle of “Caveat Emptor” will not apply due to some of the recognised exceptions to
the rule according to Common Law and also been covered in the India in the Sale of Goods
Act as covered in the Section 16.

Firstly, there as a fraud committed on part of the seller because of his nondisclosure of a
relevant factor for purchase;

Secondly, ‘where a manufacturer or a dealer contracts to supply an article which he

manufactures or produces, or in which he deals, to be applied to a particular purpose, so that
the buyer necessarily trusts to the judgement or skill of the manufacturer or dealer, there is in
that case an implied term or warranty that it shall be reasonably fit or the purpose to which it
is to be applied. In such a case, the buyer trusts the manufacturer or dealer, and relies upon
his judgement and not upon his own9 for the goods to be of Merchantable Quality10.

The plaintiff who bought hot water bottle from the chemist, the court held that it was very
much implied that he will use as a hot water bottle.11

8
Pollock & Mulla, ‘The Sale of Goods Act’, 2014, Ninth Edn. LexisNexis Butterworths Wadhwa, Nagpur
9
Jones v. Just (1868) LR 3 QB 197; Brown v. Edgington (1841) 2 Man & G 279, 58 RR 408; Spencer Trading
Co Ltd v. Devon [1947] 1 All ER 284
10
Laing v. Fidgeon (1815) 4 Camp 169, 16 RR 589; Shepherd v. Pybus (1842) 3 Man & G 868
11
Preist v. Last, (1903) 2 KB 148 (CA)

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 Memorandum On Behalf Of Plaintiff

In the case of Thompson v. Sears12 and Bennett Ltd v. Kreeger13 it was held that goods
bought must be fit for the purpose for which is generally bought.

Woollen goods seller must know that underpants must know that they are required for the
particular purpose for being worn next to the skin.14

In a Sale of milk, it may be reasonably inferred that the milk is being ordered for the purpose
of being consumed.15

Where the plaintiff’s purchased a car from the defendant finance company supplied by motor
company and defect was detected, on the day when the car was to be delivered back after
repairing it was held that there is nothing that would cease the plaintiff to rely on the motor
dealer’s skill and judgement, it is very much anticipated that the defect would be removed.16

In the given set of facts, the plaintiff bought the buggy without making an enquiry about the
same and relied upon the seller’s skill and judgement regarding buying rather depending on
his own skill and judgement. It is very reasonable for the plaintiffs to have known the
ordinary and obvious use of the goods he is selling and the shortcomings while using the said
goods for that ordinary use.

The buyer buying the buggy, it was reasonable for seller that he may be using it for the very
ordinary use of travelling and bring it on the road.

A fraud has been committed on the part of the defendant who is seller in the present case, as
the fact was not revealed in the seller’s capacity during the purchase; it is certain that had the
usage of the buggy as a showpiece been revealed by the seller, there were chances on the part
of the buyer not purchasing it as matter fact that the goods would have not rendered fit for his
purpose.

Manufacturer is liable for the manufacturing defect in the wheels of the “buggy”

The plaintiffs had realized that the size of the hind wheels varied thinly and this was the
reason behind the buggy being shaky while on road. The petitioner later on ascertained that
the defect in the wheels were an outcome of manufacturing defect. The fact that the plaintiff

12
(1926)SC LT 221
13
(1925) 41 TLR 69
14
Lockett v. Charles Ltd; (1938) 4 All ER 170
15
Frost v. Aylesbury Diary Co.; (1905) 1 KB 608
16
R&B Customs Broker Co Ltd v. United Dominions Trust Ltd; (1988) 1 All ER 847 (CA)

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 Memorandum On Behalf Of Plaintiff

got injured after falling of the shaky buggy was very much evident that the buggy had the
defect which was brought up while the manufacturing process.

In the case of Grant v. Australian Knitting Mills17; the Privy Council held that

In the case of Abhaya Kumar panda v. Bajaj Auto Ltd18 the court held that

The manufacturers should not sell a product that suffers major defect and if the same has
been known to the consumers then it should be promptly withdrawn from the consumer or the
market.

The sub-axle balancing the rear wheels of an unloaded truck broke down after getting off-
road; the court held that sub axle won’t forge out of the steel billet by itself; certainly there
was a defect in the axle that was while manufacturing.19

The National Consumer Rights Redressal Commission in the case of Tata Motors v. Rajesh
Tyagi, and HM Motors Showroom20 held that it was the duty of both the manufacturer and
dealer to attend to the defect when a consumer complained of the defect in a vehicle and
make it defect-free and if they were not in position to do so, they should either refund the cost
of vehicle or provide a new vehicle to the consumer.

In the case of Hindustan Motors Ltd v. N Siva Kumar21 it was held that when it became
impossible to replace the plaintiff’s defective vehicle, since the manufacturer had stopped
manufacturing the said model, this Court directed that the money along with interest,
compensation and costs were to be paid to the purchaser.

It is the duty of the manufacturer to ensure the vehicle to be free from any defects and to
make the vehicle roadworthy as held in the case of C.N.Anantharam v. M/S Fiat India Ltd
& Ors.22

17
AIR 1936 PC 34
18
(1992) 1 CPJ 88 NC
19
K. Narayana v. P Venugopala Reddiar; AIR 1975 AP 84
20
(2014)CPJ132(NC)
21
(2000) 10 SCC 654
22
(2011) 1 SCC 460

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 Memorandum On Behalf Of Plaintiff

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon’ble Court may graciously be pleased to adjudge and declare:

 That, both the seller and manufacturer be made liable to pay for the damages
due to physical injury of the plaintiff and defective Buggy.

And pass any order relief in favour of the Plaintiff which is in conformity to the principles of
Justice, Equity and Good Conscience.

All of which is respectfully submitted

s/d

counsel on behalf of Plaintiff

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