COLLEGE OF LEGAL STUDIES

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES,

DEHRADUN
BEFORE
THE HON’BLE DISTRICT COURT OF BHOPAL

BETWEEN

Reid Taylor ………………………..Plaintiff

V.
Star wash pvt.ltd ………………………..Defendant

MEMORIAL FOR THE PLANTIFF

 TABLE OF CONTENTS
SL.NO TABLE PG.NO

1 LIST OF ABBREVIATIONS

2 INDEX OF AUTHORITIES

3 STATEMENT OF JURISDICTION

4 STATEMENT OF FACTS

5 STATEMENT OF ISSUES

6 SUMMARY OF ARGUMENTS

7 ARGUMENTS ADVANCED

8 PRAYER
 LIST OF ABBREVIATION
AIR…………………………………………….. ALL INDIA REPORTERS
AC………………………………………………. APPEAL CASES
CO………………………………………………. CORPORATION
EDN……………………………………………… EDITION
ER………………………………………………… ENGLISH REPORTERS
HON’BLE………………………………………. HONORABLE
LJ………………………………………………….. LAW JOURNALS
LTD………………………………………………. LIMITED
REP………………………………………………… REPORT
SCC………………………………………………… SUPREME COURT CASES
ANR………………………………………………… ANOTHER
ORS………………………………………………….. OTHERS
V………………………………………………………. VERSUS
PVT………………………………………………….. PRIVATE
 INDEX OF AUTHORITIES

A. BOOKS REFERRED :
o CONTRACT AND SPECIFIC RELIEF, AVTAR SINGH, EDN.2016.
 INTERPRETATION OF STATUTES:
THE INDIAN CONTRACT, 1872
CIVIL PROCEDURE CODE
B. CASE LAWS CITED
Issue 1- Whether the present suit before the District Court is
maintainable?
Issue 2- Whether Star Wash Pvt. Ltd. owes any contractual obligation
towards Reid Taylor?
Issue 3- Whether the clause limiting the liability of Star Wash Pvt. Ltd. to
Rs. 1000 is good in law?
 STATEMENT OF JURISDICTION
The Appellant humbly submits this memorandum for petitions filed before
this Hon’ble District Court under section 96 of The Code of Civil Procedure,
1908. The application invokes that save whereas otherwise expressly
provided in the body of this code or by any other law for the time being in
force, an appeal shall lie from every decree passed by any court exercising
original jurisdiction to the court authorized to hear appeals from the decision
of such courts.
 STATEMENT OF FACTS

I
Star Wash Pvt. Ltd., a private limited company based in New Delhi, obtained
a franchise from the iconic worldwide car wash company A1A Car Wash Ltd.,
headquartered in Albuquerque, New Mexico, US, to use its business model
and brand name for a period of 10 years in India.

II
Star Wash Pvt. Ltd. entered into an agency agreement with WashNGo
Services Pvt. Ltd., based in Bhopal, whereby WashNGo Services Pvt. Ltd. was
appointed as the agent of Star Wash Pvt. Ltd. for the purpose of setting up
and operating the car washing business of Star Wash Pvt. Ltd. in the state of
Madhya Pradesh. WashNGo Services Pvt. Ltd. opened a facility in Bhopal and
Indore each where it used the name of A1A car wash as the agent of Star
Wash Pvt. Ltd.

III
Reid Taylor, a businessman, bought an Aston Martin V12 Vanquish, which he
drove to all his business meetings. He had a very important meeting
scheduled for 21st October, 2014, with a Japanese client, Mr. Yamamoto.
Reid Taylor hoped to sign a deal with Mr. Yamamoto’s company which would
generate Rs. 25, 00,000 for his business. Before departing for Jaipur, on 17th
October, 2014, he had given instructions to his driver, Basant, to have his car
washed and gleaming in preparation of this meeting.

IV
Reid Taylor was to arrive at Bhopal airport at 12:00 p.m. on 21st October,
2014 and was to be picked up and taken straight away to Picnic@ Kerwa, the
venue of the meeting, which was due to start at 1:00 p.m. Reid had told his
driver to ensure that the car looked in absolute mint condition and advised
him to get the car washed preferably at Reid’s regular wash service.

V
Basant, the driver, took the car to the new A1A car wash on 20th October,
2014. At the car wash Basant was convinced by the employees of WashNGo
Services Pvt. Ltd. to accept a new kind of wax polish which had come to the
market. Basant was informed that this wax polish had no yet come into
widespread use, so it was difficult to say if it would live up to the hype
around it. Basant ordered for new wax polish.
VI
Basant paid Rs 5000 to the cashier and received a receipt/ticket he had to
show the car wash professional. The receipt given to Basant had the
following words stamped on the back, “The car wash shall not be liable for
any accident or damage to the car, arising from the wash, beyond making a
refund of Rs 1000.”

VII
Basant collected the car from the car wash at 10:30 a.m. on 21st October,
2014 and drove to the airport to pick up Reid. Upon Reid’s arrival at the
airport, while Reid was being escorted by Basant back to his car which had
been parked in the open, both Reid and Basant realized that the expensive
chrome paint on the car seemed to be dissolving and a very foul odor was
emanating from the car.

VIII
Reid knew he could not be driven in this car to the meeting and had to hail an
ordinary taxi to go to the meeting. Because of the delay at the airport and
the slow taxi he arrived 15 minutes late to the venue. Mr. Yamamoto’s mood
was worsened when he realized he would not get a chance to view the
Ashton Martin for himself and Reid late arrival. He stiffly informed Reid of his
decision to not go ahead with the deal and immediately left. Reid further
spent an additional Rs. 1, 50,000 on re-painting his car as the custom paint
had to be imported.

IX
Reid has decided to sue Star Wash Pvt. Ltd. for breach of contract and
claimed damages for the loss caused to him.
 STATEMENT OF ISSUES

ISSUE 1. Whether the present suit before the District Court is

maintainable?

ISSUE 2. Whether Star Wash Pvt. Ltd. owes any contractual obligation
towards Reid Taylor?

ISSUE 3. Whether the clause limiting the liability of Star Wash Pvt. Ltd. to
Rs. 1000 is good in law?
 SUMMARY OF ARGUMENTS

1.Whether the present suit before the District Court is

maintainable?
As per Section 6 of Code of Civil Procedure, the suit is maintainable
because of the Pecuniary jurisdiction save in so far as is otherwise
expressly provided, nothing herein contained shall operate to give
any court’s jurisdiction over suits the amount or value of the subject
matter of which exceeds the pecuniary limits of its ordinary
jurisdiction.
2.Whether Star Wash Pvt. Ltd. owes any contractual obligation
towards Reid Taylor?
No, Star Wash Pvt. Ltd. owes any contractual obligation towards
Reid Taylor because the Contract obligations are those duties that
each party is legally responsible for in a contract agreement. In a
contract, each party exchanges something of value, whether it is a
product, services, money, etc. On both sides of the agreement, each
party has various obligations in connected with this exchange.
3.Whether the clause limiting the liability of Star Wash Pvt. Ltd. to
Rs. 1000 is good in law?

No, limiting the liability of a person is not good in law. A term is

unreasonable if it would defeat the purpose of the contract or if it is
repugnant to public policy. A person has done the injury of Rs 1000
and he is liable for that but he has added some issue in his receipt
that only ten percent will be refunded if any accident or lost of the
thing happens. Then he is liable for the injury caused to another
person and he has to return the money of the suit.
 ADVANCED ARGUMENTS

1. Whether the present suit before the District Court is maintainable?

As per section 15, every suit shall be instituted in the court of the lowest grade
competent to try it. This is a fundamental rule which means that if a remedy
is available at a lower court, the higher court must not be approached. More
specifically, this rule refers to the monetary value of the suit. Each court is
deemed competent to hear matters having a monetary value of only certain
extent. A matter that involves a monetary value higher than what a court is
competent to hear, the parties must approach the lowest grade court which
is competent to hear the suit.

However, this rule is a rule of procedure, which is meant to avoid

overburdening of higher courts. It does not take away the jurisdiction of
higher courts to hear matter of lesser monetary value . Thus a decree passed
by a court which is not the lowest grade court competent to try a matter for
which a lower court is competent. This rule applies to the parties as it bars the
parties to approach a higher court when a lower court is competent to hear
the matter.

o As per law suits amounting to Rs.1 - Rs.20, 00,000 lie before district
courts.

For e.g.:

A dispute between A and B took place in a certain village of Agra. The value of
the suit is 2 crore. Then, it has to be seen that in this case the pecuniary
jurisdiction lies with the District Court of Agra which also has territorial
jurisdiction in that particular village; and hence in this case the court of lowest
grade competent to try this suit will be District Court of Agra.

 As in Bulk Trading S.A. vs Dalmia Cement (Bharat) Limited on 19

December, 2005,

The petitioner/decree holder has responded to each of these contentions. It

is the case of the petitioner/decree holder that there is no bar to the filing of
a second Execution Application. It was also submitted on behalf of the
petitioner/decree holder that the award amount was more than Rs.
20,00,000/- and, therefore, this Court has pecuniary jurisdiction to entertain
the present petition. Lastly, it was contended on behalf of the
petitioner/decree holder that Section 42 of the said Act falls in Part I thereof,
whereas foreign awards are governed by Part II. Therefore, Section 42 would
have no applicability insofar as the present case is concerned, it being a case
involving a foreign award.

2. Whether Star Wash Pvt. Ltd. owes any contractual obligation towards Reid
Taylor?

A document is said to be contractual if it embodies the contract, that is to say,

if the person to whom it is delivered should know that it is supposed to contain
conditions. But where the paper is not supposed to express the condition of
the contract, it will be regarded as mere voucher etc., and extra care will have
to be taken to communicate its term than mere warning on the face.

 A good illustration is chapelton v Barry UDC1, The claimant hired a deck

chair from Barry UDC for use on the beach. There was a notice on the
beach next to the deck chairs stating that the deck chairs could be hired

1
[1940] 1 KB 532.
 at 2d for three hours and also 'respectfully requested' the public to obtain
tickets issued by the chair attendants. The claimant obtained a ticket and
put it in his pocket without reading it. In fact there was an exclusion clause
printed on the ticket excluding the council's liability for personal injury
caused in using the deck chair. The claimant was injured when he sat on
the chair. The fabric of the deck chair split away from the frame. He
brought an action against the council and they sought to rely on the
exclusion clause contained in the ticket.

Held:

The exclusion clause was not incorporated into the contract. A reasonable
person would regard the ticket as nothing more than a receipt and would not
expect it to contain contractual terms. Furthermore, the wording of the
notice suggested that a person could obtain the deck chair and get a ticket
later. The notice constituted an offer and collecting the chair would amount
to acceptance. It would not be open to the council to introduce new terms
after the contract had been formed. The council was held liable for his injury.

 Henderson v Stevenson2

FACTS: Plaintiff bought a steamer ticket. Which contained on the face, words
“Dublin to White heaven” on the back, certain terms, one of which excluded
liability of the Co. for loss, injury or delay to the passenger or his luggage.
Plaintiff had not seen back of the ticket not there was any indication on the face
about the conditions on the back. Plaintiff’s luggage was lost by the ship wreck
caused by the fault of Company’s servants.

2
(1875) 2 Sc &Div 470: (1875) 32 LT 709 (HL).
HELD: Pt was entitled to recover his loss from the Company inspite of exemption
clause.

OBSERED: Pt could not be said to have accepted the a term which he has not
seen, of which he knew nothing and which is not in any way ostensibly
connected with that which is printed and written upon the face of the contract
presented to him. The result would have been otherwise, if words like “for
conditions see back” had been printed on face of the ticket to draw the
passengers’ attention to the place where the conditions were printed.

PRINCIPLE: “Where a written document is presented to a party for acceptance,

a reasonably sufficient notice shall be given of the presence of terms and
conditions. Notice will be regarded as sufficient if it will convey to the minds of
people in general that ticket contains conditions.

 Parker v South Eastern Railway Co.3

The plaintiff deposited a bag in a cloak-room at the defendants' railway station.

He received a paper ticket which read 'See back'. On the other side were printed
several clauses including "The company will not be responsible for any package
exceeding the value of £10." The plaintiff presented his ticket on the same day,
but his bag could not be found. He claimed £24 10s. as the value of his bag, and
the company pleaded the limitation clause in defence. In the Court of Appeal,
Mellish LJ gave the following opinion:

If the person receiving the ticket did not see or know that there was any writing
on the ticket, he is not bound by the conditions;

3
(1877) 2 CPD 416.
If he knew there was writing, and knew or believed that the writing contained
conditions, then he is bound by the conditions;

If he knew there was writing on the ticket, but did not know or believe that the
writing contained conditions, nevertheless he would be bound, if the delivering
of the ticket to him in such a manner that he could see there was writing upon
it, was reasonable notice that the writing contained conditions.

3. Whether the clause limiting the liability of Star Wash Pvt. Ltd. to Rs.
1000 is good in law?

 An example of unreasonable term is to be found in lily white v

Munuswami4,A laundry receipt contained a condition that a customer
would be entitled to claim only fifteen percent of the market price or
value of the article in case of loss. The plaintiff new sari was lost. The
court observed certainly the condition printed on the reverse of a bill
may govern or modify any simple contract……subject to the obligation
on the part of the business man to perform the process properly and to
return the article safe and intact. But if a condition is imposed which is
in flagrant infringement of the law relating to negligence ….the court
will not enforce such a term which is not in the interest of the public,
and which is not in accordance with public policy. And there is certainly
justification for the observation that this may well be putting a
premium upon the abstraction of clothes which may be committed by
an employee of the firm, intent on the private gain, though the firm
itself may be blameless regard to the actual loss.

4
AIR 1966 Mad 13, (1965) 1 MLJ 7
  Levison v patent steam carpet cleaning Co.ltd5. A valuable Chinese
carpet had been taken for cleaning but was lost by the bailee. The bailee
said that his liability was limited under the terms of the contract to a
particular sum. A fundamental breach is ‘a breach going to the root of
the contract’. The claimant pleaded by way of reply that the carpet had
been lost by reason of a fundamental breach. The question arose
whether the burden lay upon the bailor to establish a fundamental
breach of contract or upon the bailee to establish that there had been
no fundamental breach of contract.

Held: Whilst recognising that there had been conflicting decisions, the burden
lay upon the bailee to establish that there been no fundamental breach.

Lord Denning MR said: ‘Upon principle, I should have thought that the burden
was on the cleaners to prove that they were not guilty of a fundamental
breach. After all, Mrs. Levison does not know what happened to it. The
cleaners are the ones who know, or should know, what happened to the
carpet, and the burden should be on them to say what it was . . It is, therefore,
a moot point for decision. On it I am clearly of opinion that, in a contract of
bailment, when a bailee seeks to escape liability on the ground that he was
not negligent or that he was excused by an exception or limitation clause, then
he must show what happened to the goods. He must prove all the
circumstances known to him in which the loss or damage occurred. If it
appears that the goods were lost or damaged by a slight breach – not going
to the root of the contract- he may be protected by the exemption or
limitation clause. But, if he leaves the cause of loss or damage undiscovered
and unexplained – then I think he is liable: because it is then quite likely that

5
[1978] 1 QB 69, [1977] 3 All ER 498.
the goods were stolen by one of his servants; or delivered by a servant to the
wrong address; or damaged by reckless or wilful misconduct; all of which the
offending servant will conceal and not make known to his employer. Such
conduct would be a fundamental breach against which the exemption or
limitation clause will not protect him.’

Orr LJ said: ‘as a matter both of justice and of common sense the burden ought
to rest on the bailee who, if the goods have been lost whilst in his possession,
is both more likely to know the facts and in a better position to ascertain then
than the bailor.’

Sir David Cairns said: ‘however difficult it may sometimes be for a bailee to
prove a negative, he is at least in a better position than the bailor to know
what happened to the goods while in his possession.’

A limitation of liability clause is a provision in a contract that limits the amount

of exposure a company faces in the event a lawsuit is filed or another claim is
made. If found to be enforceable, a limitation of liability clause can "cap" the
amount of potential damages to which a company is exposed. The limit may
apply to all claims arising during the course of the contract, or it may apply only
to certain types of causes of action. Limitation of liability clauses typically limit
the liability to one of the following amounts: (i) the compensation and fees paid
under the contract; (ii) an agreed upon amount of money; (iii) available
insurance coverage; or (v) a combination of two or more of the above.

An exclusion clause "aims to exclude and to limit one's liability for breach of
contract or negligence.” It must be correctly incorporated into the contract. This
is done by signing the contract (known as signature), having reasonable notice
of the clause (known as notice) and by having a course of dealings i.e. previous
consistent dealing based on the same terms. Ignorance or misunderstanding of
the term does not stop someone from being bound by the term but
misrepresenting the effect of this term can render part or the whole of the
agreement ineffective. An unfair term is “contrary to the requirement of good
faith as it causes a significant imbalance in the parties' rights and obligations
under the contract..." That is, it gives one party an unfair advantage.
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the
counsels for the Applicant humbly and forever pray before this Hon’ble Court to
kindly:

ALLOW THE SUIT APPLICATION

AND/ OR

PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

And for this the Petitioner as in duty bound shall forever humbly pray.

(Counsels on behalf of the Petitioner)