Team Code: ________

MOOT COURT COMPETITION, [YEAR]

BEFORE, THE HON’BLE SUPREME COURT OF INDIA

M/S DAS & BHULLAR (PLAINTIFF)

V.

M/S BUSINESS SOLUTIONS (DEFENDANT)

DISPUTE CONCERNING:

THE VALIDITY OF END USER LICENSE AGREEMENTS

UPON THE TRANSFER OF CASE FROM HON’BLE HIGH COURT OF DELHI TO HON’BLE
SUPREME COURT OF INDIA

U/A 139A ORDER XXXVI A RULE 5 OF THE SUPREME COURT RULES, 1966

OF

CONSTITUTION OF INDIA

SUBMITTED AS AN AMICUS CURIAE

Copyright © Enhelion Knowledge Ventures Private Limited

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS............................................................................................... iii

INDEX OF AUTHORITIES ................................................................................................ iv

STATEMENT OF JURISDICTION ................................................................................... viii

STATEMENTS OF FACTS ................................................................................................. ix

ISSUES RAISED ................................................................................................................. xi

SUMMARY OF ARGUMENTS ......................................................................................... xii

ARGUMENTS ADVANCED ............................................................................................... 1

1. WHETHER THERE EXISTS A VALID CONTRACT BETWEEN THE PARTIES

FOR LICENSE NUMBER- 1983/11/21? .............................................................................. 1

[1.1] SHRINK WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF

CONTRACT LAW ........................................................................................................... 1

[1.1.1] ABSENCE OF PROPER PROPOSAL ............................................................... 1

[1.1.2] ABSENCE OF ACCEPTANCE ......................................................................... 3

[1.1.3] NO CONSIDERATION ..................................................................................... 4

[1.2] CLICK WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF

CONTRACT LAW. .......................................................................................................... 5

[1.2.1] ABSENCE OF PROPER PROPOSAL ............................................................... 5

[1.2.2] ABSENCE OF PROPER ACCEPTANCE.......................................................... 7

[1.3] BROWSE WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF

CONTRACT LAW. .......................................................................................................... 8

[1.3.1] ABSENCE OF PROPER PROPOSAL. .............................................................. 8

[1.3.2] UNCONSCIOUSABLE ACCEPTANCE ......................................................... 10

2. WHETHER THE ANTI-SUIT INJUNCTION SHOULD BE GRANTED? ................. 10

i
3. WHETHER THE ORIGINAL PLAINTIFF IS RESPONSIBLE FOR MISUSE OF
LICENSE NUMBER-1983/11/21 WHICH RESULTED INTO THE COUNTERFEIT AND
PIRATED COPIES BEING MADE? .................................................................................. 12

[3.1] RIGHT TO INSPECT THE GOODS ...................................................................... 12

[3.2] THE CONSEQUENCES ARE TOO REMOTE TO FORESEE............................... 13

4. WHETHER COURT SHOULD GRANT DAMAGE TO THE TUNE OF EXACT

NUMBER OF COPIES PIRATED? .................................................................................... 13

PRAYER ........................................................................................................................... xiii

ii
 LIST OF ABBREVIATIONS

All ER All England Report

AIR All India Report

AP Andhra Pradesh

App. Appeal

Bom Bombay

Cir. Circuit

Del Delhi

Ed. Edition

F2d Federal District Court

Id. Ibidium

Inc. Incorporation

KB Kings Bench

LJ Law Jourrnal

Ltd. Limited

Para Paragraph

Pp Page

Raj Rajashthan

Rep. Report

Sec. Section

V versus

iii
 INDEX OF AUTHORITIES

Indian Judgements

Badri Prasad v. State of Madhya Pradesh, AIR 1970 SC 706 ............................................... 3

Bhagwati Prasad Pawan Kumar v. Union of India, AIR 2006 SC 2331................................. 4
D.C.M. Ltd. and Anr. v. Assistant Engineer (HMT Sub-Division), 1997 AIR 3910 ................ 2
Deep Chandra v. Rukruddaula Shamsher J N M Sajjad All Khan, AIR 1951 All 93 .............. 3
Dhulipada Namayya v. Union of India, AIR 1958 AP 533..................................................... 4
Lalman Shukla v. Gauri Dutt, (1913) 11 All LJ 489 .............................................................. 4
Laxmiram v Poonamchand, AIR 1921 Bom 128 ................................................................. 12
Lekh Raj v. State of Rajasthan and Anr, S.B. Civil Writ Petition No. 2597 of 1985 ............... 2
M Framrose & Co v. State of Maharastra, (1977) 40 STC 36 (Bom) .................................. 13
Magotteaux Industries Pvt. Ltd. v. Aia Engineering Ltd, (2009)ILR 3Delhi 22 .................... 12
Modi Entertainment Network & Anr v. W.S.G. Cricket Pte. Ltd, AIR 2003 SC 1177 ........... 10
Nagardas v. Velmahomed AIR 1930 Bom 249 .................................................................... 13
Naik v. Balwant, 1927 29 Bom LR 138 ............................................................................... 12
National Coop Sugar Mills Ltd v. Albert and Co., AIR 1981 Mad 172 ................................ 13
Pulavarti Sitaramamurty v. Bangaru Sobhanadri, (1950) 2 Mad LJ 505 ............................. 13
Rajasthan State Electricity Board, Kota and Anr., AIR 1988 Raj 64...................................... 2
Rajendra Prasad R. Singh v. Municipal Corpn. of Gr. Bombay, AIR 2003 Bom 392 ........... 12
Re Andrew Yule & Co. AIR 1932 Cal 879 ........................................................................... 13
Ruttonjey v. Jamanadas, (1882) 6 Bom 692 ........................................................................ 13
Suraj Besan and Rice Mills v. Food Corpn. of India, AIR 1988 Del 224 ............................... 3
Vani Chand v Laxmi Chand, (1920) ILR 44 Bom 272 ......................................................... 12

Foreign Judgements

AEB & Assocs. Design Group, Inc. v. Tonka Corp., 853 E Supp. 724, 732 (S.D.N.Y. 1994).. 6
Airbus Industrie GIE v. Patel & Ors., (1998) 2 All ER 257 ................................................. 11
Beanstalk Group, Inc. v. AM Gen. Corp., 283 E3d 856, 858-860 (7th Cir. 2002) ................... 7
Blake v. Ecker, 93 Cal.App. 4th 728, 742 (Cal. Ct. App. 2001).......................................... 2, 4
Carron Iron Company v. Maclaren, 1855 5 HLC 416 ......................................................... 10
Castanho v. Brown & Root (U.K.) Ltd. & Anr., (1981 Appeal Cases 557) ........................... 11
Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 119... 2
Chandler v. Aero Mayflower Transit Co., 374 F.2d 129, 135 n.11 (4th Cir. 1967) ................. 5
iv
Comb v. PayPal, Inc.' 218 E Supp. 2d 1165, 1172 (N.D. Cal. 2002) ...................................... 6
Comb v. PayPal, Inc. 218 F Supp. 2d 1165 (N.D. Cal. 2002)................................................. 8
Day v. Amax, 701 F.2d 1258 (8th Cir. 1983).......................................................................... 8
Dowagiac Mfg. Co. v. Schroeder, 84 N.W 14, 14 (Wis. 1900) ............................................... 6
Eerdmans v. Maki, 573 N.W.2d 329, 332 (1997) ................................................................... 8
First State Underwriters Agency of New England Reins. Corp. v. Travellers Ins. Co., 803 E2d
1308, 1311-12 (3d Cir. 1986) ............................................................................................ 7
Gibson v. Manchester City Council, [1978] 2 All ER 583 (CA) ............................................. 4
Goodwin v. Ford Motor Credit Company, 970 F.Supp. 1007, 1014 (U.S. Dist. Ct. Middle
Distr. Alabama 1997) ........................................................................................................ 6
Harris v. Nickerson, (1873) L.A. 8 QB 286 ........................................................................... 5
Hour Fitness, Inc. v. Superior Court, 66 Cal.App.4h 1199, 1200-1213 (1998)....................... 2
League Gen. Ins. Co. v. Tvedt, 317 N.W.2d 40 (Minn. 1982)................................................. 8
Macshannon vs. Rockware Glass Ltd., (1978) 1 All ER 625 ................................................ 11
Missouri Pac. R.R. v. Kansas Gas & Elec. Co., 862 E2d 796, 800 (10th Cir. 1988) ............... 7
O'Brien v. Okemo Mountain, Inc., 17 F. Supp. 2d 98, 103 (D. Conn. 1998) ........................... 9
Perkins v. Bell [1983] 1 QB 193 (CA) ................................................................................. 13
ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640 (W.D. Wis. 1996)............................................ 1
Re an Arbitration between Polemis and Furness, Wilthy & Co,. (1921) 3 KB 560 ............... 13
Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1435 (Mid. Dist. Ala. 1998) .................................. 6
Schupp v. Davey Tree Expert Co., 209 N.W 85, 86 (Mich. 1926) .......................................... 6
Schuster v. Blackcomb Skiing Enterprises Ltd. Partnership (1994) 100 B.C.L.R. (2d) 298 .... 3
Silvestri v. Italia bocieta Per Azioni üi Navigazione, 388 hzd 11,1 /-18 Ud Ur. lyööj ............. 9
Softman Prods. Co. v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001) .................... 4
Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585, 596 (S.D.N.Y. 2001) ........ 8
Standard Oil Co.of Cal. v. Perkins, 346 F.2d 379, 383 n. 5 (9th Cir. 1965)............................ 5
Step-Saver Data Systems lnc. v. WYSE Technology, 93 F 2d 91 (3d Cir 1991) .................... 2
Steven J. Caspi, et al. v. The Microsoft Network, 1999 WL 462175 ....................................... 7
Ticketmaster Corp. v. Tickets.com, Inc , 2000 WL 525390 (C.D. Cal., March 27, 2000) ........ 5
Vault Corp. v. Quaid Software Ltd, 847 F.2d 255 (5th Cir. 1988) .......................................... 3
Williams v. America Online Inc, No. 00-0962, 2001 WL 135825 ......................................... 5

Articles

v
Alan Schwartz, A Re-examination of Non-substantive Unconscionability, 63 VA. L. Rev.
1053, 1053 (1977) ............................................................................................................. 9
Caveat Surjer, Recent Developments in the Law Surrounding Browse- Wrap Agreements,
and the Future of Consumer Interaction With Websites, 14 Loy. Consumer L. Rev. 227,
228 (2002)....................................................................................................................... 10
Charles R. McManis, The Privatization (‘Shrink-Wrapping’) of American Copyright Law,
California Law Review, Vol. 87 ........................................................................................ 4
Christina L. Kunz, John E. Ottaviani, Elaine D. Ziff, Juliet M. Moringiello, Kathleen M.
Porter and Jennifer C. Debrow, Wrap Agreements: Validity of Implied Assent in
Electronic Form Agreements, The Business Lawyer, Vol. 59, No. 1 (November 2003) ..... 9
Dan Streeter, Comment into Contract's Undiscovered Country: A Defence of Browse-Wrap
Licenses, 39 San Diego L. Rev. 1363, 1389 (2002) ......................................................... 10
Diane W. Savage, The Impact of Proposed Article 2B of the Uniform form Commercial Code
on Consumer Contracts for Information and Computer Software, 9 LoY. CONSUMER L.
REP. 251, 254 (1997). ....................................................................................................... 5
Diane W. Savage, The Impact of Proposed Article 2B of the Uniform form Commercial Code
on Consumer Contracts for Information and Computer Software, 9 LoY. CONSUMER
L.REP. 251, 254 (1997). .................................................................................................... 7
Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With
Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REv.
563, 634 (1982) ................................................................................................................. 6
James R. Maxeiner, Standard-Terms Contracting in the Global Electronic Age: European
Alternatives, 28 YALEJ. INrr'L L. 109, 110 (2003) ........................................................... 6
Jean Braucher, New Basics: Twelve Principles for Fair Commerce in Mass-Market Software
and Other Digital Products, in Consumer Protection in the Age of the Information
Economy, 177, 177 (Jane K. Winn ed., 2006) .................................................................... 6
Kaustuv M. Das, Forum-Selection Clauses in Consumer Click-Wrap and Browse-Wrap
Agreements and the ‘Reasonably Communicated’ Test, 77 WASH. L. Rev. 481, 482
(2002) ............................................................................................................................... 8
Leon E. Trakman, Interpreting Contracts: A Common Law Dilemma, 59 CAN. B. Rev. 241,
241 (1981)......................................................................................................................... 7
Mark A. Lemley, Intellectual Property and Shrink-Wrap Licenses, 68 S.CAL.L.REV. 1249
(1995) ............................................................................................................................... 8
Mark A. Lemley, Shrinkwraps in Cyberspace, 35 JURIMETRICS J. 311, 317 (1995) ........... 8
vi
Michael I. Meyerson, The EfJicient Consumer Form Contract: Law and Economics Meets the
Real World, 24 GA. L. REv. 583, 589 (1990) .................................................................... 6
Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & EcoN.293, 305
(1975) ............................................................................................................................... 9
Richard A. Posner, The Law and Economics of Contract Interpretation, Paper 56, AM. Law
& Eco. Assn Ann. Meetings, at 14 (2005).......................................................................... 7
Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age,
77 N.Y.U. L. Rev. 429, 493 (2002).................................................................................. 10
St. Paul, Minnesota, The Scope of Contractual Obligations Restatement (Second) of
Contracts, American Law Institute (1981) 2: American Law Institute Publishers. para 206.
.......................................................................................................................................... 7

Statutes

Indian Contract Act, 1872 ..................................................................................................... 1

The Code of Civil Procedure, 1908 (Act No. V of 1908) ..................................................... 10
The Sales of Goods Act, 1980 (Act No. 3 of 1930) .............................................................. 12
Uniform Commercial Code ................................................................................................... 2

Dictionary and References

Black’s Law Dictionary, Fifth Ed .......................................................................................... 2

Restatement (Second) of Contracts para 211 cmt. b (1981) .................................................... 6

Books

Allan Farnsworth, Farnsworth on Contracts, (1990................................................................ 7

Arthur L. Corbin, Corbin on Contracts, para 1.4, pp. 558 (1993) ........................................... 2
E. Allan Farnsworth, Contracts 248 (1982)............................................................................ 6
Farnsworth, Contracts, 3rd ed., 1999 ...................................................................................... 4
G.H.L. Fridman, The Law of Contract in Canada , (Toronto: Thomson Carswell, 2006)........ 3
John D.Calamari & Joseph M. Perillo,The Law Of Contracts, (3d ed. 1987) ......................... 8
Justice GP Singh, R&D Law of Torts, 25th ed. 2009 ............................................................ 13
L. Ray Patterson & Stanley W. Lindberg, The Nature Of Copyright, 220 (1991) ................... 2
Mulla & Pollock, Indian Contract and Specific Relief Acts, Vol. I, 13th ed., 2006 ................. 4
PS Atiyah, An Introduction to the Law of Contract , 5th ed., 1995 ......................................... 4

vii
 STATEMENT OF JURISDICTION

The Plaintiff submits to the jurisdiction of Hon’ble Supreme Court of India upon the prayer
made by learned Attorney General for transfer of case from Hon’ble High Court of Delhi to
Hon’ble Supreme Court. The Plaintiff humbly submits to the jurisdiction of this Court.

viii
 STATEMENTS OF FACTS

The Partnership:

Narendra Nath Das and Premendra Pal Singh Bhullar formed a partnership firm, to
import/export goods and earn profits and called it Das & Bhullar.

The consignment:

The first consignment containing box packaged software of the Brand –Vally, manufactured
by a North Korean Company, M/S Business Solutions, landed at the Kandla port, on the 10 th
of January, 2003. The contract was entered into at the Indian branch at New Delhi.

The Dispute:

The seal of the Container was opened by the Customs’ officials after which, Mr. Bhullar, who
was a well- known erstwhile hacker along with being a tech and software wizard, opened one
of the box packages, with the words: “License Number – 1983/11/21, Beware: Shrink Wrap,
Click Wrap, Browse Wrap – Product of North Korea, All Rights Protected under Applicable
Laws,” printed in English. He ran the CD on his Linux notebook computer, which had no
anti-virus software or a licensed Operating System. He kept on clicking ‘OK’, till it reached
the EULA page, then connected to the Internet, opened a website and continued clicking
‘OK’ till he reached the ERP front face of the software. Following a warning from the
Customs officials about some boxes being pirated and non-original, Mr. Das and Mr. Bhullar
immediately returned the consignment to the vendor M/s Business Solutions.

Notice:

On or about 23rdFebruary 2005, Mr. Das and Mr. Bhullar received a notice from the
Pyongyang office of Kahn, Bachh &Puch. The notice stated the License Number –
1983/11/21, for which no amount was paid by the firm, Das and Bhullar, has been hacked in
Turkmenistan and thousands of pirated copies have been made of the same. It also stated that
aggrieved clients are not only contemplating action under the WTO laws, but are also
demanding immediate damages under the Indian laws of license fee, for atleast ten thousand
copies, as an interim measure.

ix
The Anti-Suit Injunction:

Following this notice, Mr. Das and Bhullar filed a suit, in the original side of the Delhi High
Court, making M/s Business Solutions as a defendant. It was prayed that:

1. It should be declared that there existed no valid contract for the aforesaid license
number.
2. An anti-suit injunction or relief of similar nature, to beprovided as there existed no
contractual relations between the parties; including a prohibition to invoke the WTO
proceedings in any manner.

The Counter-Claim:

The defendant filed an application under O 7 R 11, and raised a counter-claim.

Amicus Curiae:

The Hon’ble Court, realizing that the matter involves substantial questions, sought assistance
as Amicus of two ld. Additional Solicitor General for the two sides.

Transfer of Case:

The ld. Attorney General prayed before the Supreme Court for transfer of this case to the
Supreme Court for any further hearing, which was allowed by the Supreme Court. The matter
is now listed before the Supreme Court for further arguments.

x
 ISSUES RAISED

The following issues are to be adjudicated by this Hon’ble Court:

1. Whether or not, there exists a valid license agreement between the parties?
2. Whether or not, the Anti-suit injunction may be granted?
3. Whether or not, the original Plaintiff is responsible for misuse of License Number-
1983/11/21 which resulted into the counterfeit and pirated copies being made?
4. Whether or not, the Supreme Court should grant damage to the tune of exact number
of copies pirated?

xi
 SUMMARY OF ARGUMENTS

1. WHETHER OR NOT, THERE EXISTS A VALID LICENSE AGREEMENT BETWEEN THE

PARTIES?

It is humbly submitted that End User License Agreement does not form a valid agreement.
These forms of license agreements are not consistent with the basic principle of contract law.
These agreements lack proper proposal, acceptance and consideration.

It is also submitted that these agreements are against the public policy and are unoconscious.
Therefore, there exists no valid license agreement.

2. WHETHER OR NOT, THE ANTI-SUIT INJUNCTION MAY BE GRANTED?

It is submitted that the anti-suit injunction should be granted. It is submitted that the
defendant is amenable to the personal jurisdiction of the court. Also, it would be vexatious
and oppressive to go to WTO which is a forum non-conveniens.

3. WHETHER OR NOT, THE ORIGINAL PLAINTIFF IS RESPONSIBLE FOR MISUSE OF

LICENSE NUMBER-1983/11/21 WHICH RESULTED INTO THE COUNTERFEIT AND
PIRATED COPIES BEING MADE?

The original plaintiff is not responsible for the misuse of License Number-1983/11/21.
Bhullar was merely exercising the right to examine the goods under the sales of goods act.
Further, the causation was not proved it is only because of Bhullar the piracy has accrued.
The consequences are too remote to make Bhullar liable.

4. WHETHER OR NOT, THE SUPREME COURT SHOULD GRANT DAMAGE TO THE TUNE OF
EXACT NUMBER OF COPIES PIRATED?

It is submitted before this Hon’ble Court that where contract is not concluded, no action for
its breach or for damages will lie. No damages can be awarded by the court without coming
to any conclusion about breach, merely on the ground that the defendant has been profited by
the contract. Hence, the Hon’ble Court Should not grant damages.

xii
 ARGUMENTS ADVANCED

1. WHETHER THERE EXISTS A VALID CONTRACT BETWEEN THE

PARTIES FOR LICENSE NUMBER- 1983/11/21?
It is humbly submitted that End User License Agreement does not form a valid agreement. It
is submitted that: [1.1] Shrink Wrap is an unenforceable contract. [1.2] Click Wrap is an
unenforceable contract. [1.3] Browse Wrap is an unenforceable contract.

[1.1] SHRINK WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF CONTRACT LAW
It is submitted that Shrink Wrap form of End User is not consistent with the basic principle of
contract law. It is submitted that a valid contract is not formed unless all of the elements of
contract formation are fulfilled. It is submitted that: [1.1.1] Absence of proper proposal.
[1.1.2] Absence of acceptance. [1.1.3] No consideration.

[1.1.1] Absence of proper proposal

It is submitted that the Shrink Wrap does not contain a proper proposal as according to Indian
Contract Act, 1872 when one person signifies to another his willingness to do or to abstain
from doing anything, with a view to obtaining the assent of that other to such act or
abstinence, he is said to make a proposal.1 It is therefore submitted that there is absence of
proper proposal in case of shrink wrap agreement since the end user did not see the terms of
the Shrink Wrap License until after the purchase was consummated. The federal district court
in case of ProCD, Inc. v. Zeidenberg2 held that the entire terms of the license agreement had
to be visible on the packaging of the software before the purchase was consummated in order
for the terms of the license to form part of the bargain between the parties. 3

Therefore, it is submitted that Mr. Bhullar was unable to read the mandarin and hence cannot
carve out the terms and condition of use. Hence there was not a proper proposal from M/S
Business Solutions.

1
Sec 2 (a) Indian Contract Act, 1872 (Act No. 9 of 1872).
2
ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640 (W.D. Wis. 1996).
3
Id.

1
 [1.1.1.1] Contract of Adhesion
It is submitted that the Claim by M/S Business Solution regarding the enforceability of
Shrink Wrap form of End User license Agreement is a Contract of Adhesion. 4 Standardized
contract form offered to consumers of goods and services on essentially "take it or leave it"
basis without affording consumer realistic opportunity to bargain and under such conditions
that consumer cannot obtain desired product or services except by acquiescing in form
contract. Distinctive feature of adhesion contract is that weaker party has no realistic choice
as to its terms.5 It is also submitted that every contract of adhesion is not unconscionable per
se only those contracts which contain term which are unfair and unreasonable that they shock
the conscience of the court can be regarded as opposed to public policy and may justify
adjudication by the courts.6

shrink-wrap licenses of mass-distributed copyrighted works "are almost surely against public
policy as unilateral attempts to override public law.. . in an adhesion contract." 7

In the US, some cases suggest that such licences are unenforceable, as they attempt to modify
the terms of the contract already made and understood by the buyer and seller. In Step-Saver
Data Systems lnc v WYSE Technology8; the court concluded that the Shrink Wrap Licence
was ‘best seen as one more form in a battle of forms’, and applying UCC s 2-2079, held that
the contract was concluded with the placing of the order and the acceptance on the telephone,
and the disclaimers and warranties in the Shrink Wrap Licence sent to the customer after this
contract, materially altered the terms of the contract, and therefore were not part of the
agreement.

The Contract of Adhesion indicated briefly is that where freedom of contract is absent and
the weaker party had no realistic choice as to its terms, then a contract containing an
unconscionable term10 may be a contract of adhesion.11

4
Black’s Law Dictionary, Fifth Ed., at pp. 38; Hour Fitness, Inc. v. Superior Court, 66 Cal.App.4h 1199, 1200-
1213 (1998); Arthur L. Corbin, Corbin on Contracts, para 1.4, pp. 558 (1993).
5
Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 119.
6
Lekh Raj v. State of Rajasthan and Anr, S.B. Civil Writ Petition No. 2597 of 1985.
7
L. Ray Patterson & Stanley W. Lindberg, The Nature Of Copyright, 220 (1991).
8
Step-Saver Data Systems lnc. v. WYSE Technology, 93 F 2d 91 (3d Cir 1991).
9
Section 2-207 of Uniform Commercial Code.
10
Blake v. Ecker, 93 Cal.App. 4th 728, 742 (Cal. Ct. App. 2001).
11
D.C.M. Ltd. and Anr. v. Assistant Engineer (HMT Sub-Division), 1997 AIR 3910, Rajasthan State Electricity
Board, Kota and Anr., AIR 1988 Raj 64.

2
The first legal ruling to address the enforceability of a Shrink Wrap License grew out of a
pair of decisions (a trial court decision and an appeal to the Fifth Circuit) from Louisiana. In
the well known case of Vault Corp. v. Quaid Software Ltd.12, the district court stated without
explication that the Shrink Wrap license at issue in that case was “a contract of adhesion
which could only be enforceable” if the provisions of a Louisiana statute—which explicitly
made such license agreements enforceable—were a valid statute that was not pre-empted by
federal law. Accordingly, the court held that the Louisiana statute “touches upon an area” of
federal copyright law and was to that extent unenforceable. 13

[1.1.1.1.1] Notice of Terms of Use was insufficient

The amicus from the side of Das and Bhullar submit that they are not bound by something
that does not turn on notice. 14 Agreement is at the basis of any legally enforceable contract.
The absence of assent prevents the creation of a binding contract. There must be a consensus
ad idem.15

Shrink Wrap License Agreement are enter into by the parties merely by opening the Shrink or
Packaging and thus did not give scope for any deliberation upon the terms. Formation of a
contract requires that a party have knowledge or notice of an offer in order to accept it or
reject it.16 Hence it is submitted that there is absence of Notice of terms of use.

[1.1.2] Absence of acceptance

It has been held that every transaction, to be recognised as a contract, must in its ultimate
analysis; resolve itself into a proposal and its absolute and unqualified acceptance. 17
According to Indian Contract Act, 1872 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. 18

In case like this (the matter in hand), it is difficult to say who has made the offer, and who has
accepted the same. In commercial transactions, particularly complex ones, contracts are often
concluded after prolonged negotiations in which the sequence of offer and acceptance cannot
be identified. The correspondence must then be considered as a whole, along with the
12
Vault Corp. v. Quaid Software Ltd, 847 F.2d 255 (5th Cir. 1988).
13
Id.
14
Supra note 5.
15
G.H.L. Fridman, The Law of Contract in Canada , (Toronto: Thomson Carswell, 2006) at pp. 13.
16
Schuster v. Blackcomb Skiing Enterprises Ltd. Partnership (1994) 100 B.C.L.R. (2d) 298, para 14.
17
Badri Prasad v. State of Madhya Pradesh, AIR 1970 SC 706; Suraj Besan and Rice Mills v. Food Corpn. of
India, AIR 1988 Del 224; Deep Chandra v. Rukruddaula Shamsher J N M Sajjad All Khan, AIR 1951 All 93.
18
Sec 2 (b) Indian Contract Act, 1872 (Act No. 9 of 1872).

3
conduct of the parties to see whether the parties have reached an agreement.19 These types of
cases are special cases and are regarded as exceptions.20 In order to decide whether there is an
absolute and unqualified agreement between the parties, the entire negotiations and
correspondence should be considered. 21

An acceptance is a final and unqualified expression of assent to the terms of

a Proposal. Section 2(b) defines acceptance as assent to the proposal by the person to whom
the proposal has been made. An unqualified, unconditional acceptance of the offer creates a
contract when communicated to the offeror.22 There was no communication of acceptance
being made to the offeror in all the three form of agreements.

[1.1.2.1] Conduct of Bhullar is not an acceptance

It is well settled that an offer may be accepted by conduct. But conduct would only amount to
acceptance if it is clear that the offered did the act with the intention (actual or apparent) of
accepting the offer. 23 It is clear from the fact that Bhullar did not intended to accept the
proposal of Shrink wrap agreement by just opening the Packaging since he was surprised by
receiving the notice form the Pyongyang office of Kahn, Bachh and Puch. 24 Since the typical
software shrink- wrap license purports to obligate anyone who break the seal to comply with
various contractual terms, often found only inside the box and thus unreviewable until the
seal is broken.25

[1.1.3] No consideration
Only those promises which are supported by consideration are enforceable, others are not
binding, even if the promisor intends to bind himself by the promise. 26 Among the limitations
on the enforcement of promises, the requirement of consideration is described as the most
fundamental.27 It ensures that the parties have decided to contract after deliberation, and not
on impulse. It is an index of the seriousness of the parties to be bound by the bargain.
Consideration also serves an evidential and formal function. 28

19
Gibson v. Manchester City Council, [1978] 2 All ER 583 (CA).
20
Joseph Chitty, Chitty on Contracts , 28th ed., 1999, pp. 132-33, para 2-101,.
21
Dhulipada Namayya v. Union of India, AIR 1958 AP 533.
22
Lalman Shukla v. Gauri Dutt, (1913) 11 All LJ 489.
23
Bhagwati Prasad Pawan Kumar v. Union of India, AIR 2006 SC 2331.
24
Moot Preposition, para 7, pp. 2.
25
Charles R. McManis, The Privatization (‘Shrink-Wrapping’) of American Copyright Law, California Law
Review, Vol. 87, No. 1; Softman Prods. Co. v. Adobe Sys., Inc., 171 F. Supp. 2d 1075 (C.D. Cal. 2001).
26
PS Atiyah, An Introduction to the Law of Contract , 5th ed., 1995, pp 118.
27
Farnsworth, Contracts, 3rd ed., 1999, pp. 45,
28
Mulla & Pollock, Indian Contract and Specific Relief Acts, Vol. I, 13th ed., 2006, pp. 66.

4
 [1.2] CLICK WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF CONTRACT LAW.
It is submitted that Click Wrap form of End User license is not consistent with the basic
principle of contract law. It is submitted that: [1.2.1] Absence of proper proposal. [1.2.2]
Absence of acceptance.

[1.2.1] Absence of proper proposal

It is submitted that a proposal should be proper in order to bind the other party. It should be
distinguished from mere statement of intention. 29 In Ticketmaster Corp. v. Tickets.com, Inc.30
the User was not bound by the terms restricting the use of the Web site because, among other
things, the User could find the terms only by scrolling past the instructions, past the directory
of Ticketmaster event pages and their own hyperlinks, and finally to the bottom of the
homepage where the User could read the terms if desired. Moreover, the User instead could
link to other pages without viewing those terms. 31 In Ticketmaster, the terms and conditions
were not binding.32

In Williams v. America Online, Inc.,33 the court refused to grant AOL’s motion to dismiss
because, among other items, the User did not assent to the terms and conditions, including the
contested forum selection clause. 34 The User could not even view the agreement terms
without twice overriding the “I agree” button by twice clicking the “Read now” button. 35
Thus, AOL built in a powerful incentive for the User to assent without reading the terms.

[1.2.1.1] Contract of Adhesion

In fact, the B2C jurisdictional choice of law click-wrap may be the adhesion contract36 of the
digital age-- a boilerplate set of terms assembled by businesses and presented to consumers
on a take-it-or-leave-it basis. First, the juxtaposed roles of business and consumer exemplify
a disparate power relationship. 37 Second, these clicks wraps exhibit a boilerplate structure and

29
Harris v. Nickerson, (1873) L.A. 8 QB 286.
30
Ticketmaster Corp. v. Tickets.com, Inc , 2000 WL 525390 (C.D. Cal., March 27, 2000)
31
Id.
32
Id., at pp. 3.
33
Williams v. America Online Inc, No. 00-0962, 2001 WL 135825.
34
Id., at 2.
35
Id., at 3.
36
Diane W. Savage, The Impact of Proposed Article 2B of the Uniform form Commercial Code on Consumer
Contracts for Information and Computer Software, 9 LoY. CONSUMER L. REP. 251, 254 (1997).
37
Chandler v. Aero Mayflower Transit Co., 374 F.2d 129, 135 n.11 (4th Cir. 1967); Standard Oil Co.of Cal. v.
Perkins, 346 F.2d 379, 383 n. 5 (9th Cir. 1965).

5
take-it-or-leave-it 38 , or click-it-or-leave-it, ultimatum. Consumers must either agree to the
terms or do without the good or service sought.

Further, click-wraps employ no direct negotiation, let alone contact, between the parties. This
attribute is even more pronounced in the electronic forum: Though the consumer in the
traditional marketplace can attempt to cross out, modify, or at least argue about terms, in a
click-wrap agreement, the consumer can only accept the terms in their entirety or reject them
in their entirety. Finally, by permitting sellers to divest consumers of territorial jurisdictional
rights and award a choice of most favourable law or jurisdiction to themselves, businesses
obtain all of the benefit of the agreement while the consumer all of the detriment. 39

A contract of adhesion, in turn, is a "standardized contract, which, imposed and drafted by the
party of superior bargaining strength, relegates to the subscribing party only the opportunity
to adhere to the contract or reject it."40 As defined in Comb v. PayPal, Inc.,41 Contract of
Adhesion is a standardized contract drafted by the party with superior bargaining power and
forcing the subscribing party to either adhere to or reject the contract.

The perceived malady associated with such one-sided contracts in the early twentieth century
was that they were drafted by parties with superior bargaining power and dictated one-sided
"take-it-or-leave-it" contracts to patently inferior bargaining parties. 42 A party who makes
regular use of a standardized form of agreement does not ordinarily expect his customers to
understand or even to read the standard terms. 43

38
Jean Braucher, New Basics: Twelve Principles for Fair Commerce in Mass-Market Software and Other
Digital Products, in Consumer Protection in the Age of the Information Economy, 177, 177 (Jane K. Winn ed.,
2006); James R. Maxeiner, Standard-Terms Contracting in the Global Electronic Age: European Alternatives,
28 YALEJ. INrr'L L. 109, 110 (2003).
39
Goodwin v. Ford Motor Credit Company, 970 F.Supp. 1007, 1014 (U.S. Dist. Ct. Middle Distr. Alabama
1997); Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1435 (Mid. Dist. Ala. 1998).
40
Comb v. PayPal, Inc.' 218 E Supp. 2d 1165, 1172 (N.D. Cal. 2002)
41
Id.
42
AEB & Assocs. Design Group, Inc. v. Tonka Corp., 853 E Supp. 724, 732 (S.D.N.Y. 1994); Duncan Kennedy,
Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms
and Unequal Bargaining Power, 41 MD. L. REv. 563, 634 (1982); Michael I. Meyerson, The EfJicient
Consumer Form Contract: Law and Economics Meets the Real World, 24 GA. L. REv. 583, 589 (1990).
43
Restatement (Second) of Contracts para 211 cmt. b (1981); E. Allan Farnsworth, Contracts 248 (1982);
Schupp v. Davey Tree Expert Co., 209 N.W 85, 86 (Mich. 1926); Dowagiac Mfg. Co. v. Schroeder, 84 N.W 14,
14 (Wis. 1900) .

6
 [1.2.1.2] Notice of Terms of Use was insufficient
It is submitted that in Caspi v. The Microsoft Network,44 the Users argued that the contested
clause did not become part of the contract because they did not receive adequate notice of the
clause.45

Click-wrap agreements generally focus not a need to protect the intellectual property rights of
a software manufacturer, but usually to prevent inconveniences or uncertainties of foreign
suit.46

[1.2.1.2.1] Doctrine of contra proferentum will be applicable

Contra proferentem also known as "interpretation against the draftsman” is a doctrine of
contractual interpretation providing that, where a promise, agreement or term is ambiguous,
the preferred meaning should be the one that works against the interests of the party who
provided the wording. 47

If a contract was capable of different constructions, some courts applied the rule of
construction known as contra proferentum, under which the court construed ambiguities
against the drafter, so long as it did not shelter those who failed unreasonably to shield
themselves. 48

[1.2.2] Absence of proper acceptance.

It is submitted that the clicking the button cannot be construed as an acceptance because it
lack of bargaining power. Click-wrap agreements do not fit neatly within the bargain theory
of contract formation envisioned by the Second Restatement of Contracts.49

A contract is a promise or set of promises that the law will enforce in some manner. 50
Contract law requires three elements in order to affect a binding contract: offer, acceptance,

44
Steven J. Caspi, et al. v. The Microsoft Network, 1999 WL 462175.
45
Id.
46
Diane W. Savage, The Impact of Proposed Article 2B of the Uniform form Commercial Code on Consumer
Contracts for Information and Computer Software, 9 LoY. CONSUMER L.REP. 251, 254 (1997).
47
St. Paul, Minnesota, The Scope of Contractual Obligations Restatement (Second) of Contracts, American Law
Institute (1981) 2: American Law Institute Publishers. para 206.
48
Beanstalk Group, Inc. v. AM Gen. Corp., 283 E3d 856, 858-860 (7th Cir. 2002); Missouri Pac. R.R. v. Kansas
Gas & Elec. Co., 862 E2d 796, 800 (10th Cir. 1988); First State Underwriters Agency of New England Reins.
Corp. v. Travellers Ins. Co., 803 E2d 1308, 1311-12 (3d Cir. 1986); Richard A. Posner, The Law and
Economics of Contract Interpretation, Paper 56, AM. Law & Eco. Assn Ann. Meetings, at 14 (2005); Leon E.
Trakman, Interpreting Contracts: A Common Law Dilemma, 59 CAN. B. Rev. 241, 241 (1981).
49
Supra note 48.
50
Allan Farnsworth, Farnsworth on Contracts, (1990) para 1.1, at 4;

7
and consideration. 51 The offer serves as a promise: a commitment to do or refrain from doing
something in the future.52 An offer creates the power of acceptance in the offeree, enabling
him to turn the offeror’s promise into a contractual obligation. 53 An offer is a manifestation of
assent to enter into a bargain made by the offeror, conditional on assent by the offeree. 54 The
offeree’s assent may take the form of a return promise or act.55

Traditional contract law envisions contract formation only after the parties have bargained
over the terms. Mass-market click wrap transactions, however, typically lack any bargaining
between the vendor and user with respect to license terms. 56

Unlike traditional written contracts for the sale of goods or services, the party against whom
the terms will be enforced in a click-wrap agreement never signs the license. 57

A key issue in the common law of contracts that is especially relevant to determining the
enforceability of click-wrap agreements is whether assent should be determined on the basis
of the parties’ actual or apparent intentions. 58

[1.3] BROWSE WRAP IS NOT CONSISTENT WITH THE BASIC PRINCIPLES OF CONTRACT LAW.
It is submitted that Browse Wrap form of End User license is not consistent with the basic
principle of contract law. It is submitted that: [1.3.1] Absence of proper proposal. [1.3.2]
unconscious acceptance.

[1.3.1] Absence of proper proposal.

Thus, the User was not required to assent to the license before downloading that software, so
the license was not binding on the User.59 The U.S. District Court for the Northern District of
California held in Comb v. PayPal, Inc.,60an early wrap case, that a browse-wrap clause61 was

51
Hyman Farm Serv. Inc. v. Earth Oil & Gas Co., Inc., 920 S.W.2d 452, 457 (1996).
52
John D.Calamari & Joseph M. Perillo,The Law Of Contracts, para 2-5, at pp. 31 (3d ed. 1987); Day v. Amax,
701 F.2d 1258 (8th Cir. 1983).
53
Id.; League Gen. Ins. Co. v. Tvedt, 317 N.W.2d 40 (Minn. 1982).
54
Eerdmans v. Maki, 573 N.W.2d 329, 332 (1997).
55
Supra note 51.
56
Mark A. Lemley, Intellectual Property and Shrink-Wrap Licenses, 68 S.CAL.L.REV. 1249 (1995).
57
Mark A. Lemley, Shrinkwraps in Cyberspace, 35 JURIMETRICS J. 311, 317 (1995).
58
Supra note 51 at 168.
59
Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585, 596 (S.D.N.Y. 2001). At 596.
60
Comb v. PayPal, Inc. 218 F Supp. 2d 1165 (N.D. Cal. 2002).
61
Kaustuv M. Das, Forum-Selection Clauses in Consumer Click-Wrap and Browse-Wrap Agreements and the
‘Reasonably Communicated’ Test, 77 WASH. L. Rev. 481, 482 (2002).

8
procedurally unconscionable because the customer lacked the opportunity to negotiate the
terms of a take-it-or-leave-it contract.62

[1.3.1.1] Whether the user is provided with adequate notice of the existence of the proposed
term?
What constitutes "adequate notice" of the existence of the terms should be judged both in
terms of the physical presentation of the notice and the content of the notice. 63 The terms
were not reasonably communicated to the purchaser and thus not assented to.64

Ticketmaster Corp. and Tickets.com, Inc. 65 , the court has refused to issue a preliminary
injunction enforcing the browse-wrap agreement and has also re- fused to dismiss the breach
of contract claim based on alleged violations of the browse-wrap agreement.

In Specht v. Netscape Communications Corp, 66 discussed below, because in that case, the
plaintiff's license terms were not plainly visible or known to the defendants and so were not
binding on the user who downloaded software without any notice or knowledge of the term. 67
Both the district court and the U.S. Court of Appeals for the Second Circuit agreed with the
plaintiffs, holding that the license agreement was not enforceable because the users could -
and actually were encouraged to download the software before manifesting assent to any
license terms, before being given a reasonable opportunity to view any terms, and before
even receiving notice of the existence of any terms. 68 51 Importantly, the Second Circuit also
held that, due to the design of Netscape's Web site, a reasonably prudent Web site user
"would not have known or learned" of the existence of the Smart Download license term. 69

Thus, at least in a consumer contract setting, the terms may not be binding on the user if the
user does not receive "immediately visible" notice that terms exist until after the user has
availed itself of the software, data, or other items available on a Web site or CD-ROM.70

62
Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & EcoN.293, 305 (1975); Alan
Schwartz, A Re-examination of Non-substantive Unconscionability, 63 VA. L. Rev. 1053, 1053 (1977) .
63
Christina L. Kunz, John E. Ottaviani, Elaine D. Ziff, Juliet M. Moringiello, Kathleen M. Porter and Jennifer
C. Debrow, Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements, The Business
Lawyer, Vol. 59, No. 1 (November 2003), pp. 291.
64
Silvestri v. Italia bocieta Per Azioni üi Navigazione, 388 hzd 11,1 /-18 Ud Ur. lyööj; O'Brien v. Okemo
Mountain, Inc., 17 F. Supp. 2d 98, 103 (D. Conn. 1998).
65
Supra note 30.
66
Specht v. Netscape Communications Corp 150 F. Supp. 2d 585 (S.D.N.Y. 2001), 306 F.3d 17 (2d Cir. 2002).
67
Supra note 30.
68
Supra note 67.
69
Id.
70
Id.

9
Taken together, the decisions specifically addressing browse-wrap agreements do not provide
a clear answer to the question of the validity of users' assent to the proposed terms. 71
Commentators also disagree as to the validity of assent in a browse- wrap format.72

[1.3.2] Unconsciousable Acceptance

In this case it has been said that there cannot be assent without knowledge of the offer and
reliance upon it. "If a contract or term thereof is unconscionable at the time the no contract is
made, a court may refuse to enforce the contract, or may enforce the remainder of the
contract without the unconscionable term, or may so limit the application of any
unconscionable term as to avoid any unconscionable result." 73

2. WHETHER THE ANTI-SUIT INJUNCTION SHOULD BE GRANTED?

It is submitted that the Anti-suit injunction should be granted against the invoking of WTO
proceedings. In the leading case of Modi Entertainment Network & Anr v. W.S.G. Cricket
Pte. Ltd,74it was held by this Hon’ble Court that:

1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of

the following aspects:
a) The defendant, against whom injunction is sought, is amenable to the personal
jurisdiction of the court75

It is submitted that the Injunction is sought against the Defendant which are amenable to the
personal jurisdiction of the court as according to sec.20 of the Civil Procedure
Code76(hereinafter, referred to as CPC) the Suit shall be instituted in Court within the local
limits of whose jurisdiction- a) the defendant, or each of the defendant where there are more
than one, at the time of the commencement of the suit, actually or voluntarily resides, or
carries on business, or personally works for gains.

71
Supra note 288.
72
Caveat Surjer, Recent Developments in the Law Surrounding Browse- Wrap Agreements, and the Future of
Consumer Interaction With Websites, 14 Loy. Consumer L. Rev. 227, 228 (2002); Robert A. Hillman & Jeffrey
J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. Rev. 429, 493 (2002); Dan
Streeter, Comment into Contract's Undiscovered Country: A Defence of Browse-Wrap Licenses, 39 San Diego
L. Rev. 1363, 1389 (2002).
73
Supra note 44 at 208.
74
Modi Entertainment Network & Anr v. W.S.G. Cricket Pte. Ltd, AIR 2003 SC 1177.
75
Carron Iron Company v. Maclaren, 1855 5 HLC 416.
76
The Code of Civil Procedure, 1908 (Act No. V of 1908).

10
Since, the defendant was carrying on the business in Delhi so they are amenable to the
personal jurisdiction of the Court.

b) If the injunction is declined the ends of justice will be defeated and injustice will be
perpetuated.77

It is submitted that if the injunction is declined the ends of justice will be defeated and
injustice will be perpetuated. It is submitted that the matter involve substantial question of
law i.e. the validity of end user license agreement which is to be decided by Hon’ble Supreme
Court. Hence, the injunction should be granted in order against the defendant so that they
cannot invoke proceedings in WTO.

c) The principle of comity - respect for the court in which the commencement or
continuance of action/proceeding is sought to be restrained - must be borne in mind.78

It is submitted that the principle of comity has not been violated since, the proceeding has not
been instituted in any other (Foreign Court), the notice only show that the clients are only
contemplating action under WTO laws. Hence, the principle of Comity has not been violated.

It is a common ground that the Courts in India have power to issue anti-suit injunction to a
party over whom it has personal jurisdiction, in an appropriate case. This is because courts of
equity exercise jurisdiction in personam. However, having regard to the rule of comity, this
power will be exercised sparingly because such an injunction though directed against a
person, in effect causes interference in the exercise of jurisdiction by another court. 79

2) In a case where more forums than one are available, the Court in exercise of its
discretion to grant anti-suit injunction will examine as to which is the appropriate
forum (forum conveniens) having regard to the convenience of the parties and may
grant anti-suit injunction in regard to proceedings which are oppressive or vexatious
or in a forum non-conveniens.80

The Plaintiff took out motion in the Delhi High Court praying for anti-suit injunction against
the Defendant in regard to the action in the WTO on the ground that the Indian Court was a

77
Castanho v. Brown & Root (U.K.) Ltd. & Anr., (1981 Appeal Cases 557).
78
Airbus Industrie GIE v. Patel & Ors., (1998) 2 All ER 257.
79
Supra note 75 at pp. 6.
80
Macshannon vs. Rockware Glass Ltd., (1978) 1 All ER 625.

11
natural forum for the adjudication of the dispute and that invoking of the proceedings in the
WTO would, on the facts of the case, be vexatious and oppressive.

It is submitted that there is absence of exclusive jurisdiction clause in the Contract which
shows that the non-exclusive jurisdiction of Delhi High Court will prevail. Hence, according
to the plaintiff the WTO is not the natural forum and the notice has been sent only to harass
the Plaintiff as the contract for the license agreement was invalid and hence the Anti-suit
Injunction should be granted in order to invoke proceeding in WTO. 81

It has been held by Bombay High Court that the Court has the power to restrain a party from
proceeding with a suit in a foreign court,82 if there is real hardship on the party before it or
something vexatious or oppressive would result. 83

Therefore, according to O 39 R 1 along with the Sec. 151 of the CPC, the anti-suit injunction
must be granted.84

3. WHETHER THE ORIGINAL PLAINTIFF IS RESPONSIBLE FOR MISUSE

OF LICENSE NUMBER-1983/11/21 WHICH RESULTED INTO THE
COUNTERFEIT AND PIRATED COPIES BEING MADE?
It is submitted that original Plaintiff is not responsible for misuse of license number
1983/11/21. It is submitted that: [3.1] Plaintiff was exercising right to inspect the goods,
[3.2] The consequences are too remote to foresee.

[3.1] RIGHT TO INSPECT THE GOODS

It is submitted that the software are ‘goods’ under Sec. 2 (7) of The Sale of Goods Act,
1980.85 It is submitted that Bhullar was merely exercising the right to examining the goods
under Sec. 41 of the Sales of Goods Act, 1980, that clearly states 1) where goods are
delivered to the buyer which he has not previously examined, he is not deemed to have
accepted them unless and until he has had a reasonable opportunity of examining them for
the purpose of ascertaining whether they are in conformity with the contract.86

81
Magotteaux Industries Pvt. Ltd. v. Aia Engineering Ltd, (2009)ILR 3Delhi 22.
82
The Code of Civil Procedure, 1908 (Act No. v of 1908).
83
Naik v. Balwant, 1927 29 Bom LR 138; Vani Chand v Laxmi Chand, (1920) ILR 44 Bom 272; Laxmiram v
Poonamchand, AIR 1921 Bom 128.
84
Rajendra Prasad R. Singh v. Municipal Corpn. of Gr. Bombay, AIR 2003 Bom 392.
85
The Sales of Goods Act, 1980 (Act No. 3 of 1930).
86
Id.

12
It is submitted that it is the buyer’s business to verify, not the seller’s to supply further proof
that the goods are according to contract.87 It is also submitted that prime facie the time and
place of examination are the time and place of delivery. 88

[3.2] THE CONSEQUENCES ARE TOO REMOTE TO FORESEE.

It is submitted that there would be manifest injustice if a person is held liable for all the
consequences of his act which in theory may be endless. 89 The clicking on the computer
screen cannot be construed merely because he was an erstwhile hacker, 90 the contention of
the defendant is too remote91 since the piracy activity was operating in Turkmenistan but the
defendant was merely at Kandla port.

4. WHETHER COURT SHOULD GRANT DAMAGE TO THE TUNE OF

EXACT NUMBER OF COPIES PIRATED?
It is submitted before this Hon’ble Court that where contract is not concluded, no action for
its breach or for damages will lie. 92No damages can be awarded by the court without coming
to any conclusion about breach, merely on the ground that the defendant has been profited by
the contract.93

Hence, the Hon’ble Court Should not grant damages.

87
M Framrose & Co v. State of Maharastra, (1977) 40 STC 36 (Bom); Ruttonjey v. Jamanadas, (1882) 6 Bom
692.
88
Perkins v. Bell [1983] 1 QB 193 (CA); Nagardas v. Velmahomed AIR 1930 Bom 249; Re Andrew Yule & Co.
AIR 1932 Cal 879.
89
Justice GP Singh, R&D Law of Torts, 25th ed. 2009, pp. 184,.
90
Moot Proposition , para 3, pp 1.
91
Re an Arbitration between Polemis and Furness, Wilthy & Co,. (1921) 3 KB 560.
92
National Coop Sugar Mills Ltd v. Albert and Co., AIR 1981 Mad 172.
93
Pulavarti Sitaramamurty v. Bangaru Sobhanadri, (1950) 2 Mad LJ 505.

13
 PRAYER

In light of the facts stated, arguments advanced and authorities cited, the amicus from side of
M/S Das & Bhullar most humbly and respectfully pray before this Hon’ble Court to adjudge
and declare that:

1. The End User License form of agreement for License Number-1983/11/21 is not
valid.

2. The Anti-Suit Injunction be granted in order to invoke proceedings in WTO.

3. The original Plaintiff is not responsible for the misuse of the License Number-
1983/11/21.

4. No damages shall be awarded to the tune of copies pirated.

Respectfully submitted
………………………..

(Amicus from side of M/S Das and Bhullar)

xiii