Intra Faculty B

-3rd JAMIA MILLIA ISLAMIA INTER FACULTY MOOT COURT COMPETITION, 2017-
TEAM CODE: TC 40
JAMIA MILLIA ISLAMIA
FACULTY OF LAW (INTRA) MOOT COURT COMPETITION, 2017
BEFORE
THE HON’BLE HIGH COURT AT DELHI
WRIT PETITION NO.____/2018
[Under Article 136 of Constitution of Democratic State Of
“Asnard”]
In the Matter of
HPC Ltd., & Amy Santiago……….Petitioner
Versus
Steve Rovers …………Respondent
MEMORIAL ON BEHALF OF THE RESPONDENT
-
TABLE OF CONTENTS
-
INDEX OF ABBREVIATIONS
A.I.R. All India Reporter
Art. Article
Co. Company
Ed. Edition
Hon’ble Honourable
Ltd. Limited.
Ors. Others
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sr. Senior
& And
U.O.I Union of India
v. /vs. Versus
INDEX OF AUTHORITIES
INDIAN CASES.
1. ARSP Subramanian Chetty v. Official Assignee of Madras, AIR 1931 Mad 603.
2. of A.P.SEB v. Patel & Patel
3. Abdur Rahman v. Nasir Ali Khan, AIR 1931 Lah 657
4. Bhagwani Bai v. Life Insurance Cooperation of India, AIR 1984 MP 126.
Page 3 of 33
-ARGUMENTS ADVANCED- -MEMORIAL ON BEHALF OF
RESPONDENT-
5. Bazpur Coop Sugar Factory Ltd. V. Surendra Mohan Agarwal, Air 1984 All 174.
6. Beoco Ltd. V. Alfa Laval Co. Ltd (1995) QB 137.
7. Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933
8. Edwards v. Society of Graphical and Allied Trade, (1971) Ch 354.
9. Fateh Chand v. Balkishan Das, 1964 (1) SCR 515
10. Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
11. Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
12. Jain Mills and Electrical stores v. State of Orissa, AIR 1991 Ori 117.
13. Kailash Nath Associates v. Delhi Development Authority (2015) 4 SCC 136.
14. K.C. Skaria v. Govt of State of Kerela (2006) 2 SCC 285
15. M Licha Setty & Sons Ltd v. Coffee Board AIR (1981) SC 182
16. Municipal Corpn. Of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
17.
18. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
19. Sri Krishnan v. krurkshetra university (1976) 1 SCC 311.
20. Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
21. State of A.P v. Associated Engg. Enterprises, AIR 1990 AP 294.
22. Sindh Biscuits Mfg. co. v. Delight Engg. Works, 1984 All Lj 964.
23. State of Kerala and Ors. v. United Shippers and Dredgers Ltd AIR 1982 Ker 281
INTERNATIONAL CASES
1. Bell v. Lever Bros, (1932) AC 161
2. Blyth v. Birmingan Waterworks Co., (1856) 11 Ex 781.
3. Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd (1989) 2 All ER 952 at 1010
4. Derry v. Peek (1889) 14 App Cas 337.
5. Horsefall v. Thomas (1862) 1 H & C 90
6. Keats v. Earl of Cadogen (1851) 10 CB 591
7. Laidlaw v. Organ 15 US, (2 Wheat) 178, (1817)
8. Nocton v. Lord Ashburton (1914) AC 932 (HL)
9. Pilkington v. Wood, (1953) Ch 770
10. Roper v.Johnson (1873) LR 8 CP 167
11. Timbo Lrmaos Ltd. V. Jorge Anibal Motos Sequeira, (1977) 2 SCR 451
Page 4 of 33
-ARGUMENTS ADVANCED- -MEMORIAL ON BEHALF OF RESPONDENT-
BOOKS, JOURNALS, ARTICLES:
 Arvind P. Datar, Datar Commentary On Constitution Of India (2nd Ed. Reprint 2010)

th
Durga Das Basu, Law of The Press (5 Ed. 2010, Lexis Nexis Butterworths Wadhwa, Nagpur)

th
Durga Das Basu, Shorter Constitution of India (14 Ed. Reprint 2011, Lexis Butterworths Wadhwa,
Nagpur)

th
H.M. Seervai, Constitutional Law of India: A critical commentary (4 Ed. Reprint 1999, Universal Book
Traders, Delhi)

th
M.P. Jain, Indian Constitution Law (6 Ed. Reprint 2012, Lexis Nexis Butterworth Wadhwa, Nagpur)

th
P.M. Bakshi, The Constitution of India (14 Ed. 2017, Universal Law Publishing)
 Pratap Bhanu Mehta, The Oxford Handbook of The Indian Constitution (Reprint 2016, Oxford
Publications)

rd
Sujata V. Manohar, T.K. Tope’s Constitutional Law of India (3 Ed. 2006, Eastern Book Company)
STATUTES, LEGISLATIONS:
The Constitution of India, 1950
STATEMENT OF JURISDICTION
Page 5 of 33
The Respondent humbly submits this memorandum to the judicature of Supreme Court of Democratic State
of Asnard under Art. 136 of the Constitution of Democratic State of Asnard . The petition has been posted
before this Hon’ble court for final hearing under Art. 136 of the constitution Democratic State of Asnard
reads as hereunder:
__________________________________________
__________________________________________
136.Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this chapter, the supreme court may, in its discretion, grant special leave to
ape peal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in territory of Democratic state of “Asnard”
(2) Nothing in clause (1) shall apply to any judgement, Determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.
_________________________________________
STATEMENT OF FACTS
1. Mr. Tony Snark, is the owner of majority of stakes in one of the leading pharmaceuticals company
named Healing Hand Pharmaceutical Co. Ltd. HPC Ltd. Manufactures a capsule named “Lobanza”.
Lobanza capsule reduces drug addiction for narcotic substances and is prescribed for adults. The
company strongly advised that this capsule must not be consumed when a person is still consuming
narcotic substances such as drugs and tobacco. Intake of these capsule while still consuming
Page 6 of 33
narcotic substances even for a continuous week, may cause death due to volatile and negative
volatile reactions.
2. Mr. Tony Snark and Mr. Steve Rovers were childhood friends who completed their senior secondary
School Examination in 2007, they took an admission in pharmaceutical Bachelor programme and
pharmaceutical technical programme respectively. Steve was a meritorious student and bagged the
position of gold medallist in his Bachelor programme. After hundreds of experiment and failure, he
succeeded in designing his own machine “ labzo pharma tech” (LTP). Which helped in increasing
the production of medicine (including lobanza) by five times at a comparatively cheaper rate. Owing
to its uniqueness its value shot up to $10M owing to its post testing phase.
3. Mr. Snark was planning to purchase the LPT machines in order to speed up the production of the
Lobanza capsule, he conducted a market research to test the viability of this new project and to his
good fortune discovered that LPT machines would reduce the production cost by one-third and
increase the production by roughly 10 times.by this time HPC Ltd. was yet to come up with the logo
of its capsule for its advertisement. HPC Ltd. Purchased the aforesaid machine from Mr. Steve on
4th June 2017, after successfully all necessary compliances and due diligence. Owing to its
efficiency and to broaden his market reach and to increase his turn over to unprecedented figure he
decided to purchase few more LPT machines.
4. On 14th August 2017, HPC Ltd. Entered into an agreement with Steve Rovers regarding the
purchase of three more LPT machines for Lobanza Capsules production. Mr Steve agreed to the
terms of contract ande informed Mr. Snark that he would ensure the delivery of the machines in five
days once the machines are carefully assembled and repaired. However, in the interest of
professional ethics Mr Snark was requested by one of the colleague of Mr.Steve to conduct a routine
check on the machines in the coming few days. Mr. Snark, evidently amused by the preposterous
idea of doubting his friend, nevertheless nodded and smiled. HPC Ltd. eventually received the
delivery of the machines after nine days, assembled as per the agreed terms, and without showing
any apprehensions as to the delay in delivery, promptly made the complete payment of $30 Million
Dollars. Furthermore, HPC Ltd. also used one of its LPT Machines to manufacture other medicines
with different chemical compositions, apart from Lobanza.
5. On 1st September Mr Frank Thunderwood, a rival of Mr. steve managed to get an article published
in the widely distributed journal of Asnardian institute of technology about the infirmities in
machine and this article also hampered the their quarterly turnovers. A research was also conducted
on lobanza capsule by one of the professor of University of Hemsworth , (the same university from
which Mr.Snark and Mr.Steve were graduated) telling about the effects of lobanza on humans. The
report stated that adults who are prone to narcotics substances are prescribed these capsules on
reiteration that these have no side effects but this is not the case, a person having allergy of any type
Page 7 of 33
should not consume this capsule as this may cause severe neurological damage. Apprehnsions to
this article were raised but nothing could disprove professors assertion.
6. Mr Pablo Escocar, a janitor in government school, was prone to drug and smoking, saw an
advertisement about lobanza. The banner contained a blurry image of the Lobanza stating that to
purchase lobana you may contact, “Riverrum Medicos situated on border of state of Westeros and
other States”. Mr Pablo purchased the medicine and started consuming it but could not refrain from
smoking.
7. . A week prior to the sale of 3 LPTs on 14 August 2017, Mr. Steve received a detailed report from
the auditor categorically highlighting certain patent defects in those machines. Faced with extreme
pressure to meet the rising demand, Mr. Steve ignored the report and failed to disclose that
information to HPC Ltd. Consequently, on certain occasions, HPC nd Ltd. encountered frequent
problems with few LPT Machines, and unfortunately on 22 October 2017 all machines
malfunctioned. Mr. Tony appointed Mr. Steve and his tech- team for the repair. Few instances of
illness were reported amongst a few people but no serious medical catastrophe had occurred.
8. Unfortunately Mr Pablo died 8 days after consuming the lobanza, his pregnant wife went into
mental trauma as he was sole bread earner of family. Meanwhile Mr. Snark aggrieved by such a
huge loss in production accused Mr Rover of fraud and initiated civil proceedings against him for
breach of contract before Drone District Court, and sought to avail Doctrine of Restitution and
prayed for compensation of $100M, Furthermore through certain local report Mr Snark found about
death of the janitor and asked his wife to join the suit against Mr.Rovers to which she agreed to, due
to the dwindiling financial situation. Owing to the lack of pecuniary jurisdiction of the Hon’ble
District Court, Court on 22 June, 2018 transferred the case to the High Court of Westeros upon a
motion by both the parties. The Hon’ble High Court of Westeros dismissed the suit on the grounds
that it lacked sufficient merit.
Hence , the Case is now before this Hon”ble Court
Page 8 of 33
STATEMENT OF ISSUES
The following questions have been framed by the Hon’ble Court for the final hearing of the matter:
1. Whether fraud was committed by Mr Steve Rovers under Section 17 of the Indian Contract Act
1872?
2. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony Snark?
3. Whether Mr Steve Rovers is liable to compensate being Amy Santiago for death of her husband and
her consequent loss livelihood?
4. Whether Mr Steve Rover, being the supplier and service provider of LPT Machine, is liable to
compensate Mr. Tony Snark for breach of contract?
Page 9 of 33
ARGUMENTS ADVANCED
Is is most humbly submitted before this Hon’ble Court that fraud has not been committed by Mr Steve
Rovers in the contemporary landscape. There is no fraud on behalf of Mr Rovers as according to section 17
of the Asnardian Contract act 1872
“Fraud” defined.—“Fraud” means and includes any of the following acts committed by a party
to a contract, or with his connivance, or by his agent with intent to deceive another party thereto or
his agent, or to induce him to enter into the contract.
Here according to this definition, to constitute Fraud there must be an intention to deceive but there was
no intention to deceive on behalf of Mr steve.
1. NO INTENT TO DECEIVE
As according to section 17(1) of Asnardian Contract Act 1872,to constitute a fraud there must be an
intention to deceive which clearly was not there in the present circumstances
1.1 In the case of “Derry v. Peek”1 as stated by Lord Harshell
“fraud is proved when it is shown that a false representation has been made”
Here in the present case there no false representation could be proved on behalf of Mr Steve
1.2 Mere non-disclosure some immaterial fact does not give a right to recission unless it is further
found that consent has been obtained by false representation.2 Here Mr Steve in no way
obtained the consent of Mr Steve by false representation, so in no way he will be liable for
fraud.
1.3 In an American case of Laidlaw v. Organ 3in a contract for sale of tobacco a party to a contract
knew but the other party didn’t knew that peace had been made between Great Britain and the
United States; but on the party having knowledge didn’t reveal it to the other party of the
changes in price, the Supreme Court of USA held that there was nothing fraudulent in his
silence.
1
(1889) 14 App Cas 337.
2
Bhagwani BAi v. Life Insurance Cooperation of India, AIR 1984 MP 126.
3
15 US, (2 Wheat) 178, (1817)
Page 10 of 33
1.4 When there no misrepresentation has been made nor did the plantiff act on any impression
produce by any conduct on the part of seller and also he has a duty to make investigation before
he signed the contract. In such a case there can be no fraud.4
2. MERE SILENCE IS NO FRAUD
Mere silence is no fraud, as according to illustration (a) of section 17 of the Asnardian Contract act
1872 says
A sells by an auction, to B, a horse which A knows to be unsound A says nothing to B about the
horse’s unsoundness. This is not fraud in A.
Here in our case though Mr. Rovers was aware of patent defects in the LPT machines but his silence
to this fact would in no way amount to fraud on his behalf.
Again according to illustration (d) of section 17 of the Asnardian Contract act 1872 says
A and B, being traders, enter upon a contract. A has private information of change in price which
could affect B’s willingness to proceed with the contract. A is not bound to B.
Similarly here Mr. Steve is not bound to inform Mr. Snark of the patent defects in machine.
2.1 silence to the fact is not per se fraud unless there is a duty to speak, or unless it is equivalent to
speak5. There is no general duty to disclose facts which are or might be equally within the means of
knowledge of both parties.6
2.2 In Bell v. Lever Bros Ltd.7a company agreed to pay large compensation to two employees, the
subsidiary company director, whose service were being dispensed with. After paying the money the
company discover that director had committed breach of duty, which could have justified their
dismissal without compensation. The House of Lords held that director had not these breaches in
mind, and were under no duty to disclose them.
Similarly in our case Mr. Steve had no duty of disclosing the fact of material defects in LPT
machines
In the case of Sri Krishnan v. krurkshetra university8 here a candidate who has full knowledge of the fact
that he was short of attendance but he did not mention in exam form. This was held to be no fraud, it being
4
Keats v. Earl of Cadogen (1851) 10 CB 591.
5
Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933. ARSP Subramanian Chetty v. Official
Assignee of Madras, AIR 1931 Mad 603. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
6
Bell v. Lever Bros, (1932) AC 161,
7
8
(1976) 1 SCC 311.
Page 11 of 33
the duty of university to scrutinize form and to call for the verification or information in case of doubt. The
university having failed to do so, was stopped from cancelling the examination of the candidate.
The principle here is that
A contrary party is under no obligation to disclose the whole truth to the other party or to give the whole
information to other party affecting the subject matter of the contract.
Hence here in the present instance Mr Rovers was under no obligation to disclose to Mr Snark the fact of the
patent defects in machine. Moreover it was the duty of Mr Snark to enquire about the infirmities or defects
in machine.
The principle that there is no duty to disclose in every contract appear to rest on the view that each party
must obtain the necessary information for himself and cannot expect it to be, supplied by the other , even
when that other is aware of his ignorance and could easily put him to right.
In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.9 Slade J said;
“The general principle that there is no obligation to speak within in the context of negotiation, for an
ordinary commercial contract is one of the foundation of one of our law of contract and must have been the
basis of many decision over the year. There are countless cases in which one party to a contract has in
course of negotiation failed to disclose a fact known to him which the other party would have regarded as
highly material, if it had been revealed. However our law leaves that other party entirely without a remedy.”
Similarly in our case following Slade J there was no obligation on Mr Rovers for disclosing the fact of
patent defects in LPT machines, though Mr.Snark regard as highly material, if it had been revealed. Mr
Snark would be without any remedy.
In the case of Horsefall v. Thomas10 court found that there was no evidence to support the claim of the
plaintiff that the defendant had acted fraudulently. With regards to the inspection, the court found it
impossible that the plaintiff hides a defect from the defendant, as the defendant had not considered looking
at this at the time of inspection. Moreover, the court found that the letter that was later sent by the defendant
did not contain any fraudulent statement as the defendant believed the statement was correct and accurate.
In our case also there is no evidence to support the claim of Mr Snark that Mr Steve acted fraudulently. It
was impossible to hide a patent defect if he would inspected the LPT machines once, which he didn’t abide
by. Hence it is in no way fraud on behalf of Mr Steve.
In the case of Nocton v. Lord Ashburton 11 it was pointed out that a mere passive non -disclosure of the
truth, however deceptivein fact, does not amount to fraud.
Hence in our case also the non-disclosure of the truth of patent defects in the LPT machines would be no
fraud on behalf of the respondents.
9
(1989) 2 All ER 952 at 1010
10
(1862) 1 H & C 90
11
(1914) AC 932 (HL)
Page 12 of 33
3. CAVEAT EMPTOR (LET THE BUYER BEWARE)
24. Whether Mr Steve Rover, being the supplier and service provider of LPT Machine, is liable to
compensate Mr. Tony Snark for breach of contract?
2.No breach of contract

It is submitted before this Hon’ble court that there has been no breach of contract in the present
case.As a breach of contract occurs when a party to a contract fails to perform his part of the 12
contract. Here in our case Mr. rovers had in no way failed to perform his part of contract and also
here it is put forth that, [a] time was not the ‘essence of the contract’ in the instant case, [2] no
fraud
2.1. TIME IS NOT THE ‘ESSENCE OF THE CONTRACT’
Whether the time is of an ‘essence of the contract’ is a question of law and fact 13. Further, not
merely because of the specification of time, but a contract may be avoided only if it is intended
by the parties that time is of an ‘essence of the contract’ 14. Such intentions must be in the
language which is unambiguous15. It may also be inferred from the nature of property agreed to
be sold and conduct of the parties16. The time is not of an essence where the contract provides
for damages for delayed completion, or for extension of time17. Here though there was delay in
the delivery of LPT machines but nowhere in the contract it was signified that time would be the
essence of contract and also, the property is neither perishable nor there is any urgency shown by
Mr Snark regarding the delivery of the LPT machines.
Time of performance is of the essence of contract, any delay will render the contract voidable at
the option of other party. He may reject the performance and immediately sue for the breach. But
he may at his option accept the delay performance. If he does so he cannot afterward recover
compensation for the delay.18Here Mr Snark had the option to not accept the contract and rescind
the contract when there was late delivery of LPT machines, but he accepted the delivery and
12
BLACK’S LAW DICTIONARY 1315 (Ed. 9 2009)Error! Reference source not found..
13
Municipal Corpn. of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
14
Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
15
Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
16
Id
17
Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
18
State of A.P v . Associated Engg. Enterprises, AIR 1990 AP 294. Bazpur Coop Sugar Factory Ltd. V. Surendra Mohan Agarwal, Air
1984 All 174.
Page 13 of 33
made the payment so in no way he now have the option of rejecting the contract on the basis of
late delivery.
2.2 ACT OR OMISSION OF PLANTIF HIMSELF
The plantiff may have suffered a loss through his voluntary act or omission, in such a case he
will not be entitled to damages.19Here Mr Snark suffered a loss due to his own voluntary
omission of getting the machines checks when HPC Ltd. encountered frequent problems with the
machine before on 22nd oct 2017 when all of them malfunctioned. So here he himself is at fault
of not performing his part of professional ethics so in no way he could claim for damages on the
basis of breach of contract.
Loss which is cause dbu plaintiff’s failure to fulfil his duty is not recoverable from the
defendant.20
A party to a contract cannot be in abetter position by reason of his own default than if he had
fulfilled his obligation. 21
In contractual terms, the party who has the right to terminate can elect to end the contract or to
affirm it and continue to perform it. They can wait for a time in order to make the decision, so
long as the delay does not cause any confusion. Once a decision is made, the effect of electing to
continue with the contract is that the right to terminate will no longer be available. 22 Similarly
here Mr Snark had the opportunity to avoid the contract when the machines were delivered after
9 days instead of 5 days, but he accepted the contract by accepting the machines and paying $30
million.23
Negligence is a breach of duty caused by the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affair would do, or do something which
a prudent and reasonable man would not do24
Moreover Mr Snark himself was negligent in conducting a routine check on the machines, as there were
25
frequent problems in the LPT machines , to which he negligently neglected and kept on producing the
Lobanza capsules. Until all the machines malfunctioned on 22nd Oct 2017. Moreover he was also asked by
one of the colleague of Mr Rovers to conduct on routine check on the machines in the coming few days,
which also he neglected. Here is one more point to be noted that as according to the terms of contract he
19
Beoco Ltd. V. Alfa Laval Co. Ltd (1995) QB 137.
20
Roper v. Johnson (1873) LR 8 CP 167. Pilkington v. Wood, (1953) Ch 770.
21
Timblo Irmaos Ltd v. Jorge Anbibal Motos Sequeiia, (1977) 2 SCR 451.
22
1984 All 174. Sindh Biscuits Mfg. co. v. Delight Engg. Works, 1984 All Lj 964.
23
Moot proposition para 6.
2424
Blyth v. Birmingan Waterworks Co., (1856) 11 Ex 781.
25
Moot proposition para12
Page 14 of 33
purchased the LPT machines for production of Lobanza capsules but he used one of the machines in
producing other medicines with different chemical composition.26which also proves his negligent behaviour.
Hence Mr Snark himself was negligent here and was just busy in increasing his profit.
In case of contract party having right to select or rescind the contract, selects the contract, it results in
waiving of his right to rescind and latter he cannot rescind.27
2.3 NO COMPENSATION AS NO BREACH OF CONTRACT
It is humbly submitted before this Hon’ble court that there has been no breach of contract so demand of
compensation on behalf of Mr Snark is pointless. As it is a established fact that to demand for compensation
the there must have been a non -abiding from the terms of contract resulting in breach of contract. The court
has to adjudge in every case reasonable compensation to which the plaintiff is entitled from the
defendant on breach of the contract. Such compensation has to be ascertained having regard to the
conditions existing on the date of the breach. There is no evidence that any loss was suffered by the
28
plaintiff in consequence of the default by the defendant. Compensation is provided for any damage
which a person to a contract sustains through the non-fulfilment of the contract, where he rightfully rescinds
a contract29.Here a Mr Snark in no way rescinded the contract on right time which was at the time when
there was late delivery of machines and also behaved negligently in knowing about the conditions of
machine. Section 74 occurs in Chapter 6 of the Asnardian Contract Act 1872 which reads "Of the
consequences of breach of contract". It is in fact sandwiched between Sections 73 and 75 which deal
with compensation for loss or damage caused by breach of contract and compensation for damage which a
party may sustain through non-fulfillment of a contract after such party rightfully rescinds such. It is
important to note that like Sections 73 and 75, compensation is payable for breach of contract under Section
74 only where damage or loss is caused by such breach.30
Loss which is caused by plantiff’s failure to fulfill his duty is not recoverable from the defendant. 31 Similarly
here though some losss may have been caused to the Mr. Snark but it was due to his own fault. He didn’t got
the machines serviced periodically and was also negligent while taking in note of the patent defects in the
LPT machines.
26
Moot proposition para 6.
27
Abdur Rahman v. Nasir Ali Khan, AIR 1931 Lah 657.
28
Fateh Chand v. Balkishan Das, 1964 (1) SCR 515
29
State of Kerala And Ors. v. United Shippers And Dredgers Ltd AIR 1982 Ker 281
30
Kailash Nath Associates v. Delhi Development Authority (2015) 4 SCC 136.
31
Roper v.Johnson (1873) LR 8 CP 167, Pilkington v. Wood, (1953) Ch 770, Edwards v. Society of Graphical and Allied Trade,
(1971) Ch 354.
Page 15 of 33
Moreover a party cannot be in a better position by reason of his own default, than if he had fulfilled his
obligation.32the plaintiff here wants to be in a better position by taking advantage of his own mistake by
claiming damages of $100 million, which apparently is much more the actual loss and that to of his own
default.
In M Licha Setty & Sons Ltd v. Coffee Board in case it was held that the plaintiff must take all reasonable
steps to mitigate the loss and if he fails to do so he cannot claim such loss which could have been avoided.
The plaintiff is only required to act reasonably and whether he has done so or not is not a question of law but
a question of fact in each case. He must act reasonably not only in his own interest but also in the interest of
the defendant and lower the damages by acting reasonably in the matter33
Here Mr Snark should have taken reasonable steps of mitigating the loss by getting the machines regularly
checked, and taking note of the defects in machine beforehand only, which he failed to do so. Here he must
have acted reasonably and performed the contract with due diligence.
25. WHETHER THE CONTRACT DATED 14 AUG 2017 VOIDABLE AT THE OPTION OF MR.
TONY SNARK?
NO VOIDABILITY OF CONTRACT
It is most humbly submitted before this Hon’ble court that the contract dated 14 Aug 2017 was not
voidable at the option of Mr. Tony Snark. As a Voidable Contract is a valid contract which may be
either affirmed or rejected at the option of one of the parties. At most, one party to the contract
is bound. The unbound party may repudiate (reject) the contract, at which time the contract
becomes and also according to section 19 of the Asnardian contract Act 1872 “When consent to an
agreement is caused by coercion, 1[* * *] fraud or misrepresentation, the agreement is a contract
voidable at the option of the party whose consent was so caused.” henceforth the consent to contract
has neither been obtained by fraud, coercion, undue influence or misrepresentation , which is proved
below :-
a. Coercion, according to section 15 of the Asnardian contract act

b. Undue Influence, section 16 of the Asnardian contract act
c. Fraud, section 17 of the Asnardian contract act
d. Misrepresentation, section 18 of the Asnardian contract act
32
Timbo Lrmaos Ltd. V. Jorge Anibal Motos Sequeira, (1977) 2 SCR 451
33
AIR (1981) SC 182
Page 16 of 33
However in the following case none of the above could be proven
1. NO COERCION
It is most humbly submitted before this Hon’ble court that there was no coercion on behalf of
Mr.Steve as according to section 15 of the Asnardian contract act 1872
“Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal
Code (XLV of 1860), or the unlawful detaining, or threatening to detain, any property, to the
prejudice of any person whatever, with the intention of causing any person to enter into an
agreement.”
From the definition itself it is evident that there was no Coercion on behalf of Mr Steve, so
coercion will not become a ground to render the contract voidable.
2. NO UNDUE INFLUENCE
It is most humbly submitted before this Hon’ble court that there was no undue influence on
behalf of Mr.Steve as according to section 16 of the Asnardian contract act 1872 :-
“A contract is said to be induced by “undue influence” where the relations subsisting between the
parties are such that one of the parties is in a position to dominate the will of the other and uses that
position to obtain an unfair advantage over the other”.
From the facts it is very evident that there had been no undue influence on behalf of Mr. Steve as for
undue influence there must be some relation between the parties in which one party would be in a position to
dominate the will of other, but in the present circumstances there was no such relation between Mr Steve
and Mr Snark, and also other party should take some unfair advantage of that position. Hence as both the
essentials of undue influence were absent so undue influence in way would become ground for voidability of
contract.
3. NO FRAUD, NO VOIDABILITY OF CONTRACT

It is most humbly submitted before this Hon’ble court that there was no fraud on behalf of Mr.Steve
in the present case as according to section 17 of the Asnardian contract act 1872 :-
“Fraud means and includes any of the following acts committed by a party to a contract, or with his
connivance, or by his agent with intent to deceive another party thereto or his agent, or to induce him to
enter into the contract”.
Here as proved in the first issue itself that there was no fraud on behalf of Mr. Steve, moreover once
again going through section 17 of the Asnardian Contract Act 1872 to constitute fraud there must be an act
Page 17 of 33
done with an intent to deceive other party to induce that other party to enter into a contract. Here Mr. Steve
in no way committed any act to deceive Mr. Snark .
However mere silence to the fact of patent defects in the machine would in no way amount to fraud as,
silence to the fact is not per se fraud unless there is a duty to speak, or unless it is equivalent to speak.34
In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.35 Slade J said;
“The general principle that there is no obligation to speak within in the context of negotiation, for an
ordinary commercial contract is one of the foundation of one of our law of contract and must have been the
basis of many decision over the year. There are countless cases in which one party to a contract has in
course of negotiation failed to disclose a fact known to him which the other party would have regarded as
highly material, if it had been revealed. However our law leaves that other party entirely without a remedy.”
Similarly in our case following Slade J there was no obligation on Mr Rovers for disclosing the fact of
patent defects in LPT machines, though Mr.Snark regard as highly material, if it had been revealed. Mr
Snark would be without any remedy.
In Bell v. Lever Bros Ltd.36a company agreed to pay large compensation to two employees, the subsidiary
company director, whose service were being dispensed with. After paying the money the company discover
that director had committed breach of duty, which could have justified their dismissal without compensation.
The House of Lords held that director had not these breaches in mind, and were under no duty to disclose
them.
Similarly in our case Mr. Steve had no duty of disclosing the fact of material defects in LPT machines.
Hence Fraud in the contemporary landscape would become no ground for Fraud on behalf of Mr.Rover.
4. It is most humbly submitted before this Hon’ble court that there has been no misrepresentation on
behalf of Mr. Steve in the present case as according to section 18 of the Asnardian contract act 1872
:-
“Misrepresentation means and includes— (1) the positive assertion, in a manner not
warranted by the information of the person making it, of that which is not true, though he
believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an
advantage to the person committing it, or any one claiming under him; by misleading another
to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however
innocently, a party to an agreement, to make a mistake as to the substance of the thing which
is the subject of the agreement.”
34
Chartered Bank of India, Australia and China v. Imperial Bank of India 60 Cal 262, AIR 1933. ARSP Subramanian Chetty v.
Official Assignee of Madras, AIR 1931 Mad 603. Niaz Ahmad Khan v. Parsottam Chandra 53 All 374, AIR 1931.
35
(1989) 2 All ER 952 at 1010
36
Page 18 of 33
Hence according to section 18 of the Asnardian act 1872 to prove misrepresentation there
must be some act done with an intent to deceive, but here there has been no such act on
behalf Mr. Steve, therefore fraud would be no ground for voidability of contract.
5. DELAY IN ITSELF WILL NOT 37RENDER THE CONTRACT VOIDABLE

To prove voidable contract it is necessary to avoid the contract at the right time, “you cannot
both eat your cake and return your cake”. As here Mr. Tony Snark should have avoid the
contract when machine were nine days instead of five days but there after he accept the
machine and now he wants to avoid the contract.
Section 55 of the Asnardian contract act 1872, declare that “If it was not the intention of the
parties that time should be the essence of the contract the contract does not become voidable
by the failure to do such thing at or before the specified time.” It means that the contending
party have to accept performance have to accept performance even if delayed. He does not
have a right to reject.
In the case of A.P.SEB v. Patel & Patel38 there was some delay on part of the contractor to
supply to state electric board certain goods by the prescribed date and the court, finding no
evidence whatsoever of the parties intention to regard time as of essence, held that board was
bound to accept delay deliveries.
Whether the time is of an ‘essence of the contract’ is a question of law and fact 39. Further, not
merely because of the specification of time, but a contract may be avoided only if it is intended
by the parties that time is of an ‘essence of the contract’40. Such intentions must be in the
language which is unambiguous41. It may also be inferred from the nature of property agreed to
be sold and conduct of the parties42. The time is not of an essence where the contract provides
for damages for delayed completion, or for extension of time43. Here though there was delay in
the delivery of LPT machines but nowhere in the contract it was signified that time would be the
essence of contract and also, the property is neither perishable nor there is any urgency shown by
Mr Snark regarding the delivery of the LPT machines.
Time of performance is of the essence of contract, any delay will render the contract voidable at
the option of other party. He may reject the performance and immediately sue for the breach. But
he may at his option accept the delay performance. If he does so he cannot afterward recover
compensation for the delay.44Here Mr Snark had the option to not accept the contract and rescind
37
AIR 1977 AP 172, K.C. Skaria v. Govt of State of Kerela (2006) 2 SCC 285
38
39
Municipal Corpn. of Delhi v. Jagannath Ashok Kumar, (1987) 4 S.C.C. 497.
40
Sardamani Kandappan v. S. Rajlaxmi, A.I.R. 2011 S.C. 3234.
41
Gomathinath Pillai v. Palaniswami Nadar, A.I.R. 1967 S.C. 868.
42
Id
43
Hind Construction Contractors v. State of Maharashtra, A.I.R. 1979 S.C. 720.
44
1984 All 174.
Page 19 of 33
the contract when there was late delivery of LPT machines, but he accepted the delivery and
made the payment so in no way he now have the option of rejecting the contract on the basis of
late delivery.
Delay by itself does not put an end to the contract.45
Here apparently mere late delivery of the LPT machines on behalf of Mr. Steve would in no
way would become the ground for voidability of contract. .
....
454545
Jain Mills and Electrical stores v. State of Orissa, AIR 1991 Ori 117.
Page 20 of 33
Page 21 of 33
Page 22 of 33
ion to families for loss occasioned by the death of a person caused by actionable wrong.
In this case petitioner would have first approached to Civil Court as there was a existence of Alternative
Remedy available in S.9 of CPC. It has two condition i.e the suit must be of a civil nature and the
cognizance of such suit should not have been expressly or impliedly barred. Both the condition were
satisfied in the present case. The civil court in state of Delhi has competency to trail this case and also in S.
15 of CPC which says, "every suit shall be instituted in the Court of the lowest grade competent to try it".
So, there was an alternative remedy available in lower court i.e. Civil Court. It is true that the rule of
exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to
fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution
and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing
application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal
Page 23 of 33
of his grievance. Therefore, in all such cases, High Court must insist that before availing remedy under
Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
Art. 226 is not meant to short-circuit or circumvent statutory procedures.46 It is only where statutory
remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the
very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the
prevention of public injury and Constitution or by filing a civil suit, which is expressly barred. 47 Even
though a provision under an Act cannot expressly oust the jurisdiction of the court under Art 226 of the COI,
nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court
refrains from exercising its jurisdiction under the said constitutional provisions.48
Thus, it is humbly submitted that this is a case where the hon'ble High Court should not entertain the petition
under Art. 226 of the Constitution and should direct the petitioner to take recourse to efficacious alternative
remedy. Thus, the respondents humbly submit that the present writ petition is not maintainable on the
ground that alternative remedy has not been exhausted.
II. PETITIONER’S RIGHT TO LIFE AND LIBERTY HAS NOT BEEN VIOLATED
It is most humbly submitted that there was no infringement of right to life and personal liberty of the
petitioner was violated by any state authority act. The state government was following its sovereign function
when it employed Bob Constructions to construct the over-bridge. Hence, it cant be held liable for any suit
in civil court because it acted in sovereign immunity.
The term “Life” has been defined by Field J. in the case Munn v Illinois49-“By the term “life” as here used
something more is meant than mere animal existence. The inhibition against its deprivation extends to all
those limbs and faculties by which life is enjoyed. The provision equally prohibits mutilation of the body or
amputation of arm or leg”
This definition has been retaliated by this Court in Olga Tellis v Bombay Municipal Corporation50,
Kapila Hingorani v State of Bihar51.
Article 21 of the Constitution of India guarantees right to life and includes not only the physical existence of
human being but also the quality of life which a person is having in a country. In the case Francis Coralie v
Delhi52, Bhagwati J. observed that-
46
Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCR 743; Assistant Collector of Central Excise, Chandan Nagar,
West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260.
47
Ibid.
48
Durga Das Basu, Constitution of India (Nagpur: Lexis Nexis Butterworths Wadhwa, 8th ed., Reprint 2012) p. 6507.
49
94 U.S. 113 (1877).
50
AIR 1986 SC 180.
51
(2003) 6 SCC 1.
52
AIR 1981 SC 746, 753.
Page 24 of 33
“We think that Right to Life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of the life such as adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about mixing and
commingling with other human beings”.
The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or
continued drudgery through life, it has a much wider meaning which includes right to livelihood, better
standard of living, hygienic conditions in work place and leisure.53 However, there is no absolute bar on
placing restrictions on the same.54 These restrictions must be in accordance to procedure established by law,
being just, fair, reasonable and non-arbitrary.55
It has been previously established that the legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be the clearest.56
There has been no infringement of this right to life and personal liberty of the petitioner by the action of
state authority. The death of the petitioner’s father was an unfortunate accident and could not have been
foreseen by anyone. The petitioner and his mother shall continue to be a beneficiary of all the educational
schemes of the Government for children and women.
The petitioner may also be awarded general damages which are paid as part of the pension and insurance
schemes of Central Government of India and State may be held responsible to provide proper education to
the Child as in Astur, Right to Education is a fundamental right enshrined in Article 21(A) of the
Constitution.
But, the State can’t be held liable to pay special damages worth Rs. 3 Crore as demanded by the petitioner in
the instant case.
It is most humbly submitted that the cause of death of the petitioner’s father was no more than an inevitable
accident and state has no liability for the same. Also, the iron rod and some stones fell off the over-bridge
and whole of the bridge didn’t collapse which can’t prima facie point out to the fact that the over-bridge is
made of substandard material because the iron rod and stones fell off after five minutes of being hit by the
wooden logs. Has the deceased not informed the transporter of Amexo Private Limited to keep the 25 feet
long wooden log vertically on the truck, the logs would have never hit the over-bridge which ultimately led
to the mishap. It was beyond reasonable foresight that such unfortunate event would take place. But, such
accident does not make the State liable. Inevitable Accidents are, as evident from the name, events which
could not have been prevented by the parties through the exercise of ordinary care, caution, and skill.
53
Consumer Education and Research center and others v. Union of India and others AIR 1995 SC 922.
54
Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.
55
Maneka Gandhi v. Union of India (1978) 1 SCC 248.
56
Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 538.
Page 25 of 33
In A. Krishna Patra v. Orissa State Electricity Board57, The Orissa High Court defined ‘Inevitable
accident’ as an event which happens not only without the concurrence of the will of the man, but in spite of
all efforts on his part to prevent it.
The emerging conception of inevitability can be seen most clearly in Whitelock v.Wherwell58, the bolting
horse case from 1398. The complaint in Whitelock was unusual because the plaintiff, rather than just
reciting that the defendant had hit him with force and arms, also alleged that the defendant had “controlled
the horse so negligently and improvidently” that it knocked him down. The defendant conceded that the
horse had knocked down the plaintiff, but pleaded that the plaintiff’s fall was “against the will” of the
defendant. The defendant went on to explain that he had hired the horse without notice of its bad habits, that
it ran away with him as soon as he mounted it, and that he “could in no way stop the horse” although he
“used all his strength and power to control” it. It was a plea of inevitable accident. The collision may have
been inevitable, but it had become inevitable by virtue of the defendant’s negligence, and was thus not held
to be an accident.
In another case, Stanley v. Powell59 the plaintiff was employed to carry cartridge for a shooting party when
they had gone pheasant-shooting. A member of the party fired at a distance but the bullet, after hitting a tree,
rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the defendant was not liable in the
light of the circumstance of inevitable accident.
In the case of Fardon v. Harcourt-Rivington60 the defendant parked his saloon motor car in a street and
left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the car, the
dog started jumping about in the car, smashed a glass panel, and a splinter entered into the plaintiff’s left eye
which had to be removed. Sir Frederick Pollock said: “People must guard against reasonable probabilities
but they are not bound to guard against fantastic possibilities” In the absence of negligence, the plaintiff
could not recover damages.
The use of inevitable accident in early actions interpreted inevitability as impracticality. In the present
scenario, to speak of inevitable accident as a defence, therefore, is to say that there are cases in which the
defendant will escape liability if he succeeds in proving that the accident occurred despite the use of
reasonable care on his part, but is also to say that there are cases in which the burden of proving this is
placed upon him. In an ordinary action for negligence, for example, it is for the claimant to prove the
defendant’s lack of care, not for the defendant to disprove it, and the defence of inevitable accident is
accordingly irrelevant and it is equally irrelevant in any other class of case in which the burden of proving
the defendant’s negligence is imposed upon the claimant.
57
AIR 1997 Orissa 109.
58
43 Emory L.J. 57.
59
[1891] 1 QB 86 (QBD).
60
(1932) 146 LT 391 (392).
Page 26 of 33
In the instant case, the loss of life of the petitioner’s father was not foreseeable and fulfils all the ingredients
of Accident. Therefore, can’t be held liable for infringement of Right to life and personal liberty.
Page 27 of 33
III. GOVERNMENT OF NCT, DELHI SHOULD NOT BE HELD VICARIOUSLY LIABLE
It is most humbly submitted that the Government of NCT of Delhi can’t be held liable to pay damages to the
petitioner on three grounds which are:
a) Bob Constructions is an independent contractor
It is most humbly submitted that the Government of State of NCT Delhi cannot be held liavle for the acts of
Bob Constructions as it is an independent contractor. As a general rule of Tort states that, “Owners are not
vicariously liable for the acts of independent contractors”.
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of
agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a
broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities
of a violator. The liability is placed, not on the tortfeasor, but rather on someone who is supposed to have
control over the tortfeasor.
The general rule at common law is that a person who employs an independent contractor will not be liable
for loss flowing from the contractor's negligence”: Lewis v. British Columbia61, it was held that the owner
will be liable for loss flowing from negligence in hiring or supervising the contractor. But, in those instances
the owner is not being held vicariously liable for the acts of the contractor, but is directly liable for his own
negligence. This article deals with vicarious liability and direct liability for the owners personal negligence
in hiring or supervising the contractor is not considered.
It is important to clarify certain terms which will be used throughout this article. Strict liability is liability
without fault. In strict liability the defendant need not have been negligent and will be liable for the loss
flowing from his acts despite having taken reasonable care to prevent harm. Vicarious liability is “the
imputed responsibility of one person for the acts of another”62.
Vicarious liability is said to be an instance of strict liability because the person held liable was faultless.
However vicarious liability is not pure strict liability because it requires there to have been negligence on the
part of someone.
Employers are vicariously liable for harm flowing from the acts of their employees so long as there was a
valid employment contract and the act which caused the harm was within the course of employment63
However an employer is generally not liable for the acts of an independent contractor and this principle has
been affirmed in the construction context64.Whether a worker is an employee or an independent contractor
depends on the nature of the relationship, and not on what the parties label the relationship. There are a
61
[1997] 3 S.C.R. 1145 at para. 49 (Lewis).
62
John A. Yogis, Q.C., Canadian Law Dictionary, 5th ed., (New York: Barron’s, 2003).
63
Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 (Sagaz).
64
Balcovske v. Stanley Theatre Co. Ltd. (1934), 48 B.C.R. 433 (B.C.C.A.).
Page 28 of 33
RESPONDENT-
number of tests for classifying the relationship. In most instances building contractors will be independent
contractors because the owner will not be closely supervising the contractor or controlling performance of
the work. For the purposes of this article it is assumed that the construction contractor is an independent
contractor rather than an employee, and so the owner is not automatically vicariously liable for the acts of
the contractor.
An independent contractor may also be an agent for its employer. In Thiessen v. Mutual Life Assurance
Co. of Canada65, a financial investment company was held liable for the fraud of a sales representative who
was found to be an independent contractor. The sales representative was deemed to be an agent of the
investment company, and vicarious liability was imposed on the basis of that agency relationship. That case
confirms that vicarious liability for independent contractors who are also agents is broader than vicarious
liability for non-agent independent contractors. Since construction contractors are seldom agents of the
owner, this article assumes that the building contractor is a non-agent independent contractor.
b) State was performing Sovereign Function
State liability in India is defined by the Article 300(1) of the Constitution that originated from Section 176 of
the Government of India Act, 1935. This could be traced back from the Section 32 of the Government of
India Act, 1915, the genesis of which can be found in Section 65 of the Government of India Act, 1858. It
will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of India
and Government of each State are in line of succession of the East India Company. In other words, the
liability of the Government is the same as that of the East India Company before, 1858.
Sovereign functions are primarily inalienable functions, which the State only could exercise. The State is
engaged with various functions, but all of them cannot be construed as primary inalienable functions.
Taxation, eminent domain and police functions including maintenance of law and order, legislative
functions, administration of law, grant of pardon could be found as the sovereign functions of the State.
Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India66, was the historical case
which had drawn the principle of sovereign and non sovereign functions of the Government while deciding
the extent of liability and immunity of the State. The Supreme Court of Calcutta held that the Secretary of
State is liable only for the extent of commercial functions and not liable for anything done in exercise of
65
(2001), 8 C.C.L.T. (3d) 134 (B.C.S.C.)
66
(1861) 5 Bom. H.C.R. App. I,p.1.
Page 29 of 33
sovereign powers. The dichotomy theory of “Sovereign and Non- Sovereign functions determined by the
Court in Peninsular case helped the judiciary to interpret the functions of the government when the question
of liability of State arose. The meaning of "Sovereignty" is the Supreme power which governs the body
politic that constitutes the state; a term used to express the supreme political authority of an independent
state or nation; power by which any state is governed.67
"Sovereign Functions"- One of the tests to determine whether the executive function is sovereign in nature is
to find out whether the State is answerable for such action in Courts law. Acts like defence of the country,
raising armed forced and maintaining it, making peace or war, foreign affairs, power to acquire and retain
territory, are functions, which are indicative of external sovereignty and are political in nature. So they are,
not amenable to the jurisdiction of ordinary Civil Court in as much as the State is immune in such matters.68
In this case the action of government officer is an executive act which is covered under the definition of
Sovereign act. Thus, it will be covered under sovereign function. Hence Govt.can take the defence of
Sovereign Immunity as an over-bridge was for a welfare function for the convenience of people of the state.
In the case of Kasturilal v State of U.P.69, the learned Chief Justice said: "There is a great and clear
distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in
the conduct of undertakings which might be carried on by private individuals without having such powers
delegated to them."
Having thus enunciated the basic principle, the then Chief Justice stated another proposition as flowing from
it. He observed that "Where an act is done, or a contract is entered into, in the exercise of powers usually
called sovereign powers; by which we mean powers which cannot be lawfully exercised except by sovereign,
or private individual delegated by a sovereign to exercise them, no action will lie." And, naturally it follows
that where an act is done, or a contract is entered into, in the exercise of powers which cannot be called
sovereign powers, action will lie. The act of the public servant committed by him during the course of his
employment is, in this category of cases, an act of a servant who might have been employed by a private
individual for the same.
These functions, being Sovereign functions, the State is not liable for any damage caused in the exercise of
that function. The State will not liable for anything done in exercise of sovereign powers.70
67
P Ramanathan Aiyar, The Major Law Lexicon, Vol. IV, 4379 (J.S.S Subramani & V R Manohareds, Nagpur:
Lexis Nexis Butterworth Wadhwa, 4th ed., 2010)
68
Chief Conservation of Forests v. Jyannatha Maruti Khondare, (1996) 2 SCC 293.
69
(1965) AIR 1039.
70
Secretary of State v. Har Bhanji ILR 5 Mad 273; Harbans Singh v, State of U.P. & Ors., AIR 1959 Pun 39; Thangarajan v.
Union of India, AIR 1975 Mad. 32.
Page 30 of 33
In deciding whether a particular act was performed by a government servant in discharge of a sovereign
power delegated to him, the proper test is whether it was necessary that the state for the proper discharge of
sovereign functions to have had the act done through its own agency.71
In order to maintain law and order held to be sovereign function of thestate, the government will not be held
liable for false imprisonment when the officers acts in exercise of statutory power in detaining an
individual.72 The State maintains public paths, for the welfare of the general public and there is no
commercial object in it. So, laying public path and its maintenance are part of sovereign functions of the
State.
In Mclnerny v. Secretary of State73, the Calcutta High Court held that, the Government was not carrying
any commercial operations in maintaining a public path and therefore was not liable for damages for the
injury sustained by the plaintiff through coming into contact with a post set up by the Government on a
public road.
A welfare State has to maintain proper roads for the benefits of the general public. It is part of its sovereign
function.
In K. Krishnamurthy v. State of A.P74, the driver of a motor road roller negligently struck the plaintiff
down and his right hand fell under the front wheel. The driver did not stop the engine forthwith. The
plaintiff claimed damages from the State for the permanent loss of his limb occasioned by the rash and
negligent act of their servant. The Andhra Pradesh High Court, held that the making and maintenance of
National Highways is the exclusive duty of the State, and not a commercial function.
Thus, (for example), it has been held that the following are sovereign functions. (i) Commandeering goods
during war75, (ii) making or repairing a military road76, (iii) administration of justice77, (iv) improper
arrest, negligence or trespass by police officers78, (v) negligence of officers of the court of wards, in the
administration of estate in their charge79, (vi) removal of a child by the authorities of a hospital, maintained
out of the revenues of the state80. It is humbly submitted that the defendant will come under the canopy of
Doctrine of Sovereign Immunity and thus, cannot be held liable for the act committed by the government
officials.
71
Union of India v. Sugrabati w/o of Abdul Majid, (1968) ILR Bom 998.
72
State of Madhya Pradesh v. Chironji Lal AIR 1981 MP 65.
73
(1911) 38 ILR Cal 797.
74
AIR 1965 SC 333.
75
Kesoram Vs. Secretary of State, (1928) ILR 54 Cal. 969
76
Secretary of State Vs. Cockraft, ILR 39 Mad. 351
77
Mata Prasad Vs. Secretary of State, ILR 5 Luck. 157
78
Kedar Vs. Secretary of State, ILR 9 Rang. 375
79
Secretary of State Vs. Sreegovinda, (1932) 36 Cal. WN 606
80
Etti Vs. Secretary of State, AIR 1939 Mad. 663
Page 31 of 33
c) Newspaper is not admissible as an evidence in Court of Law
It is most humbly submitted that in the instant case, the petitioner has attached newspaper articles to prove
that the government officers were corrupt and used sub-standard building material for the construction of the
bridge which ultimately caused the mishap.
The presumption of genuineness attached under Section 81, Indian Evidence Act, 1872 to a newspaper
cannot be treated as proof of the facts reported therein, and the statement of fact contained in a newspaper is
merely hearsay and, therefore, inadmissible in evidence.81 Matters published in newspapers are not
admissible in themselves.82
In Luxmi Raj Shetty v. State of T.N.83, the Hon’ble Supreme Court ruled out newspaper reports as against
direct evidence substantiating the prosecution case.
In Ramswaroop Bagari v. State of Rajasthan 84, Rajasthan High Court followed the above cited decision
and held that newspaper report cannot be allowed to be the basis of filing a petition. Statement of facts in a
newspaper is merely hearsay. It is inadmissible in evidence.
Thus, it cannot be proved beyond reasonable doubt and there is no case against the employees on charge of
corruption under Prevention of Corruption Act, 1978 pending before the Court. Therefore, petitioners claim
for damages must fail on account that Bob Constructions was an independent contractor and government
officials were not corrupt.
81
Harbhajan Singh v. State of Punjab, AIR 1961 Punj 215; Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571.
82
Krishnamma v. Govt. of T.N., 1999 Cr LJ 1915.
83
AIR 1988 SC 1274.
84
AIR 2002 Raj 27.
Page 32 of 33
RESPONDENT-
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, counsel for the
Respondents humbly pray that this Hon’ble High Court of Government of NCT, Delhi may be pleased to
adjudge and declare that:
I. The writ petition is not maintainable before the Hon’ble High Court of Delhi
II. The Petitioner’s right to life and personal liberty has not been violated by State Authorities.
III. The Government of NCT, Delhi is not vicariously liable to pay the damages to the petitioner.
And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the interests of justice,
equity and good conscience.
All of which is humbly prayed.
Sd/-
Counsel for the Respondents
Page 33 of 33
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RESPONDENT-

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-3rd JAMIA MILLIA ISLAMIA INTER FACULTY MOOT COURT COMPETITION, 2017-

JAMIA MILLIA ISLAMIA

FACULTY OF LAW (INTRA) MOOT COURT COMPETITION, 2017

THE HON’BLE HIGH COURT AT DELHI

WRIT PETITION NO.____/2018

[Under Article 136 of Constitution of Democratic State Of

HPC Ltd., & Amy Santiago……….Petitioner

MEMORIAL ON BEHALF OF THE RESPONDENT

A.I.R. All India Reporter

SCC Supreme Court Cases

SCR Supreme Court Reports

U.O.I Union of India

BOOKS, JOURNALS, ARTICLES:

The Constitution of India, 1950

136.Special leave to appeal by the Supreme Court

1.1 In the case of “Derry v. Peek”1 as stated by Lord Harshell

2. MERE SILENCE IS NO FRAUD

The principle here is that

In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.9 Slade J said;

3. CAVEAT EMPTOR (LET THE BUYER BEWARE)

2.No breach of contract

2.3 NO COMPENSATION AS NO BREACH OF CONTRACT

a. Coercion, according to section 15 of the Asnardian contract act

However in the following case none of the above could be proven

3. NO FRAUD, NO VOIDABILITY OF CONTRACT

In Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd.35 Slade J said;

5. DELAY IN ITSELF WILL NOT 37RENDER THE CONTRACT VOIDABLE

a) Bob Constructions is an independent contractor

b) State was performing Sovereign Function

All of which is humbly prayed.

Counsel for the Respondents

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