I

Rakesh Hegde v. Mansukh Sardesai

In The City Civil Court

At Jodhpur

(Under Original Jurisdiction)

Civil Suit No._____

In The Matter Of

Rakesh Hegde ---------------------------------------------------------------------Plaintiff

v.

Mansukh Sardesai-------------------------------------------------------------------Defendant

Written Submissions On Behalf Of Defendant,

, Counsel of The Defendant.

MEMORIAL ON BEHALF OF THE DEFENDANT

DRAWN AND FILED BY THE COUNSEL FOR THE DEFENDANT
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Rakesh Hegde v. Mansukh Sardesai

TABLE OF CONTENTS

S.NO Particulars Page No

1. List Of Abbreviations III

2. Index Of Authorities IV

3. Statement Of Jurisdiction V

4. Statement Of Facts VI

5. Issues For Consideration VII

6. Summary Of Arguments VIII

7. Arguments Advanced 1,2,3,4

8. Prayer 5

MEMORIAL ON BEHALF OF THE DEFENDANT

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LIST OF ABBREVIATIONS

S.No Abbreviation Stands For

1. A.C. Appeal Cases

2. AIR All India Reporter

3. Ed. Editor

4. ed. Edition

5. v. Versus

6. HCC High Court Cases

7. C.L.J. Civil Law Journal

8. Jdr Jodhpur

MEMORIAL ON BEHALF OF THE DEFENDANT

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INDEX OF AUTHORITIES

 Books

Law of torts, by Dr. R.K. Bangia , 24th edition , 2017.

Ratanlal and Dhirajlal , The Law of Torts , ( Justice G. P. SinghEd. ,wadhwaandCo. ,

Nagpur , 2001

 Cases citation

Ramdhara V. Phulwatibai (1969) Jab. L.J. 582

Mahendra Ram v. Harnandan Prasad A.I.R. 1958 Pat. 445.

 Hyperlinks

http://www.indiankanoon.org

MEMORIAL ON BEHALF OF THE DEFENDANT

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STATEMENT OF JURISDICTION

The counsel for the plaintiff has approached the learned court . The defendant humbly
submits to the jurisdiction of the court.

MEMORIAL ON BEHALF OF THE DEFENDANT

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Rakesh Hegde v. Mansukh Sardesai
STATEMENT OF FACTS

 “out-of-shape” is a popular unisex gym that is owned and operated by Mr.

Mansukh Sardesai(Defendant) in the city of jodhpur. The gym has been a
previously commercially successful venture with an annual turnover of over Rs.
1.15 cr.
 In order to maintain safety and security, the customers were asked not to work
out while drunk.
 On 30th august, 2019, Mr. Rakesh Hegde(Plaintiff) visited the gym under the
influence of alcohol and proceeded to bench press. After a while of rigorous
exercise, on of the weights fell on his hand causing him severe pain.
 Mr. Hegde announced before all the customers that “out-of-shine” was going
bankrupt and in a desperate bid to save money, they were reducing the number
of trainers, gym equipment was old, unsafe and exposing its customers to risk
in order to save money.
 Mr. Hegde taken to the hospital and diagnosed with a fracture in two places
on his arm and racked up quite a hefty medical bill. He claimed compensation
for the injuries.
 Mr. Mansukh Sardesai refused to compensate and as a result Mr. Hegde filed a
suit for negligence and for exemplary damages.
 Mr. Sardesai defended against claims and made a counterclaim of defamation
of the gym by Mr. Hegde and the consequent compensation.

MEMORIAL ON BEHALF OF THE DEFENDANT

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ISSUES FOR CONSIDERATION

1) Whether the suit of negligence is maintainable or not?

2) Whether or not the counterclaim of defamation is maintainable?

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SUMMARY OF ARGUMENTS

Whether or not the suit of negligence maintainable?

It is humbly submitted before the learned court that the defendant (Mansukh
Sardesai) is being sued for negligence. As there is no negligence on part of
defendant. However the plaintiff himself is the wrong doer.

In this case plaintiff himself a wrong doer, himself is negligent, as he was drunk,
despite this fact, he proceeded to bench press and did a rigorous workout and he
suffered injuries as a result of not fastening the weights correctly. This shows the
carelessness of plaintiff and the GYM is not liable for the same.

Therefore, the suit of negligence brought by the plaintiff is not maintainable.

Whether or not the counterclaim of defamation is maintainable?

Defamation is the injury to the reputation of a person .Any statement whether

said or written to the person about whom the statement is , comes in knowledge
of person other then him is considered as defendant .

1. The statement must be defamatory.

2. The said statement must refer to the plaintiff.
3. The statement must be published.

In this case the words spoken by plaintiff (Rakesh Hegde) were defamatory, it
tends to injure the reputation of the plaintiff, the statements were referred to
the defendant and lastly they are spoken in front of other members of the gym
which amounts to publication.

So the suit for the counterclaim of defamation is maintainable.

MEMORIAL ON BEHALF OF THE DEFENDANT

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ARGUMENTS ADVANCED

Whether the suit of negligence is maintainable or not?

This is the humble submission before the learned city civil court of Jodhpur at
Jodhpur that defendant ( Mr. Mansukh sardesai) is being sued for the negligence. As
there is no negligence on the part of defendant.

However the plaintiff himself is the wrongdoer.

In this case plaintiff himself is wrongdoer, himself is negligent and careless as he

was drunk despite this fact that he was under the influence of alcohol, he proceeded
to bench press. He did a rigorous workout by increasing the weights and continued
the exercise.

The injury to the plaintiff is due to his own wrong conduct of doing workout
under the influence of alcohol. Due to this the plaintiff had not fastened the
weights correctly, this shows the carelessness of the plaintiff and the gym had
not liability.

The plaintiff’s allegations about the equipment is totally false, as there were
no old equipment, all equipment are properly checked, they were the were
given proper maintenance by the trainers themselves.

In order to maintain safety and security there is a liability waiver agreement

between the parties, one of the clause in which he was asked not to work out
while drunk otherwise the gym had no liability .

So the suit of negligence is not maintainable.

Whether the counterclaim of defamation is maintainable?

Defamation is injury to the reputation of a person .Ant statement whether said or

written to the person about whom the statement is , comes in knowledge of person
other then him is considered as defamation .1

Three essentials of defamation:

1. The statement must be defamatory :- It means – tends to injure the

reputation of the plaintiff .

1
Law of torts, by Dr. R.K. Bangia , 24 th edition , 2017

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In Ramdhara V. Phulwatibai2 it has been held that the false imputation

by defendant that the plaintiff, a widow of 45 years, is an illegitimate
wife of a certain person, is not a mere vulgar abuse but a definite
imputation upon her chastity and thus constitutes defamation.

2. The said statement must refer to the plaintiff :- must have been taken
it to be for plaintiff by like-minded people. Intention to referred to
plaintiff is irrelevant.

3. Statement must be published :- it must be brought into the knowledge

of third party. Intention to publish is relevant.

In Mahendra Ram v. Harnandan Prasad3, the defendant send a

defamatory letter written in Urdu to the plaintiff. The plaintiff did not
know Urdu and therefore the same was read over to him by a third
person. It was held that the defendant was not held liable unless it
was proved that at the time of writing the letter in Urdu script, the
defendant knew that the Urdu script was not known to the plaintiff
and it would necessitate reading of the letter by a third person.

In this case Mr.Hegde after the injury proceeded to announce before

all the customers that “Out-of-shape” was going bankrupt and in
desperate bid to save money, they were reducing the number of
trainers. Moreover he announced that the gym equipment was unsafe
as it was old .

In this case, the words spoken by plaintiff (Rakesh Hegde) were

defamatory, it tends to injure the reputation of the plaintiff, the
statements were referred to the defendant and lastly they are spoken in
front of other members of the gym which amounts to publication.
Which fulfils all the essentials of defamation.

Hence, the suit for the counterclaim of defamation by the defendant

is maintainable.

2
(1969) Jab. L.J. 582 : (1969) M.P.L.J. 483 : 1970 Cr. L.J. 286 (Madh. Pra.)
3
A.I.R. 1958 Pat. 445.
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PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed before this learned city
civil court of Jodhpur at Jodhpur that it may be pleased to,

 Dismiss the suit filed by the plaintiff with cost, and

 Grant any other order in favour of the defendant that the honourable court
may deem fit in the eyes of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Date :-

counsel for the defendant

Place:- Jodhpur

MEMORIAL ON BEHALF OF THE DEFENDANT

DRAWN AND FILED BY THE COUNSEL FOR THE DEFENDANT