Memorandum for The Appellant

1st SIDDHRATHA JUNIOR MOOTCOURT COMETITION, SIDDHARTHA LAW COLLEGE,

2016

TEAM CODE - E
THE CASE CONERNING FOR THE BRITCH OF CONTRACT

BEFORE THE HONORALBE HIGH COURT

OF NANITAL

IN THE MATTER OF:-

MERCURY BUILDERS

Appellant
VERSUS

EARTH

MOVERS

Respondent

WRITTEN SUBMISSION ON THE BBEHALF OF APPELLANT

MOST RESPECTFULLY SUBMITTED TO THE HONBLE HIGH COURT OF
NANITAL

Memorandum for The Appellant

TABLE OF CONTENTS
S.No.

Heading

1.

Table of Contents

2.

Index of Authorities

3.

List of Abbreviations

4.

Statement of Jurisdiction

5.

Statement of Facts

6.

Questions Presented

7.

Summary of Arguments

8.

Arguments Advanced :

Page No.

ISSUE 1:- Whether the appeal before the Nanital High Court is
maintainable or not?
ISSUE 2:- Whether the Respondent (Earth Movers) is livable to
pay the damages occurred to the appellant (Mercury Builders) or
not?
9.

Prayer

Memorandum for The Appellant

INDEX OF AUTHORITIES
LIST OF CASES
Bhagwandas Goverdhands Kedi V. M/S Girdharilal parshottamdas on AIR 1966 SCR (1)

656.
Carlill V. Carbolic smoke ball company, AIR (1893) 1 QB 256.
AIR 1989 SC 1839 at 852.
Dagdu V. Bhana (1904) 28 BOM 420.
Dhulipudi Namayya V. Union of India, AIR 1958 AP 533.

STATUES
The CPC, 1908.
The I.C.A., 1872.
BOOKS

Sudipto Sarkar, VR Manohar, CPC 1908

Nilima Bhadbhade, Indian Contract Act
Bare Act of Contract, 1872
P.K. Pajumdar, CPC 1908

DICTIONARIES

Oxford English Dictionary,

Oxford Dictionary Of Law,
Merriam Webster, Dictionary Of Law,
Steven. H. Gifs, Dictionary of Legal Terms.

E-SOUCRES

http://www.findlaw.com
http://www.indiankanoon.com
http://www.indlawifo.org
http://www.lawyersclub.com
http://www.manupatra.com
http://www.lawsofindia.org
http://www.supremecourtcaselaw.com
http://www.casebreifs.com
http://www.scconline.com
http://www.judis.nic.in
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Memorandum for The Appellant

LIST OF ABBREVIATIONS

U/S

Under Section

Memorandum for The Appellant

SEC

Section

HC

High Court

CPC

Civil Procedure Code

AIR

All India Reports

DDN

Dehradun

STATEMENT OF JURISDICTION

Memorandum for The Appellant

THE COUNSEL FOR THE APPELLANT WOULD LIKE TO PRESENT THE CASE IN THE
JURISDICTION OF THE HONORABLE HIGH COURT OF NANITAL UNDER SECTION
961 OF THE CIVIL PROCEDURE CODE 1908.

STATEMENT OF FACTS
1. Mr. Virendra owned a large tract of land near Dehradun.

1 Appeal from original decree.

6

Memorandum for The Appellant

2. He got plans prepared for construction & then invited Mercury Builders, a reputed
contracting firm with twenty completed large prefects to its credit, to submit bid for
erecting a large building complex on land.
3. Mercury Builders could do all the work itself except excavation work. Mercury Builders
Needed know the cost of excavation.
4. Mercury Builders and Earth Movers had earlier worked together successfully on many
project.
5. Janak, the proprietor of Earth Movers studied the plan, calculated their own cost at Rs. 80
Lakhs, added 10% profit and submitted the bid of Rs. 60 Lakhs to Mercury Builders
along with calculation.
6. When Janak repaired these documents, he was preoccupied in an employees strike in his
office and works and had no assistance or staff which usually did the calculations.
7. He had therefore made wrong calculations of 80 Lakhs, when the cost would actually be
Rs. 140 Lakhs.
8. Based on that calculation of Earth Movers, Mercury Builders submitted its bid to Mr.
Virendra of Rs. 80 Crores which was the lowest bid Rs. 1 Crores less than the next lowest
bid.
9. Mr. Virendra appointed a committee of an architect, RCC consultant and civil engineer to
scrutinize all the bids invited which approval the bid of Mercury Builders.
10. Mr. Virendra awarded the contract to Mercury Builders.
11. Like some of the earlier projects completed by the Earth Movers for Mercury Builders,
Mercury Builders did not give Earth Movers a formal acceptance letter.
12. A few days letter, Janak reviewed the bid & found his mistake meant that not only he
would not earn a profit.
13. But he would suffer a loss of 60 Lakhs, a loss which he might not be able absorb and
when was likes to put him out of business.
14. He immediately called up Mercury Builders, explained this facts and withdraw his bid.
15. Mercury Builders told Janak that it would regard this as a repudiation amounting to
refusal to perform, and hold him liable for the damages.
16. Mercury Builders sought other bid for excavation work and accepted the lowest one of
DLF for Rs. 152 Lakhs.
17. Mercury Builders thus had to pay Rs. 64 Lakhs more than expected, and it lost 25% of
the profit it had anticipated and the project with Mr. Virendra.
18. Appellant (Mercury Builders) appeals Under Section 96 of CPC-1908 before the Nanital
High Court.In appeal the appellant (Mercury Builders) Under the Indian Contract Act
1872 challenged the original decree passed by Civil Court.
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Memorandum for The Appellant

QUESTIONS PRESENTED

1. WHETHER THE RESPONDENT (EARTH MOVERS) IS LIVEABLE TO PAY THE

DAMAGES OCCURED TO THE APPLIENT (MECRURY BUILDERS) OR NOT?

Memorandum for The Appellant

2. WHETHER

THE

APPEAL

BEFORE

THE

NAINTAL

HIGH

COURT

IS

MAINTAINABLE OR NOT?

SUMMARY OF ARGUMENTS

1. WHETHER THE RESPONDENT (EARTH MOVERS) IS LIABLE TO PAY THE

DAMAGES OCCURED TO THE APPELLANT (MECRURY BUILDERS) OR NOT?
The Counsel for the Appellant will prove in this Contention that the respondent (Earth
Movers) is liable to pay the damages occurred to the appellant because respondent
accepted the proposal and promised the appellant to finish the calculation. The mistake
was not in appellant side it was from respondent because he calculated the wrong
calculation even though he was a business profession and he had worked with Mercury
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Memorandum for The Appellant

Builders (Appellant) previously and succeeded in many works. Mercury Builders

(Appellant) gave a proposal to him because they both worked previously and with this
intension only he gave the calculation to Earth Movers (Respondent). The main important
thing should be noted here that when they both worked previously they should have
enforceable by contract between them. Therefore Earth Movers (Respondent) has to be
liable for damages.

2. WHETHER

THE

APPEAL

BEFORE

THE

NAINTAL

HIGH

COURT

IS

MAINTAINABLE OR NOT?
The Counsel would humbly like to submit that the decree passed by the Civil Court was
not valid because, even though there was no acceptance letter issued to Earth Moves but
they both worked previously. Hence I should mention one point clearly that whenever
two business person speaks regarding business the Contract Act automatically appeals to
them and their speaks will always, will be according to law because, they are business
person and they are not, relative to make any adjustment. So, I here to state that Section
96 of CPC 1908 appeal from the original decree is valid.

CONTENTION-A
WHETHER THE RESPONDENT (EARTH MOVERS) IS LIABLE TO PAY THE
DAMAGES OCCURED TO THE APPELLANT (MECRURY BUILDERS) OR NOT?

The counsel for the appellant would humbly like to submit that the damages

occurred to

appellant should be paid by the respondent (Earth Movers) and hence the decision of Civil Court
cannot be justified.
Moving ahead, in order to establish the relevancy of the above facts, the points must to be noted.
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Memorandum for The Appellant

Sec. 2(a) of Indian Contract Act of 1872 says that when one person signifies to another is
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.
Sec. 2(b) of Indian Contract Act of 1872 says that 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.

Mercury gave an offer to Earth Movers an offer according to Sec. 2(a) of ICA 1872 then Sec.
2(b) was finalized. That Earth Movers accepted from Mercury Builders to do the calculation.

When offer is said in the oral form then the acceptance can also been in oral form.

In leading case of Bhagwandas Goverdhands Kedi V. M/S Girdharilal parshottamdas 2 It was

clearly said that there was proposal/offer given in telephone and the offer was accepted through
the
Telephone and this was legally tuned according to Sec. 2 (h) of I.C.A. 1872 which was similar to
this present case.
Sec. 2 (h) says an agreement enforceable by law is contract.
Sec. 3, Sec. 4, are also applicable to the present case by referring the case which is mentioned
above.
Sec. 10 of I.C.A. 1872 what agreements are contract. All agreement are contracts if they are
made by FREE CONSENT of parties competent to contract, for a lawful consideration and with
a lawful object, and are not hereby expressly declared to be void.
Sec. 14 of Free Consent defined-Consent is said to be free when it is not caused by1) Coercion
2 AIR 1966 SCR (1) 656.
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Memorandum for The Appellant

2)
3)
4)
5)

Undue Influence
Fraud
Misrepresentation
Mistake, Subject to the provision.

In the leading case of Deo Nandan V. Chhote3. This case says that consent is free when it works
without obstacles to impede its exercise. Where there is no consent or no real and certain object
of consent, there can be no contract at all. At this present case it is clearly mentioned that there
was free of consent.
Sec. 22 Contract caused by mistake of one party as to matter of fact- A contract is not
voidable merely because it was caused by one of the parties to it being under a mistake as to a
matter of fact.
The leading case of Haji Abdul Rahman Allarakhia V. Bombay and Persia Steam Navigation
Co.,4
Here, it should be noted that, when Earth Movers prepared the calculation, he was facing many
problems (he was preoccupied in an employees, strike in his office and works and had no
assistance of the staff which usually did the calculations). Then how can be the Mercury Builders
(Appellant) can be liable for the damages.
The important point should be noted here, that Profit of 10% from this we can clearly identify
that it was a business or contract. Even though he was facing problem while doing calculation he
made the profit of 10%.
By this we can say it was a contract (Sec. 2[h] I.C.A. 1872). Earth Movers (Respondent) has the
intention of making profit. This point should be noted here, it is clearly states that it was an
agreement and this agreement was a Contract.
Note:- General Offer: - An offer may be made to be world at large, but the contract is not made
with all the world. Contract is made only with that person who comes forward and preforms the
conditions of the proposal. By this it is clearly said that it was not a general offer.
3 AIR 1983
4 (1892) 16 BOM 561.
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Memorandum for The Appellant

From the above paragraph (General Offer Definition) it is clearly mentioned that it was not a
general offer. If it was a general offer like the case Carlill V. Carbolic Smoke Ball Company5,
then respondent (Earth Movers) is not liable for the damages.

Hence, the light of the above facts & index of authorities the counsel would humbly like to
submit before the honorable High Court that the Appellant had a reasonable excuse to desert the
respondent on the grounds of liable for the damages where the respondent is an full and full
responsible for the damages.
Thus the Counsel for the Appellant humbly submits before the Honorable High Court that
with help of above statements, citation & rule of the Court, the counsel for the Appellant
would like to conclude that the Appellant had a reasonable ground to desert the
Respondent.

CONTENTION- B
WHETHER

THE

APPEAL

BEFORE

THE

NAINTAL

HIGH

COURT

IS

MAINTAINABLE OR NOT?
The counsel for the appellant humbly like to submit that the decree pass by the Civil Court is not
valid.
Hence, the appellant appeal to the High Court under Sec. 96 of CPC 1908 that is appeal from the
original decree. Sec. 96 states that save where otherwise expressly provided in the body of
this code or by any other law for the time being in force, an appeal shall he from every
decree passed by any Court exercising original jurisdiction the Court authorized to hear
appeal from the decisions of such Court.

5 AIR (1893) 1 QB 256

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Memorandum for The Appellant

In the leading case of K. Shivalingaiah V. B.N. Chandra Shekara Gowda 6,. This case says that
appeal from the original decree. Here, it was appeal to the Supreme Court under Article 134 of
CPC 1908. The original decree was given by the High Court of Karnataka.
Here, the facts says that the Earth Movers calculated the calculation they mentioned the profit
also that is 10% of customary rate here, clearly defines that Mercury has offered him and this
was accepted by Earth Movers also, of Sec. 2 (a),(b) of I.C.A. Contract Act 1872. This is an
acceptance letter in the form of orally. As it was mentioned that when an offer is orally expressed
then the acceptance also can be expressed orally.
I would like to mention the powers of the Appellate Court under Sec. 107 of CPC 1908.
1) Subject to such conditions and limitations a may be prescribed, an appellate court
shall have power.
a) To determine a case finally,
b) To remanded a case,
c) To frame issues and refer them for trial,
d) To take additional evidence or to require such evidence to be taken.
2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be duties as are conferred and impose by their Code on
Courts of original Jurisdiction is respect of suits instituted there in.
I like to say that why I mentioned the powers of Appellate Court Sec. 107 of CPC 1908, because
the points which are mentioned above are valid points and these points justice I cant get in the
Civil Court where the original decree was passed, So I appealed to the High Court for getting
justice, for the points which are mentioned above under the Sec. 96 of CPC 1908.
For Example:- In the case of Chellappan V. Varghese, AIR 1964 K 23.
After few days he told this was an wrong calculation because at the time he was facing many
problem why he would have done the calculation after few day of solving the problem. So,
because of him this problem has be raise so he can be liable to the damages. If the difference of

6 AIR 1993 KANT 29, 1992 (2) Kantlt 536: ILR (KAR) (1992) 1996
14

Memorandum for The Appellant

calculation was little bit then we can say its an nature mistake because no person cant be 100%
perfect but here, the difference was more than 64 Lakhs how could be this possible.
It was an mere mistake of fact by the Earth Movers, as it was mere a calculation problem by the
party. The Earth Movers was facing problem like employees strike in the office and works and
infect he did not have any further assistance of staff for the calculation.
In the light of above said that the counsel would like to say that the appeal before the High Court
under Sec. 96 of CPC 1908 is maintainable.
Thus the Counsel for the appellant humbly submits before the Honorable High Court that
with the help of above statements, citation and rule of the court, the counsel for the
Appellant would like to conclude that the Sec. 96 of CPC 1908 is completely acceptable and
maintainable and valid.

PRAYER

In the light of above mention issues raised, arguments advanced and authorities cited, the
Appellant humbly submits that the honorable High Court may be pleased to adjudge and
declare that:

The decree should be passed in favorer of Appellant has appeal under Sec. 96 of CPC
1908.
The Appellant demands that the respondent should be liable for the damages.

15

Memorandum for The Appellant

And to pass any such order as the honorable court may deem fit and proper in the light
of justice, equity and good conscience. The counsel shall forever beseech this Honorable
Court for its Honorable Consideration.

Counsel for the Appellant

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