INTERNAL AMITY LAW SCHOOL MOOT COURT COMPETITION, 2011

HONBLE HIGH COURT OF DELHI

AT NEW DELHI

Best Deals Estate Agency

Plaintiff

v.

Mr. Abhishek Bach

Defendant

MEMORIAL for PLAINTIFF

-Table of ContentsTABLE OF CONTENTS

Table of Contents........................................................................................................................i
Table of Abbreviations...ii
Index of Authorities................................................................................................................viii
Cases...................................................................................................................................viii
Statutes................................................................................................................................viii
Articles................................................................................................................................viii
Statement of Jurisdiction............................................................................................................x
Questions Presented..................................................................................................................xi
Statement of Facts....................................................................................................................xii
Summary of Arguments...........................................................................................................14
Arguments Advanced...............................................................................................................16
Conclusion and Prayer for Relief.............................................................................................23

MEMORIAL for PLAINTIFF

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-Table of AbbreviationsTABLE OF ABBREVIATIONS

/ - Paragraph(s)
/S./ss.- Section(s)
A.C. Appeal Cases
AIR- All India Reporter
All ER All England Law Reports
Am. Rev. Intl. Arb. American Review of International Arbitration
Anr. Another
Art.- Article
Cal. Calcutta
CD Compact Disk
CEO - Chief Executive Officer
Ch. (20)
Cir. Circuit
Co. - Company
Com. - Commercial
Corp. - Corporation
ed./eds. Editior(s)
edn. edition
ER English Reports
EULA - End User License Agreement
EWCA Civ. - England and Wales Court of Appeals (Civil)

MEMORIAL for PLAINTIFF

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-Table of AbbreviationsEWHC England and Wales High Court

F.2d Federal Reporter, 2nd series
F.3d - Federal Reporter, 3rd series
Ibid Ibidem
Inc. - Incorporated
Intl. Arb. L. Rev. International Arbitration Law Review
Ker Kerala
Ltd.- Limited
Mad. Madras
No. - Number
Ors. Others
PC Privy Council
pp. Pages
Pvt. - Private
QB Queens Bench
Rep. - Reprint
SC Supreme Court
SCC Supreme Court Cases
Sd/- - Signed
SLR Singapore Law Reports
SLT Scot Law Times
Supp. - Supplement
UKHL United Kingdom House of Lords
MEMORIAL for PLAINTIFF
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-Table of AbbreviationsUNCITRAL - United Nations Commission on International Trade Law

Univ. Miami L. Rev. University Miami Law Review
UP Uttar Pradesh
USA/US United States of America
v. - Versus

MEMORIAL for PLAINTIFF

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-Index of AuthoritiesINDEX OF AUTHORITIES

TABLE OF CASES
S.no Case

Citation

CS (OS) No. 2011/1984

Shri Sant Singh v. Shri K.G. Ringshia

decided on 24th May, 2010

Anand Bazar Patrika Ltd. v. Biswanath Prasad

AIR 1986 Pat 57

Maitin
3

Premchand Roychand v. Moti Lal

52 Bom LR 643

Dhanraj Mills Ltd. v. Narsingh Prasad Badona

AIR 1949 Pat 270

Firm Kanhaiyalal v. Dineshchandra

AIR 1959 MP 234

Baroda

Oil

Cakes

Traders

v.

Parshottam

AIR 1954 Bom 491

Narayandas Bagulia
7

Executive Engineer, Sundergarh v. M.P. Sahu

AIR 1990 Orrisa 26

Harris v. Nickerson

(1873) L.R. 8 Q.B. 286

Bhagwandas v. Girdharlal & Company

AIR 1966 SC 543 : (1966) 1

SCR 656

10

Entores Ltd. v. Miles Far East Corporation

(1955) 2 QB 327

11

Kilburn Engineering Ltd. v. Oil and Natural Gas

AIR 2000 Bom 405

Corporation Ltd
12

Ouseph Varghese v. Joseph Aley

C.A 1782 of 1966 (S.C)

decided 18.08.1969; (1969)
2 S.C.C. 539

13

Bhopal Singh v. Chatter Singh

AIR 2000 P&H 34

14

Narayan Nagorao v. Amrit Haribhau

1957 A.B. 241

15

Central London Properties Ltd. v. High Trees

[1947] K.B. 130

MEMORIAL for PLAINTIFF

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-Index of AuthoritiesHouse Ltd

16

M/s Motilal Padampat Sugar Mills Co. Ltd. v. The (1979) A.SC. 621, 649
State of Uttar Pradesh

STATUTES
Code of Civil Procedure, 1908
Indian Contract Act, 1872
Delhi High Court Act, 1966
Indian Evidence Act, 1872
ARTICLES
Seana Valentine Shiffrin, Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007)

Peter Linzer, On the Amorality of Contract Remedies Efficacy, Equity, and the Second
Restatement, 81 COLUM. L. REV. 111 (1981)
Richard R.W. Brooks, The Efficient Performance Hypothesis, 116 Yale L.J. 568 (2006)
BOOKS
Pollock and Mulla by J.K Kapur, Indian Contract Act and Specific Relief Acts, N.M Tripathi
Pvt. Ltd. 10th Edition, 1986

DICTIONARIES REFERRED
Blacks Law Dictionary, 6th Ed., Centennial Ed. 1891-1991

MEMORIAL for PLAINTIFF

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-Statement of JurisdictionSTATEMENT OF JURISDICTION

Best Deals Estate Agency, the Plaintiff in the instant case, has the honor to submit this
Memorial before the Honble High Court of Delhi, in pursuance of sub article (2) of Article
226 of the Constitution of India and further sub-section (d) of Section 16 of the Code of Civil
Procedure, 1908 and furtherance of sub-section (2) of Section 5 of Delhi High Court Act,
1966.

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-Questions PresentedQUESTIONS PRESENTED

The following questions have been presented before the Honble court for its determination:
1) Whether the Honble High Court of Delhi has jurisdiction over the instant matter?
2) Whether the agreement is a valid agreement amounting to contract?
2.1 Whether the agreement exists for both apartments or not.
3) Whether the contract is enforceable in accordance with Indian Laws?
3.1 Does doctrine of promissory estoppel apply.

MEMORIAL for PLAINTIFF

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-Statement of FactsSTATEMENT OF FACTS

I
That Mr. Sachin Kumble is sole proprietor of Best Deals Estate Agency [hereinafter
Plaintiff] which has its headquarters at New Delhi. Mr. Abhishek Bach [hereinafter
Defendant] is a prominent actor who appeared in several films. He permanently resides
in Mumbai.
II
That the Plaintiff developed a marketing strategy under which, they inaugurated their
website www.best-deals.com, which gave discounts, benefits and privileges to its
members.
III
That defendant likes two apartments on the plaintiffs website, one at Greater Kailash- 1
[hereinafter GK- 1], and other at Civil Lines. The defendant emails the plaintiff for
apartment at GK-1.
IV
That the defendant calls the plaintiff, signifying his intent to buy apartment(s). Mr. Munna
negotiates the price for the plaintiff. Mr. Munna puts forward an offer of 30, 00,
000(Rupees Thirty Lacs) for apartment at GK- 1 to the defendant, to which the defendant
agrees. However, the defendant later adds his intent to buy the apartment at Civil Lines.
But there is no reply from the plaintiff.
V
That during a marketing exercise the plaintiff sends out customary greetings for
Independence Day, and a free membership card which entitles members to Holiday
Clubs outside Delhi. The plaintiff received such membership
VI

MEMORIAL for PLAINTIFF

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-Statement of Facts-

That Defendant flew to Delhi to make two payments towards sale of apartments on
August 17, 2011. The plaintiff informs him that he can make the payment for apartment at
GK- 1, but there is no contract between the plaintiff and the defendant for the Civil Lines
apartment.
VII
That on August 20, 2011 an earthquake strikes Delhi. The apartment at GK- 1 incurs
structural damage. The defendant continues to use the membership card sent by the
plaintiff.
VIII
That on August 23, 2011 the plaintiff demands payment of 30, 00, 000 towards sale of
apartment in GK- 1. The defendant refuses to pay stating that he would either take both
the apartments or none
IX
That plaintiff institutes a civil suit against the defendant before Honble High Court of
Delhi. The defendant denies existence of contract for sale of apartment in GK- 1, and
claims inter alia that contract was for sale of two apartments. He further claims cost.

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

SUMMARY OF ARGUMENTS

1)

WHETHER

THE

HONBLE HIGH COURT

OF

DELHI

HAS JURISDICTION OVER THE

INSTANT MATTER?

It is submiited that The Honble High Court of Delhi has territorial jurisdiction in the matter,
as the actio ex delicto rises in Delhi. The immovable property owning to its worth falls under
the ambit of pecuniary jurisdiction satisfying the sub-section (2) of Section 5 of Delhi High
Court Act, 1966. Thus, High Court of Delhi has inherent jurisdiction to entertain, deal with
and decide the suit.

2) WHETHER THE AGREEMENT IS A VALID AGREEMENT AMOUNTING TO CONTRACT?

2.1) WHETHER THE AGREEMENT EXISTS FOR BOTH APARTMENTS OR NOT.
In accordance with S. 4 of Indian Contract Act, 1872, there are two stages for a valid
communication of proposal. The communication of the proposal is the first stage. Such
knowledge coming to the acceptor is the second stage. Here the email doesnt amount to an
agreement, as the email, though, did enter in to the computer resource of the plaintiff; it never
came into the knowledge of plaintiff. The telephonic conversation between the plaintiff and
the defendant concluded only for apartment at GK-1, for the defendant agreed to purchase the
property after series of negotiation with the representative of the plaintiff. However, the
defendant also signified his intent to purchase the property at Civil Lines to which he heard
no reply. Therefore, its contended by the plaintiff, that the contract was complete for GK-1
apartment however, there was no contract established for apartment at Civil Lines.
3) WHETHER THE CONTRACT IS ENFORCEABLE IN ACCORDANCE WITH INDIAN LAWS?
The contact thus established under the canon of equity should be specifically enforced, as the
plaintiff was ready and willing to perform his part of the contract. In light of equity it
therefore follows that the Honble court through res ipsa loquitur see the intention of the
plaintiff who bought the house from the previous owner, and was ready to hand over
possession of the same to the defendant. Hence the plaintiff is entitled to claim specific
performance by the virtue of there conduct.
MEMORIAL for PLAINTIFF
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-Conclusion and Prayer-

3.1 DOES DOCTRINE OF PROMISSORY ESTOPPEL APPLY.

Estoppel in its broadest sense is a legal term referring to a series of legal and equitable
doctrines that preclude a person from denying or asserting anything to the contrary of that
which has, in contemplation of law, been established as the truth, or by his own deed, acts, or
representations, either express or implied. Here the defendant permitted the plaintiff to
believe a thing to be true, that he was willing to purchase the apartment by contracting for the
GK-1 apartment and also continuous availing of the benefits of the membership card, even
though according to the defendant some anomalies arose. Here, the plaintiff did act upon such
belief and promissory estoppel bars the defendant to deny any existence of such contract

ARGUMENTS ADVANCED
MEMORIAL for PLAINTIFF
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1) WHETHER

THE

-Conclusion and Prayer-

HONBLE HIGH COURT

OF

DELHI

HAS JURISDICTION OVER THE

INSTANT MATTER?

1.1 Section 16 of Code of Civil Procedure recognizes a well established principle that actions
against res or property should be brought in the forum where such res is situate. A court
within whose territorial jurisdiction the property is not situated has no power to deal with and
decide the rights or interests in such property. In other words, a court has no jurisdiction over
a dispute in which it cannot give an effective judgment1.

1.2 It is humbly submitted to the Honble Court of Delhi, in Anand Bazar Patrika Ltd. v.
Biswanath Prasad Maitin2 it was held that the case was covered by Clause (d) of Section 16
of the Code of Civil Procedure, the Proviso had no application and since the property was
situated at Dhulia, Subordinate Judge, Dhulia had jurisdiction to entertain and try the suit.

1.3 Since the suit was for specific performance of agreement and possession of immovable
property situated in the jurisdiction of High Court of Delhi, it is deemed fit that Delhi High
Court clearly posses the jurisdiction to try the suit. It is, therefore, covered by the main part of
Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary
provision) would apply and hence High Court of Delhi has inherent jurisdiction to entertain,
deal with and decide the cause.

______________________________________
1

Shri Sant Singh v. Shri K.G. Ringshia, CS (OS) No. 2011/1984 decided on 24th May, 2010

AIR 1986 Pat 57

1.4 It is humbly submitted, that in perusal of the Article 226(2) as stated below:
The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

This High Court has the adequate jurisdiction to try the suit as actio ex delicto rises in Delhi.

1.5 In pursuance of sub-section (2) of Section 5 of Delhi High Court Act, 1966 which as
follows:
suits the value of which exceeds the above amount(twenty lacs), this High Court will be
the principal Civil Court of original jurisdiction.

It humbly submitted that this Honble Court is court of original jurisdiction, fulfilling the
territorial and pecuniary qualifications.
2) WHETHER THE AGREEMENT IS A VALID AGREEMENT AMOUNTING TO CONTRACT?
2.1 It is submitted that a proposal (regardless of the mode of communication) is made not at
the place where it emanates but where it is received3. This is because a proposal is not
complete unless and until it comes to the knowledge of the person to whom it is made4.

2.2 It is therefore submitted in the instant case that the act of defendant sending an email
signifying his intent on purchasing the apartment at GK-1, (to which the defendant received
an automated email appreciating his interest in services provided by the plaintiffs agency)
does not amount to contract as it was an invitation to offer, and not an offer per se. Nobody
is bound by such an offer5. Email(here) does not amount to an agreement. The defendant after
receiving no response from the plaintiff calls the plaintiff. Hence establishes a contract.
___________________________________
3

Premchand Roychand v. Moti Lal, 52 Bom LR 643; Dhanraj Mills Ltd. v. Narsingh Prasad
Badona, AIR 1949 Pat 270
4
Firm Kanhaiyalal v. Dineshchandra, AIR 1959 MP 234; Baroda Oil Cakes Traders v.
Parshottam Narayandas Bagulia, AIR 1954 Bom 491
5
Executive Engineer, Sundergarh v. M.P. Sahu, AIR 1990 Orrisa 26; Harris v. Nickerson
(1873) L.R. 8 Q.B. 286
2.1.1) WHETHER THE AGREEMENT EXISTS FOR BOTH APARTMENTS OR NOT.
2.1.2 The Honble Supreme Court in Bhagwandas v. Girdharlal & Company6 held that the
acceptance on the phone, if drowned by noise of a flying aircraft or is spoken into a telephone
MEMORIAL for PLAINTIFF
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-Conclusion and Prayer-

after the line has gone down dead or is so indistinct that the proposer does not hear it, or the
telex machine has gone out of order, there is no contract7.

2.1.3 The onus is on the acceptor to ensure that the acceptance is audible, heard and
understood by the offeror8 the reason being that the acceptance should be absolute and
unconditional which in turn requires that it should not be based on any mistake and
misrepresentation.

2.1.4 In Kilburn Engineering Ltd. v. Oil and Natural Gas Corporation Ltd9., the Honble
High Court observed that the cardinal principle in light of S. 7 of the Indian Contract Act,
1872 (acceptance must be absolute and unqualified) that the offer and acceptance of an offer
must be absolute without giving any room of doubt. It is well settled that the offer must be
based or founded on three components- Certainty, commitment and communication. If any of
the three components is lacking there cannot be said to be a valid contract in the eyes of law.

2.1.5 In the instant matter, the agreement between the plaintiff and the defendant came into its
being by means of a telephonic conversation. Communication by phone or telex would fall
under oral offer and acceptance. Here, Mr. Bach and Mr. Munna negotiated and settled the
price for GK-1 apartment at Rs 30, 00, 000 through a telephonic conversation.
____________________________________
6

AIR 1966 SC 543 : (1966) 1 SCR 656

Entores Ltd. v. Miles Far East Corporation, (1955) 2 QB 327; Firm Kanhaiyalal v.
Dineshchandra, AIR 1959 MP 234
8
Firm Kanhaiyalal v. Dineshchandra, AIR 1959 MP 234; Bhagwandas v. Girdharlal &
Company, AIR 1966 SC 453 at 550, Para 14 :(1966) 1 SCR 656
7

AIR 2000 Bom 405

However, later Mr. Bach signified his intent to buy the Civil Lines apartment as well, but he
heard no reply from Mr. Munna- the mobile presumably out of network coverage.

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

2.1.6 The position under S. 4 is clear beyond doubt. A proposal which is made becomes
complete only when its communication comes to the knowledge of the person to whom it is
made. In other words, unless the proposal is communicated to the person to whom it is made,
it is not complete, and in that sense is inchoate and inconclusive. If that be the position, the
proposal can be said to have been made by the defendant to the plaintiff only when it comes
to the knowledge of the plaintiff.

2.1.7 Consequently, the agreement between the plaintiff and the defendant is an agreement
amounting to contract for GK- 1 apartment, and not for Civil Lines apartment.

3) WHETHER THE CONTRACT IS ENFORCEABLE IN ACCORDANCE WITH INDIAN LAWS?

3.1) The Supreme Court has held that in a suit for specific performance the plaintiff must set
out the agreement which the defendant has refused to do so10.

3.2) Notable American jurists and scholars have advanced an approach to contract
enforcement that would render breach legally and morally uncontestable, assuming
compensation follows. The efficient breach hypothesis supposes that the promisor has the
legal right--not merely the power--to choose to perform or pay damages. That right belongs to
the promisee under the efficient performance hypothesis. Holmess famous claim that a
promise imposes an obligation on the promisor to choose whether to perform or pay
damages.
____________________________________
10

Ouseph Varghese v. Joseph Aley C.A 1782 of 1966 (S.C) decided 18.08.1969; (1969) 2
S.C.C. 539
In Holmess view, a promise to do X is interpreted, by default, as a promise to do X or pay
damages11. It is settled canon of law that equity follows the law. Equity would tilt in favour of
law and not against violation thereof. To claim equity, the petitioner must explain previous
conduct12.

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

3.3) The plaintiff must plead that he has been ready and willing to specifically perform his
part of the agreement. In the absence of this allegation the suit is not maintainable. And
before a decree for specific performance can be given he must prove his readiness and
willingness to perform his part13. The plaintiff without expressly alleging readiness and
willingness to perform his part of the contract referred to the notice which he clearly said so.
He also made a grievance of the defendant not executing the sales deed. He was held entitled
to claim specific performance14.

3.4) Here the plaintiff had the pre-requisite readiness and willingness to perform the contract.
The plaintiff bought the house from the previous owner, and was ready to hand over
possession of the same to the defendant signifying the plaintiffs clear intention in selling the
property. Hence the plaintiff is entitled to claim specific performance by the virtue of there
conduct.

3.1.1) DOES DOCTRINE OF PROMISSORY ESTOPPEL APPLY.

3.1.2) Promissory estoppel is the doctrine that prevents a party from acting in a certain way
because the first party promised not to, and the second party relied on that promise and acted
upon it.
____________________________________
12

Bhopal Singh v. Chatter Singh, AIR 2000 P&H 34.

13

Ouseph Varghese v. Joseph Aley C.A 1782 of 1966 (S.C) decided 18.08.1969; (1969) 2
S.C.C. 539
14

Narayan Nagorao v. Amrit Haribhau 1957 A.B. 241

3.1.3) This principle of equity made sporadic appearances but it was only in 1947 that it was
restated as a recognized doctrine by Lord Denning in Central London Properties Ltd. v. High
Trees House Ltd.15, who asserted:
A promise intended to be binding, intended to be acted upon, and in fact acted upon
is binding.

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

Lord Denning has extrajudically suggested that where there is a deliberate promise which is
intended to affect legal relations, it would be inequitable to hold that the promissor is not
bound when the promisee has acted upon such promise.
3.1.4)

The Supreme Court has observed that the doctrine of promissory estoppel is a

principle evolved by equity to avoid injustice and though commonly named promissory
estoppel it is neither in the realm of contract nor in realm of estoppel, but it is a doctrine
evolved by equity in order to prevent injustice where promise is made by a person knowing
that it would be acted upon by the person to whom it is made and in fact it is so acted upon
and it is inequitable to allow the party making the promise to go back and act upon it 16.
Further, S. 115 of Indian Evidence Act, 1872 states:
When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing.

3.1.5) It is humbly submitted in the case, that deliberate promise was made between the
defendant and the plaintiff. And, plaintiff on acted upon such promise by purchasing the
apartment at GK-1. If, now, the defendant rescinds the contract it would be inequitable and
would be in direct violation of the rule of equitable estoppel.

____________________________________
15

[1947] K.B. 130

16

M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh (1979) A.SC.
621, 649

Futher, Verba chartarum fortius accipiuntur contra preferentem, i.e the words of deeds are to
be interpreted most strongly against him who uses them . The plaintiff, even after alleging that
he would buy both the apartments or none continued to use the membership card sent by
the plaintiff, which furthers the cause of the defendant.

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

CONCLUSION AND PRAYER FOR RELIEF

In light of the facts of the case, issues raised and arguments advanced, Counsel for Plaintiff
respectfully requests this Honble High Court may graciously be pleased to:

MEMORIAL for PLAINTIFF

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-Conclusion and Prayer-

1) Affirm the contract thus established between Defendant and Plaintiff, is only for
apartment at GK-1.
2) Affirm the contract is to be specifically enforced
3) Pass any orders that this Honble Court deems appropriate in the interest of equity and
good conscience.
And hence render justice.
All of which is respectfully affirmed and submitted

NEW DELHI

Counsel for Plaintiff

MEMORIAL for PLAINTIFF

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