D 29

IN THE HON’BLE HIGH COURT OF DELHI

AT DELHI
__________________________________________________________

CASE NO. ________________/2015

DINESH MARIA ..PLAINTIFF

VS

SARA A. FOSTER. …DEFENDANT NO 1

MANCHESTER UNITED … DEFENDANT NO 2

MEMORIAL FILED ON BEHALF OF THE DEFENDANT

 INDEX

S.NO. LIST OF CONTENTS P.NO.

1. LIST OF ABBREVIATION 1

2. INDEX OF AUTHORITIES 2

3. STATEMENT OF JURISDICTION 3

4. STATEMENT OF FACTS 4

5. ISSUES FOR CONSIDERATION 5

6. SUMMARY OF ARGUMENTS 6

S.NO. ARGUMENTS ADVANCED P.NO.

A. Whether the Present Court has jurisdiction over it or 9

not?

B. Whether contract came into existence or not? 11

C. Whether suit can be filed against Sara A. Foster or 13

not?

D. Whether suit of defamation is maintainable or not? 14

7. PRAYER
 LIST OF ABBREVIATION

1. AIR ALL INDIA REPORTER

2. SCC SUPREME COURT CASES

3. CPC CIVIL PROCEDURE CODE

4. UOI UNION OF INDIA

5. SEC. SECTION

6. I.E. THAT IS

7. SAF SARA A. FOSTER

8. IFF INDIAN FOOTBALL FEDERATION

9. IT INFORMATION TECHNOLOGY ACT

10. V. VERSUS

1
 LIST OF AUTHORITIES

STATUES, LEGISLATIONS AND CODES

S.NO

1. CIVIL PROCEDURE CODE, 1908

2. INDIAN CONTRACT ACT, 1872

3. SPECIFIC RELEIF ACT, 1963

4. INFORMATION TECHNOLOGY ACT, 2000

5. TORT AND RELEIF

BOOKS AND REFRENCES

S.NO

1. POLLOCK AND MULLA, CONTRACT ACT, 13TH EDITION

2. POLLOCK AND MULLA, SPECIFIC RELEIF ACT, 9TH EDITION

2
 LIST OF CASES REFERRED
S.NO.

1. M/S Klg Systel Ltd. Vs. M/S Fujitsu Icim Ltd. AIR 2001 Del. 357

2. Laxman Prasad v. Prodigy Electronics Ltd. (2008) 1 SCC 618

3. Union of India v. Ladulal Jain AIR 1963 SC 1681

4. British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors.,
(1990) 3 SCC 481.

5. Mohan Sigh v. Lajya Ram, AIR 1956 Punj 188

6. AIR 1953 Punj 274

7. Somasundaram Pillai v. Provincial Government of Madras, AIR 1947

8. Lister vs. Lesley Hall,[2001] UKHL 22

9. Pukhraj v State of Rajasthan [1973] SCC (Cri) 944

10. Rustom K. Karanjia and Anr v Krishnaraj M.D. Thackersey and Ors. (1970) 72
BOMLR 94.

11. Ram Jethmalani Vs. Subramaniam Swamy'’ 2006 (87) DRJ 603

12. Santosh Tewari and Ors V State of U.P. and Anr 1996 (20) ACR 808

13. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

3
 STATEMENT OF JURISDICTION

The Plaintiff has approached the High Court of Delhi which does not have jurisdiction to accept
the suit which has been further explained in the Issue 1 of the Arguments.

So the suit should not be accepted or transferred to Jurisdiction of Mumbai High Court.

4
 STATEMENT OF FACTS

Manchester United (MU) is one of the biggest professional clubs of India, with a large base fan
and multiple sponsorship deals. Its headquarters is in Mumbai and is managed by Sara A. Foster
(SAF) who also resides in Mumbai. The club regularly engages in player transfers, and has
standard convention of keeping a player for atleast a season though certain players have been
kept on match to match basis as well. Dinesh Maria, 27, a resident of New Delhi is a world class
midfielder expressed with many several cups in his name and also scored a winning goal for
India at 2008 Olympics. He showed inclination to join MU for a 5 year term in exchange of Rs. 3
crores. For all transfer players in India, Indian Football Federation (IFF) mandates all transfer
related documents like contract fees, players profile, medical reports etc. be submitted within 15
days of transfer and are uploaded on IFF server. On 5th September, 2014, United sent a contract
by email to Dinesh Maria specifying his fees, duration of contract and other terms with a
termination clause to which his agent who replied on 7th September, 2014 stated Dinesh interest
in joining the club. On 15th September, 2014, United uploaded the confidential medical report
on IFF server but as the servers were down on that day, the report was not submitted. As Maria
joined the club as a winger or a midfielder, his performance remained above average. SAF as
rumored frequently expressed his disappointment over the performance of Maria. In October ’14,
Maria suffered a hamstring injury against Northampton FC and was substituted 20 min. into the
match and spent a month on the sidelines, only occasionally training with the rest of the team.
The relation between the Club and Maria worsened after terrible performance against Liverpool
after which SAF benched Maria was continuous 3 months. On 2nd March’15, Maria got injured
in a training session which doctors described as a very ordinary sprain but he expressed his
desire not to play in a Triwizard Tournament Final. On 15th March’15, SAF in Tournament
Final substituted Ashley Old who was yellow carded with Dinesh Maria. Out of provocation, the
player head butted a player after which Maria got red card and Club faced serious lack of
formation as a result they lost the match as well as sponsorship deals. In March 2015, with the
consultation of Vice Chairman of United Club, Maria’s contract was terminated due to his
incompatibility with the ideals of Club and philosophy of manager and as a result Maria was sold
to Punjab Soccer Group (PSG) for Rs. 1.3 crore. Maria claimed the breach of contract and
instituted a civil suit in May, 2015 against SAF and Manchester United Club before the Hon’ble
Delhi High Court praying for damages which damaged his career beyond repair and reduced his
value and reputation as a national player. United Club challenged the jurisdiction of Delhi High
Court, claiming Bombay High Court to be the appropriate forum. Moreover they are also
claiming that the contract between Dinesh and Maria was never validly concluded and denied all
allegations of a breach claiming Mr. Maria to be an ‘incompetent’& ‘injury’ prone player. On
10th September’15, Delhi HC posted the suit for final disposal and ordered the issue of
jurisdiction to be heard on merits

5
 ISSUES FOR CONSIDERATION

ISSUE 1. WHETHER THE HIGH COURT OF DELHI HAS JURISDICTION

OVER THE SUIT OR NOT?

ISSUE 2. WHETHER THE CONTRACT EXISTED BETWEEN THE PARTIES

OR NOT?

ISSUE 3. WHETHER SAF CAN BE BREACHED OR NOT?

ISSUE 4. WHETHER DEFAMATION CAN BE CLAIMED OR NOT?

6
 SUMMARY OF ARGUMENTS

ISSUE 1. WHETHER THE HIGH COURT OF DELHI HAS JURISDICTION OVER

THE SUIT OR NOT?

It is humbly submitted that the HIGH COURT Of DELHI does not the jurisdiction over the suit
filed by the plaintiff as all the business and regulations took place at Bombay, and the
defendant’s registered office is in Bombay. It is further explained by in the arguments advanced
using civil procedure code, 1908 and by reffering other cases.

ISSUE 2. WHETHER THE CONTRACT WAS COMPLETED?

By applying section 7 (provisional contract) of Indian Contract Act, 1872, the permission or
regulatory clearance were not obtained from the regulating body (Indian Football Federation)
and the contract was not completed as it was mandatory under the guidelines of Indian Football
Federation.

By using Information Technology Act, 2000 , The dispatch of electronic documents(goods) was
not on time as it was made mandatory by the Indian Football Federation.

Bt if we assume contract was impliedly existed as player was playing without the completion of
contract, the behaviour or ethics of the player was not justified and he did not play with his
ability. So the contract (impliedly assumed) was terminated following the terms & conditions
made at the time of agreement.

ISSUE 3. WHETHER SARA A. FOSTER IS LIABLE UNDER THE SUIT OR NOT?

The suit cannot be filed against Sara A. Foster as she is only managing and running the club.For
all the acts of the Club(artificial legal entity), the club only will be liable and none employee will
be made responsible for the working of the club by the concept of vicarious liability and
Company Act, 2013.

7
ISSUE 4. WHETHER THE CLUB IS LIABLE FOR DEFAMATION?

The club has the right to decide whether the player should play or not. As it was only a minor
injury and medical report proved that he was fit to play for the next tournament and there was 13
days of time to recover from a minor injury. The statement published were true as the player had
not played in obidience to his skills and ability.

So, the Club would not be liable for defamation as it has the right to order the player to play if he
is medically fit and there was no publication of false statement.

8
 ARGUMENTS ADVANCED

Issue 1: The present court does not have jurisdiction to this suit and accordingly it is to be
transferred to the Bombay High Court.

S.20 Suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations, i.e. Ss 15 to 19,every suit shall be instituted in Court within whose
local limits of jurisdiction:-

(a) Defendant(s) at time of commencement of suit actually or voluntarily resides carries

business or trade or personally works for gain.
(b) any of the defendant ( if more than one) at time of commencement of suit actually or
voluntarily resides carries business or trade or personally works for gain, provided (a) Court
gives leave to do so (b) Defendants who don’t reside there accept.
(c) Where cause of action arises.

Explanation-A corporation shall be deemed to carry on business at its sole or principal office in
India or, in respect of any cause of action arising at any place where it has also a subordinate
office, at such place.
As per the illustration given in the provision A resides at Simla, B at Calcutta and C at Delhi A,
B and C being together at Benaras, B and C make a joint promissory note payable on demand,
and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also
sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if
the non-resident defendant objects, the suit cannot proceed without the leave of the Court.1

In the present case as the Registered office of the Manchester United club is situated in Bombay
and all major actions are taken at Bombay only, hence Manchester United being the defendant

1
M/S Klg Systel Ltd. Vs. M/S Fujitsu Icim Ltd. AIR 2001 Del. 357

9
has the right to get the suit initiated against him transferred to the place where the registered
office is situated i.e. Bombay.
Section 20 of the code has been designed to secure that justice might be brought as near as
possible to everyman’s hearthstone and that the defendant should not be put to the trouble and
expense of travelling long distances in order to defend himself in cases in which he may be
involved.2

It is well settled principle of law that consent can neither confer nor take away jurisdiction of a
competent court. The same principle applies to ouster of jurisdiction of a court. Where court has
explicitly jurisdiction over a suit, then neither consent nor waiver nor estoppels nor acquiescence
can oust it.3

Supreme Court in several cases4 held that the suit initiated by plaintiff can be transferred to the
place of suing where defendant resides or carry on business, in such cases plaintiff cannot oppose
this right of defendant unless there is such damage to which could not be monetarily
compensated.

In the present case the suit was brought by the plaintiff in the Delhi High Court which does not
have the jurisdiction of the suit as the cause of action arises at a different place and the registered
office of defendant is also located at Bombay. The suit in the present court is not maintainable
and of should be transferred to high Court of Bombay.

In one other case i.e. Mohan Sigh v. Lajya Ram5 Punjab high court held that this right is not only
to be conferred as per books only, it has its practical implications where defendant by invoking
this right can get the suit transferred to the place where he resides or carry on his business. Also
the court in which the jurisdiction issue is raised must be satisfied that this court does not
competent jurisdiction to proceed with the matter therefore the matter should be accordingly
transferred to the original competent court i.e. Bombay High Court.

2
Laxman Prasad v. Prodigy Electronics Ltd. (2008) 1 SCC 618
3
Union of India v. Ladulal Jain AIR 1963 SC 1681
4
British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481.
5
AIR 1956 Punj 188

10
ISSUE 2. WHETHER THE CONTRACT WAS COMPLETED OR NOT?

By applying Section 7 of Indian Contract Act, An acceptance is sometimes made subject to final
approval. A provisional acceptance of this kind does not bind either party until the final
approval is given. Meanwhile the offeror is at liberty to cancel his ooffer. The decision of the
Punjab High Court in Union of India v. S. Narain Singh6 is an illustration in point. The court
observed as follows:

Where the conditions of auction sale expressly provide that the acceptance of the bid shall be
subject to the confirmation of the Chief Commissioner, there will be no complete contract till the
acceptance of the highest bid is confirmed by the Chief Commissionr and the person whose bid
has been provisionally accepted is entitled to withdraw his bid.

The bidder will have the right to withdraw his bid even where it is a condition of the auction sale
that a bid which has been provisionally accepted cannot be withdrawn.7 Such a prohibition
against withdrawl does not have the force of law unless there is some consideration to bind him
down to the condition.

It can be interpreted from above stated judgements that a contract takes a formal shape only
when a authorised or statutory body inspects and permit the establishment of a contract. Both the
parties will be bound only when the regulating or authorised body authorises the contract till
both the parties have right to revoke from the contract.

As in our case the Indian Football Federation is the regulatory body and mandating all the
transfers and contracts between the players and the teams, the final approval of the Indian
Football Federation is mandatory. As the documents had not been uploaded to the server of IFF,
the contract was not completed as it was not authorised by the IFF, the regulating body.

Section 13 of Information & Technology Act. Time and place of dispatch and receipt of
electronic record.

(1) Save as otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows, namely :—

6
AIR 1953 Punj 274. The auctioneer is not bound until the regulatory body inspects the auction of selling.
7
This was held by the Madras High Court in Somasundaram Pillai v. Provincial Government of Madras, AIR 1947
Mad 366

11
 (a) if the addressee has designated a computer resource for the purpose of receiving
electronic records,—
(i) receipt occurs at the time when the electronic, record enters the designated
computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not
the designated computer resource, receipt occurs at the time when the electronic
record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified
timings, if any, receipt occurs when the electronic record enters the computer
resource of the addressee.
(2) Save as otherwise agreed to between the originator and the addressee, an electronic record is
deemed to be dispatched at the place where the originator has his place of business, and is
deemed to be received at the place where the addressee has his place of business.

By these two clause of section 13 of Information Technology Act, 2000 , it was mandatory that
the documents should be made available to the IFF server or online basis, but the documents
were not received by the IFF, so the contractual obligation has not arisen.

If we assume that contract was implied by the conduct of the parties although it was not
legally authorised, it contained a termination clause, produced below:

“Clause 108. The Club may terminate this contract if the Player shall at any time:
a) fail, refuse or neglect to play or train for the Club conscientiously and to the best of his ability
and skill.
b) by reason of some medical condition, be exposed by playing the game to a greater than usual
risk to his health or to a greater than usual risk of injury.”

On 2/03/2015, Dinesh Maria got injured during a training session, medical report stated that
there was only a ordinary sprain and was in a condition to play for tournament, but because of
his concerns SAF made him to sit on bench although he was fit to play.

As the next match was after 13 days which is a sufficient amount of time to recover and practice
for the tournament. He was needed in the last 20 minutes as one of the players was yellow
carded.
He played out of frustration which shows that he consciously played bad and behaved against the
norms of the termination clause.
And hence the club had the right to terminate him and to discharge the contract.

8
Terms mentioned in the problem.

12
ISSUE 3. SUIT CANNOT BE FILED AGAINST SARA A. FOSTER

As Sara A. Foster works for the Manchester United and she does all the works authorised by the
club, a suit cannot be filed against SAF by the concept of vicarious liability.

The liability of an employer derives from their voluntary assumption of the relationship for
tortious conduct of employees and the duties that arise from that relationship and their choosing
to entrust the performance of those duties to their employees. Liability for an employee's tort
does not depend on any contribution to it by the employer.
The wrongful act is deemed to be done by an employee in the course of his employment if it is
either:
a wrongful act authorised by the employer, or
a wrongful and unauthorised mode of doing some act authorised by the employer.

In Lister v Hesley Hall, Lord Steyn confirmed that the relevant test in an employer/employee
relationship is whether the torts of the employee were so closely connected with his employment
that it would be fair and just to hold the employers vicariously liable.9

All the acts done by the SARA were under employment and for the regulation of the club, the
actions of the Sara are actions of the club per se, so Sara cannot be suid by the vicarious
relationship.

9
[2001] UKHL 22

13
ISSUE 4. WHETHER THE CLUB WAS LIABLE FOR DEFAMATION?

The tort of defamation in India has largely followed the approach taken by the UK. Indian courts
have endorsed the defences of absolute10 and qualified privilege11, fair comment12 and
justification13.

The SAF and his assistant manager was justified in making the comments about Dinesh Maria as
he played really bad abysmally and consciously. They had qualified privilege.

The public person is a person on whom comments or suggestions could be made and the
statements made by SAF and his assistant could be treated as their views as it is their personal
opinion on a public person.14

The manager SAF has the right to ask player to play and Dinesh Maria was medically fit and
came into the field with full consciousness and ability. Infact he got 13 day time for a ordinary
sprain which is a long duration for a player to recover from such a small injury.
Under the clause 10, he was terminated as he was medically fit and consciously played bad out
of his skills and ability.

So the suit for defamation is not maintainable.

10
Pukhraj v State of Rajasthan [1973] SCC (Cri) 944
11
Rustom K. Karanjia and Anr v Krishnaraj M.D. Thackersey and Ors. (1970) 72 BOMLR 94.
12
Ram Jethmalani Vs. Subramaniam Swamy'’ 2006 (87) DRJ 603
13
Santosh Tewari and Ors V State of U.P. and Anr 1996 (20) ACR 808
14
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

14
 PRAYER

Therefore in the light of the arguments advanced, authorities cited and facts stated, the counsel
for the Defendants humbly submits that this Hon’ble High Court of Delhi may be pleased to
adjudge and declare that :

1. The appropriate jurisdiction for the hearing of this case falls with Hon’ble High Court of
Bombay.

2. The contract between the plaintiff and Defendant is not a valid contract.

3. The Plaintiff is not entitled to any damages claimed.

Any other order as it deems fit in the interest of equality, justice and good conscience.

DATE: Respectfully submitted

PLACE OF FILING: (Counsels for the Defendant)

15