BEFORE THE

HON’BLE HIGH COURT OF NANITAL

THE CASE CONCERNING BREACH OF CONTRACT MADE BETWEEN THE CONSTRUCTION

FIRM AND THE CUSTOMERS OF THEIR FLATS

BETWEEN

AADHAR CONSTRUCTION PRIVATE LIMITED .........APPELANT

V.

WAHRUKH KHAN .......RESPONDENT NO.1

DAVINDER .......RESPONDENT NO.2

YASHRAJ ......RESPONDENT NO.3

UNDER THE SECTION 96 OF CODE OF CIVIL PROCEDURE OF INDIA,1908

MEMORIAL FOR THE RESPONDENTS

1
 TABLE OF CONTENTS
INDEX OF AUTHORITIES....................................................................

STAMENT OF FACTS............................................................................

STATEMENT OF JURISDICTION.......................................................

ISSUES INVOLVED................................................................................

SUMMARY OF ARGUEMENTS...........................................................

ARGUMENTS ADVANCED...................................................................

PRAYER....................................................................................................

CONTENTION 1: THERE WAS NO FRUSTATION OF CONTRACT

1.1 There was no frustration of contract because it was not a case accident
by inevitable necessity.

CONTENTION 1 : THERE WAS A BREACH OF CONTRACT BY

THE CONSTRUCTION FIRM

1.1 The essential components of breach of contract is satisfied........1

CONTENTION 2: THE CONSTRUCTION FIRM IS LIABLE TO PAY

COMPENSATION AS THERE IS A BREACH OF CONTRACT IN
THEIR PART

1.1 There has been a breach of contract by the construction firm due to which
The remedial system in the contract has become exercisable

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 INDEX OF AUTHORITIES

STATUES:
 Indian Contract Act , 1872

CASES:

 Chunilal Mehta & sons Ltd. V. Century Spinning & Mfg. Co. Ltd, AIR
1962 SC 1314
 Hurnandrai fulchand v. Pragdas Budhsen,(1922-23) 50 IA 9: 25 Bom
LR 537:AIR 1923 PC 54 (2)

 Pannalal Jankidas v.Mohanlal, AIR 1951 SC 145:(1950) SCR 979.

 Paradine v. Jane, Kings Bench,(1647)Aleyn 26:82 ER 897

BOOKS:

 Universals The Indian contract act Bare Act , 1872

 RLH’S DIGLOT SERIES The Transfer Property Act Bare Act , 1882
 Singh Avtar, Contract and specific relief , Eleventh Edition

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 STATEMENT OF JURIDICTION

The petitioners approach the Honourable High Court of Nainital under the Article
96 of the Code of Civil Procedure of India, 1908. The Respondents respectfully
submit to this jurisdiction invoked by the petitioner.

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 STATEMENT OF FACTS
I
Aadhar construction private limited a construction private limited a construction
firm at Dehradun , Uttarakhand illegally purchased 30 acres of land from the state
government of Uttarakhand at Jolly Grant near Airport, in an auction sale. The firm
planned to construct a building and sell residential apartments at this place. The
project was approved by MDDA and the town planning department. Construction
work started in October, 2013. They had planned to sell total 2000 Apartments out
of which 1150 were open for sale to common people and rest 50 were kept for
promotional purposes. They proposed to sell the flat by prior booking by paying
10% of the total sale amount was to be paid at the time of booking.

II
The rest of the amount was payable in 8 instalments. Instalment was payable at
every 3 months . First seven instalments after booking was 10% of the total sale
money and the last instalment was 20% of the total sale amount. The construction
firm was committed to deliver possession of flats within one month of payment of
the last instalment, failing which the firm to pay a compensatory sum of Rs. 20000
per months till the delivery of the possession. There was also a provision of
discount in the contract which says that in case of total payment of the amount in
three instalments or less . the 1150 flats which were kept open for sale for the
common people got sold and the firm also sent special offer to some of the
important personalities of which Wahrukh Khan was one , he send his proposal to
the firm by means of a letter which was unregistered post which never reached the
office later on a nominal cheque was also send which was also sent through a
unregistered post which never reached the firm later Mr. Lakshay Kumar accepted
the offer and paid for it.

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 III

Many of the customer including Wahrukh Khan, Davinder and Mr.Yashraj had
booked their flats and went for site inspection one day where some the wild
elephants came roaring. Many snaps were taken and soon it became a matter of
great concern reports pointed out that earlier also animals had made forceful
appearances in the adjoining areas. A writ petition was being filed to the hon’ble
Supreme Court in which hon’ble supreme court issued injunction on construction
and the sale was declared invalid . The construction firm declared all its agreement
as frustrated due to legal intervention and refused to undertake any kind
liability.They also refused to pay back the money already paid towards the sale.
Mr.Wahrukh , Mr. Davinder , and Mr. Yashraj met and decided to sue the
construction firm for the return of the money at the district court of Dehradun
where the construction firm was told to pay the fine accordingly. Aggrived by the
situation the construction firm appealed to the high court of Nainital.

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 ISSUES INVOLVED
ISSUE NO:1
Whether the contract was frustrated or not under article 56 of Indian Contract Act,
1872?

ISSUE NO.2

Whether there was breach of contract?

ISSUE NO.3

Whether the construction firm is liable to pay the compensation to the appellant or
not?

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 SUMMARY OF ARGUEMENT

ISSUE: 1 THE CONTRACT WAS NOT FRUSTATED

Appellant’s claim that the contract made between them and the respondents is
frustrated is not applicable in this case because the consequences of their act was
easily foreseeable because they have brought the part of the land which was not
meant to be sold because the land was allotted for preserving the natural animal
habitat so it was quit known fact that there can be attacks of wild animals and
thereby there will be intervention from judiciary to stop this illegal act, hence the
contract is not frustrated.

ISSUE: 2 THERE WAS A BREACH OF A CONTRACT

There was a breach of a contract on the part of appellant as it violates certain

conditions of the contract as decided between the parties.

ISSUE: 3 THE CONSTRUCTION FIRM IS LIABLE TO PAY THE

COMPENSATION

The construction firm is liable to pay the compensation as per the rules
mentioned in section 73 of Indian contract which says that when a contract has
been broken, the party who suffers by such breach of contract is entitled to
receive penalty from the party who has broken the contract.

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 ARGUEMENT ADVANCED

CONTENTION1:THERE HAS BEEN NO FRUSTATION OF CONTRACT

1.The appellant has provided itself against every odd by signing the contract.

According to the celebrated case of Paradine v. Jane127 where the defendant has
taken an estate on lease from the defendant , the defendant was dispossessed of it
by enemies for some time and therefore the defendant refused to give any type of
rent to the plantiff for the period of dispossession. It was held that “when the party
by his own contract creates a duty he is bound to make it good , if he may
,notwithstanding any accident by inevitable necessity , because he might have
provided against it by his contract it was also stated that the land would be
surrounded or gained by the seas or made barren by wildfire yet the lessor will
have the rent. Hence going by this arguement we counter the defence stated by the
appellants that the contract is frustrated due to sudden appearance of the elephant
and are not liable to pay the compensation that by signing the contract itself the
firm has provided itself to any of the odd situation to make the contract good and
pay the compensation .

2. There has been no such acts which makes the contract impossible and void in
itself

There has been no such events which made the contract impossible to perform
according to the principle stated in section 56 of the Indian Contract Act .The
defendant claim that due to judicial intervention it has been impossible to perform
the contract, it is a vague argument because the construction firm has legally
converted the land allotted to the natural habitat to making of residential complex
and it is a well known fact that who lives on land which is allotted for natural
habitat hence attacks of wild animals will be common hence it becomes the duty of
the judiciary to intervene on those matters which is illegal in the eyes of the society
hence there is no sudden event which made the contract impossible to perform as
the consequences of which were clearly foreseeable and hence the claims of the
appellants falls there , this point can be substantiate by the

1.127 paradine v. Jane, Kings bench,(1647) Aleyn ER 897

128 Hurnandrai Fulchand v. Pragdas Budhsen, (1992-23)50 IA 9: 25 Bom LR 537: AIR1923 PC 54 (2)

129 Ganga Saran v. Firm Ram Charan Ram Gopal AIR 1952 SC 9: 1952 SCR 36 at p.11

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 CONTENTION 2 : THERE WAS A BREACH OF CONTRACT

1.There was a breach of contract from the appellant side because there was no
frustration o-f contract hence there was a proper contract which was broken by the
appellants .This issue of mine can substantiated by the celebrated case of
Harnandrai Fulchand v. Pragdas Budhsen128 in this stated case the defendants a
number of dhotis to be manufactured by specified mills and to be delivered as and
when the same may be received from the mills . The sellers delivered only part of
the goods owing to the failing to perform their contract with the defendants as they
were engaged in fulfilling certain Government contracts. The defendants pleaded
frustration . The privy council held that the adventure was not frustrated , as to
delivery by the mills a condition precedent. It was a simple case of breach. “the
closing or even the destruction of the mills would not affect a contract between the
third parties ,which is in term absolute.”The same principle is again followed in
the celebrated case of Ganga Saran v. Firm Ram Charan Gopal129 Hence
following the principle of the cases it can be said that in this case also there the
plead of the appellants for doctrine of frustration can not applicable and there has
been a breach of contract.

CONTENTION 3: THE CONSTRUCTION FIRM IS LIABLE TO PAY

THE COMPENSATION
1.As there is a breach of a contract there should be compensation made to the
respondents

from the party who has broken the contract . So in this case1. The construction
firm is liable to pay the compensation as under section 73 of the

Indian Contract Act of 1872 which states that when a contract has been broken by
the party who suffers by such contract, compensation for any loss or damage
caused to him by thereby is entitled for compensation . This can also be proved by
the celebrated case of Chunnilal Mehta & sons Ltd V. Century Spinnings & Mfg
Co. Ltd128 in which it was stated that the appellant would be liable for liquidated
damages as decided in the contract between the parties hence the same principle
would be applicable to this case in which the Construction firm is liable to pay the
compensation of Rs. 20000 per month to the respondents as decided by the parties
of the contract.So this was the arguement which is stated forward as there
wasfrustration of contract there is a valid contract in between the parties hence
there was breach of contract which makes the appellant liable to pay the
compensation.

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 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the
counsel for the Respondent humbly prays that Hon’ble be pleased to adjudge, hold
and declare:

1. That , the contract was not frustrated

2. That, there was breach of contract
3. That, the construction firm is liable to pay the compensation

And pass any order that this Hon’ble court deem fit in the interest of equity,justice
and

Good conscience

And for this act kindness , the counsel for the petitioner shall duty bound forever
pray.

Sd/-

(Counsel for Respondents)

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