INTRA COLLEGE MOOT COURT COMPETITION, 2018

TEAM CODE: 07

BEFORE THE HON’BLE HIGH COURT OF MUMBAI

IN THE MATTER OF

MR.HEISENBERG……………………………………………………………………..COMPLAINANT

V.

TRAVEL SOLUTIONS PRIVATE LIMITED…………………………………...RESPONDENT

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE HIGH COURT OF MUMBAI

COMPLAINT UNDER RULE 26 OF MUMBAI HIGH COURT (ORIGINAL SIDE)

MOST RESPECTFULLY SUBMITTED

COUNSEL APPEARING ON BEHALF OF THE COMPLAINANT

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TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................................2
LIST OF ABBREVIATIONS......................................................................................................................2
INDEX OF AUTHORITIES........................................................................................................................3
STATEMENT OF JURISDICTION............................................................................................................4
STATEMENT OF FACTS...........................................................................................................................6
PROCEEDINGS.........................................................................................................................................7
ISSUES RAISED........................................................................................................................................8
SUMMARY OF ARGUMENTS.................................................................................................................9
ADVANCED ARGUMENTS....................................................................................................................10
1. WHETHER THERE WAS NEGLIGENCE ON THE PART OF DEFENDANT CO.?..................10
2. WERE THE ACTIONS OF CO. FRAUDULENT?.......................................................................12
3. WHETHER THE DEFAMATION OF CO. ACTUALLY TOOK PLACE?...................................13
PRAYER...................................................................................................................................................15

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LIST OF ABBREVIATIONS

HC High Court

TSPL Travel Solutions Private Limited

Co. Company

Pvt. Private

Ltd. Limited

Ors. Others

¶ Paragraph

AIR All India Reporter

SCC Supreme Court Cases

SC Supreme Court

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INDEX OF AUTHORITIES

CASES REFERRED:

Corporation of Glasgow v. Taylor 1 AC 44 UKHL(1922)……………………………………...13

Rottman v. EL AL Israel Airlines NY Civ. Ct (2008)…………………………………………..13
Naraka v. Santosh Private Benefit Ltd., A.I.R. 1982 SC 52 (India)…………………………….13
Rakesh Saini v. Union of India, A.I.R. 2004 Delhi 107 2013 (India)…………………………...13
Kiran Bala v. B. P. Shrivastava, A.I.R.1982 All 242 (India)……………………………………14
Thomas Cook India Ltd v. R.K. Jain &Ors., (2013) SCDRC (India)…………………………..15
Go Airlines (India) Pvt. Ltd. v. Yogesh Kumar, (2007) SCDRC (India)………………………..15
Alexander v. North Eastern Raliway, 1865 6 B & S 340, (India)……………………………….16
DhanushVir Singh and Ors. v. The state of UP Thru. Secy, HC 2013 (India)………………….16

STATUTES

Indian Contract Act, 1872

Specific Relief Act, 1963

BOOK

J. N.PANDEY & VIJAY KUMAR PANDEY, LAW OF TORTS: WITH CONSUMER

PROTECTION ACT, 1986 AND MOTOR VEHICLE ACT, 1988

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STATEMENT OF JURISDICTION

The complainant herein is Mr. Heisenberg. The Hon’ble High Court of Mumbai has the
jurisdiction to hear the present matter under Rule 26 of The Mumbai High Court (Original Side).

Rule 26 of The Mumbai High Court (Original Side)

Holding of Court on Original Side: - A Court for the exercise of the Original Jurisdiction of the
High Court on its several sides may be held before one or more Judges of the High Court. Such
Judge or Judges may, subject to any rules of the Court, exercise in Court or in Chambers all or
any part of the Original Jurisdiction of the High Court.

The complainant has filed the suit of negligence against the Travel Solutions Private Limited
before the High Court of Mumbai.

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STATEMENT OF FACTS

Mr. Heisenberg is a data analyst working with a financial consultancy Co. Owing to the severe
workload;he applies for a leave. Mr. Heisenberg takes a family vacation. During July 2017, Mr.
Heisenberg was planning for a family vacation to Australia in the second week of September.

TSPL is a highly reputed private limited company based in Mumbai. For arrangements for his
trip to Australia, he contacted TSPL. He was particularly concerned about the visa process. Upon
inquiry, TSPL assured Mr. Heisenberg that the process of issuance of a tourist visa generally
takes 10-15 days and not more than that.TSPL advised him that the flight from Chennai to
Sydney would be much cheaper. Acting on the advice ofTSPL, he got the flight bookings to
Sydney through Chennai on 08.09.2017.Mr. Heisenberg was given a list of documents for the
visa process on 07.08.2017 by Mr. Tommen. He submitted the documents on the evening of
11.08.2017 when Mr. Tommen had already left the office but he called up Mr. Tommen who
instructed the receptionist to dispatch the documents immediately.On 21.08.2017, Delhi office of
TSPL called Mr. Heisenberg informing him that an additional document was required.

Due to the holidays, the documents were dispatched on 16.08.2017 and received on 18.08.2017.
Saturday and Sunday the embassy was closed. On 21.08.2017 upon verification, they realized
that a document was missing. Mr. Heisenberg sent the additional document immediately and sent
it to Delhi by express courier on 22.08.2017 which was received by them on 23.08.2017. TSPL
filed the visa form along with the documents on 23.08.2017. He was assured that the visa would
be issued within time. On 06.09.2017, the Visas were finally issued. TSPLadvised him to reach
Chennai airport directly instead Mumbai owing to the paucity time, passports will be sent to
Chennai directly. He reached Chennai airport by 14:00 hours, the passports reached by 21:00,
Mr. Heisenberg had missed his flight. He was informed that flight from Mumbai to Sydney was
refundable while flight from Chennai to Sydney was non-refundable. He had lost a lot of money
towards the flight tickets in addition to the money spent on the hotel reservations.Out of
frustration, he tweeted about the Co. and uploaded the pictures including the details of the

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entirescenario and the post ended with #TSPLsucks and a logo of the company. The incident
drew widespread condemnation on the internet.

PROCEEDINGS

Mr. Heisenberg sued TSPL before the HC of Mumbai for negligence. He claimed a sum of Rs.
50 Lakhs towards cancelled air tickets, hotel reservations, mental trauma, agony etc. suffered by
him and his family owing to the negligence on the part of TSPL.

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ISSUES RAISED

I. WHETHER THERE WAS NEGLIGENCE ON THE PART OF DEFENDANT CO.?

II. WERE THE ACTIONS OF COMPANY FRAUDULENT?
III. WHETHER THE DEFAMATION OF COMPANY ACTUALLY TOOK PLACE?

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SUMMARY OF ARGUMENTS

I. WHETHER THERE WAS NEGLIGENCE ON THE PART OF DEFENDANT CO.?

It is humbly submitted that the yes, there was negligence on part of Co. as Mr. Tommen gave the
list of documents to Mr. Heisenberg prioritizing the list, Mr. Heisenberg managed and sent all the
documents which were suggested by Mr. Tommen but then after they asked for the additional
document and also as Mr. Tommen instructed Receptionist to dispatch the documents
immediately but she did not dispatch the documents on same day which collectively led to the
delay. At this point it is sufficient to prove that Co. was held vicariously liable for the negligence
of its employee.

II. WERE THE ACTIONS OF CO. FRAUDULENT?

It is humbly submitted that the actions of the Co. were fraudulent because TSPL knowingly
advised Mr. Heisenberg about the bookings but did not tell about the information regarding
refund of the tickets at the same time. Along with this the Co. advised him to reach Chennai
instead of Mumbai even after knowing the paucity of time.

III. WHETHER THE DEFAMATION OF CO. ACTUALLY TOOK PLACE?

It is humbly submitted that no, it was not defamation of Co. because the statement given by Mr.
Heisenberg was fair and bona fide comment and justification of truth.

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ADVANCED ARGUMENTS
1. WHETHER THERE WAS NEGLIGENCE ON THE PART OF DEFENDANT CO.?

1.1 It is humbly submitted that the yes, there was negligence on part of Co. as Mr. Tommen gave
the list of documents to Mr. Heisenberg prioritizing the list, Mr. Heisenberg managed and
sent all the documents which were suggested by Mr. Tommen but then after they asked for
the additional document and also as Mr. Tommen instructed Receptionist to dispatch the
documents immediately but she did not dispatch the documents on same day which
collectively led to the delay. At this point it is sufficient to prove that Co. was held
vicariously liable for the negligence of its employee1.

1.2 In the present case firstly negligence took place on the part of Co. because as per the
provision of negligence -it is a tort which imposed upon him to take care resulting in damage
to the complainant. So as in the case there was a duty to take care (the word duty connotes
the relationship between one party and another, imposing on the one an obligation for benefit
of that other to take reasonable care in first instance) 2 towards Mr. Heisenberg to check the
list of documents which was given by the Mr. Tommen (employee of Co.) negligently gave
incomplete list of documents to Mr. Heisenberg Where Mr. Heisenberg act accordingly to the
list and managed all the documents as required in the list and submitted in the office of Mr.
Tommen on 11.08.17.

1.3 On 21.08.17 Mr. Heisenberg got a call from head of TSPL that there was requirement of
additional document3, so this is enough to prove that the list was incomplete and Mr.
Tommen gave list of required documents with prior check. This shows that Mr. Tommen was
negligent on his part and also careless due to which Mr. Heisenberg got delay in visa process
which also spoiled his whole trip planning.

1.4 Secondly, there was negligence on part of receptionist of the Co. as Mr. Tommen, the Agent,
instructed the receptionist to dispatch the documents immediately 4 but the documents

1¶ 5, 6 of the Moot Proposition.

2 J. N.PANDEY & VIJAY KUMAR PANDEY, LAW OF TORTS: WITH CONSUMER PROTECTION ACT, 1986
AND MOTOR VEHICLE ACT, 1988 (ACCORDING TO NEW COURSE PRESCRIBED BY THE BAR
COUNCIL OF INDIA) 246 (14D ED. 2014).
3¶ 7 of the Moot Proposition.
4¶ 6 of the Moot Proposition.

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dispatched on 16.08.17 and reached Delhi on 18.08.17 5, hence the receptionist was also
negligent on her part.

1.5 Thirdly, as per the facts, TSPL is highly reputed Pvt. Ltd. Co. based in Mumbai 6, so the
standard of care was expected from the Co. but the Co. did not fulfil the expectations of the
Plaintiff.

1.6 As Mr. Tommen and the Receptionist both were the employees of TSPL and they did work
for the profit of the Co. which comes under the course of employment. They both worked
negligently in +their course of employment which held Co. vicariously liable for the wrong
done by its employees.

1.7 In the case Glasgow Corporation v. Taylor7, the corporation authorities were liable for
negligence for the wrong done by its employee and that wrong caused harm to ors. Similarly,
in the present case Mr. Tommen gave the list in the carelessness, also receptionist was
careless on her part in dispatching documents. So they should be liable for negligence and
Co. should also be held vicariously liable for negligence of its employees.

1.8 Similarly, Co. was held liable for breach of duty to care in the cases- Rottman v. EL AL Israel
Airlines8, Naraka v. Santosh Private Benefit Ltd.9, and Rakesh Saini v. Union of India10.

2. WERE THE ACTIONS OF CO. FRAUDULENT?

2.1 It is humbly submitted that the actions of the Co. were fraudulent because TSPL knowingly
advised Mr. Heisenberg about the bookings of tickets that are cheaper 11but did not tell about

5¶ 8 of the Moot Proposition.

6 ¶ 2 of the Moot Proposition.
7Corporation of Glasgow v. Taylor 1 AC 44UKHL (1922).
8Rottman v. EL AL Israel Airlines NY Civ. Ct (2008).
9Naraka v. Santosh Private Benefit Ltd., A.I.R. 1982 SC 52 (India).
10Rakesh Saini v. Union of India, A.I.R. 2004 Delhi 107 2013 (India).
11¶ 4 of the Moot Proposition.

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the information regarding refund of the tickets at the same time. Along with this the Co.
advised him to reach Chennai instead of Mumbai even after knowing the paucity of time12.

2.2 Here, TSPL advised Mr. Heisenberg about the bookings of the flight that he should book his
flight from Chennai to Sydney rather than directly from Mumbai to Sydney as from Chennai
it would be more economical. They revealed the fact that the ticket was more economical
than the earlier one13 but concealed about the refund of the tickets. As the Co. was expected
to reveal the entire facts so that the plaintiff may take the decision accordingly. Hence it was
the Active Concealment of Facts which led to fraud done by the Co.

2.3 Active concealment can cause a contract to be invalid or result in liability to the concealing
party. This is more than a failure to volunteer information. Active concealment consists of
hiding information from the other party by concealment. So, here the Co. is acting
fraudulently, misguiding the customer, speaking the half truth and concealing the facts
actively which constitutes breach of their duty to speak which led breach of Contract made
by the parties for which the complainant had already paid consideration.

2.4 “Fraud” means acts committed by a party to a contract, with intent to deceive another party
or to induce him to enter into the contract. According to Section 17(2) of Indian Contract Act,
“the active concealment of a fact by one has knowledge or belief of the fact” 14, Section 17(3)
of ICA, “promise made without any intention to perform it”. So it implies that the Co.
knowingly concealed the facts and promised to send the passports and visa on time without
any intention to perform it.

2.5 In the case of Kiran Bala v. B.P.Shrivastava15, it was held that when there is a duty of speak
by one party and if concealment of facts occur in such circumstances, it will amount to fraud.

2.6 Now again the TSPL advised Mr.Heisenberg that owing to paucity of time they
dispatched his passport directly to Chennai, so Mr. Heisenberg should reach Chennai instead of
staying in Mumbai as we above mentioned that the company had a knowledge about the paucity

12¶ 11 of the Moot Proposition.

13Ibid.
14Indian Contract Act, 1872.
15Kiran Bala v. B. P. Shrivastava, A.I.R.1982 All 242 (India).

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of time then still advised Mr. Heisenberg to reach Chennai. The distance from Delhi to Mumbai
is less than Delhi to Chennai, here they have the knowledge of paucity of time but then also they
advised him to reach Chennai16 and because of advice he had missed his flight which resulted to
huge loss as he acted upon the advise of the TSPL so here the knowledge amounts to intention so
it will amount to fraud. Similarly happened in some of the cases of fraud where company
actively conceal some facts from its customer and held liable, Thomas cook India ltd v. R.K. Jain
& Ors.17, Go airlines (India) Pvt., Ltd. v. Yogesh Kumar18.

2.7 The Hon’ble Court may provide relief to Mr. Heisenberg under Section 22(1)(b) of Specific
Relief Act, 196319, according to which, “Any person suing for the specific performance of a
contract for the transfer of immovable property may, in an appropriate case, ask for- any
other relief to which he may be entitled, including the refund of any earnest money or deposit
paid or made by him, in case his claim for specific performance is refuse”.

3. WHETHER THE DEFAMATION OF CO. ACTUALLY TOOK PLACE?

3.1. It is humbly submitted that no, it was not defamation of Co. because the statement given
by Mr. Heisenberg was fair and bona fide comment and justification of truth.

3.2. As mentioned in the facts that Mr. Heisenberg and his family were at the airport and
missed their flight due to the negligence of the co20. Where the carelessness in applying the
visa and concealed the facts about the ticket refundability which has to be mentioned prior to
Mr. Heisenberg but knowingly the company’s sales team hidden that facts.

3.3. It came as a shock to Mr.Heisenberg for he had lost a lot of money towards the flight
ticket so he tweeted “Travel solution private limited a bunch of liars, cheats, and thieves with

1616 Ibid.
17
Thomas cook India ltd v. R.K. Jain &Ors., (2013) SCDRC (India).
18
Go Airlines (India) Pvt. Ltd. v. Yogesh Kumar, (2007) SCDRC (India).
19
Specific Relief Act, 1963.
20
¶ 12 of the Moot Proposition.
17
18
19
20

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no ethics”. Mr Heisenberg also uploaded a picture of his entire family standing at the airport21
the picture is enough to prove that Mr. Heisenberg and his family suffered a loss because of
the TSPL’s carelessness and fraud.

3.4. In the case of Alexander v. North Eastern Raliway 22, the court held that the defence of the
truth was correct because the statement was substantially true and if the main imputation was
correct, because minor imputation would not affect the truth of the statement, accordingly the
defendant was not liable for the defamation because the statement was substantially accurate.
Here what Mr. Heisenberg experienced from the company was not fair according to his
experience, so he just said what he had experienced.

3.5. Similarly, in the case of Dhanush Vir Singh and Ors. v. The state of UP Thru. Secy. 23., the
defendant was not liable because his statement was imputation of truth which public good
require to be made or published. In the present case company cannot sue Mr. Heisenberg for
defamation because the statement was made by him was justification of truth and bona fide
and not amounting to defamation as company should tell prior about the facts to Mr.
Heisenberg but did not do the same. As the Co. gave the assurity about the visa and failed to
fulfil the assurance given by them by which Mr. Heisenberg suffered a high loss of money,
mental trauma, so all the stuff said by Mr. Heisenberg was justification of truth and bona fide.

PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and Authorities
cited, the Counsels on behalf of the petitioner humbly pray before this Hon’ble Court that it may
be pleased to adjudge and declare that:

1. The present case to be admitted.

2. Defendant’s actions should be declared negligent.

21¶ 14, 15 of the Moot Proposition.

22Alexander v. North Eastern Raliway, 1865 6 B & S 340, (India).
23DhanushVir Singh and Ors. v. The state of UP Thru. Secy, HC 2013 (India).

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3. Co. Should be declared fraud.

4. Compensation should be given to complainant towards the losses faced by him.

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

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

All of which is humbly prayed,

TC – 07

Counsels for the Complainant.

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