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TCA-20

FACULTY OF LAW, JAMIA MILLIA ISLAMIA

INTRA MOOT COURT COMPETITION–2018

IN THE HON’BLE SUPREME COURT OF ASNARD.

HPC Ltd., & Amy Santiago ……………APPELLANT

v.

Steve Rovers ....………...RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF DEMOCRATIC STATE OF

‘ASNARD’)

MEMORIAL FOR THE APPELLANT

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Most Respectfully Submitted before the Hon’ble Supreme Court of Asnard.

TABLE OF CONTENT

1) THE INDEX OF AUTHORITIES………………………………………...

2) THE LIST OF ABBREVATIONS…………………………………………
3) THE STATEMENT OF JURISDICTION………………………………..
4) THE STATEMENT OF FACTS…………………………………………...
5) THE STATEMENT OF ISSUES…………………………………………
6) THE SUMMARY OF ARGUMENTS………………………………………….
7) THE ARGUMENTS ADVANCED…………………………………………….

I. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872?

II. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony
Snark?

III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of
her husband and her consequent loss of livelihood?

IV. Whether Mr. Steve Rovers, being the supplier and service provider of LPT
Machines, is liable to compensate Mr. Tony Snark for breach of contract?”

8) THE PRAYER…………………………………………………………………..

MEMORIAL FOR THE APPELLANT

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LIST OF ABBREVATIONS

AIR All India Reporter

H.C High Court

GOVT. Government

HON'BLE Honorable,

SC Supreme Court

ORS Others

SCC Supreme Court Cases

& And

SEC. Section

U.O.I Union Of India

SCD Supreme Court Decision

SCR Supreme Court Reporter

ART. Article
VS Versus

MEMORIAL FOR THE APPELLANT

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INDEX OF AUTHORITIES

CASES
SR. CASE LAW CITATIONS FOOTNOTE
NO.
1. 1978 AC 728. 27
Anns v London Borough of
Merton

2. AIR 2005 SC 3330 2

Bhaurao Durga Paralar v.
State of Maharashtra

3. Central Board of Secondary (2011) 8 SCC 497 38

Education and Anr. v.
Aditya Bandopadhyay
and Ors.
4. Chaproniere v. Mason (1905) TLR 63. 35

5. Derry v. Peek (1889) 14 AC 337 1

6. Dominion Natural Gas v 1909 AC 640. 29

Collins and Perkins

7. Donoghue v Stevenson 1932 UKHL 100. 24

8. Francis Coralie v. Union 1981 AIR 746. 21

Territory of Delhi

9. (1905) 1 K.B .608. 15

Frost vs Aylesbury Dairy
Corporation

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10. Government of Odisha AIR 1963 ORI 217 13

state v Shivprasad Shah
11. .Hadley v. Baxendal 1854 EWHC J70. 30

12. Haley v London Electricity 1965 AC 77. 25

Board

13. In Re Andrew yule and AIR 1932 CAL 879: 14

corporation 140 I.C 877.
14. Jackson v. Watson 360 SO.2d 582 (1978) 36

15. . Maneka Gandhi v. Union 1978 AIR 597 16

of India.
16. Mihool Nayak v. Life AIR 1962 SC 814. 3
Insurance Corpn of India
.
17. Nursey spg & wvg co ILR (1880) 5 Bom 92 6
Ltd , Re

18. Olgatellis vs. Bombay AIR 1986 KER 201 22

Municipal Corp
19. Priest v. Last. (1903) 2KB 148. 34

20. P Sorojam v LIC of India  (1990) 1 SCC 520.

11
21. Raghava Menon v. AIR (1978) 1675 33
Kuttappan Nair.
22. R. S. THAKUR V. H. G. E. AIR 1971 Bom 97. 32
CORPORATION

23. 1996 AIR 786 23

Shantistar Builders vs.
Narayan Khimalal
Totame
24. Sunil Batra vs. Delhi AIR (1978) 1675 19
Administration
25. Wilhite v. Mays 140 Ga.app.816 (232 4
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S.E.2d 141)(1976)

BOOKS REFERRED

(1). Durga Das Basu., Shorter Constitution of India, Ed. 10th (1989)
(2) M.P Jain, Indian Constitutional law, Ed. 6th (2012), Lexis Nexis Butterworths Wadhwa,
Nagpur.
(3). V.N.Shukla, Constitution of India, Ed.11th, (2008), Eastern Book Company.
(4). Pollock & Mulla The Indian contract and Specific Relief Acts 14th edition
(5). Contract and Specific Relief Avtar Singh 11th edition
(6). Contract 1 RK Bangia 16th edition
(7). Contract 2 RK Bangia 16th edition
(8). Good act RK Bangia 10th edition
(9). Sales of Goods Act 1930 –SK Kapoor

STATUTORY COMPILATION
(1) The constitution of india,1950
(2) Indian Contract Act 18720
(3) Sales of Good Act 1930

WEBSITES REFERENCE
▪ www.indiakanoon.org
▪ www.indlawinfo.org
▪ www.legalserviceIndia.com
▪ www.legalsutra.org
▪ www.lexisnexisacademic.com
▪ www.macmillandictionary.com
▪ www.manupatra.com
▪ www.scconline.com
▪ www.scdecision.in
▪ www.supremeCourtcases.com

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STATEMENT OF JURISDICTION

HPC Ltd., Amy Santiago V. Steve Rovers

The petitioner approached before the Honorable Supreme court of Asnard by Special Leave
Petition under Article 136 of the constitution of Asnard.

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THE STATEMENT OF FACTS

1. Healing Hand Pharmaceutical corporation limited,(HPC), company controlled and

managed in democratic state of ‘Asnard’ (DSC), incorporates as a small factory in
2012 HTC Limited enjoy absolute Monopoly with regard to production of ‘Lobanza’
capsule. The company has strongly advised that this capsule must not be consumed
when a person is still consuming substance such as drugs and tobacco. Intake of these
capsule while consuming organic substance may cause death.
2. HTC Limited is largely owned by a business tycoon named Tony Stark. Mr. Steve
Rovers and Mr. Tony Stark were childhood friend and residence of the district of
Drone. After completing the senior secondary school Examination, took admission in
Pharmaceutical bachelor program and bachelors technical programmer respectively.
3. In March 2017 Mr. Snark planning to buy LPT in order to speed up the production
of the Lobanza capsule, he conducted a market research to test the viability of new
project, to his good fortune he discovered that LPT machine would slash the cost and
productivity shall increase buy roughly ten times.
4. HPC Limited purchase the Lpt machine from Steve on 4th June 2017 owing to the
efficiency and productivity of the machine Mr. Snark planed to buy more machines.
On 14th August 2017 HPC Limited entered into an agreement with Mr. Steve
regarding the purchase of three more machine for Lobanza capsule production. Mr.
Steve agreed.
5. Mr. Pablo Escocar, a generator in government school Saw advertisement of Lobanza
capsule. Mr. Pablo started consuming Lobanza capsule however he couldn’t refrain
from smoking.
6. A week prior to the sale of three LPTs on 14 August 2017 Mr. Steve received detail
report highlighting certain patent defect in those machines. Mr. Steve failed to
disclose that information to HPC Limited. Unfortunately on 22 nd October 2017 all
machine malfunction.
7. Mr. Pablo died after eight days of conception of the capsule. His pregnant wife went
into mental trauma and found herself completely helpless. Meanwhile Mr. Stark
aggrieved by such a huge loss to the production accusing Mr. Steve for fraud. Mr.
Stark found out about the death of Mr. Pablo approach the widow of the deceased and
requested how to join the Suit against Mr. Steve. HPCL Limited appeal before The
Honorable Supreme Court of Asnard.
MEMORIAL FOR THE APPELLANT
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STATEMENT OF ISSUES

The Supreme Court ordered the parties to advance their contentions and arguments on 17th
November, 2018, on the following issues:

I. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian Contract
Act, 1872?

II. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony Snark?

III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her
husband and her consequent loss of livelihood?

IV. Whether Mr. Steve Rovers, being the supplier and service provider of LPT Machines, is
liable to compensate Mr. Tony Snark for breach of contract?”

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SUMMARY OF ARGUMENTS

I. Fraud was committed by Mr. Steve Rovers under Section 17 of the Indian Contract
Act, 1872.
The council on the behalf of Mr. Tony Snark (hereinafter Appellant) most humbly submits
that the fraud was committed by Mr. Steve Rovers (hereinafter Respondent) under Section 17
of the Indian Contract Act, 1872. Respondent has intentionally concealed the vital
information from Appellant which he has the duty to speak and silence on the part of
respondent is equivalent to speech .

2. The contract dated 14th August 2017 is voidable at the option of Mr. Tony
Snark.
It is most humbly submitted that contract dated 14 August 2017 voidable at the option of Mr.
Tony Stark. There was fraud on the part of Mr. Steve. According to section 19 of Indian
Contract Act fraud is one of the element which lead to the contract voidable at the option of
the other party. Silence on the part of respondent is fraud because he has the duty to speak
and keeping silence on his power is equivalent to sleep which misleads the appellant.

Issue -3-Appellant’s consequent loss of Means of Livelihood

The right to life and personal liberty as mentioned in part III of the constitution of
Democratic State of ‘Asnard’ (DSA), also includes within its ambit the right to livelihood,
right to shelter which the appellant claims to have been violated.
-Negligence caused by Respondent
There was negligence on part of Mr. Steve Rovers as he ignored the detailed report from the
auditor categorically highlighting certain patent defects in those machines and failed to
disclose that information to HPC Ltd and inturn deprived Ms. Amy of means of livelihood.

(Issue 4) –Whether Mr. Steve Rovers, being the supplier and service provider is liable
to compensate Mr. Tony Snark for breach of contract?

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There is ignorance of section 16 of the Sales of goods act 1930 by the seller Mr. Steve
Rovers. There is implied condition of goods being reasonably fit but seller neglected the
condition. Also goods were not of merchantable quality.
There is use of Undue influence under section 16 of Indian Contract Act 1872 by Mr. Steve
Rovers.
There is a Material breach of the contract on part of Steve rovers.

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ARGUMENTS ADVANCED

I. Fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872.
The council on the behalf of Mr. Tony Snark (hereinafter Appellant) most humbly submits
that the fraud was committed by Mr. Steve Rovers (hereinafter Respondent) under Section 17
of the Indian Contract Act, 1872. Respondent has intentionally concealed the vital
information from Appellant which he has the duty to speak and silence on the part of
respondent is equivalent to speech .
Section 17 in The Indian Contract Act, 1872
17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a
party to a contract, or with his connivance, or by his agent1, with intent to deceive another
party thereto or his agent, or to induce him to enter into the contract:—
(1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be
true;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) Any such act or omission as the law specially declares to be fraudulent.
Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter
into a contract is not fraud, unless the circumstances of the case are such that, regard being
had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in
itself, equivalent to speech.
1.1 WRONGFULL INTENTION TO DECEIVE
As per the section 17 of ICA , to constitute a fraud it is necessary that there should be
wrongful intention to deceive the other party . In a famous English case Derry v. Peek1 . Lord
Herschell said: “ Intention to Fraud is proven when it is shown that a false representation
has been made-.
-Knowingly or
-Without belief in its truth
1
(1889) 14 AC 337.

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-Reckless careless whether it to be true or false”.

In the instant case there is knowledge, as week prior to the sale of 3 LPTs on 14th August
2017, Mr. Steve received a detailed report from the auditor categorically highlighting certain
patent defects in those machines. Secondly without belief in its truth, Faced with extreme
pressure to meet the rising demand, Mr. Steve ignored the report and failed to disclose that
information to HPC Ltd.

1.2 Any other act fitted to deceive

According to Section 17(4) of the ICA 1872 says any act fitted to deceive. Respondent
concealed the vital fact even having the knowledge of the fact. The concealment may occur
through silence, actions, writings, or spoken words.

By ‘fraud’ it means an intention to deceive ; whether it is from any expectation of advantage

to the party himself or from ill-will towards the other is immaterial . The expression “fraud”
involves two element , deceit and injury to other person2.

In life insurance case, deliberating concealed the fact of medical treatment for serious ailment
only a few months before the policy was taken, this amount to fraud3

The residence and premises purchased by the plaintiff has serious defect unknown to him, in
that the septic tank and its drainage lines were inadequate, and after a heavy rain there was an
overflow of raw sewage from the septic tank into the front yard of the residence a condition
both unpleasant and dangerous to health. Also after heavy rain there was pounding of surface
water under the residence which caused it deterioration. Defendant seller was well aware of
the problem and does not disclosed them to prospective buyer. The buyer did not discover
the sewage and water problem until after the sale has been completed. He would have not
purchase the property if he had known of them under the particular circumstances of this case
the suppression of facts concerning the defect in the property. The court held that defendant
has constituted the fraud.4

2
Bhaurao Durga Paralar v. State of Maharashtra AIR 2005 SC 3330.
3
Mihool Nayak v. Life Insurance Corpn of India , AIR 1962 SC 814, (1962) 2 SCR Supp 571 .
4
Wilhite v. Mays ,140 Ga.app.816 (232 S.E.2d 141)(1976).

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In the instance case, respondent deceit the appellant, even having the knowledge of the defect
in machines he concealed it from appellant and as a result concealment of vital information
led to loss of appellant.

1.3 Duty to speak

The duty to speak firstly, arise when the person keeping silence is under duty to speak. Duty
to speak arises when one contracting party responses trust and confidence in the other. For
example ‘B is As daughter, and has just come of age. Here, the relation between the parties
would make it A’s duty to tell B if the horse is unsound.5 This principle is so wide. The duty
to disclose the truth will arise in all cases where some party reposes, and other accepts,
confidence6.

Secondly, duty to speak arises where one of the parties is utterly without any means of
discovering the truth and has to depend on the good sense of other party. An insurance
company, knows nothing about the life or circumstances of the assured. It has to depend on
the discloser made by the assured. It, is therefore, the duty of the assured to put the insurer in
possession of all material facts affecting the risk covered. Where false answer as to the state
of health were given in a proposal for life insurance, the policy was held to be voidable and it
was not material that the medical officer of the corporation had certificated the lice assured
as good.7
In the present case there is a fiduciary relationship between the parties. Appellant and
respondent were the childhood friend and the resident of the same district Dorne. They
completed their Senior Secondary Education together. Appellant trusted on his friend
respondent so much that even when, appealent was requested by one of the colleagues of Mr.
Steve to conduct a routine check on the machines in the coming few days. Mr. Snark,
evidently amused by the preposterous idea of doubting his friend, nevertheless nodded and
smiled.
1.4 Silence being equivalent to fraud
Sometimes keeping silent as to certain facts me be capable of creating an impression as to
existence of a certain situation in such situation silence amount to fraud. For example B is

5
Illustration (b) to section 17 Indian contract Act 1872.
6
Nursey spg & wvg co Ltd , Re , ILR (1880) 5 Bom 92.

7
P.soraj v LIC , AIR 1986 KER 201.

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A’s daughter and has just come of age. Here the relation between the parties would make it
A’s duty to tell B if the horse is unsound."8
Chartered Bank of India Australia and China versus Imperial Bank of India 9 silence is not
fraud unless there is a duty to speak or unless that is equivalent to speech . The implication of
surjective concealment is more grave when it is duty of the person to disclose of fiduciary
relationship.
In the instant case there exist a fiduciary relationship between the parties as Mr. Steve Rovers
and Mr. Tony Snark were childhood friends. Mr Tony knew that Mr Steve was a meritorious
student and eventually bagged the position of gold medalist in a special program after
hundred of experience in failure is succeed in the designing his own machine ‘LPT’ and duty
to speak as Ms Steve knew that matter is concern Of someone life .

(ISSUE2). The contract dated 14th August 2017 is voidable at the option of Mr. Tony
8
Illustration (b) to section 17 Indian contract Act 1872.
9
60 Cal 262, AIR 1933 CAL 366.

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Snark.
It is most humbly submitted that contract dated 14 August 2017 voidable at the option of Mr
Tony Stark. There was fraud on the part of Mr Steve. According to section 19 of Indian
Contract Act fraud is one of the element which lead to the contract voidable at the option of
the other party. Silence on the part of respondent is fraud because he has the duty to speak
and keeping silence on his power is equivalent to sleep which misleads the appellant.
Voidable contract is that contract that has a legal effect and force when it is made but is liable
to be subsequently annulled and set aside. Circumstances or feature that make a contract
voidable includes non disclosure of material fact, fraud, material breach of the terms of the
contract, misrepresentation, etc.
Section 19 in The Indian Contract Act, 1872
Voidability of agreements without free consent.—When consent to an agreement is caused
by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of
the party whose consent was so caused
A party to contract, whose consent was caused by fraud or misrepresentation, may, if he
thinks fit, insist that the contract shall be performed, and that he shall be put in the position in
which he would have been if the representations made had been true.
Exception if such consent was caused by misrepresentation or by silence, fraudently within
the meaning of section 17, the contract, nevertheless is not voidable, if the parties who is
consent was so caused had the means of discovering the truth with ordinary diligence.
Explanation.—A fraud or misrepresentation which did not cause the consent to a contract of
the party on whom such fraud was practised, or to whom such misrepresentation was made,
does not render a contract voidable.

2.1 Exception does not apply to fraud

The exception does not apply to the cases of fraud 10. The word ‘fraudently’ within the
meaning of section 17 of ICA’ go with word ‘silence’.11
A vendor of a house and land knew that the purchaser wanted immediate possession . While
admitting that the property was occupied by a tenant, he first conceal the fact that the tenant
had a lease, and then pretended that lease was forfeit; the purchaser was entitled to rescind

10
Abdulla khan v Girdhari Lal,(1904) Punj Rec No 49.
11
P Sorojam v LIC of India,AIR 1986 KER 201 at 205.

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the contract, although he might have ascertained buy independent enquiry what the tenant’s
interest really was.12
Where the vendor not only failed to disclose having leased the land, which was being sold,
but stated that immediate possession would be delivered, the sale was voidable and the
defence of absence of due diligence under exception to Section 19 by the vendee was not
open to the vendor.13
In the instant respondent not only conceals the vital information from the appellant but also
did not provide the quality of machine as being contracted, which lead the contract voidable.

2.2Implied condition as to the reasonable fit of the machine

As the appellant entered into an agreement with the respondent on, 14 August 2017 to
deliver machine which are carefully assembled and reasonable fit for the production of
Lobanza capsule. Instead of delivering the respondent delivered the machine which had
defect and within 2 months all machines malfunctioned.
According to Section 12 (1) of sales of Good act 1930 a stipulation in a contract of sale with
reference to good are subject therefore may be a condition or a warranty. According to
Section 16 (1) of sales of Good act 1930, Where the buyer, expressly or by implication,
makes known to the seller the particular purpose for which the goods are required, so as to
show that the buyer relies on the seller’s skill or judgment, and the goods are of a description
which it is in the course of the seller’s business to supply (whether he is the manufacturer or
producer or not), there is an implied condition that the goods shall be reasonably fit for such
purpose. According to Section 59 of sales of Good act 1930, The buyer not only has the right
to rescind the contract but also has power to sue the seller for the breach of a contract.
In Re Andrew yule and corporation 14the buyer has informed the seller that he needed the
hessian cloth for packing purpose he could reject the clothes if he found that the same was
unsuitable for the purpose. The purpose may made known to the seller expressly or
impliedly. when the good can be used only for one purpose need not to be told to the seller as
he is being to know the same.
Frost vs Aylesbury Dairy Corporation15the plaintiff purchase milk from milk dealer for his
family’s use. The milk until typhoid germs, the plaintiff’s wife was infected by it and died.
Here the purpose for which the milk was to be used was by implication made known to the
12
Joginder Nath Goswami Mazumdar v Chandra Kumar AIR 1914 car 661, 24 IC 193.
13
Government of Odisha state v Shivprasad Shah AIR 1963 ORI 217.
14
AIR 1932 CAL 879: 140 I.C 877.
15
(1905) 1 K.B .608.

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seller. Since the milk was unfit for human consumption there was a breach of implied
condition for which the defendant was held liable.

[ISSUE 3] WHETHER MR. STEVE ROVERS IS LIABLE TO COMPENSATE AMY

SANTIAGO FOR THE DEATH OF HER HUSBAND AND HER CONSEQUENT
LOSS OF LIVELIHOOD?

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3.1 APPELLANT’S LOSS OF LIVELIHOOD

“Life” as mentioned in Article 21 of the constitution of Democratic State of ‘Asnard’ (DSA),

is not merely the physical act of breathing. It does not connote mere animal existence of
continued drudgery through life. It has a much wider meaning which includes right to live
with human dignity, right to livelihood, right to health, etc. It also includes those aspects of
life which would make a man’s life meaningful, complete and worth living. The bare
necessities, minimum and basic requirement that is essential and unavoidable for a person is
the core of the concept of right to life.16
According to Bhagwati J., Art 21 “embodies a constitutional value of supreme importance in
a democratic society.” The right has been held to be the heart of the constitution, the most
organic and progressive provision in our living constitution, the foundation in our laws.17
Article 21 of the constitution of Democratic State of ‘Asnard’ (DSA), provides that, “No
person shall be deprived of his life or personal liberty except according to procedure
established by law.”
In case of Kharak Singh vs. State of UP18, the Supreme Court quoted and held that “by the
term ‘life’ as here used something more is meant than mere animal existence, the inhibition
against its deprivation extends to all those limbs and faculties by which life is enjoyed.
In Sunil Batra vs. Delhi Administration 19, the Supreme Court reiterated with the approval of
the above observation and held that the “Right to Life includes the right to lead a healthy life
so as to enjoy all faculties of the human body in prime condition. Which would even include
the right to protection of a person, tradition, culture, heritage and all that gives meaning to a
man’s life. It includes the Right to Live in peace, to sleep in peace, the right to repose and
health and right to live with human dignity.20
Elaborating the same view, the court in Francis Coralie vs. Union territory of Delhi 21
observed that “the Right to Live includes the right to live with human dignity and all that
goes along with it, viz. The bare necessities of if such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and expressing oneself in diverse

16
Maneka Gandhi v. Union Of India 1978 AIR 597 ; Francis Coralie v. Union Territory of Delhi
1981 AIR 746.
17
Bandhua Mukti Morcha v. Union of India 1984 AIR 802.
18
AIR (1963) SC 129.
19
AIR (1978) 1675, 1980 SCR (2) 557.
20
Maneka Gandhi vs. Union of India 1978 AIR 597.
21
AIR (1981)746, 1981 SCR (2) 516.

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form, freely moving about, mixing and mingling with fellow human beings and must include
the right to basic necessities of life and also the right to carry on function and activities as
constitutes the bare minimum expression of human self.”
The Supreme Court in Olgatellis vs. Bombay Municipal Corp.22, popularly known as the
“pavement dwellers case”, a five judge bench of the court now implied that “ Right to
Livelihood” is borne out of the “ Right to Life”, as no person can live without the means of
living, i.e. the means of livelihood. If the right to livelihood is not treated as a part and parcel
of the constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him by the means of livelihood to the point of abrogation.
In Shantistar Builders vs. Narayan Khimalal Totame23, the court held that “the right to life
would take within its sweep the right to food, right to clothing, the right to decent
environment and a reasonable accommodation to live in. The difference between the need of
an animal and a human being for shelter has to be kept in view. For the animal it is bare
protection of the body, for a human being it has to be a suitable accommodation which would
allow him to grow in every aspect- physical, mental and intellectual. The constitution aims at
ensuring fuller development of every child that would be possible only if the child lives in a
proper home. It is not necessary that every citizen must be ensured of living in a well-built
comfortable house but a reasonable home for people can be a reasonable accommodation.
The two aspects of right to life are (a) Deprivation of life of a person (b) Deprivation
of quality of life. The contention of appellant’s counsel is that Mr. Pablo Escocar is deprived
of his right to life and Ms. Amy is deprived of his quality of life.
Before depriving a person of his right to life the following conditions are requires to be
fulfilled;
(a) There must be a valid law
(b) Law must provide procedure
(c) Procedure must be just fair and reasonable
(d) Law must satisfy requirements of article 14 i.e., must be reasonable.

Mr. Pablo Escocar, a janitor in a Government school, was unfortunately prone to drugs and
smoking. Mr. Escocar saw the advertisement of Lobanza capsule on a banner across both
sides of the road.

22
AIR (1986)1980, 1985 SCR Supl. (2) 51.
23
 (1990) 1 SCC 520.

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Mrs. Amy Santiago, wife of Mr. Pablo Escocar, had been constantly pushing him to get rid
of his drug addiction and smoking habit as soon as possible. It is due to strained family
relations with parents and in-laws that the couple have been living in a separate house, along
with their 8-year-old daughter. Mr. Pablo bought and started consuming Lobanza Capsule
each day after subscribing to the advertisement on that hanging banner. However, he couldn’t
refrain from smoking.

Unfortunately, Mr. Pablo’s health started deteriorating rapidly, but he still couldn’t refrain
from smoking. As a consequence, he died after eight days of consumption of the capsule.

His pregnant wife went into mental trauma and found herself completely helpless as he was
the sole bread-earner for their family. Moreover, after her husband’s death, Ms. Amy
requested monetary help from her in-laws, but to no avail. Due to a sheer lack of awareness
in such small districts, Ms. Amy wasn’t aware of the causes that lead to her husband’s
untimely death, and was oblivious to the legal ramifications of what had recently transpired.
Mr. Pablo Escocar was deprived of his life and Mrs. Amy Santiago traumatized by her
husband’s death and the dwindling financial situation of her household, is deprived of his
quality of life and also his means of livelihood, without any law, without any Procedure. That
being itself a clear violation of right to life and personal liberty of the petitioner as mentioned
in the constitution of Democratic State of ‘Asnard’ (DSA).

3.2 NEGLIGENCE CAUSED BY THE RESPONDENT

In Donoghue v Stevenson24 , The appellant went with a friend into a coffee shop, where the
friend ordered for her a bottle of ginger beer. This was served in an opaque bottle the
contents of which could not be seen from the outside. The shop owner opened the bottle and
poured some of the contents into the appellant’s glass. This she drank and her friend poured
in the rest of the bottle. The appellant alleged that this contained the decomposed remains of
a snail which caused her to suffer shock and then later, a gastric illness. She brought this
action for negligence in the Scottish Court of Session against the manufacturer of the ginger
beer. The Scottish Court held that there was no cause of action; as the bottle was not directly
purchased from the manufacturer. The case came before the House of Lords on the question
of law alone. It was held that the manufacturer of the ginger beer owed a duty of care to the
claimant.
24
1932 UKHL 100.

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Lord Atkin has made the following general principle governing the duty of care, it is also
called the neighbour principle:
Persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.

In Haley v London Electricity Board25, The Defendant dug a trench in a street. Their
precautions for the protection of passers-by were not sufficient to protect the Claimant,
because he was blind. He was injured as a result, and the Court held that the number of blind
people who walked about on their own made it foreseeable that such a person could be
injured, and therefore gave rise to a duty of care to take suitable precautions to prevent such
injury.
This ratio has begun to open a category of people to whom a risk of harm was foreseeable, so
this was not just for one person.

In Watson v British Boxing Board of Control26, A boxer suffered severe brain damage after
being injured in a match, and evidence suggested that his injuries would have been less
severe if immediate medical attention had been available at the ringside. It was held that
there was sufficient proximity between Mr. Watson and the Board to give rise to a duty of
care. The is because the boxer’s licensing system operated by the Board created a
relationship of proximity, and the board had complete control and responsibility to the
situation which resulted in Mr Watson’s injury if the Board did not exercise reasonable care.

In Anns v London Borough of Merton 27, Lord Wilberforce has made the following statement
and is called the two-stage test:
First one has to ask whether, as between the alleged wrongdoer and the person who has
suffered damage, there is a sufficient relationship of proximity or neighborhood such that, in
the reasonable contemplation of the former, carelessness on the part of one may be likely to
cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the
first question is answered affirmatively, it is necessary to consider whether there are any

25
1965 AC 77.
26
2001 QB 1134.
27
1978 AC 728.

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considerations which ought to negative, or to reduce or to limit the scope of the duty or the
class of person to whom it is owed or the damages to which a breach of it may give rise.

The Caparo v Dickman28 decisions have taken the law back similar to a pre-Donoghue
position. The latest development in this case requires that there are now three questions to be
asked in deciding whether a duty of care was owed, the Court will ask:
(i) Was the damage to the Claimant reasonably foreseeable?
(ii) Was the relationship between the Claimant and the Defendant sufficiently
proximate?
(iii) Is it just and reasonable to impose a duty of care?

In Dominion Natural Gas v Collins and Perkins29, In actions for damages in respect of an
accident against the appellant gas company it appeared that the appellants were not occupiers
of the premises on which the accident had occurred and had no contractual relations with the
plaintiffs, but that they had installed a machine on the said premises, and the jury found that
the accident was caused by an explosion resulting from gas emitted, owing to the appellants'
negligence, through its safety valve direct into the closed premises instead of into the open
air. Held, that the initial negligence having been found against the appellants in respect of an
easy and reasonable precaution which they were bound to have taken, they were liable unless
they could shew that the true cause of the accident was the act of a subsequent conscious
volition, e.g., the tampering with the machine by third parties.
In Hadley v. Baxendal30, The court held that in order for a non-breaching party
to recover damages arising out of any special circumstances, the special circumstances must
be communicated to and known by all parties at the time of formation.

On 14th August 2017, HPC Ltd. entered into an agreement with Mr. Steve, regarding the
purchase of three LPT Machines for Lobanza Capsule’s production. Mr. Steve agreed to the
terms of the agreement and informed Mr. Snark that he would ensure the delivery of the
machines in five days, once the machines are carefully assembled and repaired. However, in
the interest of professional ethics, Mr. Snark was requested by one of the colleagues of Mr.
Steve to conduct a routine check on the machines in the coming few days. Mr. Snark,

28
1990 UKHL 2.
29
1909 AC 640.
30
1854 EWHC J70.

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evidently amused by the preposterous idea of doubting his friend, nevertheless nodded and
smiled. HPC Ltd. eventually received the delivery of the machines after nine days, assembled
as per the agreed terms, and without showing any apprehensions as to the delay in delivery,
promptly made the complete payment of $30 Million Dollars. Furthermore, HPC Ltd. also
used one of its LPT Machines to manufacture other medicines with different chemical
compositions, apart from Lobanza.

A week prior to the sale of 3 LPTs on 14th August 2017, Mr. Steve received a detailed report
from the auditor categorically highlighting certain patent defects in those machines. Faced
with extreme pressure to meet the rising demand, Mr. Steve ignored the report and failed to
disclose that information to HPC Ltd. Consequently, on certain occasions, HPC Ltd.
encountered frequent problems with few LPT Machines, and unfortunately on 22nd October
2017 all machines malfunctioned. Mr. Tony appointed Mr. Steve and his tech-team for the
repair. Few instances of illness were reported amongst a few people but no serious medical
catastrophe had occurred.

Meanwhile Mr. Snark, aggrieved by such a huge loss to his production, accused Mr. Steve of
fraud, and initiated civil proceedings against him for breach of contract before the Dorne
District Court. HPC Ltd. sought to avail the doctrine of restitution and prayed for a
compensation of $ 100M.

Thus, there was negligence on part of Mr. Steve Rovers as he ignored the detailed report
from the auditor categorically highlighting certain patent defects in those machines and failed
to disclose that information to HPC Ltd and inturn deprived Ms. Amy of means of
livelihood.

In the instant case it has already been established that Mr. Steve Rogers is responsible
for the death of Amy's husband that has left her with no source of material sustenance.
The death of Mr. Pablo has left her without basic necessities of life. It is therefore
humbly submitted that the family of the petitioner consisted of her deceased husband,
her 8 year old daughter and the petitioner himself that has hampered her livelihood. The
daughter has in the instant case become destitute. In Varinder Prasad v. B.S.E.S
Rajdhani Power Ltd. And Ors, The hon'ble court in its judgment elucidated the two
tier compensation mechanism. It has two components, i.e. the conventional sum, and

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pecuniary compensation, in such cases. The court in Kamala Devi 2 held with approval
as follows The compensation to be awarded by the Courts, based on international norms
and previous decisions of the Supreme Court, comprises of two parts: (a) "standard
compensation" or the so-called "conventional amount" (or sum) for non-pecuniary
losses such as loss of consortium, loss of parent, pain and suffering and loss of
amenities. (b) Compensation for pecuniary loss of dependency. The "standard
compensation" or the "conventional amount" has to be revised from time to time to
counter inflation and the consequent erosion of the value of the rupee. Compensation of
pecuniary loss of dependency is to be computed on the basis of loss of earnings for
which the multiplier method is to be employed. The total amount awarded by the Court
along with simple interest thereon calculated on the basis of the inflation rate based on
the Consumer Price Index (CPI) as disclosed by the Government of India For the period
commencing from the date of death of the deceased till the date of payment by the
State. The petitioner therefore pleads that all the above mentioned rules for
compensation must be incorporated in the instant to grant a part of compensation for
complete justice to the petitioner and for the benefit al enjoyment of life The petitioner's
husband died because of latches on the part of the company to exercise due care and
caution. The right to livelihood, family and social security of the petitioner therefore
stands violated. The Supreme Court has held that "If the right to livelihood is not
treated as a part and parcel of Right to Life the easiest way of depriving a person of his
Right to life would be to deprive him of his means of Livelihood to the point of
abrogation. Hence it can be inferred that Mr. Steve Rovers by depriving the petitioner
of his livelihood has hampered with her quality of life. Life does not only mean an
animal existence it includes a wide variety of things as laid by the supreme court from
time to time. The right to life covers within its ambit the right to social security and
protection of family, subsequently right to social and economic justice. The petitioner
also contends that Mr. Stark was the sole bread winner of the family and they lived in a
separate house due to strained relations with her in laws. The petitioner is also pregnant
and in a state of trauma after the death of her husband that could lead to further health
complications for the mother as well as the baby. After her husband's death she asked
for monetary help from her in-laws which was of no avail. Therefore keeping in mind
the above circumstances the petitioner pleads before this hon'ble court to grant the her
sufficient compensation in order to do complete justice to her

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ISSUE 4. Mr. Steve Rovers, being the supplier and service provider of LPT Machines,
is liable to compensate Mr. Tony Snark for breach of contract.

The counsel on behalf of Mr. Tony Snark most humbly submits that Steve Rovers is liable
for the breach of contract. Steve Rovers supplied defected products to Mr. Tony Snark which
resulted in huge loss and reputation to his business.

4.1 section 16 of sales of goods act 1930 has been neglected by the supplier
As per section 16 of sales of goods act, “Implied conditions as to quality or fitness.—
Subject to the provisions of this Act and of any other law for the time being in force, there is
no implied warranty or condition as to the quality or fitness for any particular purpose of
goods supplied under a contract of sale, except as follows:—
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1. Where the buyer, expressly or by implication, makes known to the seller the particular
purpose for which the goods are required, so as to show that the buyer relies on the seller’s
skill or judgment, and the goods are of a description which it is in the course of the seller’s
business to supply (whether he is the manufacturer or producer or not), there is an implied
condition that the goods shall be reasonably fit for such purpose: Provided that, in the case of
a contract for the sale of a specified article under its patent or other trade name, there is no
implied condition as to its fitness for any particular purpose.
2. Where goods are bought by description from a seller who deals in goods of that
description (whether he is the manufacturer or producer or not), there is an implied condition
that the goods shall be of merchantable quality: Provided that, if the buyer has examined the
goods, there shall be no implied condition as regards defects which such examination ought
to have revealed.
3. An implied warranty or condition as to quality or fitness for a particular purpose may be
annexed by the usage of trade.
4. An express warranty or condition does not negative a warranty or condition implied by
this Act unless inconsistent therewith.31

Presently in the given fact sheet Mr. Tony Snark expressly makes known to the seller ,the
particular purpose for which the machines are required that is for the production of Lobanza
capsule.
Also plaintiff relies on the seller’s skill and goods were of the description which is in the
course of seller’s Mr. Steve Rovres Business that is supplying of Labzo-pharma
Tech(LPT) machines.
Hence there is an implied condition that machines should be reasonably fit for production of
Lobanza capsule. But the machines that were provided by the defendant’s company
malfunctioned on 22nd October 2017.The machines were not reasonably fit for the purpose
they were bought for.
Another point is under section 16(2) of sales of goods act is the condition of goods shall be
of merchantable quality.
The term Merchantable quality has not been defined in sales of goods act 1930. This term has
been defined in Section 62(1-A) of English sale of goods act .According to section 62(1-A),
the goods are of merchantable quality if they are fit for the purpose for which goods of that
kind are commonly bought as it is reasonable to expect having regard to any description
31
Sales of goods Act 1930.

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applied to them to price and all other relevant circumstances. In the present case the
machines that were bought by the plaintiff are not of merchantable quality as they were not
fit for the purpose they were bought for.

In R. S. Thakur v. H. G. E. Corporation32, it was observed that:

16(1) applies where the buyer requires the goods for a particular purpose, where the buyer
expressly or implication makes known to the seller that particular purpose, where it is shown
that the buyer relies on the seller's skill or judgment and where the seller's usual course of
business is to sell such goods, whether he is sthe actual producer or not. Where all these
essential facts exist, there is an implied condition that the goods shall be reasonably fit for
such purpose. But steve Rovers failed in providing fit machines.

In Raghava Menon v. Kuttappan Nair 33 it was held transaction being a sale by

description from a dealer or manufacturer who deals in goods of that description can also fall
under exception (2) to Section 16 .
In present case the seller deals in the machines which are designed for the production of
Lobanza capsules and buyer clearly described the purpose of purchasing the machines that is
for the production of lobanza capsules . according to section 16(2) there is an implied
condition that machines should be of merchantable quality in which machines failed.
The section also provides that if the buyer has examined the goods there shall be no implied
condition, but in this case the buyer completely trust and relies on the skill of the seller’s
quality of goods. But seller breaks his trust completely .
Another point is that seller assures the buyer that once machines are carefully assembeled
and repaired .

In Priest v. Last 34it was held that if the goods purchased by the buyer does not fulfil his
particular purpose of purchasing of goods then the seller would be liable to pay
compensation for the breach of the implied condition.
In Chaproniere v. Mason 35it was held that the fact that the buyer had purchased the bun

32
AIR 1971 Bom 97.
33
AIR 1962 Ker 318.
34
(1903) 2KB 148.
35
(1905) TLR 63.

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from particular bakery was sufficient to show that the buyer had relied on the seller’s skill
and judgement.
In Jackson v. Watson 36it was held that when the seller makes the breach of such an implied
condition he is liable for the consequences of such a breach.

4.2 Section 16 of Indian contract act,1872 undue influence defined-

1. A contract is said to be induced by ‘undue influence’ where the relations subsisting
between the parties are such that one of the parties is in a position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other. Section16 of Indian
Contract Act. ‘Undue influence’ defined.—(1) A contract is said to be induced by ‘undue
influence’ where the relations subsisting between the parties are such that one of the parties
is in a position to dominate the will of the other and uses that position to obtain an unfair
advantage over the other."
2. In particular and without prejudice to the generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of another—
(a) where he holds a real or apparent authority over the other, or where he stands in a
fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.
1. Where a person who is in a position to dominate the will of another, enters
into a contract with him, and the transaction appears, on the face of it or on the
evidence adduced, to be unconscionable, the burden of proving that such
contract was not induced by undue influence shall be upon the person in a
position to dominate the will of the other. Nothing in the sub-section shall
affect the provisions of section 111 of the Indian Evidence Act, 187237.

In the case of Treesa Irish v. The Central Public Information following definition of
Fiduciary Relationship were taken in consideration by the High Court of Kerela
The Dictionary of Law by L.B. Curzon (fourth edition) gives the following meaning for the
word `fiduciary':

36
360 SO.2d 582 (1978).
37
Indian Contract Act 1872.

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"fiduciary. Involving trust or confidence. e.g., as describing the relationship between a trustee
and beneficiary. In general, where a fiduciary relationship between parties to a transaction
exists, undue influence leading to some agreements, such as contract may be presumed."

The Corpus Juris Secundum gives the following meaning for the expression, which is stated
to be based on various decisions on the subject:

" The term "fiduciary relation" has reference to any relationship of blood, business,
friendship, or association in which the parties repose special trust and confidence in each
other and are in a position to have and exercise, influence over each other, and implies a
condition of superiority of one of the parties over the other; but in relation with undue
influence, it does not necessarily imply acts which the law deems fraudulent.

When it exists. What constitutes a fiduciary relationship is often a subject of controversy.

The relationship may exist under a great variety of circumstances; it exists in all cases where
there has been a special confidence reposed in one who in equity and good conscience is
bound to act in good faith and with due regard to the interests of the one reposing the
confidence, in cases when confidence is reposed on one side and there is resulting superiority
and influence on the other, in all cases in which influence has been acquired and abused, in
which confidence has been reposed and betrayed."

Thus from aforementioned it is clear that scope of Fiduciary Relationship is very broad and
also includes Freindship as fiduciary relationship.

In the present case Steve Rovers(seller) and Tony Snark(buyer) are childhood friends hence
there arises a fiduciary relationship between them.
Steve rovers has the authority over the buyer as he is the seller and Mr. Tony Snark being the
friend of Steve rovers trust his friend that he will deliver the best of product but Defendant
misused his position to obtain unfair advantage and provides defected machines which causes
loss to the plaintiff. Further it can be inferred from the article published on 1 st
September2017 in the widely distributed Journal of Asnardian Institute of Technology
regarding infirmities of the machine that the quality of the machines deliverd by Mr. Steve
was questionable.

The term fiduciary relationship has been well discussed by this Court in the case of Central
38
Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. . In the said
38
(2011) 8 SCC 497.

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decision, their Lordships referred various authorities to ascertain the meaning of the term
fiduciary relationship and observed thus:

Black's Law Dictionary (7th Edition, Page 640) defines 'fiduciary relationship' thus:

A relationship in which one person is under a duty to act for the benefit of the other on
matters within the scope of the relationship. Fiduciary relationships-such as trustee-
beneficiary, guardian-ward, agent-principal, and attorney- client-require the highest duty of
care. Fiduciary relationships usually arise in one of four situations: (1) when one person
places trust in the faithful integrity of another, who as a result gains superiority or influence
over the first, (2) when one person assumes control and responsibility over another, (3) when
one person has a duty to act for or give advice to another on matters falling within the scope
of the relationship, or (4) when there is a specific relationship that has traditionally been
recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a
customer.

4.3 Material breach under Indian contract Act 1872

Material breach is a contract law term which refers to a failure of performance under the
contract which is significant enough to give the aggrieved party the right to sue for breach of
contract. When there has been a material breach, the aggrieved party is also relieved of a duty
of further performance under the contract. However, a minor divergence from the terms of
the contract is not a material breach. A material breach is one that is significant enough to
destroy the value of the contract.

A lawsuit for material breach of contract is a civil action and the remedies awarded are
designed to place the injured party in the position they would be in if not for the breach.
Remedies for contractual breaches are not designed to punish the breaching party.

The following circumstances are important to determine whether a failure to render or to

offer performance is material:

1. The extent to which the injured party shall be deprived of the benefit or profit which
s/he reasonably expected;

2. The extent to which the injured party can be adequately remedied or compensated for
the part of that benefit of which s/he shall be deprived;

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3. The extent to which the party failing to perform or to offer to perform shall suffer
forfeiture;

4. The likelihood that the party failing to perform or to offer to perform shall correct
such failure, taking account of all the circumstances including any reasonable
assurances; and

5. The extent to which the behavior of the party failing to perform or to offer to perform
is according to the standards of good faith and fair dealing.

In the given case the aggrieved party Mr. Snark was deprived of the benefit or profit which
he reasonably expected as Mr. Steve supplied them machines which malfunctioned in few
days which frustrated the purpose of the contract that is for increasing the sale of Lobanza
capsules that will increase the turnover of the company of the buyer.

Material Breach is one that is significant enough to destroy the value of contract. In the given
contract between HPC Ltd. And Mr. Steve the value of the contract has been destroyed as the
machines that were bought for the production of the capsules in order to broaden his market
reach and increase his annual turnover but due to sellers failure of performance of quality and
reasonably fit machines the value of contract has been destroyed.

In Jindal Steel And Power Limited vs M/S. Sap India Pvt. Ltd. on 29 June, 2015 it was held-
A material breach is a breach that is fundamental to the contract's subject matter and
adversely affects the outcome of the contract.
In the present case Hpc. Ltd. was a respectable and big company which have a good market
name and also enjoys monopoly in the market in production of Lobanza capsules. Also this
company is indulged in various social services and also supports new startups with funds.
Due to the carelessness and negligence of Mr. Steve Rovers Hpc Ltd suffered huge
economic loss also there is huge setback to the reputation of the company. Hence the Hpc ltd.
should be compensated with 100 Million dollars which includes the price paid by Mr. Tony
of 4 machines and company’s economic and loss to reputation.

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PRAYER

Wherefore, in the light of the fact stated, arguments advanced and Authorities
cited, it is most humbly prayed and implored before the Honourable Supreme
Court of Asnard that it may be graciously pleased to adjudge and declare that
Fraud was committed by Mr. Steve Rovers under section 17 of the Indian
Contract Act,1872?

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Contract dated 14th August 2017 is voidable at the option of Tony Snark.
Right to Livelihood of Ms. Amy Santiago has been violated .
Mr. Steve Rovers is Liable to Compensate Mr. Tony Snark for breach of contract.
Also, pass any other order that it may deem fit in the favour of Applicant to
meet the ends of equity, justice and good conscience.
For this Act of Kindness, the Applicant shall duty bound forever pray.

Place: JAMIA MILIA ISLAMIA

Date: 17th Nov.2018

THE PLAINTIFF

Sd/-

.............................. (COUNSEL FOR THE “PLAINTIFF ”)

MEMORIAL FOR THE APPELLANT