FRESHERS’ INDUCTION MOOT 2022,

CAMPUS LAW CENTRE

BEFORE THE HON’BLE HIGH COURT OF

MUSK

IN THE MATTER OF:

MS. TANUSHKA VERMA …………………………………...PLAINTIFF

VERSUS

MR. ADITYA JOHAR BHANUSALI…………………………DEFENDANT

MEMORIAL ON BEHALF OF PLAINTIFF

COUNSEL APPEARING ON BEHALF OF PLAINTIFF

1
 TABLE OF CONTENTS

Page No.
Index of Authorities 3
Statement of Jurisdiction 4
Statement of Facts 5
Statement of Issues 6
Summary of Arguments 7
Arguments Advanced 9
ISSUE A) Whether the defendant exercised undue influence over the 9
plaintiff.
i. Whether the defendant was in a position to dominate the will of 10
the plaintiff.
ii. Whether the defendant used that dominating position to obtain an 11
unfair advantage and was the transaction unconscionable.
ISSUE B) Whether the object of the contract is unlawful and renders 13
it void.
i. Whether the contract restrains the plaintiff from exercising her 14
lawful profession.
ii. Whether there was a valid contract between the parties devoid of 17
undue influence and unlawful object.
ISSUE C) Did the plaintiff breach the contract with the defendant by 18
entering into a contract with V-Series?
Prayer 20

2
 INDEX OF AUTHORITIES

1. STATUTES:

• Indian Contract Act, 1872

• Code of Civil Procedure, 1908

2. BOOKS:

• Avtar Singh, Contract and Special Relief (13th ed.)

• Pollock & Mulla, The Indian Contract Act, 1872 (14th ed.)

3. CASES:

• Raghunath Prasad Sahu v Sarju Prasad Sahu, AIR 1924 PC 60

• Krishna Mohan Kul v Pratima Maity, (2004) 9 SCC 468
• Central Island Water Transport Corpn v Brojo Nath Ganguly, (1986) 3 SCC 156
• Indian Oil Corpn Ltd v Nilofer Siddiqui, (2015) 16 SCC 125
• Nutan Kumar v IInd Additional District Judge, AIR 1994 All 298
• Gujarat Bottling Co. Ltd v Coca Cola Co, (1995) 5 SCC 545
• Ehrman v Bartholomew, (1898) 1 Ch 671
• Gopal Paper Mills Ltd v Surendra K. Ganeshdas Malhotra, AIR 1962 Cal 61.
• Clifford Davis Management Ltd v WEA Records Ltd and Another, (1975) 1 All ER
237

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 STATEMENT OF JURISDICTION

The plaintiff has approached the Hon’ble High Court of Musk to exercise its jurisdiction as
per Section 15 of the Code of Civil Procedure, 1908 read along with the Delhi High Court
(Amendment) Act, 2015.

Section 15 of The Code of Civil Procedure, 1908 reads:

Court in which suits to be instituted- Every suit shall be instituted in the Court of the lowest

grade competent to try it.

Sub-section 2 of Section 5 of the Delhi High Court (Amendment) Act, 2015 reads:

Jurisdiction of High Court of Delhi- Notwithstanding anything contained in any law for the
time being in force, the High Court of Delhi shall also have in respect of the said territories
ordinary original civil jurisdiction in every suit the value of which exceeds rupees two crore.

The plaint has been instituted under Section 26 of the Code of Civil Procedure, 1908 and as
per Rule 4 of Order VI of the Code of Civil Procedure, 1908.

Section 26 of the Code of Civil Procedure, 1908 reads:

Institution of suits — (1) Every suit shall be instituted by the presentation of a plaint or in

such other manner as may be prescribed.

Rule 4 of Order VI of the Code of Civil Procedure, 1908 reads:

Particulars to be given where necessary —In all cases in which the party pleading relies on
any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all
other cases in which particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary) shall be stated in the
pleading.

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 STATEMENT OF FACTS

1. Bhindiya is a progressive country with a strong judicial system where people protect their
cultural values. The women are educated and aware of their rights.
2. Based in the state of Musk, Mr. Aditya Johar Bhanusali (defendant) is a leading film
producer and director in the Bhindiyan film industry, Bhelwood. He owns Bhrama
Productions, a 50-year-old film studio that makes big-budget films and works exclusively
with A-list stars. He often gets his way and is a shrewd and ruthless producer.
3. Ms. Tanushka Verma (plaintiff) a young and aspiring actor hailing from a small town
struggled for over 2 (two) years until she was cast in the lead role of the defendant’s next
big-budget film after he spotted her in an audition queue outside his office and decided to
cast her after a small conversation. She was grateful to him and her rise from the small town
of Fursatganj inspired the youth. Her casting created hype around Mr. Aditya’s financially
indulgent project. While shooting abroad, they developed a deep bond and became
romantically involved.
4. Ms. Tanushka got distressed by insinuations that she was cast due to their relationship.
Further, with 15 months remaining for the film’s completion, she got pregnant. This utterly
shocked the defendant worried him about the film’s pending status and the financial
repercussions of it not releasing on time. The news soon leaked and infuriated the plaintiff’s
family, leading to complete ostracization by her them. She soon became a victim of heavy
social-media trolling and went into a state of serious distress while Mr. Aditya was
concerned with the logistical nightmare caused to the film.
5. The plaintiff proposed marriage to Mr. Aditya to escape the humiliation but he refused due
to his disbelief in the institution. After an argument ensued and threats exchanged between
the parties, he realized that marrying the plaintiff is crucial to avoid a PR and a commercial
fiasco. He proposed to her after consulting his close aides along with a contract (Annexure
A) that inter-alia bound the plaintiff to work exclusively with Bhrama Productions post-
marriage. She signed the said contract in an attempt to reconcile with her family and to save
her career. Subsequently, they got married but remained cold to each other. Post the film’s
success, she was flooded with offers including a 3-film deal offered by Bhrama
Productions’ rivals, V-Series. On persistence by them, she signed the contract.
6. Following this, Ms. Tanushka moved the Court to get the contract with Mr. Aditya vitiated.
As the defendant had exercised undue influence being in a position to dominate her will
and the object of the contract was unlawful, thereby rendering the contract void.

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 STATEMENT OF ISSUES

A. Whether the defendant exercised undue influence over the plaintiff.

i) Whether the defendant was in a position to dominate the will of the plaintiff.
ii) Whether the defendant used that dominating position to obtain an unfair
advantage and was the transaction unconscionable.

B. Whether the object of the contract is unlawful and renders it void.

i) Whether the contract restrains the plaintiff from exercising her lawful profession.
ii) Whether there was a valid contract between the parties devoid of undue influence
and unlawful object.

C. Did the plaintiff breach the contract with the defendant by entering into a contract
with V-Series?

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 SUMMARY OF ARGUMENTS

ISSUE A) Whether the defendant exercised undue influence over the plaintiff.

It is humbly submitted that to prove undue influence in a contract, the relationship between
the parties is a sine qua noni as to enable one of them to dominate the will of the other. In
the present case, the parties shared a personal as well a professional relationship. At the time
of the contract, the defendant was in a position to dominate the plaintiff’s will. This can be
ascertained by the plaintiff’s mental distress and the position of power the defendant held.
The circumstances surrounding the contract had left the plaintiff helpless, powerless, and
desperate, thereby affecting her mental capacity. It is submitted from the side of the plaintiff
that signing the contract to enter into a marital relationship with the defendant remained the
plaintiff’s only recourse. This presumption of undue influence arises in cases of inequality
of bargaining power between the parties and unconscionability of the transaction. The
plaintiff was in a far weaker position and enjoyed little bargaining power as compared to
the defendant, hence the two were on an unequal footing. The defendant’s actions indicate
his willingness to derive benefits from the plaintiff, secure his financial position and avoid
a commercial debacle by proposing marriage along with presenting the contract. The final
ingredient to prove undue influence is the unconscionability of the transaction. We submit
that the terms were unreasonable and unfair, intending to bind the plaintiff to Bhrama
Productions till the subsistence of marriage between the parties. It intended to compel the
plaintiff to serve the defendant or remain idle. The conduct of the defendant sheds light on
his intentions to obtain an unfair advantage. Hence, we submit that the agreement was
devoid of free consent, thereby not fulfilling the criteria for a valid contract under Section
10 of the Indian Contract Act, 1872. As the defendant had exercised undue influence, we
humbly submit that the contract must be set aside on this ground. Therefore, in accordance
with Section 16 of the Indian Contract Act, 1872, the onus probandi shall fall upon the
defendant to prove that he did not exercise undue influence.

ISSUE B) Whether the object of the contract is unlawful and renders it void.

The law forbids agreements that restrain a person’s right to exercise a lawful trade,
profession, or business, and such agreements are void pro tanto. It is clear from the language
of the agreement that it intends the plaintiff to work “exclusively” with Bhrama Productions
“post-marriage”. Hence, the period of employment is unlimited in space and cannot be

7
determined. If enforced, the plaintiff would be bound to Bhrama Productions till the
subsistence of marriage between the parties. It is submitted from the side of the plaintiff
that an agreement attracts the doctrine of restraint when there is an actual restraint that is
unreasonable and provides more than adequate and legitimate protection to the covenantor.
In the present case, the nature of the restraint is unreasonable being indefinite. We submit
that it is wholly one-sided, detrimental to the plaintiff’s interest, and imposes an absolute
bar on the plaintiff. The negative covenant is onerous, unreasonable, and unconscionable. If
the agreement is allowed to run its course, the plaintiff would be deprived of her rights,
thereby causing her grave and irremediable damage. The circumstance surrounding the
agreement had put the defendant in a position of power, hence enabling him to draft the
agreement in unreasonably wide terms. It is submitted that the terms provide more than
adequate protection to the defendant and thereby, giving him an unfair advantage over the
plaintiff. It is thus argued that the negative covenant in Clause IX (a) is contrary to Section
27 of the Indian Contract Act 1872, hence unlawful and void (b) unconscionable and harsh
(c) was entered into under undue influence. We humbly submit that the agreement must be
set aside and declared void.

ISSUE C) Did the plaintiff breach the contract with the defendant by entering into a
contract with V-Series?

It is humbly submitted by the counsel for the plaintiff that under Section 74 of the Indian
Contract Act, 1872, an obligation for payment of liquidated damages stipulated under the
contract comes into play when a party breaks the contract. In the current case, the plaintiff
had honoured her commitment under Clause VIII of the agreement by completing the shoot
of the film, “Rani Hirani Ki Bemani Kahani- Chapter 1”. Hence, liability for breach does
not arise as the terms of Clause IX were unenforceable. The general principle of law is ex
dolo mala non oritur actio, which means that the court does not lend its aid to a man who
found his cause of action upon an immoral or an illegal act. Hence, the defendant cannot
claim damages for an unenforceable provision. The plaintiff signed an agreement with the
production house V-Series, as she had already fulfilled her obligations and was not bound
by Clause IX. Therefore, the conduct of the plaintiff is not in violation of the stipulations
contained in the agreement between the parties as the negative covenant was unenforceable
and forbidden by law. Hence, the plaintiff’s actions do not constitute a breach of contract.

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 ARGUMENTS ADVANCED

ISSUE A) Whether the defendant exercised undue influence over the plaintiff.

1) Section 10 of the Indian Contract Act, 1872 states that a valid contract comes into existence
when an agreement has free consent of the parties, parties are competent to contract, for a
lawful consideration with a lawful object and are not expressly declared to be void. Under
Section 14 of the Indian Contract Act, 1872, consent is said to be free when it is not caused,
inter alia, by undue influence.

Section 16 of the Indian Contract Act, 1872 states:

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.

(3) 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 lie upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence
Act, 1872 (1 of 1872).

The aforesaid provision sheds light on when a contract is induced by undue influence. The
provision stipulates that undue influence is exercised when one party obtains an unfair
advantage over the other by entering into an unconscionable transaction with whom he stands
in a position of domination of will.

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2. Lord Shaw of the Privy Council1 expounded the three stages for consideration of a case of
undue influence. It was held that in the first place the relations between the parties to each other
must be such that one is in a position to dominate the will of the other. Once that position is
substantiated the second stage has been reached - namely, the issue of whether the contract has
been induced by undue influence. Upon the determination of this issue, a third point emerges,
which is that of the onus probandi. If the transaction appears to be unconscionable, then the
burden of proving that the contract was not induced by undue influence is to lie upon the person
who was in a position to dominate the will of the other as under Section 16(3).2

Hence, to vitiate a contract on the ground of undue influence, the aforementioned stages have
to be proved. Such a case has to be made out and the full particulars are required to be given
under Rule 4 of Order VI, Code of Civil Procedure, 1908. Pursuant to this, the plaintiff has
made the case, and it is claimed that the contract was induced by undue influence.

i) Whether the defendant was in a position to dominate the will of the plaintiff.

3. Under Section 163, a person is deemed to dominate the will of the other when he makes a
contract with a person with whom he stands in a fiduciary relationship or holds a real or
apparent authority over or, whose mental capacity is temporarily or permanently affected by
reason of mental or bodily distress.

A person whose mental capacity is affected by reason of mental or bodily distress is easily
persuaded to give consent to a contract that may be unfavorable to him. Such an agreement is
thereby affected by undue influence.4

4. The relationship between the parties to enable one of them to dominate the will of the other
is a sine qua non for undue influence to come to play.5 It is submitted that that relationship of
the parties, in this case, was not limited to an employer-employee relationship but they shared
a deep bond.6 The plaintiff was grateful to the defendant for her first big break and eventually,
the parties became romantically involved.7

5. It is submitted that at the time of execution of the contract, the plaintiff was in a position of
vulnerability, helplessness, and desperation that had put her in great mental distress. Her career

1
Raghunath Prasad Sahu v Sarju Prasad Sahu, AIR 1924 PC 60.
2
Indian Contract Act, 1872.
3
Indian Contract Act, 1872.
4
AVTAR SINGH, CONTRACT AND SPECIAL RELIEF 187 (13th ed, 2022).
5
AVTAR SINGH, CONTRACT AND SPECIAL RELIEF 183 (13th ed, 2022).
6
Moot Compromis, Para 5.
7
Moot Compromis, Para 3 & Para 6.

10
was plunging and she was being subject to heavy social media trolling due to her relationship
with the defendant. The news of her pre-marital pregnancy had made rounds in a country that
lays pride in its cultural values. Further, the defendant had refused to marry the plaintiff while
she had been ostracized by her family.8

Hence, it is argued that the plaintiff’s only choice was to accept the terms of the contract
(Annexure A) as to enter into a marital relationship with the defendant as per the proposition
proposed by the defendant.9 Therefore, entering into the contract was her only resort to ‘save
her career’ and ‘reconcile with her family’. Therefore, it can be concluded that the
defendant was in a position to dominate the will of the plaintiff as her mental capacity
was affected due to the mental distress.

ii) Whether the defendant used that dominating position to obtain an unfair advantage
and was the transaction unconscionable.

6. It has been held by the Hon’ble Supreme Court that in a few cases, the presumption of undue
influence can arise where there is an inequality of bargaining power between the parties and
the transaction appears unconscionable. The effect of this presumption is that once it is shown
that the defendant was in a position to dominate the will of the plaintiff, it will be presumed
that he must have used his position to obtain an unfair advantage. Once the aforementioned is
proved, the onus probandi shall then fall upon the defendant instead of the plaintiff to show
that the plaintiff freely consented to the contract in question.10

The word unconscionable is defined as “showing no regard for conscience; irreconcilable with
what is right or reasonable”.11

7. The aforementioned doctrine can be applied when one party has no practical choice
(emphasis supplied) but to enter into the contract and the contract may be set aside on reason
because of an unconscionable clause that appears unfair and unreasonable. These transactions
fall under the head of undue influence. The Hon’ble Supreme Court has relied on this doctrine
in cases of undue influence.12 Hereby placing reliance on the cases of Central Inland Water
Transport Corpn Ltd v Brojo Nath Ganguly13 and Indian Oil Corpn Ltd v Nilofer Siddiqui14

8
Moot Compromis, Para 7 & Para 8.
9
Moot Compromis, Para 10
10
Krishna Mohan Kul v Pratima Maity, (2004) 9 SCC 468.
11
II SHORTER OXFORD ENGLISH DICTIONARY 2288 (3rd ed.).
12
AVTAR SINGH, CONTRACT AND SPECIAL RELIEF 195 (13th ed, 2022).
13
Central Island Water Transport Corpn v Brojo Nath Ganguly, (1986) 3 SCC 156.
14
Indian Oil Corpn Ltd v Nilofer Siddiqui, (2015) 16 SCC 125.

11
where the Hon’ble Supreme Court set aside contracts that gave an unfettered right to the
employer to terminate the services of an employee, such a clause was held to be unconscionable
in nature. It was held that a contract may be set aside if a party is so weak that it had no practical
choice but to enter into the contract due to the gross disparity in the bargaining power.

8. It is hereby contented that the plaintiff and defendant were on an unequal footing and there
was an inequality of bargaining power. Mr. Aditya was in a position of power, a leading film
producer with over 20 years of experience who often gets his way and who entered the contract
to avoid a PR debacle and to save his financially indulgent project.15

In the instant case, the plaintiff is far weaker in power; she was a newcomer in the industry.
The circumstances that dictated the contract had rendered the plaintiff helpless, desperate and
her only recourse was to sign the contract as a means to escape the professional and personal
humiliation. Her reputation was slowly, steadily, and systematically eroded by the rumours and
she had no option but to marry the defendant and sign the contract.16 She had no voice in
framing the contract or negotiating the terms thereof.

9. The defendant presented the contract along with a proposal for marriage to secure his future
and ensure the plaintiff’s compliance for his next project, “Rani Hirani Ki Bemani Kahani-
Chapter 1”17. This indicates his willingness to derive benefits and gain an unfair advantage.
Further, the plaintiff accepted lifetime restrictions on her lawful profession (Clause IX) that
bound her to work exclusively for the defendant till the subsistence of the marriage. In light of
the same, it is submitted that the transaction was unconscionable as it restricted the plaintiff
indefinitely, thereby making the period unlimited in space. Hence, we submit that the terms
intended to impose unreasonable restraints on the plaintiff and restrict her liberty to exercise
her lawful profession.

10. We humbly submit that the plaintiff would be deprived in the future if the contract were
permitted to run its full course. Besides being in restraint of the plaintiff’s profession as per
Section 27 of the Indian Contract, 1872, the agreement was unfair, unreasonable, and thereby,
unconscionable.

15
Moot Compromis, Para 2 & Para 10
16
Moot Compromis, Para 8 & Para 11
17
Annexure A: Clause VIII

12
11. Hence, the facts of the case manifest that the ingredients of Section 1618 have been fulfilled
by the undue influence exercised due to the inequality in bargaining power and the
unconscionable transaction.

Thereby, the requirements have been fulfilled for the reversal of the rule as to the burden of
proof under Section 16 of the Indian Contract Act, 1872.

12. It is further submitted that by the same, the onus probandi would now shift on the defendant
to prove that the contract was not affected by undue influence.

ISSUE B) Whether the object of the contract is unlawful and renders it void.

1. Under Section 23 of the Indian Contract Act, 1872, an agreement is rendered unlawful and
thereby, void if its object or consideration is, inter-alia, forbidden by law. As per Section 2(g)19,
an agreement that is unenforceable by law is void.

The term ‘object’ has not been defined in the Indian Contract Act, 1872, but it has been held
to mean as ‘purpose’ or ‘design’ of the contract.20 In the present case, the object of the
agreement, inter-alia, is to render the plaintiff’s services on an exclusive basis for the entire
term of the marriage between the parties to serve the defendant’s benefit.21

Section 27 of the Indian Contract Act, 1872 reads:

Agreement in restraint of trade, void—

Every agreement by which anyone is restrained from exercising a lawful profession, trade or
business of any kind, is to that extent void.

Exception 1: Saving of agreement not to carry on business of which good-will is sold

2. By the virtue of Section 27 read along with Section 23 of the Indian Contract Act, 1872, it
can be concluded that an agreement that restrains a person from exercising his lawful
profession, trade, or business is void pro tanto, except in the case specified in the section. It is
argued that in the instant case, the terms of the agreement restrain the plaintiff from exercising
her lawful profession.

18
Indian Contract Act, 1872.
19
Indian Contract Act, 1872.
20
Nutan Kumar v IInd Additional District Judge, AIR 1994 All 298.
21
Annexure A: Clause IX

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(i) Whether the contract restrains the plaintiff from exercising her lawful profession.

3. Clause IX of Annexure A reads:

“Post-marriage with Mr. Aditya, Ms. Tanushka shall work exclusively on multimedia projects
with Bhrama Productions.”

It is contended that the language of Clause IX22 of the agreement expressly excludes the
plaintiff from working on multimedia projects with any other production house besides Bhrama
Productions till the subsistence of marriage between the parties and this restraint is unlimited
in space.

4. The validity of the restraint is assessed in three stages.23 Firstly, whether the agreement
amounts to restraint to attract the doctrine of restraint. Secondly, whether the restraint protects
a legitimate interest of the covenantee, i.e., the person benefiting from the restraint. Thirdly,
whether the covenant is reasonable.

For a restraint to be reasonable in the interests of the parties it must afford no more than
adequate protection to the party in whose favour it is imposed.

Firstly, whether the agreement amounts to restraint to attract the doctrine of restraint.

5. An agreement in restraint of trade has been defined as ‘one in which a party (the covenantor)
agrees with any other party (the covenantee) to restrict his liberty in the future to carry on trade
with other persons, not parties to the contract in such a manner as he chooses’.24

6. The Hon’ble Supreme Court has held that a negative stipulation which is formulated for the
advancement of trade shall not be regarded as restraint of trade unless the contract is wholly
one-sided. Further, the restraint should be operative during the period the agreement is
subsisting to not attract the doctrine of restraint of trade.25

7. It is submitted that the terms of the impugned agreement fulfill the above-mentioned criteria
to attract the doctrine of restraint. On reading Clause IX, it can be concluded that it imposes an
absolute bar on the plaintiff to take up any multimedia projects besides those of Bhrama

22
Annexure A.
23
POLLOCK & MULLA, THE INDIAN CONTRACT ACT, 1872 (14th ed.)
24
POLLOCK & MULLA, THE INDIAN CONTRACT ACT, 1872 (14th ed.)
25
Gujarat Bottling Co. Ltd v Coca Cola Co. (1995) 5 SCC 545

14
Productions, hence the restraint is wholly one-sided. 26 The negative covenant is designed to
last for the entire marriage of the parties hence, it is unlimited in space.

It is humbly submitted that if the agreement is allowed to run its course, the plaintiff would be
deprived of doing films, TV shows, music videos, etc. with any other production house till the
duration of her marriage with the defendant, hence causing her grave and irreparable damages.

8. The Courts in India have held that the words of Section 27 27, “restrained from exercising a
lawful profession, trade or business” do not mean an absolute restriction and are intended to
apply to a partial restriction, a restriction limited to some space further.28

However, the agreement between the parties did not contain any termination clause and bound
the plaintiff till the continuation of the marriage between them which is unreasonable and
unlimited in space.

9. Hereby placing strong reliance on the case of Ehrman v Bartholomew, where the court
refused to enforce a clause that restricted the employee from engaging in my business besides
the employer’s wine business for ten years or for a period that the employer chooses.29 The
impugned clause was held to be in restraint of the employee’s rights.

Relying on the aforementioned case, it can be concluded that the terms of the agreement are
unconscionable, restrictive, and thereby, forbidden by law. We humbly submit that by
enforcement of Clause IX, the plaintiff would be restrained from exercising her lawful
profession for an indefinite period.30

Secondly, whether the restraint protects a legitimate interest of the covenantee, i.e., the
person benefiting from the restraint

10. The doctrine of restraint does not apply when it serves the legitimate interest of the
employer. This interest can be designed to adequately protect the employer’s trade secrets or
confidential information or employment with a rival firm. It should afford no more than the
adequate protection required to the party in whose favour it is imposed. 31

26
Annexure A: Clause IX
27
Indian Contract Act, 1872
28
AVTAR SINGH, CONTRACT AND SPECIAL RELIEF 291 (13th ed, 2022).
29
Ehrman v Bartholomew (1898) 1 Ch 671.
30
Annexure A: Clause IX
31
Gopal Paper Mills Ltd v Surendra K. Ganeshdas Malhotra, AIR 1962 Cal 61.

15
11. It is submitted that the terms of the agreement were unnecessary to protect the legitimate
interest of the defendant. Rather they were drafted in a way to give him unconditional power
over the plaintiff. The negative covenant contained in Clause IX precludes the plaintiff from
entering into any multi-media project in favour of any third party besides Bhrama Productions
for the entirety of their marriage.32 The basis of the restraint can be deemed to be unreasonable
and unlimited. Further, the defendant had proposed marriage to the plaintiff along with the
impugned agreement to avoid a commercial debacle and safeguard his reputation. Therefore,
the doctrine of restraint should be attracted.

12. The impugned agreement is detrimental to the interest of the employee and one-
dimensional. Thus, compelling the plaintiff to abide by the terms would be tantamount to
forcing her to remain idle or serve the defendant.

13. We submit that the restraint was unreasonable and unnecessary for the protection of the
defendant’s interests along with being delineated. The plaintiff had entered into the said
agreement not by her own volition as the defendant had exercised undue influence on accord
of the mental distress, as stated above.

14. The agreement imposed a blanket restriction on the plaintiff and is thereby, void under
Section 27 of the Indian Contract Act. The plaintiff is bound to take the benefit of the doctrine
of restraint of trade as the contract would cripple the employee from lawfully exercising her
profession.

Thirdly, whether the covenant is reasonable.

15. The Hon’ble Calcutta High Court refused to enforce a negative covenant that restrained the
employee for a period term of 20 (twenty) years. It was held that the terms were “unreasonable
and unconscionable” and the Court reiterated that reasonableness is one of the tests for the
validity of a restraint.33

In the same judgment, Hon’ble Justice A.N. Ray opined that it would be pessimi exempli if the
court were to enforce a covenant that an employer deliberately framed in unreasonable wide
terms

16. It is submitted that in the instant case, the negative covenant is onerous, unreasonable, and
unconscionable. It imposes an unreasonable restraint on the plaintiff that is unlimited in space.

32
Annexure A: Clause IX
33
Gopal Paper Mills Ltd v Surendra K. Ganeshdas Malhotra, AIR 1962 Cal 61.

16
It restricts her liberty and had been deliberately framed in unreasonably wide terms. To be
enforceable, the covenant should be specific, reasonable in space and time, and to the extent
necessary to protect the employer’s interests.

These conditions lack in the present case and therefore, the agreement should be vitiated.

The object of the agreement is in restraint of the plaintiff’s trade, thereby being forbidden
by law and hence, void. If allowed to enforce, it would render the plaintiff idle or bound
to serve the defendant.

ii) Whether there was a valid contract between the parties devoid of undue influence
and unlawful object.

17. Section 10 of the Indian Contract Act, 1872 states that a valid contract comes into existence
when an agreement has free consent of the parties, parties are competent to contract, for a
lawful consideration with a lawful object and are not expressly declared to be void.

Thereby, we submit that the challenged agreement is affected by undue influence and had an
unlawful object, rendering it void and unenforceable.

18. Hereby placing strong reliance on the case of Clifford Davis Management Ltd v WEA
Records Ltd and Another, in which Lord Denning refused to enforce an agreement that had
unfair terms. The agreement was held to be unenforceable as there was an inequality of
bargaining power and the parties had not received any independent legal advice before signing
the agreement.34

19. We contend that in light of the issues stated above, the terms of the agreement were
manifestly unfair and not specific. The plaintiff was tied for an indefinite period and this
restricted her from professing her career as an actress.35 The bargaining power of the plaintiff
was grossly impaired due to the position she was placed in vis-à-vis the defendant and his
refusal to marry the plaintiff.36 The defendant used his superior bargaining power to exact
promises that were unfairly onerous. The plaintiff was in serious mental distress, her career,
reputation, personal and professional integrity were dependent on the needs and desires of the
defendant, and entering into the agreement was her only recourse. 37

34
Clifford Davis Management Ltd v WEA Records Ltd and Another, (1975) 1 All ER 237.
35
Annexure A: Clause IX
36
Moot Compromis: Para 9
37
Moot Compromis: Para 8, Para 11

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ISSUE C) Did the plaintiff breach the contract with the defendant by entering into a
contract with V-Series?

1. Under Section 74 of the Indian Contract Act, 1872, when a party fails to fulfill its obligations
under the contract, the party complaining of the breach is entitled to the sum stipulated in the
contract.

2. The general principle of law is ex dolo mala non oritur actio, the court does not lend its aid
to a man who found his cause of action upon an immoral or an illegal act. 38 The guilty party
has no right of action on an unlawful contract. It is contended that the defendant does not have
any right to bring an action against the plaintiff for breach of contract as he exercised undue
influence by abusing his dominating position to obtain an unfair advantage over her. The
circumstances had rendered the plaintiff helpless and she entered into the agreement to save
her plunging career and her declining reputation.39

3. Clause XII of the agreement reads:40

“In case of breach of clauses VIII and IX, the breaching party (Ms. Tanushka) shall pay
liquidated damages amounting to Rs. 5,00,00,000 to Mr. Aditya.

Clause XII of the agreement stipulates liquidates damages amounting to Rs. 5,00,00,000 on a
breach by the plaintiff. It is submitted that the plaintiff had already honored her commitment
under Clause VIII by completing the shoot of the film “Rani Hirani Ki Bemani Kahani-
Chapter 1”.41

4. Hence, the plaintiff signed an agreement with the production house V-Series, as she had
already fulfilled her obligations and was thereby, not bound by Clause IX.42 The conduct of the
plaintiff is not in violation of the stipulations contained in the agreement between the parties
as the negative covenant was unenforceable and forbidden by law. The law forbids agreements
that restraint a person from exercising his lawful trade, profession, or business, and Clause IX
aimed to achieve that.

It is thus argued that the negative covenant in Clause IX (a) is contrary to Section 27 of the
Indian Contract Act, hence unlawful and void (b) unconscionable and harsh (c) was entered

38
AVTAR SINGH, CONTRACT AND SPECIAL RELIEF 338 (13th ed, 2022).
39
Moot Compromis: Para 8, Para 10 & Para 11.
40
Annexure A: Clause XII
41
Moot Compromis: Para 12
42
Moot Compromis: Para 13

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into under undue influence. Hence, the plaintiff did not act in breach of contract as the
terms imposed were unenforceable by law and hence, is not bound to pay damages for
breach of contract.

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 PRAYER

In light of the issues raised, arguments advanced, authorities cited, and pleadings made, the
plaintiff most humbly and respectfully prays that this Hon’ble Court may be pleased to:

1. Vitiate the contract due to the undue influence exercised.

2. Vitiate the contract due to the unlawfulness of the object, thereby rendering it void.
3. Pass any other order as it deems fit, in the interest of Justice, Equity, and Good
Conscience.

Sd/-

…………….

(Counsel for the Plaintiff)

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