Before the Hon’ble

Civil Court of Lucknow

PETITIO NER
M/S HIRANI TRADING CO.
V.

DEFENDANT
(M/S KANDELWAL ROADWAYS)

Memorandum on behalf of Defendant

 TABLE OF CONTENTS
1) List of Abbreviations
2. Index of Authorities
3. Statement of Jurisdiction
4. Statement of Facts
5. Issues Framed
6. Summary of Arguments
7. Arguments Advanced
8. Prayer

Memorandum on behalf of Defendant

 LIST OF ABBREVIATIONS

AIR -ALL INDIA REPORTER

SCC -SUPREME COURT CASES
GOVT. -GOVERNMENT
HON’BLE -HONOURABLE
NO. -NUMBER
ORS. -OTHERS
SC -SUPREME COURT
SCC -SUPREME COURT CASES
SCR -SUPREME COURT REPORTER
UOI -UNION OF INDIA
V. -VERSUS
& -And
Anr. -Another

Memorandum on behalf of Defendant

 INDEX OF AUTHORITIES
STATUTES
1) The Indian Contract Act, 1872
2) The Evidence Act,1872
3) Code of Civil Procedure, 1908

BOOKS

1)Contract And Specific relief, Avtar Singh-12th Edition

2)Principles of the Law of Evidence, Avtar Singh,1987
3)The Law of Evidence, Chief Justice M Monir, 11th Edition
4)The Law of Evidence, Ratanlal & Dhirajlal, 27th Edition

INTERNET LINKS

1) www.indiankanoon.com
2) www.barandbench.com
3) www.scc.online.com
4)www.casemine.com
5)https://districts.ecourts.govt.in

Memorandum on behalf of Defendant

 CASES
1) Charles R. Cooper v. F.W. Slade, (1857-59) 6 HLC 746.
2) Pickup v. Thames Insurance Co.(1878) 3 Q.B.D. 594
3) Kiran Singh v. Chaman Paswan(AIR 1954 SC 340)
4) Rishi Kesh Singh v. State of Bihar(AIR 1970 All 51)
5) Hakam Singh v. Gamon (India) Ltd.(1971 AIR 740) 
6) Nagindas Ramdas Vs. Dalpatram Icharam @ Brijram, AIR 1974 SC 471:
(1974) 2 SCJ 21: 1974 (1) SCC 242
7) Narayan Ganesh Dastane V. Suchitra Ganesh Dastane(1975 air 1534)
8) Thiru John Vs. Returning Officer AIR 1977 Supreme Court 1724
9) Harshad Chiman Lal Modi v. DLF Univeral and Anr(2015).-

Memorandum on behalf of Defendant

 STATEMENT OF JURISICTION
The hon’ble court has no jurisdiction to entertain the present suit filed by the plaintiff.

Memorandum on behalf of Defendant

 STATEMENT OF FACTS
1)M/s Hirani Trading company(plaintiff), a dealer in almonds enters into a contract with
the defendant for 1000kg of almonds at its subordinate office in Lucknow to be delivered
in Delhi.

2)The defendant is a company by name of Kandelwal Roadways carrying on business of

carrier and transporting goods on hire. The principal office of the company is in Bhopal
and branch offices in other places including Lucknow.

3)The present suit is instituted by the councilor of plaintiff company authorized by board
of company. The goods got destroyed in fire after they were transported and stored in the
godown at Delhi. The consignee refused to take delivery.

4)The present suit has been filed in the court of civil judge Lucknow within whose
territorial jurisdiction the subordinate office of defendant is situated and the plaintiff
alleges negligence and carelessness on the part of staff of the defendant.

5)The councilor on behalf of the defendant averred the jurisdiction of the court at
Lucknow owing to the clause in the contract which stated that the courts at Bhopal would
have the jurisdiction to try any suit pertaining to the matter. The councilor also denied
any negligence or carelessness on part of defendant.

6)The councilor for plaintiff got examined as PW-1 and reiterated his averments in the
plaint and also produced a copy of contract as EX.CW1 A entered between plaintiff and
defendant. Pw-1 also relied upon the document exhibit EX.PW 1v to prove the price of
1000 kg almonds.

7)The plaintiff also alleged that a similar incident previously took place in which
defendant was held liable and also produced the record of previous case which was
exhibited as Ex.pw 1c. PW-1 remained uncontroverted in his cross- examination.

8)The councilor of defendant got examined as DW-1 and relied upon the contract entered
between the plaintiff and the defendant. DW-1 also deposed that proper care was taken on
part of the staff of defendant and it was the act of some third party for which defendant
company cannot be held liable. However, defendant admitted that previously the
company was held liable for a similar incident.

Memorandum on behalf of Defendant

 ISSUES FRAMED
1) Whether the present court has jurisdiction to try the suit?
2) Whether the plaintiff was successful in establishing the case and proving it by the
rule of preponderance of probabilities?

Memorandum on behalf of Defendant

 SUMMARY OF ARGUMENTS
1-The jurisdiction of the court at Lucknow is barred as per the agreement and thus this
case falls out of the purview of the courts of Lucknow.

2-The plaintiff has miserably failed in establishing any doubt in the mind of the court as
per the present case. The allegations of carelessness and negligence are baseless and
without any evidence which plaintiff was required to prove as per the rule of
preponderance of probabilities.

Memorandum on behalf of Defendant

 ARGUMENTS ADVANCED
1) The defendant humbly pleads before the hon’ble court of justice that the law
under section 28 of the ICA,1872 clearly mandates and states that agreement in
restraint of legal proceedings is void.

Agreements in restraint of legal proceedings, void. — [Every agreement,—

(a) by which any party thereto is restricted absolutely from enforcing his rights under or
in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or
which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto,
from any liability, under or in respect of any contract on the expiry of a specified period
so as to restrict any party from enforcing his rights, is void to that extent.]
1) Exception 1.— Saving of contract to refer to arbitration dispute that may arise. —
This section shall not render illegal a contract, by which two or more persons
agree that any dispute which may arise between them in respect of any subject or
class of subjects shall be referred to arbitration, and that only the amount awarded
in such arbitration shall be recoverable in respect of the dispute so referred. 
2) Exception 2.— Saving of contract to refer questions that have already arisen. —
Nor shall this section render illegal any contract in writing, by which two or more
persons agree to refer to arbitration any question between them which has already
arisen, or affect any provision of any law in force for the time being as to
references to arbitration. 

The judgement in Kiran Singh v. Chaman Paswan(AIR 1954 SC 340) clearly

stated that it is a fundamental ;principle that a decree passed by a court without
jurisdiction is a nullity, and that its invalidity could be setup wherever and
whenever it is sought to be enforced or relied upon, even at the stage of execution
and even in collateral proceedings. A defect of jurisdiction strikes at the very
authority of the Court to pass any decree, and such a defect cannot be cured even
by consent of parties.

2)The jurisdiction in the present case as per section

3)The present case however states that the agreement entered into between the
parties clearly ousts the jurisdiction of the courts at Lucknow and confers
jurisdiction at Bhopal. The case falls under the exceptional clause of section 28,
ICA and thus the agreement herein is valid in the eyes of law.

In the landmark case of Harshad Chiman Lal Modi v. DLF Univeral and
Anr(2015).-

The court quoted Halsbury’s Laws of England, to state that:

“Where, by reason of any limitation imposed by statute, charter or commission, a court
is without jurisdiction to entertain any particular claim or matter, neither the
acquiescence nor the express consent of the parties can confer jurisdiction upon the
court, nor can consent give a court jurisdiction if a condition which goes to the
jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over
the particular subject matter of the claim or the particular parties and the only
objection is whether, in the circumstances of the case, the court ought to exercise
jurisdiction, the parties may agree to give jurisdiction in their particular case; or a
defendant by entering an appearance without protest, or by taking steps in the
proceedings, may waive his right to object to the court taking cognizance of the
proceedings. No appearance or answer, however, can give jurisdiction to a limited
court, nor can a private individual impose on a judge the jurisdiction or duty to
adjudicate on a matter. A statute limiting the jurisdiction of a court may contain
provisions enabling the parties to extend the jurisdiction by consent.”

Before more than thirty years, such question came up for consideration before
this Court in Hakam Singh v. Gamon (India) Ltd.(1971 AIR 740) It was the first
leading decision of the Supreme Court on this issue. In this case, a contract was
entered into by the parties for construction of work. The agreement provided that
notwithstanding where the work was to be executed, the contract ‘shall be
deemed to have been entered into at Bombay’ and Bombay Court ‘alone shall
have jurisdiction to adjudicate’ the dispute between the parties. The key issue
question before the Court was whether the court at Bombay alone had
jurisdiction to resolve such dispute.

Considering the provisions of the CPC as also of the Contract Act, the Apex
Court held:

“By Clause 13 of the agreement it was expressly stipulated between the parties
that the contract shall be deemed to have been entered into by the parties
concerned in the city of Bombay. In any event the respondents have their
principal office in Bombay and they were liable in respect of a cause of action
arising under the terms of the tender to be sued in the courts of Bombay. It is not
open to the parties by agreement to confer by their agreement jurisdiction on a
court which it does not possess under the Code. But where two courts or more
have under the Code of Civil Procedure jurisdiction to try a suit or
proceeding on agreement between the parties that the dispute between
them shall be tried in one of such courts is not contrary to public policy.
Such an agreement does not contravene Section 28 of the Contract Act.”

Thus, whereby the agreement as herein produced by the defendant asserts

and states the jurisdiction to be vested in courts of Bhopal-this in no
circumstances can nullify the agreement and vest the jurisdiction in courts
of Lucknow. Thereby, barring the cause of action of the plaintiff.
Thus, it is a humble request on behalf of the defendant that an application is being moved
by the defendant under Order 7 Rule 10A of CPC to return the plaint to plaintiff for lack
of jurisdiction at the court at Lucknow. The primary concern and question of jurisdiction
requires to be clarified in this regard.

Rule of burden of Proof

4)The rule pertaining to burden of proof as per the Indian Evidence act, 1872 states-

Section 101 states that “Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that
those facts exist. When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.”

Section 102 states that “The burden of proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on either side.”

Section 103 states that, “Burden of proof as to particular fact -The burden of proof as
to any particular fact lies on that person who wishes the Court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any
particular person.”

5)The rules above clearly highlight the importance of the plaintiff to prove the case for
claiming any benefit/remedy. The difference though lies in the degree of standard of
proof. The same being higher in criminal cases(beyond reasonable doubt)
Though, the standard of proof is less in civil cases(preponderance of probabilities) yet the
basic burden of proving the case on behalf of plaintiff is not discharged.

6)The plaintiff has the burden of proof, which means that the plaintiff must convince the
court that the facts are rightfully presented and there are grounds for the case. If the
plaintiff cannot convince the court, that the facts and allegations are more likely to be true
than not, the defendant is likely to prevail even if he presents no defense at all.

7)The burden of proof never shifts but always remains constant as it should not be
confused with burden of adducing evidence-Pickup v. Thames Insurance Co.(1878) 3
Q.B.D. 594

In Narayan Ganesh Dastane V. Suchitra Ganesh Dastane(1975 air 1534)-It was held
that section 3 of The Evidence Act, 1872 states that a fact is claimed to be proved when
the court either believes it to exist or considers its existence so probable that a prudent
man ought under circumstances of the actual case to work the supposition that it exists.
The belief about the existence of a proven fact that thus be founded is on balance of
probabilities. A prudent man faced with conflicting probabilities concerning a fact-
situation will act on the supposition that the actual fact exists, if by not weighing the
varied probabilities he finds that the preponderance is in favour of the existence of the
actual fact.

8)In the landmark case of Rishi Kesh Singh v. State of Bihar(AIR 1970 All 51)

The hon’ble court explained the rule of preponderance of probabilities

Our attention was drawn to the definition of "preponderance of evidence" as in vogue in

America. In American Jurisprudence. 2nd Edition, Volume 30, the expression has been
defined in Article 1164. In America the term means "the weight, credit and value of the
aggregate evidence on either side, and is usually considered to be synonymous with the
term greater weight of the evidence", or "greater weight of the credible evidence". It is a
phrase which, in the last analysis, means probability of the truth. To be satisfied, certain,
or convinced is a much higher test than the test of "preponderance of evidence".

The phrase "preponderance of probability" appears to have been taken from Charles R.
Cooper v. F.W. Slade, (1857-59) 6 HLC 746. The observations made therein make it
clear that what "preponderance of probability" means is "more probable and rational view
of the case", not necessarily as certain as the pleading should be.

Preponderance", literally interpreted, means nothing more than an outweighing in the

process of balancing however slight may be the tilt of the balance or the preponderance.

9)The rule laid down by law thus makes it clear to create a doubt in order to claim the
remedy. Merely stating facts without any proof on behalf of plaintiff clearly states that
without adducing any evidence of negligence and carelessness on behalf of the defendant
cannot prove the case of plaintiff. The previous act of the company has already been
admitted by the defendant company. As per the law of admission-

No fact need to be proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings. Provided that the court may, in its discretion,
require the facts admitted to be proved otherwise than by such admissions.

Section 58 provides that once the facts are admitted they need not be proved. Hence the
admissions may be made in the pleading or at any stage of the suit. Once the admission is
made it is binding on the person who has made such admission. In Thiru John Vs.
Returning Officer AIR 1977 Supreme Court 1724. Hon’ble Supreme Court held that it is
well settled that a party’s admission as stated in Section 17 to 21 of the Evidence Act is
substantive evidence- proprio vigare- An admission clearly or unequivocally made, is the
best evidence, though not conclusive it shifts the burden. The proviso of section 58
corresponds to order 8 Rule 5 of Civil Procedure Code which says that a fact not
specifically denied in written statement shall be taken to be admitted. But at the same
time the Court may it its discretion may require such fact to be proved and established.
Hon’ble Supreme Court while referring to its earlier ruling in Nagindas Ramdas Vs.
Dalpatram Icharam @ Brijram, AIR 1974 SC 471: (1974) 2 SCJ 21: 1974 (1) SCC 242
held that admissions in pleadings are judicial admissions under section 58 of the
Evidence Act. They are made by parties or their agents at or before the hearing of a case
and stand on a higher footing than evidentiary admissions. Former class of admissions are
fully binding on the party that makes them and constitute a waiver of proofs.

10)The law on admission no doubt has been held to not be proved in regarding happening
of a similar incident in the past itself is not enough on the part of the plaintiff to create a
doubt in the mind of the court. The rule under S. 15 of the Evidence Act, 1872 states-

Facts bearing on question whether act was accidental or intentional.—When there is a

question whether an act was accidental or intentional, [or done with a particular
knowledge or intention,] the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned, is relevant.

The act of one similar occurrence of the same incident in the past herein is not justified to
prove the case of the plaintiff where by rule of establishing the prima facie case of
plaintiff fails.

The mere fact of admission thus does not discharge the plaintiff of its primary duty of
proving the allegation of negligence and carelessness. The reasonable duty of taking care
of goods on part of the defendant as a primary role of the bailee as per the ICA,1872 is –

151. Care to be taken by bailee—In all cases of bailment the bailee is bound to take as
much care of the goods bailed to him as a man of ordinary prudence would, under similar
circumstances, take of his own goods of the same bulk, quality and value as the goods
bailed.

As per the present case, the foremost duty of the defendant was to completely take care of
the goods and it was done by keeping the goods safely in the warehouse. The act of any
third party or force majeure however cannot make the defendant liable when complete
care was taken.

11)Thus, it is a humble submission before the hon’ble court of justice to consider the
foremost matter of jurisdiction and the failure on part of plaintiff t prove the case.

Memorandum on behalf of Defendant

 PRAYER
Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, this Hon’ble court may be pleased to:
Find that:
1)The present court lacks jurisdiction to entertain the suit
2)The remedy claimed by the plaintiff could not be availed as the case is based on
surmises and conjectures.

Any other order which it may deem fit in the interest of justice, equity and good
conscience. All of which is respectfully submitted.

Memorandum on behalf of Defendant