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All Delhi USLLS First Year Students Moot Court

Competition 2015

IN THE HONBLE DISTRICT COURT OF


DWARKA, NEW DELHI

MR. FOSTER.PLAINTIFF

VERSUS

QUICKMART.COM. DEFENDANT NO. 1

MR. RATTAN DEFENDANT NO.2

ON SUBMISSION TO THE COURT OF CIVIL JUDGE, DWARKA DISTRICT


COURTS

MOST RESPECTFULLY SUBMITTED

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Competition 2015

TABLE OF CONTENTS
I

INDEX OF AUTHORITIES .3-6

II

STATEMENT OF JURISDICTION.7

III

STATEMENT OF FACTS.8-9

IV

STATEMENT OF ISSUES..10

SUMMARY OF ISSUES..11

VI
ARGUMENTS ADVANCED.12-22
1 WHETHER THERE IS BREACH OF CONTRACT? ...12-16
1

THAT THE CONTRACT IS VALID

THAT THE CONTRACT HAS BEEN BREACHED

2 WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE


AGENT?.................................................................................................................17-19
1

THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL

THAT THE ACTS OF THE AGENT WERE AUTHORIZED

WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN


ONLY CLAIM DAMAGES? ..............................................................................20-22

THAT THE PLAINTIFF CAN REPUDIATE THE CONTRACT

VII

PRAYER23

INDEX OF AUTHORITIES
TABLE OF ABBREVATIONS AND SYMBOLS
S.NO.

ABBREVIATION

DEFINITION

1.

AI

Artificial Intelligence

2.

AIR

All India Reporter

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Competition 2015
3.

All

Allahabad

4.

AP

Andhra Pradesh

5.

Art.

Article

6.

Bom

Bombay

7.

Cal

Calcutta

8.

Ch

Chapter

9.

Co.

Company

10.

Ed.

Edition

11.

Govt.

Government

12.

HC

The High Court

13.

Honble

Honorable

14.

ICA

Indian Contract Act

15.

i.e.

That is

16.

Ker

Kerala

17.

Ltd.

Limited

18.

Mad

Madras

19.

No.

Number

20.

Ors.

Others

21.

p.

Page

22.

Para

Paragraph

23.

Pvt.

Private

24.

SC

The Supreme Court of India

25.

&

And

26.

v.

Versus

CASE LAWS
S.NO.
1.
2.
3.

PAGE

FOOTNOT

NO.

E NO.

17

17

AIR 1960 Ker 176

20

33

AIR 1998 Del LT 186

13

CASE

CITATION

Atlantic Mutual

(1879) 16 Chd 474, 481 (CA)

Insurance Co. v. Huth


Anthony Thomas v.
Ayuppuni Mani
A.L. Mustaneer
Establishment v. Varuna

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Competition 2015
Overseas (P) Ltd
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

15.

16.
17.
18.

Ajit Singh V. Kakbhir


Singh
Atamal Ramoomal v.
Deepchand Kessurmal
Anant Das v. Ashburner
& Co.
Babulal v. Jagat Narain
Benaras Bank Ltd v.
Prem and Co.
Bensten v. Taylor
Bhaurao Dagdu v. State
of Maharashtra
Boistrub Charan v.
Wooma Charm
Baivijli v. Nansa Nagae
Chella Ballayya v.
Kanuparthi Subbayya
Coringa Oil Co v.
Keogler
Chowgule& Co. Ltd v.
Rizvi Estates and Houses
(P) Ltd
Denzyl Winston Ferries v.
Abdul Jaleel
Dula Raj v. Akhey Raj
Electrosteel Castings Ltd
v. Saw Pipes Ltd

AIR 1992 P & H 193

13

14

AIR (1876)

14

11

AIR 1952 VP 51

18

24

AIR 1937 All 255

18

25

(1893) 2 QB 274 P. 281

20

32

AIR 2005 SC 3330

13

(1889) 16 Cal 436

13

AIR1885 10 Bom 152

14

AIR 1918 Mad 24, 44 IC 813.

18

26

(1876) 1 Cal 466, 468-69

14

11

AIR1997 Bom CR 468

14

14

AIR 1992 AP 246

13

AIR 1952 Ajm 38

14

(2005) 1 CHN 612 (Cal)

14

10

AIR 1939 Sind 33

19.

Gopal Lal v. Babu Lal

AIR 2004 CLT 161 Raj

13

20.

Gopalrao v. Kallappa

AIR 1901 3Bom LR 164

14

21.

Gherulal v. Mahadeo

AIR 1959 2SCA 342

14

13

AIR 1916 Lower Burma 51

14

10

18

25

AIR 1963 Cal 454

18

26

AIR 1959 SC 781

13

AIR 1979 Cal 524

14

10

AIR 1967 All 308, 311

15

16

22.
23.

24.

Harikrishna Pilai v.
Authilachmy Ammal.
Jessop and Co Ltd v.

AIR 1931 Cal 423

Dist Board of Monghyr


Kamal Singh Dugar v.
Corporated Engineers Pvt
Ltd
Kateshwar Mittal Kamath

25.

26.
27.

v. K. Rangappa Baliga
and Co.
Khemchand Manekchand
v. Dayaldas Bassarmal
Loon Karan v. John and

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Competition 2015
Co.
28.

Laxmanlal v. Mulshankar

AIR 1908 32 Bom 449

14

29.

Laidlaw v. Organ,

15 U.S. 178 (1817)

15

15

(1881) 5 Bom 584

18

21

AIR 1871 9 Bengal LR 460

14

11

91 IC 622

14

10

14

11

13

17

18

19

27

(1915) 42 Cal 742

14

12

ILR 1942 All 810

14

AIR 1998 1Raj LR 523

14

(1913) 1 KB 103

17

17

AIR 1937 Pat 526

18

23

AIR 1960 Mad. 520

21

36

AIR 2004 2CTC 259 TN

14

AIR 1889 Punj Rec 1

13

(1941) AC 251

14

AIR 1995 2Punj LR 257

14

12

AIR 2002 Cal 144

14

14

(1900) 1QB513

21

35

Mackinnon Mackenzie
30.

31.
32.

33.

34.
35.
36.
37.
38.

and Co. v. Long Moir


and Co.
Munshi Amir Ali v.
InderjitKoer
Ma Ywest v. Chin Mutual
Life Insurance Co.
Ningawwa v. Byrappa
Shiddappa Hirekurbar
Nur Ali Dubash v. Abdul

AIR 1968 SC 956, 958: (1968)


2 SCR 797, 800-1: (1968) 2
SCA
ILR (1892) 19 Cal 765, 773

Ali
Prager v. Blatspiel, Stamp

(1924) 1 KB 566, (1924) All

and Heacock Ltd

ER Rep 524

Ram Pertab v. G Marshall


Ram Sarup v.
BansiMandar
Rao Rani v. Gulab Rani,

ILR (1899) 26 Cal 701 (PC)

Raj Kumar Tajendra


39.

40.
41.
42.
43.
44.
45.
46.
47.
48.

Singh v. DrSital Raj


Mehta
Sims and Co. v. Midland
Rly Co.
Suga Kaur v. Firm
BrijrajRamniwas
Sorabji M. Joshi & Co. v.
Ismail
Santha kumari v. Lakshmi
Ammal
Sunder Singh v. Kishen
Chand
Scammel v. Ousten
Sharam Vir Kalra v.
Ravinder Kumar
Union Bank of India v.
Vithal Bhai,
Varley v. Whipp

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Competition 2015
49.

Wallis v. Pratt

(1911) A.C. 394

20

30

STATEMENT OF JURISDICTION
The learned District Court of Dwarka exercises jurisdiction to hear and
adjudicate the present suit under section 9 of the Code of Civil Procedure,
1908.
The provision under which the Plaintiff has approached this Honble Court and
to which the Plaintiff humbly submit is read herein under as:

Section 9 of the Code of Civil Procedure, 1908 states that

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Competition 2015
The courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.
{Explanation 1}- A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding that
such right may depend entirely on the decisions of questions as to
religious rites or ceremonies.
{Explanation 2}- For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation 1 or whether or not such office is attached to a
particular place.

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Competition 2015

STATEMENT OF FACTS
I
REQUIRMENT OF LAPTOP
Mr. Foster (aged 16 yrs.) is the student of a multi-media course in NCT institute a
premiere institute of computer education. The Course prescribed the requirement for
laptop. The Institute specified the configuration/specifications for laptop to pursue such
course.

II
PLACING THE ORDER

Mr. Foster (for pursuing such course) traced an e-commerce website on the internet
named as quickmart.com, a private company renowned as a leading destination for online
shopping in India which deals with sale of fresh electronic computer items like laptop,
desktop, printers etc. He saw different models of laptop on such e-commerce website and
placed an order thereafter for the laptop that suits his requirement prescribed by the
Institute. The order was based on Cash on-Delivery system
III
CONFUSION IN TRANSACTION
The company at the time of giving the confirmation order delivered the description of the
other laptop model sent through companys email address to Mr. Fosters email address.
In addition, there was a telephonic conversation between a companys executive named as
Mr. Gopal and Mr. Foster regarding the consent of buying and delivering the laptop at the
desired destination. As a matter of practice and in order to avoid confusion in the contract,
the entire conversation was recorded by the company. Thereafter, the laptop was delivered
to him in a couple of days at his desired destination through Speedy Class Couriers and he
made the payment accordingly. While checking the configuration of the laptop, he found
that it was a mismatch from what he had ordered, and therefore, defeating the purpose for
which he wanted to have the laptop i.e. rendering the laptop unfit for pursuing his
computer course.

IV
COMPLAINT BY MR. FOSTER

Mr. Foster lodged a complaint on the customer care of the website named as
quickmart.com and narrated the whole facts. The customer care department of such ecommerce website, after a few days, called Mr. Foster that after the investigation they
found that the order and the product delivered are of the same configuration. In addition
to this, the e-commerce website named as quickmart.com said that they will look into the
matter again and get back as soon as possible.

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Competition 2015
V
RESPONSE BY THE COMPANY
Mr. Foster received no communication in this regard within a reasonable time period from
the company which has launched the leading e-commerce website named as
quickmart.com. Mr. Foster called the customer care again but all he got was an automated
computer generated message that the problem is resolved.
VI
VISIT TO COMPANYS OFFICE
Mr. Foster went to the companys office address for further enquiry. He was told by the
company that since quickmart.com outsources orders from private retailers as Agents of
the company, and therefore, the retailers are the ones who dispatch the products. The
company has nothing to do with this matter. After receiving the retailers address, Mr.
Foster went to the retailers office, where the retailer Mr. Rattan as Agent of the company
refused to speak to him by telling him that he was never his customer and he has sent
whatever was asked to him.
VII
PROBLEM IN THE PRODUCT AND WARRANTY
Furthermore, on the opening of the product, he finds that the product was a defective one
and so he called the service centre of the laptop company who said that since the product
was bought through a website, and therefore, that website shall provide the warranty. On
going back to quickmart.com on this issue, he finds that the details regarding his buying
of laptop is totally erased by the company. Mr. Foster felt disheartened and disappointed.
VIII
VISIT TO THE RETAILER AND THE PROMISE MADE BY HIM
Mr. Foster further went to the retailer and narrated the whole story and declared his
intention to file a suit against the company. By observing the pathetic and depressed
situation of Mr. Foster, the retailer as Agent personally assured him by providing written
acknowledgement on the letter pad of the company admitting that such laptop will be
replaced within 10 days and Mr. Foster will be having no complaint against the company
in the near future. Mr. Foster did not find any solution in this regard even after one month.
Furthermore, he gave notice to the Agent as well as the company regarding doing the
needful in this regard within another 15 days but no reply was given by any of them on
this matter. In this context, Mr. Foster finally decides to go to the Civil Court for seeking
remedy in this regard.

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Competition 2015

STATEMENT OF ISSUES
1. WHETHER THERE IS BREACH OF CONTRACT?
1.1

THAT THE CONTRACT IS VALID

1.2

THAT

THE

CONTRACT

HAS

BEEN

BREACHED

2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE


AGENT?
2.1

THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL

2.2

THAT

THE

ACTS

OF

THE

AGENT

WERE

AUTHORIZED

3. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN


ONLY CLAIM DAMAGES?
3.1

THAT THE PLAINTIFF CAN REPUDIATE THE CONTRACT

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Competition 2015

SUMMARY OF ARGUMENTS
1. THAT THE CONTRACT IS VALID AND HAS BEEN BREACHED
The contract between the Plaintiff and the Defendant is a valid Agreement with a lawful
consideration and free consent, and it has not been expressly declared to be void. Since it
meets all the essentials mentioned under ICA 1872, the contract stands valid. However,
the contract is breached by the Defendants because of failure of fulfillment of the
promise made by them. The contract is thus discharged by breach.

2. THAT THE AGENT ACTS ON BEHALF OF HIS PRINCIPAL

According to Section 226 of the ICA, 1872 contracts entered into through an Agent, and
obligations arising from acts done by an Agent, may be enforced in the same manner, and
will have the same legal consequences as if the contracts had been entered into the acts
done by the Principal in person. That means the Principal is bound by the acts of the
Agent.

3. THAT PLAINTIFF CAN REPUDIATE THE CONTRACT.


The delivery of the laptop with the particular configurations required by the Plaintiff was
the main purpose of the contract. The stipulation in question is a condition and not a
warranty. Therefore, the Plaintiff can repudiate the contract and also claim losses from
Defendant No.1.

ARGUMENTS ADVANCED
1. WHETHER THERE IS BREACH OF CONTRACT?

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It is submitted that the Defendant No.1 is liable for breach of contract in the instant case.
This submission of the Plaintiff is twofold:
1.1 THAT THE CONTRACT IS VALID.
It is submitted that Section 10 of the ICA, 1872statesAll agreements are contracts if they
are made by the free consent of the parties competent to contract, for a lawful
consideration and with lawful object, and are not hereby expressly declared to be
void.The contract between the Plaintiff and Defendant No.1 stands valid as it meets all
the essentials as prescribed under the Act to form a contract.
1) AGREEMENT: Section 2(e) states every promise and every set of promises forming the
consideration for each other is an agreement.
A promise is a result of a proposal by one person and its acceptance by the other. A
proposal is defined under section 2(a) in the ICA, 1872 as follows:
When one person signifies to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to such act or abstinence, he is
said to make a proposal.
In the instant case, When the Plaintiff selects the laptop on the website quickmart.com it
can only be considered as invitation to treat and not a proposal. The Proposal is made by
Defendant1 via telephonic conversation,.
Whereas, acceptance is defined under section 2(b) as:
When the person to whom the proposal is made signifies his assent thereto, the proposal
is said to be accepted.
The proposal is accepted by the company through a telephonic conversation between the
Plaintiff and the Defendant No.1.
Therefore, it is a valid Agreement between the parties.
2) FREE CONSENT: Consent under section 13 of the ICA, 1872is defined as two or more
persons are said to be consent when they agree upon the same thing in the same sense.
In the instant case, both the parties agree upon the same thing in the same sense i.e. the
laptop selected by the Plaintiff initially was the same as and in the same sense. The
telephonic conversation between the Plaintiff and the Defendant No.1 was recorded
signifying the same, which was later erased by Defendant No.1.
One of the essentials of a valid contract mentioned in Section 10 is that the parties should
enter into the contract with their free consent. According to Section 14, consent is said to
be free when it is not caused by coercion, undue influence, fraud or misrepresentation and
mistake. In the instant case, the consent is not free and is being caused by fraud.
According to Section 17 Fraud means and includes any of the following acts committed
by a party to a contract, or with his connivance, or by his Agent, with intent to deceive

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Competition 2015
another party thereto or his Agent, or to induce him to enter into the contract. Fraud is
proved when it is shown that a false representation has been made:
1. Knowingly, or
2. Without belief in its truth, or
3. Recklessly careless whether it be true or false
In the instant case, Defendant No.1 induced the Plaintiff to enter into a contract by
fraudulent means. Mala fide is the essence of Fraud and it follows, therefore, that the
person making a false representation is not guilty of fraud if he honestly believes in its
truth. Thus intentional misrepresentation is the essence of fraud.

However, it has been

observed by the Supreme Court that If it can be shown that the party defrauded has at
any time after knowledge of the fraud either by express words or by unequivocal acts
affirmed the contract, his election is determined forever. The part defrauded may keep
the question open so long as he does nothing to affirm the contract. 2 The provision is not
applicable to a concluded contract when the party challenging it had voluntarily chosen to
implement it knowing all the relevant facts and circumstances.
In the instant case, even after knowing the fraud, the Plaintiff did not wish to declare the
contract void and wanted to go through with it. Thus, the contract stands valid.
3) COMPETENT TO CONTRACT: Section 11 of the ICA, 1872 states Every person is
competent to contract who is of the age of majority according to law to which he is
subject and who is of sound mind, and is not disqualified from contracting by any law to
which he is subject
The Plaintiff is a minor and thus he is incompetent to contract, however, there is an
exception to this law which states that a minor can enter into Contracts of Necessaries.
According to Section 68 of the Indian Contract Act 1872, Necessaries supplied to minor
should be suited to his condition in life. It does not mean bare necessities of the life but
means such things may be necessary to maintain a person according to his condition in
life. In Kunwarlal v. Surajmal3, it has been held that the house given to a minor on rent for
living and continuing his studies is deemed to be supply of necessaries suited to the
minors condition in life. Similarly, The Plaintiff can purchase a laptop as required by his
course and the contract he enters into cannot be held void.
Neither the Plaintiff nor the Defendant No.1 are of unsound mind or are disqualified by
the law to contract. Hence, the both the parties are competent to contract.

1 A.L. Mustaneer Establishment v. Varuna Overseas (P) Ltd, AIR1998 72Del LT 186; Santha kumara
v. Lakshmiammal, AIR 2004 2CTC 259 TN; Bhaurao Dagdu v. State of Maharashtra AIR2005 7 SCC
605
2 Ningawwa v. Byrappa Shiddappa Hirekurbar, AIR 1968 SC 956, 958: 1968 2 SCR 797,800-1: 1968
2 SCA 97
3 AIR 1982 Cal 562
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4)

LAWFUL CONSIDERATION: Consideration in the ICA, 1872 is defined

under Section 2(d) as:When at the desire of the promisor, the promisee or any other
person has done or abstained from doing, or does or abstains from doing, or promises
to do or to abstain from doing, something, such act or abstinence or promise is called
consideration.
The consideration or object to an Agreement is lawful, unless:i) It is forbidden by law4
ii) Is of such nature that, if permitted, it would defeat the provisions of any law 5, or is
fraudulent6; or
iii) Involves or implies, injury to the person of another7;
iv) The court regards it as immoral, or opposed to public policy8
In each of these cases, the consideration or object of an Agreement is said to be unlawful.
Every Agreement of which the object or consideration is unlawful is void.
In the instant case, the consideration Cash on Delivery is to be considered past
consideration, which constitutes as a valid consideration as per the ICA, 1872
5)

NOT EXPRESSLY DECLARED TO BE VOID: According to section 2(g) Of

ICA, 1872 An Agreement not enforceable by law is said to be void.


Void Agreement is an Agreement in which consideration and objects are unlawful in part 9,
Agreement without consideration, and Agreement in restraint of marriage 10, Agreement in

4Boistrub Charan v. Wooma Charm (1889) 16 Cal 436; Kateshwar Mittal Kamath v. K. Rangappa
Baliga and Co., AIR 1959 SC 781: (1969) 2 SCA 342; Ajit Singh v. Kakbhir Singh, AIR 1992 P & H
193; Denzyl Winston Ferries v. Abdul Jaleel, AIR 1992 AP 246: (1992) 2 Andh LT 144; Raj Kumar
Tajendra Singh v. DrSital Raj Mehta, AIR 1998 1 Raj LR 523; Gopal Lal v. BabuLal, AIR 2004 4 CLT
161 Raj DB.
5Sunder Singh v. Kishen Chand, AIR 1889 Punj Rec 1; Dula Raj v. Akhey Raj, AIR 1952 Ajm
38;Laxmanlal v.Mulshankar AIR 1908 32Bom 449
6Atamal Ramooma v. Deepchand Kessurmal, AIR 1939 Sind 33
7 Ram Sarup v. BansiMandar, AIR 1915 42 Cal 742
8Baivijli v. Nansa Nagae AIR 1885 10 Bom 152
9Gopalrao v. Kallappa AIR 1901 3 Bom LR 164
10 Rao Rani v. Gulab Rani, ILR 1942 All 810
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restraint of trade,11Agreement in restraint to legal proceedings12, Unmeaning agreements13,
Wagering Agreements14 and Agreement to do impossible acts. In the instant case, the
Agreement is that a product will be delivered to the Plaintiff by the Defendants for lawful
consideration and this Agreement is not any of the above stated agreements. Thus this
Agreement stands valid.
1.2 THAT THE CONTRACT HAS BEEN BREACHED.
A breach of contract occurs when a party thereto renounces his liability under it, or by
his own act makes it impossible that he should perform his obligations under it or totally
or partially fails to perform such obligations.15
1. In the instant case, the Defendant No.1 send a product to the Plaintiff which was not
requested by him. Thus the contract is breached by the Defendants side. Section 73 states
that When a contract has been broken, the party who suffers by such breach is entitled to
receive, from the party who has broken the contract, compensation for any loss or
damage cause to him thereby, which naturally arose in the usual course of things from
such breach, or which the parties knew, when they made the contract, to be likely to result
from the breach of it.
The principal of Caveat Emptor means that the buyer alone is responsible for checking
the quality and suitability of goods before a purchase is made. 16 However, this principal
applies to the cases where the buyer makes the selection the product on their own. Thus,
when the Plaintiff selects the model of the laptop on his own, the principal of Caveat
Emptor is applicable, but since the Defendant No.1 selected a different product altogether
and send the confirmation of this mentioned product which was not selected by the
Plaintiff, Caveat Emptor stands invalid.

11Electrosteel Castings Ltd v. Saw Pipes Ltd, (2005) 1 CHN 612 (Cal);Khemchand Manekchand v.
Dayaldas Bassarmal ;Mohammed v. Ona Mohd Ebrahim ,AIR 1922 Upper Burma 9; Harikrishna Pilai
v. Authilachmy Ammal. AIR 1916 Lower Burma 51 ; Nur Ali Dubash v. Abdul Ali, ILR (1892) 19 Cal
765, 773
12Coringa Oil Co v. Keogler, (1876) 1 Cal 466, 468-69 ; Munshi Amir Ali v. Inderjit Koer, AIR 1871
9 Bengal LR 460 ; Anant Das v. Ashburner & Co, AIR 1876; Ma Ywest v. Chin Mutual Life
Insurance Co Ltd, 91 IC 622
13Scammel v .Ousten, (1941) AC 251
14Gherulal v. Mahadeo, AIR 1959 2 SCA 342
15Chowgule & Co. Ltd V. Rizvi Estates and Houses (P) Ltd, AIR 1997 4 Bom CR 468; Sharam
VirKalra v. Ravinder Kumar, AIR 1995 2 Punj LR 257; Union Bank of India v. VithalBhai, AIR 2002
Cal 144
16Laidlaw v. Organ, 15 U.S. 178 (1817)
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2. After a complaint is lodged by the Plaintiff on the customer care of the Defendant No.1
website, the company conducts an unreasonable investigation regarding the matter. After a
few days, the Plaintiff is informed that the product delivered to him is of the same
configuration as requested by him. In addition to this, the e- commerce website of the
Defendant No.1 said that they will look into the matter again and get back as soon as
possible. No communication regarding this matter is received by the Plaintiff within a
reasonable period of time. After the Plaintiff tries to communicate again, he receives an
electronic message conveying that his problem is solved which is not the case in reality.
All of this again exhibits the companys mala fide, as the company tries to sway away
with the Plaintiff without resolving his issue and tackling the real problem. The automated
message also signifies that the company tries to avoid the Plaintiff.
3. After the Plaintiff is denied warranty at the service center at the premise that warranty is
not applicable by the service center on the products sold online. The Plaintiff visited the
website of the company and saw that all the data of his purchase is erased by the
company. Again, through their acts the company shows mala fide on their behalf as the
data is erased leaving the Plaintiff in a miserable condition as he cannot claim any
warranty or return the product without the purchase history.
4. When the Plaintiff visited the companys office address for further enquiry, he was told by
the Defendant No.1 that since qucikmart.com outsources orders from private retailers as
Agents of the company, and therefore, the retailers are the ones who dispatch the product.
This is again an attempt to mislead the Plaintiff and to deny liability on the companys
behalf. Mala fide is again exhibited because even when there is a contract of agency, the
company is liable for the actions of the Agents.

Therefore, it is submitted before the Honble court that the Defendant No.1 is liable for
breach of contract in the instant case.

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2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE


AGENT?

It is submitted that the Defendant No.1 is liable for the acts of the Defendant No.2 as
Defendant No.1 is the Principal and Defendant No.2 is its Agent. This submission of the
Plaintiff is twofold:
2.1 THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL.
In the instant case Defendant No. 2 is the Agent of the Defendant No.1. Section 182 of
the ICA, 1872 defines Agent as a person employed to do any act for another person or
to represent another person in dealing with the third person. The Defendant No.1 itself
told the Plaintiff that it outsources its products from the private retailers as Agents of the
company. So the Defendant No.1 had accepted that Mr. Rattan is their Agent. Explaining
the definition of Agent as stated in Section 182 of the Act, Dhavan J. observed17 :
According to this definition, an Agent never acts on his own behalf but always on
behalf of another. He either represents his Principal in any transactions or dealings
with a third person, or performs an act for Principal. In either case, the act of the
Agent will be deemed in law to be not his own but of the Principal. The crucial test
of the status of an Agent is that his acts binds the Principal.
The concept of vicarious liability is based on the Principle of quit facia per alium facit
per se i.e. one who does an act through another is deemed in law to do it himself. As it is

17Loon Karan v. John and Co. , AIR 1967 All 308, 311.
17

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said that the authority of the master of a ship rests upon the peculiar character of his
office.
It is further submitted that Section 189 deals with the authority of an Agent. As per this
section, an Agent has authority in an emergency, to do all such acts for the purpose of
protecting his Principal from loss as would be done by a person of ordinary prudence, in
his own case under similar circumstances.
The conditions which entitle an Agent to exceed his authority under the doctrine of
necessity under the instant case are:
i.

That the courses he took was necessary in the sense that it was in the circumstances the

ii.

only reasonable and prudent course to take18.


That he acted bona fide in the interest of the parties concerned19.
In the instant case, that after seeing the pathetic and depressed situation of Plaintiff,
Defendant No.2 acted according to the situation as he thought that his actions would be in
the interest of the customer.20
Therefore, Defendant No.2 acted on behalf of the Defendant No.1.
2.2 THAT THE ACTS OF THE AGENT WERE AUTHORIZED.
According to Section 226 of the ICA, 1872 contracts entered into through an Agent, and
obligations arising from acts done by an Agent, may be enforced in the same manner, and
will have the same legal consequences as if the contracts had been entered into the acts
done by the Principal in person. That means a Principal is bound by the act of his Agent
with all the results21. This Section assumes that the contract or act of the Agent is one,
which, as between the Principal and third persons, is binding on the Principal. It is not
necessary that the Principal be named. It is sufficient if the Principal can be identified 22
and where the other party to the contract knows that the person is acting as an Agent for a
person known to him, a formal disclosure of the Principal is not necessary to make the
Principal liable23.

18Sims and Co. v. Midland Rly Co, (1913) 1 KB 103; Atlantic Mutual Insurance Co v. Huth, (1879)
16 Chd 474, 481 (CA)
19Prager v. Blatspiel, Stamp and Heacock Ltd, (1924) 1 KB 566, (1924) All ER Rep 524.
20Para 8, P 4
21Chella Ballayya v. Kanuparthi Subbayya, AIR 1917 40 Mad 1171, AIR 1918 Mad 24, 44 IC 813.
22Mackinnon Mackenzie and Co. v. LongMoir and Co., (1881) 5 Bom 584.
23 Ibid.
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In Suga Keur v. Firm Brijraj Ramniwas24it was held that:
The person claiming against the Principal must show that the act done was within
the scope of authority or ostensible authority held or exercised by the Agent, and
this can be shown by practice as well as a written instrument.
In the present case, Defendant No.2 had given a written acknowledgement on the letter
pad of the company admitting that such laptop will be replaced within 10 days and
Plaintiff will be having no complaint against the Defendant No.1 in future.
Prima facie it shows that Defendant No.2 was acting on behalf of the Defendant
No.1. The liability of the Principal is not affected by the fact that the Agent is personally
liable, and the other contracting party had given credit to the Agent25.
It is further submitted that section 237 of the ICA, 1872 reads as follows: When an
Agent has, without authority, done acts or incurred obligations to third persons on behalf
of his Principal, the Principal is bound by such acts or obligations, if he has by his words
or conduct induced such third persons to believe that such acts and obligations were
within the scope of the Agents authority.
When there is a Principal-Agent relationship and the Agent has acted without authority of
the Principal, this section does not apply unless the relationship of Principal and Agent is
proved to exist between the parties26.
In the instant case, when the Plaintiff went to the Defendant No.1 for further inquiry, he
was told that the company outsources orders from private retailers as Agents of the
company, and therefore retailers are the ones who dispatch the products. Hence it was
Defendant No. 1 that made the Plaintiff believe that the Defendant No.2 was its Agent and
this work was within the authority of the Agent. The Principal is bound by the
unauthorized acts of the Agent if, by words or conduct, he induces a third party to believe
that the unauthorized acts of the Agent are within the scope of the Agents authority27.
Also, in Ram Pertab v. G Marshall28, their Lordships of the Judicial Committee of the
Privy Council held:

24 AIR 1937 Pat 526.


25Babulal v. JagatNarain, AIR 1952 VP 51.
26Benaras Bank Ltd v. Prem and Co., AIR 1937 All 255; Jessop and Co Ltd v. Dist Board of
Monghyr, AIR 1931 Cal 423.
27Kamal Singh Dugar v. Corporated Engineers ( India) Pvt Ltd, AIR 1963 Cal 454.
28ILR (1899) 26 Cal 701 (PC).
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The right of a third party against the Principal on the contract of his Agent
though made in excess of Agents actual authority was nevertheless to be enforced
when the evidence showed that the contracting party had been led into an honest
belief in the existence of the authority to the extent apparent to him.
From the above submission, it is clear that the Plaintiff wanted his laptop to be
replaced with a new laptop with the same configuration as selected by Plaintiff.
Therefore, it is submitted that Defendant No.1 shall be liable for the acts of
Defendant No.2.

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3. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT


OR CAN ONLY CLAIM DAMAGES?
It is submitted that the Plaintiff can repudiate the contract.
3.1 THAT THE PLAINTIFF CAN REPUDIATE THE CONTRACT.
It is submitted that it is important to first assert whether the stipulation in question is a
condition which is defined as: A condition is a stipulation essential to the main purpose
of the contract, the breach of which gives rise to a right to treat the contract as
repudiated29. Or the stipulation in question is a warranty, which is defined as: A
warranty is a stipulation collateral to the main purpose of the contract, the breach of which
gives rise to a claim for damages but not to a right to reject the goods and treat the
contract as repudiated30 .
The purpose of the contract was to buy a particular laptop with the configurations as
required to pursue the particular course was defeated as a laptop with different
configurations was delivered. Therefore, this is a breach of condition and not of warranty.
It is further submitted that in Wallis v. Pratt 31, in a judgment that was approved by the
House of Lords, Fletcher Moulton L.J. said32:
There are some obligations in a contract that goes so directly to the substance of the
contract or in other words, are so essential to its very nature that their non-performance
may fairly be considered by the other party as a substantial failure to perform the
contract at all.
In the instant case, the substance of the contract was buying the laptop with the specific
configurations required for the course, but a laptop with different configuration was
delivered. Therefore, delivery of the other laptop may fairly be considered as a substantial
failure to perform the contract at all. It is further asserted that in Bensten v. Taylor 33,
Bowen L.G. said:
Of course it is often very difficult to decide as a matter of construction whether a
representation which contains a promise, or which can only be explained on the ground
that it is in itself a substantive part of the contract, amounts to a condition precedent, or
is only a warranty. There is no way of deciding the question except by looking at the
29Sec 12(2) of Sale of Goods Act, 1930.
30Sec 12(3) of Sale of Goods Act, 1930.
31 (1911) A.C. 394.
32 (1910) 2 KB 1003 P. 1012.
33Bensten v. Taylor, (1893) 2 Q.B. 274 P. 281.
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contract in the light of the surrounding circumstances, and then making up ones mind
whether the intention of the parties, as gathered from the instrument itself, will best be
carried out by treating the promise as a warranty surrounding only in damages, or as a
condition precedent by the failure to perform which the other party is relived of its
liability. In order to decide this question of construction, one of the first things you would
look to is, to what extent the accuracy of the statement- the truth of what is promisedwould be likely to affect the substance and foundation of the adventure which the contract
is intended to carry out.
In the instant case, the laptop which was ordered by the Plaintiff with the particular
specifications is a condition precedent and the very foundation for which the contract was
intended. Now, the delivery of the other laptop by the Defendant No.1 causes a breach of
condition and not merely a breach of warranty. In Anthony Thomas v. Ayuppuni Mani 34,
the Defendant No.1 had to deliver to the Plaintiff 125 candles of cashew nuts and received
Rs. 4,000/- in part payment of the price. The suit was for the refund of the said sum with
interest at 6% per annum. The Plaintiff rejected the goods on the ground that the bad nuts
exceeded the stipulated maximum of 20%. The question for consideration is whether the
Plaintiff was entitled to reject the goods as he did. The answer depends on whether the
stipulation regarding the bad nuts was a condition or a warranty. It was held that the
stipulation in this case was a condition as delivering the cashew nuts not exceeding the
stipulated maximum of 20% was the main purpose for which the contract was made.
It is submitted that in the instant case, the delivery of the laptop with the particular
configurations required by the Plaintiff was the main purpose of the contract. The
stipulation in question is a condition and not a warranty. Therefore, the Plaintiff can
repudiate the contract and also claim losses from the Defendant No.1.
It is submitted that the Section 13(2) of Sale of Goods Act, 1930 reads as follows: Where
a contract of sale is not severable and the buyer has accepted the goods or part thereof 35
the breach of any condition to be fulfilled by the seller can only be treated as a breach of
warranty and not as a ground for rejecting the goods and treating the contract as
repudiated, unless there is a term of the contract, express or implied, to that effect.
Under this, the buyer is deemed to have accepted the goods only when he intimates to the
seller that he has accepted them or when the goods have been delivered to him and he
does any act in relation to them which is inconsistent with the ownership of the seller. In
the instant case, opening of the laptop did not amount to acceptance as he intimated to the
seller within a reasonable time the defectiveness of the laptop.

34 AIR 1960 Ker176.


35 The words or where the contract is for specific goods the property in which has passed to the
buyer omitted by Sec 3 of the Indian Sale of Goods (Amendment) Act (Act 33 of 1963)
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It is further submitted that there is an implied condition under sale by description.
Section 15 of Sale of Goods Act, 1930 states that: Where there is a contract for the sale
of goods by description, there is an implied condition that the goods shall correspond
with the description; and, if the sale is by sample as well as by description it is not
sufficient that the bulk of the goods corresponds with the sample if the goods do not also
correspond with the description. Further in Varley v. Whipp36, Channell, J. said:
Though the most usual application of the Section was to cases of unascertained goods, it
applies to all cases where the purchaser has not seen the goods but is relying on the
condition.
In Sorabji M. Joshi And Co. v. Ismail 37 was held that, falsity of description renders the
good substantially different amounting to failure of consideration. In the instant case, the
Defendant 1 sent the laptop that was substantially different from the laptop that the
Plaintiff ordered. Therefore there is a breach of condition by sale of description.
From the above arguments it can be asserted that the Defendant 1 has breached a
condition and not merely a warranty.
Therefore, it is submitted before the Honble court that the plaintiff can repudiate the
contract.

36 (1900) 1QB513
37AIR 1960 Mad. 520
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PRAYER
In light of the issues raised, arguments advanced and cases cited it is most humbly prayed
before this Honble CourtA. To declare that the Defendants have breached the Contract.
B. To award consideration provided by the Plaintiff to Defendant for the Laptop.
C. To award compensation for mental pain and agony.

Or grant such other relief as the court may deem fit in the light of justice, equity and good
conscience.
AND FOR THIS ACT OF KIDNESS THE DEFENDANT SHALL DUTY BOUND
EVER PRAY

Sd/Counsel for the Plaintiff

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