GROUP NO.

-1

BA.LL.B 5 YEARS PROGRAMME

BA.LL.B (1) 2019-20

MOOT COURT PROBLEM:-01

IN THE HON’BLE COURT OF DISTRICT JUDGE

AT DELHI

IN THE CIVIL SUIT NO. ________ 2019

MR. SREENIVAS (PLAINTIFF)

Versus

MS. ARPITA (DEFENDANT)

MEMORIAL FOR THE PLAINTIFF

GITARATTAN INTERNATIONAL BUSINESS SCHOOL

[1]
 TABLE OF CONTENTS

1. Table Of Contents:- 2

2. Index Of Authorities:- 3

3. TABLE OF CASES:- 4-5

4. List Of Abbreviations:- 6

5. The Statement Of Jurisdiction:- 7

6. The Statement Of Facts:- 8-9

7. The Statement Of Issues:- 10

8. The Summary Of Arguments:- 11

9. The Arguments Advanced: - 11-24

a) Whether the contract is valid or not?

b) Whether there is a breach of contract or not?
c) Whether the defendant is liable to restore the benefits to the plaintiff?

10. The Prayer:-

25

[2]
 INDEX OF AUTHORITIES

I. STATUTES:

Sr. No Statutes

1 Indian Contract Act, 1872

2 Special Relief Act, 1963

3 Indian Majority Act, 1875

II REFERENCE BOOKS:

Sr. No. Books

Pollock & Mulla; “The Indian Contract and Specific Relief Acts,
1
Vol I”; 14th Edition; 2013

2 RK BANGIA “CONTRACT I and II” ;7th Edition ; 2017

3 Singh, Avtar; “Contract and Specific Relief”; 11th Edition; 2013

4 Justice P.S. Narayan; “Law of Specific Relief”; 7th Edition; 2010

III RESEARCH DATABASE:

Sr. No Research Database

1 http://www.manupatrafast.com/

[3]
2 http://www.scconline.com/

3 http://www.westlawindia.com/

4 http://home.legal kanoon.org/

TABLE OF CASES

Sr. No. Cases Citations

ILR (1928) 9 Lah 701, 715-

1 Khan Gul v. Lakha Singh
19
Kunwarlal Daryavsingh v. Surajmal
2 AIR 1963 MP 58
Makhanlal

3 Pearce v. Brain (1929) 2 KB 310

Madura Municiplality v. Raman

4 AIR 1936 Mad 98
Servai
(1902-03) 30 IA 114: ILR
5 Mohori Bibee v. Dhurmodas Ghose
(1903) 30
Mt. Hamidan Bibi v. Nanhe Mal and
6 AIR 1933 All 371
Anr

7 Nardan Prasad v. Ajudhia Prasad (1910) ILR 32 ALL 325

Nivarti Govind Ingale and Ors v.

8 Revanagouda Bhimanagouda (1997) 1 SCC 475
Patil

9 Peters v. Fleming (1840) 6 M. & W. 42

[4]
 Ram Nagina Singh v. Governor General
10 AIR 1952 Cal 306
in Council
(1868) L.R. 3 Exch
11 Ryder v. Woombell
90:Exch. 32

Sadasheo Balaji v. Firm Hiralal

12 AIR 1938 NAG 65
Ramgopal

Sr. No. Cases Citations

Thakurian Harnath Kaur v. Thakur Indar

13 AIR 1922 PC 403
Bahadur

14 Valentini v. Canali [1889] 24 QBD 166

15 Varghesev. Iype Kuriakose and Ors AIR 1973 Ker 267

16 Walidad Khan v. Janak Singh ILR 35 All 370

17 Walter v. Everard ILR 35 All 370

18 Watkins v. Dhunoo Baboo (1881) ILR 7 CAL 140

[5]
 LIST OF ABBREVIATIONS

Abbreviations Full Form

& And

AIR All India Reporter

All Allahabad

Anr Another

Bom Bombay

Cal Calcutta

CJ Chief Justice

Exch Exchequer Reports (England)

Hon’ble Honourable

i.e. That is

ILR Indian Law Reporter

J Justice

KB King’s Bench

Kant Karnataka

Ker Kerala

[6]
 LR Law reporter

LJ Law Journal Report

Lah Lahore

STATEMENT OF JURISDICTION

The Counsel on behalf of the Plaintiff, hereby submits his written statement in the suit for
recovery. The Counsel most humbly and respectfully, submits that this Hon’ble Court has the
requisite subject matter jurisdiction to entertain and adjudicate this matter.

[7]
 STATEMENT OF FACTS

1. Arpita, a renowned film star of sixteen years, wanted a small party house and a swimming pool
constructed in her back garden. By misrepresenting that she is a major, she put the task out to
tender and accepted the offer of Mr. Sreenivas, a building contractor, who agreed to do the work
for Rs.5,00,000/-.

2. Both Arpita and Sreenivas knew that this was an unrealistically low price contract and the
amount will be paid in instalments in order of the completion of different phases of the assigned
work. Sreenivas, having completed the small party house began construction of the swimming
pool and ran out of money and materials for further construction.

3. Sreenivas told Arpita that he could not complete the construction unless further capital was
made available to him.. Arpita had arranged a poolside party to which she had invited top film
directors from whom she hoped to win new leading roles and was desperate to have the pool
completed as stipulated. She requested for the continuance of the construction work and further
requested Mr. Sreenivas to spend the remaining amount of Rs. 3,00,000/- on the work out of his
own pocket and the money would be paid to him when she secures her next contract.

4. The pool was completed; the party was a success and Arpita was awarded the starring role in
the new movie named “Tu Kaun Mein Khaamakhaan”. Arpita tells Mr. Sreenivas, “Darling, you
have saved my career. Don’t worry about Rs. 3,00,000/-.” Mr. Sreenivas started a new project,
whereas Arpita’s new film was a complete flop. She then found herself unable to pay the amount
of Rs.3,00,000/- to Mr. Sreenivas.

[8]
5. Mr. Sreenivas compelled Arpita, a leading film actor, to render dance performance in his party
which he organized to invite rich people, relatives and friends in order to secure contracts
regarding building construction, etc. and in return he agreed to release Arpita from paying the
debts of Rs.3,00,000/-. Arpita agreed on this point and was ready for the dance performance in
the party. But before the party, she suffered from a sprain due to over repetition of rehearsals.
Then she did not perform in Mr. Sreenivas’s party on the advice of the doctor.

6. On Arpita’s eighteenth birthday, both the parties, on the humanity ground, decided to alter the
contract. Arpita acknowledged the debt taken from Mr. Sreenivas for rendering the past services
and further both agreed on the same point that Arpita would pay the debt 3 through easy monthly
instalments (EMIs) of Rs.10,000/- per month till the repayment of the amount of Rs.3,00,000/-.

7. Arpita, later on, felt that some of the work done by Mr. Sreenivas was not performed as she
had specified. She further pointed out that the material used for constructing the small party house
and a swimming pool was not of the right kind. She estimated that this would cost her
Rs.3,50,000/- only.

8. Arpita then decided to dispose-off her property at the price of Rs.9,00,000/- without giving a
single penny to Sreenivas. When all this foul play came to the knowledge of Sreenivas, he tried
to restrain Arpita by putting enormous pressure in order to recover his money amounting to
Rs.3,00,000/- which he spent on the construction of small party house and a swimming pool for
Arpita.

9. Sreenivas could not recover the debt from Arpita even after a reasonably long time. He gave a
notice to Arpita regarding payment of money within 15 days but no reply was given by her on this
matter.

10. In this context, Sreenivas finally decided to go to the court for seeking remedy in this regard.
The suit was then filed by Sreenivas on the ground that he had constructed the small party house
and a swimming pool as per the terms of the contract and has taken all the diligent steps to
recover the loan made available to Arpita for Rs. 3,00,000/- but now she has refused to pay the
said amount and hence the present suit.

[9]
 STATEMENT OF ISSUES

ISSUE 1: Whether the contract is valid or not?

ISSUE 2: Whether there was a breach of contract or not?

ISSUE 3: Whether the defendant is liable to restore the benefits to the plaintiff?

[10]
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether there was a valid contract between the plaintiff and the defendant?

The counsel on the behalf of the plaintiff most humbly and respectfully submit before this Hon’ble
court that there was a contract between the plaintiff and defendant as per section 68 of the Indian
Contract Act 1872, the necessary supplied to the minor should be suited to his condition in life.

ISSUE 2: Whether there was a breach of contract or not?

The counsel on the behalf of the plaintiff most humbly and respectfully submit before this
Hon’ble court that as per Section 62 of Indian Contract Act if parties to a contract agree to
change the terms of the contract, they can do so under the following Section by changing the
terms to it.

ISSUE 3: Whether the defendant is liable to restore the benefits to the plaintiff?

The counsel on the behalf of the plaintiff most humbly and respectfully submit before this Hon’ble
court that the Defendant is liable to restore the benefits gained by him from the agreement under-

1. Section 33(2)(b) of the Specific Relief Act, 1963; and

2. Section 65 of the Indian Contract Act, 1872

[11]
 ARGUMENTS ADVANCED

ISSUE 1: whether there was a valid contract between the plaintiff and the defendant?

It is most humbly and respectfully submitted before this Court that the contract between plaintiff
and defendant for the construction of swimming pool and party house is a valid contract on the
ground of necessity supplied to the defendant as per section 68 of Indian contract act, 1872 as it
does not means where necessity of life but means such things as may be necessary to maintain a
person according to his condition in life

Section 68 of Indian contract act ,1872 – Claim for necessaries supplied to

person incapable of contracting or on his account- If a person, incapable of entering
into a contract, or anyone whom he is legally bound to support, is supplied by another person with
necessaries suited to his condition in life, the person who has furnished such supplies is entitled to
be reimbursed from the property of such incapable person.

1 THAT THE CONSTRUCTION OF SWIMMING POOL AND PARTY HOUSE IS A

NECESSITY FOR THE DEFENDANT

In the current matter, the construction of swimming pool and party house was a
necessity for the defendant.

Necessaries food, clothing, or shelter essential for the maintenance of a dependant in the
condition of life to which he or she is accustomed.

[12]
What are necessaries?

There is, however, no definition of the term “necessaries” in the Contract Act. It is, therefore,
necessary s’ is not confined in its strict sense to such articles as were necessary to support life, but
extended to articles fit to maintain the particular person in the state, degree and station in life in
which he is; and therefore we must not take the word “necessaries” in its unqualified sense but
with qualification as above pointed out. To put the matter concisely, “necessaries” means goods
suitable to the condition in life of the defendant and to his actual requirements at the time of the
sale and delivery, and whether an article supplied to an infant is necessary or not, depends upon
its general character and upon its suitability to the particular infant’s means and station in life. It
must further be observed that as necessaries include everything necessary to maintain the infant in
the state, station, or degree of life in which he is, what is necessary is a relative fact, to be
determined with reference to the fortune and circumstances of the particular infant; articles
therefore that to one person might be mere conveniences or matters of taste, may in the case of
another be considered necessaries, where the usages of society render them proper for a person in
the rank of life in which the infant moves.

In the case ofJagon Ram Marwari v. Mahadeo Prasad Sahu1, Justice MOOKERJEE and Justice
CARNDUFFstated that:

“the term necessaries include everything necessary to maintain an incompetent person in the
state, station, or degree of life in which he is, and what is necessary is a relative fact to
determine with reference to the fortune and circumstances of a particular infant. There is no
definition of the term "necessaries" in the Indian Contract Act, 1872.”

In the landmark case of Chapplev. Copper2, a very illustrative statement of the meaning of the
term “necessaries” was laid by ALDERSON B:

“Things necessary are those without which an individual cannot reasonably exist. In the first
place, food, raiment, lodging and the like. About these there is no doubt. Again, as the proper

1
(1909) ILR 36 CAL 768
2
(1844) 13 M&W 252

[13]
 cultivation of mind is as expedient as the support of the body, instruction in art or trade, or
intellectual, moral and religious education may be necessary also….

….Then the classes being established, the subject and the extent of the contract may vary
according to the state and condition of the infant himself. His clothes may be fine or coarse
according to his rank; his education may vary according to the station he is to fill; and the
medicines will depend on the illness with which he is afflicted, and the extent of his probable
means when of full age ….But in all these cases it must first be made out that the class itself
is one in which the things furnished are essential to the existence and of reasonable advantage
and comfort of the infant contractor. Thus articles of mere luxury are always excluded,
though luxurious articles of utility are in some cases allowed. ”

The term necessaries are also not confined to goods. It includes other things such as good teachings
and instruction, and the money enabling an incompetent person to procure these3.

This definition was adopted by the Exchequer Chamber in Ryder v. Woombell4, which stated that:

“The rule of law is clearly established that an infant is generally incapable of binding himself
by a contract that to this rule, there is an exception introduced not for the benefit of the
tradesman who may trust the infant, but for that of the infant himself, that this exception is
that he may make a contract for necessaries.”

In the case of Walter v. Everard5, it was concisely observed that:

“The term "necessaries" means goods suitable to the condition in life of the defendant and to
his actual requirements at the time of the sale and delivery, and whether an article supplied
to an infant is necessary or not, depends upon its general character and upon its suitability to
the particular infant's means and station in life. It was further observed that as "necessaries"
include everything necessary to maintain the infant in the state, station, or degree of life in

3
Pollock and Mulla , Vol.II, Pg no.1047, ¶ 2, SadasheoBalaji v. Firm HiralalRamgopal , AIR 1938 NAG 65
4
(1868) L.R. 3 Exch 90: 4 Exch. 32
5
[1891] 2 Q.B. 369

[14]
 which he is, what is necessary is a relative fact, to be determined with reference to the fortune
and circumstances of the particular infant; articles therefore that to one person might be mere
conveniences or matters of taste, may in the case of another be considered necessaries, where
the usages of society render them proper for a person in the rank of life in which the infant
moves. The infant's need of things may also sometimes depend upon the peculiar
circumstances under which they are purchased and the use to which they are put. For
instance, articles purchased by an infant for his wedding may be deemed necessary, while
under ordinary circumstances the same articles might not be so considered.”

In the case of Jenner v. Walker6, it was ruled that wedding presents for the bride of the infant may
be termed as necessaries.

In the case of KunwarlalDaryavsinghv. SurajmalMakhanlal7, the defendant was living as a

tenant in the plaintiff house for rent of ₹15 but later on the defendant refused to pay the amount
and resisted on the ground that the agreement with a minor is void, but it was held that the
agreement is not void as it comes under the purview of necessity.

Similarly in the in the current matter, as the facts suggest the defendant had ₹ 5 lakhs only, which
she decided to invest in the construction of a swimming pool and a small party house to organize
a party for the top filmmakers in order to secure the film contracts. The defendant being an actress,
securing contracts was a major requirement for the defendant so as to sustain her career and means
of livelihood. As renowned film makers and directors were invited to the party, a rather “lavish”
party would increase the probability of securing a contract of employment which was beneficial
as well as necessary for her. This is where the construction of swimming pool and small party
house became a necessity for the defendant.

Hence, it is clearly established that the construction of the swimming pool and the small party is a
necessity for the defendant.

6
(1868) 19 L T N S 398
7
AIR 1963 MP 58.

[15]
2 THAT THE DEFENDANT IS LIABLE TO INDMENIFY THE PLAINTIFF AS PER
SECTION 68 OF THE INDIAN CONTRACT ACT, 1872

Section 688of the Indian Contract Act, 1872 clearly states that if a minor is supplied with
necessities, then the minor is liable to reimburse that person with his property.

In the recent case of AnaghaPrassadv. M.C Abu9, where the plaintiff, who was minor, borrowed
a sum of ₹ 2.5 lakhs from the respondent for her education and assured the respondent that she
will return the money when she will get the education loan, later on both the parties entered into
an agreement and the plaintiff acknowledged the debt and stated that she had got the education
loan and also gave ₹ 10,000 to the respondent and further give three cheques to the respondent.
But later on it was found that there was no money in the account of the minor.

Kerala High Court while adjudging this case concluded that:

“The principle underlying in the Section is that where a person incapable of entering into a contract
(it includes a minor also) or any other person whom he is legally bound to support, is supplied by
another person with necessaries, the supplier is entitled to be reimbursed out of the property or
estate of the incapable person. The liability here is not to pay the agreed price, but to reimburse.
In the case of a minor, he is not personally liable, but his property will be liable. The Section
applies to minors and also to persons of unsound mind. That is evident from the illustrations given

8
Sec 68 of Indian Contract Act, 1872: Claim for necessaries supplied to person incapable of contracting, or on his
account-
If a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by
another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled
to be reimbursed from the property of such incapable person.
9
ILR 2014(4)Kerala175

[16]
to the Section. It is therefore clear that the Section will not apply where necessaries have been
supplied to someone, who is a person competent to contract. Even though by virtue of the section
it can be contended that the petitioner's liability to reimburse the 1st Respondent may be enforced
against her property.”

Thus from the above stated interpretation it is clear that the minor is liable to reimburse the person
who supplied the minor with the necessities.

In the case of Kadarnath Vs Ajudhia Prasad10, Loan was given to a minor on the mortgage of
his property with a view to saving the minor’s property from sale in execution of decree. It was
held that this loan was for necessaries suited for the minor condition in life and therefore even
though the mortgage was void but the mortgagee had still a right of lien over the property
mortgaged to him by the minor.10

10
(1883)Punjabrecord,caseno165

[17]
ISSUE 2: Whether there was a breach of contract or not?

The counsel on the behalf of the plaintiff most humbly and respectfully submit before this
Hon’ble court that as per Section 62 of Indian Contract Act if parties to a contract agree to
change the terms of the contract, they can do so under the following Section by changing the
terms to it.

Section 37- Obligations of parties to contract-

The parties to a contract must either perform, or offer to perform, their respective promises, unless such
performance in dispensed with or excused under the provision of this Act, or of any other law. Promises
bind the representative of the promisor in case of the death of such promisors before performance, unless a
contrary intention appears from the contract.

Section 40 - Person by which promise is to be performed.

Person by whom promises is to be performed If it appears from the nature of the case that it was the
intention of the parties to any contract that any promise contain in it should be performed by the promisor
himself, such promise must be performed by the promisor. In other cases, the promisor or his representative
may employ a competent person to perform it.

Breach Of Contract

A breach of contract occurs when the agreement is not kept, because one party to the contract
does not fulfill their obligation according to its terms.
A breach can occur if a party fails to perform within the time frame specified in the contract,
does not perform in accordance with the terms of the agreement, or fails to perform whatsoever.
If one party fails to perform while the other party fulfills her duties under the contract, the
performing party is entitled to legal remedies for breach of contract.

[18]
In the above case Arpita failed to fulfill the contract three times, first, when she failed to pay the
sum of Rs. 3,00,000/- after the completion of her film which she promised to Mr. Sreenivas

Second, when Mr. Sreenivas agreed on to finish her debt if she agrees on to dance in his party in
which she failed again.

And at last when both agreed on humanity grounds agreed to alter the contract with Rs. 10,000/-
Easy Monthly Installments (EMIs) summing up to the original debt of Rs. 300000/- but Arpita
failed to do the same and also decided to dispose of the property without notifying to Mr. Sreenivas
and also decided not to give a single penny to him and resulting in breach of the contract.

The defendant is liable to pay the compensation to the plaintiff under section 73 of Indian
Contract Act, 1872 :-

Compensation for loss or damage caused by breach of contract.—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 caused 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.

Explanation - In estimating the loss or damage arising from a breach of contract, the means
which existed of remedying the inconvenience caused by the non-performance of the contract must
be taken into account

[19]
ISSUE 3: Whether the defendant is liable to restore the benefits to the plaintiff?

The counsel on the behalf of the plaintiff most humbly and respectfully submit before this Hon’ble
court that the Defendant is liable to restore the benefits gained by him from the agreement under-

1. Section 33(2)(b) of the Specific Relief Act, 1963; and

2. Section 65 of the Indian Contract Act, 1872

The counsel on the behalf of plaintiff states that, defendant enjoyed the benefit of the money
which he received from plaintiff. After the payment was made ,and the construction of
swimming pool was done the plaintiff was expecting the money that he paid during the contract
out of his pocket. Rather he got nothing out of it. Defendant being a prudent minor tricked the
plaintiff and took the undue advantage of his sincerity towards the contract.

The amount paid by the plaintiff was the benefit to the defendant which he is bound to
restore.

Under section 65 of the Indian Contact Act,1872 it has been stated that- " Obligation of person
who has received advantage under void agreement, or contract that becomes void.—When an
agreement is discovered to be void, or when a contract becomes void, any person who has
received any advantage under such agreement or contract is bound to restore it, or to make
compensation for it to the person from whom he received it. —When an agreement is discovered
to be void, or when a contract becomes void, any person who has received any advantage under
such agreement or contract is bound to restore it, or to make compensation for it to the person
from whom he received it. "

[20]
The present case is falling under one of the sec. The center of attention are the terms 'discovered
to be void' and 'any person'. The fact that defendant was a minor was not disclosed by the other
party at the time of the commencement of the contract, neither did they disclose it before the
payment w11as made nor while acceptiong the payment, which clearly denotes that the plaintiff
was completely unaware of the fact of the defendant being the minor

And when something is find unexpected or during the search it is said to be discovered.
Therefore, the fact was concealed maliciously and was discovered by the plaintiff which makes it
fall under branch one of sec. 65.

The doctrine of restitution was profounded int the leading cases of Leslie v. Sheil11 and Khan
Gul v. Lakha singh12. Under both the cases there of restoration of the benefit from the minor to
the other party where the minor falsely represented the age. Another principle stated in the
former case is that the benefit will only be restored if it is traceable. Relating it to the present
case the the property is traceable . And also it was held that when an minor obtains an advantage
by falsely stating himself to be of full age, equity required him to restore his ill-gotten gains or to
release to party deceived from obligations or acts in law induced by the fraud, but scrupulously
stopped short of enforcing against him a contractual obligation entered into while he was an
infant, even by means of a fraud

This decision was followd by the privy council in Mahomed Syedol Ariffin Bin Mahomed Arrif
v Yeoh Ooi Gark13, and was held that where a infant invokes the aid of the court for the
cancellation of the contract, the court may grant the relief subject to the condition that he shall
restore all benefits retained by him under the contract,or make suitable compensation to the
party.

In the case of Dyaviah and Anr. v. Shivamma and Anr14, Justice Malimath held that:

“When the person to whom the proposal is made signifies his assent thereto, the proposal is said
to be accepted. A proposal, when accepted, becomes a promise.”

11
(1914) 3 K.B.607
12
AIR 1928 Lah. 609
13
(1917) 19 BOMLR 157
14
AIR 1959 Mysore 188

[21]
This clause requires that a proposal should be made by one person and assented to by another in
order to constitute a promise. There is nothing to indicate that the word "person" used in this
clause necessarily implies that he must be a major. If a minor enters into an agreement, it may
not become a contract by reason of Section 11 but it may nevertheless be an agreement. In view
of thi12s discussion, it is difficult to accept that the word agreement used in the first part of
Section 65 indicates that it must have been entered into by a person competent to contract i.e., by
one who is a major. It is wide enough to include cases where the agreement was entered into by a
minor also. In that case, no doubt, the agreement is unenforceable in law and is, therefore, void.
Even then, it comes within the ambit of the provisions of Section 65.

In the case of Thakurian Harnath Kaur v. Thakur Indar Bahadur15, the contract was found not
enforceable in the court of law due to absence of free consent as the consent was obtained by the
undue influence. The lordship held that the though the contract is void, the plaintiff was entitled
to recover the compensation under section 65 of the Indian Contract act, 1872.

In the case of Ram Nagina Singh v. Governor-General in Council16, it was held:

“In the case of agreements, Section 65 applies only to cases where benefit or advantage is
derived under an agreement before it is discovered to be void. If the benefit is received after the
agreement is discovered to be void, then the advantage cannot be said to have been received
under the agreement. Section 65 embodies and is an expression of the principle of restitution and
of prevention of unjust enrichment."

In the case of Walidad Khan v. Janak Singh17, ‘…certain Zamindari property was sold to
persons who were minors on the date of sale. The purchasers were subsequently ousted by reason
of a decree obtained by third Parties.’ It was then held that the purchasers were, at any rate,
entitled to recover from the vendors the sum which they had paid as purchase money.

The principle underlying sec.65 is that a right to restitution may arise out of failure of contract
when the contract is discovered to be void and under the present case the failure is on the part of
the defendant and hence he is bound to restore the principal amount

But on the other hand under section 33 of specific relief act,1963 states that -:

33. Power to require benefit to be restored or compensation to be made when instrument is

cancelled or is successfully resisted as being void or voidable.—

1215
AIR 1923 Mysore
16
1952 AIR (Cal) 306
17
30 Ind Cas 410

[22]
 1 On adjudging the cancellation of an instrument, the court may require the party to whom such
relief is granted, to restore, so far as may be any benefit which he may have received from the
other party and to make any compensation to him which justice may require.

2 Where a defendant successfully resists any suit on the ground—

A that the instrument sought to be enforced against him in the suit is voidable, the court may if
the defendant has received any benefit under the instrument from the other party, require him to
restore, so far as may be, such benefit to that party or to make compensation for it

B that the agreement sought to be enforced against him in the suit is void by reason of his
not having been competent to contract under section 11 of the Indian Contract Act, 1872 (9
of 1872), the court may, if the defendant has received any benefit under the agreement
from the other party, require him to restore, so far as may be, such benefit to that party, to
the extent to which he or his estate has benefited thereby.

In Bhagwati Prasad v Abdul Latif18, it was held that a minor seeking cancellation of a sale deed
may be required to refund the consideration. Same was upheld in Gokeda Latcharao v.
Vishwanadhan Bhimayya and Varghese v. Iype Kurikose19.

In the case of Nivarti Govind Ingale and Ors v. Revanagouda Bhimanagouda Patil20,
Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Pascayapur
Village of Karnataka. According to her, she, with a view to dig a well in the same land, had
obtained a loan in the year 1961 from the father of the respondent, a sum of ₹1,000. Since she
was not in a position to complete the digging of the well, she approached again for a sum of
₹2,000 to complete the well. The respondent's father who was a constable had advanced the
money on the condition that she would execute the sale deed in favour of his minor son i.e., the
respondent. Accordingly, she executed the sale deed with an agreement of re-conveyance which
was executed on August 31, 1961. She stated that she has paid from time to time a sum of ₹7,000
and had asked the respondent to execute the re-conveyance but the respondent did not execute
the deed of re-conveyance; consequently, she filed the suit for specific performance.

The High Court found that since the agreement of re-conveyance was not for the benefit of the
minor, the decree for specific performance cannot be granted. The petitioner then filed a special
leave petition in the Supreme Court. The Apex Court held that:

“…we find no force in the contention. The appellants have been seeking the remedy in the civil
suit; therefore, the subsequent purchaser is bound by this decree of specific performance and
liable to re-convey the property to the appellants.

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13
The decree of the trial Judge is accordingly restored and that of the High Court and the
Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the
respondent may be sought in an appropriate action.”

In the case of Abdul Majid Said and Ors v. Ramiza Bivi Sahiba and Ors, it was held that:

“Where the minor’s estate is benefitted by the purchase money and if that deed was cancelled
that the mi14nor is liable to restore the benefits.”

In the case of Mt. Hamidan Bibi v. Nanhe Mal and Anr 21, Justice Sen, while cancelling the
land deed in the favour of the plaintiff, observed that the plaintiff “should make good the benefit
which she had received”, and ordered the plaintiff to restore the benefits he had obtained from
the agreement.

In the case of Varghese v. Iype Kuriakose and Ors22, the plaintiff filed a suit to cancel a sale
deed signed by him during the minority, the lower court cancelled the suit and issue no
restoration but the High Court overruled the Lower Court’s judgment and held that the plaintiff
is entitled to get the possession of the property but have to restore the benefits he received from
the defendants.

In the case of Pearce v. Brain23, the plaintiff, a minor, who was trading goods for others, was not
permitted by the court of law to recover the goods back while retaining the benefit obtained by
trading them.

The plaintiff has suffered loss and inconvenience because of the Wrongful act of the defendant.
The defendant is bound to restore the benefit to the plaintiff..

1318
AIR 1928 Lah. 609
19
(1917) 19 BOMLR 157
20
AIR 1959 Mysore 188

1421
AIR1933All371
22
AIR 1973 Ker 267
23
AIR.1929 2 K. B. 310

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Therefore, in the lights of the issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed before this Hon’ble court to adjudge and declare that

1. Arpita is liable to pay damages of Rs. 300000 and compensation for the loss suffered by the
Plaintiff due to Breach of Contract.

2. Any other order which this Hon’ble court may be pleased to grant in the interest of the equity,
justice and good conscience.

All of which is most humbly and respectfully granted.

DATE: - 18.11.19

PLACE: -

Respectfully submitted

Anubhuti Dubey

Preeti Chaudhary

[Signature of counsel for the defendant]

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