Professional Documents
Culture Documents
IN THE MATTER OF
MR. SWARN KUMAR
(PLAINTIFF)
V.
Table of Contents
Table of Contents 2
List of Abbreviations 3
Index of Authorities 4-5
Statement of Jurisdiction 6
Statement of Fact 7-8
Issues Presented 9
Summary of Arguments 10-11
Arguments Advanced 12-24
Prayer 25
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LIST OF ABBREVATIONS
INDEX OF AUTHORITIES
STATUTES
BOOKS
LAW DICTIONARIES
1. M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr ,
2004 (6) SC 254
5. Bloom Dekor Ltd. vs. Subhash Himat lal Desai & Ors., (1994) 6
SCC 322
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
3. Subsequently, the plaintiff lost all the money at the table and
was unable to return double the loan amount and as a
consequence lost his majority shares of the company at 2 AM on
04/10/2016. Thereafter, in a desperate attempt he called Mr.
Aditya, who then contacted the defendant to take double the loan
but not to take the majority shares of the company. The
defendant refused the offer.
5. The video from the casino shows that prior to signing the
contract, the plaintiff had consumed 8 alcohol beverages
(8x30ml).
6. Plaintiff, through his counsel, has filed a civil suit before this
Hon’ble Court to prevent the defendant from taking over the
company.
9|Page
ISSUES PRESENTED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
(a) The defendant, or each of the defendants where there are more
than one, at the time of the commencement of the Suit, actually and
voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally work for gain,
as aforesaid, acquiesce in such institution; or
such place.
It is submitted that as per clause (a), and clause (c) of this section, the
suit is to be instituted in a court within the local jurisdiction of whose,
A) Either the defendant actually or voluntarily resides, or
B) Carries business, or
C) Personally works for gain, or
D) Where the cause of action, wholly or partly arises.
Similarly, in Bloom Dekor Ltd. vs. Subhash Himatlal Desai & Ors.2
a three Judge Bench of this Court held as under:
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In M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr3,
the Hon’ble Supreme Court defined Cause of Action as,
Cause of action implies a right to sue. The material facts which are
imperative for the suitor to allege and prove constitutes the cause of
action. Cause of action is not defined in any statute. It has, however,
been judicially interpreted inter alia to mean that every fact which
would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the Court. Negatively put, it
would mean that everything which, if not proved, gives the defendant
an immediate right to judgment, would be part of cause of action. Its
importance is beyond any doubt. For every action, there has to be a
cause of action, if not, the plaint or the writ petition, as the case may
be, shall be rejected summarily.
"... the cause of action does not depend upon the character of the
relief prayed for by the plaintiff. It refers entirely to the ground set
forth in the plaint as the cause of action, or, in other words, to the
media upon which the plaintiff asks the court to arrive at a conclusion
in his favour."
Thus, relying upon these definitions of the term cause of action it can
be said that, cause of action implies only those material facts that have
led to the case in hand. Since the present case revolves around the
validity of the contract, the cause of action or any part there of, cannot
be said to be risen in Delhi, as both the offer and acceptance of the
contract took place in Panaji, Goa and not in Delhi.
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A commercial court under this Act is the one dealing with commercial
disputes
The present dispute is covered as a commercial dispute within the
meaning of Section 2 (c) (i) of the said Act-
‘6. The Commercial Court shall have jurisdiction to try all suits and
applications relating to a commercial dispute of a Specified Value
arising out of the entire territory of the State over which it has been
vested territorial jurisdiction.
Specified value for the purpose of this Act is defined under Section 2
(1) (i) as following
Though the upper limit of the jurisdiction is not specified in the Act
expressly, it can be implied for Section 7 of the Act.
‘2. In sub-section (2) of section 5 of the Delhi High Court Act, 1966,
for the words
‘‘rupees twenty lakhs’’, the words ‘‘rupees two crore’’ shall be
substituted.’
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Since, the subject matter in the current case is no way under 2 crores,
as the relief sought is for release of the shares which amount for more
than 15 crores, the present suit lies far beyond the jurisdiction of this
Hon’ble Court.
It is humbly submitted that all the elements are duly present in the
contract in this case. The contract was a result of proper offer by the
defendant, which was in turn properly accepted by the plaintiff. Both
the parties were competent at the signing of the Contract. Both the
object and consideration are lawful within the meaning of THE
INDIAN CONTRACT ACT, 1872. And the contract was not
expressly declared to be void.
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Illustrations:
(a) A patient in a lunatic asylum, who is, at intervals, of sound mind,
may contract during those intervals.
(b) A sane man, who is delirious from fever, or who is so drunk that
he cannot understand the terms of a contract, or form a rational
judgment as to its effect on his interests, cannot contract whilst such
delirium or drunkenness lasts.
Illustration (b) to S.12 thus clearly lays out that when a person is
drunk while signing of a contract, the contract shall be declared
invalid only if the person was so drunk that he was unable to
understand the terms of the contract or to form a rational judgement
as to its effect on his interests.
As for the burden of proof and the degree of proof required to show
that the drunkenness lead to such unsoundness of mind that the
plaintiff was impaired in his judgement while singing the contract, the
authorities are very clear on this point.
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Thus, the defendant submits that the onus to prove that the
drunkenness affected the reasoning of the plaintiff so severely that he
was not able to understand the terms or the consequences of this
contract rests upon the plaintiff.
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The defendant further submits that even though the evidence shows
that the plaintiff had consumed 8 alcoholic beverages prior to signing
of the contract; it cannot be shown beyond ordinary doubt that that
such consumption affected his rationale to the adverse. Moreover, the
conduct of the plaintiff before signing of the contract affirms that he
was in his senses and capable of making rational judgement at the
time of signing the contract as only a man with reasonable control
over his mind would be able to conceive of taking a loan.
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It is submitted that the Contract which took place between the parties
in Goa for the granting of loan is in no way a wagering contract.
The term wagering contract has not been defined anywhere in THE
INDIAN CONTRACT ACT,1872. S.30 of ICA merely renders
agreements by the way of wager void.
Thus, S.30 merely says that agreements by way of wager shall be void
and no suit shall lie in any court for recovery of anything alleged to be
won on wager, or entrusted to any person to abide the result of any
game or other uncertain event on which any wager is made.
In this contract,
There was neither any uncertainty as the loan repayment and the
forfeiture of surety in case of failure to repay was already decided, nor
can it be said that there were equal chances of gain or loss to the
parties as the loan was essentially required to be paid back.
In March 2008, Axis Bank and Rajshree Sugars have been fighting a legal
battle over the foreign exchange derivatives contract, sold by the Bank to the
company, thereby resulting in huge losses for the company estimated to be
around Rs.46-50 crores. The company had refused to make any loan
repayment to the bank contending that the contract was a wagering deal, and
hence untenable on such grounds. The court answered this issue in the negative
and considered the agreement as a simple loan agreement and thus enforceable.
The defendant had acquired the shares of the plaintiff in a legal way
and thus upon forfeiture the defendant stands as the owner of the
shares.
The defendant humbly submits that, since he is the legal owner of the
shares he is free to dispose the same in any manner he may please,
provided it is not contrary to the law.
PRAYER
1. This Hon’ble Court does not have the jurisdiction to try the present
case, thus this case is not maintainable in this Court and is liable to be
dismissed with costs.
The court may also be please to pass any other order, which this
Hon'ble court may deem fit in the light of justice, equity and good
Conscience.