Vivek Vardhan ---------------------------------------- Appellant

Versus

Quality General Stores-------------------------------------Respondent

Facts of the Case

1.0 M/S Quality General Stores is owned by Syam Sundar, who intended to spread and
strengthen his business, and therefore, was looking forward to buy an existing sound business
entity engaged in the same business, with wide-customer base and good profitability.

1.1 Syam Sundar had received an offer from Subba Rao for sale of his “Best Quality Stores”
for a total sale consideration of Rs. 75,00,000/-.

1.2 Syam Sundar had engaged the services of Laxman & Co., a firm of auditors for securing
advice on the real worthiness of the Best Quality Stores.

1.3 With the cooked up report and advice of the Laxman & Co. on Best Quality Stores that it
was sound entity, earning reasonably good profits for the immediate past three preceding
years, Syam Sundar had purchased it on 01-03-2016 for a lump sum consideration of Rs.
75,00,000/-.

1.4 Syam Sundar was deeply dismayed and distressed to notice that the report furnished by
the auditor’s firm was erratic and was contemplating to invoke legal action against the
Laxman & Co.

1.5 On 1st March 2018, Syam Sundar met his friend, Vivek Vardhan, an advocate by
profession at Cafe Coffee Day, Vijayawada, and after conversing about a few minutes about
their individual affairs, Syam Sundar had solicited advice from his friend about the legal
options available to him against the Laxman & Co. for giving erratic and unprofessional
advice.

1.6 At this juncture, Vivek Vardhan has replied, “My dear friend, I am mostly engaged as a
solicitor. I don’t practice. However, I feel you have a good case, but at the same time, I
suggest you to approach “Bright Legal Services” for better legal advice, if you are really
determined and planning for legal action.”

1.7 After this, Syam Sundar did not consult the Bright Legal Services for a long time as he
had fallen sick and slipped into a state of depression.
1.8 After recovering from his sickness and gloomy mood, Syam Sundar approached the
Bright Legal Services, after more than 15 months from the date of meeting his friend at Cafe
Coffee Day for resorting to legal action against the Laxman & Co.

1.9 However, the Bright Legal Services had told him that his case was legally barred by that
time. Hence, Syam Sundar had filed a case against his friend for not advising him properly,
resulting in his case becoming barred by limitation.

2.0 The Lower Court has ruled that Vivek Vardhan has owed a duty of care to render factual
legal advice to Syam Sundar and which he had failed to render amounting to a breach of his
duty of care and therefore, liable to pay damages for compensating Syam Sundar.

2.1 Against this impugned order, Vivek Vardhan has preferred an appeal before the
Siddhartha Moot Court on the grounds inter alia: that there was no duty of care in between
them as their meeting at Cafe Coffee Day was purely accidental and social in nature and even
assuming that there was a duty of care, yet there was no breach of the said duty and as such
the order of lower court ought to be cancelled.

Issues Raised

1. Whether appeal made by the appellant is maintainable or not? (Section 96 of CPC)

2. Whether Vivek Vardhan has owed a duty of care to render factual legal advice to Syam
Sundar or not?
 Written Arguments

1. Whether appeal made by the appellant is maintainable or not? (Section 96 of CPC)

It is most humbly put forth before the honourable court that the appeal filed by the
appellant is maintainable in this case since the appellant does have the locus standi to file an
appeal in the Court.

It is humbly submitted that the case comes under the ambit of Section 96 of Civil
Procedure Code, 1908, states that two conditions which must be satisfied to file an appeal in
the Court.

Conditions are:

(a) The subject matter of the appeal must be a decree that is a conclusive determination of
the rights of the parties with regard to all or any of the matters in controversy in the suit and,

(b) The party appealing must have been adversely affected by such determination.

In the instant case, the Lower Court has ruled that Vivek Vardhan has owed a duty of
care to render factual legal advice to Syam Sundar and which he had failed to render
amounting to a breach of his duty of care and therefore, liable to pay damages for
compensating Syam Sundar. Vivek Vardhan, having adversely affected by such ruling of
Lower Court, has now preferred his appeal before Siddhartha Moot Court.

What is Locus Standi: It is a Latin Term, the general meaning of which is a place of
standing1, i.e., a right of appearances in a Court of Justice.

Elements of Locus Standi:

(1) A person must have a sufficiency of interest to sustain his standing to sue.

(2) The right or capacity to bring an action or to appear in a court.

(3) The person who is aggrieved or affected has the standing before the court
that is to say he only has a right to move the court for seeking justice2.

Locus standi signifies a right to bring an action and to be heard.

In this particular case, the appellant does have locus standi to approach the honourable
court because he does satisfy the above-mentioned elements which are required for a person
to claim locus standi.

It is humbly submitted to the honourable court that appeal made by the appellant is
maintainable.

1
Amanullah V. State of Bihar, (2016) 6 SCC 699, para 19
2
Ibid 1
2. Whether Vivek Vardhan has owed a duty of care to render factual legal advice to
Syam Sundar or not?

2.1 Professional Negligence:

In order to make a professional negligence claim, one will need to prove four things:

1. That the professional owes you a duty of care;

2. That they were negligent and breached the duty of care;

3. That you have suffered a loss as a result of their negligence;

4. That the professional's negligent conduct caused that damage.

What is a duty of care?

2.1.1 Written Contract

A duty of care is a legal duty requiring the professional to act with a standard of care
and skill when dealing with their client. If one has a written contract with the professional,
the duty that they have will be set out there. It could also be included in the professional’s
initial terms and conditions.

In the instant case, Vivek Vardhan does not owe a duty of care to render factual legal
advice to Syam Sundar since there is no written contract.

2.1.2 Assumed Responsibility

There is also a duty of care where the professional “assumes responsibility” towards a
person, and a special relationship exists between the parties. This means that even if there is
no contract between that person and the professional, if he has “assumed responsibility” for
the work that that person has asked him to do, there will be a duty of care owed.

In the instant case, Vivek Vardhan never assumed responsibility for the work that
Syam Sundar has asked him and Vivek Vardhan just replied “as mentioned in point 1.6”
“My dear friend, I am mostly engaged as a solicitor. I don’t practice. However, I feel you
have a good case, but at the same time, I suggest you to approach “Bright Legal Services”
for better legal advice, if you are really determined and planning for legal action.” So, there
will be no duty of care owned by Vivek Vardhan.
2.2 Consideration3:

2.2.1 Negligence is described as:

“Negligence is the breach of a duty caused by the omission to do something which a

reasonable man, guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not
do.”

2.2.2 Stand of Care required?

The standard is that of a reasonable man or of an ordinarily prudent man. The law
requires three points to determine the standard of care required:

(a) the importance of object to be attained;

(b) the magnitude of the risk;

(c) the amount of consideration for which services, etc., are offered4.

The degree of care depends also on the kind of services offered by the defendant and
the consideration charged therefore from the plaintiff.

It means for delivery of degree of care, there should be consideration for such
services. There is no such thing like “consideration” mentioned in the facts that is given to
Vivek Vardhan by Syam Sundar for the legal advice given to Syam Sundar by Vivek
Vardhan.

Therefore, since there is no consideration given to Vivek Vardhan, he does not owe
any duty of care to render factual legal advice to Syam Sundar, and furthermore, it does not
amount to a breach of duty of care. As a result, Vivek Vardhan is not liable to pay damages
for compensating Syam Sundar.

3
Section 25 in The Indian Contract Act, 1872: Agreement without consideration, void, unless it is in writing and
registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation
law.—An agreement made without consideration is void, unless— —An agreement made without consideration
is void, unless—"
(1) it is expressed in writing and registered under the law for the time being in force for the registration of
1[documents], and is made on account of natural love and affection between parties standing in a near relation to
each other; or unless
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the
promisor, or something which the promisor was legally compellable to do; or unless.
(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally
or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced
payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract.
4
The Law of Torts, R. K. Bangia, Page 240
2.3 No Written Contract, No Assumed Responsibility, No Consideration, No Duty of
Care, No Negligence:

It is most humbly submitted to the honourable court that since there is no written
contract, no assumed responsibility and no consideration, there is no duty of care on part of
Vivek Vardhan towards Syam Sundar and therefore, it cannot be termed as negligence.

Therefore, Vivek Vardhan does not owe a duty of care to render factual legal advice
to Syam Sundar and is not liable to pay damages to compensate Syam Sundar.
 Prayer for Relief

Therefore, in the light of facts stated, issues raised, arguments advanced, authorities cited,
provisions relied upon, it is most humbly prayed that this Honourable Court may graciously
be pleased to:

Entitle the appellant does not owe a duty of care to render factual legal advice to Syam
Sundar and set aside the Lower Court decision of appellant’s liability of paying damages for
compensating Syam Sundar.

(or)

grant any such other relief as the Court may deem fit in the light of justice, equity and good
conscience.

And For This Act Of Kindness The Appellant Shall Duty Bound Ever Pray.

COUNSEL FOR THE APPELLANT