PROBLEM 2

CLINICAL COURSE IV: MOOT COURTS

___________________________________________________________________________

BEFORE
HON'BLE CITY CIVIL COURT BENGALURU

___________________________________________________________________________

ORIGINAL JURISDICTION

__________________________________________________________________________

OS_1325_ OF 2020

RAJASHEKHAR (GUARDIAN)............................................................................ PLANTIFF

QUICKMART PVT LTD................................................................................ DEFENDANT 1

MR.RATTAN………………………………………………………………..DEFENDANT 2

FILED UNDER SECTION 9 OF THE CIVIL PROCEDURE CODE, 1908

___________________________________________________________________________

UPON SUBMISSION TO HON’BLE JUDGES OF THE

CITY CIVIL COURT, BENGALURU

___________________________________________________________________________

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 MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS. PG.NO

1. INDEX OF AUTHORITIES 3-4

2. STATEMENT OF JURISDICTION 5
3. STATEMENT OF FACTS 6-7
4. STATEMENT OF ISSUES 8
5. SUMMARY OF ARGUMENTS 9
6. ARGUMENTS ADVANCED 10-19
7. PRAYER 20

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 INDEX OF AUTHORITIES

TABLE OF ABBREVATIONS AND SYMBOLS

S.NO ABBREVIATION DEFINATION

1. AI Artificial intelligence
2. AIR` All India reporter
3. ALL Allahabad
4. AP Andra Pradesh
5. Art Article
6. Bom Bombay
7. Cal Calcutta
8. Ch Chapter
9. Co. Company
10 Ed. Edition
11. Govt. Government
12 HC High court
13. Hon’ble Honourable
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 CASE CITATIONA FOOTNOTE

NO
1. Atlantic mutual insurance co (1879)chd474,481(CA) 17
v.huth
2. Anthoy Thomas b ayuppuni mani AIR 1960 Ker 176 33
3 A.L mustaneer establishment v. AIR 1998 Del LT 186 1
Varuna overseas (P) ltd
4. Ajith singh v. kakbhir singh AIR 1992 & H 193 3

3
5. Atamal ramoomal v deepchand Air 1939 Sind 33 5
kessurmal
6. Anant das v. ashburner &co. AIE (1876) 11
7. Babulal v. jagat narain AIR 1952 AP 51 24
8. Benaras bank ltd v prem and co. AIR 19137 all 255 25
9 Bensten v. taylor (1893)2 QB 274 p.281 32
10 Bahaurao dagdu v. state of AIR2005 SC 3330 1
maharastra
11 Boistrub charan v. Wooma charm (1889) 16 Cal 436 3
12 Baivijli v. Nansa Nagae AIR1885 10 Bom 152 7
13 Coringa oil co v.keogler (1876) 1 Cal 466,468-469 26
14 Denzyl winstoon ferries v. abdul AIR 1992 AP 246 11
Jaleel
15 Gopal lal v.babulal AIR 2004 CLT 161 Raj 14
16 Gopalrao v. kallappa AIR 1901 3Bom LR 164 3
17 Gehrulal v.mahadeo AIR1959 2SCA 342 4
18 Harikrishna pilai v.authilacmy AIR 1916 lower Burma 51 10
ammal
19 Jessup and co ltd v. dist board of AIR 1931 Cal 423 3
monghyr
20 Kamal singh dugar v.corporated AIR 1963 Cal 454 8
engineers pvt ltd
21 Laxmanlal v. mushankar AIR 1908 32 Bom 449 4
22 Lailaw v. organ 15 U.S 178 (1817) 15
23 Munshi amir ali v. inderjitkoer
AIR 1871 BENGAL LR 11
460`
24 Ningawwa v. byrappa shiddappa AIR 1968 SC 958 11
hirekurbar
25 Lool karan v. john and co. AIR 1967 ALL 308,311 16

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 STATEMENT OF JURISDICTION

The learned District court of Bengaluru exercises jurisdiction to hear and adjudicate the present
suit under section 9 of the code of civil procedure,1908.
The provisions under which the plaintiff has approached this Hon’ble Court and to which the
plaintiff humbly submit is read herein under as:

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

“The court shall (subject to the provisions herein contained) have jurisdiction to try al suits of
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 contented is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decisions of the
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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 FACTS OF THE CASE

Mr. Rahul the plaintiff in the present case ordered a laptop of a specific configuration from
“Quickmart.com” an e-commerce website which is a private company renowned as a leading
destination for online shopping which deals with sale of fresh electronic gadgets. the plaintiff
placed an order for the laptop worth 75000 which fitted his specification and the payment was
made through cash-on-delivery. Upon receiving the product, it was found out by the plaintiff
the product which he ordered was differed from the product which was delivered. On account
of the inconvenience caused the plaintiff lodged a complaint on the customer care of the
website ‘quickmert.com’. after certain days, the plaintiff got a call by the customer care
department saying that the product which was delivered was same as the one which was ordered
by the Plaintiff. Further the customer care department of the said e-commerce website said that
they would look into the matter and revert back as soon as possible. The plaintiff did not receive
any communication with the issue after waiting for a reasonable time period from the company.
After waiting for such a long period the plaintiff went to the office address for further enquiry.
It was told by the company that since the company outsources orders from private retailers as
agents of the company, the retailers are the ones who dispatch the products. After receiving the
retailers address the plaintiff went to 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 sent
whatever was asked to him.
Upon opening the product, the plaintiff finds that the product was a defective one and he called
the service centre of the laptop who said that since the product was bought through the website
the e-commerce company would provide the warranty. On-going back to the quickmart.com
website the plaintiff finds out that his purchase history was erased by the company.
The plaintiff after being disheartened and disappointed because of the incident 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 Rahul retailer as agent
personally assured him by providing a written acknowledgement on the letter pad of the
company admitting that such laptop will be replaced within 10days and the petitioner would
have no complaint against company in near future. Plaintiff did not find any solution in this
regard even after a month and gave a notice to the agent as well as the company regarding
doing the needful in this regard within 15days but no reply was given by any of them on this
matter.

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 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 AGENTS ACTS ON BEHALF OF HIS PRINCIPAL
2.2 THAT THE ACTES OF THE AGENT WERE AUTHORIZED.

3 WHENTHER THE OLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN

ONLY CLAIM DAMAGES ?
3.1 THAT THE PLAINTIFF CAN REPUDIATE THE CONTRACT

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 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 Defendant’s failure of fulfilment 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 “ contract entered into through an agent, and
obligation 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 configuration required by the plaintiff was the
main purpose of the contract. The stipulation in question is ‘condition’ and not a warranty.
Therefore, the plaintiff can repudiate the contract and also claim loses from defendant No1.

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 ARGUMENTS ADVANCED

1.WHETHER THERE IS BREACH OF CONTRACT ?

It is submitted that 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,1872 STATES “ all agreements are contract 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 al 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 in an agreement.”
A promise is a result of a proposal by one person and its acceptance by the other.
A proposal is defined under section2(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 asent 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 Defendant
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, 1872 IS 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.

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 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 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. 1However, 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 contract2. 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 minor’s 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.
3) 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, or is
fraudulent; or
iii) Involves or implies, injury to the person of another.7

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iv) The court regards it as immoral, or opposed to public policy
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, Agreement in
restraint of trade,10 Agreement in restraint to legal proceedings, Unmeaning agreements,
Wagering Agreements 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 obligations15.”

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 Defendant’s 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

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.
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
company’s 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.

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3. After the Plaintiff is denied warranty at the service centre at the premise that warranty is
not applicable by the service centre 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 intentions 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 company’s 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 company’s 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 Hon’ble court that the Defendant No.1 is liable for breach
of contract in the instant case.

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 allium facit per se
i.e. one who does an act through another is deemed in law to do it himself.
As it is 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.

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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
only reasonable and prudent course to take18.
ii. 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 results.
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 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.
In Suga Keur v. Firm Brijraj26 Ramniwas it 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 Agent.

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 Agent’s authority.”

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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 parties.

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 Agent’s authority.

Also, in Ram Pertab v. G Marshall28, their Lordships of the Judicial Committee of the Privy
Council held
:“The right of a third party against the Principal on the contract of his Agent though
made in excess of Agent’s 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.

3.WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN

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 repudiated. “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

“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.”

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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 Bentsen v. Taylor,
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 contract in
the light of the surrounding circumstances, and then making up one’s 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 promised- would 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, 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 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.

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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. Ismail37 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 Hon’ble court that the plaintiff can repudiate the
contract.

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 PRAYER

In light of the issues raised, arguments advanced and cases cited it is most humbly prayed
before this Hon’ble Court-

A. 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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