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GLS LAW COLLEGE MEMORIAL FOR MOOT COURT

IN THE HON’BLE MOOT COURT OF GLS LAW COLLEGE

IN THE MATTER OF

KAPOOR AND SONS ………………………………………………………… APPEALANT

Vs.

Mr. SHAH …………………………………………………………………………….DEFENDANT

Name: - Bhavya Gandh

Roll No.:- 72

MEMORIAL ON BEHALF OF THE APPEALANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………..3

WEBSITES……………………………………………………………………………….4

INDEX OF AUTHORITIES …………………………………………………………5

STATEMENT OF JURISDICTION ………………………………………………6

STATEMENTS OF FACTS ………………………………………………………..7

STATEMENT OF ISSUES …………………………………………………………10

SUMMARY OF ARGUMENTS …………………………………………………11

ADVANCED ARGUMENTS ……………………………………………………..12

PRAYER ………………………………………………………………………………..17
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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANDED FORM

HON`BLE HONOURABLE

AIR ALL INDIA REPORT

ART. ARTICLE

CJ. CHIEF JUSTICE

CO. COMPANY

Edn. EDITION

ICA INDIAN CONTRACT ACT

IPA INDIAN PARTNESHIP ACT

HC HIGH COURT

SC SUPREME COURT

LR LAW REVIEW

J JUSTICE

NO. NUMBER

Rs. RUPEES

Pg. PAGE

Pvt. Private

V. VERSUS
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Index Of Authorities

Statutes
1. Indian Contract Act, 1872
2. Indian Partnership Act,1932

Dynamic links
1. www.Indiakanoon.com
2. www.Legalcrystal.com
3. www.Lawoctopus.com
4. www.wordpress.com
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CITED CASES AND REFERRED

Mohoribibee V.S dharmodasghose

Mr.G.Manjunath V.S Mr.M.J.Siwai on 24 october 2013

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court exercises jurisdiction to hear and adjudicate over the matter under Article
133 in the constitution of India.

Since the matter is same for all the assessment years, the appellant has filed a single writ petition
before the Hon’ble court. The provision under which the appelant has approached the Honourablecourt
is read herein under as:

Article 133 in The Constitution Of India 19491

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court in the territory of India if the High Court certifies under Article 134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause
( 1 ) may urge as one of the grounds in such appeal that a substantial question of law as to the
interpretation of this Constitution has been wrongly decided

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High
Court.

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Article 133 in the constitution of india 1949
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STATEMENT OF FACTS

FOR THE SAKE OF BREVITY AND CONVENIENCE OF THE HON’BLE COURT ,THE FACTS
OF THE CASE ARE AS FOLLOWS.

1.The Republic of Farlie is a newly established democratic republic state. The Constitution of Farlie is
considered to be the lengthiest constitution of the world. Although the Republic of Farlie is a very small
and not financially very strong country, it has well-formulated provisions for the welfare of its citizens
but it lacks provisions for various medical services.

2.Mr. Shah, a philanthropist, loyal and successful citizen of the Republic of Farlie, established a hospital
“High Hopes” in Twizel which is the capital of the Republic of Farlie. The objectives for the
establishment of the hospital were to provide good health care services at a subsidized and affordable
price to all the citizens of the country. The hospital gained great reputation for innovating and
introducing new medical techniques, thus gaining popularity and earning great profits. Highly qualified
and experienced doctors were recruited in the hospital.

3.Kapoor& Sons, a leading pharma partnership firm of Farlie, found a new medicine to cure tuberculosis
which was rampant in Farlie. Kapoor& sons was a registered partnership firm under the Farlie
Partnership Act, 1932. It was registered on 10 January 2010. It consisted of four members – Sanjay
Kapoor aged 45, Anil Kapoor aged 39, ArjunKapoor aged 28 and Harsh Kapoor aged 17 years. It had its
head office in Twizel. Mr Shah wanted to have partnership with Kapoor& Sons to make the medicine
available to his hospital at a subsidised rate.

4.With this intention, Mr. Shah, sent an e-mail to the firm on 15 February 2011 offering the firm for the
acceptance of the contract. As the medicine was produced with new technology, Mr. Shah mentioned in
his email:

a) The technology for production of the medicine for tuberculosis shall be shared by High Hopes
Hospital with Kapoor& Sons under a Non-Disclosure Agreement and which the latter may use solely for
production of the medicines under this Contract.

b) Kapoor& Sons shall indemnify High Hopes Hospital for any contingency arising out of the use of
medicines made pursuant to this contract.
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5.Due to the non-availability of the other members, Harsh Kapoor, responded to the email positively
stating that the firm accepts the offer made by the High Hopes Hospital.

6.However, after other partners of the firm returned, Harsh orally explained them of the email without
mentioning the 2 terms laid down in the email. The other partners saw this as a lucrative business
opportunity and proceeded to perform the contract without delay.

7.Once the medicines had been supplied, High Hopes hospital started using the same for treatment
purposes. However, one patient JayrajShinde who was being treated by the medicines fell very ill one
evening. Tests conducted upon him showed that tuberculosis cells in his body were now growing at a
very rapid rate. With much difficulty, he was saved and the use of medicines upon him was immediately
stopped. However, he suffered from prolonged pain and had to go through the treatment for an extra
year compared to what the prognosis had been earlier. This increased his medical bill by Rs. 55,000.

8.Traumatized by the situation JayrajSinde’s wife demanded compensation from Hospital. On being
refused, she approached the District Court.

When the matter was heard, the doctors, took the contention that his condition was already quite bad
when the treatments began and that he was not co-operating with the hospital staff, specifically, by not
taking the medicines on time. They further contended that use of medicine had no connection with the
worsening of Jayraj’s illness and cited that several other patients being treated by this medicine were
showing signs of improvement. However, The District Court held that Jayraj’s wife is liable to get
compensation of Rs. 75,000 under the law of the land and attributed duty of care upon the hospital.

9.The Hospital informed Kapoor& sons about the incident and asked them to pay the compensation
according to the liability clause mentioned in Mr. Shah’s email. The firm denied the existence of any
such contractual term. High Hopes hospital then sued Kapoor& sons for paying the sum of indemnity.

10. The defendant contended that the contractual term was void as it was entered into by a minor. The
District Court held that the contract is valid as the firm had later approved of the contract by performing
their obligation under the contract and accepting the consideration under the same.
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11. Kapoor& sons appealed to High Court of Twizel. However, the High Court upheld the judgement of
the District Court. Aggrieved by the judgement of the High Court, Kapoor& Sons filed an appeal in the
Supreme Court.
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STATEMENT OF ISSUES

1. Were the medicines supplied by the firm Kapoor and sons the main cause of illness of JairajShinde ?

2. The medicines supplied by the firm Kapoor and sons showed the improvement in other patients?

3. As we know that the contract with the minor is void ab initio but the firm accepted the offer and
supplied the medicines.
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SUMMARY OF ARGUMENTS

1. WERE THE MEDICINES SUPPLIED BY THE FIRM KAPOOR AND SONS

THE MAIN CAUSE OF ILLNESS OF JAIRAJ SHINDE ?
As the defendant Mr. Shah said that for each loss caused by the medicines will be fulfilled by the firm
Kapoor and sons (indemnity cost).

Then the doctors of the high hopes hospital said that jairaj’s condition was already quite bad when the
treatments began and that he was not co-operating with the hospital staff ,specially by not taking
medicines on time. They further contended that use of medicines had no connection with the worsening
of Jairaj’sillness and cited that several patients treated by this medicine were showing signs of
improvement.

2. The medicines supplied by the firm kapoor and sons showed the improvement in
other patients ?
The doctors of the High Hopes hospital said ;

They further contended that use of medicine had no connection with the worsening of Jayraj’s illness
and cited that several other patients being treated by this medicine were showing signs of improvement.
However, The District Court held that Jayraj’s wife is liable to get compensation of Rs. 75,000 under the
law of the land and attributed duty of care upon the hospital.

3. .As we know that the contract with the minor is void ab initio but the firm
accepted the offer and supplied the medicines.
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ADVANCED ARGUMENTS

1.Were the medicines supplied by the firm Kapoor and sons the main cause of illness of
JairajShinde?

As the defendant Mr. Shah said that for each loss caused by the medicines will be fulfilled by the
firm Kapoor and sons (indemnity cost).
Then the doctors of the high hopes hospital said that jairaj’s condition was already quite bad when the
treatments began and that he was not co-operating with the hospital staff,specially by not taking
medicines on time. They further contended that use of medicines had no connection with the worsening
of Jairaj’s illness and cited that several patients treated by this medicine were showing signs of
improvement.

In the above paragraph we see that when Jairaj was brought to the hospital he was in a bad condition
already and was not cooperating with the doctors in the hospital he himself was not willing to eat
medicines and as he did not take the precautions and medicines on time.

So this shows that it was hospital itself which was negligent on their part as they did not give the person
correct counseling to take medicines so the asked compensation will not be provided from the firm
Kapoor and sons.

INDEMNITY

Insurance, assurance, protection, security, indemnification, surety, endorsement, guarantee, warranty,

safeguard security or protection against a loss or other financial burden

Security against or exemption from legal responsibility for one's actions it is a type of claim which a
guilty person is liable to pay to fulfill the loss.
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As said in the condition in the e-mail of Mr. shah that if the medicines cause any harm to any of the
patients the hospital will not be liable the whole credit of compensating will go to the firm Kapoor and
sons or they have to pay the indemnity cost levied on the hospital

According to this condition there must be a negligence on the part of the firm and there should be some
ill effects caused by the medicines of the firm but when the doctors of the hospital stated that there was
no mistake on the part of medicine it was the patient himself who was not cooperating with the hospital
staff. Hence the firm is not liable to pay any compensation to Jairaj’swife.

2.the medicines supplied by the firm showed signs of improvement in other patients.

If the medicines showed the improvement signs or the people were overcoming their illness then the
firm is not liable to pay the compensation to jairaj

As stated in the upper issue that the hospital itself was liable on the negligence faced by jairajshinde

Case2 Mr.G.Manjunath vs Mr.M.J.Siwani on 24 August, 2017

The case of the plaintiff is that, the plaintiff is the owner of the suit schedule property after and the
defendant was inducted as a tenant. The plaintiff's mother-Bhagyalakshmamma is said to have passed
away, whereby plaintiff is said to have

been succeeded to the suit schedule property and the defendant is said to have continued as a tenant from
4-7-1987, by paying monthly rent of Rs.2,390/- exclusive of electricity charges and tenancy being
English Calendar month. M/s.H.M.Enterprises was said to be represented by M.J.Siwani, who is said to
have taken the suit schedule property on rent in terms of the Rent Deed dated:4-7-1987 and the
defendant is said to be an entity and represented by Siwani. The Rent Note is said to be signed by that
Siwani as a lessee and rent receipts to have been drawn in the name of the defendant. The defendant is
said to be a chronic defaulter in payment of the monthly rent and the defendant is said to be due to pay

2
Mr.G.ManjunathvsMr.M.J.Siwani on 24 August, 2017
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the rent for the period from August 2007 to January 2011 for a period of 42 months amounting to
Rs.1,00,380/-.

There are said to be no sufficient cause or reason for the defendant to with-hold the payment of rents.
The defendant is said to have failed and neglected to pay monthly rent as and when due, whereupon, the
defendant is said to be liable to pay interest at the rate of 18% per annum from the date of suit till the
date of payment. The suit schedule property is said to be a non-residential premises measuring 300
square feet and the defendant is said to have kept the schedule property under lock and key.

Legal notice dated:11-2-2011 was said to have been issued by the plaintiff through RPAD and
certificate of posting, which is said to be duly served and the other registered covers are said to have
been returned unserved. The defendant is said to be aware of the contents of the notice and therefore,
plaintiff is said to have duly terminated tenancy of the defendant in respect of schedule property.

The defendant, though aware of the contents of the legal notice, is said to have neither replied, nor
complied and to have failed to discharge its statutory obligation to vacate and deliver vacant possession
of the suit schedule property even after termination of tenancy. The schedule property is said to be
situated in a prime potential location of Malleswaram and to be a business centre and the defendant is
said to have failed to vacate the schedule property even after termination of tenancy and to be still in its
possession.

Therefore, is said to be liable to pay mesne profits at the rate of Rs.20,000/- from the date of suit till
handing its possession. Hence, filed the suit.

In the written statement the defendant has contended that the plaintiff to have instituted the suit
suppressing the material facts. There is said to be no landlord and tenant relationship between the
plaintiff and the defendant. The plaintiff and the father of the defendant are said to have knowledge of
the business relationship and it is said to have been grossly misrepresented. The defendant is said to be
not in possession of the suit schedule property and it was said to have been let out to one M/s.H.M.
Enterprises by Smt.G.R.Bhagyalakshmamma, under Rent Lease Deed dated: 4-7-1987. In this regard,
the rent advance receipt executed by G.R.Bhagyalakshmamma and M/s.H.M.Enterprises produced by
plaintiff is said to show that the defendant is said to be not a tenant.

In the oral evidence, has stated that as per the Will-Ex.P3,

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he and his wife are the co-owners of the suit schedule property, but in the plaint there is no reference to
that Will, which is in fact admittedby P.W.1. His mother is said to have let out the property to the
defendant in his personal capacity in the year 1987. His statements are as follows:

"My mother had let out the property to the defendant in his personal capacity. It is false to suggest that
my mother had let out the property in favour of H.M.Enterprises."

JUDGMENT : The judgement given from the SC has ordered

Not to compensate

that as it was the negligence from the side of hospital as well as the doctors

treating that patient.

As mentioned in the cases and the facts that the medicines had worked on the other patients and just
because the misconduct of the hospital the firm is not liable to give the compensation and the
compensation should be given by the hospital only to the patient JayrajSindhe.
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3.As we know that the contract with the minor is void ab initio but the firm accepted the offer and
supplied the medicines.

As when he spoke up the e-mail from Mr. shah all the other partners are major and can do the contract
so they were the one to decide that whether they have to supply the medicines or not but they found the
deal very attractive and accepted the offer made by Mr. Shah.

There is not even mentioned in the facts that the contract was headed by the minor as referred in the sub
section (2) of section 30 of partnership act1932 that minor is only entitled to be a part in attaining the
profits and the property in the firm.

The subsection (3) states that the minor is not entitled to incur losses.

According to section 73 of the Indian Contract Act,1872 what is breach of contract and what are the
remedies under that is mention as :

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. Such compensation is not to be given for
any remote and indirect loss or damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by. contract.-When an
obligation resembling those created by contract has been incurred and has not been discharged, any
person injured by the failure to discharge it is entitled to receive the same compensation from the party
in default, as if such person had contracted to discharge it and had broken his contract.

The medicines which were given to the patients are always certified and the medicines which are made
by the company Kapoor and Sons is also not harmful for the patients to whom it is given. If only one
patient is getting bad or harmful effects with use of it, it cannot be said that the medicines were not
manufactured properly and the term is not fulfilled but there was the negligence of the hospital that they
should take the proper care of their patient.

So, the firm had not done any beach of contract as the mentioned term was fulfilled by the firm
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PRAYER

THAT THE FIRM KAPOOR AND SONS ARE NOT LIABLE TO PAY THE COMPENSATION TO THE
HOSPITAL AND ANY LEGAL CAUSE FOR THE HARASSMENT TO THE FIRM.

ANY OTHER RELIEF WHICH THE HONORABLE COURT WOULD BE PLEASED TO ADD AND
GRANT THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE. ALL OF WHICH IS
HUMBLY SUBMITTED.