VIDHITVA’19 (FRESHER’S MOOT COURT COMPETITION)

BEFORE

THE LEARNED CIVIL COURT OF RANCHI

AT RANCHI, JHARKHAND

CIVIL SUIT NO.: ______ /2019

IN THE MATTER OF

MS. LEELA SHETH………….…………………………………………………PLAINTIFF

V.

CENTRAL PERK, RANCHI…….…………………………………………...DEFENDANT

MEMORANDUM ON THE BEHALF OF DEFENDANT

CONTENTS

ABBREVIATIONS........................................................................................................................2
INDEX OF AUTHORITIES............................................................................................................3
STATEMENT OF JURISDICTION..................................................................................................4
STATEMENT OF FACTS..............................................................................................................5
SUMMARY OF ARGUMENTS.....................................................................................................8
ARGUMENTS ADVANCED..........................................................................................................9
PRAYER...................................................................................................................................16

MEMORENDUM ON THE BEHALF OF DEFENDANT 1

 ABBREVIATIONS

MEMORENDUM ON THE BEHALF OF DEFENDANT 2

 INDEX OF AUTHORITES

LIST OF STATUTES
 THE CODE OF CIVIL PROCEDURE, 1908
 THE INDIAN CONTRACT ACT, 1872
 THE CONSTITUTION OF INDIA, 1945

LIST OF BOOKS
 POLLOCK AND MULLA, THE INDIAN CONTRACT ACT (LEXIS
NEXIS, 14TH EDITION 2013)
 AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF (EBC, 12TH ED.
2017)
 LAW RELATING TO ELECTRONIC CONTRACTS-R.K. SINGH (2013)

WEB SOURCES
 www.westlaw.india.com (WESTLAW INDIA)
 www.manupatra.com (MANUPATRA)
 www.scconline.com (SCC ONLINE)

MEMORENDUM ON THE BEHALF OF DEFENDANT 3

 LIST OF CASES
 L’Estrange v E. Graucob Ltd-(1934) 2 KB 394
 Hotmail Corporation vs. Van Money Pie Inc-1998 WL 388389, 47 U.S.P.Q.2d
(BNA) 1020 (N.D. Cal. 1998)
 Parker v South Eastern Railway Co-(1877) LR 2 CPD 416 (CA)
 Feldman v Google,Inc-513 F.Supp.2D 229 (E.D.Pa.2007)
 Dhulabhai v State of MP-1969 AIR 78,1968 SCR (3) 662

STATEMENT OF JURISDICTION

The counsel for the Plaintiff humbly submits to the jurisdiction of this Learned Civil
court under section 91,15,2193 and 204 of the Code of Civil Procedure, 1908 read with
section (13)5 of Information Technology Act 2000.

1
The Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
2
Every suit shall be instituted in the Court of the lowest grade competent to try it.
3
Suits for compensation for wrongs to person or movables : Where a suit is for compensation for
wrong done to the person or to movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on business, or personally works for
gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the
option of the plaintiff in either of the said Courts.

4
Other suits to be instituted where defendants reside or cause of action arises -Subject to the
limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction - (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 (c) the cause of action, wholly or in part, arises
5
Time and place of dispatch and receipt of electronic record. –
(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an
electronic record occurs when it enters a computer resources outside the control of the originator.;
Save as otherwise agreed between the originator and the addressee, the time of receipt of an
electronic record shall be determined as follows, namely:- the addressee has designated a computer
resource for the purpose of receiving electronic record,- receipt occurs at the time when the
electronic record enters the designated computer resources; or
if the electronic record is spent to a computer resources of the addressee that is not the designated
computer resource, receipt occurs at the time when the electronic record is retrieved by the
addressee;

MEMORENDUM ON THE BEHALF OF DEFENDANT 4

STATEMENT OF FACTS

BACKGROUND:

Central Perk is one of biggest restaurant chains in India. It had its first outlet in
Ranchi and now there are close to 20 restaurants across India. The highlights of this
place apart from its excellent service and fusion food is the live performances by
various artists from across India. The procedure for those who were interested in the
job was that they have to fill the agreement present under the Contract Tab of the
restaurant’s website available online. The agreement for employment ended with the
artist clicking on I agree button with a Clause 32 stating that: Kindly click on I Agree
button to enter into a contract with us. This would imply that you have given consent
to each and every term of this Contract. In the end there was a small asterisk mark
beside the Registered Paytm Number Clause which was mentioned in the end of the
agreement in fine print below the I Agree Button which read as follows:
Notwithstanding anything an employee absent for performing without a minimum two
days’ notice intimidating the relevant authority about the reasons for the same would
become liable to pay reasonable compensation to the employer. The amount would
be deducted from the Paytm wallet of the employer.

FORMATION OF CONTRACT:

On 22.07.19 Ms Leela Sheth( (who was previously also a part of two employment
agreements which used e-contract) went on to the website of the restaurant and
entered into an agreement with them by clicking on I Agree. Her performances were
scheduled on 28.07.19 and 01.08.19. While returning home on the night of 28.07.19
if the addressee has not designated a computer resource along with specified timings, if any, receipt
occurs when the electronic record enters the computer resource of the addressee.
Save as otherwise agreed to between the originator and the addressee, an electronic record is
deemed to be received at the place where the addressee has his place of business.

MEMORENDUM ON THE BEHALF OF DEFENDANT 5

after giving her first performance at the restaurant, she met with an accident
fracturing her Right Leg along with few other bruises. She returned home from
hospital on 30.07.19. Due to her broken leg she was not able perform at the
restaurant and when on 01.08.19 she called to notify the manager about the same,
the call was unanswered.

CAUSE OF ACTION:

On the same night, she received a message from her Paytm that a sum of INR 6000
had been deducted from her wallet and paid to Central Perk.Ms. Leela filed a suit
against them demanding refund of the sum deducted from her account without her
consent under an invalid contract. She stated that she had only linked her Paytm
Wallet with the Restaurant for receiving her Monthly salary.

MEMORENDUM ON THE BEHALF OF DEFENDANT 6

 ISSUES RAISED

1.WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PRESENT SUIT IS NOT MANTAINABLE?

2.WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PRESENT CONTRACT IS VALID?

3.WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PRESENT CONTRACT PROVIDED FOR REASONABLE
NOTICE OF THE TERMS AND CONDITIONS AT THE TIME WHEN
OFFER WAS MADE?

MEMORENDUM ON THE BEHALF OF DEFENDANT 7

 SUMMARY OF ARGUMENTS

(1)THAT THE FACTS AND CIRCUMSTANCES IN THE CASE AND LAW

THE SUIT IS NOT MAINTAINABLE UNDER SECTION 58 OF THE
INFORMATION TECHNOLOGY ACT

It is humbly and respectfully submitted before the learned court that the Cyber
Appellate Tribunal also has jurisdiction over this kind of dispute, which has speciality
in this kind of matter. The suit should have been filed in the aforementioned Tribunal
to reduce the multiplicity of proceedings and to ensure speedy delivery of justice.

(2)THAT THE PRESENT FACTS AND CIRCUMSTANCES IN THE CASE

AND LAW SIGNIFY THAT THE CONTRACT IS VALID

The contract is valid as the contract constitutes to be a legally enforceable contract

fulfilling all the conditions specified under Indian Contract Act of 1872 read with
Information Technology Act of 2000 i.e. offer, acceptance, lawful consideration,
lawful object, competency of the parties, certainity and possibility of legal
performance and free consent.

(3) THAT THE PRESENT FACTS AND CIRCUMSTANCES IN THE CASE

AND IN LAW THE CONTRACT PROVIDED FOR REASONABLE NOTICE
AT THE TIME OF MAKING AN OFFER

It is humbly and respectfully submitted before the learned court that the contract
constitutes between both parties will consider to be legally binding as the reasonable

MEMORENDUM ON THE BEHALF OF DEFENDANT 8

notice was given by the defendant. In order for Standard Terms and Conditions to be
enforceable, notice of those terms and conditions must be given by way of a
“reasonable means of knowledge” for the contracting parties. The plaintiff provided
the notice prior to the formation of the contract in a reasonable manner making the
contract enforceable.

ARGUMENTS ADVANCED

(1) THAT THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PRESENT SUIT IS NOT MANTAINABLE

It must be humbly submitted before the court that the dispute in the present case
involves a suit which is not maintainable in the civil court owing to the classic
decision of Dhulabhai v State of MP, the Supreme court concluded that:

“Where a statue gives finality to order some special tribunals, the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit.”

Section 58 of the Information Technology Act,2000 states that:

In order to discharge its functions efficiently, the Tribunal has the same powers as
vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a
suit in the following matters:

Summoning and enforcing the attendance of any person and examining him under
oath
Ensuring the availability of the required documents or electronic records
Receiving evidence on affidavit. Issuing commissions for examining witnesses or
documents Reviewing its decisions. Dismissing an application for default or deciding
it ex-parte, etc.

MEMORENDUM ON THE BEHALF OF DEFENDANT 9

The counsels for the defendant humbly submit before this court that the suit filed by
the plaintiff in this case should be filed in the Cyber Appellate Tribunal which has
been instituted specially for the aforementioned kind of disputes.

(2) THAT THE FACTS AND CIRCUMSTANCES OF THE CASE THE

CONTRACT IS ENFORCEABLE BY LAW
THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASES
AND IN LAW THE CONTRACT HAD A VALID OFFER:
The starting point of a contract is offer. An offer is said to be made when one
party expresses his willingness to do or abstaining from doing something in order
to receive assent of the other party of such act or abstinence 6. An offer is an
expression of willingness to contract on certain terms, made with the intention
that it shall become binding as soon as it is accepted by the person to whom it is
addressed. In the formation of a valid contract, offer is one of the very important
Requirements. In E-contract, an offer is considered to be made when it comes
within the knowledge of the offeree. In simple sense, while scrolling an online
shopping site, what they offer to public is invitation to offer. An invitation to
offer is not an offer, but an indication of a person’s willingness to negotiate a
contract.

In the present case the new procedure adopted by the company that those
interested in the job would have to fill the agreement online which included
filling of their personal details, prior experience and salary of the interested artist
shows an invitation to offer and the defendant by accepting it forms an offer.

2.2 THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

AND IN LAW THE CONTRACT HAD A VALID ACCEPTANCE

Acceptance is a final and unqualified expression of assent to the terms of an offer.

Signing of a contract is one way in which a party may show its assent. The ‘Mirror

Image Rule’ states that if one has to accept an offer, one must accept that offer exactly
without modifications. Counter offer kills the original offer. Therefore, acceptance
6
Section 2(a) of Indian Contract Act of 1872

MEMORENDUM ON THE BEHALF OF DEFENDANT 10

must be a volition act, performed freely, deliberately, and with the intent to enter a
contract on the terms of the offer. When the person receiving such offer provides
assent for it, it is considered acceptance under Section 2(b) of Indian Contract Act of
1872. It is necessary to communicate the acceptance to the offeror. When we agree by
clicking, ‘I Agree’ to the terms and conditions of a click wrap agreement it is a form
of acceptance. L’Estrange v E. Graucob Ltd In this case, The claimant, L’Estrange,
contracted to purchase a slot machine for cigarettes from the defendant, Graucob,

and the agreement included an express clause stating ‘This agreement contains all
the terms and conditions under which I agree to purchase the machine specified

above and any express or implied condition, statement, or warranty, statutory or

otherwise not stated herein is hereby excluded’. The machine proved to be faulty and

the claimant thus brought an action against the defendant, alleging that the machine
breached the Sale of Goods Act by not being of merchantable quality. The defendant

asserted that the statute was made irrelevant by the express clause, and that he was
not in breach of the agreement they had made. The claimant responded she had

been unaware of the clause as she had not properly read the agreement and it ought
not apply. Now the issue arises whether the clause excluding all terms not stated in

the contract should be deemed effective and binding and The Court of Appeal found
for the defendant, determining that the express provisions of the contract were

binding and effectively excluded the relevance of statutory sales provisions.

Furthermore, the fact that the claimant had not properly read the contract did not

impact its validity, as in signing the contract she consented to be bound by its
contents. 

In the present scenario the plaintiff went on to the website of the restaurant and
entered into the agreement with the defendant by clicking on I Agree.

2.3 THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

AND IN LAW THE CONTRACT HAD A LAWFUL CONSIDERATION

The term consideration means the benefit or rewards for which the parties have
agreed to fulfil legal obligations in the contract. Section 2(d) of Indian Contract Act of
1872 defines ― “consideration of a promise” as any act where promise agrees on
demand of promisor for doing or abstain from doing any act. Thus, consideration

MEMORENDUM ON THE BEHALF OF DEFENDANT 11

should be such which is not prohibited by law and falls within the ambit of the legal
framework7 In absence of it the contract will be considered void 8. Consideration
constitutes the very foundation of the contract. Consideration is the cause of the
promise and its absence would make the promise a gratuitous or bare promise (nudum
pactum). Here we see
in this case that the plaintiff agreed to give life performances for Central Perk in
return for a fixed amount of salary for which the artist had to link their Paytm with the
website server of the restaurant. Thus, the element of lawful consideration is present
in the contract.

2.4 THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

AND IN LAW THE CONTRACT HAD A LAWFUL OBJECT

The object for entering into a contract must be lawful as per Section 23 of Indian
Contract Act of 1872. For Example: Hyderabad Police alleged that many e-retailers
on Snapdeal were selling arms to people and arrested 12 people in such regard. In this
case selling arms is illegal, therefore a contract in relation to it is void.
Here the object is conduction of a business activity which would provide
remuneration to the plaintiff and profit to the defendant. Thus, the object of the
present case is lawful and the contract is enforceable.

2.5 THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

AND IN LAW THE PARTIES WERE COMPETENT TO ENTER INTO A
CONTRACT

Parties to the contract must be in a capacity to enter into it allowed by the law to form
a valid contract9. The parties to the contract must have attained the age of majority,
should be of sound mind and not disqualified by law as specified in Section 11 of
Indian Contract Act of 1872. However, in case of e-contract the liability is on the
seller to ensure that the other party is competent to enter into the contract. They can
ensure it through signing up process, or expressly accepting the age clause.

7
Section 23, Indian Contract Act of 1872

8
Section 25, Indian Contract Act of 1872

9
Section 10, Indian Contract Act of 1872

MEMORENDUM ON THE BEHALF OF DEFENDANT 12

Here the plaintiff was competent to be a party to the contract can be traced by the fact
that she was previously a part of two other employment contracts which states that she
is not disqualified by law to enter into a contract. The company being a legal entity is
also entitled to be a competent party to the contract.

2.6 THAT THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PARTIES HAD AN INTENTION TO ENTER INTO LEGALLY
BINDING RELATIONSHIP

Intention to create legal relations is defined as an intention to enter a legally binding

agreement or contract. Intention to create legal relations is one of the necessary
elements in formation of a contract. It is because, intention to create legal relations
consists of readiness of a party to accept the legal sequences of having entered into an
agreement. There are a few concepts of intention to create legal relations.

a) The contracting parties mind will be obvious to enter a serious contract

b) If there is no intention to create legal relations the contract would not be
enforceable, legal and binding
c) Without intention to create legal relations, the parties cannot sue each other
d) Without intention to create legal relations the contract may become a mere
promise

In this case the intention to enter into legal relations is very evident from the fact that
the plaintiff went on to the website of the restaurant and entered into an agreement
with them by clicking on I Agree. She also gave the live performance on 28.07.2019.
The intention on the part of the defendant to be bound by the terms of the contract is
that it asked the artists to link their Paytm to the sever of the website for transferring
salaries to them.

2.7 THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

AND IN LAW THE CONTRACT HAD FREE CONSENT OF THE PARTIES

It is necessary for the contracting parties to have consent which is free from any type
of fraud, misrepresentation, coercion, undue influence or mistake. In e-contracts

MEMORENDUM ON THE BEHALF OF DEFENDANT 13

ascertaining the consent of the parties is difficult, and as it is executed between
strangers therefore, the consent can only be presumed.

The contract in the present case cannot be vitiated due to lack of free consent as the
plaintiff’s consent was not subjected to any of the factors under section 15, section 16,
section 17, section 18 of the Indian Contract Act 1872. Hotmail Corporation vs.
Van Money Pie Inc. In this case Hotmail brought suit

in federal court against customers who were sending spam messages and falsifying e

mails to make it appear that the spam originated from Hotmail account. Hotmail

alleged that these actions were a violation of the terms of service agreement that each

customer must assent to when opening on email account. The court held that the

Hotmail was likely to succeed on its breach of contract claims as the defendant in this
case gave his consent by agreeing to the given terms and conditions. By referring to
this case we want to make our point that by agreeing to the terms and conditions of
the contract plaintiff entered into a valid contract.

Thus, when all these essentials of a e-contract are specified it can be said that the
contract stands and cannot be termed as invalid on any grounds.

(3) THAT THE FACTS AND CIRCUMSTANCES OF THE CASE THE

CONTRACT PROVIDED FOR REASONABLE NOTICE OF THE TERMS
AND CONDITIONS AT THE TIME OF MAKING THE OFFER

Reasonable notice suggests that it is the duty of the person delivering a document to
give adequate notice to the offeree of the printed terms and conditions. When this is
done the acceptor is bound by the printed terms & conditions. In the case of Parker v
South Eastern Railway Co10. the plaintiff deposited his bag at the cloakroom at a
railway station and received a ticket. On the face of the ticket were printed, among
other things, the words, “see back” and on the back there was a notice that the
company will not be responsible for any package exceeding the value of $ 10. A
notice to the same effect was also hung up in the cloakroom. The plaintiff’s bag was
lost and he claimed the full value of his bag was more than $10. The company relied
upon the exemption clause. The plaintiff contended that although he knew there was

10
(1877) LR 2 CPD 416 (CA)

MEMORENDUM ON THE BEHALF OF DEFENDANT 14

some writing in the ticket, he did not see what it was as he thought that the ticket was
a mere receipt for the money paid by him. MELLISH LJ pointed out that if the
plaintiff “knew there was writing on the ticket but he did not know or believe that
the writing contained conditions, nevertheless he would be bound”, for there was
reasonable notice that the writing contained questions. In the same way in the
present scenario there was a small asterisk mark beside the Registered Paytm
Number Clause which stated that “ Notwithstanding anything an
employee absent for performing without a minimum two days’ notice intimidating the
relevant authority about the reasons for the same would become liable to pay
reasonable compensation to the employer. The amount would be deducted from the
Paytm wallet of the employer.” And thus when the plaintiff clicked on the ‘I Agree’ 11
she was now bound by the terms of the contract. She cannot claim that she had no
knowledge related to the compensation. When there is any problem associated with
the contract it is assumed that the terms of the contract apply and the signatories of the
contract have to abide by it. Although this concept sounds dubious, it does in fact get
upheld by the courts of law and hence a person cannot claim that he was never aware
of the contract or that he was coerced into signing the contract, unless he can
specifically prove so. In this case Feldman had purchased the “Google AdWords”
services from Google and when Feldman had issues with the product, he sued Google
in the court of law, here in the United State District Court of Pennsylvania. Google
contested that as per the contract executed by Feldman, the jurisdiction lied in the
courts in California. Feldman refuted this contract stating that “the Agreement was
never seen, signed or negotiated by him or any of his associates”. He stated that in the
absence of knowledge of the terms of the contract, the was no “meeting of minds”
between him and Google and hence the Contract was void.
However, Google claimed that when Feldman was purchasing the “Google AdWords”
services from them, he was directed to a webpage displaying the Contract, further, the
webpage in bold letters stated the following “ Carefully read the following terms and
conditions. If you agree with these terms, indicate your assent below.”
Followed by these words was the entire text of the contract which Feldman had to

11
Online Agreements also commonly known as “clickwrap” agreements are a type of contract
which is commonly used for online transactions, use of software licenses and social media. In thc
vese agreements the terms such as “Agree” or “I accept to the terms and condition of the user
policy” etc are used to note the acceptance and consent of this contract by the contractee i.e. the
user

MEMORENDUM ON THE BEHALF OF DEFENDANT 15

scroll through the window and at the end of which he had a choice to accept the terms
and conditions or refuse them and not purchase the services from Google. Feldman,
had indeed clicked on “Accept” and hence accepted the terms and conditions of the
agreement.The court upheld the claim of Google and noted that the fact that the entire
contract was displayed by Google and that Feldman had scrolled through the text
meant that Google had provided reasonable notice to the contents of the contract and
hence Feldman was deemed to be aware of the contents of the contract and here the
validity of the “Clickwrap Agreement” was upheld.

MEMORENDUM ON THE BEHALF OF DEFENDANT 16

PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited, the
learned court may graciously be pleased to:

Adjudge and declare that the suit is not maintainable.

Adjudge and declare that the compensation charge from the plaintiff for the breach
of the contract is valid and just in the eyes of law.

Declare that reasonable notice was given at the time of the formation of the contract

And/or the court may give any such order as it may deem fit in the larger interests of
Justice,

Equity and Good Conscience.

All of which is respectfully submitted

Sd.
Counsel on behalf of the Defendant
:

MEMORENDUM ON THE BEHALF OF DEFENDANT 17

MEMORENDUM ON THE BEHALF OF DEFENDANT 18