Professional Documents
Culture Documents
19010122096
19010122097
ELIMINATION
2019-20
IN THE MATTER OF
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TABLE OF CONTENTS
Contents
TABLE OF CONTENTS...........................................................................................................ii
INDEX OF AUTHORITIES....................................................................................................iV
I. CASES REFFERED.....................................................................................................iV
II. STATUTES...............................................................................................................iV
LIST OF ABBREIVIATIONS……………………………………………………………….vi
STATEMENT OF JURISDICTION………………………………………………………vii
STATEMET OF FACTS…………………………………………………………………..viii
ISSUES RAISED……………………………………………………………………………xi
ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?.............xi
[1.1] The civil suit cannot be tried in high court of zigaro as cognizance is barred.........xi
[1.2] the civil should be instituted in the district court as per procedure..........................xi
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement........xi
[2.1] Contract entered into by both the parties under free consent...................................xi
ISSUE 3: Whether the original contract can be considered to be legally amended on the...xi
[3.2] Breach of contract by builders as time being the essence of the contract................xi
ISSUE 4: Whether Jayshree builders are liable to pay damages under the law of tort.........xi
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SUMMARY OF ARGUMENTS………………………………………………………..xii
ISSUE1: Whether the High Court has territorial jurisdiction to entertain the suit?............xii
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement......xii
ISSUE 3: Whether the original contract can be considered to be legally amended on the..xii
ISSUE 4: Whether Jayshree builders are liable to pay under law of torts...........................xii
ARGUMENTS ADVANCED………………………………………………………………
xiii.
ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?.........xiii
[1.1] The civil suit cannot be tried in High Court of Zigaro as cognizance is barred.. . .xiii
[1.2] The civil suit should be instituted in the district court as per procedure................xiii
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement......xiv
[2.1] Contract entered into by both the parties under free consent.................................xiv
ISSUE 3: Whether the original contract can be considered to be legally amended on thexvi
[3.2] Breach of contract by builders as time being the essence of the contract.............xvii
ISSUE 4: Whether Jayshree builders are liable to pay under law of torts..........................xix
PRAYER……………………………………………………………………………………xxo
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INDEX OF AUTHORITIES
I. CASES REFFERED
Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32
Angile Insulations vs Davy Ashmore India Ltd. And Anr, 1995 (3) SCR 443
Hakam Singh vs M/S. Gammon (India) Ltd, 8 Jan, 1971 AIR 740, 1971 SCR (3) 314
249
A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem on 13 March, 1989 AIR
ARBLR 146(Delhi)
II. STATUTES
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Conciliation
Dispute Resolution.
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LIST OF ABBREVIATIONS
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STATEMENT OF JURISDICTION
The respondent seeks to challenge the jurisdiction filed by the petitioner in the hon’ble High
Court of Zigaro under section 9 , section 15 and sec 16 of Civil Procedure Code.
“The court shall have jurisdiction to try all suits of civil nature excepting suits of which their
From the present case, in the agreement of the contract it can be inferred that the other civil
courts are barred from the jurisdiction as it is expressly implied in writing in the contract ‘that
“Every suit shall be instituted in the Court of the lowest grade competent to try it”.
This section talks about a certain procedure which need be followed while filing the case in
the court, that is the suit is first required to be tried in lowest degree court. The procedure is
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STATEMENT OF FACTS
1. Zuamai, a capital city of Zigaro state faces heavy rainfall in month of May and June which
disturbs the lives of residents so, on June 17, 2017, Government of Zigaro passed an order
saying that all housing societies beyond the local limits of municipal corporation has to
2. Jayshree Builders and Developers Ltd. have their regional offices in Zuamai and Zigaro
with its Head Office in Zelhi. As per Government Order, the Jayshree Builders invited
tender and the Karmakar and Partners, the engineering firm with head office in Zuamai got
the tender.
3. On 1st September, 2017, Jayshree Builders and Karmakar and Partners entered into
contract where the work had to be finished within one year of contract otherwise the firm
would be held liable for any loss arising on the breach of the contract.
4. According to contract, the parties agreed on unilateral dispute resolution clause, where the
builders will appoint a sole arbitrator or take any other recourse within the jurisdiction of
Zelhi and if any dissonance faced by Karmakars, they have to send a notice to builder and
negotiations will be made accordingly and the payment clause; where it is divided into four
phases i.e. 20%, 30%, 30%, 20%, where first payment will be done within the 15 days and
others will be made within 5 days of approval by the independent engineering comittee
appointed by builders i.e. JEC, where 2 are employees of builders and 4 are recruited for
project and last payment within 3 months of completion. All the technical communication
with respect to work should be communicated to JEC by firm. This clause is agreed to be
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5. On oct 12, 2017, the work of first phase starts and gets completed within 3 months and the
payment gets accordingly. On December 15, 2017, the work of second phase started and
within one month, the firm discovers a new set of pipes laid below the builders’ pipes. The
firm had the option to either sever the new pipes which would also risk the builders’ pipe .
6. The firm sent a mail to JEC regarding this. The JEC responded them to lay a new set of
pipelines above the builders’ pipes at safe distance resulting in easy work and there would
be no difference in two procedures and wouldn’t’t cost anything extra. They also sent an
email to the CEO of builders asking to change the design of the contract from milestone
basis to timeline basis and also asking for payment and went on to sever the new pipes
7. The firm started the third phase of building the reservoir as a precautionary measure to
prevent the rain water from overflowing and finished in 40 days. But, in that time the JEC
committee got defunct due to delay in services by the firm which was beyond the
apprehension of builders and in the fourth phase, the firm took another 3 months and still
didn’t connect the reservoir to the main source as they asked for the extra payment; for the
bills of the same were never forwarded to the builders and thus the builders were not
8. Due to this, Karmakars sends a legal notice to the builders and files a civil suit for breach
of contract in the High Court of Zigaro dated 1-05-2018 directed towards clearance of
9. While the matter was still pending for hearing, the city of Zuamai receives heavy rainfall
for 6 continuous days. The reservoir got almost full on the 3rd day and the builders were
informed about it. If the walls broke or leaked could lead to overflow and destruct 80% of
the homes.
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10. The engineers of the builders tried to decrease the water level, so that it could reach to
the safety mark but was unable to. As the spill way opened the five days of the rain water
gushed out uncontrolled and caused the death of person and damage of movable property
11. The 37 affected parties brought an action against the builder through the secretary of
society, Mr. Rawat under law of torts. Thus, a civil suit was filed by Rawat in High Court
of Zigaro for damage for loss of property and life and the builders filed a written statement
stating the loss was due to inefficiency of Karmakar and Partners and was no negligence
The High Court joined the two civil suits and the same is pending in the Hon’ble High Court.
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ISSUES RAISED
ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?
[1.1] The civil suit cannot be tried in high court of zigaro as cognizance is barred.
[1.2] the civil should be instituted in the district court as per procedure
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement
[2.1] Contract entered into by both the parties under free consent
ISSUE 3: Whether the original contract can be considered to be legally amended on the
[3.2] Breach of contract by builders as time being the essence of the contract
ISSUE 4: Whether Jayshree builders are liable to pay damages under the law of tort
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SUMMARY OF ARGUMENTS
ISSUE1: Whether the High Court has territorial jurisdiction to entertain the suit?
It is contended that the high court doesn’t have the territorial jurisdiction to entertain
the suit under sec 9,sec 15 and sec 20(30) of CPC which talks about the nature of civil
suit, procedure of filing the civil suit and the places of filing the suit as per the cause
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement
It is contended that the ordinary legal remedy can be barred by way of an agreement
under sec 13, 14, 26, 11(2) , 11(6) and 28(1) of the Indian Contract Act, 1872 if the
contract entered into by both the parties is under free consent and is considered legal
ISSUE 3: Whether the original contract can be considered to be legally amended on the
It is admission that the contract can be legally amended on the occasions alleged by
the plaintiff of respondent if there mutual consent between both the parties and there
Contract Act, 1872, where breach is done when time is the essence of the contract.
ISSUE 4: Whether Jayshree builders are liable to pay under law of torts
It is contended that the Jayshree builders are not liable to pay under law of torts as
the negligence was done by the firm, and the duty of care lied to protect the resident
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ARGUMENTS ADVANCED
ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?
It is contended that the present suit is not maintainable before the honourable
high court of Zigaro under sec 9, sec 15 and sec 20 of CPC. The contention is
[1.1] The civil suit cannot be tried in High Court of Zigaro as cognizance is barred.
According to section 9 under the CPC, it clearly states that the jurisdiction of civil suit can
be barred if the rule of law is mentioned in the agreement and the cognizance of which
From the present case, the dispute resolution agreement of the contract it can be inferred that
the other civil courts are barred from the jurisdiction as it is expressly implied in writing in
the contract ‘that the jurisdiction can only be held in the court of Zelhi’.
It is based on the maxim “Expressio unius est exclusio alterius” (expression of one is
exclusion of the other). This means that as it was expressed in the civil suit about the
Many precedent cases have given their judgements based on this maxim:
As seen in the Supreme Court of India case, where the contract specifies the jurisdiction of
the courts at a particular place and such courts have jurisdiction to deal with the matter, the
court says that an inference may be drawn that parties are intended to exclude all other
courts.”1
1
Swastik Gases (P) Ltd. v. Indian Oil Corp. Ltd., (2013) 9 SCC 32
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Another case where it can be inferred from the judgement that the civil suit can only be tried
in the district court of Zelhi as it was mentioned in the dispute clause and bar other courts to
for trying. 2
[1.2] The civil suit should be instituted in the district court as per procedure
The section talks about the place of suing a case. It says that the rule laid laid down in
the section is a rule of procedure. In accordance with the section 15 of CPC,1908 it is stated
that there is a certain procedure which need be followed while filing the case in the cout i.e
the suit is first required to be tried in lowest degree court, just to bundle up all the cases in the
superior courts.
According to this section, it can be contended that in the present case, the suit should have
“whether there are two or more defendants, any of them resides or carries on
business or personally works for gain, provided that in such case (a) either the leave
of the court is obtained; or (b) the defendant who do not reside or carry on business
It can be said from this section that when there are two more places where the cause of action
arises or the business takes place or location of work is held, the jurisdiction can take place in
2
Angile Insulations vs Davy Ashmore India Ltd. And Anr, 1995 (3) SCR 443
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In the said civil suit, it is clearly mentioned in the dispute clause that the builder in case of
dispute can take any other recourse within the jurisdiction of zelhi, so it is admission that the
As seen in the judgement of hakim case, where the two parties are in the dispute on issue of
territorial jurisdiction, but the parties in the agreement have agreed that the dispute should be
tried only in the jurisdiction of one of them, the court mentioned in the agreement shall have
jurisdiction.3
In the similar case, where while making the judgement the question that aroused was,” if
one of the parties to the contract is sued by the other in Budapest, he will not take any
objection to its jurisdiction; or, does it mean that the parties mutually agree that, if any
dispute arises under the contract, it shall be determined by the court in Budapest?”.
Eventually, the decision was in favour of jurisdiction being with the courts at Budapest
ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement
[2.1] Contract entered into by both the parties under free consent
From section 13 of Indian Contract Act, 1856,where two persons are said to be in consent
when they agree upon the same thing in same manner and the dispute clause Any
outcome or settlement is understood to be final and binding on both the parties and shall
3
Hakam Singh vs M/S. Gammon (India) Ltd ,(8 Jan,1971) 1971 AIR 740, 1971 SCR (3) 314
4
Austin Loyd Steamship Company v Gresham Life Assurance Society, [1903] 1 K.B. 249
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be recorded in writing, it can be inferred that that while at the time of contract the
In the dispute resolution of the contract, it is stated that: The above clause is specifically
In regard to the dispute clause, and sec 23 of contract act, it can be inferred that as the
dispute clause is considerd valid and lawful it is not fraudulent. Also, in relevance to the sec
14 of contract act, it can admission that as the clause is not caused by fraud it is a free consent
According to sec 11(2) sub-section (6) of the arbitration and conciliation act, 1996
the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
This statement with regards to the dispute clause, it can be said that both the parties had
agreed upon for the builder to solely appoint an arbitrator in case of a dispute.
This section doesn’t restrain the agreements from legal proceedings when two more persons
agree to refer to arbitration any questions or affect any provision of law as reference to
arbitration. From this exemption clause it can be admitted that, the agreement between the
parties in dispute resolution will not be considered void. Even when the Karmakar and
partners allege to submit their rights to builders to resolve dispute in case of any dissonance,
the contact is still legal as both parties have mutually agreed to refer to arbitration in case of
any disagreement.
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From the judgement of supreme court in a landmark case, it can be inferred that if there is
any jurisdiction clause mentioned in the agreement that restrains the party of legal proceeding
in other court, the agreement will not violate sec 28 of the contract acts. 5
Hence in the civil suit, the agreement in the dispute clause stating “or take any other recourse
within the jurisdiction of zelhi’, though barres the legal right of Karmakars to go to any other
court other than zelhi, doesn’t violate the section 28 of the contract act as exception 2 of
ISSUE 3: Whether the original contract can be considered to be legally amended on the
only with mutual consent from both the parties. The contention is sought to be
As seen in the present case, it can be inferred from the annexure 2 of email 3 that the firm had
not taken the consent of the builders for changing the design by severing the pipes instead of
laying new pipes on the builders’ pipes as suggested by the firm. This led to more
complications in the work and hence not completing the work on time. In the same annexure,
the firm also asks for extra expenses due the complications made by them, but still does pre
purchases for the second phase without the consent from the builders. the firm tried to
illegally amend the payment clause of the contract as they tried to change the mode of the
payment from the milestone basis to timeline basis; of which the consent was never granted
5
A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem, (13March), 1989 AIR 1239, 1989 SCR (2) 1
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[3.2] Breach of contract by builders as time being the essence of the contract
According to the section 37, it is stated that the parties have an obligation to perform duty
according to the contract agreed upon and non-performance leads to breach of contract.
In the present case, in dispute resolution it was mentioned that if any dissonance caused by
the firms, a notice has to be sent to the builders regarding it. But the firm sends directly a
In relation to judgement of a case, the court states that as the act amount to breach in the
conditions of the agreement, the whole contract can lead to breach of contract. 6
The time is the essence of the contract which is also breached by the firm as mentioned in,Sec
55 of Indian contract act, 1872. According the contract agreement between the builders and
the karmakars, it was agreed that the contract should be completed within one year of date of
signing the contract, from september1,2017 to 2018. But the builders were informed on nov
30, 2018, hence the contract considered to be voidable. The firm took 7 months to complete
the second phase due to their mistake as they chose to sever the pipes and hence due to the
In the leading judgement of case, it said that, if extention of time asked for more than what is
mentioned in the contract and still the work is not completed, the aggrieved party can sue ofr
breach of damages.7
In another supreme court case, the judgement was given in accordance with time of payment
6
Arcos v EA Ronaasen & Son, [1933] AC 470
7
Bhudra Chand v. Betts, (1915) 22 Cal. LJ 566
8
Mahabir Prasad Vs. Durga Dutta, AIR 1961 SC 990 B.
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It is implied that mere silence by the builders on an issue cannot be inferred to be acceptance.
In email 4, annexure 2 the builders mention that “they will look into the matter” of the extra
payment and time. But it was not expressly or impliedly stated by builders about consenting
Instead, in the annexure 2 of email 3 the firm had wrongly said in the contract stating that,
“your office may kindly be pleased to release the part payment of second phase’. Even in
e mail 2, the builders have nowhere talked about the time and the payment. So, the
information was deceived by the firm just to get extra payment and more time.
Due to this the 15% of the payment was made by the builders, and that was not the extra
payment but the pre-payment of the second phase. So, there was no implied acceptance also
In reference to judgement given, it says that one cannot impose an obligation on another to
reject one's offer. This is sometimes misleadingly expressed as a rule that "silence cannot
amount to acceptance".9
In accordance with the section 52 of Indian contract act, the order of the reciprocal promises
is fixed in the contract. In the present case, the order mentioned in the payment clause was
that the work has to be initially done by the firm and the payment will be done accordingly by
the builder as per the contract. But in the annexure 4 of email 8, it is clearly mentioned that
the builder restricts from doing the complete work of connecting the shaft of the reservoir to
the main source and asks for the pre-payment and extra payment of the work not done.
9
Felthouse v Bindley, (1862) EWHC CP J 35,
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And according to section 53, the contract becomes voidable at the choice of the builders and
the firm will be held liable for the loss of 2crore happened to the people of housing societies
A judgement of the case which talks about the section 52 of the contract comes to the
conclusion that the nature of transaction has to be determined by the order in which promises
ISSUE 4: Whether Jayshree builders are liable to pay under law of torts
It is contended that the Jayshree builders are not liable to pay the residents damages under
Under law of torts, negligence is defined as the failure to exercise standard of care which the
I admission to this statement, the Karmakar and partners are negligent in law of torts as they
failed to perform the standard of care, that is to complete the work on time. the firm failed to
connect the shaft of the reservoir to the main source which the firm should have done
reasonably and also the reservoir built was not efficient enough to control floods.
One of the essential conditions of liability of negligence is the duty of care towards the other
party. Firstly, duty of care towards the residents was with builders as the private rights of the
land of Jayshree homes was with the builders. but when the tender of the firm was accepted,
the duty of care shifted towards the Karmakar and partners. Thus, the Karmakar and partners
owned a legal duty towards the residents of Jayshree homes and are considered liable for the
10
I.C.M airport techniecs vs International Airport Authority of India,2006(1)ARBLR146(Delhi)
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According to the judgement in Donoghue V Stevenson case, the the party was liable on three
groundes i.e negligence, duty of care and neighbour principal.11 This case explains who is a
neighbour, the person who are so closely and directly affected by the act that it is ought
According to tort of law, the breach of duty to take care means the person who has an
existing duty of care should act wisely and not omit or commit any act which he has to do or
not to do.
According to this it can be admission that the firm had failed to perform the duty by not
completing the work i.e. by not connecting the main shaft to the reservoir, on time and is
therefore liable for the damages of 2 crore rupees caused to the residents of the town and is
11
Donoghue v Stevenson, [1932] A.C. 562
12
Municipal Contract of Delhi v Shubhangwanti, AIR 1966 SC 1750
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PRAYER
Wherefore, it is humbly prayed to this Hon’ble court that in view of above facts, issues
raised, and arguments advanced , the Hon’ble Court may be pleased to:
Pass an order directing the petitioner (1), Karmakars and Partners to pay Rs.
2,50,00,000/-. for negligence and breach of duty of care where Rs. 2,00,00,000/-. is
for causing the death of person and damage of movable property and Rs. 50,00,000 /-.
Pass an order directing the petitioner (1), to reimburse the respondent with Rs.
1,00,000/-. towards expenditure incurred till the date of the filling of reply to this
petition.
Pass any other order/direction that this Hon’ble Court may deem fit in order to
And for this act of kindness, the respondent shall forever humble play
Sd/-
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