Before

THE KANPUR CIVIL COURT

CIVIL SUIT UNDER SECTION 20 OF THE CODE OF CIVIL PROCEDURE

ADITYA

(Prosecution)

Vs

LA DELA CO AND CLICK TO OWN COMPANY

(Defence)

MEMORIAL ON BEHALF OF THE PROSECUTION

MEMORIAL for PROSECUTION Page | I

TABLE OF CONTENTS

Contents
Table of Contents........................................................................................................................I

List Of Abbreviations................................................................................................................II

Index of Authorities.................................................................................................................III

Statement Of Jurisdiction.........................................................................................................IV

Statement Of Facts....................................................................................................................V

ISSUES...................................................................................................................................VII

Body Of Arguments...................................................................................................................1

1. KANPUR HAVE JURISDICTION OVER C20 COMPANY........................................................1

2. ADITYA IS ENTITLED TO COMPENSATION FOR THE BREACH OF CONTRACT AND

NEGLIGENCE BY C20 AND LA DELA.......................................................................................2

Prayer....................................................................................................................................XIV

TABLE OF CONTENT
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LIST OF ABBREVIATIONS

C2O CLICK TO OWN

AIR All India Reporter

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Ltd Limited

Co. Corporation

LIST OF ABBREVIATIONS
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INDEX OF AUTHORITIES

CASES

1. Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr. C.S. (OS)

No. 894/2008 (Delhi High Court)

2. World Wrestling Entertainment vs. M/s Reshma Collection and Ors

3. Fateh Chand v. BalKishan Das, AIR 1963 SC 1405.

4. MaulaBux v. UOI, (1969) 2 SCC 554.

5. Hadley v Baxendale, (1854) EWHC 570

6. Yogesh v Dlf Homes Panchkula

7. Jarvis v Swan Tours Ltd., 1973 QB 233

INDEX OF AUTHORITIES
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STATEMENT OF JURISDICTION

The prosecution most humbly submits that the Hon’ble Kanpur Civil Court have the

necessary subject matter jurisdiction to entertain and adjudicate the instant matter under

Section 20 Of Civil Procedure Code.

Thereby, the PROSECUTION submits this memorial which sets forth the facts and the laws

on which the claims are based.

STATEMENT OF JURISDICTION
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STATEMENT OF FACTS

BACKGROUND

1.Aditya, a law graduate placed an order with Click to Own (C20.com) of a Nokia phone
forhis father who had been complaining of his old phone. He placed the order with his newly
acquired credit card and converted the purchase into 6 EMIs. The amortization agreement
was made by the credit card company and was mailed to him. The order was placed on 8
December 2017. C20 is an e-commerce firm which runs a B2C firm and provides a platform
for sellers and buyers. The seller in this case was La Dela company based in Bengaluru.

2. The order was dispatched and an SMS was sent to his I-phone informing him that the date
of dispatch was 19th December. 2017. On 21 December, when his father again complained
about the phone. Aditya inquired on the C20 website and came to know that the phone had
been dispatched. The seller told him that the phone had been sent by the National Postal
Service and he was experiencing delay in their service.

3. Aditya wrote to C20 Company about the non-delivery of the phone on 30 December 2017.
When he received his credit card statement requisitioning him to deposit his outstanding
amount including the first EMI of the phone, he got annoyed and wrote a mail to C20
Customer Care about the irresponsible behaviour of the seller and asked the company to
intervene. In response, the company guaranteed the sale of the phone and insured that the
needful shall he done. The C20 even filed a claim for cancellation of order and repayment of
the purchase price on behalf of Aditya which was settled by the company n 5th January,
2018.

4. The company also told Aditya that once an order has been placed, there is nothing they can
do about the delivery of goods. The order, shipment, delivery and cancellation of the goods is
the sole prerogative of the seller. Aditya, on being annoyed by this, filed a civil suit for the

STATEMENT OF FACTS
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breach of contract against La Dela impleading C20 in the Kanpur Civil Court for the delivery
of phone and reasonable compensation to be paid to him.

5. The C20 took the plea that issue has been already resolved. The issue of jurisdiction was
also raised by the defendants in the case. The payment shall be reverted in a few business
days via the original mode of purchase, i.e. the credit card. However, the contention of Aditya
is that he was misguided and misinformed about his order since he placed his order and the
good, i.e. the phone was of immense value as was the first purchase of Aditya for his father.

STATEMENT OF FACTS
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ISSUES

Issue I-That the Kanpur Civil Court does have jurisdiction over C20 Company.

It is very humbly submitted before this Hon'ble Court that the Kanpur Civil Court does have
jurisdiction over the Click to Own (C20) Company because with reference to Section 20 of
the Code of Civil Procedure the suit can be instituted in the court in the jurisdiction of which
the defendant actually or voluntarily resides, or carries on business, orpersonally works for
gain or where the cause of action, wholly or in part, arises.

Issue2- Aditya is entitled to compensation for the breach of contract and mental agony
caused to him by negligence of C2O and La dela.

It is further submitted that the defendant is liable for compensation actual loss was caused to

the Plaintiff. It has already been assured to the plaintiff by the defendant that the payment

shall be reverted returned back) to the plaintiff in few business days hence, there is no

pecuniary loss that can be attributed to the plaintiff

BODY OF ARGUMENTS
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BODY OF ARGUMENTS

1. KANPUR CIVIL COURT HAVE JURISDICTION OVER C20 AND LA DELA

It is very humbly submitted before this Hon'ble Court that the Kanpur Civil Court does have

jurisdiction over the Click to Own (C20) Company and La dela because with reference to

Section 20 of the Code of Civil Procedure the suit can be instituted in the court in the

jurisdiction of which the defendant actually or voluntarily resides, or carries on business, or

personally works for gain or where the cause of action, wholly or in part, arises. In the

present case the La Della Company and Click to Own Company is not based in Kanpur but

they carries onbusiness in this city therefore the Kanpur Civil courtcan exercise jurisdiction

over the Company

The internet we know now is indispensable, both for individuals and businesses. The reach of

the internet transcends physicality. It helps individuals connect with people across

geographical boundaries and provides businesses with accessibility to wider audiences.

India first laid down its position in the issue, after taking into consideration many

international judicial pronouncements in Banyan Tree Holding (P) Limited v. A. Murali

Krishna Reddy and Anr.1 The Delhi High Court considered the aspect of “purposefully

availing” the jurisdiction of the forum state and the level of interactivity of the website, and

held that the following were to be shown:

1
C.S. (OS) No. 894/2008 (Delhi High Court)

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1. That the nature of the activity indulged in by the Defendant by the use of the website

was with an intention to conclude a commercial transaction with the website user and

that the specific targeting of the forum state by the Defendant resulted in an injury or

harm to the Plaintiff within the forum state.

2. For the purposes of Section 20 (c), CPC, prima facie that the said website, whether

euphemistically termed as “passive plus” or “interactive”, was specifically targeted at

viewers in the forum state for commercial transactions.

3. The “trap transaction” will have to be shown to be a real commercial transaction

wherein Defendant intended to specifically target customers in the forum state.

Subsequently, in the case of World Wrestling Entertainment vs. M/s Reshma Collection and

Ors the Court held that due to the spontaneous nature of the transactions (offer and

acceptance and payment of consideration) over the internet, the cause of action is deemed to

have occurred at the place the customer carried out his part of the transaction, two-judge

bench of the high court held that a company would be deemed to have carried on business in

a place where people purchase the merchandise off a website.

In the present case, Aditya made a transaction from his house situated at Kanpur. When the

physical shop are replaced with virtual/online shop because of the advancement of the

technology it cannot be said that C20 and La dela doesn’t carry on business in Kanpur.

Therefore with reference to the aforementioned case-laws it is humbly submitted that the

Kanpur Civil Court does have jurisdiction over the matter concerned in this present cane and

besides this the C20 company can be impleaded in this civil suit.

2. ADITYA IS ENTITLED TO COMPENSATION FOR THE BREACH OF CONTRACT AND

MENTAL AGONY CAUSED BY NEGLIGENCE OF C20 AND LA DELA

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It is humbly submitted before the Civil Court of Kanpur The Aditya is entitled to the
compensation over the breach of contract under which they promised to provide Aditya the
mobile .Even after the repeated requests and enquiry by the Aditya, he was unable to get the
phone whereas it was informed to him that it was dispatched on 19th of December but even
on 5th of January , he did not get it. Now the company is providing only the repayment of
purchase price but Aditya paid the amount through the credit card so the amortization process
is also started without the delivery being done. So According to Sec 73 of the Indian Contract
Act, Aditya Should get the Compensation as there is breach of contract by the Other Party.

[1.1] Section 73 of the Indian Contract Act talks about the Compensation for loss of
damage caused by breach of Contract

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, In this case, Aditya is unable to get the his mobile phone on time and
due to this, there is a breach of contract by other party due to which he lost his time and also
the amortization process also started without even the delivery of the phone happened .So the
Aditya suffered damage due to breach of contract and he should be awarded compensation
for loss of damage caused by breach of Contract.

In case of Fateh Chand v. Bal Kishan Das 2, it was held irrespective of the nature of damages,
breach of contract is the precondition to claim the same. That is, there can be no claim for
damages if there is no breach of contract between the parties. Secondly, to claim damages,
the party making such a claim has to establish the loss. It is understood that the reasonable
2
Fateh Chand v. BalKishan Das AIR 1963 SC 1405.

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compensation agreed upon as liquidated damages in case of breach of contract is in respect of

some loss or injury and hence existence of such loss or injury is indispensable for such claim
of liquidated damages. In some cases, the courts have demanded the parties to prove the
degree of loss or damage suffered as a result of breach of contract

In the case of MaulaBux3, the court has specifically held that the court is competent to award
reasonable compensation in a case of breach even if no actual damage is proved to have been
suffered in consequence of the breach of contract. The court has, however, also specifically
held that in case of breach of some contracts it may be impossible for the court to assess
compensation arising from breach. In such a case, the sum named by the parties if it be
regarded as a genuine pre-estimate may be taken into consideration as the measure of
reasonable compensation, but not if the sum named is in the nature of a penalty. Where loss
in terms of money can be determined, the party claiming compensation must prove the loss
suffered by him.

In case of Hadley v Baxendale, According to the rules laid down in this case, there can be
damages which naturally arose on the usual course of things from such breach of contract and
can be called ordinary damages and secondly, damages for loss arose from special
circumstances i.e special damages. There are also other kinds of damages mentioned in the
Act such as nominal damage, pre- contract expenditure, compensation for mental agony and
liquidated damages. Nominal damages are those substantial damages awarded by the Court in
recognition of right of the aggrieved party in cases where the party has not suffered any
monetary loss on the breach of contract.

[1.2] Damages for mental agony caused by C2O and La dela

The claim of the Plaintiff that the good was of immense value as it was the first purchase for
his father by his own earnings also holds a good ground for providing compensation because
the courts provide compensation for mental anguish when the contract was regarding
performance to provide peace of mind or freedom from distress. This has been confirmed in
the writings of the esteemed author Chitty who states that normally no damages in contract
will be awarded for injury to the plaintiffs feelings, or for his mental distress, anguish,
3
MaulaBux v. UOI (1969) 2 SCC 554.

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annoyance, loss of reputation or social discredit caused by the breach of contract, the
exception in only limited to contract whose performance is to provide peace of mind or
freedom from distress.

It is further submitted that Aditya was misguide and misinformed about the order.He had
enquired many time from both C2O and La dela but they didn’t gave him satisfactory
answer.4 In the case of Yogesh v Dlf Homes Panchkula the State Consumer Dispute
Redressal Commission awarded compensation for mental agony and deficiency in rendering
service. Also in case of Javis v. Swan Tours Ltd.

The mobile phone was ordered by Aditya was of immense value as it was his purchase for his
father from his own earning and also his father’s old phone is not working properly which he
complained to his son many times. Deficiency in rendering service by C2O and La dela has
caused mental agony and distress therefore they are liable to pay compensation to Aditya.

4
Para 8 Moot proposition

BODY OF ARGUMENTS
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PRAYER

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most

humbly prayed and implored before this Court, that it may be graciously pleased to adjudge

and declare that:

I. The Kanpur court have jurisdiction the present case.

II. Convict C2O and La dela for breach of contract under section 73 of Indian Contract

Act and pay compensation to Aditya.

Also, pass any other order that it may deem fit in the favour of the PROSECUTION to meet the

ends of equity, justice & good conscience.

For this act of kindness, the Prosecution shall be duty bound forever pray.

PLACE: Dilli S/d

DATED: 3 August, 2020 Counsel for the Prosecution

PRAYER
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