DEVJIT -1760

CLASS MOOT COURT

BEFORE THE HON’BLE CIVIL COURT OF KOLKATA

IN THE MATTER OF

MR. RAMAN APPELLANT

V.

MR. UTKARSH RESPONDENT

Civil Appeal NO.__OF 20

ON SUBMISSION TO THE HON’BLE CIVIL COURT OF KOLKATA

UNDER SECTION 9 OF CPC 1908

MEMORANDUM ON BEHALF OF THE DEFENDANT

 CLASS MOOT COURT

TABLE OF CONTENTS

TABLE OF CONTENTS II

LIST OF ABBREVIATIONS III

INDEX OF AUTHORITIES IV

STATEMENT OF JURISDICTION VI

SUMMARY OF FACTS VII

ISSUES RAISED IX

SUMMARY OF ARGUMENTS IX

ARGUMENTS ADVANCED 1

PRAYER 11

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MEMORIAL ON BEHALF OF APPELLANT
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LIST OF ABBREVIATIONS

§ Section

& And

A.I.R All India Reporter

Anr. Another

Art. Article

Bom Bombay

Ed. Edition

No. Number

Ors. Others

U.P. Uttar Pradesh

SC Supreme Court

SCC Supreme Court Cases

NGO National Governmental Organisation

Supp Supplementary

v. Versus

Vol. Volume

A.P. Andhra Pradesh

ILR Indian Law Reports

IPC Indian Penal Code, 1860

CrPC Code of Criminal Procedure

INDEX OF AUTHORITIES

III
MEMORIAL ON BEHALF OF THE APPELLANT
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BOOKS:

1. N.D. Kapoor, Mercantile Law (24th ed. 2013)

2. Anirudh Wadhwa, The Indian Contract Act (15th ed. 2015)

3. C.K. Takwani, Civil Procedure (8th ed. 2017)

WEBSITES:

1. http://www.findlaw.com

2. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

3. http://www.scconline.com

4. http://www.indiakanoon.com

5. http://www.lega1services.com

6. http://www.advocatekhoj.com

STATUES:

1. The Code of Civil Procedure, 1908.

2. The Indian Contract Act, 1872.

TABLE OF CASES

Sr. no. Name of cases Citation

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1 Karan Singh vs, The Collector, Chhatarpur AIR 1980 MP 89

2 The Company vs Ram Das Chakarbati (1887) ILR 9 All 366

3 National textile Corporation (M.P) Ltd v. M.R. JADAV (2008) 7 SCC 29

4 Ram Das Chakrabarti v. Cotton Ginning Co. Ltd ILR (1887) 9 All 366 case

5 Getreide-Import GmbH v Contimar SA Compania Industrial, [1953] 1 WLR 207

Comercial y Maritima

6 Bhagwandas Goverdhandas Kedia v M/S. Girdharilal 1966 AIR 543, 1966 SCR

Parshottamdas (1) 656

7 Entores Ltd. v. Miles Far East Corporation

STATEMENT OF JURISDICTION 1955 2 QB 327

8 Brinkibon Ltd v Stahag Stahl 1983 2 AC 34

9 Quadricon Pvt. Ltd. v. Bajarang Alloys Ltd AIR 2008 Bom 88

STATEMENT OF JURISDICTION
10 Entores Ltd. v. Miles Far East Corporation 1955] 2 All ER 493; [1955]
2 QB 327; [1955] EWCA

The Counsel on behalf of Plaintiff has filed a civil application beforeCivthe

3 Hon’ble Civil

11 Court under Section 9 of

Steel Authority of India
Civil Ltd.
Procedure Code,India
vs Macmet 1908,Ltdwhich is read as hereunder:
Steel Authority of India
Ltd. vs Macmet India
Ltd., (1998) 2 CALLT 264
Section 9 HC
9. Courts to try all civil suits unless barred

12 The Courts shall (subject

The Secretary to the
of State provisions
for India hereinKrishnaji
vs Bhaskar contained) have jurisdiction to try 973
1925) 27 BOMLR all
Suits of a civil nature excepting suits of which their cognizance is either expressly or
Samant
impliedly barred.
13 Managing Committee AIR 1981 Pat 271, 1981
• Explanation I - As suitofinShree
whichvsthe
State of to
right Bihar And Ors
property or to an office is contested is
a suit of a civil nature, notwithstanding that such right may depend (29) BLJR 524 on the
entirely
decision of questions as to religious rites or ceremonies. 1789) 3 TR 148
14 Payne v Cave
• Explanation II - For the purposes of this section, it is immaterial whether or not
any fees are attached to the office referred to in Explanation I or whether or not such
office is attached to a particular place

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SUMMARY OF FACTS

BACKGROUND:

 At 10.00 a.m. on Monday, June 5th, Mr. Utkarsh the managing director of
Toffscars Ltd., sent a telex to Mr. Raman, a regular customer, offering to
sell him a rare vintage car for 50,000 Euros.

 On receiving the telex Mr. Raman immediately writes a letter of

acceptance to Mr. Utkarsh which is posted at 1.00 p.m. however, Mr.
Raman puts an incorrect address on the letter and it never arrives. Worried
that the letter may be delayed in the post and that he didn’t address it
correctly, Mr. Raman subsequently sends a telex accepting the offer at
9.00 a.m. on Tuesday morning, June 6th.

 Mr. Utkarsh is late arriving at work that day and fails to notice the telex.

 During the day he receives another offer of 60,000 Euros for the car from
Mr. Sandeep.

 He telexes a revocation to Mr. Raman at 5.30 p.m. on the evening of June

6th knowing that Mr. Raman’s office is closed between 5.00 p.m. and 9.00
a.m. Mr. Raman receives the revocation telex at 9.00 a.m. on Wednesday,
June 7th. Mr. Utkarsh receives Mr. Raman’s telex at 9.30 a.m. on the same
day, June 7th.

 Mr. Utkarsh refuses to sell the car to Mr. Raman, who is now suing him
for breach of contract.

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ARGUMENTS ADVANCED

CONTENTION 1: THAT THE ACCEPTANCE OF THE OFFER

COMMUNICATED BY THE PLAINTIFF WAS NOT VALID AS PER THE
INDIAN CONTRACT ACT, 1872

It is humbly submitted before the Hon’ble Court that the acceptance communicated by
the plaintiff was not valid as per the Indian Contract Act, 1872. As per Section 2(b) of the
Indian Contract Act1 when the person to whom the proposal is made signifies his assent
thereto, the proposal is said to be accepted and after the acceptance of the proposal a
contract between the party arises.

ESSENTIAL OF VALID ACCEPTANCE

Communication of acceptance according to section 4 of Indian contract act,1872 is valid

when:

1) It must be given by the Offeree:

2) It must be Absolute & Unconditional
3) It must be in a Prescribed Manner:
4) It must be Communicated to the Offeror:
5) It may be Express or Implied

In the present matter the defendant offered the plaintiff to buy a car but there was a clear
violation on the part of plaintiff as there was no proper communication of the acceptance
of offer to the defendant. Because the post did not reach to the offeror due to the
negligence on the part of the plaintiff as mentioned in the facts that Mr. Raman puts an
incorrect address on the letter. And then Mr. Raman subsequently sent a telex accepting
the offer at 9.00 am on Tuesday, 6th June. But Communication through the Telex did not
come in the knowledge of offeror until he revoked his offer.

1
Section 2(b), Indian Contract Act, 1872

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So, the essentials of valid contract were not fulfilled, hence there was no binding contract
between the parties.

1.1 THE COMMUNICATION OF ACCEPTANCE THROUGH LETTER IS NOT

VALID AS PER INDIAN CONTRACT ACT,1872
For a valid contract, the acceptance must be communicated and furthermore such
communication must be made towards the offeror. The general rule is that the acceptance
should be communicated towards the offeror for the benefit of the offeror.
In the case of Karan Singh vs, The Collector, Chhatarpur 2the court stated that Mere
acceptance of the petitioner's bid on the file by the Collector was not enough to convert
the petitioner's bid into contract. It is well settled that the general rule is that it is the
acceptance of offer by the offeree and intimation of that acceptance to the offeror which
result in a contract.
Where the intimation of acceptance does not reach the offeror, it has to be shown that the
letter or telegram of acceptance was correctly addressed to the offeror otherwise it could
not, although posted or despatched, be said to have been put in a course of transmission
to him.
In the case of The Official Liquidator of The Company vs Ram Das Chakarbati 3 the
court stated that the doctrine that an un received acceptance sent by post cannot bind the
proposer unless he has expressly or impliedly assented to the post office being used as the
medium of communication with him, and to the risk’s contingent on such use, is not
recognized by the law of India.
Acceptance of offer must be communicated to constitute a binding contract, an internal
noting does not constitute a communication, it was held by the hon’ble supreme court in
the case of National textile Corporation (M.P) Ltd v. M.R. JADAV 4 that the
acceptance must be communicated to the offeror. A contract does not become binding

2
AIR 1980 MP 89
3
(1887) ILR 9 All 366
4
(2008) 7 SUPREME COURT CASES 29
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just by deciding internally as seen in this case that the post has been sent to someone
else’s address. It is evident from the act that communication of the acceptance is an act of
internal decision.
In the case of Ram Das Chakrabarti v. Cotton Ginning Co. Ltd5.  The Court held that
the offeror becomes bound when a properly addressed and adequately stamped letter of
acceptance is posted. It is clear from the facts that the letter which was dispatched by Mr
Raman was having an incorrect address. So, the defendant is not furthermore bound by
the law to enter into the contract by the means of acceptance through the post.
The communication of an acceptance is complete— as against the proposer, when it is
put in the course of transmission to him so as to be out of the power of the acceptor; as
evident from the facts that the plaintiff put the acceptance in the transmission to a wrong
address and not to the offeror so the defendant is not bound by the Indian Contracts Act
of 1872.

In Getreide-Import GmbH v Contimar SA Compania Industrial, Comercial y

Maritima 6the court held that the conditions for appeal had not been complied with by
the defendants in this case. The appeal notice had not been communicated within the 14-
day limit; the letter had been wrongly addressed to another company and the chances of it
being received were remote.
As mentioned above the offeree must communicate the acceptance of offer to the offeror.
Hence the offeree must inform offeror that he is accepting the offer by either some
express communication or by conduct.
The communication of an acceptance is completed, as against the acceptor, when it
comes to the knowledge of the proposer as it is clear that when the post consisting the
acceptance did not arrive to the offeror, the offeror cannot have the knowledge of the
acceptance.

1.2 THE COMMUNIACTION OF ACCEPTANCE IS NOT VALID BY TELEX AS

PER INDIA CONTRACT OF 1872

5
ILR (1887) 9 All 366 case
6
[1953] 1 WLR 207
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It is humbly submitted before the Hon’ble court that the communication of acceptance is
not valid as per Indian contract act of 1872. Firstly, the acceptance made by the mode of
post did not reach to defendant and then Mr. Raman subsequently sent a telex accepting
the offer at 9.00 am on Tuesday, 6 th June. But Communication through the Telex not
came into the knowledge of offeror until 9:30 a.m. June 7th.
The communication by telex or telephone, fax or emails is categorized under
“instantaneous” modes of communication. They are called so because in these modes in
an absence of the contracting parties the communication of offer or acceptance or counter
offer reaches the party within a fraction of second or microseconds, i.e., instantaneously
in the form of electronic signals. The four instantaneous modes for communicating are
the telephone, telex, fax, and emails.
Section 2 Clause (b), of the Indian Contract Act, 1872 7 states when the person to whom
the proposal is made, signifies his assent thereto, the proposal is said to be accepted.
Thus, when a proposal is assented by the offeree, he is said to have accepted the
proposal. The communication of proposal through telephone or telex is complete when
the proposal is being communicated to the offeree, i.e., in the case of telephone, when the
offeree hears the offer and in the case of telex, when the offeree receives and read the
offer, the communication of the proposal is said to be complete. 8 It is clear from the facts
of the case that the knowledge of acceptance of offer came to defendant after he sent the
revocation to the plaintiff. Hence a valid contract was not formed between the parties.
In the case of Bhagwandas Goverdhandas Kedia v M/S. Girdharilal Parshottamdas 9,
which is considered to be a landmark case in Indian law describing communication using
instantaneous methods, telephone, the following guidelines were given:
That the rule about instantaneous communications between the parties is different from
the rule about the post. The contract is only complete when the acceptance is received by
the offeror and the contract is made at the place where the acceptance is received.
It is submitted that there is no communication until the reply actually comes to the
knowledge of the offeror. In the first place, the telephone is much more like conversation
face to face than an exchange of letters the risk of mistake over the telephone is so great
7
Section 2(b), Indian Contract Act, 1872
8
 Powell v. Lee (1908)99 LT 284 (KB).
9
1966 AIR 543, 1966 SCR (1) 656
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compared to written communications that businessmen would demand or expect a written

confirmation of what is said over the telephone.
A contract by telephone presents quite as great an analogy to a contract made when the
parties are orally addressing one another in each other's presence. It has not been
suggested that in the latter case the offeror takes the risk of hearing an acceptance
addressed to him. The contrary has been held. If then it is essential that the offeror shall
hear what is said to him.
When the offeree speaks his acceptance, and his words are put in the course of
transmission, he cannot revoke his acceptance. With technological advancement, the
device called telephone delivers the message signal instantaneously and within a gap of
nanoseconds, the offeror can know the acceptance of the offeree. Thus, it can be said that
when offeree speaks his acceptance the offeror gets to hear it and hence, the contract is
formed at the place offeree speaks of his acceptance.
No communication of acceptance came into the knowledge of Mr Utkarsh in this case.
The words such as “knowledge” and “hear” are used in the judgement which simply
imply that mere reception of acceptance is not enough the acceptance should be in the
knowledge of offeror and such knowledge is absent in this case. As per facts of the case
even the reception of acceptance is after the revocation of offer.
In England the Court of Appeal has decided in Entores Ltd. v. Miles Far East
Corporation10 that: "where a contract is made by instantaneous communication, e.g., by
telephone, the contract is complete when the acceptance is received by the offeror, since
generally an acceptance must be notified to the offeror to make a binding contract. It
further held that the postal rule did not apply for instantaneous communications. Since
Telex was a form of instant messaging, the normal postal rule of acceptance would not
apply and instead, acceptance would be when the message by Telex was received. Thus,
the contract was created in London. This general principle on acceptance was held to
apply to all forms of instantaneous communication method. Since telex is an
instantaneous communication, it is no exception to this rule.
It is submitted before the Hon’ble Court that in the instant case the means of
communication was a telex machine and if the functioning of the same is probed into it is

10
1955 2 QB 327
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found that information in a telex is transmitted in the form of signals which is stored on
the receiving machine in the form of data which is later on printed on paper or displayed
on a screen and although the plaintiff sent acceptance via telex to the defendant but Mr.
Utkarsh did not receive it until 9:30 a.m. of June 7 th as given in the fact sheet. As
acceptance was not received by the defendant before he sent the revocation of his offer
no contract exists between the parties.
Brinkibon Ltd v Stahag Stahl11, The complainants, Brinkibon Ltd, were a company that
was based in London. They were buying steel from the defendants, Stahag Stahl, who
were sellers based in Austria. The complainants sent their acceptance of the offer by
Telex to the defendants in Vienna. Brinkibon Ltd later wanted to sue Stahag Stahl for
breach of contract. One of the issues before the court was regarding when the formation
of a contract would be formed when using instantaneous communication, such as Telex.
The court held that the communication of acceptance was received by Telex in Vienna,
so the time at which it was received was the time when the contract was created.
It is clear from the above case that the contract was created when the communication of
acceptance was received by defendant through Telex and in this case that is after the
revocation of offer thus, no contract ever existed.

In the case of Entores Ltd v Miles Far East Corporation 12 it was stated that: If a Telex
instrument in Amsterdam is used to send to London the notification of the acceptance of
an offer the contract is complete when the Telex instrument in London receives the
notification of the acceptance (usually at the same moment that the message is being
printed in Amsterdam) and the acceptance is then notified to the offeror, and the contract
is made in London.
Bombay high court in Quadricon Pvt. Ltd. v. Bajarang Alloys Ltd13, ruled that the
normal rule would apply and the contract would be completed only when the acceptance
was received by the offeror.

11
1983 2 AC 34
12
1955] 2 QB 327
13
AIR 2008 Bom 88
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In England also, a similar view was taken by the Court of Appeal in the contract of
Entores Ltd. v. Miles Far East Corporation 14 regarding telephone or telex, it was
observed, "Where a contract is made by instantaneous communication, e.g., by telephone,
the contract is complete only when the acceptance is received by the offeror, since
generally an acceptance must be notified to the offeror to make a binding contract."
The above stated cases make it clear that the communication of acceptance is only
completed when it is received by the offeror and as it is clear from the facts of the case
that the telex was not received by Mr Utkarsh’s office, it never came into his knowledge
at least not until he sent the revocation of his offer.

14
1955] 2 All ER 493; [1955] 2 QB 327; [1955] EWCA Civ 3
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CONTENTION 2: THAT THE REVOCATION OF OFFER WAS VALID , AS

UNDER § 5 OF THE INDIAN CONTRACT ACT, 1872.

It is humbly submitted before the Honourable Court that, as already known, § 5 of ICA15
is Revocation of Proposals and acceptance, as defined —   

“A proposal may be revoked at any time before the communication of its acceptance is
complete as against the proposer, but not afterwards; which means that before the
acceptance is complete, the offer has to be revoked by the offeror or the proposer. the
acceptance is completed when the communication is completed Or This process of
acceptance would be completed when the acceptance is being put into the course of
transmission by the person who had to give the acceptance.”

This implies that the communication of revocation of offer can be effective only:

A) when the offeree has not accepted the offer.

B) when the revocation reaches the offeree before he posts his acceptance and makes
it out of his power.

C) Lastly, when the communication of acceptance is done by the method of telex, the
contract would be completed only when the acceptance is received by the person who has
made the offer, till the acceptance is not received by the person who has made the offer
the communication of acceptance will not complete.

The point to be considered in communication of revocation is that the proposal should be

revoked before the acceptance of offer by the offeree. In the present case Mr. Utkarsh
sent the revocation through telex and it was received by the offeree, it was only after the
reception of revocation the offeror came to know about the acceptance of offer sent to
him through telex. It is to be noted that acceptance was received at 9:30 a.m. on June 7 th
whilst offeree received revocation at 9:00 a.m. concluding that proposer has not violated
any law as according to section 5 revocation of contract.

15
Contract Act. CODE (1872) (Herein referred as I.C.A.).

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It is submitted before the Honourable Court that in the present case, however the accused
Mr. Utkarsh M.D of Toffscars Ltd., has never received the acceptance letter thus
nullifying the claims of Mr. Raman ascertaining that the crucial element of a valid
contract has not been fulfilled. Furthermore, it is very clearly stated that the defendant has
sent revocation telex before receiving Mr. Raman’s telex thus, complying with the
Section 5. This will be further explained in detail.

2.1 THE VITAL INGREDIENTS OF REVOCATION WERE FULFILLED

It is humbly submitted to the Honourable Supreme Court that, the accused never received
acceptance offer, although § 4 states that “The communication of an acceptance is
complete -as against the proposer, when it is put in a course of transmission to him so at
to be out of the power of the acceptor; as against the acceptor, when it comes to the
knowledge of the proposer” but in the present case it never came to the knowledge of
proposer due to the slip of pen by the acceptor. it was probably delivered on the wrong
address mentioned on the letter but was not received in the proposer’s office. In this
scenario the offeree is not in the state to nullify the revocation and make imprecations.

Moreover, the plaintiff’s claims of acceptance through telex are just paper tiger which
can’t avoid being shredded because the plaintiff has no evidence about whether the
defendant received the telex or not. Since the telex is neoteric mode of communication in
contrast to letter through post, it is important to check if the person concerned has
received it or not, as when a contract is made by post it is clear law that the acceptance is
complete as soon as the letter is put into the post box. But same is not the case when
communication mode is deemed neoteric and instantaneous such as telex, telephone mail
etc. forming contract through these modes of communication requires both the parties to
receive the contract for its completion.

In the case of Steel Authority of India Ltd. vs Macmet India Ltd., As held by the
Calcutta High Court that the contract becomes complete as soon as the acceptance is
made by the acceptor and intimated to the offeror16.

16
Steel Authority of India Ltd. vs Macmet India Ltd., (1998) 2 CALLT 264 HC

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Similarly, in the case of Bhagwandas Goverdhandas Kedia vs M/S. Girdharilal

Parshottamdas17, honorable Supreme court, came to conclusion that communication by
post and communication over the phone or telex both stand on a different footing. In
other words, the normal rule applicable to postal communications would not be
applicable to communications which are instantaneous as in the case of a telephone
conversation or a telex message. The normal rule for postal communications, as observed
by the Supreme Court, is that the contract is completed the moment the acceptor posts his
acceptance of the offer. In case of instantaneous communication not only delivery but the
receiving of offer is also important. Had the communication been by post in the present
case and had the letter been posted at Mr. Utkarsh’s office, under the normal rule, the
contract could have been completed. Mere the fact that the plaintiff sent telex is not
enough to prove that the defendant had the knowledge of the acceptance of his offer so,
the vital ingredients for revocation of an offer are fulfilled as the revocation was made
before the communication of the acceptance. Therefore, the revocation under Section 5 of
ICA can be sustained.

Following conclusions have also been found in the case of Quadricon Pvt. Ltd. vs
Bajarang Alloys Ltd18 where Honorable High Court pointed out that communication by
fax is similar to communication by telex, Accordingly, in case of communication by fax,
also the normal rule would apply and the contract would be completed only when
the acceptance came into the knowledge of the offeror.

2.2 THE REVOCATION WAS MADE BEFORE THE ACCEPTANCE

Once the revocation has been communicated to the other party, the original proposal
stands cancelled and the other party cannot legally accept the proposal as the proposal is
not in existence anymore. Revocation comes into effect as soon as it has been
communicated to the relevant party.

17
1966 AIR 543, 1966 SCR (1) 656
18
AIR 2008 Bom 88
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As in the case of The Secretary of State for India vs Bhaskar Krishnaji Samant 19,
Honorable Bombay High Court deemed that a person who makes a proposal is entitled
to withdraw it before it is accepted.

Likewise in another case of Managing Committee of Shree vs State of Bihar And

Ors20., the letter of resignation of an employee was not considered to have any impact. It
is because in that case, as the secretary offered his letter of resignation to the managing
committee for acceptance. But soon after, that the letter was withdrawn and Since the
managing committee did not accept the letter by then, the honorable High court
considered the secretary competent to revoke the letter of resignation pointing out that a
proposal may be revoked at any time before the communication of its acceptance is
complete as against the proposer, and the communication of the acceptance of the
proposal is complete as against the proposer when it is put in course of transmission
to him so as to be out of the power of the acceptor.  

In the case of Payne v Cave21: The defendant made the highest bid for the plaintiff's
goods at an auction sale, but he withdrew his bid before the fall of the auctioneer's
hammer. It was held that the defendant was not bound to purchase the goods. His bid
amounted to an offer which he was entitled to withdraw at any time before the
auctioneer signified acceptance by knocking down the hammer.

It is clear that if the revocation of offer has reached the offeree before the acceptance
comes to the knowledge of the proposer, then it is a valid revocation of offer. The
Revocation of offer is complete only at any time before the communication of acceptance
is complete as against the offeror, but not afterwards.

In the case of Dickinson v. Dodds22. Party A offered to sell his property to Party B
but decided to sell it to Party C instead. Party B found out about the sale because

19
(1925) 27 BOMLR 973
20
AIR 1981 Pat 271, 1981 (29) BLJR 524
21
(1789) 3 TR 148
22
(1876) 2 Ch D 463
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Party D told him. This was legal, as Party A went through the revocation process
legally by having Party D inform Party B about the sale.

In Byrne & Co. v Leon Van Tienhoven & Co 23, Common Pleas Division the court
held that withdrawal of an offer by telegram is only valid if the telegram is received
before the offer is accepted.

Considering the above cases therefore, it is to be taken in view that defendant was
competent to revoke his contract before its acceptance was complete in the sense, as
against him, and certainly it cannot be considered accepted not until 9:30 p.m. on
June 7th, when he had already withdrawn his offer.

CONTENTION 3: THAT THERE IS NO BREACH OF CONTRACT

It is submitted before the Honourable Court that there is no breach of contract on the part
of defendant as stated before there was no binding contract between the parties, also the
revocation of the offer by the defendant was valid under Section 5 of Indian Contract Act,
1872.

A contract is breached or broken when any of the parties fails or refuses to perform its
promise under the contract. Breach of contract is a legal cause of action in which a
binding agreement is not honoured by one or more parties by non-performance of its
promise by him renders impossible.
Section 37 of the Indian Contract Act,1872 provides that the parties to the contract are
under obligation to perform or offer to perform, their respective promises under the
contract, unless such performance is dispensed with or excused under the provisions of
the Indian Contract Act or of any other law.
According to Section 39, where the party has refused to perform or disabled himself from
performing, his promise in its entirely, the other party may put an end to the contract,

23
(1880) LR 5 CPD 344
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unless that other party has expressly or impliedly signified its consent for the continuance
of contract. If the other party chooses to put an end to the contract, the contract is said to
be broken and amounts to breach of contract by the party not performing or refusing to
perform its promise under the contract. This is called repudiation. Thus, repudiation can
occur when either party refuses to perform his part or makes it impossible for him to
perform his part of contract in each of the cases in such a manner as to show an intention
not to fulfil his part of the contract.
Chapter VI (Section 73 to 75) of the Indian Contract Act, 1872 deals with the
consequences of breach of the contract.
It was stated in the case of Felthouse v. Bindley24 that for a valid contract the acceptance
should be communicated and moreover such communication should be made to the
offeror. Another point of law explained in the case was that the offeror cannot impose
upon the offeree duty to reply and therefore an offeror cannot say that failure to reply will
be deemed to be acceptance of the offer. There was no breach of contract.
As stated above in present case the essentials of a valid contract are not fulfilled so there
is no valid contract in this case. Hence no breach of contract exists.

24
1862), 11 CB (NS) 869, 142 ER 1037
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PRAYER

In the light of the facts stated, issues raised, arguments advanced &authorities cited the
counsel on behalf of the humbly prays before the Hon’ble Civil Court to kindly adjudge
and declare,

1. That the Plaintiff did not meet the essentials of valid contract
2. That the Accused has not breached the contract since there was no contract.
3. A valid existence of valid contact never took place.
4. That the Defendant should be free from any such charges.

Or to pass any appropriate relief that the Hon’ble Court may deem fit and is in the best
interest of Justice, Equity and Good Conscience,

And for this act of kindness, the counsel on behalf of the Appellant, as duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________________

SD/-

COUNSELS FOR THE DEFENDANT

11
MEMORIAL ON BEHALF OF THE DEFENDANT