Memo 1

TEAM CODE – 027-150
5TH INTRA – UNIVERSITY MOOT COURT COMPETITION
2013
Before
THE HONOURABLE SUPREME COURT OF INDIA
U/A 139A AND ORDER XXXVIA RULE 5 OF SUPREME COURT RULES, 1966
OF
THE CONSTITUTION OF INDIA
M/S DAS & BHULLAR
(PLAINTIFF)
v.
M/S BUSINESS SOLUTIONS
(DEFENDANT)
[BRIEF OF THE AMICUS CURIAE]

5TH INTRA – UNIVERSITY MOOT COURT COMPETITION – 2013
[TABLE OF CONTENTS]
TABLE OF CONTENTS
LIST OF ABBREVIATIONS...................................................................................................iii
INDEX OF AUTHORITIES...............................................................................................VII
Judicial Pronouncements.....................................................................................................vii
Domestic Judgements......................................................................................................vii
Supreme Court Judgements.........................................................................................vii
High Court Judgements.................................................................................................ix
Foreign Cases....................................................................................................................xi
Legislations.........................................................................................................................xiii
Domestic Legislation......................................................................................................xiii
Statutes........................................................................................................................xiii
Academic Writings.............................................................................................................xiii
Books..............................................................................................................................xiii
Articles............................................................................................................................xiv
Dictionaries & Encyclopedias.........................................................................................xiv
STATEMENT OF JURISDICTION..................................................................................XV
STATEMENT OF FACTS.................................................................................................XVI
ISSUES RAISED...............................................................................................................XVII
SUMMARY OF ARGUMENTS....................................................................................XVIII
ARGUMENT ADVANCED....................................................................................................1
A. The Hon’ble Supreme Court of India As Well As The Hon’ble High Court of Delhi
Holds The Jurisdiction...........................................................................................................1
A.I. Territorial Jurisdiction over the place of execution of the contract............................1
a. Cause of Action required to be taken into account..............................................2
b. Jurisdiction over Contract made online................................................................3
c. Determination of the Jurisdictional Limits of the High Court.............................4
A.II. Hon’ble Supreme Court of India holds the jurisdiction over the matter...................5
a. Application of Article 139A of the Constitution..................................................5
1. ‘Or’ is a disjunctive clause...............................................................................6
2. Use of word High Court again..........................................................................6
3. Liberal Interpretation of Constitution...............................................................7
b. Power to entertain complete case by Supreme Court...........................................7
Page | i Submission’s of the Amicus Curiae

[TABLE OF CONTENTS]
A.III. Grant of Anti-suit Injunction....................................................................................8
B. There is No Contract in Existence Between M/s Das & Bhullar and M/s Business
Solutions.................................................................................................................................9
B.I. Sale of Goods never happened..................................................................................10
a. Software are goods.............................................................................................10
b. Application of provisions of Sales of Goods Act...............................................11
1. Goods were not of merchantable quality........................................................11
2. Flagging of consignment imitates the un-merchantable quality of the goods12
B.II. No liability can be drawn upon the installed software.............................................13
a. Right to examine the goods................................................................................13
b. Right to not return the rejected goods................................................................14
B.III. Transfer of Liability on The Custom Authorities...................................................15
a. Relation between Copyright Act and Custom Act.............................................15
b. Interpretation of the word ‘import’....................................................................16
c. Relation between Custom Act and Sales of Goods Act.....................................17
d. Possession of Goods is with the Government....................................................17
C. Whether the Contract for the License no 1983/11/21 is a valid Contract under the
principles of Indian contract Act 1872 ?..............................................................................18
C.I. Whether the above mentioned contract fulfills the essentials of contract ?..............19
C.II. Whether the communication was complete in this contract?..................................20
C.III. Whether Shrinkwrap is valid form of contract under the Indian law?...................21
C.IV. Whether Clickwrap is a valid form of contract under the Indian law?..................22
C.V. Whether Browsewrap is a valid form of contract under the Indian law?................23
D. No Damages Can be Claimed from M/s Das & Bhullar, Even in Presence of Contract
24
D.I. Burden on Proof is upon plaintiff.............................................................................24
D.II. Claim should be reasonable.....................................................................................24
D.III. Rule of mitigation...................................................................................................25
PRAYER FOR RELIEF........................................................................................................26
Page | ii Submission’s of the Amicus Curiae

[LIST OF ABBREVIATIONS]
LIST OF ABBREVIATIONS
& And
§ Section
¶ Paragraph
¶¶ Page
A&E Admiralty and Ecclesiastical Cases
A.2d Atlantic Reporter, Second Series
A.P. Andhra Pradesh
AC Appeal Cases
AIHC All India High Court Cases
AIR All India Reporter
All Allahabad
All ER All England Reporter
All LJ Allahabad Law Journal
All WN Allahabad Weekly Notes
ALR Allahabad Law Reports
Art Article
ASG Additional Solicitor General
AWC Allahabad Weekly Cases
Bom Bombay
Bom LR Bombay Law Reporter
C.I.T. Commissioner of Income-Tax
CA Court of Appeal
Cal Calcutta
Camp Campbell's Nisi Prius Cases
Cas Case
CBI Central Bureau of Investigation
CD Compact Disc
Ch App Chancery Appeal
Cir Circuit
cl. Clause
Co. Company
Const Constitution
Page | iii Submission’s of the Amicus Curiae

Corpn Corporation
CP Common Pleas
CTLR Computer & Telecommunication Law Review
CWN Calcutta Weekly Notes
D. Kan. District of Kansas
D.C. District of Columbia
DB Divisional Bench
Del Delhi
Doesn’t Does not
Dr. Doctor
E.D. Cal. Eastern District of California
E.D. La. Eastern District of Louisiana
ECC Excise and Customs Case
Ed Edition
ELT Excise Law Times
ERP Enterprise Resource Planning
EULA End User License Agreement
F. Supp. Federal Supplementary
F.2d Federal Reporter, Second Series
F.3d Federal Reporter, Third Series
FCR Federal Court Reporter
FSR Fleet Street Reports
GLR Gujarat Law Reporter
Guj Gujarat
HL House of Lords
Hon’ble Honourable
HP Himachal Pradesh
i.e. Therefore
Id Ibidium
ILR Indian Law Reports
Inc. Incorporation
IUMCC Intra-University Moot Court Competition
J. Justice
JT Judgement Today
Page | iv Submission’s of the Amicus Curiae

Kant Karnataka
KB King’s Bench
Ker Kerala
L.Ed Lawyers Edition
L.J. Lord Justice
Lah Lahore
ld. Learned
LLC Limited Liability Company
LQR Law Quarterly Review
LR Law Reports
LT Law Times Reports
Ltd. Limited
M&W Meeson & Welsby's Exchequer Reports
M/s Messer
Mad Madras
Mad LJ Madras Law Journal
Man&G Manning & Granger's Common Pleas Reports
Mr. Mister
NCT National Capital Territory
No. Number
ONGC Oil & Natural Gas Company
Ori Orissa
Ors Others
Pat Patna
PR Punjab Record
PTC Patent & Trademark Cases
Punj Punjab
Pvt Private
QB Queen’s Bench
Rag Rangoon
Sau Saurashtra
SC Supreme Court
SCALE Supreme Court Almanac
Page | v Submission’s of the Amicus Curiae

SCC Supreme Court Cases

SCR Supreme Court Reporter
St. Saint
Supp Supplementary
Taunt Taunton
Tex. Wesleyan L. Rev. Texas Wesleyan Law Review
TLR Times Law Reports
TSL The Software Link
U.P. Uttar Pradesh
U.S. United States Supreme Court
U/A Under Article
UCC Uniform Commercial Code
V Versus
WL Westlaw Transcripts
WLR Weekly Law Reports
Page | vi Submission’s of the Amicus Curiae

[INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
JUDICIAL PRONOUNCEMENTS
Domestic Judgements
Supreme Court Judgements
ABC Laminart Pvt. Ltd. v. A.P. Agencies, Salem, AIR 1989 SC 1239......................................2
Aruna Roy v. Union of India, AIR 2002 SC 3176.....................................................................7
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1..........................................................7
Ashok Tanwar v. State of Himachal Pradesh, (2005) 2 SCC 104.............................................7
Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272...............................24
Bhagwan Dass Govardhan Dass Kedia v. Purushottam Dass & Co, AIR 1966 SC 543..........4
Biharilal Rada v. Anil Jain (TInu), (2009) 4 SCC 1..................................................................7
CBI v. Harinder Singh, AIR 1991 SC 1890...............................................................................5
Central India Spinning & Weaving and Manufacturing Co. Ltd. v. Municipal Committee,
Wardha, AIR 1958 SC 341..................................................................................................16
Commissioner of Income Tax – V, New Delhi v. Oracle Software India Ltd., (2010) 2 SCC
677........................................................................................................................................11
Delhi Judicial Association v. State of Gujarat, AIR 1991 SC 406............................................8
Dr. Manju Verma v. State of Uttar Prdesh, 2004 (9) SCALE 463............................................5
Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781....................................................7
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667...................16
Gurumukh Ram Madan (Dr.) v. Bhagwan Das Madan, AIR 1998 SC 2776..........................24
Hakam v. Gammon, AIR 1971 SC 740......................................................................................1
Hydrabad Asbestos Cement Products v. Union of India, JT 1999 (9) SC 505..........................6
Imagic Creavtivity Pvt. Ltd. v. The Commissioner of Commercial Taxes and Ors., 2008 (1)
SCALE 356..........................................................................................................................11
Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217......................................................7
Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1450........................................................6
K. Anbazhagan v. The Superintendent of Police and Ors., (2004) 3 SCC 767..........................5
K.M. Nanavati v. State of Bombay, AIR 1961 SC 112..............................................................8
L.K. Venkat v. Union of India, AIR 2012 SC 2503....................................................................6
M. Nagraj v. Union of India, (2006) 8 SCC 212........................................................................7
M. Satyanarayana v. State of Karnataka, (1986) 2 SCC 512....................................................6
Modi Entertainment Network v. W.S.G. Cricket Private Ltd., AIR 2003 SC 1177...................8
Page | vii Submission’s of the Amicus Curiae

Mohd. Anis v. Union of India, 1994 Supp 1 SCC 145...............................................................8
Municipal Corporation of Delhi v. Tek Chand Bhatia, AIR 1980 SC 360................................6
Murlidhar Chiranjilal v. Harishchandra Dwarkadas, [1962] 1 SCR 653..............................25
Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corp., (2009) 8 SCC
646..........................................................................................................................................8
Nair Service Society v. State of Kerala, (2007) 4 SCC 1...........................................................7
Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331......................................6
National Insurance Company Limited v. Rattani, (2009) 2 SCC 75.......................................24
New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154..................2
Patel Chunibhai Dajibha v. Natayanrao, AIR 1965 SC 1457...................................................6
Patel Roadways Ltd. v. Prasad Trading Company, AIR 1992 SC 1514...................................2
People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399..................................7
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551............................................................7
Province of Madras v. Boddu Paidanna, 1942 FCR 90..........................................................17
Punjab Produce & Trading Co. v. C.I.T., West Bengal, AIR 1971 SC 2471............................6
Punjab Vidhan Sabha v. Prakash Singh Badal, 1987 (Supp) SCC 610....................................5
Puran Singh v. State of Madhya Pradesh, AIR 1965 SC 1583..................................................6
R.C. Poudyal v. Union of India, AIR 1993 SC 1804.................................................................7
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183..........................................................................6
Radhakrishan v. State of Uttar Pradesh, 1963 Supp 1 SCR 408.............................................15
Raj Kumar v. Union of India, AIR 2006 SC 938.......................................................................8
Ranchi Municipal Corporation v. Kamakhya Narani Singh, (1982) 3 SCC 387......................5
S.R. Chaudhuri v. State of Punjab, AIR 2001 SC 2707.............................................................7
Sayed Mohamed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas
Committee, (2004) 7 SCC 708.............................................................................................24
Sobha Hymavathi Devi v. Sethi Gangadhar Swamy, AIR 2005 SC 800...................................7
Special Reference No. 1 of 2002 (under Article 143(1) of the Constitution), AIR 2003 SC 87 7
Star Co. Ltd. v. Commissioner of Income Tax, AIR 1970 SC 1559...........................................6
State (Delhi Administration) v. Puran Mal, (1985) 2 SCC 589.................................................6
State of Bombay v. F.N. Balsara, 1951 SCR 682....................................................................17
State of Maharashtra v. Natwarlal Damodardas Soni, 1983 (13) ELT 1620 (SC).................15
Sukhdeo v. State of Rajasthan, (1984) 4 SCC 235.....................................................................5
Sunrise Associates v. Government of NCT of Delhi and Ors., AIR 2006 SC 1908.................11
Synthetics Chemicals Ltd v. State of Uttar Pradesh, AIR 1990 SC 1927..................................7
Page | viii Submission’s of the Amicus Curiae

T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355.............................................7
Tata Consultancy Services v. State of Andhra Pradesh, (2005) 1 SCC 308............................10
Tirupati Balaji Developers Pvt. Ltd. and Ors. v. State of Bihar and Ors. AIR 2004 SC 2351. 5
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584....................................................8
Union of India v. Naveen Jindal, (2004) 2 SCC 510.................................................................7
High Court Judgements
(India TV) Independent News Service Pvt Ltd v. India Broadcast Live LLC and Ors., 2007
(35) PTC 177 (Del)................................................................................................................4
ACCE v. Wilfred Sebastian, 1983 (12) ELT 122 (Ker)............................................................15
Arthur Butler v. District Board of Gaya, (!936) ILR 15 Pat 292...............................................3
Asa Ram v. Bakshi, (1920) 1 Lah 203........................................................................................3
Babu Lal v. Phaggu Mal, (1913) ILR 35 All 325....................................................................14
Buch v. Gordhandas, (1922) 24 Bom LR 991.........................................................................14
Chunnilal Kasturschand v. Dundappa Donappa, AIR 1951 Bom. 190....................................4
Customs and Central Excise Department v. Veerabhadreswara Weaving Factory, 1983 ELT
1758......................................................................................................................................15
D. Muhammad Shafi v. Karamat Ali, (1896) PR 76..................................................................3
Dharampal & Co v. Kila Gatla Ram Chandra Rao & Co, AIR 1980 All 316........................13
Dhunjisha v. Fforde, (1887) ILR 11 Bom 649...........................................................................3
Dobson v. Bengal Spg. & Wvg. Co., (1897) ILR 21 Bom 126..................................................3
Doya v. Secretary of State, (1887) ILR 14 Cal 256...................................................................3
Eternitt Everest Ltd. v. CV Abraham, AIR 2003 Ker. 273.......................................................11
Famous Construction v. N.P. Construction Corporation Ltd., AIR 2000 Del. 404..................2
Fernandes v. Ray, ILR (1897) 21 Bom 373...............................................................................4
Frontier Bank Ltd. v. Shrimati Prakashwati Bahl, ILR (1950) Punj 635..................................4
Gaekwar Baroda State Railway v. Sheikj Habib Ullah, AIR 1934 All 740..............................4
GN Behere v. NB Rice Mills, AIR 1966 Assam 95..................................................................13
Govardhan P. Thakare v. Janardhan G. Thakare, 2005 AIHC 1276......................................24
Hatti Gold Mines Ltd. v. M/s V.H. Equipments, AIR 2005 Kant 264 (268)..............................1
Hmangaihzuali v. C. Laladingi, AIR 2004 Gau 13..................................................................23
I.R. & I.C.S. (Pvt.) Ltd. v. Jenner Fenton Slade Ltd., AIR 2003 Bom 410................................8
Jupiter General Insurance Co. v. Abdul Aziz, AIR 1924 Rag 2................................................3
K. Venkatasubba Reddi v. Bairagi Ramaiah, 1999 AIHC 2782..............................................23
Kajaria Exports v. Union of India, AIR 1985 Cal 70................................................................2
Page | ix Submission’s of the Amicus Curiae

Kashinath v. Anant, ILR (1899) 34 Bom 407............................................................................4
KG Hiranandani v. Bharat Barrel & Drum Manufacture Co. Pvt. Ltd., AIR 1969 Bom 373 25
KIG Systel Ltd. v. Fujitsu ICIM Ltd., AIR 2001 Del 357..........................................................3
Kobra Super Thermal Power Plant v. R.M. Engineering Enterprises, 1996 AIHC 4535.........2
Krishan Swaroop Gupta and Ors. v. Union of India and Ors., 1998 AWC 62 All...................6
M. Mudaliar v. Andappa Pillai, AIR 1955 Mad. 96..................................................................4
Mahadev Ganga Prasad v. Gouri Shankar, AIR 1950 Ori 42.................................................13
Malli v. RVAA Firm, (1922) 43 Mad LJ 208............................................................................11
Minerals and Metals Trading Corpn. Ltd. v. Dimple Overseas Ltd., AIR 2001 Del. 427.........9
Mulchand v. Suganchand, (1876) ILR 1 Bom 23......................................................................3
Nallatamlei v. Ponuswami, ILR [1879] 2 Mad 406...................................................................3
Nedungadi Bank Ltd. v. Central Bank of India, AIR 1961 Ker 50............................................2
Nirakar Das v. Gourhari Das, AIR 1995 Ori 270...................................................................23
ONGC v. Muderu Construction & Co., AIR 1998 Guj 46.........................................................3
P.K. Ghosh v. Kailash Kumar Mazodia, 2000 (117) ELT 14 (Cal).........................................15
Patel Kala Bechar v. Patel Mohan Bahgwan, AIR 1953 Sau 16..............................................4
Peer Mahomed v. Dalooram, (1918) 35 Mad LJ 180..............................................................11
Penguin Book Ltd., England v. M/s. India Book Distributors, AIR 1985 Del 29....................16
Peoples Ins Co. v. Benoy, 47 CWN 292....................................................................................2
Progressive Construction Ltd. v. Bharat Hydro Power Corpn. Ltd.,AIR 1996 Del. 92............3
Rahim Makhsh Mandal v. Sajjadahmad Chowdhary, AIR 1915 Cal 601...............................25
Ram Bhajan v. Adbul Rahman, AIR 1997 All 17....................................................................24
Ram Bhat v. Shankar Baswant, ILR (1902) 25 Bom 528..........................................................4
Ramanathan Chettier v. Soma Sunderam Chettier¸ AIR 1964 Mad 527...................................3
Rampurtab v. Premsuk, (1891) ILR 51 Bom 93........................................................................3
Re Beharilal Baldeoprasad, AIR 1955 Mad 271.....................................................................13
Salig Ram v. Chaha Mal, (1912) ILR 34 All 49........................................................................3
Seshagiri Row v. Nawab Askur, (1904) ILR 27 Mad 494..........................................................3
Sita Ram v. Ram Chandra, (1918) PR 26..................................................................................3
Sorabji Hormunsha Joshi & Co. v. V.M. Ismail., AIR 1960 Mad 520....................................12
Sriniwas v. V.V. Ayyangar, ILR (1906) 29 Mad. 239................................................................4
Sumer Chand v. Ardeshir, (1907) All WN 67..........................................................................14
The Board of Trustees of the Port of Calcutta v. Bengal Corporation Private Ltd., AIR 1979
Cal 142.................................................................................................................................12
Page | x Submission’s of the Amicus Curiae

Tirumala Tirupati Devasthnam v. Madras Port Trust, 1994 (46) ECC 48..............................12
TRG Industries Pvt. Ltd. v. CHZR Dormash Service, AIR 2005 Del 139...............................14
Usha Beltron Ltd. v. Nand Kishore Parasramka, AIR 2001 Cal 137......................................23
V.E. Smith . Indian Textile Co., AIR 1927 All 413....................................................................4
Foreign Cases
Bellgrove v. Eldridge, (1954) 90 CLR 613..............................................................................24
Blockow, Vallghan & Co., (1875) 10 Ch App 491..................................................................10
Bristol Tramways Co. v. Fiat Motors Ltd., [1910] 2 KB 831, 840-41 (CA)...........................12
British Westinghouse Electric and Manufacture Co. Ltd. v. Underground Electric Railway
Company of London Ltd., [1912] AC 673...........................................................................25
Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 572 (N.Y. App. Div. 1998).....................23
Brown & Co. v. Harrison, (1927) All ER 195...........................................................................6
Brown v. State of Maryland, 6 L.Ed. 78..................................................................................16
Cammel Laird & Co. Ltd. v. Mangerese Bronze & Brass Co. Ltd., [1934] AC 402...............12
Caswell v. Coare, (1809) 1 Taunt 566.....................................................................................14
Chesterman v. Lamb, (1834) 2 A&E 129................................................................................14
Comb v. PayPal, Inc., 218 F. Supp. 2d 1165, 1172 (N.D. Cal. 2002).....................................23
Comptoir d'Achat et de Vente du Boerenbond Belge SA v. Luis de Ridder Limitada (The
Julia), (1949) AC 293...........................................................................................................10
CR Taylor (Wholesale) Ltd v. Hepworths Ltd., [1977] 2 All ER 784.....................................24
Darlington Borough Council v. Wilthier Northern Ltd., [1995] 3 All ER 895........................24
De Moor, [1990] 106 LQR 632................................................................................................20
E Clemens Horst v. Biddell Brothers, [1912] AC 18...............................................................14
East Ham Borough Council v. Bernard Sunley & Sons Ltd., [1966] AC 406.........................24
Farina v. Home, (1846) 16 M & W 119...................................................................................10
Foresight Resources Corp. v. Pfortmiller, 719 F. Supp. 1006, 1010 (D. Kan. 1989)..............22
Forrest v. Verizon Commc’ns, Inc., 805 A.2d 1007, 1011 (D.C. 2002)..................................22
Green v. Premier Glynrhonwy Slate Co., (1928) 1 KB 561......................................................6
Grimoldby v. Wells, (1875) LR 10 CP 391.............................................................................14
Grimoldby v. Wells,1875 LR 10 CP 395.................................................................................14
Hardwick Game Farm VSAPPA (HLE), [1969] 2 AC 31.......................................................12
Hardy & Co. v. Hillerns and Fowler,[1923] 1 KB 658............................................................13
Hatch v. Oil Co., 100 U.S. 124, 133 (1879).............................................................................22
Heilbutt v. Hickson, (1872) LR 7 CP 438................................................................................14
Page | xi Submission’s of the Amicus Curiae

Henderson v. Merrett Syndicates Ltd., [1995] 2 AC 145........................................................25
Henry Kendall & Sons v. William Lillico & Sons Ltd., (1968) 3 WLR 110..........................12
In Airbus Industrie GIE vs. Patel & Ors., (1998) 2 All ER 257................................................9
Isherwood v. Whitmore, (1843) 11 M&W 347........................................................................13
Jackson v Rotax Motor & Cycle Co. Ltd., [1910] 2 KB 937 (CA).........................................13
Jones v. Just, (1868) LR 3 QB 197..........................................................................................11
Kwei Tek Chao v. British Traders and Shippers Ltd, [1954] 2 QB 459..................................13
Laing v. Fidgeon, (1815) 4 Camp 169.....................................................................................11
M’Ewan v. Smiths, (1849) 2 HL Cas 309................................................................................10
Mash & Murrell v. Emanuel, [1961] 1 All ER 485.................................................................12
Mersey Docks and Harbour Board v. Henderson Bros., (1888) 13 AC 595..............................6
Molling v. Dean, 18 TLR 217..................................................................................................14
Paal Wilson & Co v. Partenreedrei (The Hannah Blumenthal), [1983] 1 All ER 34..............20
Pettitt v. Mitchell, (1842) 4 Man&G 819.................................................................................13
Polenghi Brothers v. Dried Milk Co., (1904) 92 LT 64...........................................................14
Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974, 981 (E.D. Cal. 2000)...................................23
Radford v. de Froberville, [1978] 1 All ER 33........................................................................24
Ruxley Electronics and Constn Ltd v. Forsyth, [1996] AC 344..............................................24
Saphena Computing Ltd. v. Allied Collection Agencies Ltd., [1995] FSR 616......................10
Shepherd v. Pybus, (1842) 3 Man & G 868.............................................................................11
Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29, 31 (2d Cir. 2002)..............................22
St. Albans City and District Council v. International Computers Ltd., [1996] 4 All ER 481. 10
Startup v. Macdonald, (1843) 6 Man&G 593..........................................................................14
Step-Saver Date Systems v. WYSE Technology and the Software Links, 939 F.2d 91 (3d Cir.
1991)....................................................................................................................................21
Sumner Permain & Co. v. Webb & Co., [1922] 1 KB 55 (CA)..............................................12
The Heron II, Koufos v. C. Czarnikow Ltd., [1969] 1 AC 350...............................................25
Ticketmaster Corp. v. Tickets.Com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390
..............................................................................................................................................24
Tito v. Waddell (no. 2), [1977] Ch 106....................................................................................24
Utley v. Donaldson, 94 U.S. 29, 47 (1876)..............................................................................22
Page | xii Submission’s of the Amicus Curiae

LEGISLATIONS
Domestic Legislation
Statutes
[Code] Civil Procedure, (1908) Order V §24.............................................................................4
[Code] Civil Procedure, 1908 §15.............................................................................................3
[Code] Civil Procedure, 1908 §20.............................................................................................1
[Code] Civil Procedure, 1908 §20 cl. a......................................................................................2
[Code] Civil Procedure, 1908 §9...............................................................................................3
C.P. & Berar Municipalities Act, 1922....................................................................................16
Copyright Act, 1957 §53..........................................................................................................15
Copyright Act, 1957 §53 cl. 3..................................................................................................16
Copyright Act, 1957 §53 cl.2...................................................................................................15
Copyright Rules, 1958 §22......................................................................................................15
Copyright Rules, 1958 §23......................................................................................................15
Custom Act, 1962 §11..............................................................................................................15
Customs Act, 1962 §11A.........................................................................................................17
Customs Act, 1962 §46 cl. 1....................................................................................................17
Sale of Goods Act, 1930 §41 cl. 1...........................................................................................13
Sale of Goods Act, 1930 §43...................................................................................................14
Sales of Goods Act, 1930 §16 cl. 2..........................................................................................12
The Delhi High Court Act, 1966 §5...........................................................................................4
ACADEMIC WRITINGS
Books
2 CHITTY ON CONTRACT 1289 ¶27-039 (28h ed. 1999)...........................................................25
2 L.M. SINGHVI, CONSTITUTION OF INDIA 2072 (2d. ed. 2010)................................................5
2 R.G. PADIA, MULLA ON INDIAN CONTRACT ACT & SPECIFIC RELIEF ACT 1630 (13h ed.
2011)....................................................................................................................................25
ABHISHEK KRISHNAN AND RAKSHITHAA, E-CONTRACTS – LAW OF BUSINESS CONTRACTS IN
INDIA 12 (2011)....................................................................................................................23
HIDAYATULLAH, Judicial Methods 236 (1970).........................................................................7
P. NARAYAN, LAW OF COPYRIGHT AND INDUSTRIAL DESIGN 378 (4h ed. 2010)...................15
POLLOCK & MULLA, THE SALES OF GOODS ACT 1930 43 (8h ed. 2011)...............................11
Page | xiii Submission’s of the Amicus Curiae

RESTATEMENT (SECOND) OF CONTRACTS § 19(2) (1981)......................................................22
S.C. SARKAR, CODE OF CIVIL PROCEDURE 230 (11h ed. 2009)................................................1
SG PADIA, POLLOCK & MULLA, INDIAN CONTRACTS AND SPECIFIC RELIEF ACTS , 764 (13h
ed 2010)................................................................................................................................21
Articles
Amit M. Sachdeva, International Jurisidction in Cyberspace: A Comparative Perspective 8
CTLR 245, 253 (2007)...........................................................................................................4
Ryan J. Casamiquela, Contractual Assent and Enforceability in Cyberspace, 17 BERKELEY
TECH L.J. 475, 476 (2002)...................................................................................................22
Wei Wei Jeang & Ronin A. Brooks, Current On-Line Issues, 8 TEX. WESLEYAN L. REV. 615,
623 (2002)............................................................................................................................22
Dictionaries & Encyclopedias
12 Halsbury’s Law of England, ¶981 (4th ed. 2008)...............................................................25
20(1) Halsbury’s Laws of India 250 ¶185.435 (2008).............................................................17
42 Halsbury’s Laws of India, 221 ¶110.650 (2008).................................................................15
Page | xiv Submission’s of the Amicus Curiae

[STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
THE PRESENT CASE HAD BEEN FILED IN HON’BLE DELHI HIGH COURT, LATER BY THE
VIRTUE OF POWER GRANTED TO ATTORNEY GENERAL OF INDIA, THE CASE HAS BEEN
BROUGHT BEFORE THE HON’BLE COURT UNDER ARTICLE 139A WITH ORDER XXXVIA
RULE 5 OF SUPREME COURT RULES, 1966.
Page | xv Submission’s of the Amicus Curiae

[STATEMENT OF FACTS]
STATEMENT OF FACTS
1. Narendra Nath Das & Premendra Pal Singh Bhullar entered into partnership for an
import/export business for profit and named it as M/s Das & Bhullar. They contracted with
M/s Business Solutions, a North Korea based company, having its Indian branch at New
Delhi, for the sale of Brand-Vally, a package software product meant for Enterprise Resource
Planning.
2. The first consignment landed on January 10, 2003 at Kandla port. After the seal of the
Container was opened by the Customs’ Officials, Mr. Bhullar took out one of the packages
and opened it. While all boxes were printed in English, this was printed in Mandarin.
3. He took out the installation CD from inside, and started installing it on a Linux platform
based notebook. He kept on clicking ‘OK’ on the screen till he reached EULA page. After
which he connected the notebook with internet and continued the installation process.
Ultimately he reached the ERP front face of the software, was pleased to operate it.
4. In the meanwhile, the Customs officials sounded an alert that the container contained
some boxes which were pirated and non-original version. Mr. Das and Mr. Bhullar
immediately decided to send the consignment back to the vendor M/s Business Solutions.
5. On or about February 23rd, 2005 Mr. Das and Mr. Bhullar received a notice. The notice
stated that the usage of one of the software packets subscribed in name of Mr. Bhullar & Das
has resulted into piracy due to some hacking activity in Turkmenistan. The License Number-
1983/11/21 has been hacked and thousands of pirated copies have been made out of it. Also,
no amounts have been paid by Mr. Das and Bhullar towards the said license number ever.
The notice also stated that while M/s Business Solution are contemplating action under the
WTO laws; as their clients are facing heavy losses on a day to day basis, therefore it is
necessary that immediate damages under the Indian laws of license fee for at least ten
thousand copies must be paid as an interim measure.
6. On the receipt of the notice, a suit was instituted on the original side of the Hon’ble Delhi
High Court. Two days of hearing has already commenced. On the apprehension of
involvement of substantial question of law, ld. ASGs were appointed as amicus curiae in the
matter. In the meanwhile, the ld. Attorney General prayed before the Supreme Court for
transfer of this case to the Supreme Court for any further hearing, which was allowed by the
Supreme Court. The matter is listed today before the Supreme Court for further arguments.
Page | xvi Submission’s of the Amicus Curiae

[ISSUES RAISED]
ISSUES RAISED
The case is brought before the Hon’ble Supreme Court for adjudication over the following
questions:
1. Whether Shrinkwrap, Clickwrap and Browsewrap agreements are applicable in
India?
2. Whether any contractual relationship is present between M/s Das & Bhullar and
M/s Business Solution?
3. Whether any liability can be associated with M/s Das & Bhullar?
Page | xvii Submission’s of the Amicus Curiae

[SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
1. The Hon’ble Supreme Court as well as Hon’ble High Court of Delhi holds
Jurisdiction
The matter was correctly filed under the Hon’ble Delhi High Court. It is also transferred
correctly to the Hon’ble Supreme Court. It is argued that the present court as well as the
original filing court both has the jurisdiction to entertain the matter.
2. There is no contract in existence between M/s Das & Bhullar and M/s Business
Solution
It is contended by M/s Das & Bhullar that no contractual relation, whatsoever, is present
between the parties. Hence, they are not liable to pay for any damages. Exercising his
right to reject, M/s Das & Bhullar has ended the contract.
3. Whether the contract for the license no. 1983/11/21 is a valid contract under the
principles of Indian Contract Act, 1872?
Shrinkwrap, Clickwrap Browsewrap agreements are not valid form of contract under the
Principles of Indian Contract Act 1872. These agreements do not fulfil the essentials of
contract as laid down in different provisions of the contract act. There is no free consent
and proper communication of acceptance in these contracts both parties are at uneven
bargaining power and terms of the contract were in mandarin that was not
understandable by both the parties to the contract.
4. No damages can be claimed from M/s Das & Bhullar even in presence of a contract
It is also submitted that, even if we concede to the fact that a contract do exist, then also
no damages can be claimed from M/s Das & Bhullar. The damages asked are remote and
unreasonable. Also, rule of mitigation allow the plaintiff to restrain from paying
damages.
Page | xviii Submission’s of the Amicus Curiae

[ARGUMENT ADVANCED]
ARGUMENT ADVANCED
1. The following submissions have been made before the Hon’ble Chief Justice of India
and the other companion judges of the Hon’ble Supreme Court. The present matter is
regarding the dispute between M/s Das & Bhullar and M/s Business Solutions regarding the
liability for the counterfeiting and piracy of the ERP software Brand- Vally.
2. It is humbly submitted before the Hon’ble Court that [A] The Hon’ble Supreme Court of
India as well as the Hon’ble High Court of Delhi holds the jurisdiction, [B] There is no
contact in existence between M/s Das & Bhullar and M/s Business Solution and [C] M/s Das
& Bhullar is not, in any condition whatsoever, liable to M/s Business Solutions for any
damages, and [D] No Damages can be claimed from M/s Das & Bhullar, even in presence of
contract.
A. THE HON’BLE SUPREME COURT OF INDIA AS WELL AS THE HON’BLE HIGH
COURT OF DELHI HOLDS THE JURISDICTION
3. The prima facie question of every suit is jurisdiction of the Court. In the present case, the
suit was filed before the Hon’ble Delhi High Court. In order to establish the jurisdiction of
the Delhi High Court, following submissions has been made [A.I.] Territorial Jurisdiction
over the place of execution of the contract; [A.II.] Hon’ble Supreme Court of India holds the
jurisdiction over the matter; and [A.III.] Grant of Anti-suit injunction.
A.I. Territorial Jurisdiction over the place of execution of the contract
4. The explanation to section 20 of the Code of Civil Procedure 1 expressly states that “A
corporation shall be deemed to carry on business at its sole or principal office in India or, in
respect of any cause of action arising at any place where it has also a subordinate office, at
such place”. This includes not only statutory corporation but also company registered under
the Companies Act.2 The first part of the explanation applies only to such Corporation which
has its sole or principle office at a particular place.3 In that event, the Court within whose
jurisdiction the sole or the principal office of the company is situate will also have
jurisdiction inasmuch as even if the defendant may not actually be carrying business at that
place, it will be deemed to carry on business at that place because of the fiction created by the
Explanation takes care of a case where the defendant does not have a sole office but has a
principal office at one place and has also subordinate office at another place. 4 The expression
1
[Code] Civil Procedure, 1908 §20 (India).
2
Hakam v. Gammon, AIR 1971 SC 740; See also Hatti Gold Mines Ltd. v. M/s V.H. Equipments, AIR 2005
Kant 264 (268) (DB).
3
S.C. SARKAR, CODE OF CIVIL PROCEDURE 230 (11h ed. 2009).
4
New Moga Transport Co. v. United India Insurance Co. Ltd., AIR 2004 SC 2154, 2156-57.
Page | 1 Submission’s of the Amicus Curiae

[ARGUMENT ADVANCED]
‘at such place’ appearing in the Explanation and the word ‘or’ which is disjunctive clearly
suggest that if the case falls within the latter part of the Explanation, it is not the Court within
whose jurisdiction the principle office of the defendant is situated but the Court within whose
jurisdiction it has a subordinate office which alone have the jurisdiction ‘in respect of any
cause of action arising at any place where it has also a subordinate office’.5
5. When a corporation has a branch office at any place it shall be deemed to carry on its
business there irrespective of the nature of the work that is actually carried on there. 6 In the
case of Corporation having subordinate offices for the purposes of clause (a) of section 20 7,
the location of the subordinate office is to be the relevant place for the filling of a suit and not
the principal place of the business.8 Where the corporation has a subordinate office in the
place where the cause of action arose, it cannot be contended that it cannot be sued there
because it does not carry on business there. 9 In order to prove the point made, following
arguments will be made; a. Cause of Action required to be taken into account; b. Jurisdiction
over Contract made online; and c. Determination of the Jurisdictional Limits of the High
Court.
a. Cause of Action required to be taken into account
6. For ascertaining territorial jurisdiction, cause of action is material, mere fact that
plaintiff’s registered office is situated within the territorial limits of the court is not
sufficient.10 If no part of the cause of action arises at a branch office of the Corporation, suit
is not maintainable in the court of the place where the branch office is located.11
7. In a suit for damages of breach of contract, the cause of action consists of the making of
the contract, and its breach, so that the suit may be filed either at the place where the contract
was made or at the place where it should have been performed and the breach occurred. 12 The
making of the contract is a part of the cause of action. 13 A suit on a contract, therefore, can be
filed at the place where it was made. 14 In suits for damages for breach of contract, the cause
of action consists of the making of the contract, and of its breach; so that the suit may be filed
either at the place where the contract was made or at the place where it should have been
5
Id.
6
Peoples Ins Co. v. Benoy, 47 CWN 292.
7
[Code] Civil Procedure, 1908 §20 cl. a (India).
8
Kobra Super Thermal Power Plant v. R.M. Engineering Enterprises, 1996 AIHC 4535, 4537 (DB).
9
Patel Roadways Ltd. v. Prasad Trading Company, AIR 1992 SC 1514, 1519; See also Famous Construction v.
N.P. Construction Corporation Ltd., AIR 2000 Del. 404
10
Kajaria Exports v. Union of India, AIR 1985 Cal 70.
11
Nedungadi Bank Ltd. v. Central Bank of India, AIR 1961 Ker 50.
12
ABC Laminart Pvt. Ltd. v. A.P. Agencies, Salem, AIR 1989 SC 1239.
13
Id.
14
Id.

[ARGUMENT ADVANCED]
performed and the breach occurred.15 The real place of making of contract is a place where
the communication came to hand or was received and in case of communication by post or
telegram, the place where it started its journey and not at the place where it ended is the place
where the cause of action in part would arise and not the place where it came to be received.16
8. The making of the contract is a part of the cause of action. A suit on contract, therefore,
can be filed at the place where it was made. 17 Place of delivery of acceptance is irrelevant and
does not provide any cause of action.18
9. Similar to the present case, in KIG Systel Ltd. v. Fujitsu ICIM Ltd., 19the plaintiff supplier
filed a suit in Delhi where the defendant had its branch office. An order of supply was also
accepted in Delhi.20 The cause of action can be said to have arisen in Delhi. 21 The fact that the
dealings between parties were through defendant’s Madras office and delivery of software
was to be effected to Cochin was and at different places and any of those would be legitimate
venue of suing.22
b. Jurisdiction over Contract made online
10. Further, if it is contended by the defendant that in this case, the contract for sale of goods
and contract for licences are two different contracts, then also the jurisdiction will lie with the
Hon’ble Delhi High Court. It was held in Ramanathan Chettier v. Soma Sunderam Chettier23
that India accepts the well-established principle of private international law that the law of the
forum in which the legal proceedings are instituted governs all the matters of the procedure.
Apart from that, a plain reading of section 924 and Section 1525 of the Code of Civil
Procedure, clearly depicts that the Code does not lay any separate set of rules for jurisdiction
15
Arthur Butler v. District Board of Gaya, (1936) ILR 15 Pat 292; See also Dhunjisha v. Fforde, (1887) ILR 11
Bom 649, 652; See also Mulchand v. Suganchand, (1876) ILR 1 Bom 23; See also Doya v. Secretary of State,
(1887) ILR 14 Cal 256; See also Rampurtab v. Premsuk, (1891) ILR 51 Bom 93; See also Dobson v. Bengal
Spg. & Wvg. Co., (1897) ILR 21 Bom 126; See also Seshagiri Row v. Nawab Askur, (1904) ILR 27 Mad 494.
16
ONGC v. Muderu Construction & Co., AIR 1998 Guj 46 (DB).
17
D. Muhammad Shafi v. Karamat Ali, (1896) PR 76; See also Sita Ram v. Ram Chandra, (1918) PR 26; See
also Salig Ram v. Chaha Mal, (1912) ILR 34 All 49; See also Jupiter General Insurance Co. v. Abdul Aziz, AIR
1924 Rag 2; Asa Ram v. Bakshi, (1920) 1 Lah 203.
18
Progressive Construction Ltd. v. Bharat Hydro Power Corpn. Ltd.,AIR 1996 Del. 92.
19
KIG Systel Ltd. v. Fujitsu ICIM Ltd., AIR 2001 Del 357, 361.
20
Id.
21
Id.
22
Id.
23
Ramanathan Chettier v. Soma Sunderam Chettier¸ AIR 1964 Mad 527; See also Nallatamlei v. Ponuswami,
ILR [1879] 2 Mad 406.
24
25

[ARGUMENT ADVANCED]
in case of international private disputes.26 Order V, rule 2427, 2528 and 2629 of the code show
that it incorporates specific provisions for meeting the requirements of serving the procedure
beyond territorial limits. Thus, in India, the principle is well settled that the residence in the
territorial limits of a court furnishes a ground for the exercise of jurisdiction. 30 Similarly,
conduct of business by a defendant in a forum also gives to the forum court to exercise
jurisdiction.31 The Indian courts also assume adjudicative jurisdiction on the basis of the
territorial nexus with the cause of action. 32 In India, the approach adopted is similar to the
‘minimum contacts’ approach of the United States coupled with the compliance of the
proximity test of the Code.33 Thus the Code provides for the tests of both objectivity and
proximity to base its jurisdiction. 34 For the purpose of determining whether the cause of
action arose in the local limits of a court, the courts generally go into the question of place of
conclusion of the contract. 35 However, it would be for the plaintiff to prima facie also
convince that the courts elsewhere do not have a better basis of jurisdiction since the Indian
Courts in such a case may also feel tempted to analyse the issue of jurisdiction from the stand
point of the doctrine of forum non conveniens as also anti-suit injunctions and thus decline to
the exercise jurisdiction even where there existed legal basis to do so.36
11. Hence, even if, we presume that both the contracts were distinct in nature, then also by
the virtue of residency of the defendant is New Delhi, section 20 of the Code will attracted
and Hon’ble Delhi High Court will assume jurisdiction.
c. Determination of the Jurisdictional Limits of the High Court
12. Under Section 5 of the Delhi High Court Act,37 Hon’ble Delhi High Court encompasses
the territorial jurisdiction over the respected territories for the time being included in the
Union Territory of Delhi. In the present case, the facts are flawless on the fact that the
26
Amit M. Sachdeva, International Jurisidction in Cyberspace: A Comparative Perspective 8 CTLR 245, 253
(2007).
27
[Code] Civil Procedure, (1908) Order V §24 (India).
28
29
30
Kashinath v. Anant, ILR (1899) 34 Bom 407; See also Fernandes v. Ray, ILR (1897) 21 Bom 373; See also
Sriniwas v. V.V. Ayyangar, ILR (1906) 29 Mad. 239; See also M. Mudaliar v. Andappa Pillai, AIR 1955 Mad.
96.
31
Chunnilal Kasturschand v. Dundappa Donappa, AIR 1951 Bom. 190; See also Frontier Bank Ltd. v. Shrimati
Prakashwati Bahl, ILR (1950) Punj 635.
32
Ram Bhat v. Shankar Baswant, ILR (1902) 25 Bom 528; See also V.E. Smith. Indian Textile Co., AIR 1927
All 413; See also Gaekwar Baroda State Railway v. Sheikj Habib Ullah, AIR 1934 All 740; See also Patel Kala
Bechar v. Patel Mohan Bahgwan, AIR 1953 Sau 16.
33
(India TV) Independent News Service Pvt Ltd v. India Broadcast Live LLC and Ors., 2007 (35) PTC 177
(Del).
34
Amit M. Sachdeva, Supra note 26.
35
Bhagwan Dass Govardhan Dass Kedia v. Purushottam Dass & Co, AIR 1966 SC 543.
36
(India TV) Independent News Services v. India Broadcast Live LLC and Ors, Supra note 33.
37
The Delhi High Court Act, 1966 §5 (India).

[ARGUMENT ADVANCED]
contract was entered at the Indian Branch of M/s Business Solution, situated at New Delhi. 38
Under the lights of the above cited case laws, it is undisputable that though the landing of
consignment happened at Kandla port39, the fact that the contract was entered at New Delhi
will provide jurisdiction to Hon’ble Delhi High Court.
A.II. Hon’ble Supreme Court of India holds the jurisdiction over the matter
13. By the virtue of the article 139A 40 of the Constitution of India, a case can be transfer to
Hon’ble Supreme Court from a High Court on the request of the Attorney General. 41 The
article enables the litigants to approach the Apex Court for transfer of proceedings if the
conditions envisage in the article is satisfied.42 It is also intended to save the time and expense
of the parties to the litigation by making a provision for final pronouncement on a substantial
question of law by the Supreme Court in that prolonged litigation. 43 It is proved by two points
– a. Application of Article 139A of the Constitution; and b. Power to entertain the complete
case by Supreme Court.
a. Application of Article 139A of the Constitution
14. High Court is not subordinate Court – But Supreme Court has superior place in hierarchy
– Power to transfer any case under Article 139A and provisions of Article 141, 144 makes
Supreme Court elder brother.44 In K. Anbazhagan v. The Superintendent of Police and Ors.45,
the Apex Court was of the view that the words of Article 139A are explicit in nature, and it is
clear from it that merely on the application of the Attorney General a case may be transferred
from High Court to Supreme Court. In Dr. Manju Verma v. State of Uttar Prdesh46, Apex
Court held that they has been empowered under Article 139A of the Constitution to transfer
proceedings from one High Court to another, either on its own motion or on an application
made either by the Attorney General of India or by a party to any such case. A reading of the
plain language of Clause (1) of Article 139A shows that the power to transfer the particular
case or cases can be exercised by this Court either on its own motion or on an application
made by the Attorney General of India or by a party to such case(s) provided that the cases
involve the same or substantially the same question(s) of law which is pending before this
38
IUMCC – 2013 Moot Problem ¶¶1.
39
Id.
40
INDIAN CONST., art 139A.
41
INDIAN CONST., art. 139A § 1.
42
2 L.M. SINGHVI, CONSTITUTION OF INDIA 2072 (2d. ed. 2010).
43
Punjab Vidhan Sabha v. Prakash Singh Badal, 1987 (Supp) SCC 610; See also Sukhdeo v. State of Rajasthan,
(1984) 4 SCC 235; See also Ranchi Municipal Corporation v. Kamakhya Narani Singh, (1982) 3 SCC 387; See
also CBI v. Harinder Singh, AIR 1991 SC 1890.
44
Tirupati Balaji Developers Pvt. Ltd. and Ors. v. State of Bihar and Ors. AIR 2004 SC 2351, 2357.
45
K. Anbazhagan v. The Superintendent of Police and Ors., (2004) 3 SCC 767.
46
Dr. Manju Verma v. State of Uttar Prdesh, 2004 (9) SCALE 463.

[ARGUMENT ADVANCED]
Court and one or more High Courts or before two or more High Courts and such questions
are substantial questions of general importance. 47 In Krishan Swaroop Gupta and Ors. v.
Union of India and Ors.,48 the Allahabad High Court cited the order in which it was stated
that the on-going case was to be transferred to Supreme Court on the request of the Attorney
General. In order to prove this contention the argument is divided as 1. ‘Or’ is disjunctive
clause; 2. Use of word High Court again, and 3. Liberal Interpretation of the Constitution.
1. ‘Or’ is a disjunctive clause
15. The word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive 49 but at times
they may read as vice versa to give effect to the manifest intention of the Legislation as
disclosed from the context.50 As stated by Scrutton, L.J., “you do read ‘or’ as ‘and’ in a
statute; but you do not do it unless you are obliged because ‘or’ does not generally mean
‘and’ and ‘and’ does not generally means ‘or’.51 And as pointed out by Lord Halsbury that
reading of ‘or’ as ‘and’ is not to be restored to, “unless some other part of the same statute or
the clear intention of it requires that to be done”. 52 Positive condition separated by ‘or’ are
read in the alternative53 but negative conditions connected by ‘or’ are constructed as
cumulative and ‘or’ is read as ‘nor’ or ‘and’.54
2. Use of word High Court again
16. It is submitted before the Hon’ble Supreme Court that in Article 139A 55 the phrase used
before ‘or’ is “pending before the Supreme Court and one or more High Courts or before two
or more High Courts” and after the use ‘or’ the phrase is used “the Supreme Court may
withdraw the case or cases pending before the High Court or the High Courts and dispose of
all the cases itself”. The use of similar phrase after the disjunctive clause depicts that the
clause should be read as a two separate alternatives. Also, it is notable that in the second part
of the clause, the phrase is used “High Court or High Courts”, this phrase clearly depicts that
47
L.K. Venkat v. Union of India, AIR 2012 SC 2503.
48
Krishan Swaroop Gupta and Ors. v. Union of India and Ors., 1998 AWC 62 All.
49
Hydrabad Asbestos Cement Products v. Union of India, JT 1999 (9) SC 505, 510.
50
Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1450, 1454; See also Municipal Corporation of Delhi v.
Tek Chand Bhatia, AIR 1980 SC 360, 363; See also R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, 224-225;
See also M. Satyanarayana v. State of Karnataka, (1986) 2 SCC 512, 515.
51
Green v. Premier Glynrhonwy Slate Co., (1928) 1 KB 561, 568; See Nasiruddin v. State Transport Appellate
Tribunal, AIR 1976 SC 331, 338; See also Municipal Corporation of Delhi v. Tek Chand Bhatia, AIR 1980 SC
360, 363; See also State (Delhi Administration) v. Puran Mal, (1985) 2 SCC 589.
52
Mersey Docks and Harbour Board v. Henderson Bros., (1888) 13 AC 595, 603; See also Puran Singh v. State
of Madhya Pradesh, AIR 1965 SC 1583, 1584.
53
Star Co. Ltd. v. Commissioner of Income Tax, AIR 1970 SC 1559.
54
Patel Chunibhai Dajibha v. Natayanrao, AIR 1965 SC 1457, 1465; See also Punjab Produce & Trading Co.
v. C.I.T., West Bengal, AIR 1971 SC 2471, 2473-74; See also Brown & Co. v. Harrison, (1927) All ER 195,
203-4 (CA).
55
INDIAN CONST., Supra note 40.

[ARGUMENT ADVANCED]
a case pending before a High Court, if involving substantial question of law, can be
transferred to Supreme Court on the application of the Attorney General or the any of the
party of the case. Since, in the first part of the clause, similar pre-condition has already been
used, one cannot read the whole clause as one. Reading the full clause as one will result in
absurdity and twice use of the pre-condition will be meaningless.
3. Liberal Interpretation of Constitution
17. Insofar as a Constitution Act is concerned, there is greater reason in giving to its
language a liberal construction so as to include within its ambit the future developments in
various fields of human activity than in restricting the language to the state of things existing
at the time of the passing of the Act.56 It is aptly said that ‘the intention of a constitution is
rather to outline principles than to engrave details.57 It declares the law contained in the
Constitution but in doing so it rightly reflects that a Constitution is a living and organic thing
which of all instruments has the greatest claim to be constructed broadly and liberally, 58 with
an object oriented approach59 and the experienced gained in its working.60 A court has more
freedom in the interpretation of a Constitution than in the interpretation of other laws.61
18. Hence it is quite clear from the above cited authorities that a case can be transferred to
Supreme Court from High Court merely on the basis of the request of the Attorney General.
In the present case, while the case was pending before the Hon’ble High Court of Delhi,
Attorney General prayed before the Supreme Court to transfer the matter to Supreme Court
for further hearing.62 It is notable that Supreme Court allowed the petition. 63 Henceforward
that there is no question over the transferability of the case is rest to answer.
b. Power to entertain complete case by Supreme Court
19. ‘Such order as in necessary for doing complete justice’, it has been held that these words
are of wildest amplitude and empower the Supreme Court to make any order as may be
56
Union of India v. Naveen Jindal, (2004) 2 SCC 510, 539 ¶39; See also Pratap Singh v. State of Jharkhand,
(2005) 3 SCC 551, 580.
57
R.C. Poudyal v. Union of India, AIR 1993 SC 1804, 1850; See also Special Reference No. 1 of 2002 (under
Article 143(1) of the Constitution), AIR 2003 SC 87, 138; See also Ashok Tanwar v. State of Himachal Pradesh,
(2005) 2 SCC 104, 114; See also People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399, 453.
58
Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781, 791; See also Synthetics Chemicals Ltd v. State of
Uttar Pradesh, AIR 1990 SC 1927, 1951.
59
S.R. Chaudhuri v. State of Punjab, AIR 2001 SC 2707, 2717; See also T.M.A. Pai Foundation v. State of
Karnataka, AIR 2003 SC 355, 415; See also Sobha Hymavathi Devi v. Sethi Gangadhar Swamy, AIR 2005 SC
800; See also M. Nagraj v. Union of India, (2006) 8 SCC 212; See also Nair Service Society v. State of Kerala,
(2007) 4 SCC 1; See also Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217; See also Ashok Kumar
Thakur v. Union of India, (2008) 6 SCC 1, 501-12; See also Biharilal Rada v. Anil Jain (TInu), (2009) 4 SCC 1
¶40.
60
Aruna Roy v. Union of India, AIR 2002 SC 3176, 3200.
61
HIDAYATULLAH, Judicial Methods 236 (1970).
62
63
Id.

[ARGUMENT ADVANCED]
necessary for doing complete justice in a case before it. 64 The power under article 142(1)65
cannot be diluted merely because statutes may provide certain formalities to be fulfilled
before any order could be passed.66 The paramount consideration in such cases should be to
ensure that there is no injustice caused.67
20. Hence, under article 143, power can be used to resort complete justice and while doing
so Supreme Court can impose conditions.68 Also, considering the fact that the word ‘may’ is
been used in article 139A, it is submitted that under article 143, Supreme Court can issue an
order to listen the full case transferred under 139A, instead of listing only substantial question
of law and transferring the case to the High Court for deciding rest of the matter.
A.III. Grant of Anti-suit Injunction
21. The Courts in India like the Court in England are Courts of both law and equity. 69 The
principles governing grant of injunction – an equitable relief- by a Court will also govern
grant of anti-suit injunction which is but a species of injunction. 70 When a Court remains a
party to a suit/proceeding before it from instituting or prosecuting a case in another Court
including a foreign Court, it is called an anti-suit injunction.71 The Courts in India have power
to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an
appropriate case.72 This is because Courts of equity exercise jurisdiction in personam. 73
However, having regard to the rule of comity, this power will be exercised sparingly because
such an injunction though directed against a person, in effect cause interference in the
exercise of jurisdiction by another Court.74 The Court would grant injunction restraining a
party from prosecuting suit in foreign Court when there is abuse of process of Court, the suit
is false, frivolous or vexatious litigation, multiplicity of proceedings, other relevant
consideration.75
22. In Modi Entertainment Network v. W.S.G. Cricket Private Ltd. for the first time supreme
court of India recognised the concept of Anti suit injunction and held that “In exercising
discretion to grant an anti-suit injunction the court must be satisfied of the following aspects
64
K.M. Nanavati v. State of Bombay, AIR 1961 SC 112, 120.
65
INDIAN CONST., art. 142 cl. 1.
66
Mohd. Anis v. Union of India, 1994 Supp 1 SCC 145; See also Delhi Judicial Association v. State of Gujarat,
AIR 1991 SC 406; See also Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.
67
Raj Kumar v. Union of India, AIR 2006 SC 938.
68
Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corp., (2009) 8 SCC 646.
69
S.C. SARKAR, Supra note 3 at 2316.
70
Id.
71
Modi Entertainment Network v. W.S.G. Cricket Private Ltd., AIR 2003 SC 1177, 1182-83.
72
S.C. SARKAR, Supra note 3 at 2317.
73
Id.
74
Modi Entertainment Network v. W.S.G. Cricket Private Ltd., Supra note 71.
75
I.R. & I.C.S. (Pvt.) Ltd. v. Jenner Fenton Slade Ltd., AIR 2003 Bom 410, 416.

[ARGUMENT ADVANCED]
(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction
of the court; (b) if the injunction is declined the ends of justice will be defeated and injustice
will be perpetuated; and (c) the principle of comity - respect for the court in which the
commencement or continuance of action/proceeding is sought to be restrained - must be
borne in mind” In the present case also the above said criteria are fulfilled as already
discussed above that M/s Business solution was doing business from the Delhi office , so it
adheres to the personal jurisdiction of the court. As Business solution had threatened to
contemplate action against M/s Das & Bhullar under WTO laws. Similarly in Airbus
Industries GIE vs. Patel & Ors.76 the House of Lords had held that the House of Lords held
“As a general rule, before an anti- suit injunction could be granted by an English Court to
restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that
the English forum should have a sufficient interest in, or connection with, the matter in
question to justify the indirect interference with the foreign court which such an injunction
entailed. However, in cases where the conduct of the foreign state exercising jurisdiction was
such as to deprive it of the respect normally required by comity, no such limit was required in
the exercise of the jurisdiction to grant an anti-suit injunction.” Similarly by applying the
above principle of comity in the present case as the Indian courts have full jurisdiction over
the matter as the whole transaction takes place under India. Therefore it proves sufficient
connection between the matter and Jurisdiction of the Indian courts. So it would be justified if
the Indian courts would grant Anti-suit injunction over the matter as it would meet the ends
of justice. As it has already been proved above how the cause of action arises under the
territorial jurisdiction of the Indian courts, so they are the court of natural jurisdiction. Finally
it can be said that courts of natural jurisdiction have power to grant anti-suit injunction over
the matter to restrict any foreign court from proceeding over the matter as discussed in the
Modi case as state above. Hence, M/s Business Solution should be directed, not to invoke any
proceeding, of whatsoever nature, under WTO laws or administration.
B. THERE IS NO CONTRACT IN EXISTENCE BETWEEN M/S DAS & BHULLAR AND M/S
BUSINESS SOLUTIONS
23. In order to facilitate a decision over the dispute regarding the violation of the contract
between the parties, it is vital to establish the fact that there was a contract between the
parties or not. In order to prove the contention, following arguments will be made [B.I.] Sale
of Goods never happened; [B.II.] No liability can be drawn upon the installed software; and
[B.III.] Transfer of Liability on The Custom Authorities
76
In Airbus Industrie GIE vs. Patel & Ors., (1998) 2 All ER 257.

[ARGUMENT ADVANCED]
B.I. Sale of Goods never happened
24. A sale is not completed unless the purchaser accepts the goods and when the buyer
accepts the goods without any reservation, he is bound by the contract of sale. 77 As between
the buyer or the seller a warehouse certificate, dock warrant or delivery order, or any similar
document does not, like a bill of landing, represent the goods themselves, and so does not per
se transfer possession; it operates merely an authority to receive the goods referred in the
document, an attornment by the person in possession to the buyer is necessary;78 and this rule,
for whatever purpose of the delivery of the goods has to be proved. 79 To prove the fact that
sale of goods have not happened as per the Sale of Goods Act, 1930 80, firstly one has to prove
the applicability of Sale of Goods Act in this case and for proving the application of Sale of
Goods Act, it is necessary to prove the fact that software are goods.
a. Software are goods
25. In Saphena Computing Ltd. v. Allied Collection Agencies Ltd., 81it was said that
“[C]ommon ground that the law governing these contracts was precisely the same whether
they were contracts for the sale of goods or the supply of services”. A clear statement that
Sales of Goods Act, 197982 applies of the supply of software appears in the obiter dictum of
Scott Baker J., in St. Albans City and District Council v. International Computers Ltd.83
The Supreme Court in Tata Consultancy Services v. State of Andhra Pradesh 84has held that a
software program on a CD/floopy disc (canned software) is ‘good’ and as such, is assessable
to sales tax.85 The court noted that the term ‘goods’ in article 366 (12) 86 of the constitution of
India is very wide and includes all types of movable properties, tangible or intangible. 87 The
term “all materials, articles and commodities”88 includes both tangible and
intangible/incorporeal property which is capable of abstraction, consumption and use and
which can be transmitted, transferred, delivered, stored, possessed etc.89 Hence it is clear that
77
Minerals and Metals Trading Corpn. Ltd. v. Dimple Overseas Ltd., AIR 2001 Del. 427.
78
Farina v. Home, (1846) 16 M & W 119 (123); Blockow, Vallghan & Co., (1875) 10 Ch App 491; M’Ewan v.
Smiths, (1849) 2 HL Cas 309.
79
Comptoir d'Achat et de Vente du Boerenbond Belge SA v. Luis de Ridder Limitada (The Julia), (1949) AC
293.
80
The Sale of Goods Act, 1930 (India).
81
Saphena Computing Ltd. v. Allied Collection Agencies Ltd., [1995] FSR 616.
82
Sales of Goods Act, 1979 (UK).
83
St. Albans City and District Council v. International Computers Ltd., [1996] 4 All ER 481 (CA).
84
Tata Consultancy Services v. State of Andhra Pradesh, (2005) 1 SCC 308.
85
Sunrise Associates v. Government of NCT of Delhi and Ors., AIR 2006 SC 1908; Commissioner of Income
Tax – V, New Delhi v. Oracle Software India Ltd., (2010) 2 SCC 677;See also Imagic Creavtivity Pvt. Ltd. v.
The Commissioner of Commercial Taxes and Ors., 2008 (1) SCALE 356.
86
INDIAN CONST., art 366 §12.
87
Tata Consultancy Services v. State of Andhra Pradesh, Supra note 84.
88
INDIAN CONST., Supra note 86.
89
POLLOCK & MULLA, THE SALES OF GOODS ACT 1930 43 (8h ed. 2011).

[ARGUMENT ADVANCED]
position of law in this regard in India is settled. Therefore it is humbly submitted before the
Hon’ble court that software are ‘goods’ as per the interpretation, and provisions of Sales of
Goods Act shall be applied in this case.
b. Application of provisions of Sales of Goods Act
26. For proving the contention and for the ease of the Hon’ble Court, this argument has been
further sub-dived into following parts – ‘Goods were not of merchantable quality’ and
‘Flagging of consignment imitates the un-merchantable quality of the goods’.
1. Goods were not of merchantable quality
27. When a man sells an article, he thereby warrants that it is merchantable, i.e. it is fit for
some purpose and is he sell it for some particular purpose he thereby warrants it for that
purpose.90 Where a manufacturer undertakes to supply goods, manufactured by himself or in
which he deals, but which the vendee has not had the opportunity to inspecting, it is an
implied term in the contract that he shall supply a merchantable article, 91 and generally ‘in
every contract to supply goods of a specified description which the buyer has no opportunity
to inspect, the goods must not only in fact answer the specific description, but must also be
saleable or merchantable under the description’.92
28. There is no definition of the phrase, ‘merchantable quality’ in the Act, and no doubt, it
seems more appropriate to a retail purchaser buying from a wholesale firm than to private
buyers, and to natural products such as grain, wool or flour, than to a complicated machine,
but it is clear that it extends to both. 93 The definition of ‘goods’ makes the word include all
the chattels personal (other than things inaction, and money), and ‘quality of goods’ includes
their state or condition…the phrase in this section is, in my opinion, used as meaning that the
article is of such quality and in such condition that a reasonable man, acting reasonably,
would after a full examination accept it under the circumstances of the case in performance of
his offer to buy that article, whether he buys for his own use or to sell again. 94 The condition
is that the goods shall be of merchantable quality, i.e. that they shall not differ from the
normal quality of the described goods, to such an extent as to make them unsalable: it does
90
Eternitt Everest Ltd. v. CV Abraham, AIR 2003 Ker. 273. 276.
91
Jones v. Just, (1868) LR 3 QB 197, 203; Laing v. Fidgeon, (1815) 4 Camp 169; Shepherd v. Pybus, (1842) 3
Man & G 868.
92
Id.
93
POLLOCK & MULLA, Supra note 89 at 164.
94
Bristol Tramways Co. v. Fiat Motors Ltd., [1910] 2 KB 831, 840-41 (CA); See also Malli v. RVAA Firm,
(1922) 43 Mad LJ 208; See also Peer Mahomed v. Dalooram, (1918) 35 Mad LJ 180; See also Cammel Laird &
Co. Ltd. v. Mangerese Bronze & Brass Co. Ltd., [1934] AC 402; See also Mash & Murrell v. Emanuel, [1961] 1
All ER 485.

[ARGUMENT ADVANCED]
not mean that there can legally be buyers of the article. 95 The condition of merchantable
quality arises where no purpose is made known to the seller and therefore, merchantability is
concerned not with purpose but with quality.96
29. Under section 16(2) of the Sales of Goods Act, 1930 97 a good should be of merchantable
quality. In the present scenario, the consignment of the goods was flagged by the custom
officials.98 This fact brings us to two questions 1. Whether flagging of the consignment can be
treated as the fact that goods were not of merchantable quality? 2. Whether on the fact that
some part of the goods were not of merchantable quality, the whole consignment can be
rejected or not?
2. Flagging of consignment imitates the un-merchantable quality of the goods
30. Merchantable means commercially99 and immediately saleable and matching with the
description mentioned in the contract so that they constitute as a good tender. 100 On the
question whether a flag consignment can be termed as un-merchantable product, Madras
High Court held that the goods are un-merchantable as the Port Health Authorities have not
cleared the consignment.101 Goods are of merchantable quality if they are of such quality and
in such condition that a reasonable man, acting reasonably would, after a full examination,
accept them in performance of his offer to buy them whether for his own use or for the
purpose of resale.102
31. It is evident from the fact that the consignment was containing pirated and non-original
software.103 The fact that tit was flagged by the custom authority makes it un-merchantable in
India. By the virtue of Jackson v Rotax Motor & Cycle Co. Ltd. 104 the buyer holds the right to
reject the whole consignment. Henceforth, the plaintiff doesn’t have any contractual liability
on it.
B.II. No liability can be drawn upon the installed software
32. It is humbly submitted before the Hon’ble court that even if a contention is raised
regarding the installed software, no liability can be attributed with the plaintiff. It is evident
from the above stated fact that the present case falls under the scope of Sales of Goods Act. It
95
Sumner Permain & Co. v. Webb & Co., [1922] 1 KB 55 (CA); See also Hardwick Game Farm VSAPPA
(HLE), [1969] 2 AC 31. 75.
96
Henry Kendall & Sons v. William Lillico & Sons Ltd., (1968) 3 WLR 110.
97
Sales of Goods Act, 1930 §16 cl. 2 (India).
98
99
The Board of Trustees of the Port of Calcutta v. Bengal Corporation Private Ltd., AIR 1979 Cal 142.
100
Sorabji Hormunsha Joshi & Co. v. V.M. Ismail., AIR 1960 Mad 520.
101
Tirumala Tirupati Devasthnam v. Madras Port Trust, 1994 (46) ECC 48.
102
Sorabji Hormunsha Joshi & Co. v. V.M. Ismail., Supra note 100 at 524.
103
104
Jackson v Rotax Motor & Cycle Co. Ltd., [1910] 2 KB 937 (CA).

[ARGUMENT ADVANCED]
is submitted that by the virtue of the same act a buyer has been granted several rights against
the product as well as the seller. Among the several rights provided, some of the rights are a.
Right to examining the goods; and b. Right to not return the rejected goods.
a. Right to examine the goods
33. The effect of sub section 1 of section 41 of Sale of Goods Act 105 is that in cases where
there has been no previous examination of the goods ‘the mere fact that the buyer has taken
the delivery of them does not amount to an acceptance until he has had a sufficient period for
examining them to see whether they are or are not in accordance with the contract. 106
However, where the ground of rejection is a qualitative defect, examination of the goods will
be crucial.107 Where the seller was the consignee, it was his duty to take delivery of the goods
and give an opportunity to the buyer to inspect and examine the goods. 108 It means that, when
the seller tenders the goods to the buyer, he is bound to afford an opportunity for inspection
of goods.109 It follows from this that the seller cannot, in the absence of agreement to the
contrary,110 claim that his tender of delivery is a performance of the contract on his part, so as
to enable him to sue the buyer for the price of the damages for non-acceptance, if he has not
made it in such circumstances that the buyer has had a reasonable opportunity of examining
the goods in order to ascertain whether the thing tendered really was what is purported to
be.111 This, however, as has been seen, will not prejudice the buyer’s right subsequently to
examine the goods on their arrival and reject them if not in conformity of the contract.112
34. On the basis of above mentioned case laws, it is humbly submitted that by the virtue of
Section 41 of the Sale of Goods Act 113 every buyer has a right to inspect the goods. It is
evident from the facts that after receiving the consignment, Mr. Bhullar took out one of the
boxes and installed it on his laptop. 114 It is notable that Das & Bhullar is indulged in import
and export business.115 Hence, it can be inferred that they would have imported the software
105
Sale of Goods Act, 1930 §41 cl. 1 (India).
106
Hardy & Co. v. Hillerns and Fowler,[1923] 1 KB 658, 663; See also Isherwood v. Whitmore, (1843) 11
M&W 347, 349; See also Sorabji Hormunsha Joshi & Co. v. V.M. Ismail., Supra note 100; See also Tirumala
Tirupati Devasthnam v. Madras Port Trust, Supra note 101.
107
Kwei Tek Chao v. British Traders and Shippers Ltd, [1954] 2 QB 459, 485.
108
POLLOCK & MULLA, Supra note 89 at 316.
109
Dharampal & Co v. Kila Gatla Ram Chandra Rao & Co, AIR 1980 All 316, 318; See also Mahadev Ganga
Prasad v. Gouri Shankar, AIR 1950 Ori 42; See also GN Behere v. NB Rice Mills, AIR 1966 Assam 95, 99; See
also Re Beharilal Baldeoprasad, AIR 1955 Mad 271.
110
Pettitt v. Mitchell, (1842) 4 Man&G 819.
111
Isherwood v. Whitmore, Supra note 106; See also Startup v. Macdonald, (1843) 6 Man&G 593, 610.
112
E Clemens Horst v. Biddell Brothers, [1912] AC 18; See also Polenghi Brothers v. Dried Milk Co., (1904) 92
LT 64.
113
Sale of Goods Act, 1930, Supra note 105.
114
115
Id.

[ARGUMENT ADVANCED]
for further reselling it. It is further inferred that in order to sell quality products to their
buyer’s, Mr. Bhullar tested it first, which is his right under the Statute. Hence, it is submitted
that that by opening the software box, Mr. Bhullar only exercised his right to examine the
goods and he never accepted the goods. In the absence of any acceptance on his part, no
liability can be imposed on him.
b. Right to not return the rejected goods
35. It is not the duty of the purchaser who refuses to take the delivery to return the goods to
the seller from the place of delivery at his cost. 116 Where the buyer rightly rejects the goods,
the cost of returning them must be borne by the seller. 117 It is sufficient if he does any
unequivocal act showing that he rejects.118 Where the buyer rightfully refuses to accept the
goods, he is not bound to return them to seller. 119 It is sufficient if he intimates to the seller
his refusal to accept the goods.120 It was well established at Common Law that when a buyer
properly rejects the goods, it is not his duty to send them back to the seller; it is enough for
him to give clear notice that they are not accepted and then they are at seller’s risk. 121 He is
not bound to put himself to the expense and trouble of returning the goods, and it is the
seller’s business to take away the goods if he is so minded, 122 and if the buyer offers to return
them, and the seller refuses to take them, the buyer, it seems, may charge for their keep.123
36. In the lights of the above stated case laws, it is humbly submitted before the Hon’ble
Court that Section 43 of the Sale of Goods Act124 provide the right to the buyer not to return
rejected goods to the seller. It is clear from the case of Sumer Chand v. Ardeshir125 that the
risk over the goods will lie with the seller. The facts clearly reveal that the buyer had rejected
the goods immediately after the alert of the Custom Authorities and they had decided to
return them.126 After such decision, the onus of acquirement is on the seller as per the
interpretation of the section made by the Courts of the Land.
B.III. Transfer of Liability on The Custom Authorities
37. By the virtue of the power granted to the Central Bureau of Excise and Customs, they
have the power to inspect any consignment whatsoever getting imported in India. 127 Even if a
116
Babu Lal v. Phaggu Mal, (1913) ILR 35 All 325.
117
Heilbutt v. Hickson, (1872) LR 7 CP 438; See also Molling v. Dean, 18 TLR 217.
118
Grimoldby v. Wells,1875 LR 10 CP 395.
119
TRG Industries Pvt. Ltd. v. CHZR Dormash Service, AIR 2005 Del 139.
120
Id.
121
Grimoldby v. Wells, (1875) LR 10 CP 391; See also Sumer Chand v. Ardeshir, (1907) All WN 67.
122
Babu Lal v. Phaggu Mal, Supra note 116; See also Buch v. Gordhandas, (1922) 24 Bom LR 991.
123
Caswell v. Coare, (1809) 1 Taunt 566; See also Chesterman v. Lamb, (1834) 2 A&E 129.
124
Sale of Goods Act, 1930 §43 (India).
125
Sumer Chand v. Ardeshir, Supra note 121.
126
127
Custom Act, 1962 §11 (India).

[ARGUMENT ADVANCED]
search is illegal in nature, illegality of search itself does not affect the probative value or
evidence gathered during the search.128 Due to the illegality of search the court may be
inclined to examine carefully the evidence regarding the seizure; 129 beyond this no other
consequences ensured.130 Such evidences may not be ignored, particularly in case of
economic offences and anti-social activities as smuggling. 131 Illegality of such search and
seizure does not affect the subsequent trail or adjudication proceeding. 132 Though the
provisions of Copyright Act provides certain power to the custom officials to search and
seize.
38. In order to prove the contention, following arguments will be made a. Relation between
Copyright Act and Custom Act; b. Interpretation of the word ‘import’; c. Relation between
Custom Act and Sales of Goods Act; and d. Possession of Goods is with the Government.
a. Relation between Copyright Act and Custom Act
39. The owner of copyright in any work or his duly authorised agent may make an
application to the Registrar of Copyright on Form VI accompanied by the prescribed fee
giving particulars of the importation of infringing copies of work for an order not to import
such copies of the work.133 The Registrar after making such enquiries as he may deem fit
order that copies made out of India of the work which are infringing copies of the work
should not be imported.134 The Registrar of the Copyright or any person authorised by him
may enter any ship, dock or premises where any such copies may be found and examine
them.135 The Registrar or the person authorised should act in collaboration with the customs
authorities.136
40. All the copies of the work to which the order of the Registrar applies will be deemed to
be goods of which the import has been prohibited under the Customs Act 1962. 137 All copies
confiscated under the Customs Act will not vest in the Government but should be delivered to
the owner of the copyright in the work.138
128
42 Halsbury’s Laws of India, 221 ¶110.650 (2008).
129
Radhakrishan v. State of Uttar Pradesh, 1963 Supp 1 SCR 408.
130
State of Maharashtra v. Natwarlal Damodardas Soni, 1983 (13) ELT 1620 (SC).
131
ACCE v. Wilfred Sebastian, 1983 (12) ELT 122 (Ker); See also Customs and Central Excise Department v.
Veerabhadreswara Weaving Factory, 1983 ELT 1758.
132
P.K. Ghosh v. Kailash Kumar Mazodia, 2000 (117) ELT 14 (Cal).
133
P. NARAYAN, LAW OF COPYRIGHT AND INDUSTRIAL DESIGN 378 (4h ed. 2010).
134
Copyright Act, 1957 §53 (India); See also Copyright Rules, 1958 §22 (India); See also Copyright Rules, 1958
§23 (India).
135
Copyright Act, 1957 §53 cl.2 (India).
136
Copyright Rules, 1958 §23 (India).
137
P. NARAYAN, Supra note 133.
138
Copyright Act, 1957 §53 cl. 3 (India).

[ARGUMENT ADVANCED]
b. Interpretation of the word ‘import’
41. Section 53 is no bar to the owner of the copyright or licensee from claiming civil
remedies for infringement of copyright. 139 The word ‘import’ in section 51 to section 53 of
the Copyright Act means ‘bringing into India from outside India’, that is not limited to
importation for commerce only but includes importation for transit across the country. 140
Hon’ble Supreme Court has discussed the interpretation of the word ‘import’ in Central India
Spinning & Weaving and Manufacturing Co. Ltd. v. Municipal Committee, Wardha 141 as
“import was not merely the bringing into but comprised something more, that is interrupting
and mixing up of the goods imported, with the mass of property in the local area’. Reversing
the judgement of the Supreme Court on this point, the Supreme Court in Gramophone Co. of
India Ltd. v. Birendra Bahadur Pandey,142 observed, through Cinnappa Reddy, J., that the
decision in Central India Spinning & Weaving and Manufacturing Co. Ltd. v. Municipal
Committee, Wardha143 was a case which arose under the C.P. & Berar Municipalities Act 144
and where the Supreme Court has accepted the enunciation of the ‘Original Package
Doctrine’ by Chief Justice Marshall in Brown v. State of Maryland145but the same was
expressly disapproved first by the Federal Court of India, in Province of Madras v. Boddu
Paidanna146and, again, by the Supreme Court in State of Bombay v. F.N. Balsara,147but these
facts were not bought up in front of Supreme Court.
42. Finally in Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey,148 Supreme Court
opined that ‘in interpreting the word import in the Copyright Act, we must take note that
while the positive requirement of the Copyright conventions is to protect copyright,
negatively also, the Transit Trade Convention and the bilateral treaty make exceptions
enabling the Transit State to take measure to protect copyright; if this much is borne in mind,
it becomes clear that the word import in section 53 of the Copyright Act cannot bear the
narrow interpretation sought to be placed upon it to limit it to import of commerce; it must be
139
Penguin Book Ltd., England v. M/s. India Book Distributors, AIR 1985 Del 29.
140
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667.
141
Central India Spinning & Weaving and Manufacturing Co. Ltd. v. Municipal Committee, Wardha, AIR 1958
SC 341.
142
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, Supra note 140.
143
Central India Spinning & Weaving and Manufacturing Co. Ltd. v. Municipal Committee, Wardha, Supra note
141.
144
C.P. & Berar Municipalities Act, 1922 (India).
145
Brown v. State of Maryland, 6 L.Ed. 78.
146
Province of Madras v. Boddu Paidanna, 1942 FCR 90.
147
State of Bombay v. F.N. Balsara, 1951 SCR 682.
148
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, Supra note 140.

[ARGUMENT ADVANCED]
interpreted in a sense which will fit the Copyright Act into the selling of the International
Conventions’.149
43. Customs Officials may also seize pirated goods, on their own initiative, deriving the
power to do so from150 the Customs Act which defines illegal import as the import of any
goods in contravention to the provision of the Customs Act or any other law at the time being
in force.151 Thus, import of pirated goods being violative of one or other of the intellectual
property legislations can be seized by the customs officers.152
44. Since, in the present case, the goods were non-original and pirated 153, the seizure of the
goods stand corrected under the prevailing laws of India.
c. Relation between Custom Act and Sales of Goods Act
45. As it was submitted earlier in the memorandum that under Sales of Goods Act, Section
41154 provides the right to the buyer for the examination of goods. Similarly, under Section
46(1) of the Customs Act155 also provide right to examination to the importer before the entry
of the goods. In the present circumstances, Mr. Bhullar examined the goods at the port under
the surveillance of the port authorities.156 This examination is legitimate under both the laws.
Hence, no challenge on the legality of the examination can be accepted.
d. Possession of Goods is with the Government
46. Proviso of Section 53(3) of the Copyright Act 157 clearly states that all such copies
confiscated under the provisions of the said Act shall not vest in the Government but shall be
delivered to the owner of the copyright in the work. This particular provision of law is
creating a liability on the Government to deliver the confiscated goods to the owner and also
to handle with due care.
47. In the present case, it can be lucidly construe from the facts that the goods were
confiscated by the custom officials158 and as per the legal provisions cited above it can be
argued that the plaintiff are in no more possession of the goods. It can also be lucidly
construe that the confiscated goods will contain of the installed software. Also, it is notable
that license number was on the CD, and any misuse of the license number should be then
associated with the person in possession of the CD. Since, the goods were in possession of
149
Id at 679.
150
Customs Act, 1962 §11A (India).
151
20(1) Halsbury’s Laws of India 250 ¶185.435 (2008).
152
Id.
153
154
Sale of Goods Act, 1930, Supra note 124.
155
Customs Act, 1962 §46 cl. 1 (India).
156
157
Copyright Act, 1957 Supra note 134.
158

[ARGUMENT ADVANCED]
the Government, any alleged piracy of the product should be associated with the Union of
India, and not with the plaintiff.
48. Hence, it is submitted that the buyers can’t be held liable for the non-payment of the
software on the grounds that i) No contract took place between the parties; ii) Onus of return
or recovery of goods was on the seller; iii) the risk involved on the good was of the seller;
and iv) possession of the packages and CD, along with the license number was with
Government of India. In the lights of the above grounds, it is yielded that no liability,
whatsoever, can be attributed to Das & Bhullar.
C. WHETHER THE CONTRACT FOR THE LICENSE NO 1983/11/21 IS A VALID
CONTRACT UNDER THE PRINCIPLES OF INDIAN CONTRACT ACT 1872 ?
49. A contract is a consensual act and the parties are free to settle any terms as they please.
This freedom lies in choosing the party with whom to contract, in the freedom to fix the terms
of the contract, in excluding or limiting the liability for damages or limiting the remedies
available for breach. This freedom is subject to certain exceptions. Statutes may prohibit
refusing to enter into certain contract those are against the interest of the society and public
policy. A person wanting to enter into a contract may always be totally free to determine the
terms. The freedom may be restricted because one party, usually a consumer is unable to
negotiate or seek variation in the standard form of contract offered by the other party, and is
forced to contract on terms which he may not have liked to if he had the choice. A number of
contractual relationships, namely in the areas of consumer protection, employment, landlord
and tenant, hire purchase, building and construction of ownership flats, etc. may be regulated
by statutes, which may restrict terms, impose or imply terms, some of which terms a party
cannot contract out of it.
50. The Contract between the parties for the License no 1983/11/21 is not a valid form of
contract under the principles of Indian contract act 1872.
C.I. Whether the above mentioned contract fulfills the essentials of contract ?
51. As per section 10 of the Indian Contract Act “What agreements are contracts- All
agreements are contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are not hereby expressly
declared to be void. Nothing herein contained shall affect any law in force in 1[ India] and
not hereby expressly repealed by which any contract is required to be made in writing 2[ or
in the presence of witnesses, or any law relating to the registration of documents.”159
159
Indian Contract Act, 1872 §10 (India).

[ARGUMENT ADVANCED]
52. It lays down the essentials of contract those should be fulfilled for a valid and recognized
contract under the law. Therefore for enforcing a contract under the provisions of law it is
necessary to fulfil the below mentioned essentials of contract. These are competent parties,
existence of consent of the parties, consent being free, existence of consideration,
consideration and object being lawful and the contract not being expressly declared to be
void. Therefore for a valid contract to occur, acceptance of an offer must be in the same sense
in which the offer was made.160
53. The contract act recognizes legal person as competent person but it should have an
extended sense.161It not only includes individuals but also other legal person can also enter
into contract. As in the present case one party was a partnership firm and another contract
was company. A statutory person is not at the same footing as an individual in capacity of
contract. It can exercise its power subject to certain restrictions those are imposed by statute,
and any restriction on the exercise of power does not amount to inherent disqualification or
incapacity.162
54. The second essential of contract is consent i.e. has been laid down in section 13 of the
Indian Contract Act 1872. It states that “Consent defined- Two or more persons are said to
consent when they agree upon the same thing in the same sense.” It makes it clear that parties
have to agree on same thing but also in same sense. It is essential to the creation of a contract
that both the parties should agree to the thing in same sense. Thus if two persons enter into a
apparent contract concerning a particular person. The word ‘thing’ must obviously be taken
as widely as possible, though it seems most appropriate where the contract has to do with
property. The ‘same thing’ must be understood as the whole content of material objects, or
payment, or other executed act or promises. No effective contract can come into existence
unless the parties are ad idem on all the essential terms of the contract. 163 Similarly in the
present case the parties had not agreed upon the terms of the contract. One of the parties was
bound by specific ‘standard form’ contract before installing the software.
55. Consent is said to be free when it is not caused by coercion, undue influence, fraud,
misrepresentation or mistake. Consent can be regarded as informed when it is an act of reason
accompanied with deliberation of a mind which knows right from wrong, good and evil and it
postulates as active will on the part of the person giving consent to permit the doing of the act
160
Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas, Supra note 35.
161
State of Uttar Pradesh v. Kanhaiya Lal Makund Lal Sarraf, AIR 1956 All 383.
162
Ram Nagina Singh v. Governor-General in Council, AIR 1952 Cal 306; See also Dharmeswar Kalita v.
Union of India, AIR 1955 Assam 86.
163
Dhulipudi Namayya v. Union of India, AIR 1958 AP 533.

[ARGUMENT ADVANCED]
complained of with full knowledge of the nature of the act that is being done and the rights
and obligations of the parties involved in the commission of the act. 164 The consent was never
free consent in the present case as one of the parties was bound by the terms of the contract of
the business solutions.
C.II. Whether the communication was complete in this contract?
56. Communication of offer and acceptance are essentials of formation of an agreement.
While to attribute to a person an intention which that person’s conduct bears when reasonably
construed by a person in the position of the person to whom it is addressed. The words are to
be interpreted as they were reasonably understood by the party to whom it was spoken. 165 The
person is to be bound by the offer or acceptance to which it is to be made. In the Hannah
Blumenthal case it was stated by Lord Diplock that “to create a contract by exchange of
promises between two parties where the promise of each party constitutes the consideration
for the promise of the other, what is necessary is that the intention of each as it has been
communicated to and understood by the other.” In the present case terms and conditions of
the contract were mentioned in Mandarin. Mr Bhullar was not able to understand the terms
and conditions of the contract due to its expression in mandarin. As per the above case law
stated then it can be held that the communication was not complete in the present case parties
could not understand the terms of contract. A proposal is said to be communicated when it
comes to the knowledge of the offence. It has to be communicated to the person to whom it is
made, it is not complete and is inchoate and inconclusive. 166 When there is acceptance
without knowledge of the proposal is not acceptance and does not result into a contract.167
C.III. Whether Shrinkwrap is valid form of contract under the Indian law?
57. The Shrink-wrap license gets its name from packages covered in plastic or cellophane
‘shrink-wrap’, having written licenses, mostly unsigned, which state that acceptance on the
part of the user to the terms of the license in indicated by opening the shrink-wrap user to the
terms of the license is indicated by opening the shrink-wrap packaging or other packaging of
the software, by use of the software or by some other specified means. 168 This license is a
direct contract between the software producer and the user or ultimate customer, and is
separate from the contract of sale by which the user acquired the software from the distributor
or retailer. The terms of licence is standard form would usually contain the license to use the
164
Nokhia v. State of Himachal Pradesh, AIR 1985 HP 88.
165
Paal Wilson & Co v. Partenreedrei (The Hannah Blumenthal), [1983] 1 All ER 34; See also De Moor, [1990]
106 LQR 632.
166
Baroda Oil Cakes Traders v. Parshottam Narayandas Bagulia, AIR 1954 Bom 491.
167
Lalman v. Gauri Dutt, (1913) 11 All LJ 489.
168
Id.

[ARGUMENT ADVANCED]
software with restrictions, prohibition of copying, altering, modifying or adapting the
software. Shrink-wrap licences do not follow the normal form of contracts. In a traditional
form of contract, where the parties meet face to face and discuss the terms before coming to
an agreement, the bargain is obvious. But where is the right to bargain in a standard form
shrinkwrap licence that is not even signed by the party against whom it will be enforced. The
present contract law sets out three basic predicates to the formation of a contract: those are
offer, acceptance and consideration.169 Behind these requirements is the basic essential of a
contract i.e. power to bargain on the terms between the parties.
58. The foreign courts that have considered this issue have relied on Uniform Commercial
Code (U.C.C.) sections 2-207 and 2-209 in concluding that shrink-wrap license terms are not
generally enforceable. The most detailed discussion of this issue to date is the Third Circuit's
decision in Step-Saver Data Systems, Inc. v. Wyse Technology.170 The case involved a breach
of warranty claim brought by Step-Saver Data Systems, Inc., the purchaser of a shrink
wrapped computer program, against the vendor, The Software Link, Inc. ("TSL").171 The
shrinkwrap license disclaimed all express and implied warranties on the software, including
certain prior warranties allegedly given by TSL to Step-Saver. The district court directed a
verdict for TSL on the warranty claims, holding that the shrink wrap license terms constituted
the complete and exclusive agreement between the parties.172
59. The few other cases considering the issue directly have generally lined up with Step-
Saver in refusing to enforce shrink-wrap licenses. Two courts reached this result on the
grounds that the licenses are "unenforceable contracts of adhesion." 173 This rationale is
broader than Step-Saver, because a court would then not enforce any shrink-wrap license
terms, whether or not the customer was aware of the license at the time the agreement was
made. Rather, the "contract of adhesion" rationale focuses on the weaker bargaining position
of the consumer, and the consumer's lack of meaningful choice as to the terms offered.
C.IV. Whether Clickwrap is a valid form of contract under the Indian law?
60. Click-Wrap,” “Click-Through,” contacts are electronic contacts that require the user to
scroll through terms and conditions (or multiple Web pages on a Web site) and to expressly
confirm the user’s agreement to the terms and conditions by taking some action, such as
clicking on a button that states “I Accept” or “I Agree” or some similar statement, prior to
169
SG PADIA, POLLOCK & MULLA, INDIAN CONTRACTS AND SPECIFIC RELIEF ACTS, 764 (13h ed 2010).
170
Step-Saver Date Systems v. WYSE Technology and the Software Links, 939 F.2d 91 (3d Cir. 1991).
171
Id.
172
Id.
173
Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750, 761 (E.D. La. 1987); See also Foresight Resources
Corp. v. Pfortmiller, 719 F. Supp. 1006, 1010 (D. Kan. 1989).

[ARGUMENT ADVANCED]
being able to complete the transaction. Click-Through contracts are often found in software
products or on Web sites.
61. The debate on the enforceability of click wrap has predominantly occurred with regard to
the doctrine of assent. The mutuality of assent or a meeting of the minds is essential to the
formation of an enforceable contract.174 Whether it is executed electronically or via a physical
document, a transaction, in order to be a contract, requires a manifestation of agreement
between the parties.175 The impersonal nature of clickwrap agreements, however, raises
substantive questions with regard to contractual assent. In a clickwrap agreement, the same
terms are presented to all users, and “the parties do not meet face-to face or personally
communicate.”176 Considering such an impersonal method of contracting, can there be
assurances that a meeting of the minds has actually occurred. 177 The court held that
enforceability on online contracts established a two-tiered requirement of “reasonably
conspicuous notice” and “unambiguous manifestation of assent.” The court maintained that
“reasonably conspicuous notice of the existence of contract terms and unambiguous
manifestation of assent to those terms and conditions are essential if electronic bargaining is
to have integrity and credibility.” Without such reasonably conspicuous terms, the court
declared that electronic contracts cannot “be analogized to those in the paper world of arm’s-
length bargaining.”178
62. Click wrap agreements are contract of adhesion, these are unconscionable in nature. The
term of unconscionable contract is non-negotiable. In contract law an unconscionable
contract is one that is unjust or extremely one-sided in favour of the person who has the
superior bargaining power. Several courts have held clickwrap terms to be unenforceable on
the basis of the unconscionability doctrine.179
63. In the present case Mr. Bhullar while installing the ERP software clicked on OK
continuously till the screen reached the End user license agreement (EULA) page and then
connected to the internet . After connecting to the internet he again kept on clicking ‘OK’ in
rapid pace. Generally the user agrees to the terms and conditions by taking some action, such
as clicking on a button that states “I Accept” or “I Agree” or some similar statement, prior to
174
Hatch v. Oil Co., 100 U.S. 124, 133 (1879); See also Utley v. Donaldson, 94 U.S. 29, 47 (1876); See also
RESTATEMENT (SECOND) OF CONTRACTS § 19(2) (1981).
175
Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29, 31 (2d Cir. 2002); See also Forrest v. Verizon
Commc’ns, Inc., 805 A.2d 1007, 1011 (D.C. 2002).
176
Wei Wei Jeang & Ronin A. Brooks, Current On-Line Issues, 8 TEX. WESLEYAN L. REV. 615, 623 (2002).
177
Ryan J. Casamiquela, Contractual Assent and Enforceability in Cyberspace, 17 BERKELEY TECH L.J. 475,
476 (2002).
178
Specht v. Netscape Communications Corp., Supra note 175.
179
Comb v. PayPal, Inc., 218 F. Supp. 2d 1165, 1172 (N.D. Cal. 2002); See also Brower v. Gateway 2000, Inc.,
676 N.Y.S.2d 569, 572 (N.Y. App. Div. 1998).

[ARGUMENT ADVANCED]
being able to complete the transaction, as per standard clickwrap and EULA agreement. 180
But in the present case Mr. Bhullar had continuously clicked on ‘OK’ button , this shows that
he had not accepted the terms of contract but only skipped through the windows to reach the
ERP front face of the software.
C.V. Whether Browsewrap is a valid form of contract under the Indian law?
64. A “browse wrap” agreement is particular to Web sites, which are accessible through the
Internet. Visitors to a Web site “browse” through the sit e, using their mouse to click on links
which take them to different parts of the Web site. A browse wrap agreement is a license
agreement that is part of a Web site and a visitor assents to the agreement by visiting the Web
site.181 The court had rejected Ticketmaster’s claim and specifically contrasted Ticketmaster’s
Web site agreement with that of a typical click wrap agreement. The court stated that the
terms had to be put forth before the parties in a manner that required the customer to scroll
through the home page just to find and read them. But in this it did not appear as the user
bypassed the home page. Therefore the court asserted that no individual can reasonably be
expected to agree to unknown terms. The court concluded, not surprisingly, that Ticketmaster
failed to give conspicuous notice of the terms of the agreement, and without such notice, an
unambiguous manifestation of assent to such terms could not occur.182
D. NO DAMAGES CAN BE CLAIMED FROM M/S DAS & BHULLAR, EVEN IN PRESENCE
OF CONTRACT
65. Assuming, but not conceding, even if the contract do exist M/s Das & Bhullar is not
liable to pay any damages. For establishing this argument, following point will be made [D.I.]
Burden on proof is upon plaintiff, [D.II.] Claim should be reasonable, and [D.III.] Rule of
mitigation
D.I. Burden on Proof is upon plaintiff
66. At least the facts alleged in the plaint by the plaintiff are required to be proved by him
even in an ex parte hearing to discharge the initial burden of proof. 183 The plaintiff must
establish his case and he will not automatically succeed merely because of failure of the
defendant to establish the case.184 The burden lay heavily on the plaintiff to prove his case. 185
180
ABHISHEK KRISHNAN AND RAKSHITHAA, E-CONTRACTS – LAW OF BUSINESS CONTRACTS IN INDIA 12
(2011).
181
Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974, 981 (E.D. Cal. 2000).
182
Ticketmaster Corp. v. Tickets.Com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390.
183
Hmangaihzuali v. C. Laladingi, AIR 2004 Gau 13, 16 ¶
184
Nirakar Das v. Gourhari Das, AIR 1995 Ori 270 ¶7; See also K. Venkatasubba Reddi v. Bairagi Ramaiah,
1999 AIHC 2782 ¶11; See also Usha Beltron Ltd. v. Nand Kishore Parasramka, AIR 2001 Cal 137; See also
Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272, 294 ¶71; See also Sayed Mohamed
Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, (2004) 7 SCC 708, 715 ¶8.
185
Gurumukh Ram Madan (Dr.) v. Bhagwan Das Madan, AIR 1998 SC 2776.

[ARGUMENT ADVANCED]
Where the plaintiffs failed to discharge their burden of proving their case, decree cannot be
passed in their favour on the basis of the weakness of the defence case. 186 If the fact are
admitted or, if otherwise, sufficient materials have been brought on record so as to enable a
court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden
of proof lay, would still be liable to produce direct evidence.187
D.II. Claim should be reasonable
67. Damage claim must be reasonable.188 This principle, which is quite separate from the
plaintiff’s duty to take reasonable steps to mitigate the loss, ‘debars the innocent party from
recovering the cost of a remedial programme which it would not be reasonable to adopt in the
circumstances’.189
68. The term ‘remoteness of damages’ refers to the legal test used for deciding which type of
loss caused by the breach of contract may be compensated by an award of damages. 190 The
general principle imposes, on the plaintiff, a higher degree of contemplation with regard to
the likelihood of the particular loss than the corresponding general principle in tort. 191
Reasonable foreseeability is a test of remoteness in the law of torts; in case of contract a
much higher degree of foreseeability is required i.e. a ‘serious possibility’ or a ‘real damage’
that the loss will occur.192
D.III. Rule of mitigation
69. Principle of mitigation imposes on a plaintiff the duty of taking all reasonable steps to
mitigate the loss consequent on the breach and debars him from claiming any part which is
due to his neglect to take such steps.193 The plaintiff must take all reasonable steps to mitigate
the loss which he has sustained, consequent upon the defendant’s wrong. 194 He must,
therefore, take reasonable step to minimise the loss, and secondly refrain from taking
unreasonable steps which would increase the loss.195 If he fails to do so, he cannot claim
186
Ram Bhajan v. Adbul Rahman, AIR 1997 All 17; See also Govardhan P. Thakare v. Janardhan G. Thakare,
2005 AIHC 1276, 1279 ¶9.
187
National Insurance Company Limited v. Rattani, (2009) 2 SCC 75, 79 ¶14.
188
Ruxley Electronics and Constn Ltd v. Forsyth, [1996] AC 344; See also Bellgrove v. Eldridge, (1954) 90
CLR 613, 618; See also East Ham Borough Council v. Bernard Sunley & Sons Ltd., [1966] AC 406; See also
CR Taylor (Wholesale) Ltd v. Hepworths Ltd., [1977] 2 All ER 784, 792; See also Tito v. Waddell (no. 2),
[1977] Ch 106; See also Radford v. de Froberville, [1978] 1 All ER 33, 53-54; See also Darlington Borough
Council v. Wilthier Northern Ltd., [1995] 3 All ER 895, 907.
189
12 Halsbury’s Law of England, ¶981 (4th ed. 2008).
190
2 CHITTY ON CONTRACT 1289 ¶27-039 (28h ed. 1999).
191
The Heron II, Koufos v. C. Czarnikow Ltd., [1969] 1 AC 350; See also Henderson v. Merrett Syndicates Ltd.,
[1995] 2 AC 145.
192
Id.
193
British Westinghouse Electric and Manufacture Co. Ltd. v. Underground Electric Railway Company of
London Ltd., [1912] AC 673, 689.
194
2 R.G. PADIA, MULLA ON INDIAN CONTRACT ACT & SPECIFIC RELIEF ACT 1630 (13h ed. 2011).
195
Id at 1631.

[ARGUMENT ADVANCED]
damages for any such loss which he ought reasonably to have avoided; 196 or which arises due
to his own neglect.197
70. In the current case, there is no conclusive evidence to support the statement that M/s Das
& Bhullar revealed the license key. Also, the demand of compensation towards pirated copies
made till the judgement is a remote damage, which the party is not supposed to pay. It is
further contended even if they do, then also, the fact that M/s Business Solution, having the
back-end of the software didn’t stopped the escalation of piracy by interdicting the key from
the main database, clearly shows that they didn’t followed rule of mitigation. Hence, even if
the contract does exist, no liability can be associated with M/s Das & Bhullar.
PRAYER FOR RELIEF
THIS IS HUMBLY SUBMITTED BEFORE THE HON’BLE SUPREME COURT OF INDIA THAT UNDER
THE LIGHTS OF THE ABOVE ARGUMENTS, CASES & AUTHORITIES CITED, THIS COURT MAY
DECLARE THAT:
1. SHRINKWRAP, CLICKWRAP & BROWSEWRAP AGREEMENTS ARE NOT VALID FORM OF
CONTRACT IS INDIA
2. NO CONTRACTUAL LIABILITY CAN BE ASSOCIATED WITH M/S DAS & BHULLAR

3. NO DAMAGES CAN BE CLAIMED FROM M/S DAS & BHULLAR
THE COURT MAY PRONOUNCE ANY OTHER, WHATSOEVER IT MAY DEEM IN THE LIGHTS OF
JUSTICE, FAIRNESS & EQUITY
PLACE:
S/D______________________
DATE: AMICUS
CURIAE
196
British Westinghouse Electric and Manufacture Co. Ltd. v. Underground Electric Railway Company of
London Ltd., Supra note 193; See also Rahim Makhsh Mandal v. Sajjadahmad Chowdhary, AIR 1915 Cal 601.
197
Murlidhar Chiranjilal v. Harishchandra Dwarkadas, [1962] 1 SCR 653; See also KG Hiranandani v. Bharat
Barrel & Drum Manufacture Co. Pvt. Ltd., AIR 1969 Bom 373.

Memo 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memo 1

Uploaded by

Copyright:

Available Formats

TEAM CODE – 027-150

5TH INTRA – UNIVERSITY MOOT COURT COMPETITION

THE HONOURABLE SUPREME COURT OF INDIA

THE CONSTITUTION OF INDIA

M/S DAS & BHULLAR

M/S BUSINESS SOLUTIONS

[BRIEF OF THE AMICUS CURIAE]

Page | i Submission’s of the Amicus Curiae

Page | ii Submission’s of the Amicus Curiae

Page | iii Submission’s of the Amicus Curiae

Page | iv Submission’s of the Amicus Curiae

Page | v Submission’s of the Amicus Curiae

SCC Supreme Court Cases

Page | vi Submission’s of the Amicus Curiae

Page | vii Submission’s of the Amicus Curiae

Page | viii Submission’s of the Amicus Curiae

Page | ix Submission’s of the Amicus Curiae

Page | x Submission’s of the Amicus Curiae

Page | xi Submission’s of the Amicus Curiae

Page | xii Submission’s of the Amicus Curiae

Page | xiii Submission’s of the Amicus Curiae

Page | xiv Submission’s of the Amicus Curiae

Page | xv Submission’s of the Amicus Curiae

Page | xvi Submission’s of the Amicus Curiae

Page | xvii Submission’s of the Amicus Curiae

Page | xviii Submission’s of the Amicus Curiae

Page | 1 Submission’s of the Amicus Curiae

Page | 2 Submission’s of the Amicus Curiae

Page | 3 Submission’s of the Amicus Curiae

Page | 4 Submission’s of the Amicus Curiae

Page | 5 Submission’s of the Amicus Curiae

Page | 6 Submission’s of the Amicus Curiae

Page | 7 Submission’s of the Amicus Curiae

Page | 8 Submission’s of the Amicus Curiae

Page | 9 Submission’s of the Amicus Curiae

Page | 10 Submission’s of the Amicus Curiae

Page | 11 Submission’s of the Amicus Curiae

Page | 12 Submission’s of the Amicus Curiae

Page | 13 Submission’s of the Amicus Curiae

Page | 14 Submission’s of the Amicus Curiae

Page | 15 Submission’s of the Amicus Curiae

Page | 16 Submission’s of the Amicus Curiae

Page | 17 Submission’s of the Amicus Curiae

Page | 18 Submission’s of the Amicus Curiae

Page | 19 Submission’s of the Amicus Curiae

Page | 20 Submission’s of the Amicus Curiae

Page | 21 Submission’s of the Amicus Curiae

Page | 22 Submission’s of the Amicus Curiae

Page | 23 Submission’s of the Amicus Curiae

Page | 24 Submission’s of the Amicus Curiae

PRAYER FOR RELIEF

1. SHRINKWRAP, CLICKWRAP & BROWSEWRAP AGREEMENTS ARE NOT VALID FORM OF

2. NO CONTRACTUAL LIABILITY CAN BE ASSOCIATED WITH M/S DAS & BHULLAR

Page | 25 Submission’s of the Amicus Curiae

You might also like