T14

T14

JLU- FRESHER’S MOOT COURT COMPETITION, 2020

Before

THE HONORABLE DISTRICT COURT OF BUMBA

CASE NUMBER _______ /2020

FILED UNDER SECTION 9&15 OF

THE CODE OF CIVIL PROCEDURE, 1908

IN THE CASE CONCERNING CIVIL DEFAMATION

AND

IN THE MATTER BETWEEN:

BRAINEATERS ENTERTAINMENT LTD --------------------------- PLAINTIFF

versus

MR KAANCHA TYAGI, MR VASOOLI --------------------------- DEFENDANT

BHAI SHAH, MS CHANDNI CHATUR,

MR BIJOY DEENANATH KHAN, MS

BRIGANZA

MEMORIAL for PLAINTIFF

2020
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

TABLE OF CONTENTS

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

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

Index of Abbreviations..............................................................................................................V

Statement of Jurisdiction.........................................................................................................VI

Statement of Facts..................................................................................................................VII

1) Background.................................................................................................................VII

2) Relation between Production Company and celebrities.............................................VII

3) Ensuing Events...........................................................................................................VII

4) Suit for damages.........................................................................................................VII

Issues Raised.........................................................................................................................VIII

Summary of Arguments...........................................................................................................IX

Arguments Advanced.................................................................................................................1

1. That this suit is maintainable before this Hon’ble court....................................................1

2. Whether the defendant’s statements are defamatory or not?.........................................2

2.1 The statement must be defamatory..........................................................................3

2.2 The statement must refer to the plaintiff..................................................................4

2.3 The statement must be published.............................................................................4

2.4 The said statement must be false.............................................................................4

PAGE | I
MEMORIAL for PLAINTIFF TABLE OF CONTENTS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

2.5 That the statement made by actors was not valid under the right to freedom of
speech and expression........................................................................................................5

3. That the prevailing contract is contingent in nature.......................................................6

3.1 Existence of force majeure clause in the contract........................................................7

3.2 Reasons for rejecting the idea of Novation..............................................................8

4. That the defendants shall be liable to pay the damages.................................................9

Prayer for Relief.......................................................................................................................11

PAGE | I
MEMORIAL for PLAINTIFF TABLE OF CONTENTS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

INDEX OF AUTHORITIES

1) Cases

1) Angile institution v Davya Ashmore India ltd., Civil Appeal No. 5185 of 1995..........2

2) Ardeshi H. Mama v. Flora Sasson, 208 AIR (PC, 1928).............................................10

3) Ashoke Ghosh vs Urmi A. Goswami 133 DLT 69 (2006)............................................1

4) Inayat Husain vs Bashir Ahmad And Anr. All 413 AIR (1932)....................................1

5) Jain Mills and Electrical Stores v State of Orissa 117 AIR (Ori, 1991)........................7

6) Leeladhar yadav v. Siddhartha housing co-operative society ltd, 155 AIR (MP, 2006)
......................................................................................................................................10

7) Mahender ram v. Harnandan Prasad, 445 AIR (Pat,1958)............................................4

8) N.P. Thirugnanam(D) by Lrs. v. Dr. R. Jagan Mohan Rao and Ors, 116 AIR (SC,
1996)............................................................................................................................10

9) Om Prakash Mehta vs Usha Devi, All 430 AIR (1964).................................................1

10) Radheshyam Tiwari v. Eknath, 285 AIR (Bom,1985)...................................................5

11) Ram Jethmalani v. Subramanian Swammy; Dr Swammy, DLT 535 AIR(Del, 2006). .4

12) Ramasubha Iyer vs A.M.A Mohindeen 398 AIR (Mad, 1972)......................................4

13) Rojasara Ramjibhai Dahyabhai v Jani Narottamdas Lallubhai, 300 3 SCC (SC, 1986).
........................................................................................................................................6

14) Sanker Naryan Potti v K Sreedevi, 24 AIR (SC, 1964).................................................1

15) Section 55, The Indian Contract Act, 1872....................................................................7

16) Subramanian swamy v. union of India 7 SCC (SC, 2016)............................................5

17) Time Incorporated V. Lokesh Srivastava & Anr, 30 PTC 3 (Del,2005).....................10

2) Statutes

18) Section 15, The Code of Civil Procedure, 1908............................................................1

19) Section 2(a), The Indian Contract Act, 1872.................................................................8

20) Section 2(d), The Indian Contract Act, 1872...............................................................10

21) Section 2(f), The Indian Contract Act, 1872..................................................................6

PAGE | II
MEMORIAL for PLAINTIFF INDEX OF AUTHORITIES
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

22) Section 31, The Indian Contract Act, 1872....................................................................6

3) Books

23) Avtar Singh, Contract & Specific Relief- Twelfth edition, 389 2019...........................7

24) Black’s Law Dictionary, 7th Edition, 1990...............................................................2, 7

25) DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY

........................................................................................................................................3

26) Eisenberg, Melvin Aron, Foundational principles of contract law, 477 2018...............8

27) Underhills, The Law Torts, 23, 1946............................................................................2

4) References

28) http://www.legalserviceIndia.com/legal/article-207-defamation-in-law-of-torts-
meaning-essentials-and-defences.html..........................................................................3

29) https://www.scobserver.in/court-case/defamation-as-a-criminal-offence.....................5

PAGE | II
MEMORIAL for PLAINTIFF INDEX OF AUTHORITIES
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

INDEX OF ABBREVIATIONS

S.No. Abbreviation Meaning

1) Hon’ble Honorable
2) CPC The Code of Civil Procedure, 1908
3) TV Television
4) SC Supreme Court
5) Para Paragraph

PAGE | III
MEMORIAL for PLAINTIFF INDEX OF ABBREVIATIONS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

STATEMENT OF JURISDICTION

The plaintiff most humbly and respectfully submits that the Hon’ble District Court of Bumba
of Gilli state of Titanistan has the requisite territorial and subject matter jurisdiction to try and
adjudicate this matter under section 9 & 15 of The Code of Civil Procedure, 1908.

The present memorial sets forth the facts, contentions and arguments in the present case.

PAGE | IV
MEMORIAL for PLAINTIFF STATEMENT OF JURISDICTION
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

STATEMENT OF FACTS

1) BACKGROUND

Braineaters Entertainment Ltd is a company registered under Titanistan Companies Act, 2013
and has its office in Bumba district of Gilli state of Titanistan. The celebrity actors and
actresses of Union of Titanistan are namely Bijoy deenanath Khan, Vasooli bhai Shah, Ms.
Chandni Chatur, Ms. Briganza and Mr. Kaancha Tyagi.

2) RELATION BETWEEN PRODUCTION COMPANY AND CELEBRITIES

The company, in order to produce movies based on mythologies of Titanistan, entered into a
contract with the celebrity actors. The agreement was to share the 5% of profit earned by the
production company to the actors as their fees by the fourth week of April, 2020.

3) ENSUING EVENTS
a) The movie which was supposed to be released on 27th March, 2020 was postponed
due to the complete lockdown issued by the Government of Titanistan to stop the
spread of Covid-19.
b) In the 3rd phase of lockdown in the month of May, the actors demanded for Novation
of contract. The demands were to pay the actors on their current market fees instead
of profit sharing and to release the movie on online platforms. The producers refused
to accept it as according to their estimation it would cause a huge loss in the mega
venture in which they invested more than Rs. 150 crores.

4) DISPUTE

Mr. Kaancha Tyagi tweeted on a social media platform that “Braineaters Entertainment Ltd.
is least supportive of actors and actresses during these pandemic times and is completely
business minded and seems to be headed by bunch of inhumane people who are least
sensitive towards actors” The said tweet was liked and shared by Mr. Vasooli bhai Shah and
Ms. Chandni Chatur having millions of followers.

The plaintiff filed a suit of defamation against Ms. Kaancha Tyagi, Mr. Vasooli bhai shah,
Ms. Chandni chatur, Mr. Bijoy deenanath Khan and Ms. Briganza for defaming them.

PAGE | V
MEMORIAL for PLAINTIFF STATEMENT OF FACTS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

ISSUES RAISED

I. Whether this suit is maintainable before this Hon’ble court?

II. Whether the statements made by the defendants are defamatory?
III. Whether the contract between the parties is a contingent contract?
IV. Whether Braineaters Entertainment Ltd. is entitled to the damages caused by
defendants’ defamatory statement?

PAGE | VI
MEMORIAL for PLAINTIFF ISSUES RAISED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

SUMMARY OF ARGUMENTS

I. That the suit is maintainable before this Honorable court.

The council on behalf of plaintiff humbly submits that this suit against the actors is
maintainable before this Hon’ble court. As the council had approached this Hon’ble court
under section 9 read with section 15 and 20 (a)(c) of CPC.

II. That the defendant’s statements are defamatory.

It is humbly submitted before this Hon’ble court that the statement made by the defendants
are defamatory as it contains all the essentials which are needed to prove a statement to be
defamatory. Mr Kaancha Tyagi’s tweet contains words like least supportive, inhumane,
business-minded, and least sensitive to which other actors gave their consent by liking,
sharing and commenting on the said tweet which harms the reputation of Braineaters
Entertainment Ltd.

III. That the prevailing contract is contingent in nature.

It is humbly submitted before this Hon’ble court that according to section 31 of Indian
contract Act,1872 this contract is contingent in nature as the condition of payment i.e. 5% of
the profit earned by the producer in itself depends on whether the film will be released or not,
also the fees will be paid only if the profits are earned by the film after releasing. The
releasing of the movie in cinema halls has currently become impossible due to the lockdown
announced by the government of Titanistan due to which profit cannot be earned.it is also
pertinent to mention that Covid-19 pandemic deprived the plaintiff to perform the contract.
This reason along with the facts of the case per se proves that the plaintiff is entitled to the
suspension of the contract for the time-being as the contract contains force majeure clause.

Furthermore, the plaintiff rejected the offer of novation of contract because they don’t find it
appropriate in the current situation; the plaintiff has not earned any profit till now and they
have already invested more than Rs. 150 crores in the movie.

Further The idea to release the movie on online platforms like Netflix and Amazon Prime
PAGE | VII
MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

was rejected by the plaintiff as it would have caused a huge loss to the company as the
Titanistan TV rebroadcasted the television show based on mythology after 30 years which
turned out to be extremely successful.

IV. That the defendants shall be liable to pay.

It is humbly submitted to the court to consider the aforementioned arguments; and to held
defendants liable to compensate for the loss they have made to the plaintiff. The loss does not
only count the loss of reputation of plaintiff among defendants’ millions of followers but also
to the future loss the defendants’ statements had made to the profit that could have been
earned from the movie. Thus, the council on behalf of the plaintiff most humbly requests the
Hon’ble court to award exemplary damages for the aforementioned losses to the plaintiff so
that the present case may not arise in future.

PAGE | VII
MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

ARGUMENTS ADVANCED

1. THAT THIS SUIT IS MAINTAINABLE BEFORE THIS HON’BLE COURT.

It is humbly submitted that the plaintiff has approached this Hon’ble court under Section 9 of
the code of civil procedure, 1908.
It is most respectfully submitted that this section obliges courts to try all the cases unless
barred.
In the present case, the Hon’ble court has the jurisdiction to try this case and there is no law
or statute to bring the maintainability of this suit in dispute. The SC had held that “…it is
obvious that in all types of civil disputes civil courts have inherent jurisdiction as per Section
9 of the CPC unless a part of that jurisdiction is carved out from such jurisdiction, expressly
or by necessary implication, by any statutory provision and conferred on any other tribunal or
authority.”1 In Ashoke Ghosh vs Urmi A. Goswami the plea of the implied bar under Section
9 by virtue of the non-enactment of a statute under Article 19(2) permitting defamation suits
has already been rejected. Consequently, the suit is also maintainable under Section 9 of
CPC.2

Furthermore section 15 of CPC states that “Every suit shall be instituted in the Court of the
lowest grade competent to try it.”3 This directs the plaintiff to institute the case in this
Hon’ble court. Section 15 states that all the suits should be first instituted in the court of
lowest grade which is competent to try it; it is further submitted that this Hon'ble court i.e.
The district court of Bumba is considered as the court of the first instance; therefore, the
plaintiff has approached this Hon’ble court, and hence the suit is maintainable in this Hon’ble
court. 4

It is pertinent to mention section 20(a) and (c) of CPC-

1
Sanker Naryan Potti v K Sreedevi, 24 AIR (SC, 1964)

2
Ashoke Ghosh vs Urmi A. Goswami 133 DLT 69 (2006)
3
Section 15, The Code of Civil Procedure, 1908.
4
Om Prakash Mehta vs Usha Devi, All 430 AIR (1964); Inayat Husain vs Bashir Ahmad And Anr. All 413 AIR
(1932)
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

(c) the cause of action, wholly or in part, arises.”

Thus, the council would like to approach this Hon’ble court as the defendants were
personally working for gain in the Bumba district of Gilli state of Titanistan and the subject
matter also arises in the same place. In Angile institution v Davya Ashmore India ltd. and
others, it was held that the contract was entered into and executed within the jurisdiction of
the Court of the Subordinate Judge, Dhanbad. Therefore, by operation of the Explanation to
S.20, it must be deemed that the cause of action had arisen within the local limits of the
jurisdiction of the court of Subordinate Judge, Dhanbad. 5

2. WHETHER THE DEFENDANT’S STATEMENTS ARE DEFAMATORY OR NOT?

It is most humbly submitted before the Hon’ble Court that Salmond defines the wrong of
defamation as the publication of a false and defamatory statement about another person
without lawful justification.6

In Black’s Law Dictionary defamation is an intentional false communication either published

or publicly spoken, that injures another’s reputation or good name.7

In countries like England, The Defamation Acts of 1952 and 1996 are the important statutes
which deal in cases of defamation differentiating between a libel and slander. 8

5
Angile institution v Davya Ashmore India ltd., Civil Appeal No. 5185 of 1995

6
Underhills, The Law Torts, 23, 1946.

7
Black’s Law Dictionary, 7th Edition, 1990.

8
DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

In Titanistan, there is no such distinction between libel and slander, both are an offence as
civil wrong under the law of torts and crime under Section 499 of Indian Penal Code, 1860 &
its punishment is simple imprisonment or fine or both under the code.

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by

visible representations, makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that
person.

In common law “Defamation refers to the act of publication of defamatory content that
lowers the reputation of an individual or an entity when observed through the perspective of
an ordinary man.”

Mr. Kaancha Tyagi tweeted that “Braineaters Entertainment Ltd. is least supportive of actors
and actresses during these pandemic times and is completely business minded and seems to
be headed by bunch of inhumane people who are least sensitive towards actors.”9

The said tweet was liked and shared by Mr. Vasooli bhai Shah and Ms. Chandni Chatur and
Bijoy deenanath Khan and Ms. Briganza commented on the said tweet saying Novation of
Contract should be done and actors’ right to receiving of fees on time should be safeguarded
and Braineaters Entertainment Ltd. failed in doing so.

The council would like to argue that this statement tweeted by the celebrity actor Mr.
Kaancha Tyagi, and retweeted by others is defamatory as it comprises all the necessary
elements of a defamatory statement. 10

2.1 The statement must be defamatory

Here the council would like to state that Braineaters entertainment ltd. Produces movies,
television series, reality shows etc. among other things and enters into contract with celebrity
actors and actress of union of Titanistan very often.

9
Moot proposition, paragraph 9.
10
http://www.legalserviceIndia.com/legal/article-207-defamation-in-law-of-torts-meaning-essentials-and-
defences.html
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

Therefore, they have certain kind of reputation and goodwill in the entertainment industry.

The statement which was tweeted and retweeted by the celebrity actors in Titanistan, having
millions of followers is considered as a defamatory statement as it tends to lower down the
good reputation of Braineaters Entertainment Ltd. among other actors, the people of
Titanistan, and the entire entertainment industry. Furthermore, it is also pertinent to mention
that the movie in which the actors had worked was only the first part, there were many more
movies in the series but because of actors’ defamatory and derogatory tweet the said movie as
well as the upcoming movies will not be as successful as it was supposed to be causing the
loss in future earnings.11

2.2 The statement must refer to the plaintiff

It is humbly submitted before the Hon’ble court that the actors' tweet contains the
plaintiff's name in itself. So there shall arise no question whether the statement is made to
defame Braineaters entertainment ltd. In the case of Ramasubha Iyer vs A.M.A
Mohindeen the court held that for a statement to be considered as defamatory it should
not be said in general but specifically to the plaintiff.12

2.3 The statement must be published

The said statement was tweeted on the twitter handle of the actors which contain millions of
followers; thus, it is clearly an injury made to the goodwill and reputation of the plaintiff in
the eyes of a millions of people. 13

2.4 The said statement must be false

It is humbly submitted to the Hon’ble court that the said statement is false because it
comprises words like least supportive, business minded, inhumane, and least sensitive which
has been used to gain fake sympathy from people of Titanistan and degrade the reputation of
the plaintiff.

Here the council would like to ask a question that whether being supportive means giving

11
Ram Jethmalani v. Subramanian Swammy; Dr Swammy, DLT 535 AIR(Del, 2006).
12
Ramasubha Iyer vs A.M.A Mohindeen 398 AIR (Mad, 1972)
13
Mahender ram v. Harnandan Prasad, 445 AIR (Pat,1958).
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

support to others by incurring loss to you or if saying no to the contract which incurs losses to
them will make them money minded or inhumane? Whether tweeting about a company as
least sensitive, inhumane, least supportive and money minded will make my opposite council
more supportive towards the plaintiff?

Here the council would like to contend that the statement made by the defendant is false.14

2.5 That the statement made by actors was not valid under the right to freedom of speech
and expression.

This is humbly submitted before the Hon’ble court that article 19(1) (a) of the constitution
guarantees to all its citizens the right to freedom of speech and expression but it imposes
certain reasonable restrictions under article 19(2). The clause 2 of article 19 prevents any
person from making any statement that defames the reputation of another. The council had
proved it in the aforementioned arguments that the said statement was defamatory and is not
at all acceptable as a matter of freedom of speech.

In the case of Subramanian swamy v. union of India, the SC held that Section 499 is not an
excessive restriction under Article 19(2). It held that society is a collection of individuals, and
what affects individuals also affects the society as a whole. Hence, it held that it is valid to
treat defamation as a public wrong. It held that criminal defamation is not a disproportionate
restriction on free speech, because protection of reputation is a fundamental right as well as a
human right.1516

3. THAT THE PREVAILING CONTRACT IS CONTINGENT IN NATURE.

It is humbly submitted to the court that the existing contract is a contingent contract. A
contingent contract is a contract to do or not to do something, if some event, collateral to such

14
Radheshyam Tiwari v. Eknath, 285 AIR (Bom,1985)
15
Subramanian swamy v. union of India 7 SCC (SC, 2016).

16
https://www.scobserver.in/court-case/defamation-as-a-criminal-offence

PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

contract, does or does not happen.17

It means that a contract has already arisen but its performance cannot be demanded unless the
contemplated event happens or does not happen.18

In the present case the council would like to clarify that there exists a set of reciprocal
promises.19 The actors have promised to perform in the movie while the producers have
promised to pay for the same. Here, the agreement to pay the 5% share in profit by the
producers to the actors is contingent in nature as the performance depends upon

a) The release of movie

b) The profit earned from the movie.

The releasing of the movie in cinema halls has currently become impossible due to the
lockdown announced by the government of Titanistan. The profit cannot be earned until and
unless the movie is released. Moreover the amount of profit that will be earned can only be
anticipated and not precisely stated. Thus, it is clear from the above reasoning that the
releasing of the movie is a contemplated event and the promise to pay the profit as fees to the
actors is contingent is nature.

Further, the SC held it that only on the happening of the requisite contingency, specific
performance of a contract can be demanded.20 The requisite contingency here in the present
case is the releasing of the movie after which the profits can be earned which will lead to the
performance of the promise to share the profits with the actors.

Moreover, if it was not the intention of the parties that time should be of the essence of the
contract, the contract does not become voidable by the failure to do such things at or before
the specified time.21 It means that either party will have to accept performance even if it is
delayed. If delayed performance is accepted the other party cannot claim compensation for

17
Section 31, The Indian Contract Act, 1872.
18
Avtar Singh, Contract & Specific Relief- Twelfth edition, 352 2019.
19
Section 2(f), The Indian Contract Act, 1872.
20
Rojasara Ramjibhai Dahyabhai v Jani Narottamdas Lallubhai, 300 3 SCC (SC, 1986).
21
Section 55, The Indian Contract Act, 1872.
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

the delay. 22

In the present case, the contract was made on 17th February, 2019 and the time mentioned to
pay the fees was fourth week of April, 2020. The actors presented their demands during 3rd
phase of lockdown, i.e., in middle of the month of May which portrays the implied
acceptance of delay in performance of the contract.

In Jain Mills and Electrical Stores v State of Orissa, the court held that mere delay by itself
does not put an end to the contract. 23

Thus, the above mentioned points prove that the contract was contingent in nature.

3.1 Existence of force majeure clause in the contract

 The force-majeure clause is defined as “ A contractual provision allocating the risk if

performance becomes impossible or impracticable, esp. as a result of an event or effect that
the parties could not have anticipated or controlled.”24

 In order for a party to have the benefit of force majeure, it shall have to fulfill the conditions
specified in force majeure clause. The contract is not terminated but the performance of the
contract is suspended during the time the supervening event constituting force majeure exists.

In the present case, the plaintiff entirely fulfills the essentials of the standard force majeure
clause that exists in the contract which is as follows:

a) An unexpected/unforeseen intervening event occurred

b) The parties to the agreement assumed that such an event will not occur
c) Such an event has made the performance of the obligations under the contract
impossible or impracticable
d) The parties have taken all such measures to perform the obligations under the
agreement or at least to mitigate the damage

22
Avtar Singh, Contract & Specific Relief- Twelfth edition, 389 2019.

23
Jain Mills and Electrical Stores v State of Orissa 117 AIR (Ori, 1991).
24
Black’s Law Dictionary, 7th Edition, 1990.
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

e) The affected party claiming relief under force majeure will have the burden of proof
to show that the force majeure event has affected such party's performance of the
contract.

The spread of global pandemic Covid-19 has primarily deprived the plaintiff to perform the
contract. It is an event that is out of control of the plaintiff and due to it the movie could not
be released. 25

These reasons along with the facts of the case per se prove that the plaintiff is entitled to the
suspension of the contract for the till the pandemic continues. This clearly states that the
plaintiff shall not be liable to pay the fees and perform the contract until and unless the
contemplated event happens.

Thus, the existence of the standard force majeure clause per se states that no performance of
contract can be enforced by law for the time being. 26

3.2 Reasons for rejecting the idea of Novation.

The Council would like to submit to the Hon’ble Court that the idea of novation of contract
suggested by the actors was an offer to the plaintiff. 27This makes plaintiff the offeree. If an
offer is rejected by the offeree, then the offer as well as the power of acceptance which comes
with it is terminated at once. 28

3.2.1. CHANGE IN FEES DEMANDED

The actors’ demand to pay the current market value which is around 2 to 3 crores per actor
instead of sharing 5% profit earned from the movie is not at all appropriate to the plaintiff.
The plaintiff has not earned any profit till now and they have already invested more than Rs.
150 crores in the movie. This is a general principle of law that one should not enjoy profit at

25
Phillips P.R. Core, Inc. v. Tradax Petroleum Ltd., 782 F.2d 314, 319 2d Cir.(1985); Dhanrajamal Gobindram
v. Shamji Kalidas & Co., 1285 AIR (SC, 1961) ; Lakeman v. Pollard 43 AIR (Me,1857).
26
Moot proposition, clarification 2.
27
Section 2(a), The Indian Contract Act, 1872.

28
Eisenberg, Melvin Aron, Foundational principles of contract law, 477 2018.

PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

the loss of the other. Moreover, the general psychology states that while agreeing to a
contract stating the sharing of profits, the parties always know the fact that the loss might
happen as well. Thus, the demand to change the fees by actors after the lockdown clearly
demonstrates the intention of the actors to enjoy their fees even if it causes loss to the
plaintiff.

3.2.2. RELEASING OF THE MOVIE ON ONLINE PLATFORMS

The idea to release the movie on online platforms like Netflix and Amazon Prime was
rejected by the plaintiff as it would have caused a huge loss to the mega venture of the
plaintiff’s company.

The council would like to highlight the fact that during the first phase of lockdown, Titanistan
TV rebroadcasted an extremely successful series based on mythology of Titanistan after 30
years. The plaintiff is of the view that if the movie is released on the online platforms, it
would again cause a huge loss to the plaintiff. 29

Moreover, the empanelled entertainment industry advisors of plaintiff also advised to not
release the movie anytime soon as the other producers might also release their movies which
consist of star celebrities.30

Hence, the council humbly submits to the Hon’ble Court that the ideas of the actors were
rejected after duly examining the loss that might occur. Thus, considering the above
mentioned argument, it can be derived that the statements made by the defendants are not true
and are defamatory in nature.

4. THAT THE DEFENDANTS SHALL BE LIABLE TO PAY THE DAMAGES.

Considering the aforementioned arguments, the council humbly submits to the Hon’ble court
that the defendant shall be liable to compensate for the loss they have caused to the plaintiff.

This loss does not only count the loss of reputation of plaintiff among defendants’ millions of

29
Moot proposition, paragraph 8.
30
Moot proposition, paragraph 7.
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

followers but also the future loss the defendants’ statements had made to the profit that could
have been earned from the first part of the series of mythological movie.

The plaintiff’s production company had goodwill in the entertainment industry because of
which numerous celebrities desired to work with the plaintiff. The defendant’s defamatory
and derogatory statements have caused a loss to the future contracts as well as it is clearly
mentioned that the movie in the instant case is only the first part of the series of mythological
movie produced by the plaintiff.31 The statements made against the plaintiff have also
affected the right to reputation of an individual guaranteed under Article 21 of the Indian
Constitution.

The council would like to highlight that the essentials for a valid consideration for a promise
consists that consideration maybe past, present or future. 32 The plaintiff has never denied to
pay the future consideration and has an honest intention to pay the fees to the defendants as
soon as the profit is earned in the present case. The party who has always been ready and
willing to perform the essential terms of the contract which are to be performed by him is
entitled to the damages. 33

Thus, the council on behalf of the plaintiff most humbly requests the Hon’ble court to award
exemplary damages for the aforementioned losses to the plaintiff so that the present case may
not arise in future. This would make the people of union of Titanistan understand that actions
done with wrong intentions have consequences.34

31
Moot proposition, clarification 3.
32
Section 2(d), The Indian Contract Act, 1872.

33
Section 16(c), The Specific Relief Act, 1963; Ardeshi H. Mama v. Flora Sasson, 208 AIR (PC, 1928);
Leeladhar yadav v. Siddhartha housing co-operative society ltd, 155 AIR (MP, 2006); N.P. Thirugnanam(D) by
Lrs. v. Dr. R. Jagan Mohan Rao and Ors, 116 AIR (SC, 1996).

34
Time Incorporated V. Lokesh Srivastava & Anr, 30 PTC 3 (Del,2005).
PAGE | VIII
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
 JLU-FRESHER’S MOOT COURT COMPETITION, 2020

PRAYER FOR RELIEF

In light of the facts stated, arguments advanced and authorities cited, the Petitioner humbly
prays before this Hon’ble to adjudge and declare that:

I. The plaint filed by Braineaters Entertainment Ltd. is maintainable.

II. The statements made by the actors are defamatory in nature.

III. The contract in the present case is contingent in nature and that the standard force
majeure clause is enforceable.

IV. The celebrity actors shall be made liable to pay the exemplary damages for
defamation.

The Hon’ble Court may also be pleased to pass any other order, which the Court may
deem fit in the light of justice, equity and good conscience.

All of which is most humbly prayed.

Council for plaintiff.

PAGE | IX
MEMORIAL for PLAINTIFF PRAYER FOR RELIEF