IN THE HON’BLE JHARKHAND HIGH COURT

RANCHI BENCH

PETITON NO………………/ 2013

-IN THE MATTER OF-

NIRAVANA CONSTRUCTION LTD. RANCHI....................................… PETITIONER

Versus

Mrs. Nadiawala..............................................................................................RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT

DRAWN AND FILED BY THE COUNSELS FOR THE APPELLANT

Counsel for the Petitioner:

Name: Manish Choudhary
Semester: 2nd
Section: B
Roll: 222

TABLE OF CONTENTS
Memorial on behalf of Petitioner
Table of Contents……………………………………………………………………...………..2

List of Abbreviations………………………………………………………………………....…

Index of Authorities.........................................................................................................................4-5

Statement of Jurisdiction.................................................................................................................6

Statement of Facts...........................................................................................................................7

Issues for Consideration......................................................................................................................8

Summary of Pleadings……………………………………………………...……………..……..9

Pleadings and Authorities............................................................................................................10-12

Prayer ................................................................................................................................................13

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 LIST OF ABBERVIATIONS

&…………………………………………………………………………...........…And

ART.....................................................................................................................Article

AC………………………………………………………………………..Appeal Cases

AIR…………………………………………………………………..All India Reporter

ED......................................................................................................................Edition

REP.....................................................................................................................Reprint

SC……………………………………………………………………….Supreme Court

v……………………………………………………………………………….…Versus

Vol………………………………………………………………………….......Volume

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 INDEX OF AUTHORITIES

1. STATUTES
1. The Indian Contract Act, 1872.
1. The Code of Civil Procedure, 1908

2. LIST OF BOOKS

 Mulla,(2010). Indian Contract And Specific Relief Acts,13th edition, volume (1),
LexisNexis Butterworths Wadhwa,Nagpur
 Singh, Avtar, (2008). Contract and Specific Relief, 10th edition, eastern book company,
 Anson’s,(2010). Law of Contract, 29th edition, Beatson Burrows Cartwright.
 Burrows, Andrew, (2011).A Casebook on Contract, 3rd edition, Oxford and Portland,
 Sweet $ Maxewell, (2008). Chitty on Contracts, 30th edition, volume 1, Thomson
Returms.

3. LIST OF WEBSITES:

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1. www.manupatra.com

2. www.indiankanoon.com

3. www.vakilsearch.com

4. www.lawyersclubindia.com

5. www.ncrb.com

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 STATEMENT OF JURISDICTION

The Court’s Jurisdiction is invoked under Section 96 of The Code of Civil Procedure, 1908.

The Code of Civil Procedure, 1908.

Section 96, Appeal from Original Decree:-

1. Save where otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree passed by any court
exercising original jurisdiction to the Court authorized to hear appeals from the decision
of such Court.
2. An appeal may lie from an original decree passed ex parte.
3. No appeal shall lie from a decree passed by the court with the consent of parties.
4. 1
[No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or the value of the subject
matter of the original suit does not exceed 2[ten thousand rupees].]

1
Ins by Act 104 of 1976, Sec . 33 (w.e.f. 1-2- 1977)
2
Subs by Act 46 of 1999, Sec. 9, for “three thousand rupees” (w.e.f. 1-7-2002)

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 STATEMENT OF FACTS

 Mrs. Nadiawala is a personal manager of Niravana Construction Ltd, Ranchi.

 Mr. Gupta who is M.D. of Nirvana wrote a letter to Mrs. Nadiawala regarding increase of
15% in his occupational pension scheme.
 This was decided by officials and not was rule. It was also discretionary in nature.
 The condition was that if he wants to accept offer than reply by 16th January.
 Mrs. Nadiawala replied on 11th January.
 22nd March 2006, Mr. Gupta again wrote a letter and expressed the inability of company
regarding increased amount of pension. Financial difficulties of company are the
significant reason for non-fulfillment of her increased amount of pension.
 Mrs. Naidawala filed case in civil court. And court gave decision in her favour.
 Now, this matter is in front of Jharkhand High Court.

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 ISSUES FOR CONSIDERATION

1. Whether there was valid consideration or not?

2. Whether the doctrine of commercial hardship will be applicable in this case or

not?

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 SUMMARY OF PLEADINGS

1. Whether there was valid consideration or not?

It is humbly contended before this hon’ble court that there was no valid consideration.
Section 25 of Indian Contract Act 1872, states that if agreement is made without
consideration than it will be void agreement. So this contract is not a valid contract.

2. Whether the doctrine of commercial hardship will be applicable in this case or not?
It is humbly contended before this hon,ble court that the doctrine of commercial
hardship will be applicable in this case. The basic objective of this doctrine is to

protect the rights of innocent party. If a person wants to perform the contract but due
to the inappropriate conditions he cannot able to perform that contract. In such kind of
situation he will not be punished for breach of contract. So in this case this doctrine
will be applicable. And court should set aside the contract.

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 PLEADINGS AND AUTHORITIES

1. Whether there was valid consideration or not?

It is humbly submitted before this honb’le court that agreement is void if it is made
without consideration.
 Section 25, of Indian Contract Act 1872, talks about consideration. It states that
“ Agreement without consideration, void, uncles it is in writing and registered, or is a
promise to compensate for something done, or is a promise to pay a debt barred by
limitation law.- An agreement made without consideration is void, unless-

(1) it is expressed in writing and registered under the law for the time being in force for the
registration of 1[ documents], and is made on account of natural love and affection between
parties standing in a, near relation to each other; or unless
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily
done something for the promisor, or something which the promisor was legally compellable
to do; or unless
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by
his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of
which the creditor might have enforced payment but for the law for the limitation of suits. In
any of these cases, such an agreement is a contract. Explanation 1.- Nothing in this section
shall affect the validity, as between the donor and done, of any gift actually made.
Explanation 2.- An agreement to which the consent of the promisor is freely given is not void
merely because the consideration is inadequate; but the inadequacy of the consideration may
be taken into account by the Court in determining the question whether the consent of the
promisor was freely given.
 In this case, there were two agreements. First agreement is regarding pension and
second one is related to his service. In this case prime concern is regarding first
agreement. In this case valid offer was there and also acceptance of offer is present.

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 But the next element for the formation of contract is consideration. Third element is
not present there. If we carefully look into fact sheet then we will find that there was
no consideration on the part of defendant.
 Element of consideration for second agreement is present there. He is working there
and getting monthly salary for that.
 The word discretionary is used in the fact sheet and it is also mentioned that it was not
hard and fast rule. It was only decided by officials. It is a policy matter. Policies can
be changed with time. So if company thinks that this is not beneficial for them than
they can change their policies.

2. Whether doctrine of hardship is applicable in this case or not?

 It is humbly submitted before this hon’ble court that although there was a valid
consideration the doctrine of hardship will be applicable in this case. The basic
object of this doctrine is that “No one should be held liable for what he doesn’t
intend”.
 Hardship occurs where the occurrence of the events fundamentally alters the
equilibrium of the contract, either because the cost of disadvantaged party’s
performance has increased, or because the value of what it has to receive has
decreased, provided the event meet following requirements:
(1) The event occurs or become known to it after the conclusion of the contract;
(2) The event could not reasonably have been taken into account at the time of conclusion
of the contract;
(3) The event are beyond its control; and
(4) The risks of events were not assumed by it.
 It is noticeable point that in the fact sheet it is mentioned that the financial condition
of the company was not good. Company was facing financial difficulties. And this is
the major reason because of which company is refusing to perform the contract.
 Now, if we compare these facts with requirements of hardship. Firstly, at the time of
agreement companies trade was in normal course. So they haven’t assumed that
company may face financial difficulty. Secondly, now the company is facing financial

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 difficulty. So, payment of 15% extra money is beyond the control of the company.
Thirdly, this incident of financial difficulty arose after the conclusion of contract.
 Taking consideration into all these points we can infer that “doctrine of hardship” will
be applicable in this case.
 If the doctrine of hardship is applicable in this case then what will be solution. So in
this situation there can be two conditions (a) order of termination of contract at a date
and on terms to be fixed by the court; or may (b) adapt the contract with a view to
restore its equilibrium.
 So this agreement should be set aside because petitioner is not in a position to perform
this contract.

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 PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, arguments advanced and
authorities cited it is most humbly prayed before the Court that it may be pleased to
adjudge and declare that:
1. There was no valid consideration in this agreement.
2. The contract between appellant and respondent was a void contract.
3. The “Doctrine of Hardship” will be applicable in this case.
And further pass any other order that it may deem fit in the ends of equity, justice and
good conscience.

All of which is humbly prayed

Counsel for the Appellant

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