THE THIRD EDITION OF SENATE MOOT COURT

COMPETITION, 2019
TEAM CODE: TC 51

IN THE HON’BLE DISTRICT AND SESSIONS COURT,

DELHI
CASE CONCERNING INDIAN CONTRACT ACT, THE PATENT ACT ETC.

___________________________________________________________

STARKE & ORS............................................................PLAINTIFFS

VS.
CHILDCARE HOSPITAL & ANR. ……………….....DEFENDANTS
___________________________________________________________

FOR THE KIND ATTENTION OF THE HON’BLE DISTRICT

AND SESSIONS JUDGE AND HIS COMPANION JUDGES OF
DISTRICT AND SESSIONS COURT

MEMORANDUM ON BEHALF OF
PLAINTIFFS

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 TABLE OF CONTENTS

SERIAL PARTICULARS PAGE

NO. NUMBER

1. LIST OF ABBREVIATIONS 2.

2. THE INDEX OF AUTHORITIES 3.

(a) Table of cases
(b) Books
(c) Statute
(d) Websites
3. THE STATEMENT OF JURISDICTION 5.

4. THE STATEMENT OF FACTS 6.

5. THE STATEMENT OF ISSUES 7.

6. THE SUMMARY OF ARGUMENTS 8.

7. THE ARGUMENTS ADVANCED 10.

8. THE PRAYER 17.

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 LIST OF ABBREVIATIONS
Serial Abbreviations used Full forms of the Abbreviations
number
1. AIR All India Reporter
2. All Allahabad
3. DLT Distributed ledger technology
4. Dr. Doctor
5. Hon’ble Honorable
6. i.e. That is
7. Mr. Mister
8. Mt. Mount
9. NDRA National Diseases Research Association
10. Prof. Professor
11. S. Section
12. SC Supreme Court
13. v. Versus

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 THE INDEX OF AUTHORITES
TABLE OF CASES:
SERIAL CASES CITATIONS
NUMBER
1. Chidambara V. P. S. Renga 1966 AIR 193, 1966 SCR (1)
168
2. Coffee Board v. CCT AIR1988SC1487
3. J.G. Engineers (P) Ltd., v. Union of India (2011) 5 SCC 758
4. Kodungallur Film Society v. UOI 2018 (6) Bom CR 270
5. Mt. Haidari Begum v. Jawad Ali AIR 1935 All 55
6. Oil and Natural Gas Corporation Ltd v. AIR 2003 SC 2629
Saw Pipes Ltd
7. P Radhakrishna Murthy v. NBCC Ltd. (2013) 3 SCC 747
8. PMA Metropolitan v. M.M. Marthoma 1995 AIR 2001
9. Rattan Sen @ Ratan Lal v. suraj Bhan & AIR 1944 All 1
Ors.
10. Steel Authority of India Ltd. V. Salem AIR1994SC1414
Stainless Steel Suppliers
11. Subhashini Malik v. S. K. Gandhi (2016) 233 DLT 83

BOOKS:
1. Code of Civil Procedure, 1908 (C. K. Takwani)

2. Code of Civil Procedure, 1908 (Dr. Avtar Singh)

3. Code of Civil Procedure, 1908 (T. P. Tripathi)

4. Intellectual Property Rights (J.P. Mishra)

5. Intellectual Property Rights (Prof. Meenu Paul)

6. Intellectual Property Rights (V.K. Ahuja)

7. Law of Contract & Specific Relief (Dr. Avtar Singh)

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 8. Law of Contract (R.K. Bangia)

9. The Limitation Act (Shrinivas Gupta)

STATUES:
1. Code of Civil Procedure, 1908
2. Indian Contract Act, 1872
3. The Limitation Act, 1963
4. The Majority Act, 1875
5. The Patents Act, 1970

WEBSITES:

1. http://www.mondaq.com/india/
2. https://www.manupatrafast.in/
3. https://www.scconline.com/blog/

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 JURISDICTION

The plaintiffs humbly submit to the jurisdiction of the Hon’ble Court under S. 9 of the Code
of Civil Procedure. The plaintiff has approached the Hon’ble District and Sessions Court,
Delhi due to the breach of contract between the plaintiff and defendant, a civil suit of breach
of contract has been instituted as according to the notification from High Court of Delhi, the
pecuniary limit of hearing civil matters of District and Sessions Court has been increased
from 20 lakhs to 2 crores, hence the District and Sessions Court has jurisdiction to try the
matter.

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 STATEMENT OF FACTS
1. Celiac disease is a deadly disorder that occurs most frequently in Mizrahi Jew families.
Mr. Starke (Plaintiff - 1), Mr. Rogers (Plaintiff - 2), Ms. Denvers (Plaintiff - 3), Mr.
Banner (Plaintiff - 4), are Parents of the children affected with this Celiac disease. Celiac
foundation (Plaintiff - 5), and National Diseases Research Association (“NDRA”)
(Plaintiff - 7) are two organizations that support the research on this disease in order to
prevent more children to be affected with this disease. Dr. Barton (Plaintiff - 6) is the
plaintiff of a corporation. Dr. Stephen is a researcher/ physician who was initially
associated with the University of Delhi but shifted his research in Childcare Hospital in
2005.
2. Plaintiff - 1 approached Dr. Stephen, provided him with information about celiac and
requested his involvement in discovering the gene associated with celiac disease so that
tests could be performed to determine carriers and allow for prenatal testing for the
disease. Over seven years Plaintiff -1 provided Dr. Stephen with the tissues and blood
samples of his family and tissues of the brain and other organs of his son who was
affected with celiac disease and died due to the same. The other individual plaintiffs from
jurisdictions outside, and plaintiff - 6 supplied Dr. Stephen with blood, tissue and urine
samples beginning in the late 1980s. Plaintiffs 1, 4, 5 and 7 facilitated Dr. Stephen's
research on the celiac disease through monetary contributions.
3. There was another deadly genetic disease ‘Crohn’s Diseases’ that occur most frequently
in Mizrahi Jew descent for which the testing in the community was conducted.
4. Celiac Foundation launched a free testing programme at Mt. Everest Hospital. In
September 2010, unbeknownst to plaintiffs, Lilavati Children’s hospital applied for the
patent on the celiac disease gene and related application included the carrier and parental
testing. Dr. Stephen and his collaborators were listed as inventors. The plaintiffs came to
know about this patent in November 2010, when Childcare Hospital revealed their
intention to limit Celiac disease testing through a campaign of restrictive licensing of the
patent.
5. The defendants earned significant royalties from Celiac disease testing in excess of
$75,000 through the enforcement of their gene patent, and that Dr. Stephen has personally
profited by receiving a recent substantial federal grant to undertake research on the gene.
Now the plaintiffs have instituted a suit against Childcare Hospital along with the
research physician, and the research affiliate, which is now in front of this Hon’ble Court.

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 STATEMENT OF ISSUES

1. WHETHER THE SUIT INSTITUTED BY THE PLAINTIFFS IS

MAINTAINABLE OR NOT?

2. WHETHER THERE IS ANY VALID CONTRACT OR NOT?

3. WHETHER THE RESEARCH IS PATENTABLE OR NOT?

4. WHETHER THE PLAINTIFFS CAN CLAIM ROYALTIES AND

DAMAGES OR NOT?

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 SUMMARY ARGUMENTS

1. WHETHER THE SUIT INSTITUTED BY THE PLAINTIFFS IS

MAINTAINABLE OR NOT?

It is humbly submitted before the hon’ble court that the suit instituted by the plaintiffs is
maintainable as per the section 9 and section 15 of the Code of Civil Procedure, 1908,
which talks about power of courts to try any matter unless barred (Section 9) and suit
shall be instituted in the court of lowest grade having the competence to try the same
(Section 15) and the amendment in Delhi High Court Act, which talks about the extension
of the pecuniary limit of District courts to try the matters from 20 lakhs to 2 Crores.

2. WHETHER THERE IS ANY VALID CONTRACT OR NOT?

It is humbly submitted before the hon’ble court that there was a valid contract between
the plaintiffs and defendants as the essentials of agreement was fulfilled as per section
2(e) of Indian Contract Act and further all the essentials required for an agreement to be
enforceable by law were also fulfilled as given under section 10 of the Indian Contract
Act.

3. WHETHER THE RESEARCH IS PATENTABLE OR NOT?

It is humbly submitted before the hon’ble court that the research conducted by Dr.
Stephen is not patentable as it does not fulfill the criteria of being an invention but it leads
to a discovery that is not patentable under section 3(d) of the Patent Act. Further the
patent of the research is a clear breach of contract as while entering into the contract both
parties were of the opinion for conducting the research for the benefit of the public at
large and the aim of the research was to provide treatment on an affordable and accessible
basis.

4. WHETHER THE PLAINTIFFS CAN CLAIM ROYALTIES AND

DAMAGES OR NOT?

It is humbly submitted before the hon’ble court that the claims made by the plaintiffs for
royalties are valid as Dr. Stephen and other defendants have wrongfully gained the

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benefits in form of these royalties by patenting the research which was done with the help
of the tissues and blood samples of families of plaintiffs further the plaintiffs also gave
monetary contributions in order to get the best outcome out of the contract but the
defendants breached the contract and hence the claim of restoring the plaintiffs in their
original position is also valid.

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 ARGUMENTS ADVANCED

1. WHETHER THE SUIT INSTITUTED BY PLAINTIFFS IS

MAINTAINABLE OR NOT?

It is humbly submitted by the council on behalf of the plaintiffs in the District and Sessions
Court that the suit instituted by the plaintiffs against the Defendant is maintainable as
discussed below:

1.1. WHETHER THE DISTRICT AND SESSIONS COURT HAS THE

JURISDICTION TO TRY THE MATTER OR NOT?

It is humbly submitted that in the present case the court under S. 9 of the Code
of Civil Procedure 1 , 1908 which says - Courts to try all civil suits unless
barred. The Court has the jurisdiction to try matters presented before it.

In PMA Metropolitan v. M.M. Marthoma,2 the Supreme Court stated:

“The expensive nature of the Section is demonstrated by the use of phraseology
both positive and negative. The earlier part opens the door widely and latter
debars entry to only those which are expressly or impliedly barred. The two
explanations, one existing from inception and later added in 1976, bring out
clearly the legislative intention of extending the operation of the S. to religious
matters where the right to property or office is involved irrespective of whether
any fee is attached to the office or not. The language used is simple but explicit
and clear. It is structured on the basis of a civilized jurisprudence that the
absence of machinery for enforcement of right renders it nugatory. The heading
which is normally a key to the Section brings out unequivocally that all civil
suits are cognizable unless bared. What is meant by it is explained further by
1
Courts to try all civil suits unless barred— The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or
impliedly barred.
[Explanation I].—A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.
[Explanation II]. For the purposes of this Section, it is immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such office is attached to a particular place.]
2
1995 AIR 2001

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 widening the ambit of the Section by use of the word ‘shall’ and the expression
‘all suits of civil nature unless expressly or impliedly barred’.

1.2. WHETHER THE SUIT WITHIN THE PECUNIARY JURISDICTION OF

THE COURT OR NOT?

It is humbly submitted that in the present case the court has pecuniary
jurisdiction as given under S. 16 of Code of Civil Procedure3, 1908 which talks
about the subject matter and pecuniary jurisdiction of Courts. As per the
notification of Delhi High court, The Delhi High Court Amendment Act, 2015
provides for enhancement of pecuniary jurisdiction of the District Courts of
Delhi from Rs. 20 lakhs to Rs. 2 crores. In the present case, the claims of
plaintiffs are less than 2 crore Rupees which is under the jurisdiction of the
Hon’ble court.
The Full Bench decision of this Court in Subhashini Malik vs. S.K. Gandhi4
held that pecuniary limits of jurisdiction prescribed for the administration of
justice and section 15 of the CPC do not divest the Courts of a higher pecuniary
jurisdiction from entertaining the suits below their minimum pecuniary value.
As per section 15 of the Code of Civil Procedure5, the matter should be tried in
the lowest grade of a court having the competence to try the same. Section 15 of
the Code of Civil Procedure 1908 provides for the institution of the suit in the
Court of the lowest grade, competent to try it. The object for providing such a
lowest forum is that the higher Courts are not overburdened. The District Judge
and all Judges subordinate to him have jurisdiction to try all suits, yet, a suit has
3
Suits to be instituted where subject-matter situate— Subject to the pecuniary or other limitations prescribed by
any law, suits —
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on
behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be
instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court
within the local limits of whose jurisdiction the defendant actually and voluntarily resider, or carries on
business, or personally works for gain.
Explanation — In this section "property" means property situate in India.
4
(2016) 233 DLT 83
5
Court in which suits to be instituted —
Every suit shall be instituted in the Court of the lowest grade competent to try it.

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 to be instituted in the court competent to try it. (Vide: Mt. Haidari Begum V.
Jawad Ali6; and Ratan Sen @ Ratan Lal V. Suraj Bhan & Ors.7).

2. WHETHER THERE IS ANY VALID CONTRACT OR NOT?

It is humbly submitted before the Hon’ble court that there was a valid contract between
the plaintiffs and defendants as it is discussed in given sub-issues.

2.1. WHETHER UNDERSTANDING AMOUNT TO AGREEMENT OR NOT?

It is humbly submitted that the understanding which was developed among the
plaintiffs and Dr. Stephen amounts to a valid agreement as it is given under S. 9 of
Indian Contract Act 8 that the promise made other than words are considered as
implied promises. The agreement, as defined under S. 2(e)9of the Indian Contract
Act, 1872, says every set of promises forming the consideration for each other is an
agreement.

2.2. WHETHER THE ESSENTIALS OF A VALID CONTRACT IS FULFILLED

OR NOT?
It is humbly submitted that there are five essentials 10 as per S. 10 of the Indian
Contract Act11, 1872 –
2.2.1. Parties Competent
In the present case, the parties, both plaintiffs and defendants are above 18 or
majors as per S. 3 (1) of The Majority Act 12 , 1875 as they all are either
professionals or parents of the children suffering from Celiac disease.

6
AIR 1935 All 55
7
AIR 1944 All 1
8
In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so
far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.
9
Every promise and every set of promises, forming the consideration for each other, is an agreement.
10
Tarsem Singh v. Sukhminder Singh, AIR 1998, SC 1400
11
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 Bangladesh, and not hereby expressly repealed, by
which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the
registration of documents.
12
Age of majority of persons domiciled in India. —

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 2.2.2. Free Consent
In the present case, plaintiff - 1 approached Dr. Stephen for conducting research.
The doctor conducted the research for the next seven years hence it is assumed
that there was an implied consent of Dr. Stephen. It was stated in Steel
Authority of India Ltd. V. Salem Stainless Steel Suppliers 13 that in order to
constitute a contract, both parties must consent to the agreement.

2.2.3. Lawful Consideration

The consideration in the present case from the plaintiffs was the monetary
contribution and from Dr. Stephen’s side, it was the promise of conducting
research and retaining it in the public domain as it was being conducted for the
benefit of the public at large. The consideration should be something which not
only the parties regard but the law can also regard as having some value. It must
be real and not illusionary, whether adequate or not, as stated in the case of
Chidambara V. P. S. Renga14.
2.2.4. Lawful object
In the present case, the object of approaching Dr. Stephen was to identify the
carrier of Celiac Disease and to provide the people with a with treatment in
affordable and accessible for the same and because of the same the research was
required to be in Public Domain.
2.2.5. Not expressly declared to be void
In the present matter, there is nothing which is or can be declared as void hence
this is a valid contract under S. 10. Any offer and acceptance can be spelled out
from the conduct of the parties which covers not only their acts but also
omissions, stated in the case of Coffee Board V. CCT15.

3. WHETHER THE RESEARCH REGISTERED AS PATENT IS VALID

OR NOT?

(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years
and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he
shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.
13
AIR1994SC1414
14
1966 AIR 193, 1966 SCR (1) 168
15
AIR1988SC1487

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 It is humbly submitted before the Hon’ble District and Sessions Court that the patent
registered for the research is not a valid patent as discussed below:
3.1. WHETHER THE RESEARCH IS AN INVENTION OR NOT?
It is humbly submitted before the Hon’ble court that the research does not fulfill the
criteria of being declared as an Invention. S. 2(1) (j) of the Patent Act, 2005, defines
the "invention" as a new product or a process involving an inventive step and capable
of industrial application.
Under the Act "New invention" is defined under S. 2(1) (l) of the Patents Act
"New invention" means any invention or technology which has not been anticipated
by publication in any document or used in the country or elsewhere in the world
before the date of filing of patent application with complete specification, i.e., the
subject matter has not fallen in public domain or that it does not form part of the state
of the art.
Thus, according to this definition of the new invention, Act talks of absolute
novelty, i.e. the invention should have neither been used anywhere in the world nor
published in any part of the world. However, the later Sections of the act for the
purpose of anticipation and opposition proceedings deal with the relative novelty i.e.
not used in India and not published in any part of the world. Further, the entire Act
refers to the word invention and no new invention. Therefore, for all purposes,
relative novelty is the criterion.16

3.2. WHETHER THERE IS ANY BREACH OF CONTRACT DUE TO

THE REGISTRATION OF PATENT OR NOT?

It is humbly submitted that Dr. Stephen has breached the contract by registering the
research as a patent as there was an implied promise that the research will remain in
public domain in order to provide the people with with treatment in affordable and
accessible for Celiac decease. Further Dr. has used the samples which were provided
for the testing for only Celiac disease, for identifying and testing the other disease
named ‘Crohn’s Diseases’.

16
http://www.mondaq.com/india/x/54494/Patent/Patent+Law+in+India

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4. WHETHER THE PLAINTIFFS CAN CLAIM ROYALTIES AND
DAMAGES OR NOT?

It is humbly submitted before the Hon’ble court that the plaintiffs can claim both royalties
as well as the damages as discussed below:

4.1. WHETHER THE CLAIM OF ROYALTIES BY PLAINTIFFS IS VALID OR

NOT?

It is humbly submitted that the claim which has been made by the plaintiffs as the
research was conducted with the help of the samples provided by the plaintiffs and
Dr. Stephen has taken wrongful gain from the same. As per the definition of
wrongful gain under S. 23 of Indian Penal Code17 –
"Wrongful gain” is gain by unlawful means of property which the person gaining is
not legally entitled.
Dr. Stephen has made wrongful gains from the tissues and samples provided by the
Plaintiffs by taking the patent of the research which was conducted with the help of
samples provided by the plaintiffs.

4.2. WHETHER THE PLAINTIFFS ARE ENTITLED TO CLAIM DAMAGES

OR NOT?

It is humbly submitted by the council on behalf of the plaintiffs that the plaintiffs are
entitled to damages as there has been a deliberate and outrageous disregard of
plaintiffs' rights.
In the case of Kodungallur Film Society vs. Union of India18, the Supreme Court
of India referred the quote of The Law Commission of Australia as they have also
concluded - after a fairly evenly balanced consultation-that damages should be

17
“Wrongful gain”–“Wrongful gain” is gain by unlawful means of property to which the person gaining is not
legally entitled.
“Wrongful loss”–“Wrongful loss” is the loss by unlawful means of property to which the person losing it is
legally entitled.
Gaining wrongfully, Losing wrongfully–A person is said to gain wrongfully when such person retains
wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such
person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
18
2018 (6) Bom CR 270

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 retained where the defendant had deliberately and outrageously disregarded the
plaintiff's rights.
Dr. Stephen breached the contract which was between him and the plaintiffs by
registering the research as patent and charged a royalty fee for giving access to the
treatment, further Dr. Stephen along with other defendants used restrictive licensing
in order to gain profit out of the research which was conducted with the purpose of
retaining it in public domain. He further used the samples given for the testing of
Celiac Disease in the testing of Crohn’s Diseases. P Radhakrishna Murthy v. NBCC
Ltd.19; J.G. Engineers (P) Ltd., v. Union of India20 the party committing the breach
is liable to compensate by way of damages. To establish a breach, it has to be
adjudicated upon and be proved, and not merely decided by the parties. Oil and
Natural Gas Corporation Ltd v. Saw Pipes Ltd21 In the absence of such a proof or
honest estimation by the claimant, the court shall make an award for damages which
is below the stipulated liquidated damages, by taking into consideration a reasonable
assessment of the consequences of the breach of contract.

19
(2013) 3 SCC 747
20
(2011) 5 SCC 758
21
AIR 2003 SC 2629

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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the council on the half of plaintiff humbly pray before this Hon’ble court, that it may be
pleased to adjudged and declare that:

 Permanent injunction on the patent registered on the research making the

research available in the public domain.

 Granting the royalties as restitution for the wrongful gain received by Dr.
Stephen.

 Granting the damages as to the monetary contribution made by the plaintiffs

for research.

Or Pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this act of this Hon’ble court, the plaintiff shall as duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________

_______________________

(COUNCIL ON BEHALF OF THE PLAINTIFF)

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