Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

TEAM CODE: 14

IN THE HON’ABLE HIGH COURT OF JHARKHAND, INDIA

(Under Section 96 of Civil Procedure Court 1908 Read with Section 100 of Civil
Procedure Code 1908)
Civil Dispute

IN THE MATTER BETWEEN

ANISH GIRI ….PLAINTIFF
VS.
DEEP BLUE PVT. LTD. ….RESPONDENT

MEMORANDUM ON BEHALF OF PLANTIFF

[The Memorandum has been prepared for Plaintiff: ANISH GIRI upon submission
before the honourable bench.]

Memorial on behalf of Plaintiff 1|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

Table of Content

List of Abbreviations......................................................................................................3
Index of Authorities........................................................................................................4
Cases...........................................................................................................................4
Books..........................................................................................................................4
Statues Referred..........................................................................................................4
STATEMENT OF JURISDICTION..............................................................................5
STATEMENT OF FACT...............................................................................................6
STATEMENT OF ISSUES............................................................................................8
SUMMARY OF ARGUMENTS....................................................................................9
ISSUE ONE................................................................................................................9
ISSUE TWO...............................................................................................................9
ARGUMENTS ADVANCED......................................................................................10
ISSUE ONE..............................................................................................................10
1. Whether the Contract between Anish Giri and Deep Blue Pvt. Ltd. is a Valid
Contract?...............................................................................................................10
1.1 It is a valid contract because a valid offer was made to form a contract........10
1.2 It is a valid contract because the acceptance of the contract was made and
conveyed to the party............................................................................................10
1.3 It is a valid contract because the valid consideration was made by the
claimant................................................................................................................11
ISSUE TWO.............................................................................................................12
2.1 Company is liable to pay the full refund because they didn’t perform their
obligation..............................................................................................................12
2.2 Company is liable to pay compensation due to breach of contract................12
2.3 The Company Cannot Claim Prtotection Under The Exemption Clause 5.3. 13
Prayer............................................................................................................................15

Memorial on behalf of Plaintiff 2|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

List of Abbreviations

para : Paragraph
DLR : Dominian Law
Reports
KB : King’s Bench
Division
Pvt. : Private
Ltd. : Limited
Hon’ble : Honourable
v. : versus
₹/Rs. : Rupees

1.

Memorial on behalf of Plaintiff 3|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

Index of Authorities

Cases

2. Eliason v Henshaw, (1819) 4 Wheaton 225………………………………11

3. Chau v Van Pelt, (1977) 74 DLR (3d) 244 (BCSC)……………….……….13
4. Curtis v Chemical Cleaning & Dyeing Co, (1951) 1 KB 805……………13
5. L'Estrange v F Graucob Ltd, (1934) 2 KB 394……………………………13

Books
1. AVATAR SINGH, LAW OF CONTRACT & SPECIFIC RELIEF, (12th Ed,
Eastern Book Company, 2017)
2. POLLOCK & MULLA, THE INDIAN CONTRACT ACT, (R. Yashod Vardhan,
15th Ed, LexisNexis Butterworth Wadhwa, 2018)
3. H. K. SAHARAY DR., TEXTBOOK ON LAW OF CONTRACT, (2 nd Ed,
Universal Law House, 2016)
4. R. K. BANGIA, DR., INDIAN CONTRACT ACT, (14th Ed, Allahabad Law
Agency, 2015

Statues Referred

1. The Code of Civil Procedure, 1908

2. The Indian Contract Act, 1872

Memorial on behalf of Plaintiff 4|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

STATEMENT OF JURISDICTION

The Plaintiff in this case filed a appeal with the Hon’ble High Court of Jharkhand
under Section 96 of the Civil Procedure Code of 1908 read with section 100 of Civil
Procedure Code here approached the Hon’ble high court of Jharkhand under section
96 of Civil Procedure Court 1908 read with section 100 of Civil Procedure Code
1908.

The Facts, Issues and Argument before the court are presented in this memorandum.

Section 96 of Civil Procedure Code1908

a) Save were otherwise expressly provided in the body of this code or any other law
for the time being in force an appeal shall lie from a vary decree passed by any court
authorised to hear appeals from the decisions of such court.

b) An appeal may lie from an original decree passed Ex-parte.

Memorial on behalf of Plaintiff 5|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

STATEMENT OF FACT

PART-I
1. Deep Blue Pvt. Ltd. is a Mumbai based company which has emerged as the
leading company in manufacturing chess engines with neural networks which
assists top chess players of the world with their game preparation. The company
has developed and brought into the market its latest engine ‘Alpha Zero’ in 17th
august, 2021. The company was known for its reliability and attending to its
customer needs.

PART- II

2. Deep Blue Pvt. Ltd. started selling ‘Alpha Zero’ from its online website store
“www.deepblue.net/store” at a cost of ₹ 2,50,000. Once an order would be placed,
the customer would receive the chess engine on a hard drive delivered to his home
with a unique activation key, which would have to be put in the payment portal in
the website and once the payment was made, the activation key would be activated
and the user would be able to use the chess engine.

PART- III

3. Anish Giri placed the order for ‘Alpha Zero’ and filled up the delivery form on the
website, with his address, phone number and other related information on 14th
December, 2021. The ‘Alpha Zero’ hard drive was delivered to Anish on the 17th
December, 2021 and on the same day he made the payment of ₹ 2,50,000 by using
the unique activation key on the payment portal in the website. The activation key
did not activated even after the payment. Anish contacted Deep Blue Pvt. Ltd. And
was assured that there may have been a technical glitch and the issue would be
resolved. On 19th December, 2021, Anish was informed that no payment from his
activation key or bank account has been received by the company and was
requested to make the payment of ₹ 2,50,000 again to activate the hard drive
engine. Anish refused and demanded either his money to be refunded or the

Memorial on behalf of Plaintiff 6|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

activation key to be activated. Deep Blue refused the same and stated that any
refund was not permitted according to their terms and conditions which were in a
hyperlink stating ‘TERMS & CONDITIONS’ above the ‘PLACE ORDER’ button
on the DEEP BLUE website store. Deep Blue Pvt. Ltd. was informed by their IT
Team on 23rd of December, 2021 that there might have been a security breach in
their website payment portal by altering the account details from an anonymous
“Mr. Dodgy Carlsen” and approximate ₹ 30,00,000 might have misdirected.
4. Anish Giri filed a suit against deep blue Pvt. Ltd. on 21st December, 2021 in the
Honorable Civil court of Jharkhand which ruled in favour of Deep Blue Pvt. ltd.
and ordered Anish to pay ₹ 2,50,000 for activation of the ‘alpha zero’ engine.
Aggrieved by this, Anish Giri filed appeal before the Honorable High Court of
Jharkhand claiming refund of the ₹2.50,000 or the activation of his ‘Alpha Zero’
engine.

Memorial on behalf of Plaintiff 7|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

STATEMENT OF ISSUES

ISSUE 1:- Whether the contract between Anish Giri and Deep blue Pvt. Ltd. is a valid
contract?

ISSUE 2:- (A) Whether Deep Blue Pvt. Ltd. is liable to refund ₹ 250000 to Anish
Giri?

(B) Whether Anish Giri has to make another payment of Rs 250000 to activate the
ALPHA ZERO engine?

Memorial on behalf of Plaintiff 8|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

SUMMARY OF ARGUMENTS

ISSUE ONE
THERE IS VALID CONTRACT BETWEEN ANISH AND DEEP BLUE PVT.
LTD.

There is a valid contract between Anish Giri and Deep Blue Pvt. Ltd. Firstly, the
display of Alpha Zero on the company’s website was an invitation to offer. Secondly,
Anish Giri by filling up all the details on the company’s site offered company to
purchase ‘Alpha Zero’ assuming that he agrees with all the terms and conditions of the
company. Thirdly, the company accepted the offer made by Anish Giri by delivering
the hard drive. Anish Giri has to pay ₹ 2,50,000 as a consideration to Deep Blue Pvt.
Ltd. has to activate the key to enable Alpha Zero for its usage. All the essentials of a
valid contract are fulfilled. Hence the contract between Anish Giri and Deep Blue Pvt.
Ltd is valid.

ISSUE TWO
(A)DEEP BLUE PVT. LTD. IS LIABLE TO REFUND RS. 2,50,000 TO ANISH
GIRI

There was a failure in the discharge of obligation of the contract by Deep Blue Pvt.
Ltd. as they failed to activate the key even after the payment was done by Anish Giri.
Anish Giri performed his part of obligation but Deep Blue Pvt. Ltd. failed to fulfill
their obligation. Anish Giri even received the receipt of the payment. Further, the
security breach was from the company’s side not from Anish Giri’s side. For the sake
of arguments, the exemptions clauses could not be wide enough to include even
company’s own responsibilities. Deep Blue Pvt. Ltd. did not activate the key even
after receiving consideration from Anish Giri constitute breach of contract by Deep
Blue Pvt. Ltd. There was a fundamental breach of contract by Deep Blue Pvt. Ltd. in
not activating the key as per the terms of the contract. The breach is so fundamental
that it goes to the root of the contract and deprives Anish Giri of the whole of the
contract’s benefits. For breach of contract, the party suffering the losses has to be
compensated by the other party. Hence, Deep blue Pvt. Ltd is liable to refund ₹
2,50,000 to Anish Giri.
(B) ANISH GIRI DO NOT HAVE TO MAKE ANOTHER PAYMENT OF Rs.
2,50, 000 TO ACTIVATE THE ALPHA ZERO ENGINE.

Anish Giri performed his part of obligation of the contract and therefore not liable to
make another payment to activate the Alpha Zero engine. Deep Blue constituted
breach of contract is alone liable to compensate Anish Giri.

Memorial on behalf of Plaintiff 9|Page

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

ARGUMENTS ADVANCED

ISSUE ONE
Whether the Contract between Anish Giri and Deep Blue Pvt. Ltd. is a Valid
Contract
For a contract to be legally valid, there should three essentials – offer, acceptance and
consideration.
1.1 It is a valid contract because a valid offer was made to form a contract.
1.1.1 Valid offer is made “When one person signifies to another his willingness to do
or to abstain from doing anything, with a view to obtaining the assent of that other to
such act or abstinence, he is said to make a proposal1” also the criterion of a valid
offer that had been clarified in different commentaries where they clarified that a valid
offer must primarily pass a 3 tier test; Firstly, the proposal must “indicate the intention
of the offeror to be bound in case of acceptance”

1.1.2 There was an invitation to offer on the company website, they have specifically
mentioned the terms and condition in which they have mentioned about their products
and prices2. This information was directed towards everyone whoever have interest in
the company’s product. And lastly the proposal was mentioned on the company’s
website with specific price and quantity.

1.2 It is a valid contract because the acceptance of the contract was made and
conveyed to the party.
1.2.1 It is a valid contract because a valid acceptance was made to the offer from
Plaintiff, “When the person to whom the proposal is made signifies his assent thereto,
the proposal is said to be accepted. A proposal, when accepted, becomes a promise3.

1.2.2 After reading and understanding the offer that was presented by the company on
their website, Anish placed the order for ‘Alpha Zero’ and filled up the delivery form
on the website, with his address, phone number and other related information. The
‘Alpha Zero’ hard drive was delivered to Anish on the 17th December, 2021 and on

1
Section 2(a), The Indian Contract Act, 1872
2
Moot Proposition, para 2
3
Section 2(b), The Indian Contract Act, 1872

Memorial on behalf of Plaintiff 10 | P a g e

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

the same day he made the payment of ₹ 2,50,000 by using the unique activation key
on the payment portal in the website4.

1.2.3 All of the above instances shows that the Plaintiff has understood and accepted
the offer and also paid the full consideration at the company’s website for the desired
product.

1.2.4 Acceptance has to be made in the manner prescribed or indicated by the offeror.
An acceptance given in any other manner may not be effective, particularly where the
offeror clearly insists that the acceptance shall be made in the prescribed manner 5.
Similarly the case in hand, Anish Giri accepted the offeror’s conditions that was
primarily to filled up the delivery form on the website, with his address, phone
number and other related information and secondly that when the ‘Alpha Zero’ hard
drive was delivered to Anish on the 17th December, 2021 he have to make the
payment within a reasonable time period which he did on the same day and made the
payment of ₹2,50,000 by using the unique activation key on the payment portal in the
website.

Therefore the valid acceptance was made by the Petitioner to the offer made by the
company.

1.3 It is a valid contract because the valid consideration was made by the
plaintiff
1.3.1 To form a valid contract consideration has to be made by the parties. When, at
the desire of the promisor, the promisee or any other person has done or abstained
from doing, or does or abstains from doing, or promises to do or to abstain from
doing, something, such act or abstinence or promise is called a consideration for the
promise6.

1.3.2 ‘Alpha Zero’ hard drive was delivered to Anish on 17th December, 2021 and on
the same day he made the payment of ₹ 2,50,000 by using the unique activation key
on the payment portal in the website7. This was the consideration company asked from

4
Moot Proposition, para 3
5
Eliason v Henshaw, (1819) 4 Wheaton 225
6
Section 2(d), The Indian Contract Act, 1872
7
Moot Proposition, para 3

Memorial on behalf of Plaintiff 11 | P a g e

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

the people for their product which the Plaintiff, herein paid in full amount. Therefore
it was a valid contract.

ISSUE TWO
(A)Whether Deep Blue Pvt. Ltd. Is Liable to Refund ₹ 2,50,000 To Anish Giri?

Yes, the deep blue company is liable to refund the money to the Plaintiff because from
plaintiff side every contractual obligation was complete.

2.1 Company is liable to pay the full refund because they didn’t perform their
obligation.
2.1.1 If it appears from the nature of the case that it was the intention of the parties to
any contract that any promise contained in it should be performed by the promisor
himself, such promise must be performed by the promisor. In other cases, the
promisor or his representatives may employ a competent person to perform it8.

2.1.2 Deep Blue Pvt. Ltd. promised on their part to enable the activation key after the
user places the order then the customer receives the chess engine on a hard drive
delivered to his home then he would be oblidged to put the unique activation key in
the payment and pay the company i.e. for their chess engine ‘Alpha Zero’ an amount
of ₹ 2,50,000 as to require the company be completing its reciprocal promise.

2.1.3 Here petitioner has completed its all obligation and subsequent promises but in
return the Deep Blue Pvt. Ltd. was unable to successfully complete its part of the
promise therefore the company is liable to pay a full refund to the petitioner.

2.2 Company is liable to pay compensation due to breach of contract

2.2.1 According to law “Where the order in which reciprocal promises are to be
performed is expressly fixed by the contract, they shall be performed in that order; and
where the order is not expressly fixed by the contract, they shall be performed in that
order which the nature of the transaction requires9.

2.2.2 According to the facts of the case the original chronology should have been that
once the payment was made the activation key would be activated and the user would
be able to use the chess engine irrespectively 10(para 2). But Rather what happened was

8
Section 40, The Indian Contract Act, 1872
9
Section 52, The Indian Conttract Act, 1872
10
Moot Proposition, para 2

Memorial on behalf of Plaintiff 12 | P a g e

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

after my client Anish Giri received the Hard drive containing the chess engine he on
the same day made the payment of ₹ 2,50,000 by using the unique activation key on
the payment portal in the website. However the activation key had not been activated
even after the payment was completed11(moot para 4) therefore practically Deep Blue
Pvt. Ltd. resented to complete its reciprocal promise.

2.2.3 For claiming the compensation under the breach of contract from a party
according to the “When a contract has been broken, the party who suffers by such
breach is entitled to receive, from the party who has broken the contract,
compensation for any loss or damage caused to him thereby, which naturally arose in
the usual course of things from such breach, or which the parties knew, when they
made the contract, to be likely to result from the breach of it12.”

2.2.4 As we stated in the para 2.2.2 Deep Blue Pvt. Ltd. made a breach of contract
giving my client Anish Giri a loss of ₹ 2,50,000. Deep Blue Pvt. Ltd. did not activate
the key even after receiving consideration from Anish Giri constitute breach of
contract by Deep Blue Pvt. Ltd. There was a fundamental breach of contract by Deep
Blue Pvt. Ltd. in not activating the key as per the terms and conditions of the contract.
The breach is so fundamental that it goes to the root of the contract and deprives
Anish Giri of the whole of the contract’s benefits. If there is breach of contract, the
party breaching the contract should compensate the aggrieved party. Therefore the
company is liable for compensate Anish Giri because his part of the contract had been
successfully completed and the respondent failed to do the same. Hence, it is humbly
submitted before this honourable court that Deep Blue should activate the key or
refund the Rs. 2,50,000 to the plaintiff.

2.3 The Company Cannot Claim Prtotection Under The Exemption Clause
5.3
2.3.1 The company’s exemption clause 5.3 says that there is no refund for any
purchase under any circumstances13. A party to a contract cannot rely on an exclusion
clause to avoid liability14. The company failed to draw the attention to the width of the

11
Moot Proposition, para 4
12
Section 73, The Indian Contract Act, 1872
13
Moot Proposition, para 4
14
Chau v Van Pelt, (1977) 74 DLR (3d) 244 (BCSC)

Memorial on behalf of Plaintiff 13 | P a g e

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

exemption clause15. For the sake of arguments, the exemptions clauses could not be
wide enough to include even company’s own responsibilities. The affected party can
be protected by the doctrine of fundamental breach or by finding that the terms are
unreasonable16.

2.3.3 Here there was a security breach on the companies payment portal 17(moot prop
para 6) so the plaintiff should not be held liable. The security breach was due to the
mistake of the company and this clause 5.3 protects them which is very wrong and
unreasonable.

(B)Whether Anish Giri has to make another payment of ₹ 2 ,50,000 to activate

the Alpha Zero Engine

3.1 Plaintiff Anish Giri is not liable or obligated to make another payment of ₹
2,50,000 to activate the Alpha Zero engine to the respondent i.e., Deep Blue Pvt. Ltd.
because this part of the contract has already been completed by Plaintiff, Anish Giri
as stated in the para 1.3.2. Further, for the sake of arguments, the security breach was
not from plaintiff’s side. Therefore, it is humbly submitted before this honourable
court that if one party has performed its every obligation, and that innocent party
suffers any losses due the other party’s security breach, the other party should
compensate the innocent party according to the principle of unjust enrichment.
According to this principle, no one should enrich themselves at the expense of
another. Here in this, security breach was of company’s fault. Anish Giri made the
payment and company did not activate the key and instead ask Anish Giri to make
payment again for the activation of the key. When there is no fault from Anish Giri’s
side, he should be held liable to make another payment even though had already done
his contractual obligation. Hence, it is humbly submitted before this honourable court
that Anish Giri should not be held liable to make another payment.

15
Curtis v Chemical Cleaning & Dyeing Co, (1951) 1 KB 805
16
L'Estrange v F Graucob Ltd, (1934) 2 KB 394
17
Moot Proposition, para 6

Memorial on behalf of Plaintiff 14 | P a g e

 Vidhitva 2022: Litigiosus Fresher’s Moot Court Competition

Prayer
WHERFORE, in the light of the issue raised, arguments and authorities cited may this
hon’ble be pleased to:

1. Declare, that the contract between Anish Giri and Deep Blue Pvt. Ltd. is a valid Contract.

2. Held that Deep Blue Pvt. Ltd. is liable to refund ₹ 2,50,000 to the plaintiff or give
plaintiff the access of Alpha Zero engine.
3. Held that Anish Giri is not liable to make another payment of Rs. 2,50,000 to
activate the Alpha Zero engine.

And/Or

-Pass any other order, which it deems fit in the interests of justice, Equity and Good
Conscience-

ALL OF WHICH IS MOST HUMBLY AND RESPECTIVELY SUBMITTED ON

BEHALF OF THE PLAINTIFF.

Sd/-

……………………

(Counsel For the “Plaintiff”)

Place: Ranchi, Jharkhand

Dated: March 06, 2022

Memorial on behalf of Plaintiff 15 | P a g e