SHREE HASHUJI ADVANI MEMORIAL 3rd NATIONAL MOOT COURT & JUDGEMENT WRITING

COMPETITION 2020

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SHREE HASHUJI ADVANI MEMORIAL 3rd NATIONAL MOOT COURT & JUDGEMENT WRITING COMPETION
2020
TH TH
10 – 12 SEPT EMBER 2020

BEFORE THE HON’BLE HIGH COURT OF VIJAYPUR

GUNJAN (DEEMED) UNIVERSITY (PETITIONER)

V.

THE STATE OF VIJAYPUR (RESPONDENT)

MEMORIAL FOR THE RESPONDENT

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[MEMORIAL FOR PETITIONER]
 SHREE HASHUJI ADVANI MEMORIAL 3rd NATIONAL MOOT COURT & JUDGEMENT WRITING
COMPETITION 2020

TABLE OF CONTENTS

INDEX OF AUTHORITIES
 CASES
 BOOKS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
THE PRAYER

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INDEX OF AUTHORITIES

CASES

Balfour v. Balfour (1919) 2 KB 571 at pp. 578-79 8

BOOKS

Indian Contract Act, 1872,bare act, 2018

The Specific Relief Act, 1963, bare act, 2018

Contract and Specific Relief, Avtar Singh, Twelfth edition, 2017

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STATEMENT OF JURISDICTION

The Respondent has approached this honourable high court of Vijaypur under Article 226 of
the Constitution of India to file a writ petition in the nature of mandamus under article 226 of
Constitution of India against The State government of Vijaypur seeking directions from the
court to revoke cancellation orders of entitlement certificate by the state government of
Vijaypur and direct the Government to come up with mechanism under the newly enacted
GST laws to accommodate such a situation.

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STATEMENT OF FACTS

BACKGROUND

The facts of the case involves Gunjan (Deemed) University, M/s Chandra Construction Co.
Ltd (Project Company) and the State of Vijaypur. Where the state has floated a tender with an
incentive scheme in order to encourage the Universities in backward regions to apply for the
conversion in to the Green University. The Gunjan University is the first applicant of the
same. The project work of constructing and operating a green laboratory and a research
centre was given to the M/s Chandra Construction Co. Ltd. Furthermore due to the enactment
of CGST Act and VGST Act, 2017 which repealed the previous indirect taxes which led to
disentitlement of VAT refund granted under the incentive scheme. Due to this the State of
Vijaypur mandated new policy guidelines for the project work having completion level of the
75% and below. Accordingly, the other benefits were withdrawn by way of cancellation of
Entitlement certificates stating the reasons that the construction was detrimental to public
interest. By that time the project company of Gunjan University completed 70% of its work
and applied to university for release of payment but the company failed to do so on account
of the situation faced.

GUNJAN (DEEMED) UNIVERSITY

Due to the cancellation of the Entitlement Certificate the University filed a writ petition in the
Hon’ble High Court of Vijaypur seeking direction from court to revoke such order and direct
the government to come up with a better mechanism under GST laws to accommodate such
situation.

M/S CHANDRA CONSTRUCTION CO. LTD.

The project company asked for the release of the payment after completion of 70% of the
construction work but the University failed to do the payment hence, project company filed a
suit and claimed liquidated damages of an amount of Rs. 30,00,00,000/- before Hon’ble High
court of Vijaypur against the University on inter alia several grounds including breach and
frustration of Contract.

Since the Writ petition and the suit involved similar grounds of challenge and such similar
issues were being faced by other entities as well in the state hence it was decided that a
special bench will hear them both together.

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STATEMENT OF ISSUES

1. Whether the scheme of Green University and tender acceptance binds the government
by contract?
2. Whether the change of scheme by Government of Vijaypur makes them liable for
breach of contract?
3. Whether the previous contract is frustrated by the retrospective application of indirect
tax laws?
4. Whether the gunjan University is liable to compensate the M/s Chandra construction
co. ltd. (project company) for the breach and frustration of contract between them or
not?

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SUMMARY OF ARGUMENTS

1. Whether the Scheme of Green University and tender acceptance binds the
Government by contract?
It is humbly submitted before the Hon’ble bench that the Scheme of Gunjan University
and tender acceptance does not binds the Government by Contract.

2. Whether the change of Scheme by Government of Vijaypur makes them liable

for breach of contract?
It is humbly submitted before the learned bench that the change of Scheme by the
Government of Vijaypur does not make them liable for the breach of contract.

3. Whether the previous contract between Gunjan University and State government
of Vijaypur is frustrated by the retrospective application of indirect tax laws?
It is being contended that the previous contract has not been frustrated by the
retrospective application of indirect tax laws that is VAT.

3.1. Whether the Gunjan University is liable to compensate the M/s Chandra
Construction and Solutions Co. Ltd. (project company)?
It is humbly submitted before the Hon’ble bench that the project company is liable
for the breach of contract and hence the Gunjan University is not liable to
compensate them.

4. Whether the gunjan University is liable to compensate the M/s Chandra

construction co. ltd. (project company) for the breach and frustration of contract
between them or not?
It is submitted before the Hon’ble bench that the M/s Chandra construction Co. Ltd.
(Project Company) is not concerned with the State of Vijaypur as the agreement of
construction was given by the Gunjan (Deemed) University.

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ARGUMENTS ADVANCED

1. WHETHER THE SCHEME OF GREEN UNIVERSITY AND TENDER

ACCEPTANCE BINDS THE GOVERNMENT BY CONTRACT?

It is submitted before the Hon’ble bench that the scheme of Gunjan (Deemed)
University and tender acceptance does not binds the Government by contract
because firstly, the state government has floated a tender which is here an
invitation to a offer hence the gunjan university hereby becomes the offerer when
it sends an application the communication of offer was made and as soon the state
government accepted the application the communication was completed under
section 4 of Indian Contract Act 1872. But the scheme did not hold any
contractual obligation over the state government, it has a social obligation as in
case of Balfour v. Balfour (1919) 2 KB 571 at pp. 578-79 In this case the court
animously held that there was no enforceable agreement, they are not contracts,
and they are not contracts because the parties did not intend that they should be
attended by legal consequences. They are not sued upon, not because the parties
are reluctant to enforce their legal rights when the agreement is broken, but
because the parties, in the inception of the arrangement, never intended that they
should be sued upon. Agreements such as these are outside the realm of contracts
altogether. These arrangements do not result in contracts at all, even though there
may be what would constitute consideration for the agreement. They are not
contracts because parties did not intend that they shall be intended by legal
consequences.
Here in our present case the scheme was introduced in favour of benefitting
obligation and for the social welfare of the society, the operation and construction
of green laboratory building and research centre was a initiative of government
towards sustainable development and it will bring advancement in the field of
research and increase the level of technical education in backward regions of state
of vijaypur. Hence it was completely under the social obligation and for public
interest. Therefore the government is not the defaulting party here.

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2. WHETHER THE CHANGE OF SCHEME BY GOVERNMENT OF VIJAYPUR

MAKES THEM LIABLE FOR BREACH OF CONTRACT?

It is submitted before the Hon’ble bench that the change of scheme does not
makes Government of Vijaypur liable for breach of contract. As there was no
contract between the Gunjan (Deemed) University and the State of Vijaypur, it
was a social scheme and introduced for the public interest.
The change in the scheme by the government of vijaypur was in response to the
change in law made by the central government of India.
Article 246 in The Constitution Of India 1949 states that:
(1)Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive
power to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause
( 1 ), the Legislature of any State also, have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the Concurrent List)
(4) Parliament has power to make laws with respect to any matter for any part of
the territory of India not included (in a State) notwithstanding that such matter is a
matter enumerated in the State List.
Hence, the power discretion is vested with the central government with these laws
the state government does not have a upper hand over it has to abide with the
change in law else the scheme and the construction would get detrimental to
public interest hence the accepted applicant universities has to comply with the
policy of state government.
Section 20 (1) of The Specific Relief Act, 1963 states that The jurisdiction to
decree specific performance is discretionary, and the court is not bound to grant
such relief merely because it is lawful to do so; but the discretion of the court is
not arbitrary but sound and reasonable, guided by judicial principles and capable
of correction by a court of appeal. Here, the exercise of power is discretionary and
based on fair reasoning. Hence, it vests them with power to exercise wirth
discretion and based on fair reasoning.
Under section Section 20 (2)(C) of the Specific Relief Act, 1963 the tax regime
becomes inevitable as it states that where the defendant entered into the contract
under circumstances which though not rendering the contract voidable, makes it
inequitable to enforce specific performance.
Moreover, the law has been changed by the Government of Indiva not by the state
of Vijaypur.

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3. WHETHER THE PREVIOUS CONTRACT IS FRUSTRATED BY THE

RETROSPECTIVE APPLICATION OF INDIRECT TAX LAWS?

It is submitted before the Hon’ble bench that the previous contract is not frustrated
by the retrospective application of indirect tax laws. Firstly, the contract does not
exist between the Gunjan (Deemed) University and the State of Vijaypur as
explained in the first argument advance that it was a social scheme, just an
invitation to an offer not a contract. Secondly, as explained in the second
argument advance through Section 246 of the Constitution of India 1949, Section
20 (1) and 20 (2) (c) of the Specific Relief Act, 1963 that parliament is allowed to
change the law if the exercise of power is discretionary and based on fair
reasoning. Moreover, the law has been changed by the Government of Indiva and
the scheme was introduced by the State of Vijaypur. Hence, the State of Vijaypur
is not concerned with the change in law and is allowed to take away all the
incentives which were granted to the University under the Incentive Scheme as the
VAT has been changed with the GST law and law should be followed.

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4. WHETHER THE GUNJAN UNIVERSITY IS LIABLE TO COMPENSATE

THE M/S CHANDRA CONSTRUCTION CO. LTD. (PROJECT COMPANY)
FOR THE BREACH AND FRUSTRATION OF CONTRACT BETWEEN
THEM OR NOT?

It is submitted before the Hon’ble bench that the M/s Chandra construction Co.
Ltd. (Project company) is not concerned with the State of Vijaypur as the
agreement of construction was given by the Gunjan (Deemed) University. It does
create any obligation on the part of the state government of vijaypur and hence it
does not create any liability over the state government to compensate the
university for the amount of money that is been invested by them for the purpose
of operation and construction.

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the Counsel for the
Respondent humbly prays that the Hon‘ble Court be pleased to adjudge, hold and declare:

That, dismiss the writ petition

Hold, that the respondent is not liable to compensate petitioner and revoke their entitlement
certificates.

AND/OR

Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
And for this act of kindness, the counsel for the Appellant shall duty bound forever pray.

Sd/-

(Counsel for Respondent)

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