MEMORANDUM for RESPONDENT (TABLE OF CONTENTS) I

TEAM CODE: M- 31 R

T HE T A M I L N A D U D R . A M B E D KA R L A W U N I V E R SI T Y
1 S T E D I T I ON OF T HE M E M O R I A L D R A F T I N G
C OM P E T I T I O N , 2 0 2 3

BEFORE THE HIGH COURT OF SARDAM

IN THE CIVIL MATTER OF –

M /S. B R A HM A ST R A & C O. ……..APPELLANT

VERSUS

SHIVA … . . R E SP ON D E N T

MEMORANDUM ON BEHALF OF THE RESPONDENT

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MEMORANDUM for RESPONDENT (TABLE OF CONTENTS) I

T A B L E OF C ON T E N T S

TABLE OF ABBREVIATIONS……………………………………………………….…...II

INDEX OF AUTHORITIES……………………………………………………………....III

STATEMENT OF JURISDICTION……………………………………………….………V

STATEMENT OF FACTS…………………………………………………………….…..VI

STATEMENT OF ISSUES…………………………………………………….……...…VIII

SUMMARY OF ARGUMENTS……………………………………………….……...…...IX

ARGUMENTS ADVANCED……………………………… …………………..………….XI

I. WHETHER THERE IS A VALID CONTRACT BETWEEN M/S

BRAHMASTRA & CO. AND MR. SHIVA?

1.1 Capacity of minor to enter into a contract…………………………….……..XI

1.2 Ratification of minor's contract…………………………………………..…XII
1.3 Doctrine of Estoppels against a minor………………………………...……XII

II. WHETHER THE CIVIL COURT OF SARDAM WAS CORRECT IN

REJECTING THE PLEA OF RESTITUTION?

2.1 Burden to prove the fact asserted is on the appellant……………………...XIV

2.2 Ratio Decidendi……………………………………………………….……XV

2.3 Ground of Rejection…………………………………………………….….XV

III. WHETHER SHIVA WAS LIABLEFOR THE OFFENCE OF

DEFAMATION UNDER THE INDIAN PENAL CODE?

3.1 The material published falls under the exceptions of Truth and Fair

Comment………………………………………………………….,…..…XVIII

3.2 Respondent exercised his Right to Freedom of Speech and Expression…...XX

3.3 A statement made in consideration of the public interest…………….……XX

PRAYER…………………………………………………………………………….…...XXI

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MEMORANDUM for RESPONDENT (TABLE OF ABBREVIATION) II

T A B L E 0 F A B B R E V I A T I ON S

ABBREVIATIONS WORDS

HC High Court

Hon’ble Honourable

Sec. Section

& And

Anr Another

Ltd. Limited

AIR All India Reporter

Ors. Others

IPC Indian Penal Code

V. Versus

Co. Company

Amt. Amount

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES] III

I N D E X OF A U T HO R I T I E S

S. CASES PAGE
NO. NUMBER
XV
1. Ajudhia Prasad & Anr. V. Chandan Lal & Anr. AIR 1937 ALL
610

XIX
2. Khushwant Singh v. Maneka Gandhi. AIR 2002 Delhi 58

XX
3. London Artists Ltd, v. Littler [1969] 2 QB 375 CA

XI
4. Mohori Bibee v. Dharmodas Ghosh 1903 ILR 30 Cal 539

XVII
5. Murlidhar v. Narayandas, AIR 1914 SINDH 85

XVIII
6. Rustom K. Karanjia and Anr. v. Krishnaraj M.D. Thackersey
AIR 1970 Bom 424, [1970] 72 BOMLR 94, ILR 1971 Bom 324

XIII
7. Sadik Ali Khan vs. Jai Kishore [1928] 30 BOMLR 1346

XX
8. Subramanian Swamy V. Union of India, Ministry of Law and
others 2016 AIR(SC) 2728

XVII
9. Surjmal B. Mehta v. B.C. Horniman, MANU/MH/0076/191

XII
10. Stocks v. Williams [1957] 1 WLR 148

XII
11. Suraj Narain v. Sukhu Ahir AIR 1928 All 440

XIII
12. Surendra Nath Roy v. Krishna Sakhi Dasi 9 Ind Cas 110

XVIII
13. Toogood v. Spyring 149E.R. 1044 at p 1049

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES] IV

XV
14. T.R Appaswami Aiyangar vs Narayanaswami Aiyar and Ors.
(1931) 60 MLJ 117

XX
15. Union Benefit Guarantee Company Limited v Thakorlal P.
Thakor and Others AIR 1936 BOM 114

IX
16. Vaikuntarma Pillai v. Authimoolam Chettiar [1914] 26 MLJ 612

S. STATUTES
NO.
1. THE INDIAN CONTRACT ACT, 1872

2. THE INDIAN MAJORITY ACT, 1875

3. THE SPECIFIC RELIEF ACT, 1963

4. THE INDIAN PENAL CODE, 1960

5. THE INDIAN EVIDENCE ACT, 1872

S. BOOKS
NO.
1. Mulla The Indian Contract Act (15" Edition, 2016)

2. Eastern Book Company's Contract & Specific Relief by Avtar Singh, Rajesh
Kapoor

3. K.D. Gaur, The Indian Penal Code (4" Edition)

4. Ratanlal & Dhirajlal, The Indian Penal Code (33 rd Edition)

5. Black’s Law Dictionary

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MEMORANDUM for RESPONDENT [STATEMENT OF JURISDICTION] V

S T A T EM EN T O F J U R IS D I C TI O N

The jurisdiction of this Hon'ble High Court is invoked under Section 96(1) of the Civil
Procedure Code, 1908, by the Appellant, challenging the decision of the Learned Civil
Court, Sardam. The relevant provision of law is read out as follows-

Section 96(1) of the Civil Procedure Code, 1908-

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 decisions of such Court....’

The Council most humbly and respectfully, submits that this Hon'ble Court has the requisite
subject matter jurisdiction to entertain and adjudicate this matter.

The present memorial on behalf of the respondent sets forth the facts, contentions and
arguments in the present case.

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MEMORANDUM for RESPONDENT [STATEMENT OF ISSUES] VI

ST A T E M E N T OF F A C T S

[BACKGROUND]

1. The "Sensational Voice of the Nation" title belongs to Shiva, a sixteen-year-old

prodigy and incredible vocalist from Indiana. He desired a multifunctional, ultra-
modern architectural marvel with a roof-top pool where he could host events, his
recording studio, and a theatre for live musical performances.
2. He misrepresented himself as a major and assigned the project to M/s. Brahmastra &
Co., a renowned building constructor and infrastructure provider who knew about this
fact. They proposed to complete the full task for Rs. 10,000,000.
3. Shiva accepted their offer, which called for paying the sum in a series of instalments
when the various stages of the contracted work were finished.
4. In accordance with the terms of the contract, M/s. Brahmastra & Co. finished building
the first floor, which was designated for the music theatre, and the ground floor,
which was used for parking, but they ran out of money and materials to finish the
project. They informed Shiva that they would not be able to finish the building
without additional funding.
5. Shiva requested to spend the remaining amount of Rs.7,00,000/- on the work out of
their own funds to continue with the construction work of the roof top pool so that he
could arrange a poolside party inviting top music directors, producers and other
renowned individuals in the music industry whom he believed would fund him for his
dream music albums and music tours, assuring them to pay the money back as soon as
his album is released.
6. The rooftop pool was finished, and the party went well. As a result of the party's
success, Shiva and Dev Producers signed a contract in which they agreed to pay for
the fusion albums and international tours. Shiva's most recent fusion music release,
however, was a complete failure. In light of this, he later realised he was unable to
fulfil his promise to Ms. Isha, Manager of M/s. Brahmastra & Co., to pay the sum of
Rs. 7,00,000/-

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MEMORANDUM for RESPONDENT [STATEMENT OF FACTS] VII

7. In exchange for Ms. Isha agreeing to let Shiva off the hook for paying the debt of Rs.
7,00,000/-, Shiva agreed to perform music at her party in order to gain contracts for
building, construction, etc. He did, however, have a really sore throat prior to the
party from overdoing practises. On the advice of his physician, he later declined to
perform at Ms. Isha's celebration.
8. On Shiva’s eighteenth birthday, both the parties, on grounds of humanity, agreed on
the same point that Shiva would pay the debt through easy monthly instalments
(EMIs) of Rs.20,000/- per month till the repayment of the amount of Rs.7,00,000/-
9. Later Shiva pointed out that the material used for constructing was sub- standard and
not satisfactory. He estimated that this would have costed them Rs.3,00,000/- only.
He claimed that he had paid the money already.
10. Shiva then made the decision to sell his belongings without making any payments to
M/s. Brahmastra & Co. They then sent him a legal notice demanding the repayment of
the money within 15 days. Shiva, however, made no correspondence or response to
the aforementioned notice. Instead, he made a derogatory post on his social media,
where he had nearly 15,000 followers, accusing M/s. Brahmastra & Co. of defrauding
people with their subpar construction work.
11. In this case, M/s. Brahmastra & Co. filed a lawsuit in the State of Indiana's Civil
Court of Sardam, requesting an injunction preventing Shiva from selling the property
until the matter was resolved. Additionally, they filed a defamation lawsuit against
Shiva since his social media post cost them two significant projects.
12. The Civil Court of Sardam heard the matter and held that a minor’s contract is void ab
inito and thus set Shiva free from all his liabilities towards M/s. Brahmastra & Co. by
upholding the judgment passed in Mohori Bibee v. Dharmodas Ghose. Additionally,
the Court also stated that the defamation case against Shiva was liable to be
dismissed.
13. M/s. Brahmastra & Co. preferred an appeal before the High Court of Sardam. The
High Court granted injunction and decided to hear the case on merits.

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MEMORANDUM for RESPONDENT [STATEMENT OF FACTS] VIII

ST A T E M E N T OF I S SU E S

ISSUE I

Whether there is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva?

ISSUE II

Whether the Civil Court of Sardam was correct in rejecting the plea of restitution?

ISSUE III

Whether Shiva was liable for the offence of defamation under the Indian Penal Code?

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MEMORANDUM for RESPONDENT [ARGUEMENTS] IX

SU M M A R Y OF A R G U M E N T S

ISSUE I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr.
Shiva?

It is humbly submitted before the Hon’ble High Court that the respondent contends in lieu of
cited judgements that the contract was invalid. Moreover, the contract was void ab initio by
virtue of section 111 of Indian Contract Act,1872. In Vaikuntarma Pillai v. Authimoolam
Chettiar2, the madras high court has held that there is a statutory provision that the minor
being incompetent to contract is incapable of incurring any liability for any debt. The law of
estoppels cannot overrule his provision to make him liable.

ISSUE II. Whether the Civil Court of Sardam was correct in rejecting the plea of
restitution?

Stare Decisis is a legal principle that states that courts should base their judgments on earlier,
analogous cases. "Precedents" are these earlier verdicts that courts have used as a guide. An
appellate court's formulation of a legal rule or concept, known as binding precedent, is
binding on all lower courts that fall under its purview. As per the merits of the case, the lower
court, the Civil Court of Sardam, decided on the basis of the ruling in Mohori Bibee v.
Dharmodas Ghose, which exonerated the respondent of all obligations to M/s. Brahmastra &
Co. and dismissed the appellant's claim for restitution.

Thus, the counsel for the Respondent humbly submits that the Civil Court of Sardam was
correct in rejecting the plea of restitution.

1
Section 11. Every person is competent to contract who is of the age of majority according to the law to which
he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is
subject.
2
Vaikuntarma Pillai v. Authimoolam Chettiar [1914] 26 MLJ 612

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MEMORANDUM for RESPONDENT [SUMMARY OF ARGUEMENTS] X

ISSUE III. Whether Shiva was liable for the offence of defamation under the Indian
Penal Code?

In accordance with the argument made before the honourable court, Mr. Shiva, the
respondent, did not violate Section 4993 of the Indian Penal Code by defaming anyone. The
respondent merely published a social media post expressing his discontentment with the
appellant's subpar construction work. As a result, Shiva is not liable for the offence of
defamation under the Indian Penal Code because none of the necessary conditions for
defamation have been met, and M/s. Brahmastra & Co. is therefore not entitled to claim the
respondent for damages.

3
Section 499. 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
excepted, to defame that person.

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MEMORANDUM for RESPONDENT [ARGUEMENTS] XI

ARGUMENTS ADVANCED

ISSUE I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr.
Shiva?

In front of the Honourable Court, the respondent would like to humbly argue that there was
never a legally binding contract between the respondent and the petitioner. The issue by the
counsel shall be put forward in three folds, viz.,

[1.1] Capacity of minor to enter into a contract.

[1.2] Ratification of minor's contract.
[1.3] Doctrine of Estoppels against a minor.

[1.1] Capacity of minor to enter into a contract:

Section 11 of the Indian Contract Act states," Every person is competent to contract who is of
the age of majority according to the law to which he is subject, and who is of sound mind and
is not disqualified from contracting by any law to which he is subject." The respondent would
like to submit that Mr. Shiva was sixteen years of age, hence a minor entered into a contract
with the petitioner to build a four-storey multipurpose building including swimming pool in
its top floor. Therefore, the respondent was incompetent to enter into a contract.

In the leading case of Mohori Bibee v Dharmodas Ghosh4 it was held any agreement or deed
in which minor is party to it or is included in such contact by any way, such deed or
agreement shall be declared null and void because such agreement is no agreement in the
eyes of law and therefore the respondent cannot be charged to pay for the services of the
petitioner.

4
Mohori Bibeev. Dharmodas Ghosh 1903 ILR 30 Cal 539

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MEMORANDUM for RESPONDENT [ARGUEMENTS] XII

The House of Lords in Stocks v Williams5, held that a minor even if fraudulently
misrepresents his/ her age even still that contract cannot be enforced, when read with section
11 of Indian Contract act evidently states that a minor lacks the capacity to engage into a
contract, and that if they do, the contract between the parties is invalid.

|1.2] Ratification of minor’s contract:

Both parties decided to "alter" the contract, where it was stipulated that the response would
pay the amount in instalments, on the respondent's eighteenth birthday. The respondent
would like to bring up the fact that even when a person reaches majority, an agreement with a
minor cannot be ratified.
Ratification relates back to the date of making of the contract and therefore, a contract
which was then void cannot be made valid by subsequent ratification. An already
"Void Ab Initio" contract cannot be ratified.
Further in Suraj Narain v. Sukhu Ahir6, the court held that consideration taken by minor
during his minority cannot be a good consideration for minor for any promise made by minor
on attaining majority.
It should be emphasized that, upon reaching majority, a new contract should be made with a
fresh consideration, and upon ratification of a contract, a new contract should be made. In the
present case, no fresh consideration was provided; just the terms of the prior contract were
modified. The sole change to the contract was the EMI payment method. And because of this,
the agreement is invalid, and neither party may claim violation of the agreement or seek to
hold the other party accountable for damages that are due.

[1.3] Doctrine of Estoppels against a minor:

Estoppel means a man's own act or acceptance stops or closes his mouth to allege or plead the
truth. There is no estoppel against a minor. If a minor enters into a contract by unfair/fraud
ways, falsely claiming himself to be a major. Then later on he can plead his minority status as
a defence.

5
Stocks v. Williams [1957] 1 WLR 148
6
Suraj Narain v. Sukhu Ahir AIR 1928 All 440

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MEMORANDUM for RESPONDENT [ARGUEMENTS] XIII

Section 1157 of The Indian Evidence Act did not allow the minor to plead his minority in the
case of Mohiri Bibi. As per the Privy Council when the party knows about the minor's age
then this principle cannot be applied.
In the light of the various rulings of the different High Courts of India, it should be noted that
a minor can plead a minority as mitigation even if, at the time of the arrangement, he wrongly
declared that he was not a minor.
The point was raised but not determined in the case of Mohiri Bibi vs. Dharmodas Ghose, but
the point was resolved in Sadik Ali Khan vs. Jai Kishore 8, where the private council noted
that – an act committed by a minor is null and incapable of finding a plea in court. The idea
underpinning the decision is that there should be no estoppel against a monument.

The position is – even though a minor has entered into a contract by distorting his age, he
can, at any later stage, plead “minority” and escape a contract. Minority in India is a fact and
not a right (as in England) and this can be found at any point of the proceedings, irrespective
of the circumstances surrounding it.
In the case of Surendra Nath Roy v. Krishna Sakhi Dasi9, the court held that if there is a
false statement on the minor's part and the seller is deceived by him, the minor will be
bound by the transaction. However, the court found no fraudulent representation on the part
of the minor.
Hence, the counsel for the respondent humbly requests the hon'ble High Court to declare the
contract between M/s. Brahmastra & Co. and Mr. Shiva invalid.

7
115 Estoppel. —When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of
that thing.
8
Sadik Ali Khan vs. Jai Kishore [1928] 30 BOMLR 1346
9
Surendra Nath Roy v. Krishna Sakhi Dasi 9 Ind Cas 110

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XIV

ISSUE II. Whether the Civil Court of Sardam was correct in rejecting the plea of
restitution?

It is humbly submitted to this Hon'ble Court that there was no error in the judgement of the
Civil Court of Sardam, the contract between the Appellants and the Respondents was void ab
initio and the Civil Court of Sardam has observed the same while rejecting the plea of
restitution.

[2.1] Burden to prove the fact asserted is on the appellant:

Whoever claims a legal right before a court depending upon the existence of certain
facts that he asserts and prays to the court to give a judgment in his favour, must
prove those facts and hence, owns the burden of proof. Onus probandi means the
person who suggests a fact to be proved must adduce some evidence to prove it. The burden
of proof lies on the person whose claim would fail if no evidence is given on either side.
After the plaintiff discharges his onus in a proceeding, it is on the respondent on whom the
burden is cast upon to deny the suit filed against him. Until the respondent provides evidence
to support his claim, the decision shall be decreed in the favour of plaintiff.

In view of both the above provisions the burden of proof obviously lies on M/s. Brahmastra
& Co. who wants restitution of the plea while praying for injunction restraining Mr. Shiva
from selling the property until the suit was disposed in the court.
Also, since the onus of introducing evidence to prove a fact that they had constructed the
building as per the terms of the contract and had taken all the diligent steps to recover the
loan made available to Shiva for Rs.7,00,000/- but after his refusal to pay the said amount
and alleging fraud against him, does shift during a proceeding. So, when the minority factor
of the Respondent came forward it set Shiva free from all his liabilities towards M/s.
Brahmastra & Co. by upholding the judgment passed in Mohori Bibee v. Dharmodas Ghose,
the burden again shifts to the Appellant to counter the fact, which they were unable to.

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XV

[2.2] Ratio Decidendi:

In the decided case of Ajudhia Prasad vs Chandan Lal10 the court opined, if Section 6511 of
the Indian Contract Act, 1872 is employed against a minor when he is a defendant the result
of such would be chaotic, all agreements by minors would by default be upheld and enforced
against them regardless of the fact that any mistake, misrepresentation, or fraud was
committed or not.

A decree of restoration would impose liability to pay on minors and such would quash the
protection provided by the legislation to them. This would open a wide door for mischief and
misuse. People would continue to contract with minors with confidence furthermore it will be
easy for people to obtain documentary evidence to support the charge of fraud against the
minors.

Thus, the counsel for the respondent pleads that the question of whether the Civil Court of
Sardam was correct in rejecting the plea of restitution should be dismissed.

[2.3] Ground of Rejection:

In the present case, the Civil Court of Sardam has not committed any error in law. The Civil
Court has respected the subsisting contract between the parties and has observed that the
agreement between was invalid from the very start.
There is no breach in law or natural justice; to say the decision of the Civil Court of Sardam
was wrong would be wrong because the matter has not been adjudicated on merits
whatsoever.

In T.R Appaswami Aiyangar vs Narayanaswami Aiyar and Ors. (1931)12, a case where the
money lender claims for restitution of his money under section 41 of Special Relief Act 1877,
but the lordship refused the situation because during the making of agreement the lender was
aware about the fact that the person is a minor. So, no restitution exists because there was full
knowledge.

10
Ajudhia Prasad & Anr. V. Chandan Lal & Anr. AIR 1937 ALL 610
11
Obligation of a person who has received advantage under void agreement, or contract that becomes void.
12
T.R Appaswami Aiyangar vs Narayanaswami Aiyar and Ors. (1931) 60 MLJ 117

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XVI

With this the counsel for the respondent put forward the point stated in the clarification of the
background guide, that Brahmastra & Co. were aware right from the beginning of the
contract that Mr. Shiva was a minor.

Hence, it is humbly submitted to this Hon’ble Court that rejection of plea of restitution by the
lower court was correct.

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XVII

ISSUE III. Whether Shiva was liable for the offence of defamation under the Indian
Penal Code?

Defamation of a person is taken to be false until it is proven to be true. Further if a man has

stated that which is false and defamatory, malice is also assumed. 13

However, it becomes necessary for the plaintiff to prove that the statements made were

malicious.

“Mere exaggeration or even gross exaggeration doesn't make a comment unfair. Where in a

newspaper report, the main aspersion of the accused against the complainant is true, the fact

that there is some exaggeration or departure from the strict truth doesn't deprive the accused

of the protection provided in the Exception 3 to S. 499 Indian Penal code."14

Statement of facts need only be substantially correct and need not be microscopely or

photographically true; nor can the plaintiff in the civil suit or the prosecutor in a criminal

Case, fasten himself on the inaccuracy in the detail, unless that detail itself is such as to make

substantial difference to the case.15

As stated in the above statements, the comment was not categorically made carelessly. It

wasn't an absurd and an arbitrary conclusion based on made up facts by the respondent.

It is important to understand Defamation and its essentials to prove the absence of malice and
that the publication comes under certain exceptions.

13
Ratanlal and Dhirajlal, The Law of Torts 292 (26th ed. 2015)
14
Murlidhar v. Narayandas, AIR 1914 SINDH 85
15
Surjmal B. Mehta v. B.C. Horniman, MANU/MH/0076/191

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XVIII

As per Black’s Law Dictionary, defamation means “the offence of injuring a person's
character, fame, or reputation by false and malicious statements.” The term seems to be
comprehensive of both libel and slander. Defamation can be divided into the following
categories: Libel – Representation in a permanent form, e.g., writing, printing, picture,
effigy or statute. Slander – Depiction in transient form. It is basically through words spoken
or gestures.

In order to establish that a statement is libelous, it must be proved that it is (i) false, (ii)
written; (iii) defamatory, and (iv) published.
However, section 499 of the IPC defines defamation and according to this section, any person
who makes or publishes any false imputation or allegation relating to any person, by words
either spoken or written or by signs or visible representations, is said to defame that person.
In case of defamation if a person needs to succeed in getting damages, it must fulfil the
following requirements:
(1) that the words or the acts must have been published with a malicious intention,
(2) that they are defamatory and
(3) that they have reference to the other person.
In the present case, only the 3rd condition is satisfied as the alleged defamatory material
refers to the Appellant and there has been publication of such alleged material on social
networking website. However, conditions 1st and 2nd have not been fulfilled.

[3.1] The material published falls under the exceptions of Truth and Fair Comment:
Malice in common acceptance means ill will against a person but in its legal sense means a
wrongful act done intentionally without just cause or excuse. Absence of proper motive is
termed malice in fact while term malice in law is taken to mean that defamation was
wrongful and intentional. Inference of malice in law is successfully rebutted if the publisher
is able to show that statement was made in the discharge of a public or private duty. It is
immaterial whether that duty is a legal duty or a moral duty.

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XIX

Reliance was placed upon in the case of Rustom K. Karanjia and Anr. v. Krishnaraj M.D.
Thackersey16 and Toogood v. Spyring17, in which it was held that: "In general, an action lies
for the malicious publication of statements which are false in fact, and injurious to the
character of another, and the law considers such publication as malicious, unless it is fairly

made by a person in the discharge of some public or private duty, whether legal or moral, or
in the conduct of his own affairs, in matters where his interest is concerned.

In such cases, the occasion prevents the inference of malice, which the law draws from
unauthorized communications, and affords a qualified defence depending upon the absence of
actual malice. If fairly warranted by any reasonable occasion or exigency and
honestly made, such communications are protected for the common convenience and welfare
of society, and the law has not restricted the right to make them within any narrow limits.

In the present case, the Respondent successfully establishes that he stated the truth and that he
considered in his interest to criticize the poor services of the Appellant at social media
platform so as to let out his dissatisfaction and so that other people would not succumb to
false and unfulfilled promises of the Appellant and end up losing their time and a huge part of
their hard earned money because of negligence of the Appellant.
The Respondent essentially pleads that there is no defamation and the published material falls
under the exceptions of Truth and Fair Comment.
Even if there is an apprehension that content may be of a defamatory nature, it is likely that
publication would not be restrained except in exceptional cases. In non-exceptional
circumstances, Indian courts have shown a tendency to support free speech, and have not
displayed a tendency to grant injunctions which would have the effect of muzzling speech on
the ground of possible defamation. This was laid in Khushwant Singh v. Maneka Gandhi.
AIR 200218.

16
Rustom K. Karanjia and Anr. v. Krishnaraj M.D. Thackersey AIR 1970 Bom 424, [1970] 72 BOMLR 94,
ILR 1971 Bom 324
17
Toogood v. Spyring 149E.R. 1044 at p 1049
18
Khushwant Singh v. Maneka Gandhi. AIR 2002 Delhi 58

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XX

[3.2] Respondent exercised his Right to Freedom of Speech and Expression:

The Respondent is perfectly justified in expressing his views in open with regards to the
extremely poor service provided by the Appellant being the leading building constructor and
infrastructure provider used sub- standard material for constructing which was not
satisfactory with the amount asked in return. As per estimation it would have costed Mr.
Shiva Rs.3,00,000/- only for the work which he had already paid to them.
And as an aggrieved person, every individual has a right to criticize the service of the
company, for which he pays, if that company fails stand up to its.

It is argued that the terms used by Respondent, as mentioned in the paragraph 9 of the
background guide, namely the word 'cheat' according to Collins Dictionary means "they do
not obey a set of rules which they should be obeying". As already propounded above, the gist
of the liable in substance should be correct. And by the word Mr. Shiva meant that the
Appellant's Contracting Company provided him their below par construction work.

Hence, it is pleaded on behalf of the Respondent that the words complained of in this matter
are really not defamatory of the Appellant Company, but are only a fair and bona fide
comment on a matter of public interest.

[3.3] A statement made in consideration of the public interest:

Subramanian Swamy v. Union of India, Ministry of Law and others 201619 states that the
term "public good", "public interest" is a vague concept.
In the case of London Artists Ltd, v. Littler [1969]20 it was observed that "whenever a matter
is such as to affect people at large, so that they may be legitimately interested in, or
concerned at, what is going on; or what may happen to them or to others; then it is a matter of
public interest on which everyone is entitled to make fair comment". Similarly in the light of
the present case the Respondent considered in his and public interest to criticize the poor
services of the Appellant at social media platform so that other people would not succumb to
false and unfulfilled work of the M/s. Brahmastra & Co. and end up losing their time and a
huge part of their hard-earned money.

19
Subramanian Swamy v. Union of India, Ministry of Law and others 2016 AIR(SC) 2728
20
London Artists Ltd, v. Littler [1969] 2 QB 375 CA

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(MEMORANDUM for RESPONDENT) (ARGUEMENTS) XXI

The Respondent has shown and proved the fair comment made by them in public interest. It
is therefore argued on behalf of the arguing party that the words complained of are really not
defamatory of the Appellant Company, but is only a fair and bona fide comment on a
matter of public interest.
And as laid down in Union Benefit Guarantee Company Limited v Thakorlal P. Thakor
and Others AIR 193621, if the words are such comment, they are not actionable. Thus, the
Respondent pleads that the publication does not amount to defamation. There was absence of
malice and therefore the counterclaim of the Appellant fails.

21
Union Benefit Guarantee Company Limited v Thakorlal P. Thakor and Others AIR 1936 BOM 114

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(MEMORANDUM for RESPONDENT) (PRAYER) XXII

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased
to:

A. Hold that, "there is no valid contract between M/s. Brahmastra & Co. and Mr. Shiva.
B. Declare that, the Civil Court of Sardam was correct in rejecting the plea of
restitution.
C. Hold that, Shiva was not liable for the offence of defamation under the Indian Penal
Code.

And/Or

Pass any other order, direction, or relief that it deems fit in the interest of Justice, Equity,
and Good Conscience, all of which humbly prayed for.

DATE: 11/02/2023 (S/d)

PLACE: HIGH COURT OF SARDAM (Counsel for the Respondent)

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