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Before
THE HON‟BLE HIGH COURT OF SARDAM

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PETITION NUMBER XXXX/2023

FILED UNDER SECTION 133 OF THE INDIANA CONSTITUTION, 1950

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IN THE CASE CONCERNING THE RIGHTS OF M/S BRAHMASTRA & CO

IN THE MATTER BETWEEN

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M/S BRAHMASTRA & CO [PETITIONER]

Versus

MR. SHIVA [RESPONDENT]

MEMORIAL for PETITIONER

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TABLE OF CONTENTS

Table of Contents ....................................................................................................................... 1

Index of Authorities ................................................................................................................... 2
Index of Abbreviations ............................................................................................................. V
Statement of Jurisdiction......................................................................................................... VI
Statement of Facts .................................................................................................................. VII
Issues Raised ......................................................................................................................... VIII
Summary of Arguments .......................................................................................................... IX
Arguments Advanced................................................................................................................. 1
I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva? .......... 1
A. Doctrine of Estoppel ................................................................................................. 1
II. Whether the Civil Court of Sardam was correct in rejecting the plea of restitution? ....... 5
A. Doctrine of restitution ................................................................................................... 5
B. Restoration of benefit Under Special Relied Act, 1963. ............................................... 8
C. Doctrine of supply od necessities ................................................................................ 11
III. Whether the 309 of IPC is in violation of Article 25 of the Constitution? .................. 12
[i] Article 25 is not an Absolute right: subjections - Public order, Health and Morality: 12
[ii] Sanathana and the Test of Essential Religious Practice: ............................................ 13
[iii] Article 25 protects the concept of religion and the practices contributing to the
religion;......................................................................................................................................... 15
[iv] Section 309 is in violation of article 13(1): ............................................................... 15
Prayer for Relief ....................................................................................................................... 19

MEMORIAL for PETITIONER

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INDEX OF AUTHORITIES

Cases
1. B. Manjunath v. C.G.Srinivas AIR 2005 Kant 136 ..................................................... 10
2. Sanatan Gauda v. Bharampur University, 1990 AIR 1075, 1990 SCR (2) 273............ 5
3. Mohori Bibee V. Dharmodas Ghose, [1903] UKPC 12................................................. 9
4. Khan Gul Vs. Lakha Singh 1928 Lah HC ...................................................................... 6
5. Leslie Ltd. vs Sheill (1914) 8 K B 607 ........................................................................... 6
6. Nash V. Inman [1908] 2 KB 1 ..................................................................................... 18
7. Jagon Ram v Mahadeo Prasad Sahu. (1909) ILR 36 Cal 768 ...................................... 2
8. Chappel V. Cooper (1844) 153 ER 105 ....................................................................... 11
9. Kunwarlal vs. Surajmal.1988 AIR 1963 MP 58 ............................................................ 7
10. CIT V. Shahzada Nand & Sons [1966] 60 ITR 392 (SC) ............................................ 18
11. Common Cause V. Union of India (2014) 5 SCC 338 ................................................. 10
12. Court on its ownMotion V. Yogesh Sharma 1986 RLR 348 .......................................... 7
13. Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1 ......................................... 2
14. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457 ........................................... 3
15. Democratic youth federation of India V. Union of India and Ors. (2011 (15) SCC
530)....................................................................................................................................... 5
16. Francis Coralie Mullin V. Union Territory Delhi, Administrator (1981) 1 SCC 608... 8
17. Gian Kaur v. State of Punjab, (1996) 2 SCC 648 .......................................................... 1
18. HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120........................... 3
19. Hon‟ble Shri Ranganath V. Union of India and Ors (2003) 7 SCC 137 ....................... 6

MEMORIAL for PETITIONER

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INDEX OF ABBREVATION

ABBREVIATIONS EXPANSION
& And
§. Section
p. Page Number
¶ Paragraph Number
¶¶ Paragraphs Numbers
AIR All India Reporter
Anr. Another
Art. Article
e.g., exemplis gratia (Latin)
ed. Edition
etc. Etcetera
Act Transgender Persons (Protection of
Rights) Act,2021
HC High Court
Hon’ble Honorable
Ltd. Limited
MHCA Mental Healthcare Act
No. Number
Ors. Others
CrPC Criminal Procedural Code
SC Supreme Court
SCC Supreme Court Cases
u/Art. Under Article
v. Versus
Vol. Volume
r/w Read with

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STATEMENT OF JURISDICTION

Hon‟ble High Court is empowered to hear this case under Article 133 of the Constitution of
Indiana, which reads as,

MEMORIAL for PETITIONER

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STATEMENT OF FACTS

Shiva, a sixteen-year prodigy is citizen of Indiana who was an astounding singer. He wanted a
multi-purpose building with a recording studio and a roof top pool. He misrepresented himself as
a major and put the task out to tender. M/s. Brahmastra & Co. was a leading building
constructor. They offered to do the entire work for Rs.10, 00,000/- and the amount will be paid
in installments. Shiva accepted their offer and entered into a contract. M/s. Brahmastra & Co.
completed the construction of the ground floor and first floor and ran out of money and materials
and informed Shiva that they could not complete the construction unless further capital was
made available to them. Shiva had arranged a poolside party to which he had renowned
individuals in the music industry. So he was desperate to have the construction of the roof top
pool completed as stipulated. He had requested for the continuance of the construction work and
further requested to spend the remaining amount of Rs.7,00,000/- on the work out of their own
funds and assured them that the money would be paid to them as soon as his album is released.
The roof top pool was completed and the party was a success. Shiva entered into a contract with
Dev Producers who agreed to fund for the albums. However, Shiva‟s new fusion music album
was a disastrous flop. He then found himself unable to pay the amount of Rs.7, 00,000/- to M/s.
Brahmastra & Co. On Shiva‟s eighteenth birthday, both the parties, on grounds of humanity,
decided to alter the contract. Shiva acknowledged the debt taken from M/s. Brahmastra & Co. for
and further both agreed on the same point that Shiva would pay the debt through easy monthly
installments (EMIs) of Rs.20,000/- per month till the repayment of the amount of Rs.7,00,000/-.
Shiva, later on, felt that the work done by M/s. Brahmastra & Co. was not performed as he had
specified. He estimated that this would have costed them Rs.3, 00,000/- only. He claimed that he
had paid the money already. Shiva then decided to dispose off his property, without paying a
single dime to M/s. Brahmastra & Co. He posted an offensive post against M/s. Brahmastra &
Co. on his social media having nearly 15,000 followers where he accused them of cheating
people with their below par construction work In this context, M/s. Brahmastra & Co. finally
decided to seek remedy from the Court of Law in this regard. 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. M/s. Brahmastra & Co. preferred an appeal before the
High Court of Sardam.

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ISSUES RAISED

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

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

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

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SUMMARY OF ARGUMENTS

I. Whether there is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva?
There is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva as he is estopped to back
from his representation made to the petitioner. Mr. Shiva was a minor at the time of entering into
the contract, the declaration as to his age was fraudulently made to deceive the appellant, and the
plaintiff had subsequently ratified the contract after attaining majority and thus; in any case, the
Court should not grant the respondent any relief without making him repay the money advanced.

II. Whether the Civil Court of Sardam was correct in rejecting the plea of restitution?
The Civil Court of Sardam was not correct in rejecting the Plea of Restitution filed by M/s
Brahmastra & Co according to the doctrine of equitable restitution. This argument is of 3 folds
they are; doctrine of restitution [A]; restoration of benefit under specific relief act, 1963 [B];
doctrine of supply of necessities [C].

III. Whether Shiva was liable for the offence of defamation under Indian Penal Code?
It is humbly submitted before this court that Shiva is liable for the offence of defamation under
section 499 of Indian penal code 1860 as it satisfies all the essential ingredients of defamation.
The main essential ingredients of defamation are publishing allegation which is made to cause
harm to the person to whom it is made by either words signs or visible representation. He was a
major while publishing the content over social media having 15000 followers, where he accused
them of cheating people which is of falsely in nature.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THERE IS A VALID CONTRACT BETWEEN BRAHMASTRA &

CO. AND MR. SHIVA?

1) There is a valid contract between M/s. Brahmastra & Co. and Mr. Shiva as he is estopped
to back from his representation made to the petitioner. Mr. Shiva was a minor at the time
of entering into the contract, the declaration as to his age was fraudulently made to
deceive the appellant, and the plaintiff had subsequently ratified the contract after
attaining majority and thus; in any case, the Court should not grant the respondent any
relief without making him repay the money advanced.

A.DOCTRINE OF ESTOPPEL

2)
Respondent is estopped by Section 115 of the Indian Evidence Act 1872 from setting up
that he was an infant when he executed the agreement. The section is as follows:
“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.”1
3) In the case of B. Manjunath v. C.G.Srinivas2 it has been stated by the Karnataka High
Court that by way of the principle of estoppel, the respondent may be stopped to go back
on his representation.
4) In the case of Sanatan Gauda v. Bharampur University3 the university was estopped
to go back its representation and was ordered to release the results of that student. In this
case Mr. Shiva is estopped from going back on his promise made to the petitioner and
should execute the agreement between Brahmastra & Co and Mr. Shiva.

ISSUE II: WHETHER THE CIVIL COURT OF SARDAM WAS CORRECT IN REJECTING
THE PLEA OF RESTITUTION?

5) The Civil Court of Sardam was not correct in rejecting the Plea of Restitution filed by
M/s Brahmastra & Co according to the doctrine of equitable restitution. This argument is
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1 Indian Contract Act 1872, § 3
2 AIR 2005 Kant 136
3 1990 AIR 1075, 1990 SCR (2) 273

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of 3 folds they are; doctrine of restitution [A]; restoration of benefit under specific relief
act, 1963 [B]; doctrine of supply of necessities [C].

A. DOCTRINE OF RESTITUTION

6) Section 65 of the Indian Contract Act, 1872 defines the rules of Doctrine of restitution. It
deals with the obligation of a person who has received advantage under void agreement
or contract that becomes void.
7) So according to section 65 of the Indian Contract Act, 1872 “When an agreement is
discovered to be void, or when a contract becomes void, any person who has received
any advantage under such agreement or contract is bound to restore it or to make
compensation for it, to the person from whom he received it.”4
8) In Mohori Bibee V. Dharmodas Ghose5, the court held concerning issue two that
minors who fraudulently misrepresent themselves to be a major can refuse to perform the
contractual obligation but at the same time in equity cannot retain the benefit derived out
of the void agreement.
9) In this case, in paragraph 1 of the fact sheet, it is clearly given that Mr. Shiva
misrepresented himself as a major and entered into the contract therefore he is liable as
per the doctrine of restitution given under section 65 of the Act.

10) 10) As per section 33(2)(b) of the Specific Relief Act, 1963, “that the agreement sought
to be enforced against him in the suit is void by reason of his not having been competent
to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the court may,
if the defendant has received any benefit under the agreement from the other party,
require him to restore, so far as may be, such benefit to that party, to the extent to which
he or his estate has benefited thereby.”6
11) One of the judges observed that the terms of above stated sections of SRA is not
exhaustive and in order to grant equitable relief whether a minor is plaintiff or defendant
it makes no difference as the circumstance in the both the cases are exactly same, minor
has fraudulently entered into an agreement, the other party deserves to be compensated7
12) In the present case minor was not a plaintiff but was a defendant who derived benefit
because of his fraudulent act by making the other party believe he was a major and in
order to do complete justice repayment or restitution of benefit is not enforcement of void
agreement but reverting the parties to the condition in which they were, before the void
agreement.
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4 Indian Contract Act 1872, § 65
5 [1903] UKPC 12, (1903) LR 30 IA 114
6 Specific Refief Act, 1963 § 33
7 Khan Gul Vs. Lakha Singh 1928 Lah HC

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13) Leslie Ltd. vs Sheill8, the court, in this case, held that if a minor misrepresents his age, he
will be compelled to restore the benefit that he has received as long as the same good his
present with the minor, this case led to the emergence of Doctrine of Equitable
Restitution.
14) The court held that if the equivalent sum is asked to be paid by a minor then it would
amount to enforcement of a void agreement, restitution does not extend to repayment in
case of minors and the principle who seeks equity must do equity does not enforce the
contractual obligation against minors.
15) Therefore is the obligation of Mr. Shiva to restore the benefits he got from this contract
to M/s Brahmastra & Co
16) As per section 68 of the Indian Contract Act, “If a person incapable of entering into a
contract, or any one whom he is legally bound to support, is supplied by another person
„with necessaries suited to his condition in life, the person who has furnished such
supplies is entitled to be reimbursed from the property of such incapable person”.9

17) It was held in Nash V. Inman10, that in an action against an infant for necessaries, the
onus is on the plaintiff to prove, not only that the goods were suitable to the condition in
life for the infant, but also that he was not sufficiently supplied with the goods of that
class at the time of sale and delivery.
18) Necessaries‟ may depend upon the status of a person, and also his requirements at the
time of actual delivery of the goods.11 In the case of Jagon Ram v Mahadeo Prasad
Sahu,12 it was observed that necessaries mean goods suitable to the condition in life of
the defendant and also to his actual requirements at the time of the sale and delivery.
19) In Kunwarlal vs. Surajmal,13 a house given on rent to a minor for living and continuing
his studies was deemed to be supply of necessaries suited to minor‟s condition in life and
the Court allowed the recovery of the rent for the house.
20) In Khan Gul v. Lakha Singh14, Sir Shadi Lal, C.J. of the Lahore High Court laid down
that “A minor could be asked to compensate the ill gains even when the property cannot
be traced.” Here Mr. Shiva was in need of multi-purpose building with a recording studio
and a roof top pool as he was a singer and needed funding for his album.

ISSUE III: WHETHER SHIVA WAS LIABLE FOR THE OFFENCE OF DEFAMATION
UNDER INDIAN PENAL CODE?
It is humbly submitted before this court that Shiva is liable for the offence of defamation under
section 499 of Indian penal code 1860 as it satisfies all the essential ingredients of defamation.
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8 (1914) 8 K B 607
9 Indian Contract Act 1872, § 68
10 [1908] 2 KB 1
11 Chappel Vs. Cooper (1844) 153 ER 105
12 (1909) ILR 36 Cal 768
13 AIR 1963 MP 58
14 Supra 7

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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.10 "There is no Statute in India dealing with civil liability for
defamation, the rule of equity, justice and good conscience needs to be applied. This has been
interpreted by the Privy Council in the case of Waghela Rajsanji Vs. Shekh Masluddin to
mean the rules of English Law if found applicable to India society and circumstances."
Reference can also be made to the case of T.V. Ramasubba Iyer and another Vs. A. M.
Ahamed Mohideen.

In State of Bihar v Lal Krishna Advani the Supreme Court held that right to reputation is an
essential facet of an individual‟s right to life. It is an integral and important aspect of dignity of
an individual. The wrong of defamation is to make a statement that injures the reputation of the
person to whom it refers and „exposes him to hatred, ridicule or contempt, or which causes him
to be shunned or avoided or which has a tendency to injure him in his office, profession or
calling.‟ Such a statement must be published for it to qualify as a defamatory statement.
Reputation of a person would mean the opinion that others have of him Section 499 of the Indian
Penal Code states that „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 expected, to defame that person.‟ Though the
fifth exception to this section allows individuals to make comments on cases yet such a privilege
is a qualified one. Thus, such a comment must be confined to the merits of the case and should
not be a mere declamation that brings into contempt and hatred the administration of justice or
injures the character of the individual.

In Naresh Sridhar Mirajkar v State of Maharashtra15 the court opined that restraint to
protect the interests of free and fair trial could not be held to be violative of the fundamental right
to freedom of speech and expression as envisaged under Article 19(1) (a) of the Constitution of
India. This view has been concurred with in M.P. Lohia v State of West Bengal16 where it was
stated that freedom of speech and expression may at times amount to interference with
administration of justice and in such cases where there is a conflict between liberty of press and
administration of justice, the former is subordinate to the latter. The court in Reliance
Petrochemical v Proprietors of Indian Express Newspapers Bombay (P.) Ltd.17 formulated
a three-test step which was to be followed before granting of an injunction. The test specified
that injunction should be granted on reasonable grounds for administration of justice to be kept
unimpaired, there should be reasonable ground to believe that the danger apprehended is real and
imminent and it should be based on the balance of convenience test.

As per the explanation 2 the section “It may amount to defamation to make an imputation
concerning a company or an association or collection of persons as such”. The main essential
ingredients of defamation are publishing allegation which is made to cause harm to the person to

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whom it is made by either word‟s signs or visible representation. as he was a major while
publishing the content over social media having nearly 15000 followers, where he accused them
of cheating people. A person is liable under defamation if the statement he made is of falsely in
nature.

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15 Naresh Sridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1.
16 M.P. Lohia v State of West Bengal, (2005) 2 SCC 686
17 Reliance Petrochemicals v Proprietors of Indian Express Newspapers Bombay (P.) Ltd, AIR 1989 SC 190.

MEMORIAL for PETITIONER