Memorial (Appellant)

THE 3rd MRINALINI DEVI MEMORIAL NATIONAL
MOOT COURT COMPETITION, 2022
Before
THE HON’BLE HIGH COURT OF JUDICATURE AT GULLU
UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE
SURAJ BAGAN …………………………………....... [APPELLANT]
V.
RENUKA CHAKRABORTY ……....………... [RESPONDENT]
MEMORIAL FILED ON BEHALF OF THE APPELLANT
COUNSEL APPEARING ON BEHALF OF THE APPELLANT
TABLE OF CONTENTS
THE 3RD MRINALINI DEVI MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022
CONTENTS PAGE NO.
1) LIST OF ABREVIATIONS …………………………………………. 03
2) INDEX OF AUTHORITIES ………………………………………… 04
3) STATEMENT OF JURISDICTION ………………………………… 06
4) STATEMENT OF FACTS …………………………………………… 07
5) STATEMENT OF ISSUES ………………………………………….. 11
6) SUMMARY OF ARGUMENTS ……………………………………... 12
7) ARGUMENTS ADVANCED ………………………………………... 13
8) PRAYER …………………………………………………………… 24
LIST OF ABBREVIATIONS
MEMORIAL FILED ON BEHALF OF THE APPELLANT 2

A.I.R ALL INDIA REPORTER
ANR ANOTHER
ART. ARTICLE
ED. EDITION
E.G EXEMPLUM GRATIA
HC HIGH COURT
HON’BLE HONOURABLE
CPC CODE OF CIVIL PROCEDURE
I.E THAT IS
I.L.R INDIAN LAW REPORTER
LR LAW REPORTER
ORS. OTHERS
NO. NUMBER
P. PAGE
SC SUPREME COURT
SCC SUPREME COURT CASES
SCWR SUPREME COURT WEEKLY REPORT
SEC. SECTION
UOI UNION OF INDIA
VIZ. NAMELY
V. VERSUS
& AND
INDEX OF AUTHORITIES
I. CONSTITUTION
1. Constitution of India

II. STATUTES
1. The Constitution of India, 1950.
2. Indian Evidence Act, 1872.
3. Indian Contract Act, 1872.
4. The Code of Civil Procedure, 1908.
5. The Limitation Act, 1963.
6. The specific Relief Act, 1963.
7. The Transfer of Property Act, 1872.
III. BOOKS
1. Batuk Lal, The Law of Evidence, Central Law Agency, Twenty Third Edition, 2020.
2. M.Monir, The Law of Evidence, Universal Lexis Nexis, Twelfth Edition,2021.
3. Dr. R.K.Bangia , Contract-1 , Allahabad Law Agency, Seventh Edition, 2017.
4. Dr. R.K.Bangia , Contract-2, Allahabad Law Agency, Seventh Edition,2017.
5. Rajesh Kapoor, Avtar Singh's CONTRACT & SPECIFIC RELIEF, Eastern Book
Company, Twelfth Edition, 2017.
6. Dr. R.k.Sinha , The Transfer of Property, Central Law Agency, Twelfth
Edition,2019.
7. Dr. S.R.Myneni, Law of Property, Asia Law House Hyderabad, Second
Edition,2020.
8. Sukumar Ray, The code of Civil Procedure, Universal Law Publishing co., Second
Edition, 2012.
9. Justice C.K.Thakkar(Takwani), Civil Procedure, Eastern Book Company, Ninth
Edition, 2021.
10. Dr. Anirudh Prasad , Outlines of Legal Language in India, Central Law Publications,
Ninth Edition, 2019.
11. P.M.Bakshi, The Constitution of India, Universal Law Publishing co., Eighth
Edition, 2007.
12. Durga Das Basu, Introduction to the Constitution of India, Universal Lexis Nexis,
Twentieth Edition,2010.
13. J.N.Pandey, Constitutional Law of India, Central Law Agency, Fifty Seventh Edition,
2020.
14. V.N.Shukla , Constitutional Law of India, Eastern Book Company, Twelfth Edition,
2013.
15. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency, Eighth
Edition, 2012.
16. M.P.Jain , Indian Constitutional Law, Universal Lexis Nexis, Eighth Edition, 2020.
IV. WEBSITES
1. https://www.scconline.com
2. https://indiankanoon.org/
3. www.legalblog.in
4. www.casemine.com

5. www.lawyersclubindia.com
6. www.legalcrystal.com
V. CASE LAWS
1) Union of India v. Ibrahim Uddin,(2012) 8 SCC 148: JT 2012 (6) SC 466: (2012) 6 SCALE
476.
2) Govindraja v. Mariamman,AIR 2005 SC 1008.
3) Chunilal V. Mehta and sons Ltd. Vs Century Spg. & Mfg.Co.Ltd., AIR 1962 SC
1314:1962 Supp(3) SCR 549.
4) Syeda Rahimunnisa v. Malan Bi,(2016) IO SCC 315:(2017) I SCC (Civ)40;M.B.Ramesh
v. K.M. Veeraje Urs, (2013)7 SCC 490:(2013)3 SCC (Civ) 576.
5) Collector of Jabalpur v. A.R. Jahangir,AIR 1971 MP 32; K.Krishna Chettiar v. Ambal &
Co.,AIR 1970 SC 146; Mahmood v. State of U.P.,AIR 1976 SC 69.
6) Bal Krishna Das Agarwal v. Radha Devi and others, AIR 1989 All.133.
7) Bishamber v. State of Uttar Pradesh, AIR 1982 SC 33.
8)Tukaram Kanna Joshi v. M.I.D.C.,AIR 2013 SC 565.
9) Ajay Gupta v. Raju,(2016)14 SCC 314:(2017)3 SCC (Civ)306.
10) Sk. Mohammad Ismail v. Sk. Anwar Ali , AIR 1991 Cal 391.
11) Sanghamitra v. Director of Higher Education ,(2003) l RCR 175 (Ori).
12) Rikhabdas v. Chandro ,AIR 1971 All. 234.
13) Pindukuru Balarami Reddy v. Jaladanki Venkatasubbaiah, AIR 1965 AP 386.
14)Welspur Speciality solutions Ltd. V. ONGC, LL 2021 SC 646.
15) F.C.I. v. Anupama Warehousing Establishment, AIR 2004 Ker. 137.
16) Dharam Chand Soni v. Sunil Ranjan AIR 1981 Cal 323, 85 CWN 858.
17) H.P.Pyarejan v. Dasappa, AIR 2006 SC 1144.
18) Silvey v. Arun Varghese, AIR 2008 SC 1568.
19) V.R.Sudhakara Rao v. T.V.Kameswari , (2007) 6 SCC 650.
20) Aniglase Yohanna v. Ramlatha , 2005 (7) SCC 534.
21) Bala Krishna v. Bhagawan Das, AIR 2008 SC 1786.
22) G.Jayashree v. Bhagawan Das, AIR 2009 SC 1749.
STATEMENT OF JURISDICTION
The counsel for the Respondent, State of Gullu, hereby humbly submits to this Hon’ble High
Court’s jurisdiction under Section 100 of the Code of Civil Procedure.
The Respondent would like to humbly submit that the second appeal filed by the appellant is
not maintainable.

Section 100 provides as:-

Second appeal--
(1) Save as otherwise expressly provided in the body of this code or by ant other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in appeal
by any Court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case involves such question.
STATEMENT OF FACTS
1. Description of Land:
The land is 40*20= 800 square feet bearing khasra number 26/11, surrounded by road on
North, lane on South, house of Akash Banerjee on East and house of Dinesh Agarwal on
West.
2. Contract of the descripted land:

On, 06.12.2006, Mrs. Renuka Chakraborty, entered into a sale agreement for purchase of
this land with Suraj Bagan, owner of the land for a consideration amount of Rs. 60 lacs
and as earnest money she already made the part payment of Rs. 5 lacs with the promise to
pay the balance amount of Rs. 55 lacs after six months at the time of registration of the
sale deed.
3. Identification of the land:
The identification of the land was based on a map which was prepared by a local private
surveyor. The agreement to sale which was executed between the respondent and the
appellant specifically contained a clause that if the plaintiff demands, before the
registration of the sale deed, the defendant will get the suit land measured and demarcated
from the revenue officer by formally filing the application before the revenue court of
respective jurisdiction. It also contained the clause that in case of breach of contract the
earnest money will not be refunded.
4. There is no breach of contract:
The Appellant pleaded that that in the agreement dated 06.12.2006 there was no condition
precedent for the measurement of the suit land and that the dimensions and the
identification of the land is already established. But the defendant failed to fulfil his part
of the promise and that he was not ready and willing to perform his part of the contract.
The defendant also pleaded that before the due date of registration that is before
06.06.2007, an advance notice dated 05.06.2007 was issued to the respondent informing
him about the execution of the sale agreement, and requesting to be present in the registry
office. But the next day the respondent was not present at the registry office neither there
was any reply to the notice dated 05.06.2007. The appellant has complied with his part of
the contract. Appellant also pleaded that in this case time was the essence of the contract.
It was clearly informed to the respondent that appellant is in urgent need of money for
appellant’s daughter’s wedding and therefore the sale agreement must be executed by
06.06.2007. Appellant has also made a plea that the suit filed by the respondent is barred
by period of limitation.
5. Filing a Suit:
Aggrieved by the same the respondent on 27.11.2011 filed a suit of specific performance
of the sale agreement dated 06.12.2006 in the Honourable Court of Civil Judge Class – I

at Gullu. It was pleaded by the respondent that the appellant committed a breach of
contract. There was a condition precedent incorporated in the clause of the sale agreement
that the appellant before 06.06.2007 will get the suit land measured and demarcated from
the revenue officer. He did not complied with the said condition and in breach of which
the suit land was sold to Mr. Akash Benarjee only for the higher consideration amount. It
was also pleaded that the respondent also had the malafide intention to grab the earnest
money. Therefore, she is entitled for a decree of the specific performance of contract or
for the refund of the earnest money.
6. Evidences presented before the Trial Court by the Appellant:
Appellant stated that the identification of the plot is clearly known to the respondent and
there was no such condition precedent. Further he deposed that such process of
demarcation was to be initiated only on the application of the respondent but no such
application of such request was received by the appellant. Appellant further deposed that
on 05.06.2007 he wrote a letter to the respondent requesting her to be present in the
registrar office for the registration of the sale deed but she was not present. Appellant
further stated that at the time of sale agreement that is on date 06.12.2006 it was duly
informed to the respondent that appellant is in urgent need of money for appellant’s
daughter’s wedding and therefore sale deed must be registered on 06.06.2007. Appellant
however, admitted this fact in his cross examination that the identification of the suit land
is based on the survey conducted by a private surveyor and that the same is not updated in
revenue officer map.
7. Judgement of the Trial Court:
The trial court after appreciating all the evidences brought on records framed the
following issues:- 1. Whether the suit of the respondent is barred by the period of
limitations. 2. Whether there was the condition precedent in the sale agreement dated
06.12.2006 to get the suit land measured and demarcated by the revenue officer at the
behest of the appellant. 3. Whether time was the essence of the contract. 4. Whether the
respondent was ready and willing to perform his part of the contract. 5. Whether the
respondent is entitled for the refund of earnest money and for the relief of specific
performance of the contract. 6. Relief and costs The trial court with regard to issue
number one considered the paragraph in the plaint under order 7 rule 6 specifying the
grounds on which the delay of sixteen months in filing the suit and the interest of justice

condoned the delay with regard to issue number two the court was the opinion that the
dimension of the disputed property and it's identifications cannot be ascertained by a map
prepared by a private surveyor referring to section 75 and section 87 of the Evidence act
the map prepared by the private surveyor is the private document which does not holds
much evidentiary value with regard to the identification of the disputed property therefore
it was incumbent upon the appellant to get the suit land measured and demarcated from
the revenue officer and thereby issued have noticed to the plaintiff informing her about
the fulfilment of the condition precedent and thereafter should have waited for the
proposal from the respondent. Therefore holding that the agreement deed contained the
condition precedent the issue number two was decided as proved with regard to issue
number three and four the court was of the opinion that since the readiness and
willingness of the respondent can be considered only from his conduct after the fulfilment
of condition precedent hence his factor does not comes into consideration unless the
cause of action for the respondent to initiate the correspondence with the appellant for the
registration of the sale deed does not arises. Therefore, on these grounds the court found
the respondent entitled for the decree of specific performance of contract.
8. First appeal filed by the Appellant:
The first appellate court didn't find any infirmity in the decree passed by the court of first
instance and thereby dismiss the appeal.
9. Second appeal filed by the Appellant:
The appellant is now approaching the Honourable High Court of Judicature at Gullu
under section 100 of the code of civil procedure of 1908.

STATEMENT OF ISSUES
1. WHETHER THE SECOND APPEAL FILED BY THE APPELLANT BEFORE

THE HON’BLE HIGH COURT OF JUDICATURE AT GULLU IS
MAINTAINABLE OR NOT?
2. WHETHER THE HON’BLE COURT OF CIVIL JUDGE CLASS-I HAS

JUSTIFIED IN ITS JUDGEMENT?
3. WHETHER THE BREACH OF AGREEMENT TO SALE IS JUSTIFIABLE

FOR FULFILMENT OF SPECIFIC PERFORMANCE OF CONTRACT?

SUMMARY OF ARGUMENTS
ISSUE-I
It is humbly submitted before the Hon’ble High Court of judicature at Gullu, that the second
appeal filed by the appellant is maintainable as an appeal shall lie to the High Court if the
substantial question of law is involve in any case. This appeal has necessary ground as it
includes the question regarding relevancy of the demarcation report and the measurement of
the land revenue officer, the question regarding the evidentiary value of the map prepared by
private surveyor under Section 75 and 87 of the Evidence Act, 1872 and the violation of
Natural Justice and Right to Property.
ISSUE-II
It is humbly submitted by the appellant before the Hon’ble High Court of Gullu that the
Hon’ble Court of Civil Judge Class-I is not justified in its judgement. As the Civil Court
entertains the suit filed by the respondent after the expiration of limitation period, by
declaring the time was not essence of contract in this case and overlooked the evidences

regarding the failure to perform the contract of Respondent and gave a decree of specific
performance of contract.
ISSUE-III
It is humbly submitted by the appellant before the Hon’ble High Court of Judicature at Gullu
that the respondent did not entitled for the decree of specific performance of contract. As the
respondent did not met necessary grounds for specific performance of the contract.
Respondent did not match the conduct of parties and readiness and willingness for
performing the specific performance of contract. Also this specific performance violated
Akash Banerjee’s Right to Property.
ARGUMENTS ADVANCED
ISSUE-I: Whether the second appeal filed by the appellant before the Hon’ble High
Court of Judicature at Gullu is maintainable or not?
It is humbly submitted before this Hon’ble judicature at Gullu that the Second Appeal filed
by the Appellant is maintainable as an appeal shall lie to the High Court if the Substantial
Question of Law is involved in any case. Existence of a Substantial Question of Law is sine
qua non for the exercise of jurisdiction under the provision of Section 100 of the Code 1 is
limited to the Substantial Question of Law2.
In the case of Chunilal V. Mehta and sons ltd. V. Century Spg. Mfg. Co. Ltd. 3 The
Supreme Court observed:
“the proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
1
Union of India v. Ibrahim Uddin,(2012) 8 SCC 148: JT 2012 (6) SC 466: (2012) 6 SCALE 476
2
Govindraja v. Mariamman,AIR 2005 SC 1008
3
AIR 1962 SC 1314:1962 Supp(3) SCR 549

substantially affect the right of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this court or by the privy council or by the Federal Court
or is not free from difficulty or calls for discussion of alternative views. If the question is
settled by the highest court for the general principals to be added in determining the question
are well settled and there is a mere question of applying those principles or that the plea
raised is palpably absurd, the question would would not be a Substantial question of Law”
From this, it can be said that whether it directly and substantially affects the rights of
parties or is not free from debt or calls for alternative views, it will be called Substantial
Question of Law.
Whether a particular question is a substantial question of law or not depends upon

facts and circumstances of each case and rule of Universal Application can be laid down4.
This appeal is maintainable as, firstly, there is a question arise about the relevancy of
demarcation report and the measurement of land done by revenue officer. Secondly, the map
propound by the private surveyor does not have any evidentiary value under Section 75 and
87 of the India Evidence Act. At last the violation of Constitutional Right and Natural Justice.
1. Relevancy of the demarcation report and the measurement of the land done by
Revenue Officer:
It is humbly submitted by the Appellant before this Hon’ble Court of Judicature at
Gullu that, a demarcation and measurement report of the land by a Revenue Officer
holds much value than a local private surveyor’s report. The Revenue Officer’s report
can be came under Public Document. But, in this case the question of relevancy did
not arised. As in the clause of agreement to sell, which was trade between Suraj
Bagan and Renuka Chakraborty, clearly states that “if plaintiff demands, before the
registration of sale deed the defendant will get the suit land measured and demarcated
from the revenue officer.”, and before this a local private surveyor made a map for
identification of the suit land.
The Respondent never made such application of such request to the Appellant.
So, the question regarding relevancy of demarcation report land measurement of the
land done by revenue officer did not arise.
4
Syeda Rahimunnisa v. Malan Bi,(2016) IO SCC 315:(2017) I SCC (Civ)40;M.B.Ramesh v. K.M. Veeraje Urs, (2013)7
SCC 490:(2013)3 SCC (Civ) 576

2. The map prepared by the private surveyor does not have any evidentiary value
under Section 75 and 87 of the Indian Evidence Act:
It is humbly states that, the map prepared by the surveyor does have the
evidentiary value under Section 75 and 87 of the Indian Evidence Act.
Firstly, the map prepared by local Private Surveyor is came under the
definition of Section 75 of the Indian Evidence Act, 1872, which states that except
Section 74 all the other documents are private documents.
Secondly, a person’s thought in respect of the existence on a fact is opinion
and what is presented to the senses of a witness and of which he receives direct
knowledge without any process of thinking and reasoning is not opinion.
In this case the local surveyor did not make any report without any reasoning.
Also, according to the Section 45 of the Indian Evidence Act, 1872 states opinions of
experts as,
Opinions of experts. –– When the Court has to form an opinion upon a point of foreign
law or of science, or art, or as to identity of handwriting, 2 [or finger impressions], the
opinions upon that point of persons specially skilled in such foreign law, science or art, 3
[or in questions as to identity of handwriting] 2 [or finger impressions] are relevant
facts.
Such persons are called experts.
The Section also gives a definition of an expert witness. An expert is one who
has acquired special knowledge, skill or experience in any science, art, trade or
profession such knowledge may have been acquired by Practice, observation or
careful studies5.
In Bal Krishna Das Agarwal V. Radha Devi and Ors. 6, an expert was
defined as a person who by his training and experience has acquired the ability to
express an opinion but an ordinary witnesses does not possess this quality. The
evidence of an expert is such evidence which is based on expertice and experience in
this matter.
5
Collector of Jabalpur v. A.R.Jahangir,AIR 1971 MP 32; K.Krishna Chettiar v. Ambal & Co.,AIR 1970 SC
146; Mahmood v. State of U.P.,AIR 1976 SC 69
6
AIR 1989 All. 133

The real value of expert’s evidence consists in rightful in what he draws

from what he observed. The evidence of an expert is such evidence which is based on
expertice and experience, here are some prerequisites-
Prerequisites of Expert Evidence
To admit expert opinion as an evidence there are two things must be proved,
namely-
1. The subject is such that expert testimony is necessary, and
2. The witness in question is really an expert.
1. The subject is such that expert testimony is necessary
Where the Court was able to form its own opinion from facts and circumstances of the
case it can be said that expert opinion is not necessary. But wherein, some technical
question is involved which can be answered by a person especially skilled, it can be said
that the expert opinion is necessary.
In this case, the local private surveyor prepared map for the identification of the
disputed land.
2. The witness in question is really expert
In order to bring the evidence of a witness as that of an expert it has to be shown that he
made a special study on the subject or he is skilled and has adequate knowledge. Davis J.
has observed that “Art in its legal significance embraces every operation of human
intelligence whereby something is produced outside of nature. The expression ‘science or
arts’ includes all subjects on which a course of special study or experience is necessary to
the information of an opinion”
The word ‘art’ is to be broadly construed and not being limited to fine arts but having
its origin sense of handcrafts, trade, profession and skill in worth.
Here in this case, the private surveyor can be considered as an expert as he made map
on basis of knowledge.
Hence, it is proved that he can be considered as an expert and the map as evidence.
3. Conflict of Judicial Opinion as the Violation of National Justice and

Constitutional Rights:

The phrase “Natural Justice means that Justice should be impartial fair equal for all and
ensuring protection of individual rights against arbitrary procedure and miscarriage of justice
by the authorities”
In other words, it is the soul of the body of justice and foundation on which delivery
of justice is biased. The rules of natural justice are foundational and fundamental concept of
law, which are considered as an indispensable part of the legal and judicial system.
In this case, the Hon’ble Court of Civil Judge Class-I of Gullu grant the decree for
fulfilment of specific performance of contract i.e. the respondent Suraj Bagan had to
fulfilment the contract by transferring the property to Mrs. Renuka Chakraborty. On the date
30.07.2007, Mr. Suraj Bagan execute a sale deed for the disputed land with Mr. Akash
Banerjee for a consideration amount of Rs. 85 lacs. The registrar registered the sale deed
between the Appellant and Mr. Akash Banerjee is also a neighbour of Suraj Bagan. Around
past 5 years he have been residing on the property. The right against the property of Akash
has taken birth by the date of 30.07.2007 when he got the ownership and possession both.
Now, the judgement of trial court violated his right because as per the Judgement the disputed
property have to give to Renuka Chakraborty. On another hand, Suraj Bagan have to pay
back the amount of 85 lacs which can also increase as per the market value. So, the appellant
will face a great loss. Both aspects of violation of Right to Property and grave losses of
Appellant.
Also, the Judgement of the trial court violates the constitutional right to property of
Akash Banerjee.
According to the Article 300A, “No person shall be deprived of his property save
by authority of law”
Right not to be deprived of property save by authority of law is no longer a

fundamental right though it is till a constitutional right7.
The right to property is now considered to be not only a constitutional or a statutory right but
also a human right. Though, it is not basic feature of the Constitution or a fundamental right.
Human Rights are considered to be in realm of individual right, such as right to health, right
to livelihood , right to shelter and employment, etc. now human rights are an even greater
7
Bishamber v. State of Uttar Pradesh, AIR 1982 SC 33

multifaced dimension. The Right to Property is considered very much to be a part of such
new dimension8.
Hence, it is prayed that there is many question arising on the basis of trial Judgement of
Hon’ble Court of Judicature at Gullu and raises a proper substantial question of law.
ISSUE-II: Whether the Hon’ble Court of Civil Judge Class-I has justified in its
judgement?
It is humbly submitted that the Hon’ble Court of Civil Judge Class-I was not justified in its
judgement, there are different aspects as follows:-
A. The suit of Respondent before the Hon’ble Court of Gullu is barred by the
period of limitation:
Mrs. Renuka Chakraborty filed a suit dated on 27/11/2011 in the Hon’ble Court of Civil
Judge Class-I at Gullu against Suraj Bagan. As per Section, the disputed land had
transformed to Mr. Akash Banerjee on the date of 30.07.2007. After 4 years and 4 months
Mrs. Renuka filed a suit against Suraj Bagan that Suraj committed breach of contract.
There was a condition precedent incorporated in the clause of the sale agreement that if
the plaintiff demands before the registration of the sale deed the defendant will get the
suit land measured and demarcated from the revenue officer by formally filing the
application before the revenue court of respective Jurisdiction.
As per Section 3 of the Limitation Act, 1953, every suit instituted after the prescribed
period shall be dismissed, though limitation has not been set up as a defence.
The general rule laid down in Section 3 of the Limitation Act, 1963 declares that
every suit, appeal or application filed after the period of limitation shall be dismissed9.
So far as suit is concerned the rule is absolute and unqualified. Any suit instituted
after the prescribed period of limitation has to be dismissed in as much as there is no
provision for condition of delay in filing a suit10.
8
Tukaram Kanna Joshi v. M.I.D.C.,AIR 2013 SC 565
9
Ajay Gupta v. Raju,(2016)14 SCC 314:(2017)3 SCC (Civ)306
10
Ajay Gupta v. Raju,(2016)14 SCC 314:(2017)3 SCC (Civ)306, Sk. Mohammad Ismail v. Sk. Anwar Ali , AIR
1991 Cal 391, Sanghamitra v. Director of Higher Education ,(2003) l RCR 175 (Ori), Rikhabdas v.
Chandro ,AIR 1971 All. 234, Pindukuru Balarami Reddy v. Jaladanki Venkatasubbaiah, AIR 1965 AP 386

By virtue of Section 3 of the Act, it is obligatory on part of court, to dismiss the suit
or appeal if made after the prescribed period even though the limitation is not set up as a
defence, and there is no plea to raise the issue of limitation even at appellate stage
because in some of the case it may go to the root of the matter.
According to Article 55 of The Schedule Period of Limitation of The Limitation Act,

1963, for compensation of the breach of any contract, express or implied not herein
specially provided for the period of limitation is three years. In this case, Mrs. Renuka
had crossed the limitation period.
Every suit filed within the prescribed period of time and if not filed, it is liable to be
dismissed in view of Section 3 of the Limitation Act, 1963.
B. Condition Precedent in the sale agreement:
In this case, Mrs. Renuka Chakraborty and Suraj Bagan on 06/12/2006 entered into a sale
agreement for the purchase the disputed land for amount of total 60 lacs. The agreement
to sale which was executed between the plaintiff and the defendant specifically contained
a clause that if the plaintiff demands before the registration of the sale deed, the defendant
will get the suit land measured and demarcated from the revenue officer by formally
filing the application before the revenue court of respective jurisdiction.
In this sale agreement it is clearly states that “if the plaintiff demands”. In this case
the plaintiff has never demand to measure and demarcation of the land from the revenue
officer before the registration of sale deed. Hence, the defendant is not liable to demarcate
or measure the land as condition precedent of agreement to sell.
Suraj Bagan gave a description of the suit property which identifies the land based on
a map which was prepared by a local private surveyor has been considered as an expert
because he is having special knowledge and skill about the subject matter and the expert
opinion is granted as an evidence and holds more evidentiary value.
C. Time is the Essence of Contract:
When the time is essence of the contract, it is expected that the promisor would perform
the contract within stipulated time. On his failure to do so, the promisor has a right to
avoid the contract.

Effect of failure to perform at fixed time, in contract in which time is essential.—
When a party to a contract promises to do a certain thing at or before a specified

time, or certain things at or before specified times, and fails to do any such thing at
or before the specified time, the contract, or so much of it as has not been
performed, becomes voidable at the option of the promisee, if the intention of the
parties was that time should be of the essence of the contract.
Time is generally considered to be the essence of the contract in the following three
cases:
1. Where the parties have expressly agreed to treat it a lot the essence of the contract.
2. Where delay operates as an injury.
3. Where the nature and necessity of the contract requires it to be so construed, for
example, where a party asks for performance.
In this case, the time is really necessary essence of contract, as it contained the second
point here the delay of performing the contract made on injury to the appellant. Appellant
and Respondent clearly connected to the registration of sale deed on 30.06.2022. The
Appellant said that in this case, time was the essence of the contract. It is clearly informed
to the plaintiff that he is in urgent need of money for his daughter’s wedding and
therefore the sale agreement must be executed by 06/0/2007.
In spite of this, the Respondent did not fulfil his part of the contract. Appellant also
deposed that on 05/06.2007 he wrote a letter to the Respondent questioning her to be
present in the registrar offices for the registration of the sale deed but she was not present.
In the case of Welspur Speciality Solutions Ltd. V. ONGC11, the Supreme Court held
that it is now settled that, “whether time is of the essence in a contract” has to be called
out from regarding of the entire contract as well as the surrounding circumstances. Merely
having an explicit clause may not be sufficient to make time the essence of the contract.
In this case those surrounding circumstances has been raised as the Appellant clearly
informed at the time of agreement to sell that he is in urgent need of money for his
daughter’s marriage and she failed to comply of her part performance of contract, there
arise a right to avoid or cancelled the contract. In the case of F.C.I. V. Anupama
11
LL2021 SC 646

Warehousing Establishment12, when the contract’s part performance was not performed,
other party was held entitled to put an end to such contract.
D. Willingness to perform the Appellant’s part of contract:
In this case the Appellant was ready to perform his part of contract and he did also. In the
matter of demarcation and measurement of the disputed land by Revenue Officer, it is
clearly stated on the agreement to sell containing clause that “if plaintiff demands”,
before the registration of the sale deed, the defendant will get the suit land measured and
demarcated from the Revenue Officer by formally filing the application before the
revenue court of respective jurisdiction.
The Respondent never demanded any demarcation of measurement of any land. The
Appellant in the time of making the Agreement to sell prepared a map by a local private
surveyor for the identification of the land.
Also, the Appellant wrote a letter on 05.06.2007 to the Respondent requesting her to
be present in the registrar office for the registration of the sale deed but she was not
present on that day.
Also, Appellant gave time of six months for preparing to afford that amount of
money. Hence, it is clear that Appellant is willing to fulfil the contract and he fulfilled his
part performance of contract.
E. Claiming Refund of Earnest Money and the relief of Specific Performance of the
Contract:
It is humbly states that the Respondent is not entitled to refund of earnest money, as in the
agreement to sell dated on 06/12/2006, specifically contained a clause that in case of
breach of contract, the earnest money will not be refunded. The Respondent did not
perform of his any duty, she consented to the agreement to sell but on the time of
execution she was not present in the registration office. Hence, she is not entitled to get
the refund.
As per Section 73 of the Indian Contract Act, 1872
Compensation for loss or damage caused by breach of contract.—
12
AIR 2004 Ker. 137

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 it. Such compensation is not to be given for any
remote and indirect loss or damage sustained by reason of the breach.
In the case of Dharam Chand Soni V. Sunil Ranjan 13, it was held that the defendant
had the right to forfeit the amount as it constituted reasonable compensation to the seller
for the breach of contract by buyer.
It means that the Appellant was suffered the loss for breach of contract. He is entitled to
compensation not the Respondent.
ISSUE- III: Whether the breach of agreement to sale is justifiable for fulfilment of
Specific Performance of Contract?
It is humbly submitted before the Hon’ble Court of Judicature at Gullu that, specific
performance is a remedy develop by principal of equity. A party to a contract is breached by
another party has the option to file a suit for specific performance compelling to perform his
part of contract. Before an equity court will compel specific performance however, the
contract must be one which can be specifically performed.
According to the Section 16(c) of the Specific Relief Act, 1963-
[who fails to prove] that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other
than terms of the performance of which has been prevented or waived by the defendant.
It states that plaintiff must plead and prove that he had performed or has always been
ready and willing to perform the essential terms of the contract which are to be performed by
him, other than those terms, the performance of which has been presented or waived by the
defendant.
In our country, most of the specific performance suits relate to sales of immoveable
properties and to some extent, transfer of shares. As the law of specific performance is
basically founded on equity, considerations such as conduct of the plaintiff, the claimant of
13
AIR 1981 Cal 323, 85 CWN 858

the hardship that may be caused to one of the parties the availability of adequate alternative
relief and such other matters are taken into consideration. It is a discretionary relief.
There are some essential elements that are involved in a suit for specific
performance:-
Firstly, conduct of the parties:
Any person seeking benefit of specific performance of contract must manifest that his
conduct has been blemishless14. Similarly, conduct of defendant cannot be ignored15. The
relief of specific performance is discretionary 16. It was held in Aniglase Yohannan V.
Ramlatha17, that if the pleading manifest that the conduct of the plaintiff entitles him to get
the relief on persual of the plan plaint, he should not be denied the relief.
In this case Mrs. Renuka Chakraborty has been claiming the Specific Performance of
the contract but she on her own did not comply the provisions of agreement to sell which was
made on 06/12/2006 that the execution of sale deed will be placed on after six months. The
appellant sent her a letter on 05/06/2007 requesting her to be present in the registrar office for
the registration of the sale deed but she was not present.
Secondly, Readiness and Willingness:
Section 16(c) of the Specific Relief Act, 1963, mandates the plaintiff to over in the plaint and
establish the fact by evidence aliunde that he has always been ready and willing to perform
his part of the contract.
Distinction between ‘Readiness’ and ‘Willingness’ is that the former

financial capacity and the letter to the conduct of the plaintiff wanting performance.
The plaintiff’s readiness and willingness which is a condition precedent must be in

accordance with the terms of the agreement18. In a suit for specific performance, plaintiff is to
approach the court with clean hands19. .
14
H.P.Pyarejan v. Dasappa, AIR 2006 SC 1144
15
Silvey v. Arun Varghese, AIR 2008 SC 1568
16
V.R.Sudhakara Rao v. T.V.Kameswari , (2007) 6 SCC 650
17
2005 (7) SCC 534
18
Bala Krishna v. Bhagawan Das, AIR 2008 SC 1786
19
G.Jayashree v. Bhagawan Das, AIR 2009 SC 1749

Here, in this case the Respondent did not have any readiness or willingness to perform the
contract. As she was informed that the appellant was informed that the appellant was in
urgency of money for his daughter’s wedding but the respondent failed to pay the money
after taking six months. She was also requested by the letter dated 05/06/2007 to be present in
the Registrar office she was not present there.
Hence, it is clear that she is not ready and willing to perform her part of the contract
and cannot claim any specific performance of contract.
PRAYER
In the last light of the facts of the cases , issues raised and argument advanced reason
given and authorities cited, this Hon’ble High Court be pleased,
To maintain
The Second Appeal filed by the appellant before the Hon’ble Court of Judicature at Gullu.
To Direct
That the Hon’ble court of Civil Judge Class-I is not justified its judgements as the Court overlooked
the evidences.
To Declare
That the Respondent is not entitled for the decree of specific performance of contract.
And to grant any other relief/s that this Hon’ble Court may be pleased in the
interest of Justice, equity and good conscience.
All of which is respectfully submitted.

Counsel for the Appellant

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THE 3rd MRINALINI DEVI MEMORIAL NATIONAL

MOOT COURT COMPETITION, 2022

UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE

SURAJ BAGAN …………………………………....... [APPELLANT]

RENUKA CHAKRABORTY ……....………... [RESPONDENT]

MEMORIAL FILED ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

CONTENTS PAGE NO.

1) LIST OF ABREVIATIONS …………………………………………. 03

2) INDEX OF AUTHORITIES ………………………………………… 04

3) STATEMENT OF JURISDICTION ………………………………… 06

4) STATEMENT OF FACTS …………………………………………… 07

5) STATEMENT OF ISSUES ………………………………………….. 11

6) SUMMARY OF ARGUMENTS ……………………………………... 12

7) ARGUMENTS ADVANCED ………………………………………... 13

MEMORIAL FILED ON BEHALF OF THE APPELLANT 2

A.I.R ALL INDIA REPORTER

E.G EXEMPLUM GRATIA

CPC CODE OF CIVIL PROCEDURE

I.L.R INDIAN LAW REPORTER

SCC SUPREME COURT CASES

SCWR SUPREME COURT WEEKLY REPORT

UOI UNION OF INDIA

MEMORIAL FILED ON BEHALF OF THE APPELLANT 3

MEMORIAL FILED ON BEHALF OF THE APPELLANT 4

MEMORIAL FILED ON BEHALF OF THE APPELLANT 5

Section 100 provides as:-

2. Contract of the descripted land:

MEMORIAL FILED ON BEHALF OF THE APPELLANT 6

3. Identification of the land:

4. There is no breach of contract:

MEMORIAL FILED ON BEHALF OF THE APPELLANT 7

6. Evidences presented before the Trial Court by the Appellant:

7. Judgement of the Trial Court:

MEMORIAL FILED ON BEHALF OF THE APPELLANT 8

8. First appeal filed by the Appellant:

9. Second appeal filed by the Appellant:

MEMORIAL FILED ON BEHALF OF THE APPELLANT 9

1. WHETHER THE SECOND APPEAL FILED BY THE APPELLANT BEFORE

2. WHETHER THE HON’BLE COURT OF CIVIL JUDGE CLASS-I HAS

3. WHETHER THE BREACH OF AGREEMENT TO SALE IS JUSTIFIABLE

MEMORIAL FILED ON BEHALF OF THE APPELLANT 10

MEMORIAL FILED ON BEHALF OF THE APPELLANT 11

MEMORIAL FILED ON BEHALF OF THE APPELLANT 12

Whether a particular question is a substantial question of law or not depends upon

MEMORIAL FILED ON BEHALF OF THE APPELLANT 13

Such persons are called experts.

MEMORIAL FILED ON BEHALF OF THE APPELLANT 14

The real value of expert’s evidence consists in rightful in what he draws

2. The witness in question is really expert

3. Conflict of Judicial Opinion as the Violation of National Justice and

MEMORIAL FILED ON BEHALF OF THE APPELLANT 15

Right not to be deprived of property save by authority of law is no longer a

MEMORIAL FILED ON BEHALF OF THE APPELLANT 16

MEMORIAL FILED ON BEHALF OF THE APPELLANT 17

According to Article 55 of The Schedule Period of Limitation of The Limitation Act,

B. Condition Precedent in the sale agreement:

C. Time is the Essence of Contract:

MEMORIAL FILED ON BEHALF OF THE APPELLANT 18

Effect of failure to perform at fixed time, in contract in which time is essential.—

When a party to a contract promises to do a certain thing at or before a specified

MEMORIAL FILED ON BEHALF OF THE APPELLANT 19

D. Willingness to perform the Appellant’s part of contract:

As per Section 73 of the Indian Contract Act, 1872