1

TEAM CODETEAM
: T07 CODE :

HON’BLE JUSTICE
HON’BLE JUSTICE
TH
66TH FRESHER’S
FRESHER’S MOOT
MOOT COURT
COURT COMPETITION,
COMPETITION, 2022
2022

AT SCHOOL
AT SCHOOL OF
OF LAW,
LAW, UNIVERSITY
UNIVERSITY OF
OF MUMBAI
MUMBAI THANE
THANE SUB-CAMPUS
SUB-CAMPUS

BEFORE THE
BEFORE THE HON’BLE
HON’BLE HIGH
HIGH COURT
COURT OF
OF BOMBAIM
BOMBAIM

FIRST APPEAL
FIRST APPEAL NO.
NO. OF 2022
OF 2022

IN THE
IN THE MATTER
MATTER BETWEEN
BETWEEN

________________________________________________________________
________________________________________________________________
Mr.Shivam
Mr.Shivam ...Appellant
...Appellant//Original
Original
Plaintiff
Plaintiff

VERSUS
VERSUS

Mr.Yash
Mr.Yash …Respondent
…Respondent//Original
Original
Defendant
Defendant
________________________________________________________________
__________________________________________________________________

ONON SUBMISSION
SUBMISSION TOTO THE
THE HON’BLE
HON’BLE CHIEF
CHIEF JUSTICE
JUSTICE AND
AND COMPANION
COMPANION JUSTICES
JUSTICES OF
OF THE HIGH COURT OF BOMBAIM
THE HIGH COURT OF BOMBAIM

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………………..3

STATEMENT OF JURISDICTION …………………………………………………………4
STATEMENT OF FACTS ……………………………………………………………………5
ISSUES RAISED ……………………………………………………………………………..7
SUMMARY OF ARGUMENTS ……………………………………………………………..8
ARGUMENTS ADVANCED ………………………………………………………………..9
PRAYER …………………………………………………………………………………….16
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___________________________________________________________________________
LIST OF ABBREVATIONS
___________________________________________________________________________

& And
u/s Under Section
CPC Code of Civil Procedure, 1908
IPC Indian Penal Code, 1860
SRA Specific Relief Act, 1963
Hon’ble Honourable
Sec Section
v/s Versus
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___________________________________________________________________________
STATEMENT OF JURISDICTION
___________________________________________________________________________

The Appellant here has filed an appeal under sec. 6 of Specific Relief Act, 1963
and sec. 96 of Code of Civil Procedure, 1908.

Section 96 of Code of Civil Procedure, 1908:

a. 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 the Court au-
thorized to hear appeals from the decisions of such Court.

Section 6 of Specific Relief Act, 1963:

Suit by person dispossessed of immovable property.—
a. If any person is dispossessed without his consent of immovable property
otherwise than in due course of law, he or any person claiming through
him may, by suit, recover possession thereof, notwithstanding any other
title that may be set up in such suit.
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STATEMENT OF FACTS

1. Mr.Shivam, citizen of Indica and an investor in real estate, with an intention of open-
ing a manufacturing unit to produce Booster vaccines, decides to buy a commercial
property, in the fashion of “Dallard Estate”, admeasuring 3000 sq. ft.

2. Mr.Yash, the owner of Dallard Estate, inherited the property through the Will of his
father and has the intention of disposing it off. Dallard Estate is estimated at a value
of Rs. 85 lakhs.

3. Mr.Shivam agreed to pay a total sum of Rs.85 lakhs for buying the said property and
agreed to pay the entire amount in a total of 5 instalments, each instalment being of
Rs.17 lakhs, over a period of 10 months. After the 1 st instalment, the subsequent in-
stalments must be carried every 2 months with an interest @10% for every instalment.

4. The contract was signed on 10th January, 2021 between the parties and it contained
following clauses –
a) “the Contract will be terminated upon delay or non – payment of the instalments
by party A and / or by the non – performance of any of the clauses of the contract
by either of the parties, but only after a year has elapsed from the date of the first
instalment payable by party A.
OR
The contract can also be terminated on the happening of certain specified events.”
b) “The parties hereto agree that any monetary damage would not be a sufficient
remedy for any breach of this contract by ant party and each non – breaching Par-
ty shall be entitled to specific performance. It is accordingly agreed that the parties
shall be entitled to enforce specifically the terms and provisions hereof in any
court of the Indica.”

5. The first instalment of Rs.17 lakhs was paid on 15th January, 2021 i.e the specified
date. On 16th March, 2021 the second instalment of Rs.10 lakhs followed by Rs.8.7
lakhs on 25th March, 2021 was paid.
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6. On 12th May, 2021 ‘PECCA DEVELOPERS’, one of the biggest real estate develop-
ment companies in the country was on the verge of collapse due to the non-payment
of huge loans borrowed from banks and other NBFC’s. This caused the domino effect
on the entirety of the real estate industry. Furthermore, the real estate industry, due to
its interdependence, suffered a loss in the valuation of various real estate properties,
including commercial properties.

7. Urged by this development, Mr.Shivam, who was on the cusp to fulfil the third in-
stalment, prevented by the current situation, sent a notice to Mr.Yash requesting him
to grant him a buffer period. Consensus ad idem was achieved.

8. Eventually, Mr.Shivam, possessed the funds to pay for the instalments and thus made
several attempts towards contacting Mr.Yash but to no fruitful avail. Finally,
Mr.Shivam put his feet down and decided to visit the office of Mr.Yash on 20 th Octo-
ber, 2021 along with the amount of the instalment, but to his surprise he found out
that Dallard Estate was now a sold property to one Ms.Asha, at a price of Rs.1.3
Crores.

9. Ms.Asha, a philanthropist, with a desire to build an orphanage, eyed Dallard Estate as

the perfect property to advance her interest in. Thus, she placed a proposal to Mr.Yash
which was then accepted, resulting in a binding contract between the parties. The
agreement of sale and possession had been undertaken by Ms.Asha on 15 th January,
2022.

10. Mr.Shivam then filed a suit on 10th January, 2022, at the District Court, Bombaim.
The Court dismissed the suit claiming specific performance and confined the Defend-
ant to refund of Rs.35.7 lakhs along with an interest @12% p.a. as compensation.

11. Aggrieved by this ruling of the District Court of Bombaim, Mr.Shivam files the cur-
rent appeal in the High Court of Bombaim on 17th September, 2022.
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_______________________________________________________________________
ISSUES RAISED
___________________________________________________________________________

ISSUE 1:
WHETHER THE PRESENT APPEAL IS ADMISSIBLE AT THE
HIGH COURT OF BOMBAIM?

ISSUE 2:
WHETHER THERE EXISTS A VALID CONTRACT BETWEEN MS.
ASHA AND MR. YASH?

ISSUE 3:
WHETHER THE RELIEF OF SPECIFIC PERFORMANCE IS EN-
FORCEABLE?
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___________________________________________________________________________
SUMMARY OF ARGUMENTS
________________________________________________________________

Issue 1: Whether the present appeal is admissible at the High Court of

Bombaim?
The Appellant in a definite manner has locus standi in the present case and
hence the current first appeal filed by the Appellant/ Original Plaintiff is main-
tainable at the High Court of Bombaim under section 96 of The Code of Civil
Procedure Act, 1908.

Issue 2: Whether there exists a valid contract between Ms. Asha and Mr.
Yash?
The Appellant submits that, the contract between Ms. Asha and Mr. Yash is not
valid as there has been found a breach of Contract done on the part of the Re-
spondent / Original Defendant who has created the third party interest by going
against the clauses mentioned in the Agreement of Sale dated 10th January,
2021.

Issue 3: Whether the relief of specific performance is enforceable?

The Appellant / Original Plaintiff submits that, there has been a breach of con-
tract done on the part of the Respondent / Original Defendant by not fulfilling
the contract signed by both the parties on 10 th January, 2021. Therefore the Ap-
pellant / Original Plaintiff seeks relief of specific performance for recovery of
the possession of the suit property purchased from the Respondent / Original
Defendant.
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________________________________________________________________
ARGUMENTS ADVANCED
________________________________________________________________

1. Whether the present appeal is admissible at the High Court of Bom-

baim?
The Appellant / Original Plaintiff submits that the current first appeal is main-
tainable at the High Court of Bombaim as the Appellant / Original Plaintiff
clearly has locus standi. This Regular First Appeal under Section 96 of The
Code of Civil Procedure, 1908(CPC) is filed by the Appellant / Original Plain-
tiff in the suit. By the impugned judgment the trial court has decreed the suit for
specific performance filed by the Appellant / Original Plaintiff seeking specific
performance of the Agreement to Sale dated 10.1.2021 with respect to the entire
property at Dallard Estate admeasuring 3000 sq.fts, situated at South Bombaim.

1.1 The Present First Appeal is maintainable at the High Court at Bombaim
under section 96 of The Code of Civil Proedure Act, 1908.

1) The Appellant / Original Plaintiff submits that, the Trial Court decreed
the suit claiming specific performance and confined the Respondent /
Original Defendant to refund Rs.35.7 lakhs along with an interest @12%
p.a. as compensation to which the relief was rejected therefore the Plain-
tiff has filed the current first appeal u/s 96 of CPC which reads as,
Section 96 of the Code of Civil Procedure Act, 1908:-
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 the Court au-
thorized to hear appeals from the decisions of such Court.

2) The Appellant / Original plaintiff submits that, he was dispossessed of the

immovable property without his consent which he had purchased from
the Respondent / Original defendant. On account of this the Appellant has
locus standi to file the appeal in the High Court of Bombaim.
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3) The Appellant / Original Plaintiff further submits that, the Section 6 of

the Specific Relief Act, 1963 allows the person to file a suit to recover a
lawful possession of the suit property and therefore a suit was filed in the
trial court u/s 6 of SRA which reads as:-
Section 6 of The Specific Relief Act, 1963
If any person is dispossessed without his consent of immovable property
otherwise than in due course of law, he or any person claiming through
him may, by suit, recover possession thereof, notwithstanding any other
title that may be set up in such suit.

4) The appeal is maintainable at the High Court of Bombaim u/s 96 of CPC

and u/s 6 of SRA. Similarly, Appellant has locus standi to file the appeal
in the High Court of Bombaim.

5) The Appellant / Original Plaintiff relies upon the case of Ms.Mhrum Ni-
sha @ Hina vs Mr. Om Prakash1 wherein the appeal was maintainable
as the Plaintiff / Respondent has expanded the scope of suit u/s 6 of Spe-
cific Relief Act and have prayed for the possession of the suit property.

6) The Appellant / Original plaintiff drawing inference from the above case
submits that the Plaintiff / Respondent had filed an appeal against the
judgement and the appeal was maintainable u/s 6 of SRA.

7) Thus, the Appellant / Original Plaintiff humbly submits that, since the
plaintiff has leave to appeal in the High Court of Bombaim u/s 6 of SRA
against the decree passed by the trial Court.
Hence the appeal is maintainable.
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2. Whether there exists a valid contract between Ms. Asha and Mr.
Yash?
The Appellant hereby submits that, there has been found a breach of Con-
tract done on the part of the Respondent / Original Defendant who has
created the third party interest by going against the clauses mentioned in
the Agreement of Sale dated 10th January, 2021.

2.1 Contract between Mr. Shivam & Mr. Yash.

1) The Appellant / Original Plaintiff submits that, a contract was signed

on 10th January, 2021 between both the parties where the Appellant
had purchased the entire property of Dallard Estate from the Re-
spondent with the clauses mentioned in the contract. In spite of the
clauses mentioned the Respondent / Original Defendant has created
third party interest and sold the property to Ms. Asha.

2) The Appellant / Original Plaintiff submits that, irrespective of the

agreement of sale signed by both the parties the Respondent has sold
the property to Ms. Asha on 20th October, 2021 which completely
against the clause mentioned in the Contract which reads as:
Clause as per the Contract dated 10th January, 2021:
“The contract will be terminated delay or non-payment of the instal-
ments by party A and/or the non-performance of any of the clauses of
the contract by either of parties, but only after a year has elapsed from
the date of the first instalment payable by party A.”

3) Therefore, the Appellant / Original Plaintiff submits that, the Re-

spondent / Original Defendant has executed breach of Contract by
selling the property to the third party.

2.2 Contract between Mr. Yash & Ms. Asha

1) The Appellant / Original Plaintiff submits that, an agreement was

executed between the Respondent / Original Defendant and Ms.
Asha on 15th January, 2022 but the suit property was originally sold
to Ms. Asha on 20th October, 2021 which was against the clause
mentioned in the Contract which is illegal and completely against
the law.
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2) The Appellant / Original Plaintiff submits that, the Respondent /

Original Defendant has done a breach of contract on his part. Further
he states that, the property was sold by the Respondent / Original
Defendant before the termination of Contract which is against the
law and contract.
3) The Appellant / Original Plaintiff further submits that, the termina-
tion of the contract was to be done after one year from the date of
the first installment upon non-payment of the installment. However
consensus ad idem was achieved for buffer period which was re-
quested by the Appellant and the same was agreed by the Respond-
ent. In spite of that the Respondent breached the contract and sold
the suit property on 20th October, 2021, three months earlier from
the termination of the contract.
Hence the contract between Ms. Asha and Mr. Yash is void ab initio.
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3. Whether the relief of specific performance is enforceable?

The Appellant / Original Plaintiff submits that, there has been a breach of
contract done on the part of the Respondent / Original Defendant by not
fulfilling the contract signed by both the parties on 10 th January, 2021.
Therefore the Appellant / Original Plaintiff seeks relief of specific per-
formance for recovery of peaceful possession of the suit property pur-
chased from the Respondent / Original Defendant.

3.1 Relief of Specific Performance

1) The Appellant / Original Plaintiff submits that, there was rough period
for Appellant to pay his instalment and hence he requested the Re-
spondent / Original Defendant for buffer period to pay the instalment.
The Respondent / Original Defendant agreed to grant buffer period to
the Appellant / Original Plaintiff and consensus ad idem was achieved.

2) Even though the consensus ad idem was achieved the Respondent /

Original Defendant sold the property to Ms. Asha on 20th October,
2021 by early terminating and not performing as per the clause men-
tioned in the contract signed on 10th January, 2021 and the Appellant /
Original Plaintiff was dispossessed from his owned property.

3) The Appellant / Original plaintiff submits that, he was illegally and

without his consent was dispossessed from the owned suit property,
therefore he had filed a suit for the relief of recovery of peaceful pos-
session of the suit property. Furthermore, the Respondent / Original
Defendant has no merits as he has breached the contract by selling the
property and creating third party interest. Further the Appellant / orig-
inal Plaintiff submits that, such behaviour of the Respondent / Original
Defendant is nothing but cheating and dishonestly inducing delivery
of property u/s 415 of IPC which reads as follows:
Sec. 415 of IPC
Cheating.—Whoever, by deceiving any person, fraudulently or dis-
honestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or in-
tentionally induces the person so deceived to do or omit to do any-
thing which he would not do or omit if he were not so deceived, and
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which act or omission causes or is likely to cause damage or harm to

that person in body, mind, reputation or property, is said to “cheat”.

4) The Appellant / Original Plaintiff submits that the suit was filed in the
trial court within three months from creating third party interest and
selling the suit property and the Appellant / Original Plaintiff is enti-
tled to recover the peaceful possession of the suit property by virtue of
sec 6 of SRA.

3.2 Relief of Specific Performance is enforceable?

1) The Appellant / Original Plaintiff submits that, the relief of specific

performance is not enforceable as the relief prayed for was not ade-
quate.

2) The relief of Specific performance is enforceable u/s 10 of SRA only

when there is no actual damage caused by the non-performance of the
act agreed. The section reads that:
Sec.10 of SRA :
When there exists no standard for ascertaining actual damage caused
by the non-performance of the act agreed to be done; or
When the act agreed to be done is such that compensation in money
for its non-performance would not afford adequate relief.

That the breach of a contract to transfer immovable property cannot be

adequately relieved by compensation in money.

3) As per the sec. 10 mentioned above the Appellant / Original Plaintiff

has suffered damage of by dispossessing him from his property with-
out giving him prior notice and has also suffered breach of contract by
the Respondent / Original Defendant and therefore the relief cannot be
adequately relieved by the compensation in money.

4) The Appellant / Original Plaintiff submits that, the sec. 14(1)(a) of

SRA also claims that contract cannot be enforced if a contract for the
non-performance of which compensation in money is an adequate re-
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lief. The Appellant / Original Plaintiff states that, he has merit in his
appeal filed and the compensation is not adequately relieved.

5) The Appellant / Original Plaintiff relies upon the case Vinod Singh
vs Smt. Phutori Devi2 where in the Plaintiff filed the suit for specific
performance in favour of the Plaintiff and same was decreed by the
High Court at Delhi stating that, sale deed should be executed in the
favour of the plaintiff by the defendants within one month from the
date of the judgement along with the costs.

6) In accordance with the above case the Appellant / Original Plaintiff

here is also entitled for the possession of the property along with the
cost.
Hence the relief of specific performance is not enforceable.
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______________________________________________________________
PRAYER
________________________________________________________________

In the light of the issues raised and the argument advanced the Appellant, there-
fore humbly prays to this Hon’ble High Court of Bombaim as under:-

i) Be pleased to kindly allow the present current first appeal

ii) Be pleased to grant of decree in favor of the plaintiff and against the
defendant while directing the defendant not to dispossess the plaintiff
from the suit property

iii) Grant such other relief or reliefs which this Hon'ble Court may deem
just and proper in the facts and circumstances of the present case.

It is humbly prayed in the interest of Justice.

Sd/-
(Counsel on behalf of the Appellant)