All Delhi USLLS First Year Students Moot Court Competition

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IN THE HONBLE DISTRICT COURT OF

DWARKA

MR. FOSTER.PLAINTIFF
VERSUS

QUICKMART.COM

DEFENDANT

NO.1

MR.

RATTAN

DEFENDANT

NO. 2

ON SUBMISSION TO THE COURT OF CIVIL JUDGE, DWARKA DISTRICT

COURTS

MOST RESPECTFULLY SUBMITTED

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

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COUNSELS APPEARING ON THE BEHALF OF QUICKMART.COM

TABLE OF CONTENTS
I
II
III
IV
V
VI

INDEX OF AUTHORITIES .3-6

STATEMENT OF JURISDICTION.7
STATEMENT OF FACTS.8-9
STATEMENT OF ISSUES...10
SUMMARY OF ISSUES11
ARGUMENTS ADVANCED.12
1 WHETHER THEREIS BREACH OF CONTRACT? ..12
1 THAT THE CONTRACT IS VALID12
2 THAT THE CONTRACT HAS NOT BEEN
BREACHED12-14

2 WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE

AGENT? .................................................................................................................15
1 THAT THE PERSONAL ASSURANCE BY THE AGENT DOES NOT MAKE COMPANY
LIABLE....
2 THAT THE ACTS OF THE AGENT WERE NOT AUTHORIZED.
3

WHETHER THE AGENT ACTED ON BEHALF OF THE COMPANY?

3.1THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL...

4

WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN

ONLY CLAIM DAMAGES? ...............................................................................

4.1THAT THE COMPANY IS LIABLE ONLY FOR THE DAMAGES

VII

PRAYER.

INDEX OF AUTHORITIES
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TABLE OF ABBREVIATIONS AND SYMBOLS

S.NO.

ABBREVIATION

DEFINITION

1.

AI

Artificial Intelligence

2.

AIR

ALL INDIA REPORTER

3.

All

Allahabad

4.

AP

Andhra Pradesh

5.

Art.

Article

6.

Bom

Bombay

7.

Cal

Calcutta

8.

Ch

Chapter

9.

Co.

Company

10.

Ed.

Edition

11.

Govt.

Government

12.

HC

The High Court

13.

Honble

Honorable

14.

ICA

Indian Contract Act

15.

i.e.

That is

16.

Ker

Kerala

17.

Ltd.

Limited

18.

Mad

Madras

19.

No.

Number

20.

Ors.

Others

21.

p.

Page

22.

Para

Paragraph

23.

Pvt.

Private

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24.

SC

The Supreme Court of India

25.

Section

Sec

26.

v.

Versus

CASE LAWS
S.NO.
1.

CASE

CITATION

PAGE
NO.

FOOTNOT
E NO.

Ajit Singh v. Kakbhir

Singh
Associated Bombay
Cinemas Pvt Ltd v. Urmi
Developers Pvt Ltd

AIR 1992 P & H 193

13

AIR 1997 2 Bom LR 257

13

3.

Anbalagan v. T.N Civil

Supplies Corpn Ltd

(2004) 2 Banking Cases 569

(Mad)

15

16

4.

Atamall

v. AIR 1939 Sind 33

14

2.

Ramoonal

Deepchand Kessurmal
5.

Arunachalam Chettiar v.
Kasi Nevenda Pillai

AIR 1914 Mad 97

14

6.

Amrit Lal C.Shah v. Ram

AIR 1962 2 Pun 201, AIR 1962

16

18

Kumar

Pun 325

17

25

7.

Ahammed v. Mamad
Kunhi

8.

Armstrong v. Jackson

( 1917) 2 KB 822, (1916-17)

All ER Rep 1117;

18

27

9.

Bank of Upper Canada v.

Bradshaw

(1867) LR 1 PC 479 per Lord

Cairns at 489

18

29

10.

Babulal v. JagatNarain,

AIR 1952 VP 51

16

20

11.

Bensten v. Taylor

(1893) 2 Q.B. 274, at p. 281.

22

41

12.

Boistrub Charan v.
Wooma

Charm (1889) 16 Cal 436

13

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13.

Baivijli v. NansaNagae

AIR 1885 10 Bom 152

14

14.

Charter v. Trevelyan

(884) 11 Cl and Fin 714 per

Lord Lyndhurst at 732, 65 RR
305, 315

18

28

15.

Chaturbhuj v. Jasani
Moreshwar Parashram,

AIR 1954 SCR 817, 830: AIR

1954 SC 236

13

16.

Coringa

14

12

Oil

Co

v. (1876) 1 Cal 466, 468-69

Keogler
17.

Chowgule & Co. Ltd v.

Rizvi Estates and Houses

AIR 1997 4 Bom CR 468

15

15

18.

Dayton Price and Co Ltd

v. S Rohomotollah and
Co

AIR 1925 Cal 609

18

26

19.

Denzyl Winston Ferries

v. Abdul Jaleel

AIR 1992 AP 246: 1992 2 Andh

LT 144

13

20.

Electrosteel Castings Ltd (2005) 1 CHN 612 (Cal)

14

11

AIR 1927 Sind 195, 102 IC 366.

18

28

22.

Bashesharilal
Gopalrao v. Kallappa,

AIR 1901 3 Bom LR 164

14

23.

Gherulal v. Mahadeo,

AIR 1959 2 SCA 342

14

14

24.

Hamid Hasan v. Shazad

Khan

AIR 1919 Pat 143

16

19

25.

Jupudi Venkata Vijaya

Bhaskar v. Jupudi Kesava
Rao

AIR 1994 AP 134

13

26.

Jai DurgaFinv.est (p) Ltd

AIR 2004 SC 1484

15

16

v. Saw Pipes Ltd

21.

Firm

of

Rameshardas

Benararshidas v. Firm of
Tansookhrai

v. State of Haryana

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27.

Kampta Prasad v. 2nd Addl

Distt Judge, Mainpur

AIR 1997 All 201

13

28.

Keshab Chandra Nayak v.

Laxmidhar Nayak

AIR 1993 Ori 1

13

29.

Kateshwar Mittal Kamath

v. K. Rangappa Baliga
and Co

AIR 1959 SC 781: 1969 2 SCA

342

13

30.

Lakshminarayan

17

23

Gopal

v.

Ram

Govt.

of

31.

Hyderabad supra.
Livingstone v. Ross

(1901) AC 327 (PC)

18

27

32.

McPherson v. Watt

(1877) 3 App Cas 254 (HL)

18

27

33.

New India Assurance Co.

Ltd v. Sau Anjanabai
Parashram Jadhaw

2006 AIHC 185 (Bom)

13

34.

Purmanundass Jivandass
v. HR Cormack

AIR 1882 6 Bom 326, 362

16

20

35.

Puran Mal v. Ford

Macdonald and co.

AIR 1919 All 440 per Walsh J at

444.

16

22

36.

Pipraich Sugar Mills v.

P/s Mills Mazdoor Union

AIR 1956 SCR 872: AIR 1957

SC 95

13

37.

Prahlad v. Laddevi,

AIR 2007 Raj 166

13

38.

Re Andrew Yule & Co

AIR 1932 Cal 872

23

44

39.

Ram Sarup v.
BansiMandar

AIR 1915 42 Cal 742

14

40.

Rao Rani v. Gulab Rani

ILR 1942 All 810

14

10

41.

Raghunath Rai v.
Jogeshwar

AIR 1999 Del 383

15

16

42.

State of Madras v.
Jayalakshmi Rice Mill

AIR 1958 AP 671, AIR 1959 AP

17

23

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Contractors Co,
43.
44.

Shamim

Afroz

08

352
v. AIR 2007 MP 19

Mehfooz- Ulhasan,
Sunder Singh v. Kishen
Chand

13

AIR 1889 Punj Rec 1

14

45.

Sharam Vir Kalra v.

Ravinder Kumar

AIR 1995 2 Punj LR 257

15

15

46.

Tarsem Singh v.
Sukhminder Singh

AIR 1998 SC 1400

13

47.

Travancore Rubber & Tea

Co Ltd v. CIT

(2000) 2 SCC 715: AIR 2000

SC 1980: (2000) 243 ITR 158

15

16

48.

Udho Bai v.
AmbikaTiwary

AIR 2007 Pat 136 DB

13

49.

Wallis V. Pratt

(1911) AC 394

21

39

STATEMENT OF JURISDICTION
WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS
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The learned district court of Dwarka exercises jurisdiction to hear and

adjudicate the present suit under section 9 of the Code of Civil Procedure,
1908.
The provision under which the Defendant has approached this Honble Court
and to which the Defendant humbly submit is read herein under as:

Section 9 of the Code of Civil Procedure, 1908 states that

The courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.
{Explanation 1}- A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding that
such right may depend entirely on the decisions of questions as to
religious rites or ceremonies.
{Explanation 2}- For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation 1 or whether or not such office is attached to a
particular place.

STATEMENT OF FACTS
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I
REQUIREMENT OF LAPTOP
Mr. Foster (aged 16 yrs.) is the student of a multi-media course in NCT institute a
premiere institute of computer education. The Course prescribed the requirement for
laptop. The Institute specified the configuration/specifications for laptop to pursue such
course.
II
PLACING THE ORDER
Mr. Foster (for pursuing such course) traced an e-commerce website on the internet
named as quickmart.com, a private company renowned as a leading destination for online
shopping in India which deals with sale of fresh electronic computer items like laptop,
desktop, printers etc. He saw different models of laptop on such e-commerce website and
placed an order thereafter for the laptop that suits his requirement prescribed by the
Institute. The order was based on Cash on-Delivery system.
III
CONFUSION IN TRANSACTION
The company at the time of giving the confirmation order delivered the description of the
other laptop model sent through companys email address to Mr. Fosters email address.
In addition, there was a telephonic conversation between a companys executive named as
Mr. Gopal and Mr. Foster regarding the consent of buying and delivering the laptop at the
desired destination. As a matter of practice and in order to avoid confusion in the contract,
the entire conversation was recorded by the company. Thereafter, the laptop was delivered
to him in a couple of days at his desired destination through Speedy Class Couriers and he
made the payment accordingly. While checking the configuration of the laptop, he found
that it was a mismatch from what he had ordered, and therefore, defeating the purpose for
which he wanted to have the laptop i.e. rendering the laptop unfit for pursuing his
computer course.
IV
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COMPLAINT BY MR. FOSTER

Mr. Foster lodged a complaint on the customer care of the website named as
quickmart.com and narrated the whole facts. The customer care department of such ecommerce website, after a few days, called Mr. Foster that after the investigation they
found that the order and the product delivered are of the same configuration. In addition
to this, the e-commerce website named as quickmart.com said that they will look into the
matter again and get back as soon as possible.
V
RESPONSE BY THE COMPANY
Mr. Foster received no communication in this regard within a reasonable time period from
the company which has launched the leading e-commerce website named as
quickmart.com. Mr. Foster called the customer care again but all he got was an automated
computer generated message that the problem is resolved.
VI
VISIT TO COMPANYS OFFICE
Mr. Foster went to the companys office address for further enquiry. He was told by the
company that since quickmart.com outsources orders from private retailers as Agents of
the company, and therefore, the retailers are the ones who dispatch the products. The
company has nothing to do with this matter. After receiving the retailers address, Mr.
Foster went to the retailers office, where the retailer Mr. Rattan as Agent of the company
refused to speak to him by telling him that he was never his customer and he has sent
whatever was asked to him.

VII
PROBLEM IN THE PRODUCT AND WARRANTY

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Furthermore, on the opening of the product, he finds that the product was a defective one
and so he called the service centre of the laptop company who said that since the product
was bought through a website, and therefore, that website shall provide the warranty. On
going back to quickmart.com on this issue, he finds that the details regarding his buying
of laptop is totally erased by the company. Mr. Foster felt disheartened and disappointed.
VIII
VISIT TO THE RETAILER AND THE PROMISE MADE BY HIM
Mr. Foster further went to the retailer and narrated the whole story and declared his
intention to file a suit against the company. By observing the pathetic and depressed
situation of Mr. Foster, the retailer as Agent personally assured him by providing written
acknowledgement on the letter pad of the company admitting that such laptop will be
replaced within 10 days and Mr. Foster will be having no complaint against the company
in the near future. Mr. Foster did not find any solution in this regard even after one month.
Furthermore, he gave notice to the Agent as well as the company regarding doing the
needful in this regard within another 15 days but no reply was given by any of them on
this matter.
In this context, Mr. Foster finally decides to go to the Civil Court for seeking remedy in
this regard.

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STATEMENT OF ISSUES
1. WHETHER THERE IS BREACH OF CONTRACT?
1.1

THAT THE CONTRACT IS VALID.

1.2

THAT THE CONTRACT HAS NOT BEEN BREACHED.

2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE

AGENT?
2.1

THAT THE PERSONAL ASSURANCE BY AGENT DOES NOT MAKE THE

COMPANY LIABLE.

2.2

THAT THE ACTS OF THE AGENT WERE NOT AUTHORIZED.

3. WHETHER THE AGENT ACTED ON BEHALF OF THE COMPANY?
3.1 THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL.

4. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT OR CAN

ONLY CLAIM DAMAGES?
4.1

THAT THE COMPANY IS LIABLE ONLY FOR THE DAMAGES.

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SUMMARY OF ARGUMENTS
1. THAT THE CONTRACT IS VALID AND HAS NOT BEEN BREACHED
The contract between the Plaintiff and the Defendant No.1 is a valid Agreement with a
lawful consideration and free consent, and it has not been expressly declared to be void.
Since it meets all the essentials mentioned under ICA 1872, the contract stands valid. And
the contract has not been breached by the Defendants. The contract is thus discharged by
performance and not breached.
2. THAT ACTS OF THE AGENT WERE NOT AUTHORISED
In the instant case, personal assurance was given by Defendant No.2 after seeing the
pathetic and depressed situation of the Plaintiff. The assurance Defendant No.2 gave
personally is not a concern of the company. The assurance Defendant No. 2 gave
personally cannot be treated as the assurance of Defendant No.1. As the Agent has not
purported to undertake personal contractual liability, he cannot incur such liability.
3. THAT THE AGENT ACTS ON BEHALF OF HIS PRINCIPAL
According to Section 226 of the ICA, 1872 contracts entered into through an Agent, and
obligations arising from acts done by an Agent, may be enforced in the same manner, and
will have the same legal consequences as if the contracts had been entered into the acts
done by the Principal in person. That means the Principal is bound by the acts of the
Agent.
4. THAT THE COMPANY IS LAIABLE ONLY FOR THE DAMAGES
In the instant case, it is submitted that there is no substantial failure to perform the
contract because the laptop confirmed in the telephonic conversation was delivered but
only there are some defects in the product. Therefore it is asserted that the stipulation is a
warranty and the Plaintiff can claim only damages.

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ARGUMENTS ADVANCED
1. WHETHER THERE IS BREACH OF CONTRACT?
It is humbly submitted that the Defendant 1 is not liable for breach of contract.
1.1 THAT THE CONTRACT IS VALID.
It is put forward that Section 10 of the ICA, 1872 states All agreements are contracts if
they are made by the free consent of the parties competent to contract, for a lawful
consideration and with lawful object, and are not hereby expressly declared to be void.
In the instant case, the contract between the Plaintiff and Defendant meets all the
essentials as per defined under Section 10.
1)
AGREEMENT: Section 2(e) of ICA, 1872 states every promise and every
set of promises forming the consideration for each other is an agreement
A promise is a result of a proposal by one person and its acceptance by the other. A
proposal is defined in the ICA as follows:
When one person signifies to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to such act or abstinence, he is
said to make a proposal.
Whereas, acceptance is defined as:
When the person to whom the proposal is made signifies his assent thereto, the proposal
is said to be accepted.
In the instant case the company quickmart.com makes a proposal to the Plaintiff via a
confirmation email and the same is accepted later through a telephonic conversation.
Thus, there is an agreement between the parties fulfilling the first essential of a contract.
2)

FREE CONSENT: Consent under the ICA, 1872 is defined in Section 13 as

two or more persons are said to be consent when they agree upon the same thing in
the same sense. In the instant case the parties agree upon the same thing, i.e., a laptop,
in the same sense. Same can be proved as there was a confirmation email about the
product was sent by Defendant No.1 to the Plaintiff, which was later accepted. It
cannot be argued that the confirmation email was of a different product as the Plaintiff
accepted it.
One of the essentials of a valid contract mentioned in Section 10 is that the parties should
enter into the contract with their free consent. According to Section 14, consent is said to
be free when it is not caused byWRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS
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i)
ii)
iii)
iv)
v)

08

Coercion
Undue Influence
Fraud
Misrepresentation
Mistake
If the consent of the parties is not free consent i.e. it has been caused by one or the other
of the above states factors, the contract is not a valid one. It is voidable at the option of
the party whose consent was so caused. If, however, the consent is caused by mistake, the
agreement is void.1
In the instant case, the consent of both the parties is free as the offer made by the
Defendant No.2 is accepted by the Plaintiff via telephonic conversation which was
recorded. The confirmation of a product was sent to the Plaintiffs email id and same is
accepted by him. The consent was not caused by any of the above mentioned factors and
since the essential free consent of the contract is not violated.
3)

LAWFUL CONSIDERATION: Consideration in the ICA, 1872 is defined

under Section 2(d) as:

When at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain
from doing, something, such act or abstinence or promise is called consideration.
Section 25 of the ICA, 1872 opens with the declaration that an agreement without
consideration is void.2 In Rann v. Hughes3 the Lord Chief Baron Skynner observed:
It is undoubtedly true that every man is by the law of nature bound to fulfill his
engagements. It is equally true that the law of the country supplies no means, nor affords

1Tarsem Singh v. Sukhminder Singh, AIR 1998 SC 1400; Sheikh Brothers Ltd. v. Oschsner (1957)
AC 136
2Pipraich Sugar Mills v. P/s Mills Mazdoor Union, AIR 1956 SCR 872: AIR 1957 SC 95; Chaturbhuj
v. Jasani Moreshwar Parashram, AIR 1954 SCR 817, 830: AIR 1954 SC 236; Associated Bombay
Cinemas Pvt ltd v. Urmi Developers Pvt Ltd, AIR 1997 2 Bom LR 257; Kampta Prasad v. 2 nd Addl
Distt Judge, Mainpur, AIR 1997 All 201; Keshab Chandra Nayak v. Laxmidhar Nayak, AIR 1993 Ori
1; Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao, AIR 1994 AP 134; New India Assurance Co.
Ltd v. Sau Anjanabai Parashram Jadhaw ,2006 AIHC 185 (Bom); Udho Bai v. AmbikaTiwary, AIR
2007 Pat 136 DB; Prahlad v. Laddevi, AIR 2007 Raj 166; ShamimAfroz v. Mehfooz- Ulhasan, AIR
2007 MP 19
3 House of Lords, (1778) 7 Term Reports 346
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any remedy, to compel the performance of an agreement without sufficient

consideration.
The consideration or object to an agreement is lawful, unless:i) It is forbidden by law4
ii) Is of such nature that, if permitted, it would defeat the provisions of any law 5, or is
fraudulent6; or
iii) Involves or implies, injury to the person of another7;
iv) The court regards it as immoral, or opposed to public policy8
In each of these cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
In the case before us, the consideration for the agreement between the parties is Cash on
Delivery which does not meet any of the above stated conditions and thus acts as lawful
consideration.

i)
ii)
iii)
iv)

4)
NOT EXPRESSLY DECLARED TO BE VOID:
An agreement not enforceable by law is said to be void. Section 2(g) of ICA, 1872
The following types of agreement are declared to be void:
Agreements of which consideration and objects are unlawful in part9
Agreement without consideration
Agreement in restraint of marriage10
Agreement in restraint of trade. 11

4Boistrub Charan v. Wooma Charm (1889) 16 Cal 436;Kateshwar Mittal Kamath v. K. Rangappa
Baliga and Co., AIR 1959 SC 781: 1969 2 SCA 342; Ajit Singh v. Kakbhir Singh, AIR 1992 P & H
193; Denzyl Winston Ferries v. Abdul Jaleel, AIR 1992 AP 246: 1992 2 Andh LT 144; Raj Kumar
Tajendra Singh v. DrSital Raj Mehta, AIR 1998 1 Raj LR 523; Gopal Lal v.BabuLal, AIR 2004 4
CLT 161 Raj DB
5 Sunder Singh v. Kishen Chand, AIR 1889 Punj Rec 1; Dula Raj v. Akhey Raj,AIR 1952 Ajm
38;Laxmanla lv. Mulshankar, AIR 1908 32 Bom 449
6Atamal Ramoomalv Deepchand Kessurmal, AIR 1939 Sind 33
7 Ram Sarup v. BansiMandar, AIR 1915 42 Cal 742
8Baivijliv.NansaNagae, AIR 1885 10 Bom 152
9Gopalrao v. Kallappa, AIR 1901 3 Bom LR 164
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v) Agreement in restraint to legal proceedings12

vi) Unmeaning agreements13
vii) Wagering Agreements14

As none of the above conditions applies to the case before the court, it is not expressly
declared to be void and a contract is formed.
All the essentials of the contract are met and thus it is proved that a valid contract is
formed between Defendant No.1 and the Plaintiff. The contract is not voidable at the
option of any of the parties nor is it void.
Thus, it is submitted that the contract is valid.
1.2 THAT THE CONTRACT HAS NOT BEEN BREACHED.
A breach of contract occurs when a party thereto renounces his liability under it, or by
his own act makes it impossible that he should perform his obligations under it or totally
or partially fails to perform such obligations.15
Obligation of parties to contracts: - The parties to a contract must either perform, or to
offer to perform their respective promises, unless such performance is dispensed with or
excused under the provisions of this Act, or any other law.

10 Rao Rani v. Gulab Rani, ILR 1942 All 810

11Electrosteel Castings Ltd v. Saw Pipes Ltd, (2005) 1 CHN 612 (Cal)
12Coringa Oil Co v. Keogler, (1876) 1 Cal 466, 468-69
13Scammel v. Ousten, (1941) AC 251
14Gherulal v. Mahadeo, AIR 1959 2 SCA 342
15Chowgule & Co. Ltd v. Rizvi Estates and Houses (P) Ltd, AIR 1997 4 Bom CR 468; Sharam Vir
Kalra v. Ravinder Kumar, AIR 1995 2 Punj LR 257; Union Bank of India v. VithalBhai, AIR 2002
Cal 144.
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The promisor, must offer to perform his obligation under the contract to the promise. This
offer is called Tender of Performance 16 It is then for the promise to accept the
performance.
In the instant case, none of the parties have renounced their liability under it, and no act
has been done to make it impossible, totally or partially, to perform such obligations.
Since the Plaintiff accepted the proposal of the Defendant No.1 via phone call after a
confirmation was sent to him for the same product through email. The product was
delivered to the Plaintiff at his desired destination through Speedy Class Courier and
payment was received by the Plaintiff by Cash on Delivery.
Therefore, it is submitted that the contract was completed when the product was received
by the Plaintiff and thus there is no breach of contract.

2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE

AGENT?
It is humbly submitted that in Defendant No.1 is not liable for the acts of its Agent i.e.
Defendant No.2. This submission of the Defendant is twofold:
2.1 THAT THE PERSONAL ASSURANCE BY THE AGENT DOES NOT MAKE
THE COMPANY LIABLE.
In the instant case personal assurance was given by Defendant No. 2, after seeing the
pathetic and depressed situation of the Plaintiff. The assurance Defendant No. 2 gave
personally cannot be treated as the assurance of Defendant No.1.17

16Raghunath Rai v. Jogeshwar Prashad Sharma, AIR 1999 Del 383; Travancore Rubber & Tea Co
Ltd v. CIT, (2000) 2 SCC 715: AIR 2000 SC 1980: (2000) 243 ITR 158; Anbalagan v. T.N Civil
Supplies Corpn Ltd.,(2004) 2 Banking Cases 569 (Mad); Jai DurgaFinv.est (p) Ltd v. State of
Haryana, AIR 2004 SC 1484
17 Para 8, p 11
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In the instant case, the Defendant No.2 is a special agent of the Defendant No.1 as he had
a limited authority to dispatch the products. A special Agent has only authority to do some
particular act for some special occasion or purpose which is not within the ordinary
course of his business or profession18. The Agent is not entitled to personally enforce by a
contract entered into by him on behalf of his Principal 19, in the absence of a contract to
that effect20, or by the ordinary course of business or usage; and if he has no authority in
fact, he will be liable for breach of warranty21.
Moreover, it is submitted that the Defendant No. 2 was fully aware of the fact that his
duty is not to give any personal assurance to any customer of the Defendant No.1. An
Agent is bound not only not to insure the interest of the Principal, but also to further it 22.
This requires that he should not place himself in a position where his interest might be
adverse to that of Principal. No Agent will be permitted to put himself in a position where
his interest conflicts with his duty and therefore, he must not enter into any transaction
likely to produce the result.
Thus, it is submitted that the Defendant No.1 is not liable for the Agents personal
assurance.
2.2 THAT THE ACTS OF THE AGENT WERE NOT AUTHORIZED.
The relationship between Defendant No. 1 and Defendant No. 2 is of Principal and Agent.
Section 182 of the ICA, 1872 defines Agent as a person employed to do any act for
another person or to represent another person in dealing with the third person. Defendant
No.2 was an Agent of the company but he had the authority to only dispatch the products.
His employment was limited to that extent only. The function of an Agent is to enter into
18Amrit Lal C.Shah v. Ram Kumar, AIR 1962 2 Pun 201, AIR 1962 Pun 325.
19Hamid Hasan v. Shazad Khan, AIR 1919 Pat 143
20Purmanundass Jivandass v. HR Cormack, AIR 1882 6 Bom 326, 362; Arunachalam Chettiar v.
Kasi Nevenda Pillai, AIR 1914 Mad 97; Babulal v. JagatNarain, AIR 1952 VP 51.
21 Sec 235 under heading Breach of Warrant of Authority.
22Puran Mal v. Ford Macdonald and co. ,AIR 1919 All 440 per Walsh J at 444.
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contractual relations on behalf of his Principal with third persons. He acts at his discretion
and judgment, but within the limits of his authority23.
In the instant case, the Agent was not acting within its limits. The act that was performed
by the Defendant No. 2 was not same as the act that he was authorized to do.
It is submitted that Sec 227 of the ICA, 1872 reads as follows: When an Agent does
more than he is authorized to do, and when the part of what he does, which is within his
authority, can be separated from the part which is beyond his authority, so much only of
what he does as is within his authority is binding as between him and his Principal. In
the instant case, when the Agent gave acknowledgement on the letter pad of Defendant
No.1 that the laptop will be replaced after 10 days, he was exceeding his authority.
In Kedarnath Jhunjhunwala v. The State Of Bihar And Os on 20 November, 2009 the
Honble court held that:
..Every act done by an agent in the course of his employment on behalf of his
Principal and within the apparent scope his authority binds the Principal, unless the
Agent is in fact unauthorized to do the particular act and the person dealing with him has
notice that in doing such act he is exceeding his authority.
It is mentioned in the facts script 24 that the Plaintiff was very well aware of the fact that
the retailer was not authorized to give any personal assurance or acknowledgement as it
was told by the Defendant No.1 to him that his duty is to only dispatch the products.
Defendant No.1 is only liable for the acts of the Agent for which he is authorized to do. It
was misconduct on an Agents part to deal on his own account in the business of the
agency without first obtaining the consent of his principal and acquainting with all the
material facts that have come into his knowledge.
In the case of Ahammed v. MamadKunhi 25, an Agent was authorized by power of attorney
to sell half right over certain property. He however, entered into an agreement with
purchaser-Plaintiff to sell the entire property. The authorized and the unauthorized
portions were separable. It was held that specific performance of that half portion of the
23State of Madras v. Jayalakshmi Rice Mill Contractors Co, AIR 1958 AP 671, AIR 1959 AP 352;
Lakshminarayan Ram Gopal v. Govt. of Hyderabad supra.
24Para 6. P 10
25AIR 1987 Ker. 228.
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property could be claimed by the purchaser under the Specific Relief Act, in respect of
which the authority for sale was given to the Agent.
It is humbly submitted that Sec 215 states that if an Agent deals on his own account in
the business of agency, without first obtaining the consent of his Principal and
acquainting him with all material circumstances which have come to his own knowledge
on the subject, the Principal may repudiate the transaction, if the case shows, either that
any material fact has been dishonestly concealed from him by the agent, or that the
dealings of the agent have been disadvantageous to him. This requires that he should not
place himself in a position where his interest might be adverse to that of the Principal.
The Defendant No.2 in the instant case, also gave acknowledgement to the Plaintiff
without taking the consent of the company and this dealing is has been disadvantageous
to the company as such dealing have brought the honesty of the company into question.
No Agent will be permitted to put himself in a position where his interest conflicts with
his duty and therefore, he must not enter into any transaction likely to produce that result.
If he desires to do so, he must confide in the Principal and obtain his prior consent. It is
essential though, that the Agent communicate with and obtain the instructions from the
Principal wherever possible, else the act of the Agent in the emergency will not bind the
Principal26.
It is submitted that thus, an Agent may not deal, with himself, the Principals property or
subject matter of the agency27. Where an Agent employed to sell himself becomes the
purchaser, he must show that this was with the knowledge and consent of his employer28.
Therefore, it is submitted that the Agent was not authorized to give any acknowledgement
to the customer.

3. WHETHER THE AGENT ACTED ON BEHALF OF THE

COMPANY?
26Dayton Price and Co Ltd v. S Rohomotollah and Co, AIR 1925 Cal 609.
27 Armstrong v. Jackson, ( 1917) 2 KB 822, (1916-17) All ER Rep 1117; McPherson v. Watt,
(1877) 3 App Cas 254 (HL); Livingstone v. Ross, (1901) AC 327 (PC).
28Charter v. Trevelyan,(884) 11 Cl and Fin 714 per Lord Lyndhurst at 732, 65 RR 305, 315; Firm of
Rameshardas Benararshidas v. Firm of Tansookhrai Bashesharilal, AIR 1927 Sind 195, 102 IC 366.
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It is submitted that the Defendant No.1 is liable for the acts of the Defendant No.2 as
Defendant No.1 is the Principal and Defendant No.2 is its Agent.
3.1 THAT AN AGENT ACTS ON BEHALF OF HIS PRINCIPAL.
In the instant case Defendant No. 2 is the Agent of the Defendant No.1. Section 182 of
the ICA, 1872 defines Agent as a person employed to do any act for another person or
to represent another person in dealing with the third person. The Defendant No.1 itself
told the Plaintiff that it outsources its products from the private retailers as Agents of the
company. So the Defendant No.1 had accepted that Mr. Rattan is their Agent. Explaining
the definition of Agent as stated in Section 182 of the Act, Dhavan J. observed29 :
According to this definition, an Agent never acts on his own behalf but always on
behalf of another. He either represents his Principal in any transactions or dealings
with a third person, or performs an act for Principal. In either case, the act of the
Agent will be deemed in law to be not his own but of the Principal. The crucial test
of the status of an Agent is that his acts binds the Principal.
The concept of vicarious liability is based on the Principle of quit facia per alium facit
per se i.e. one who does an act through another is deemed in law to do it himself. As it is
said that the authority of the master of a ship rests upon the peculiar character of his
office.
It is further submitted that Section 189 deals with the authority of an Agent. As per this
section, an Agent has authority in an emergency, to do all such acts for the purpose of
protecting his Principal from loss as would be done by a person of ordinary prudence, in
his own case under similar circumstances.
The conditions which entitle an Agent to exceed his authority under the doctrine of
necessity under the instant case are:
i.

That the courses he took was necessary in the sense that it was in the circumstances the
only reasonable and prudent course to take30.

29Loon Karan v. John and Co. , AIR 1967 All 308, 311.
30Sims and Co. v. Midland Rly Co, (1913) 1 KB 103; Atlantic Mutual Insurance Co v. Huth, (1879)
16 Chd 474, 481 (CA)
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That he acted bona fide in the interest of the parties concerned31.

ii.

In the instant case, that after seeing the pathetic and depressed situation of Plaintiff,
Defendant No.2 acted according to the situation as he thought that his actions would be
in the interest of the customer.32
According to Section 226 of the ICA, 1872 contracts entered into through an Agent, and
obligations arising from acts done by an Agent, may be enforced in the same manner, and
will have the same legal consequences as if the contracts had been entered into the acts
done by the Principal in person. That means a Principal is bound by the act of his Agent
with all the results33. This Section assumes that the contract or act of the Agent is one,
which, as between the Principal and third persons, is binding on the Principal. It is not
necessary that the Principal be named. It is sufficient if the Principal can be identified 34
and where the other party to the contract knows that the person is acting as an Agent for a
person known to him, a formal disclosure of the Principal is not necessary to make the
Principal liable35.
Therefore, it is submitted that Defendant No.2 acted on behalf of the Defendant No.1.

31Prager v. Blatspiel, Stamp and Heacock Ltd, (1924) 1 KB 566, (1924) All ER Rep 524.
32Para 8, P 4
33Chella Ballayya v. Kanuparthi Subbayya, AIR 1917 40 Mad 1171, AIR 1918 Mad 24, 44 IC 813.
34Mackinnon Mackenzie and Co. v. LongMoir and Co., AIR 1881 5 Bom 584.
35 Ibid.
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4. WHETHER THE PLAINTIFF CAN REPUDIATE THE

CONTRACT OR CAN ONLY DEMAND DAMAGES?
It is submitted that the Plaintiff cannot repudiate the contract and can only claim damages.
4.1 THAT THE COMPANY IS LIABLE ONLY FOR THE DAMAGES.
It is humbly submitted that it is important to first assert whether the stipulation in
question is a condition which is defined as: A condition is a stipulation essential to the
main purpose of the contract, the breach of which gives rise to a right to treat the
contract as repudiated36. or the stipulation in question is a warranty which is defined as:
A warranty is a stipulation collateral to the main purpose of the contract, the breach of
which gives rise to a claim for damages but not to a right to reject the goods and treat the
contract as repudiated37.In the instant case the Defendant1 delivered the laptop which
was accepted in the telephonic conversation. Therefore the defects found in the laptop
only amount to stipulation collateral to the main purpose of the contract and hence the
stipulation in question is a warranty and not a condition.
Further it is also submitted that Sec 12(4) reads as follows: Whether a stipulation in a
contract of sale is a condition or a warranty depends in each case on the construction of
the contract. A stipulation may be a condition, though called a warranty in the contract.
In the instant case the main purpose of the contract was the sale of the laptop specified in
the email confirmation which was delivered and the Plaintiff can only claim the damages
as the stipulation in this case is a warranty and not a condition.
In Wallis V. Pratt38 in a judgement which was approved by The House Of Lords, at
Fletcher Moulton L.J. said39:
There are some obligations in a contract that go so directly to the substance of the
contract, or in other words are so essential to its very nature that their non-performance
may fairly be considered by the other party as a substantial failure to perform the
contract at all. On the other hand there are other obligations which, though they must be
performed, are not so vital that a failure to perform them goes to the substance of the
contract.

36Sec 12(2) , Sale Of Goods Act 1930.

37Sec 12(3) ,Sale Of Goods Act 1930.
38(1911) AC 394.
39 (1910) 2 KB 1003 P. 102.
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In Bensten v. Taylor40, Bowen L.J. said:

In order to decide this question of construction, one of the first things you would look to
is, to what extent the accuracy of the statement - the truth of what is promised - would be
likely to affect the substance and foundation of the adventure which the contract is
intended.
In the instant case it is submitted that there is no substantial failure to perform the contract
because the laptop confirmed in the telephonic conversation was delivered but only there
are some defects in the product. Therefore it is asserted that the stipulation is a warranty
and the Plaintiff can claim only damages.
It is further most respectfully put forward that Sec 13(2) of Sales Of Goods Act, 1930
reads as follows: Where a contract of sale is not severable and the buyer has accepted
the goods or part thereof, 41 the breach of any condition to be fulfilled by the seller can
only be treated as a breach of warranty and not as a ground for rejecting the goods and
treating the contract as repudiated, unless there is a term of the contract, express or
implied, to that effect.
In the instant case by opening the product (laptop in this case) provides the implied
consent of the Plaintiff that he has accepted the goods and now cannot reject the goods
and cannot treat the contract to be repudiated. Now the stipulation in question can only be
treated as a warranty and not a condition.
Further it is humbly submitted that the Plaintiff cannot claim that there is an implied
condition under sale by description which is defined as 42: Where there is a contract for
the sale of goods by description, there is an implied condition that the goods shall
correspond with the description.
Further in Re Andrew Yule & Co.43 , it was held that the buyer cannot reject the goods
because he didnt disclose to the seller the particular purpose for which he required the
cloth. In the instant case, the Plaintiff didnt disclose to the Defendant No. 1, the purpose
40(1893) 2 Q.B. 274, at p. 281.
41 The words or where the contract is for specific goods the property in which has passed to the
buyer omitted by Act No.33 of 1963.
42Sec 15 of Sale of Goods Act,1930.
43 AIR 1932 Cal 872.
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for which he was buying the laptop and therefore it can be asserted that the sale in this
case is not a sale by description.
Therefore, it is submitted that the Plaintiff cannot repudiate the contract but can only
claim damages by warranty.

PRAYER

In light of the issues raised, arguments advanced and cases cited it is most humbly prayed
before this Honble CourtA. To dismiss the case with cost.
Or grant such other relief as the court may deem fit in the light of justice, equity and good
conscience.

AND FOR THIS ACT OF KINDNESS THE DEFENDANT SHALL DUTY BOUND
EVER PRAY

Sd/Counsel for the Defendant

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