FRESHER’S INDUCTION MOOT, 2023

CAMPUS LAW CENTRE

BEFORE THE HON’BLE

HIGHT COURT, HOLT A

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SCULLY………………………………………………..……..PLAINTIFF
V.
JACOB & PERALTA…………..…..DEFENDANT(s)/RESPONDENT(s)

MEMORIAL ON BEHALF OF THE PLAINTIFF

-COUNSEL APPEARING ON BEHALF OF THE PLAINTIFF-

 TABLE OF CONTENTS

PAGE
NO

INDEX OF AUTHORITIES 3

STATEMENT OF JURISDICTION 4

STATEMENT OF FACTS 5
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STATEMENT OF ISSUES 6
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SUMMARY OF ARGUMENTS 7
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ARGUMENTS ADVANCED 8-18

PRAYER 19

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 INDEX OF AUTHORITIES

• STATUTES
1) Indian Contract Act, 1872
2) Transfer of Property Act, 1882
3) Specific Relief Act, 1963
4) Civil Procedure Code, 1908
5) Delhi High Courts (Amendment) Act, 2015
6) Commercial Courts Act, 2015

• BOOKS
1) Indian Contract Act and Specific Relief Acts, Pollock & Mulla, 14th Edition, Volume I
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2) Indian Contract Act and Specific Relief Acts, Pollock & Mulla, 14th Edition, Volume II
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• CASES CITED
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1) Fazaladdin Mandal vs Panchanan Das, AIR 1957 Cal 92

2) Misa v Currie, 1875
3) Poosathurai vs Kannappa Chettiar, (1920) 22 BOMLR 538
4) Kopparthi Venkataratnam And Anr. vs Palleti Sivaramudu And Anr., (1940) 1 MLJ 314
5) Harilal Dalsukhram Sahiba vs Mulchand Asharam, (1928) 30 BOMLR 1149, 113 Ind Cas 27
6) Bailey v. Barnes (1894)
7) Rajendra Nath Saha vs Saraswati Press Ltd., AIR 1952 Cal 78

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 STATEMENT OF JURISDICTION

The suit property in the case at hand falls in the Pimento district of the city of Holt, therefore, the Hon’ble High
Court will have territorial jurisdiction upon this case.

Under Section 9, Civil Procedure Code (CPC), 1908 and Section 16, CPC, 1908 the High Court has the
jurisdiction to try all suits of a civil nature and all other suits to be instituted where the subject matter lies

It is also humbly submitted to the court that as per the Delhi High Court (Amendments) Act, 2015, the ambit of
pecuniary jurisdiction of courts has been widened. All cases with Specified Value of suit (Section 12, Commercial
Courts Act) between Rs. 20 Lakh and Rs. 2 crores fall within the jurisdiction of District Courts. Cases with a
Specified Value of suit exceeding Rs. 2 crores, are under the jurisdiction of the Hon’ble High Court.
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Since the laws of Holt are pari materia to those of Delhi, the counsel appearing on behalf of Mr. Scully, the
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Plaintiff, has the honour of submitting this commercial suit in the Hon’ble Holt High Court
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 STATEMENT OF FACTS

1. Two brothers Mr. Jacob and Mr. Peralta residing in the Pimento district of Holt, started a business of their
own in car manufacturing. Mr. Scully was the elder brother-in-law of Mr. Jacob and they shared mutual
trust and high regard for one another in their relationship. Mr. Scully had on a prior occasion loaned the
brothers a sum of Rs. 1,00,00,000 in the initial years of the business out of this trust and regard.

2. Mr. Scully, who was also a real estate agent, was approached by the brothers for identifying new properties
required for the expansion of the business. After a span of three months, the brothers finalised one property
which they deemed fit for their requirements. This property belonged to Mr. Scully.

3. While showing them the property, Mr. Scully also showed them the adjoining empty plot. It was assumed
on the part of the brothers that the property came with the empty plot. Mr. Scully also explained the
urgency of the situation to the brothers by informing them that he wanted to settle abroad with his children
and therefore was looking to sell off this property. But nowhere was it specified that the plot was a part
of the property up for purchase. Rather, it was clarified later the same evening that the property was not
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4. Mr. Peralta got sick the very next day and had to urgently travel to a foreign country to get his treatment.
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During his treatment, Mr. Peralta was unreachable.

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5. On the other hand, Mr. Scully grew impatient, being anxious to close the deal as he wished to discharge
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his property before he left to permanently settle down with his daughter. He personally called Mr. Jacob
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to finalize the deal and agreed to close it upon payment of the partial amount.

6. Believing it to be a good deal, Mr. Jacob signed the contract for sale with Mr. Scully on 10th January
2023, fixing the sale price at Rs. 6,00,00,000 (Rupees Six crores), by paying an advance amount of Rs.
3,00,00,000 (Rupees Three Crores) and promised to pay the rest of the amount of Rs. 3,00,00,000 (Rupees
Three Crores) within three months.

7. On 12th February 2023, Mr. Jacob came to know that the empty plot which they were planning to use as
a storage facility was not part of the property under the agreement for sale. The brothers unitedly wanted
to pull the plug on the deal and refused to make payment for the rest of the amount citing misrepresentation
and absence of consensus.

8. Mr. Scully took a stand and claimed that he had already mentioned clearly to Mr. Peralta that the empty
plot was not part of the property.

9. Mr. Scully finally approached the relevant court for enforcement of the contract of sale and also claimed
damages of Rs. 50 Lakhs for the delay in payment.

10. Mr. Jacob and Mr. Peralta decided to contest the suit on the grounds that Mr. Scully misrepresented and
exercised undue influence

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 STATEMENT OF ISSUES

1.

WHETHER THE PETITION IS MAINTAINABLE IN THIS COURT

2.

WHETHER THE CONTRACT DATED 10th JANUARY 2023 IS VALID AND ENFORCEABLE IN THE
EYES OF LAW

3.
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WHETHER THE DEFENDANT WAS LIABLE TO COMPLY WITH OBLIGATIONS MENTIONED

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UNDER SECTION 55 OF THE TRANSFER OF PROPERTY ACT

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4.

WHETHER THE PLAINTIFF IS ENTITLED FOR CLAIMING SPECIFIC PERFORMANCE OF THE

CONTRACT

5.

WHETHER THE PLAINTIFF IS ENTITLED TO DAMAGES DUE TO THE CONDUCT OF THE

DEFENDANT

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 SUMMARY OF ARGUMENTS

Issue 1: WHETHER THE PETITION IS MAINTAINABLE OR NOT?

In the present case, the statement of facts clearly states that there is a contract between the two parties for the
transfer of the property within the territory of the Holt, therefore the case will fall under the territorial jurisdiction
of the Holt High Court. Section 12 of the Commercial Courts Act, 2015 defines the Specified Value of a suit and
as per that definition, the value of the suit at hand exceeds Rs. 2crores. Therefore, under Section 6 of the Civil
Procedure Code and The Delhi High Courts (Amendment) Act, 2015, this matter falls under the pecuniary
jurisdiction of the Hon’ble High Court.

Issue 2: WHETHER CONTRACT DATED 10th JANUARY 2023 IS VALID AND ENFORCEABLE IN THE
EYES OF LAW?

The contract dated 10th January 2023 between the plaintiff and the defendant has all the ingredients of a valid
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contract as mentioned in Section 10 of the Indian Contract Act, 1872. There was free consent of both the plaintiff
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and the defendants. It has not been contested in this court that parties to the contract were incompetent in any
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way to enter such a contract wherein they determined the lawful consideration (the price of the property) and the
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lawful object (the property owned by the plaintiff).

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Issue 3: WHETHER THE DEFENDANT WAS LIABLE TO COMPLY WITH OBLIGATIONS MENTIONED
UNDER SECTION 55 OF THE TRANSFER OF PROPERTY ACT?

As per Section 55 of the Transfer of Property Act, there are certain obligations tied to both buyers and sellers and
compliance with these obligations thereon is deemed to be a legal duty levied upon the parties involved. The
sections of this act relevant for the matter at hand are Section 55(1)(a) which defines the duties of a seller and
lays down the concept of ordinary care as an essential obligation of a buyer.

Issue 4: WHETHER THE PLAINTIFF IS ENTITLED FOR CLAIMING SPECIFIC PERFORMANCE OF THE
CONTRACT?

Under Section 14 of the Specific Relief Act, 1963 – any contract that is not determinable is eligible for a decree
of Specific Performance of its provisions. The contract at hand is not determinable in nature and therefore, the
Plaintiff is entitled for claiming its specific performance.

Issue 5: WHETHER THE PLAINTIFF IS ENTITLED TO CLAIM DAMAGES DUE TO THE CONDUCT OF
THE DEFENDANT?

It is humbly submitted to the court that the Plaintiff is entitled to claim damages. Non-compliance with the terms
of the agreement by the defendant has not only run the cost of litigation for the Plaintiff but also caused monetary
losses on the market value of the suit property.

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 ARGUMENTS ADVANCED

Issue 1:

THE PETITION IS MAINTAINABLE IN THIS COURT

The Delhi High Courts (Amendment) Act, 2015 received the assent of the President on 10th August 2015 and
came into force on 26th October 2015. The aforementioned bill has rightly enhanced the original pecuniary
jurisdiction of district courts of Delhi from Rs. 20 lakh to 2 crores and has given the original jurisdiction of the
Delhi High Court to be over and above that of Rs. 2 crores.

Section 5(2) of the Act states:

“Jurisdiction of High Court of Delhi -

(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union
territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before
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the appointed day, is exercisable in respect of the said territories by the High Court of Punjab.
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(2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also
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have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds
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[rupees two crore].”1

Since the laws of Holt are pari materia to those of Delhi, this case would be maintainable in the Hon’ble High
Court of Holt.

Section 12 of the Commercial Courts Act, 2015 defines the Specified Value of a suit. Under this, Section 12(1)(b)
states:

“(b) where the relief sought in a suit, appeal or application relates to movable property or to a right
therein, the market value of the movable property as on the date of filing of the suit, appeal or application,
as the case may be, shall be taken into account for determining such Specified Value”

As per this definition, the Specified Value of the suit at hand exceeds is Rs. 6 crores. Therefore, by virtue of the
relevant sections of the various aforementioned acts and legislations, the counsel on behalf of the Plaintiff humbly
submits that this case out of the territorial and pecuniary jurisdiction that it falls under, is maintainable in this
Hon’ble High Court.

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Delhi High Courts (Amendment) Act, 2015
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 Issue 2:

THE CONTRACT DATED 10th JANUARY 2023 IS VALID AND ENFORCEABLE IN THE EYES OF LAW

Section 10 of the Indian Contract Act, 1872 prescribes the essential ingredients of a valid contract. It states:

“All agreements are contracts if they are made by the free consent of parties competent to contract, for a
lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

2.1 The contract was entered into by free consent of parties competent to contract

An essential element of a valid contract is that the contract must be entered into only with free consent of the
competent parties involved. As for the competency, the plaintiff and both the defendants were neither minors nor
of unsound mind and were not disqualified under the contracting law.

In the case at hand, the plaintiff was approached by the defendants for the purchase of his property all on their
own. No element of influence or coercion was neither present nor required from the plaintiff because the
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defendants themselves deemed the property fit as per their requirements and hence, wanted to purchase it.
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2.2 The contract constitutes lawful consideration and a lawful object

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Consideration is a foundational element of a contract. An agreement without consideration cannot amount to a

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legally enforceable contract. Section 2(d) of the Indian Contract Act, 1872 defines consideration:

“Interpretation-clause.—In this Act the following words and expressions are used in the following senses,
unless a contrary intention appears from the context:

(d) 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 a consideration for the promise;”

As consideration, the promisor may ask the promisee or any other person to do or abstain from doing something.
This act of abstinence from it is known as the consideration to the contract. Consideration is the price of a promise,
a return or quid pro quo, something of value received by the promisee as inducement of the promise. An act done
or forbearance made in return for a unilateral promise is a sufficient consideration to support the promise.2

“A valuable consideration is a sense of law which may consist either in some right, interest, profit or benefit
occurring to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by
the other”3

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Fazaladdin Mandal vs Panchanan Das, AIR 1957 Cal 92
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Misa v Currie, 1875
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In the case that we are presently dealing with, the right or profit derived out of the contract for the defendant is
the suit property which was ideal for the expansion of their business. The benefit or profit for the plaintiff was
the amount of Rs. 6,00,00,000. Therefore, the subject matter of the contract in this case or the lawful object, is
the property owned by the plaintiff and purchased by the defendant for lawful consideration of Rs. 6,00,00,000.

2.3 The contract was not induced by undue influence

Undue influence is defined in Section 16 of the Indian Contract Act, 1872. The section states:

“A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such
that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair
advantage over the other.”

The defendants claim that the plaintiff was in a position to induce undue influence in itself is not satisfactory as
the section states that such influence must be used to dominate the will of the other. The high regard and trust
that is in question was not unilaterally held by Mr. Jacob towards Mr. Scully. The latter held a high degree of
trust and regard for Mr. Jacob – out of which he had not only helped the defendant in the present case but also in
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the initial years of the defendant’s business.

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“It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having
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been established by a proof of the relations of the parties having been such that the one naturally relied upon the
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other for advice, and the other was in a position to, dominate the will of the first in giving it. Up to that point
"influence" alone has been made out. Such influence may be used wisely, judiciously and helpfully. But, whether
by the Law of India or the Law of England, more than mere influence must be proved so as to render influence,
in the language of the law, "undue." It must be established that the person in a position of domination has used
that position to obtain unfair advantage for himself, and so to cause injury to the 1 person relying upon his
authority or aid.”4

As far as dominating the will of the defendant goes, there was never any need for the Plaintiff to do so because
the Defendants themselves had approached the plaintiff to purchase his property because they deemed it was
satisfying the conditions required to expand their business.

Therefore, in lieu of the factors mentioned above it is submitted to this hon’ble court that there was no undue
influence exercised by the Plaintiff to induce the Defendant to enter into contract dated 10th January 2023.

2.4 There was no misrepresentation or concealment of facts on the part of the plaintiff

The facts of the case state that Mr. Scully informed Mr. Peralta that the empty plot was not included in the suit
property. Just as any reasonable person would be – Mr. Scully was under the impression that this information

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Poosathurai vs Kannappa Chettiar, (1920) 22 BOMLR 538
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would be further communicated by Mr. Peralta to Mr. Jacob as they were not only brothers but also partners in
their business. To state further still, that there was a concealment of facts by Mr. Scully would mean that the
exception mentioned in Section 17 of the Indian Contract Act, 1872, would be overlooked.

“If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of Section 17, the
contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering
the truth with ordinary diligence.”5

Therefore, it is humbly submitted to the Hon’ble High Court that the contract between Mr. Scully (Plaintiff), Mr.
Jacob and Mr. Peralta (Defendant) is valid and must be enforced in favour of the Plaintiff.

Issue 3:

THE DEFENDANT WAS LIABLE TO COMPLY WITH OBLIGATIONS MENTIONED UNDER SECTION
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55(1)(A) OF THE TRANSFER OF PROPERTY ACT?

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Section 55 of the Transfer of Property Act, 1882 covers the rights and liabilities of a buyer and a seller. This
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section imposes certain obligations on both parties to a contract. It states:

“Rights and liabilities of buyer and seller - In the absence of a contract to the contrary, the buyer and the seller
of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next
following, or such of them as are applicable to the property sold:—

(1) The seller is bound—

(a) to disclose to the buyer any material defect in the property 1[or in the seller’s title thereto] of which the seller
is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all documents of title relating to the property which
are in the seller’s possession or power;

(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property
or the title thereto;

(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property
when the buyer tenders it to him for execution at a proper time and place;

(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property
and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would
take of such property and documents;

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Kopparthi Venkataratnam And Anr. vs Palleti Sivaramudu And Anr., (1940) 1 MLJ 314
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(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its
nature admits;

(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest
on all encumbrances on such property due on such date, and, except where the property is sold subject to
encumbrances, to discharge all encumbrances on the property then existing.”

3.1 Ordinary care was neglected by the defendant

In the case of Harilal Dalsukhram Sahiba vs Mulchand Asharam, the Madras High Court reinforced the
importance of ‘ordinary care’ on the part of the buyer as laid down in Section 55(1)(a) of the Transfer of Property
Act.

“It is quite clear that, if the plaintiff could with ordinary care have discovered that there was this defect of title,
then he cannot plead that there was a failure on the part of the defendant to comply with the obligation laid down
in Section 55(1)(a). There has been considerable argument as to whether the plaintiff knew, or could have
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discovered, that there was such a defect. The Subordinate Judge has held that he could have discovered the
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defect, if he had sufficiently investigated the title. Now that in regard to agricultural lands the Record of Rights
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affords such an easy means of investigating questions of title about particular pieces of land, there is clearly not
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the same difficulty that there used to be about discovering defects of title with reasonable care…Moreover the
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plaintiff is a person of intelligence, who has been a member of the Bombay Legislative Council……….With
ordinary care he should have ensued his investigation beyond the point he says he did. Both under Section
55(1)(a) and the definition of "notice" in Section 2 of the Act there was a want of care or a wilful abstention from
an enquiry or search which the plaintiff ought to have made, so that, in any opinion, the plaintiff is not entitled
to say that there has been fraud on the part of the defendant in regard to this matter.”

Ordinary care becomes relevant to this case because had the defendants performed due diligence in compliance
with the obligations of a buyer as laid down in Section 55 of the aforementioned act, they would have discovered
that the empty plot was not a part of the property which was available for purchase.

“4. The same result, I think, follows if, leaving aside the special provisions of Section 55 of the Transfer of
Property Act, we consider the sections relating to fraud and misrepresentation in the Indian Contract Act. Section
1,9 contains an exception that, if consent was caused by misrepresentation or by silence, which is fraudulent
within the meaning of Section 17, the contract, nevertheless, is not voidable, if the party whose consent was so
caused had the means of discovering the truth with ordinary diligence”6

It is further pertinent to mention, that as per the facts of the case, Mr. Jacob was well aware of the market price
of the property and knew that it could not have been less than Rs. 10,00,00,000. Even with this knowledge, the

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defendant did not think it was important enough to undergo due diligence when the price quoted by the plaintiff
was only 60% of the market price.(Rs. 6,00,00,000) . This allows me to conclude that it is a matter of the
defendants’ negligence and failure to perform due diligence and the consequences thereof, rather than a case of
misrepresentation on the part of my client.

3.2 Mistake of fact was unreasonable

The judgement in the case of Harilal Dalsukhram Sahiba vs Mulchand Asharam not only invoked the obligation
of ordinary care on the part of the buyer but also brought into question the intelligence of the person in question.

“A purchaser of property is under no legal obligation to investigate his vendor's title. But in dealing with real
property as in other matters of business regard is had to the usual course of business; and a purchaser who
wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title is not allowed to derive any
advantage from his wilful ignorance of defects which would have come to his knowledge if he had transacted his
business in the ordinary way."7
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Applying this to the present case, it is important to note that Mr. Jacob was a mechanical engineer, therefore to
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overlook his responsibility to undergo due diligence as a person of ordinary education with ordinary resources
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and shift the entire onus of responsibility and diligence on the seller would not be in favour of justice
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Issue 4:

WHETHER THE PLAINTIFF IS ENTITLED FOR CLAIMING SPECIFIC PERFORMANCE OF THE

CONTRACT

Section 14 of the Specific Relief Act, 1963 as mentioned below, states all the contracts that are not specially
enforceable.

“14. Contracts not specifically enforceable.—

(1) The following contracts cannot be specifically enforced, namely:—

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependent on the personal
qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific
performance of its material terms;

(c) a contract which is in its nature determinable;

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(d) a contract the performance of which involves the performance of a continuous duty which the court cannot
supervise.”

Sub-section (1) of Section 14 of the Specific Relief Act specifies the contracts which cannot be
specifically enforced, one of which is 'a contract which is in its nature 'determinable'.

The term determinable in legal parlance can be interpreted as any contract that can be ended upon the happening
of a contingency, or is terminable. Thus, any contract which within its ambit provides for the termination of the
same at the instance of one of the parties to the contract and at the occurrence or non-occurrence of a certain
event is determinable in nature.

The contract in the case at hand neither includes any clause or sub-clause that deals with the contingency or
termination of the contract nor empowers either party to seek such termination upon any contingency mentioned
therein. Therefore, the contract dated 10th January 2023 between the plaintiff and the defendant is not a
determinable contract and is eligible for a decree of specific performance by this Hon’ble Court.
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4.1 Suit for Specific Performance of the contract

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Specific performance refers to an equitable remedy in the law of contract, whereby the court of jurisdiction issues
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an order or decree of specific performance directing a party to perform a specific act, such as to complete
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performance of the contract.

As per Section 10 of the Specific Relief Act, 1963 a specific relief of contract enforceable is granted when it is
deemed by the court that the damages provided would not be able to compensate the losses arising out of the
breach of contract.

“Cases in which specific performance of contract enforceable.—Except as otherwise provided in this Chapter,
the specific performance of any contract may, in the discretion of the court, be enforced—

1. when there exists no standard for ascertaining actual damage caused by the non-performance of the act
agreed to be done; or
2. when the act agreed to be done is such that compensation in money for its non-performance would not
afford adequate relief.

Explanation –

Unless and until the contrary is proved, the court shall presume—

I. that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and

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 2. that the breach of a contract to transfer movable property can be so relieved except in the following cases
—
a. where the property is not an ordinary article of commerce, or is of special value or interest to the
plaintiff, or consists of goods which are not easily obtainable in the market;
b. where the property is held by the defendant as the agent or trustee of the plaintiff.”

In the present matter, the counsel on behalf of the Plaintiff seeks a decree of Specific Performance of the contract
dated 10th January 2023 between the Defendant and the Plaintiff on the following grounds:

1. The market value of the suit property has suffered during the course of ongoing court proceedings because
it is deemed to be a disputed property. During the two month period between the signing of the contract
and filing of this suit, the Plaintiff has had to incur the costs of maintenance of the suit property in the
interim along with the other expenses including but not limited to the taxes and bills of the said property.
2. The Plaintiff had mentioned the urgency of the situation to the Defendant on multiple occasions, as the
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former was looking to sell off all his properties at the earliest and move abroad with his children. Non-
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compliance with the terms of the agreement by the Defendant has caused a delay in the future plans of the
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Plaintiff, all of which could have been avoided by compliance with the contract.
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Given these circumstances it is safe for the court to assume that the breach of contract (non compliance by the
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Defendants) to transfer immovable property (the suit property) cannot be compensated by damages alone. Based
on these grounds the counsel of behalf of the Plaintiff humbly seeks a decree of Specific Performance from this
Hon’ble Court.

Issue 5:

THE PLAINTIFF IS ENTITLED TO CLAIM DAMAGES DUE TO THE CONDUCT OF THE DEFENDANT

Section 73 in the Indian Contract Act, 1872 defines damages as:

“Compensation for loss or damage caused by breach of contract –

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. —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. Compensation for failure to discharge
obligation resembling those created by contract.—When an obligation resembling those created by contract has

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been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive
the same compensation from the party in default, as if such person had contracted to discharge it and had broken
his contract. —When an obligation resembling those created by contract has been incurred and has not been
discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from
the party in default, as if such person had contracted to discharge it and had broken his contract."

Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed to
remedy the inconvenience caused by the non-performance of the contract must be taken into account.

Damages therefore refer to compensation for all kinds of losses incurred due to non-performance or non-
compliance of any legally enforceable contract. This section acts as a relief available to the party aggrieved due
to losses arising from the breach of contract.

5.1 Compensation in a suit for Specific Performance

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As per Section 21 of the Specific Relief Act, 1963, the Plaintiff has the right to seek compensation in addition to
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a decree of specific performance.

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“21. Power to award compensation in certain cases.—

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(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach 1 [in
addition to] such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a
contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to
compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient
to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to
the plaintiff, it shall award him such compensation accordingly.”

As per clauses 1, 2 and 3 of Section 21 of the Specific Relief Act, 1963, the counsel on behalf of the Plaintiff
would like to seek damages worth Rs. 50 lakhs incurred due to non-compliance to the terms of the agreement
signed on 10th January 2023.

“12. In some cases the appropriate relief for the breach may be specific performance & in other cases the
appropriate relief may be damages. A party who sues for specific performance must allege against the other
party that the latter has not performed the contract. That is the breach on which he asks for specific performance.
It is true that when such claim is made for specific performance the party claiming must show that on his part he
has performed & is & has been ready & willing to perform the contract. But that is a requirement in aid of his
claim which has already arisen by the other party's breach. The foundation in my judgment nevertheless remains
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the breach of contract by the other side. Equally so when the party claims damages. The cause of action
for damages is the breach of contract. In the claim for damages the party claiming need not say that he is ready
& willing because the contract is put an end to. The consideration that in the claim for specific performance the
party claiming must be ready & willing & must treat the contract as subsisting although the other party has
broken it or the consideration that a party claiming for damages need not treat the contract as subsisting does
not in my view alter the nature & character of the cause of action in the suit which remains in either case breach
of contract. These seemingly different considerations in either case are only incidental and ancillary to the very
nature of the relief asked. Naturally if the court is to decree specific performance the party claiming at whose
instance the court is acting must himself be ready & willing to perform the contract. Equally naturally when the
party is claiming only damages he need not be ready & willing to perform the contract because he is not asking
for performance but only damages for the other party's breach as sufficient recompense. Election of a remedy in
such case cannot & should not be said to be the cause of action. In my opinion a mental attitude or conduct in
such context cannot alter the cause of action.”8 A
M

These damages are sought on the grounds of:

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AR
M

1. Litigation Costs :
KU

Due to the non-compliance of the Defendant to the terms agreed upon by both parties in the agreement
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dated 10th January 2023. As a result of the negligence of the defendant in undergoing due diligence as a
party to the contract, the Plaintiff has had to seek relief by filing this suit before the Hon’ble Court. The
costs incurred during this litigation process have arisen from a breach of contract by the defendant and
therefore compensation is sought for the same.

2. Maintenance Costs :
The Plaintiff has had to pay costs of maintaining the suit property during the process of this litigation.
These costs include but are not limited to the taxes attached to the property, the bills and other household
costs that one might reasonably expect to incur as an owner of such a property.

3. Market Value:
The market value of the suit property has suffered as it is under litigation. During this period, the Plaintiff
has neither been able to rent out this property nor sell it to another party due to this contractual dispute.

In view of the averments made hereinabove, the plaintiff seeks the indulgence of this Hon'ble Court to allocate

8
Rajendra Nath Saha vs Saraswati Press Ltd., AIR 1952 Cal 78
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appropriate compensation to the tuen of Rs. 50,00,000/- incurred by the Plaintiff due to non-performance and
breach of the contract by the defendant

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES CITED,
TO THIS HON’BLE COURT. THE COUNSEL RESPECTFULLY PRAYS AT THIS HON’BLE COURT.
THIS HON’BLE COURT MAY BE PLEASED:

1. TO GRANT A DECREE OF SPECIFIC ENFORCEMENT OF THE CONTRACT DATED 10TH

JANUARY 2023
2. TO AWARD DAMAGES OF RS. 50 LAKHS TO THE PLAINTIFF

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY, AND GOOD CONSCIENCE.

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Date: March 26th, 2023 Sd/-

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KU

Place: HOLT, SAKHI Counsel for the Plaintiff

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