Group No.

– 16, 17, 18, 19, 20

5TH YEAR BLS TRIAL MOOT COURT

BEFORE

THE CITY CIVIL COURT

Under Order XXXVII Rule 2 of Code of Civil Procedure, 1908.

IN THE MATTER OF

A (XYZ PRIVATE LIMITED) ………………………………. PLAINTIFF

Versus

B (ABC PRIVATE LIMITED) ……………………...……. DEFENDANT

Memorial for Defendant

1
 TABLE OF CONTENT

Sr. No. Contents Page no.

1 List of Abbreviations 3

2 Index of Authorities 4

3 Statement of Jurisdiction 5

4 Statement of Facts 6

5 Statement of Issues 7

6 Summary of Arguments 8

7 Arguments Advanced 9-19

8 Issue 1:- 9-11

Whether there existed a valid contract?

9 Issue 2 :- 12-16

Whether the Plaintiff is entitled to damages?

10 Issue 3:- 17-19

Whether the defense of Covid-19 pandemic is applicable in

the present case?
11 Prayer 20

2
 LIST OF ABBREVIATIONS

Sr. No. Abbreviations Expansion

1 & And
2 E-mail Electronic Mail

3 Hon’ble Honourable
4 i.e. That is

5 Ltd. Limited
6 Pvt. Private
7 Rs. Rupees
8 Sec. Section
9 u/s Under section
10 vs Versus
11 SOGA Sale of Goods Act
12 ICA Indian Contract Act

INDEX OF AUTHORITIES

3
Cases referred

1) South Eastern Coalfield Ltd and others vs. M/s S. Kumar’s Association AKM
2) Harvey vs Facey
3) Elphick vs Barnes
4) Re Moore & Co.Ltd and Landauer & Co.
5) A. M. N. Khoyee & Co. vs Gordon Woodroofe & Co.
6) Ajay Shaw vs HDFC Limited and Ors
7) MEP Infrastructure Developers Ltd vs. South Delhi Municipal Corporation and Ors
8) Satyabrata Ghose v Mugneeram Bangurn & Co. & Ors.

Books referred

Contract Law-2 by R. K. Bangia

Code of Civil Procedure Bare Act

Statutes Referred
Sale of Goods Act, 1930
Indian Contract Act, 1872

STATEMENT OF JURISDICTION

4
It is humbly submitted that the Defendant has appeared before this Hon’ble Court considering

that the Plaintiff has approached this Hon’ble Court under Order XXXVII Rule 2 of Civil

Procedure Code, 1908. The Defendant will humbly contest the grounds that have been invoked

for the institution of the present suit.

 Order XXXVII Rule (2): - Institution of summary suits- (1) A suit, to which this Order

applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a

plaint which shall contain-

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in

the plaint; and

(c) the following inscription, immediately below the number of the suit in the title of the

suit, namely: “(Under Order XXXVII of the Code of Civil Procedure, 1908).”

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form

as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an

appearance and in default of his entering an appearance the allegations in the plaint shall

be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not

exceeding the sum mentioned in the summons, together with interest at the rate specified,

if any, up to the date of the decree and such sum for costs as may be determined by the

High Court from time to time by rules made in that behalf and such decree may be

executed forthwith

STATEMENT OF FACTS

5
 The Defendant is a Private Company registered under Companies Act, 2013. The Plaintiff

is also a Company engaged in the business of selling tomatoes.

 On 31st July 2022, the Defendant sent an email to the Plaintiff enquiring about the cost of

10,000kg tomatoes, on the same corresponding email the Plaintiff informed that the

amount will be Rupees 5 lakh.

 On 1st August 2022, it was settled that 50% cost will be paid by the Defendant at the time

of delivery and the remaining 50% will be paid within 15 days of delivery.

 On 10th August 2022, the delivery took place and the Defendant paid the 50% amount.

However, the tomatoes were not of good quality, 25% of the tomatoes were damaged and

rotten. Hence the Defendant refused to pay the balance amount.

 On 2nd September 2023, a year after the cause of action arose, the Plaintiff sent a legal

notice to the Defendant demanding the recovery of the balance amount.

STATEMENT OF ISSUES

6
 Issue 1:

Whether there exists a Valid Contract?

Issue 2:

Whether the Plaintiff is entitled to damages?

Issue 3:

Whether the defense of Covid-19 pandemic is applicable in the present case?

SUMMARY OF ARGUMENTS

7
 Issue 1: Whether there exists a Valid Contract?

The Defendant humbly submits that there was no valid contract between the Plaintiff and

Defendant since the prerequisites of a valid contract such as intention to create legal relation

and enquiry not amounting to offer, were not fulfilled. The Defendant further submits that

there was no valid contract but an agreement between the parties and this agreement is

resolved to be void as per Section 8 of Sale of Goods Act.

 Issue 2: Whether the Plaintiff is entitled to damages?

The Defendant submits that the Plaintiff is not entitled to damages as per Section 15 and

Section 16 (2) of the Sale of Goods Act, 1930 since the supplied goods were not of

merchantable quality and this constitutes as a breach of implied condition and warranty.

Furthermore, the Defendant submits that the Plaintiff cannot claim for damages under Order

XXXVII of Code of Civil Procedure, 1908, since the present suit is not maintainable as it is

only applicable to written contracts.

 Issue 3: Whether the defense of Covid-19 pandemic is applicable in the present

case?

The Defendant submits that the defense of Covid-19 pandemic was applicable in the year

2022 as per the Office Memorandum issued by The Ministry of Finance’s Department of

Expenditure stating that the Covid-19 pandemic is considered as a force majeure event and

this memorandum continued to have relevance in 2022. The Defendant contends that the,

defendant could not perform the alleged contractual obligation the Plaintiff claims should

have been fulfilled due to the occurrence of force majeure event.

ARGUMENTS ADVANCED
8
 1. There was no Valid contract between the Plaintiff and Defendant

The Defendant most humbly submits before this Hon’ble Court that there was an agreement

between the Plaintiff and Defendant hence, the contract was not a valid contract. The Defendant

contends that the prerequisites of a valid contract were not fulfilled. Furthermore, the defendant

also admits that there was an agreement between the parties and such an agreement is resolved to

be void as per Section 8 of Sale of Goods Act, since the goods delivered by the Plaintiff were

perished goods.

1.1. The contract was not a valid contract since there was no intention to create

legal relation.

The Defendant submits that, as per the contract law all contracts are agreement but all

agreements are not contracts, only legally binding agreements are termed as contracts and the

intention of the parties entering into the agreement is one of the fundamental components that

support the legitimacy and efficacy of any contract. The defendant states that in the present case,

the intention to create legal relation was not displayed by either of the parties. The terms and

conditions that were set out by the plaintiff on 1 st August 2022, merely state the method in which

the payments were to be made. Further, solely setting forth the terms and conditions does not

constitute a contract. In the matter of South Eastern Coalfields Ltd & Others vs. M/s S. Kumar’s

Associations AKM1, it was held by the Supreme Court that, “the judicial views before us leave

little doubt over the proposition that a letter of intent merely indicates a party’s intention to enter

into a contract with the other party in future. No binding relationship between the parties at this

1
Editor_4, Ridhi and Gauri (2021) Letter of intent merely indicates party’s intention to enter into contract; no
binding relationship at this stage emerges: Sc explains in terms of liability of successful bidder, SCC Times.
Available at: https://www.scconline.com/blog/post/2021/07/27/letter-of-intent/ (Accessed: 03 September 2024).

9
stage emerges and the totality of the circumstances have to be considered in each case. Hence,

there was no subsisting contract inter se the parties to attract the general terms and conditions

as applicable to the contract”. Hence the defendant asserts that neither parties displayed any

intention to create legal relation and if the plaintiff had the intention, then they failed to take the

reasonable steps to bring such intention to the attention of the defendant.

1.2. Merely enquiring about the goods does not amount to an Offer/Proposal

The defendant submits that, as per Section 2 (a) of the Indian Contract Act, 1872 “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’”

for the formation of a contract there must exist an implied or express offer but an invitation to

offer cannot be represented as an offer. The defendant states that the defendant sent an email to

the plaintiff on 31st July 2022, in the email the defendant simply enquired about the price of

10,000 kg tomatoes, on the same email chain the plaintiff responded by stating the cost. The

defendant contends that neither the defendant nor the plaintiff made any implied or express

proposal in the abovementioned email correspondence. In Harvey vs Facey 2, the Privy Council

held that “only stating the price was merely responding to a request for information which does

not constitutes an offer. Hence without an offer the question of acceptance would not arise and

without offer and acceptance a valid contract cannot be resolved.”. Hence the defendant asserts

that, the email correspondence between the parties was merely an invitation to offer and without

the offer there exists no valid contract between the plaintiff and defendant.

2
Bhattacharyya, A. (no date) Case: Harvey V/S Facey, Legal Service India - Law, Lawyers and Legal
Resources. Available at: https://www.legalserviceindia.com/legal/article-6532-case-harvey-v-s-facey.html
(Accessed: 03 September 2024).

10
 1.3. There existed an agreement between the Plaintiff and Defendant and such

an agreement is resolved to be void

The Defendant submits that as per Section 8 of the Sale of Goods Act, 1930 “Where there is an

agreement to sell specific goods, and subsequently the goods without any fault on the part of the

seller or buyer perish or become so damaged as no longer to answer to their description in the

agreement before the risk passes to the buyer, the agreement is thereby avoided.”. The defendant

submits that there existed only an agreement to sell between the parties since the prerequisites of

a valid contract were not fulfilled and a contract which is not enforceable by law is an agreement.

The defendant states that the tomatoes delivered by the plaintiff on 10 th August 2022 were

damaged, rotten and not of good quality i.e., they had perished. Therefore, relying on the

abovementioned section, the agreement which existed between the plaintiff and defendant is

deemed to be void. In Elphick vs. Barnes3, the court held that “if a buyer took a horse on a trial

for 8 days and the horse died within that period then the contract which is in the form of

agreement to sell became void.” The defendant contends that the defendant does not allege that

the delivery of perished goods was the fault of the plaintiff, but the defendant does assert that the

plaintiff cannot claim the compensation after subsequently delivering perished good.

2. The Plaintiff is not entitled to damages

The Defendant most humbly submits before this Hon’ble court that the plaintiff is not

entitled to damages since the Plaintiff has breached the conditions and warranties as laid

down in Section 15 and Section 16 (2) of the Sale of Goods Act, 1930. Furthermore, the

3
(No date) High Court of Justice. common pleas division. Elphick v. Barnes on JSTOR. Available at:
https://www.jstor.org/stable/3304478 (Accessed: 03 September 2024).

11
 present suit has been instituted under Order XXXVII of the Code of Civil Procedure, 1908

but the mentioned Order is only applicable to written contracts and hence the suit is not

maintainable and therefore the plaintiff cannot claim for damages under the present suit.

2.1. The Plaintiff is construed to be in Breach of Condition and Warranty as per

Section 15 and Section 16 (2) of the Sale of Goods Act, 1930.

The Defendant submits that as per Section 15 of Sale of Goods Act, 1930 “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; and, if the sale is by sample as well as by description,

it is not sufficient that the bulk of the goods correspond with the sample if the goods do not

also correspond with the description.”. The defendant states that the defendant intended to

purchase tomatoes from the plaintiff and communicated their intention via email, hence, the

defendant had never tangibly perceived the good and was only dependent on the description

given by the plaintiff, therefore, it can be deduced that there was sale of goods by description.

The defendant submits that the plaintiff delivered rotten and damaged goods and the

delivered goods did not correspond with the description, hence the plaintiff has breached the

implied condition as per Section 15 of SOGA, 1930. In the matter of Re Moore & Co Ltd and

Landauer & Co4, the Court of Appeal held that “under Section 13, when goods are sold by

description, the goods delivered must correspond with that description. Since the contract

described the goods as being packed in cases of 30 tins, and the goods delivered were packed

in cases of 24 tins, the goods did not correspond with the description provided in the

contract. Even though the market value was not affected and there was no loss to the

defendants, there was still a breach of Section 13 of the Sale of Goods Act 1979.”
4
Gandhi, R. (2023) Re Moore & Co and Landauer & Co (1921), Case Judgments. Available at:
https://casejudgments.com/re-moore-co-and-landauer-co-1921/ (Accessed: 03 September 2024).

12
 The Defendant further submits that Section 16 provides that as a general rule there is no

implied warranty or condition as to the quality or fitness of the goods supplied. Hence

fundamentally this section provides the exception to the Rule of Caveat Emptor, one such

exception has been mentioned in Section 16 (2) of Sale of Goods Act, 1930 “Where goods

are bought by description from a seller who deals in goods of that description (whether he is

the manufacturer or producer or not), there is an implied condition that the goods shall be of

merchantable quality: Provided that, if the buyer has examined the goods, there shall be no

implied condition as regards defects which such examination ought to have revealed.”. The

defendant contends that under section 15 of SOGA, 1930 the defendants have demonstrated

that the purchased tomatoes fall under the purview of goods that are bought by description.

Further, the plaintiff who is a seller in the present case is a private limited company that is

engaged in the business of producing and exporting tomatoes hence, the seller dealt in goods

of that description. Moreover, the tomatoes delivered by the plaintiff were rotten and damage

and hence, it can be concluded that the goods delivered by the plaintiff were not of

merchantable quality. In the matter of A.M.N. Khoyee & Co. vs Gordon Woodroofe & Co. 5

the Madras High Court gave comprehensive meaning to the term “Merchantable quality” It

held that “It is not sufficient that the goods are marketable or saleable (that is, no doubt the

dictionary meaning of the word) for, in the statutory sense the significance of the word

"merchantable" is relative, the test being, are the goods merchantable or not under the

particular description in the contract? The same idea may be expressed differently by stating

that the term, that the goods shall be of merchantable quality is fulfilled when they do not

5
(No date a) Aga Mirza Nasarali khoyee and co. ... vs Gordon Woodroffe and Company Ltd. on 6 August,
1936. Available at: https://indiankanoon.org/doc/1560602/ (Accessed: 03 September 2024).

13
differ from the normal quality of the described goods, including under the term "quality " the

state or condition as required by the contract”. The defendant asserts that the plaintiff’s

claim that the defendant is liable to pay the remaining 50% of the amount for the delivered

tomatoes is in itself unfounded and deceitful considering that the plaintiff themselves have

breached the conditions and warranty provided under Section 15 and Section 16 of SOGA,

1930 by delivering spoiled goods to the defendant. Hence, the defendant submits that the

plaintiff is not entitled to damages since the plaintiff has failed to perform their primary duty.

2.2. The Order under which the present suit is invoked is not maintainable and

therefore, subsequently the plaintiff cannot claim for damages under the present.

The Defendant submits that the plaintiff has invoked the present suit under Order XXXVII

Rule 2 of CPC. However, Rule 1 sub-rule (2) of Order XXXVII mentions the Classes of Suit

to which this Order is applicable, it states that “ (2) Subject to the provisions of sub-rule (1),

the Order applies to the following classes of suits, namely: - (a) suits upon bills of exchange,

hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or

liquidated demand in money payable by the defendant, with or without interest, arising,- (i)

on a written contract, or (ii) on an enactment, where the sum sought to be recovered is a

fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee,

where the claim against the principal is in respect of a debt or liquidated demand only.]”The

Defendant contends that the suit is not maintainable as per the abovementioned rule since

there was no written contract between Plaintiff and Defendant. The defendant first and

foremost asserts that there existed no valid contract between the party and furthermore, if the

plaintiff’s claim of subsisting contract is admitted such a contract cannot be termed as a

14
 written contract. In the matter of Ajay Shaw vs Hdfc Limited and Ors. 6, the Delhi High Court

held that “The object of provision of Order 37 CPC is that when there is a written document

which ex facie, in itself, without any further factual events to be pleaded as a cause of action

in the suit, admits and acknowledges liability and obligation of the defendant to pay to the

plaintiff and only when a suit can be filed under Order 37 CPC suit. A historical fact of an

amount paid under an agreement to sell long back and which is stated to be refundable in

case the agreement does not go through, cannot be the basis of Order 37 CPC suit once

various events transpire after execution of a particular document and the document is not to

be taken as the last word as the contractual document between the parties from which arises

the obligation to pay as required by Order 37 CPC. This provision of Order 37 CPC is

provided where from a written document a clear-cut obligation of a liquidated amount is

shown to be payable to the plaintiff by the defendant and execution of which fact without

anything more is the only and the complete cause of action of the Order 37 CPC suit. If facts

have to be stated in addition to the document which falls under Order 37 CPC, then such a

suit does not lie under Order 37 CPC.” The Defendant submits that there existed only email

correspondence between the plaintiff and defendant and the subject matter of this email

correspondence was merely an enquiry and the response to that enquiry. Hence, such email

correspondence cannot be recognized as a written contract. Furthermore, the terms and

conditions set out by the plaintiff simply stated the manner in which the payments were to be

made therefore, the terms and conditions solely cannot be termed as written contract. The

defendant asserts that the plaintiff has failed to show beyond doubt that there existed a

6
(No date a) Ajay Shaw vs HDFC Limited and Ors. on 18 July, 2018. Available at:
https://indiankanoon.org/doc/132555666/ (Accessed: 03 September 2024).

15
written contract between the parties and therefore, the plaintiff cannot invoke the present suit

under Order XXXVII of CPC. Since the present suit is not maintainable, this Hon’ble court

has no jurisdiction to adjudicate the matter. Therefore, the defendant contends that the

plaintiff has no legal remedy to claim for damages under a suit that is not maintainable.

The defendant submits that the plaintiff cannot claim for reliefs under Section 58 of Sale of

Goods Act, 1908 and Section 73 of Indian Contract Act, since to invoke the provisions of

these sections there must exist a valid contract between the plaintiff and defendant.

16
3. The Defense of Covid-19 pandemic was applicable in the year 2022 as per the

Government Notification

The Defendant submits that as per the Office Memorandum issued by The Ministry of

Finance’s Department of Expenditure, the Covid-19 pandemic was declared as a Force

Majeure Event and this memorandum was extended till the year 2022. The defendant

contends that there was no contractual obligation that the defendants were bound to perform

since there existed no valid contract between the parties. Though, if such pleadings of the

plaintiff were assumed to be true, the defendant claims to be exempted from such contractual

obligation on the ground that the Covid-19 pandemic was treated as a Force Majeure event.

3.1. The Force Majeure Clause is a valid defense during Covid-19 pandemic

The defendant states that the force majeure means “greater force” and is related to an act of

God, an event for which no party can be held accountable. Subsequently in the present case

the alleged contract came into existence in the month of July-August 2022 and as per the

Memorandum issued by the Government, the year 2022 was declared as the pandemic year

and treated a force majeure event. Hence the defendant submits that the defense of Covid-19

pandemic is applicable in the present matter. The defendant submits that COVID-19

pandemic had caused unprecedented disruptions to business operations and the commercial

contracts worldwide. The lockdown imposed by the Government of India has restricted not

only the movement of people but also disrupted supply of goods and services around the

world. The defendant being a private limited company was not shielded from the difficulty

caused due to the lockdown imposed on the country. Hence, the defendant submits that since

the plaintiff sold damaged tomatoes, the defendant incurred heavy financial loss in business.

17
 In MEP Infrastructure Developers Ltd vs. South Delhi Municipal Corporation and Ors 7, the

court essentially relied on the Ministry of Roads Transport and Highways (MORTH) circular

and observed that: “The respondent Corporation itself referred to Circular which notified

that the COVID-19 pandemic was a force majeure occurrence. In effect, the force majeure

clause under the agreement immediately becomes applicable and the notice for the same

would not be necessary. That being the position, a strict timeline under the agreement would

be put in abeyance as the ground realities had substantially altered and performance of the

contract would not be feasible till restoration of the pre-force majeure conditions.”

Therefore, the defendant asserts that taking into consideration the various circumstance that

were beyond the control of human conduct, the defendant should be discharged from their

contractual obligation.

3.2. As per Section 56 of Indian Contract Act, 1872, the performance of the

alleged contract was impossible and hence it is resolved to be a void agreement.

The Defendant once again assert that the defendant does not claim to liable of fulfilling any

contractual obligation since there existed no contract between the parties but to do defend the

issue at hand, the defendant is invoking the provisions of the Indian Contract Act. Further,

the defendant submits that the essence of Force Majeure event has also been enshrined in

Section 56 and Section 32 of the Indian Contract Act, 1872. Section 56 of ICA, 1872 states

that “Contract to do an act afterwards becoming impossible or unlawful- A contract to do an

act which, after the contract is made, becomes impossible, or, by reason of some event which

7
Chunder, K. (2023) Force majeure: Evolution of jurisprudence in India post covid-19, Fox Mandal.
Available at: https://www.foxmandal.in/force-majeure-evolution-post-covid-19-2/#_ednref14 (Accessed: 03
September 2024).

18
 the promisor could not prevent, unlawful, becomes void when the act becomes impossible or

unlawful.”. The defendant submits that the Covid-19 pandemic was an unforeseeable event

and the repercussion of such an event were felt after the contract was made, hence the

performance under the contract became impossible. Therefore, the Defendant contends that

the contract became void. In Satyabrata Ghose v. Mugneeram Bangurn & Co & Anr 8 it was

held that, “the principle of frustration is not confined to physical impossibilities. The court

observed that, the word ‘impossible’ used in Section 56 does not confine the scope of the

section to physical impossibility nor requires the impossibility to be literal and if an

unprecedented event or change of circumstances, causes the total failure of the object for

which that contract was entered into, or the fundamental purpose for which the parties

negotiated to enter the agreement, then it should be treated as impossibility of performance,

because, even though it can be physically performed by the promisor, but such compelled

performance would put him to great hardships or makes the contract impracticable and

useless. Therefore, if the object of the contract is lost, the contract has to treated as

frustrated.” The defendant contends that as is mentioned in the above judgment, the object

for which the alleged contract was executed between the parties failed when the plaintiff sold

damaged goods to the defendant. Therefore, the defendant asserts that since the object of the

alleged contract was absent, the contract itself became void as per Section 56 of the ICA.

8
Case analysis: Satyabrata Ghose V/S mugneeram bangur (no date) Legal Service India - Law, Lawyers and
Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-2234-case-analysis-
satyabrata-ghose-v-s-mugneeram-bangur.html#google_vignette (Accessed: 03 September 2024).

19
 PRAYER

It is hereinafter most humbly prayed before this Hon’ble Court of that, in the light of the facts

stated, issues raised, arguments advanced and authorities cited, the Hon’ble Court may be

pleased to uphold the contentions of the Respondents and allow that; -

a. The suit is not maintainable and must be dismissed with cost.

b. The Plaintiff is not entitled to incur the damages

c. The Plaintiff must provide the compensation for the legal procedural expense sustained

by the Defendant.

And pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of

Justice, Fairness, Equity and Good Conscience. For This Act of Kindness, the Defendant

Shall Duty Bound Forever Pray.

Counsels on behalf of the Defendant

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