Faculty of Law, Jamia Millia Islamia – Intra Moot Court Competition, 2018

TC – 20

IN THE HON’BLE SUPREME COURT OF ASNARD

In Appeal No. _____ of 2018

HPC Ltd.

&

Amy Santiago …Appellant

v.

Steve Rogers …Respondent

Under Article 136 of the Constitution of the Democratic State of Asnard

-Written Submission on behalf of the Appellants-

Table of Content
 Faculty of Law, Jamia Millia Islamia – Intra Moot Court Competition, 2018

STATEMENT OF JURISDICTION...................................................................................................II

LIST OF ABBREVIATIONS.........................................................................................................III

INDEX OF AUTHORITIES...........................................................................................................IV

STATEMENT OF FACTS..........................................................................................................VIII

STATEMENT OF ISSUES..............................................................................................................X

SUMMARY OF ARGUMENTS......................................................................................................XI

ARGUMENTS ADVANCED............................................................................................................1

1. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872?...............................................................................................................1

1.1. Wrongful Intention to deceive.................................................................................1

1.2. Any other acted fitted to deceive.............................................................................2

1.3. Duty to speak...........................................................................................................3

2. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony
Stark?.....................................................................................................................................4

2.1. Exception does not apply to fraud.\.........................................................................4

2.2. Implied condition as to the reasonable fit of the machine.......................................5

3. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her
husband and her consequent loss of livelihood?....................................................................6

3.1. Appellant’s loss of livelihood..................................................................................6

3.2. Negligence caused by the Respondent.....................................................................9

4. Whether Mr. Steve Rovers, being the supplier and service provider of LPT Machines,
is liable to compensate Mr. Tony Stark for breach of contract?.........................................14

4.1. S.16 of the Sale of Goods Act, 1930 has been neglected by the supplier..............14

4.2. Section 16 of the Indian Contract Act, 1872 defines undue influence..................16

4.3. Material breach under Indian Contract Act, 1872.................................................19

Prayer....................................................................................................................................XIII

-Written Submission on behalf of Appellants- I|

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-Written Submission on behalf of Appellants- II |

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STATEMENT OF JURISDICTION

The petitioner approached before the Honourable Supreme Court of Asnard by Special Leave
Petition under Article 136 of the Constitution of Asnard, which reads as follows:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

-Written Submission on behalf of Appellants- III

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LIST OF ABBREVIATIONS

AIR All India Reporter

H.C. High Court

Govt. Government

Hon'ble Honourable,

SC Supreme Court

Ors. Others

SCC Supreme Court Cases

& And

Sec. Section

U.O.I. Union Of India

SCD Supreme Court Decision

SCR Supreme Court Reporter

Art. Article
Vs. Versus

-Written Submission on behalf of Appellants- IV

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INDEX OF AUTHORITIES

CASES

SR. CASE LAW CITATIONS FOOTNOTE

NO.

1. Anns v London Borough of 1978 AC 728. 27

Merton

2. Bhaurao Durga Paralar v. AIR 2005 SC 3330 2

State of Maharashtra

3. Central Board of Secondary (2011) 8 SCC 497 36

Education and Anr. v. Aditya
Bandopadhyay and Ors.

4. Chaproniere v. Mason (1905) TLR 63. 35

5. Derry v. Peek (1889) 14 AC 337 1

6. Dominion Natural Gas v Collins 1909 AC 640. 29

and Perkins

7. Donoghue v Stevenson 1932 UKHL 100. 24

8. Francis Coralie v. Union 1981 AIR 746. 21

Territory of Delhi

9. Frost vs Aylesbury Dairy (1905) 1 K.B .608. 15

Corporation

10. Government of Odisha state v AIR 1963 ORI 217 13

Shivprasad Shah

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11.
Hadley Hadley v. Baxendal 1854 EWHC J70. 30

12. Haley v London Electricity 1965 AC 77. 25

Board

13. In Re Andrew yule and AIR 1932 CAL 879: 12

corporation 140 I.C 877.

14. Jackson v. Watson 360 SO.2d 582 (1978) 36

15. . Maneka Gandhi v. Union 1978 AIR 597 16

of India.

16. Mihool Nayak v. Life AIR 1962 SC 814. 3

Insurance Corpn of India

17. Nursey Spg. & Wvg. Co. Ltd., Re ILR (1880) 5 Bom 92 6

18. Olga Tellis vs. Bombay AIR 1986 KER 201 22

Municipal Corp

19. Priest v. Last. (1903) 2KB 148. 34

20. P. Sorojam v LIC of India (1990) 1 SCC 520. 11

21. Raghava Menon v. Kuttappan AIR (1978) 1675 33

Nair

22. R. S. THAKUR V. H. G. E. AIR 1971 Bom 97. 32

CORPORATION

23. Shantistar Builders vs. Narayan 1996 AIR 786 23

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Khimalal Totame

24. Suniel Bartra vs. Delhi AIR (1978) 1675 19

Administration

25. Wilhite v. Mays 140 Ga.app.816 (232 4

S.E.2d 141) (1976)

BOOKS REFERRED

1. Durga Das Basu., Shorter Constitution of India, Ed. 10th (1989).

2. M.P Jain, Indian Constitutional law, Ed. 6th (2012), Lexis Nexis Butterworths Wadhwa,
Nagpur.
3. V. N. Shukla, Constitution of India, Ed.11th, (2008), Eastern Book Company.
4. Pollock & Mulla The Indian contract and Specific Relief Acts 14th edition.
5. Contract and Specific Relief Avtar Singh 11th edition.
6. Contract 1 R.K. Bangia 16th edition.
7. Contract 2 R.K. Bangia 16th edition.
8. Goods act R.K. Bangia 10th edition.
STATUTORY COMPILATION

1. The Constitution of India,1950.

2. Indian Contract Act, 1872.
3. Sale of Goods Act, 1930

INTERNET SOURCES

 www.indiakanoon.org
 www.indlawinfo.org
 www.legalserviceIndia.com
 www.legalsutra.org
 www.lexisnexisacademic.com

-Written Submission on behalf of Appellants- VII |

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 www.macmillandictionary.com
 www.manupatra.com
 www.scconline.com
 www.scdecision.in
 www.supremeCourtcases.com

-Written Submission on behalf of Appellants- VIII

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STATEMENT OF FACTS

1. Healing Hand Pharmaceutical Corporation Limited Company (HPC) controlled and

managed in democratic state of ‘Asnard’ (DSC), incorporates as a small factory in
2012 HTC Limited enjoy absolute Monopoly with regard to production of ‘Lobanza’
capsule. The company has strongly advised that this capsule must not be consumed
when a person is still consuming substance such as drugs and tobacco. Intake of these
capsule while consuming organic substance may cause death.
2. HTC Limited is largely owned by a business tycoon named Tony Stark. Mr. Steve
Rovers and Mr. Tony Stark were childhood friend and residence of the district of
Drone. After completing the senior secondary school Examination, took admission in
Pharmaceutical bachelor program and bachelors technical programmer respectively.
3. In March 2017 Mr. Snark planning to buy LPT in order to speed up the production of
the Lobanza capsule, he conducted a market research to test the viability of new
project, to his good fortune he discovered that LPT machine would slash the cost and
productivity shall increase buy roughly ten times.
4. HPC Limited purchase the Lpt. machine from Steve on 4th June 2017 owing to the
efficiency and productivity of the machine Mr. Snark planned to buy more machines.
On 14th August 2017 HPC Limited entered into an agreement with Mr. Steve
regarding the purchase of three more machine for Lobanza capsule production. Mr.
Steve agreed.
5. Mr. Pablo Escocar, a generator in government school Saw advertisement of Lobanza
capsule. Mr. Pablo started consuming Lobanza capsule however he couldn’t refrain
from smoking.
6. A week prior to the sale of three LPTs on 14 August 2017 Mr. Steve received detail
report highlighting certain patent defect in those machines. Mr. Steve failed to
disclose that information to HPC Limited. Unfortunately, on 22nd October 2017 all
machine malfunction.
7. Mr. Pablo died after eight days of conception of the capsule. His pregnant wife went
into mental trauma and found herself completely helpless. Meanwhile Mr. Stark
aggrieved by such a huge loss to the production accusing Mr. Steve for fraud. Mr.
Stark found out about the death of Mr. Pablo approach the widow of the deceased and

-Written Submission on behalf of Appellants- IX

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requested how to join the Suit against Mr. Steve. HPCL Limited appeal before The
Honorable Supreme Court of Asnard.

STATEMENT OF ISSUES

The Supreme Court ordered the parties to advance their contentions and arguments on 17
November 2018, on the following issues:

I. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872?
II. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony Stark?
III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her
husband and her consequent loss of livelihood?
IV. Whether Mr. Steve Rovers, being the supplier and service provider of LPT Machines, is
liable to compensate Mr. Tony Stark for breach of contract?

-Written Submission on behalf of Appellants- X|

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SUMMARY OF ARGUMENTS

I. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872?
The counsel on the behalf of Mr. Tony Snark (hereinafter ‘Appellant’) most humbly
submits that the fraud was committed by Mr. Steve Rovers (hereinafter ‘Respondent’)
under Section 17 of the Indian Contract Act, 1872. Respondent has intentionally
concealed the vital information from Appellant which he has the duty to speak and
silence on the part of respondent is equivalent to speech.
II. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony
Stark?
It is most humbly submitted that contract dated 14 August 2017 voidable at the option of
Mr. Tony Stark. There was fraud on the part of Mr. Steve. According to section 19 of
Indian Contract Act fraud is one of the element which lead to the contract voidable at the
option of the other party. Silence on the part of respondent is fraud because he has the
duty to speak and keeping silence on his power is equivalent to sleep which misleads the
appellant.
III. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of
her husband and her consequent loss of livelihood?
The right to life and personal liberty as mentioned in part III of the constitution of
Democratic State of ‘Asnard’ (DSA), also includes within its ambit the right to
livelihood, right to shelter which the appellant claims to have been violated.
There was negligence on part of Mr. Steve Rovers as he ignored the detailed report from
the auditor categorically highlighting certain patent defects in those machines and failed
to disclose that information to HPC Ltd and in turn deprived Ms. Amy of means of
livelihood.
IV. Whether Mr. Steve Rovers, being the supplier and service provider of LPT
Machines, is liable to compensate Mr. Tony Stark for breach of contract?
There is ignorance of section 16 of the Sales of goods act 1930 by the seller Mr. Steve
Rovers. There is use of Undue influence under section 16 of Indian Contract Act 1872
by Mr. Steve Rovers. There is material breach of the contract by Steve rovers.

-Written Submission on behalf of Appellants- XI

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ARGUMENTS ADVANCED

1. Whether fraud was committed by Mr. Steve Rovers under Section 17 of the Indian
Contract Act, 1872?
The council on the behalf of Mr. Tony Snark (hereinafter ‘Appellant’) most humbly
submits that the fraud was committed by Mr. Steve Rovers (hereinafter ‘Respondent’)
under Section 17 of the Indian Contract Act, 1872. Respondent has intentionally
concealed the vital information from Appellant which he has the duty to speak and
silence on the part of respondent is equivalent to speech.
Section 17 in The Indian Contract Act, 1872
17. ‘Fraud’ defined. —‘Fraud’ means and includes any of the following acts committed
by a party to a contract, or with his connivance, or by his agent1, with intent to deceive
another party thereto or his agent, or to induce him to enter into the contract:—
(1)  the suggestion, as a fact, of that which is not true, by one who does not believe it to
be true;
(2)  the active concealment of a fact by one having knowledge or belief of the fact;
(3)  a promise made without any intention of performing it;
(4)  any other act fitted to deceive;
(5)  any such act or omission as the law specially declares to be fraudulent.
Explanation. —Mere silence as to facts likely to affect the willingness of a person to
enter into a contract is not fraud, unless the circumstances of the case are such that,
regard being had to them, it is the duty of the person keeping silence to speak, or unless
his silence is, in itself, equivalent to speech.
1.1. Wrongful Intention to deceive.
1.1.I. As per the section 17 of ICA, to constitute a fraud it is necessary that there
should be wrongful intention to deceive the other party. In a famous English
case Derry v. Peek1 . Lord Herschel said: “Intention to Fraud is proven
when it is shown that a false representation has been made –
 Knowingly; or
 Without belief in its truth;
 Reckless careless whether it to be true or false.”

1
(1889) 14 AC 337.
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1.1.II. In the instant case there is knowledge, as week prior to the sale of 3 LPTs on
14th August 2017, Mr. Steve received a detailed report from the auditor
categorically highlighting certain patent defects in those machines.
1.1.III.Moreover, without belief in its truth, faced with extreme pressure to meet
the rising demand, Mr. Steve ignored the report and failed to disclose that
information to HPC Ltd.

1.2. Any other acted fitted to deceive.

1.2.I. According to Section 17(4) of the ICA 1872 says any act fitted to deceive.
Respondent concealed the vital fact even having the knowledge of the fact.
The concealment may occur through silence, actions, writings, or spoken
words.
By ‘fraud’ it means an intention to deceive; whether it is from any
expectation of advantage to the party himself or from ill-will towards the
other is immaterial. The expression “fraud” involves two element, deceit
and injury to other person2.
1.2.3. In life insurance case, deliberating concealed the fact of medical treatment
for serious ailment only a few months before the policy was taken, this
amount to fraud.3
1.2.4. The residence and premises purchased by the plaintiff has serious defect
unknown to him, in that the septic tank and its drainage lines were
inadequate, and after a heavy rain there was an overflow of raw sewage
from the septic tank into the front yard of the residence a condition both
unpleasant and dangerous to health. Also, after heavy rain there was
pounding of surface water under the residence which caused it deterioration.
Defendant seller was well aware of the problem and does not disclosed them
to prospective buyer. The buyer did not discover the sewage and water
problem until after the sale has been completed. He would have not
purchased the property if he had known of them under the particular

2
Bhaurao Durga Paralar v. State of Maharashtra AIR 2005 SC 3330.
3
Mihool Nayak v. Life Insurance Corpn of India, AIR 1962 SC 814, (1962) 2 SCR Supp 571.
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circumstances of this case the suppression of facts concerning the defect in

the property. The court held that defendant has constituted the fraud.4
1.2.5. In the instance case, respondent deceit the appellant, even having the
knowledge of the defect in machines he concealed it from appellant and as a
result concealment of vital information led to loss of appellant.

1.3. Duty to speak.

1.3.1. The duty to speak firstly, arise when the person keeping silence is under duty to
speak. Duty to speak arises when one contracting party responses trust and confidence
in the other. For example, ‘B is A’s daughter, and has just come of age. Here, the
relation between the parties would make it A’s duty to tell B if the horse is unsound. 5
This principle is so wide. The duty to disclose the truth will arise in all cases where
some party reposes, and other accepts, confidence6.
1.3.2. Secondly, duty to speak arises where one of the parties is utterly without any means of
discovering the truth and has to depend on the good sense of other party. An insurance
company knows nothing about the life or circumstances of the assured. It has to
depend on the discloser made by the assured. It, is therefore, the duty of the assured to
put the insurer in possession of all material facts affecting the risk covered. Where
false answer as to the state of health were given in a proposal for life insurance, the
policy was held to be voidable and it was not material that the medical officer of the
corporation had certificated the lice assured as good.7
1.3.3. In the present case there is a fiduciary relationship between the parties. Appellant and
respondent were the childhood friend and the resident of the same district Dorne.
They completed their Senior Secondary Education together. Appellant trusted on his
friend respondent so much that even when Appellant was requested by one of the
colleagues of Mr. Steve to conduct a routine check on the machines in the coming few
days. Mr. Snark, evidently amused by the preposterous idea of doubting his friend,
nevertheless nodded and smiled.

4
Wilhite v. Mays ,140 Ga.app.816 (232 S.E.2d 141) (1976).
5
Illustration (b) to section 17 Indian contract Act 1872.
6
Nursey spg & wvg co Ltd, Re , ILR (1880) 5 Bom 92.
7
P.soraj v LIC , AIR 1986 KER 201.
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2. Whether the contract dated 14th August 2017 voidable at the option of Mr. Tony
Stark?

It is most humbly submitted that contract dated 14 August 2017 voidable at the option of
Mr Tony Stark. There was fraud on the part of Mr Steve. According to section 19 of
Indian Contract Act fraud is one of the element which lead to the contract voidable at the
option of the other party. Silence on the part of respondent is fraud because he has the
duty to speak and keeping silence on his power is equivalent to sleep which misleads the
appellant.
Voidable contract is that contract that has a legal effect and force when it is made but is
liable to be subsequently annulled and set aside. Circumstances or feature that make a
contract voidable includes non-disclosure of material fact, fraud, material breach of the
terms of the contract, misrepresentation, etc.
Section 19 in The Indian Contract Act, 1872
Voidability of agreements without free consent. —When consent to an agreement is
caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at
the option of the party whose consent was so caused
A party to contract, whose consent was caused by fraud or misrepresentation, may, if he
thinks fit, insist that the contract shall be performed, and that he shall be put in the
position in which he would have been if the representations made had been true.
Exception if such consent was caused by misrepresentation or by silence, fraudulently
within the meaning of section 17, the contract, nevertheless is not voidable, if the parties
who is consent was so caused had the means of discovering the truth with ordinary
diligence.
Explanation. —A fraud or misrepresentation which did not cause the consent to a
contract of the party on whom such fraud was practised, or to whom such
misrepresentation was made, does not render a contract voidable.

2.1. Exception does not apply to fraud.\

2.1.1. The exception does not apply to the cases of fraud 8. The word ‘fraudently’
within the meaning of section 17 of ICA’ go with word ‘silence’.9

8
Abdulla khan v Girdhari Lal, (1904) Punj Rec No 49.
9
P Sorojam v LIC of India,AIR 1986 KER 201 at 205.
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2.1.2. A vendor of a house and land knew that the purchaser wanted immediate
possession. While admitting that the property was occupied by a tenant, he
first conceals the fact that the tenant had a lease, and then pretended that
lease was forfeit; the purchaser was entitled to rescind the contract, although
he might have ascertained buy independent enquiry what the tenant’s
interest really was.10
2.1.3. Where the vendor not only failed to disclose having leased the land, which
was being sold, but stated that immediate possession would be delivered, the
sale was voidable and the defense of absence of due diligence under
exception to Section 19 by the vendee was not open to the vendor.11
2.1.4. In the instant respondent not only conceals the vital information from the
appellant but also did not provide the quality of machine as being
contracted, which lead the contract voidable.
2.2. Implied condition as to the reasonable fit of the machine.
2.2.1. As the appellant entered into an agreement with the respondent on, 14
August 2017 to deliver machine which are carefully assembled and
reasonable fit for the production of Lobanza capsule. Instead of delivering
the respondent delivered the machine which had defect and within 2 months
all machines malfunctioned.
2.2.2. According to Section 12 (1) of sales of Good act 1930 a stipulation in a
contract of sale with reference to good are subject therefore may be a
condition or a warranty. According to Section 16 (1) of sales of Good act
1930, Where the buyer, expressly or by implication, makes known to the
seller the particular purpose for which the goods are required, so as to show
that the buyer relies on the seller’s skill or judgment, and the goods are of a
description which it is in the course of the seller’s business to supply
(whether he is the manufacturer or producer or not), there is an implied
condition that the goods shall be reasonably fit for such purpose. According
to Section 59 of sales of Good act 1930, The buyer not only has the right to
rescind the contract but also has power to sue the seller for the breach of a
contract.

10
Joginder Nath Goswami Mazumdar v Chandra Kumar AIR 1914 car 661, 24 IC 193.
11
Government of Odisha state v Shivprasad Shah AIR 1963 ORI 217.
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2.2.3. In Re Andrew yule and corporation12the buyer has informed the seller that
he needed the hessian cloth for packing purpose he could reject the clothes if
he found that the same was unsuitable for the purpose. The purpose may
made known to the seller expressly or impliedly. when the good can be used
only for one purpose need not to be told to the seller as he is being to know
the same.
2.2.4. Frost vs Aylesbury Dairy Corporation13the plaintiff purchase milk from
milk dealer for his family’s use. The milk until typhoid germs, the plaintiff’s
wife was infected by it and died. Here the purpose for which the milk was to
be used was by implication made known to the seller. Since the milk was
unfit for human consumption there was a breach of implied condition for
which the defendant was held liable.
3. Whether Mr. Steve Rovers is liable to compensate Amy Santiago for the death of her
husband and her consequent loss of livelihood?
3.1. Appellant’s loss of livelihood.
3.1.1. “Life” as mentioned in Article 21 of the constitution of Democratic State of
‘Asnard’ (DSA), is not merely the physical act of breathing. It does not
connote mere animal existence of continued drudgery through life. It has a
much wider meaning which includes right to live with human dignity, right
to livelihood, right to health, etc. It also includes those aspects of life which
would make a man’s life meaningful, complete and worth living. The bare
necessities, minimum and basic requirement that is essential and
unavoidable for a person is the core of the concept of right to life.14
3.1.2. According to Bhagwati J., Art 21 “embodies a constitutional value of
supreme importance in a democratic society.” The right has been held to be
the heart of the constitution, the most organic and progressive provision in
our living constitution, the foundation in our laws.15

12
AIR 1932 CAL 879: 140 I.C 877.
13
(1905) 1 K.B .608.
14
Maneka Gandhi v. Union Of India 1978 AIR 597 ; Francis Coralie v. Union Territory of Delhi 1981 AIR
746.
15
Bandhua Mukti Morcha v. Union of India 1984 AIR 802.
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3.1.3. Article 21 of the constitution of Democratic State of ‘Asnard’ (DSA),

provides that, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”
3.1.4. In case of Kharak Singh vs. State of UP16, the Supreme Court quoted and
held that “by the term ‘life’ as here used something more is meant than mere
animal existence, the inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed.
3.1.5. In Sunil Batra vs. Delhi Administration 17, the Supreme Court reiterated
with the approval of the above observation and held that the “Right to Life
includes the right to lead a healthy life so as to enjoy all faculties of the
human body in prime condition. Which would even include the right to
protection of a person, tradition, culture, heritage and all that gives meaning
to a man’s life. It includes the Right to Live in peace, to sleep in peace, the
right to repose and health and right to live with human dignity.18
3.1.6. Elaborating the same view, the court in Francis Coralie vs. Union territory
of Delhi19 observed that “the Right to Live includes the right to live with
human dignity and all that goes along with it, viz. The bare necessities of if
such as adequate nutrition, clothing and shelter over the head and facilities
for reading, writing and expressing oneself in diverse form, freely moving
about, mixing and mingling with fellow human beings and must include the
right to basic necessities of life and also the right to carry on function and
activities as constitutes the bare minimum expression of human self.”
3.1.7. The Supreme Court in Olgatellis vs. Bombay Municipal Corp.20, popularly
known as the “pavement dwellers case”, a five judge bench of the court now
implied that “ Right to Livelihood” is borne out of the “ Right to Life”, as no
person can live without the means of living, i.e. the means of livelihood. If
the right to livelihood is not treated as a part and parcel of the constitutional

16
AIR (1963) SC 129.
17
AIR (1978) 1675, 1980 SCR (2) 557.
18
Maneka Gandhi vs. Union of India 1978 AIR 597.
19
AIR (1981)746, 1981 SCR (2) 516.
20
AIR (1986)1980, 1985 SCR Supl. (2) 51.
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right to life, the easiest way of depriving a person of his right to life would
be to deprive him by the means of livelihood to the point of abrogation.
3.1.8. In Shantistar Builders vs. Narayan Khimalal Totame 21, the court held that
“the right to life would take within its sweep the right to food, right to
clothing, the right to decent environment and a reasonable accommodation
to live in. The difference between the need of an animal and a human being
for shelter has to be kept in view. For the animal it is bare protection of the
body, for a human being it has to be a suitable accommodation which would
allow him to grow in every aspect- physical, mental and intellectual. The
constitution aims at ensuring fuller development of every child that would
be possible only if the child lives in a proper home. It is not necessary that
every citizen must be ensured of living in a well-built comfortable house but
a reasonable home for people can be a reasonable accommodation.
3.1.9. The two aspects of right to life are (a) Deprivation of life of a person (b)
Deprivation of quality of life. The contention of appellant’s counsel is that
Mr. Pablo Escocar is deprived of his right to life and Ms. Amy is deprived
of his quality of life. Before depriving a person of his right to life the
following conditions are requires to be fulfilled;
(a) There must be a valid law
(b) Law must provide procedure
(c) Procedure must be just fair and reasonable
(d) Law must satisfy requirements of Article 14 i.e., must be reasonable.
3.1.10. Mr. Pablo Escocar, a janitor in a Government school, was unfortunately
prone to drugs and smoking. Mr. Escocar saw the advertisement of Lobanza
capsule on a banner across both sides of the road.
3.1.11. Mrs. Amy Santiago, wife of Mr. Pablo Escocar, had been constantly
pushing him to get rid of his drug addiction and smoking habit as soon as
possible. It is due to strained family relations with parents and in-laws that
the couple have been living in a separate house, along with their 8-year-old
daughter. Mr. Pablo bought and started consuming Lobanza Capsule each
day after subscribing to the advertisement on that hanging banner. However,
he couldn’t refrain from smoking.

21
 (1990) 1 SCC 520.
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3.1.12. Unfortunately, Mr. Pablo’s health started deteriorating rapidly, but he still
couldn’t refrain from smoking. As a consequence, he died after eight days of
consumption of the capsule.
3.1.13. His pregnant wife went into mental trauma and found herself completely
helpless as he was the sole bread-earner for their family. Moreover, after her
husband’s death, Ms. Amy requested monetary help from her in-laws, but to
no avail. Due to a sheer lack of awareness in such small districts, Ms. Amy
wasn’t aware of the causes that lead to her husband’s untimely death and
was oblivious to the legal ramifications of what had recently transpired.
3.1.14. Mr. Pablo Escocar was deprived of his life and Mrs. Amy Santiago
traumatized by her husband’s death and the dwindling financial situation of
her household, is deprived of his quality of life and also his means of
livelihood, without any law, without any Procedure. That being itself a clear
violation of right to life and personal liberty of the petitioner as mentioned
in the constitution of Democratic State of ‘Asnard’ (DSA).

3.2. Negligence caused by the Respondent.

3.2.1. In Donoghue v Stevenson22 , The appellant went with a friend into a coffee
shop, where the friend ordered for her a bottle of ginger beer. This was
served in an opaque bottle the contents of which could not be seen from the
outside. The shop owner opened the bottle and poured some of the contents
into the appellant’s glass. This she drank, and her friend poured in the rest of
the bottle. The appellant alleged that this contained the decomposed remains
of a snail which caused her to suffer shock and then later, a gastric illness.
She brought this action for negligence in the Scottish Court of Session
against the manufacturer of the ginger beer. The Scottish Court held that
there was no cause of action; as the bottle was not directly purchased from
the manufacturer. The case came before the House of Lords on the question
of law alone. It was held that the manufacturer of the ginger beer owed a
duty of care to the claimant.
3.2.2. Lord Atkin has made the following general principle governing the duty of
care, it is also called the neighbour principle:

22
1932 UKHL 100.
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Persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.
3.2.3. In Haley v London Electricity Board23, The Defendant dug a trench in a
street. Their precautions for the protection of passers-by were not sufficient
to protect the Claimant, because he was blind. He was injured as a result,
and the Court held that the number of blind people who walked about on
their own made it foreseeable that such a person could be injured, and
therefore gave rise to a duty of care to take suitable precautions to prevent
such injury.
3.2.4. This ratio has begun to open a category of people to whom a risk of harm
was foreseeable, so this was not just for one person.
3.2.5. In Watson v British Boxing Board of Control 24, A boxer suffered severe
brain damage after being injured in a match, and evidence suggested that his
injuries would have been less severe if immediate medical attention had
been available at the ringside. It was held that there was sufficient proximity
between Mr. Watson and the Board to give rise to a duty of care. The is
because the boxer’s licensing system operated by the Board created a
relationship of proximity, and the board had complete control and
responsibility to the situation which resulted in Mr Watson’s injury if the
Board did not exercise reasonable care.
3.2.6. In Anns v London Borough of Merton25, Lord Wilberforce has made the
following statement and is called the two-stage test:
3.2.7. First one has to ask whether, as between the alleged wrongdoer and the
person who has suffered damage, there is a sufficient relationship of
proximity or neighborhood such that, in the reasonable contemplation of the
former, carelessness on the part of one may be likely to cause damage to the
latter, in which case a prima facie duty of care arises. Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there
are any considerations which ought to negative, or to reduce or to limit the

23
1965 AC 77.
24
2001 QB 1134.
25
1978 AC 728.
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scope of the duty or the class of person to whom it is owed or the damages
to which a breach of it may give rise.
3.2.8. The Caparo v Dickman26 decisions have taken the law back similar to a pre-
Donoghue position. The latest development in this case requires that there
are now three questions to be asked in deciding whether a duty of care was
owed, the Court will ask:
(i) Was the damage to the Claimant reasonably foreseeable?
(ii) Was the relationship between the Claimant and the Defendant
sufficiently proximate?
(iii) Is it just and reasonable to impose a duty of care?
3.2.9. In Dominion Natural Gas v Collins and Perkins 27, In actions for damages
in respect of an accident against the appellant gas company it appeared that
the appellants were not occupiers of the premises on which the accident had
occurred and had no contractual relations with the plaintiffs, but that they
had installed a machine on the said premises, and the jury found that the
accident was caused by an explosion resulting from gas emitted, owing to
the appellants' negligence, through its safety valve direct into the closed
premises instead of into the open air. Held, that the initial negligence having
been found against the appellants in respect of an easy and reasonable
precaution which they were bound to have taken, they were liable unless
they could shew that the true cause of the accident was the act of a
subsequent conscious volition, e.g., the tampering with the machine by third
parties.
3.2.10. In Hadley v. Baxendal28, The court held that in order for a non-breaching
party to recover damages arising out of any special circumstances, the
special circumstances must be communicated to and known by all parties at
the time of formation.
3.2.11. On 14th August 2017, HPC Ltd. entered into an agreement with Mr. Steve,
regarding the purchase of three LPT Machines for Lobanza Capsule’s
production. Mr. Steve agreed to the terms of the agreement and informed
Mr. Snark that he would ensure the delivery of the machines in five days,
26
1990 UKHL 2.
27
1909 AC 640.
28
1854 EWHC J70.
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once the machines are carefully assembled and repaired. However, in the
interest of professional ethics, Mr. Snark was requested by one of the
colleagues of Mr. Steve to conduct a routine check on the machines in the
coming few days. Mr. Snark, evidently amused by the preposterous idea of
doubting his friend, nevertheless nodded and smiled. HPC Ltd. eventually
received the delivery of the machines after nine days, assembled as per the
agreed terms, and without showing any apprehensions as to the delay in
delivery, promptly made the complete payment of $30 Million Dollars.
Furthermore, HPC Ltd. also used one of its LPT Machines to manufacture
other medicines with different chemical compositions, apart from Lobanza.
3.2.12. A week prior to the sale of 3 LPTs on 14th August 2017, Mr. Steve received
a detailed report from the auditor categorically highlighting certain patent
defects in those machines. Faced with extreme pressure to meet the rising
demand, Mr. Steve ignored the report and failed to disclose that information
to HPC Ltd. Consequently, on certain occasions, HPC Ltd. encountered
frequent problems with few LPT Machines, and unfortunately on 22nd
October 2017 all machines malfunctioned. Mr. Tony appointed Mr. Steve
and his tech-team for the repair. Few instances of illness were reported
amongst a few people, but no serious medical catastrophe had occurred.
3.2.13. Meanwhile Mr. Snark, aggrieved by such a huge loss to his production,
accused Mr. Steve of fraud, and initiated civil proceedings against him for
breach of contract before the Dorne District Court. HPC Ltd. sought to avail
the doctrine of restitution and prayed for a compensation of $100M.
3.2.14. Thus, there was negligence on part of Mr. Steve Rovers as he ignored the
detailed report from the auditor categorically highlighting certain patent
defects in those machines and failed to disclose that information to HPC Ltd
and inturn deprived Ms. Amy of means of livelihood.
3.2.15. In the instant case it has already been established that Mr. Steve Rogers is
responsible for the death of Amy's husband that has left her with no source
of material sustenance. The death of Mr. Pablo has left her without basic
necessities of life. It is therefore humbly submitted that the family of the
petitioner consisted of her deceased husband, her 8-year-old daughter and
the petitioner himself that has hampered her livelihood. The daughter has in
the instant case become destitute.
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3.2.16. In Varinder Prasad v. B.S.E.S Rajdhani Power Ltd. And Ors, the
hon'ble court in its judgment elucidated the two-tier compensation
mechanism. It has two components, i.e. the conventional sum, and
pecuniary compensation, in such cases. The court in Kamala Devi 2 held
with approval as follows The compensation to be awarded by the Courts,
based on international norms and previous decisions of the Supreme Court,
comprises of two parts: (a) "standard compensation" or the so-called
"conventional amount" (or sum) for non-pecuniary losses such as loss of
consortium, loss of parent, pain and suffering and loss of amenities. (b)
Compensation for pecuniary loss of dependency. The "standard
compensation" or the "conventional amount" has to be revised from time to
time to counter inflation and the consequent erosion of the value of the
rupee. Compensation of pecuniary loss of dependency is to be computed on
the basis of loss of earnings for which the multiplier method is to be
employed. The total amount awarded by the Court along with simple
interest thereon calculated on the basis of the inflation rate based on the
Consumer Price Index (CPI) as disclosed by the Government of India. For
the period commencing from the date of death of the deceased till the date
of payment by the State. The petitioner therefore pleads that all the above-
mentioned rules for compensation must be incorporated in the instant to
grant a part of compensation for complete justice to the petitioner and for
the benefit al enjoyment of life. The petitioner's husband died because of
latches on the part of the company to exercise due care and caution. The
right to livelihood, family and social security of the petitioner therefore
stands violated. The Supreme Court has held that "If the right to livelihood
is not treated as a part and parcel of Right to Life the easiest way of
depriving a person of his Right to life would be to deprive him of his means
of Livelihood to the point of abrogation. Hence it can be inferred that Mr.
Steve Rovers by depriving the petitioner of his livelihood has hampered
with her quality of life. Life does not only mean an animal existence it
includes a wide variety of things as laid by the supreme court from time to
time. The right to life covers within its ambit the right to social security and
protection of family, subsequently right to social and economic justice. The
petitioner also contends that Mr. Stark was the sole bread winner of the
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family and they lived in a separate house due to strained relations with her
in laws. The petitioner is also pregnant and in a state of trauma after the
death of her husband that could lead to further health complications for the
mother as well as the baby. After her husband's death she asked for
monetary help from her in-laws which was of no avail. Therefore, keeping
in mind, the above circumstances, the petitioner pleads before this hon'ble
court to grant her sufficient compensation in order to do complete justice to
her

4. Whether Mr. Steve Rovers, being the supplier and service provider of LPT
Machines, is liable to compensate Mr. Tony Stark for breach of contract?
The counsel on behalf of Mr. Tony Snark most humbly submits that Steve Rovers is
liable for the breach of contract. Steve Rovers supplied defected products to Mr. Tony
Snark which resulted in huge loss and reputation to his business.
4.1. S.16 of the Sale of Goods Act, 1930 has been neglected by the supplier.
4.1.1. As per section 16 of sales of goods act, “Implied conditions as to quality or
fitness. — Subject to the provisions of this Act and of any other law for the
time being in force, there is no implied warranty or condition as to the
quality or fitness for any particular purpose of goods supplied under a
contract of sale, except as follows: —
1. Where the buyer, expressly or by implication, makes known to the seller
the particular purpose for which the goods are required, so as to show that
the buyer relies on the seller’s skill or judgment, and the goods are of a
description which it is in the course of the seller’s business to supply
(whether he is the manufacturer or producer or not), there is an implied
condition that the goods shall be reasonably fit for such purpose: Provided
that, in the case of a contract for the sale of a specified article under its
patent or other trade name, there is no implied condition as to its fitness for
any particular purpose.
2.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

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no implied condition as regards defects which such examination ought to

have revealed.
3.An implied warranty or condition as to quality or fitness for a particular
purpose may be annexed by the usage of trade.
4.An express warranty or condition does not negative a warranty or
condition implied by this Act unless inconsistent therewith.29
4.1.2. Presently in the given fact sheet Mr.tony Snark expressly makes known to
the seller ,the particular purpose for which the machines are required that is
for the production of Lobanza capsule.
4.1.3. Also, plaintiff relies on the seller’s skill and goods were of the description
which is in the course of seller’s Mr. Steve Rovres Business that is
supplying of Labzo-pharma Tech (LPT) machines.
4.1.4. Hence there is an implied condition that machines should be reasonably fit
for production of Lobanza capsule. But the machines that were provided by
the defendant’s company malfunctioned on 22nd October 2017.The machines
were not reasonably fit for the purpose they were bought for.
4.1.5. Another point is under section 16(2) of sales of goods act is the condition of
goods shall be of merchantable quality.
4.1.6. The term Merchantable quality has not been defined in sales of goods act
1930. This term has been defined in Section 62(1-A) of English sale of
goods act .According to section 62(1-A), the goods are of merchantable
quality if they are fit for the purpose for which goods of that kind are
commonly bought as it is reasonable to expect having regard to any
description applied to them to price and all other relevant circumstances. In
the present case the machines that were bought by the plaintiff are not of
merchantable quality as they were not fit for the purpose they were bought
for.
4.1.7. In R. S. Thakur v. H. G. E. Corporation30, it was observed that:
4.1.8. 16(1) applies where the buyer requires the goods for a particular purpose,
where the buyer expressly or implication makes known to the seller that
particular purpose, where it is shown that the buyer relies on the seller's skill
or judgment and where the seller's usual course of business is to sell such
29
Sales of goods Act 1930.
30
AIR 1971 Bom 97.
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goods, whether he is sthe actual producer or not. Where all these essential
facts exist, there is an implied condition that the goods shall be reasonably
fit for such purpose. But steve Rovers failed in providing fit machines.
4.1.9. In Raghava Menon v. Kuttappan Nair 31 it was held transaction being a
sale by description from a dealer or manufacturer who deals in goods of that
description can also fall under exception (2) to Section 16.
4.1.10. In present case the seller deals in the machines which are designed for the
production of Lobanza capsules and buyer clearly described the purpose of
purchasing the machines that is for the production of Lobanza capsules.
according to section 16(2) there is an implied condition that machines
should be of merchantable quality in which machines failed.
4.1.11. The section also provides that if the buyer has examined the goods there
shall be no implied condition, but in this case the buyer completely trust and
relies on the skill of the seller’s quality of goods. But seller breaks his trust
completely.
4.1.12. Another point is that seller assures the buyer that once machines are
carefully assembled and repaired.
4.1.13. In Priest v. Last 32it was held that if the goods purchased by the buyer does
not fulfil his particular purpose of purchasing of goods then the seller would
be liable to pay compensation for the breach of the implied condition.
4.1.14. In Chaproniere v. Mason33, it was held that the fact that the buyer had
purchased the bun from particular bakery was sufficient to show that the
buyer had relied on the seller’s skill and judgement.
4.1.15. In Jackson v. Watson34, it was held that when the seller makes the breach
of such an implied condition, he is liable for the consequences of such a
breach.
4.2. Section 16 of the Indian Contract Act, 1872 defines undue influence.
4.2.1. 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

31
AIR 1962 Ker 318.
32
(1903) 2KB 148.
33
(1905) TLR 63.
34
360 SO.2d 582 (1978).
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to dominate the will of the other and uses that position to obtain an unfair
advantage over the other.
Section16 of Indian Contract Act. ‘Undue influence’ defined. — (1) 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."

2. In particular and without prejudice to the generality of the foregoing

principle, a person is deemed to be in a position to dominate the will of
another—

(a) where he holds a real or apparent authority over the other, or where he
stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is

temporarily or permanently affected by reason of age, illness, or mental or
bodily distress.

1. Where a person who is in a position to dominate the will of another, enters

into a contract with him, and the transaction appears, on the face of it or on
the evidence adduced, to be unconscionable, the burden of proving that such
contract was not induced by undue influence shall be upon the person in a
position to dominate the will of the other. Nothing in the sub-section shall
affect the provisions of section 111 of the Indian Evidence Act, 187235.
4.2.2. In the case of Treesa Irish v. The Central Public Information following
definition of Fiduciary Relationship were taken in consideration by the High
Court of Kerela
4.2.3. The Dictionary of Law by L.B. Curzon (fourth edition) gives the following
meaning for the word `fiduciary':
4.2.4. "fiduciary. Involving trust or confidence. e.g., as describing the relationship
between a trustee and beneficiary. In general, where a fiduciary relationship
between parties to a transaction exists, undue influence leading to some
agreements, such as contract may be presumed."

35
Indian Contract Act 1872.
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4.2.5. The Corpus Juris Secundum gives the following meaning for the expression,
which is stated to be based on various decisions on the subject:
4.2.6. "The term "fiduciary relation" has reference to any relationship of blood,
business, friendship, or association in which the parties repose special trust
and confidence in each other and are in a position to have and exercise,
influence over each other, and implies a condition of superiority of one of the
parties over the other; but in relation with undue influence, it does not
necessarily imply acts which the law deems fraudulent.
4.2.7. When it exists. What constitutes a fiduciary relationship is often a subject of
controversy. The relationship may exist under a great variety of
circumstances; it exists in all cases where there has been a special confidence
reposed in one who in equity and good conscience is bound to act in good
faith and with due regard to the interests of the one reposing the confidence,
in cases when confidence is reposed on one side and there is resulting
superiority and influence on the other, in all cases in which influence has
been acquired and abused, in which confidence has been reposed and
betrayed."
4.2.8. Thus, from aforementioned it is clear that scope of Fiduciary Relationship is
very broad and also includes Friendship as fiduciary relationship.
4.2.9. In the present case Steve Rovers(seller) and Tony Snark(buyer) are childhood
friends hence there arises a fiduciary relationship between them.
4.2.10. Steve rovers has the authority over the buyer as he is the seller and Mr. Tony
Snark being the friend of Steve rovers trust his friend that he will deliver the
best of product, but Defendant misused his position to obtain unfair
advantage and provides defected machines which causes loss to the plaintiff.
Further it can be inferred from the article published on 1 st September2017 in
the widely distributed Journal of Asnardian Institute of Technology regarding
infirmities of the machine that the quality of the machines deliverd by Mr.
Steve was questionable.
4.2.11. The term fiduciary relationship has been well discussed by this Court in the
case of Central Board of Secondary Education and Anr. v. Aditya
Bandopadhyay and Ors.36. In the said decision, their Lordships referred

36
(2011) 8 SCC 497.
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various authorities to ascertain the meaning of the term fiduciary relationship

and observed thus:
4.2.12. Black's Law Dictionary (7th Edition, Page 640) defines 'fiduciary
relationship' thus:
4.2.13. A relationship in which one person is under a duty to act for the benefit of the
other on matters within the scope of the relationship. Fiduciary relationships-
such as trustee- beneficiary, guardian-ward, agent-principal, and attorney-
client-require the highest duty of care. Fiduciary relationships usually arise in
one of four situations: (1) when one person places trust in the faithful
integrity of another, who as a result gains superiority or influence over the
first, (2) when one person assumes control and responsibility over another,
(3) when one person has a duty to act for or give advice to another on matters
falling within the scope of the relationship, or (4) when there is a specific
relationship that has traditionally been recognized as involving fiduciary
duties, as with a lawyer and a client or a stockbroker and a customer.

4.3. Material breach under Indian Contract Act, 1872.

4.3.1. Material breach is a contract law term which refers to a failure of
performance under the contract which is significant enough to give the
aggrieved party the right to sue for breach of contract. When there has been a
material breach, the aggrieved party is also relieved of a duty of further
performance under the contract. However, a minor divergence from the terms
of the contract is not a material breach. A material breach is one that is
significant enough to destroy the value of the contract.
4.3.2. A lawsuit for material breach of contract is a civil action and the remedies
awarded are designed to place the injured party in the position they would be
in if not for the breach. Remedies for contractual breaches are not designed to
punish the breaching party.
4.3.3. The following circumstances are important to determine whether a failure to
render or to offer performance is material:
(i) The extent to which the injured party shall be deprived of the benefit or
profit which s/he reasonably expected;
(ii) The extent to which the injured party can be adequately remedied or
compensated for the part of that benefit of which s/he shall be deprived;

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(iii) The extent to which the party failing to perform or to offer to perform
shall suffer forfeiture;
(iv) The likelihood that the party failing to perform or to offer to perform
shall correct such failure, taking account of all the circumstances
including any reasonable assurances; and
(v) The extent to which the behavior of the party failing to perform or to
offer to perform is according to the standards of good faith and fair
dealing.
4.3.4. In the given case the aggrieved party Mr. Snark was deprived of the benefit
or profit which he reasonably expected as Mr. Steve supplied them machines
which malfunctioned in few days which frustrated the purpose of the contract
that is for increasing the sale of Lobanza capsules that will increase the
turnover of the company of the buyer.
4.3.5. Material Breach is one that is significant enough to destroy the value of
contract. In the given contract between HPC Ltd. And Mr. Steve the value of
the contract has been destroyed as the machines that were bought for the
production of the capsules in order to broaden his market reach and increase
his annual turnover but due to seller’s failure of performance of quality and
reasonably fit machines the value of contract has been destroyed.
4.3.6. In Jindal Steel and Power Limited vs M/S. Sap India Pvt. Ltd. on 29 June
2015 it was held-
4.3.7. A material breach is a breach that is fundamental to the contract's subject
matter and adversely affects the outcome of the contract.
4.3.8. In the present case Hpc. Ltd. was a respectable and big company
which have a good market name and also enjoys monopoly in the market in
production of Lobanza capsules. Also this company is indulged in various
social services and also supports new startups with funds. Due to the
carelessness and negligence of Mr. Steve Rovers Hpc Ltd suffered huge
economic loss also there is huge setback to the reputation of the company.
Hence the Hpc ltd. should be compensated with 100 Million dollars which
includes the price paid by Mr. Tony of 4 machines and company’s economic
and loss to reputation
.

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PRAYER

Wherefore, in the light of the facts stated, arguments advanced and Authorities cited, it is
most humbly prayed and implored before the Honourable Supreme Court of Asnard that it
may be graciously pleased to adjudge and declare that:

1. Fraud was committed by Mr. Steve Rovers under section 17 of the Indian Contract
Act,1872
2. Contract dated 14th August 2017 is voidable at the option of Tony Stark.
3. Right to Livelihood of Ms. Amy Santiago has been violated by Steve Rovers.
4. Mr. Steve Rovers is Liable to Compensate Mr. Tony Stark for breach of contract.

Also, pass any other order that it may deem fit in the favour of Applicant to meet the ends of
equity, justice and good conscience.

For this Act of Kindness, the Applicant shall duty bound forever pray.

-Written Submission on behalf of Appellants-

XIII | P a g e