Indian Institute of Legal Studies, 2022

Indian Institute of Legal Studies ,2022 D
INDIAN INSTITUTE OF LEGAL STUDIES -2022
IN THE HON’BLE DISTRICT COURT OF SILIGURI, WEST BENGAL
(Under Section 9 Of The Code Of Civil Procedure, 1908)
MR. SINGHANIA……………….…………………….PLAINTIFF
VERSUS
QUICKMART.COM…………………………………………. DEFENDANT NO. 1
MR. RATTAN………………………………………………… DEFENDANT NO.2
ON SUBMISSION TO THE COURT OF CIVIL JUDGE, SILIGURI DISTRICT

COURT
MEMORIAL ON BEHALF OF THE DEFENDANTS
WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

______________________________________________________________________
1
TABLE OF CONTENTS
LISTOFABBREVIATIONS……………………………………………………………03
TABLE OF AUTHORITIES ...........................................................................................05
STATEMENT OF JURISDICTION…...........................................................................07
STATEMENT OF FACTS ......... .....................................................................................08
ISSUES PRESENTED ....................................................................................................11
SUMMARY OF ARGUMENTS.....................................................................................12
ADVANCED ARGUMENT ……………………………………………………….......13
PRAYER………………………………………………………………………………...19

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2
LIST OF ABBREVIATIONS
S.NO. ABBREVIATION DEFINITION
1. AI Artificial Intelligence
2. AIR All India Reporter
3. All Allahabad
4. AP Andhra Pradesh
5. Art. Article
6. Bom Bombay
7. Cal Calcutta
8. Ch Chapter
9. Co. Company
10. Ed. Edition
11. Govt. Government
12. HC The High Court
13. Hon‟ble Honorable
14. ICA Indian Contract Act
15. i.e. That is
16. Ker Kerala
17. Ltd. Limited
18. Mad Madras
19. No. Number

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3
20. Ors. Others
21. p. Page

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4
TABLE OF AUTHORITIES
STATUTES REFERRED
 Code Of Civil Procedure, 1908
 Consumer Protection (E-Commerce) Rules, 2020
 Consumer Protection Act, 2019
 Indian Contract Act, 1872
 Indian Sales Of Goods Act, 1930
CASES REFERRED
1. Amrit Lal C.Shah v. Ram Kumar, AIR 1962 2 Pun 201, AIR 1962 Pun 325.
2. Armstrong v. Jackson, ( 1917) 2 KB 822, (1916-17) All ER Rep 1117
3. Arunachalam Chettiar v. Kasi Nevenda Pillai, AIR 1914 Mad 97
4. Babulal v. JagatNarain, AIR 1952 VP 51.
5. Charter v. Trevelyan,(884) 11 Cl and Fin 714 per Lord Lyndhurst at 732
6. Firm of Rameshardas Benararshidas v. Firm of Tansookhrai Bashesharilal, AIR 1927
Sind 195, 102 IC 366.
7. Hamid Hasan v. Shazad Khan, AIR 1919 Pat 143
8. Lakshminarayan Ram Gopal v. Govt. of Hyderabad supra.
9. Livingstone v. Ross, (1901) AC 327 (PC).
10. McPherson v. Watt, (1877) 3 App Cas 254 (HL)
11. Puran Mal v. Ford Macdonald and co. ,AIR 1919 All 440 per Walsh J at 444.
12. Purmanundass Jivandass v. HR Cormack, AIR 1882 6 Bom 326, 362
13. State of Madras v. Jayalakshmi Rice Mill Contractors Co,AIR 1958 AP 671
BOOKS REFERRED
 C.K. TAKWANI, Civil Procedure With Limitation Act, 1963 ( EBC , 9TH ed.
2019)
 Dr. R.K Bangia, Contract-I (ALLAHABAD LAW AGENCY, 7TH ed. 2017,
REPRINT 2019)
LEGAL DATABASE
1. www.indiankanoon.com
______________________________________________________________________
5
2. www.manupatralogin.com
3. www.scconline.com

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6
STATEMENT OF JURISDICTION
The learned District Court exercises jurisdiction to hear and adjudicate the present suit
under section 9 of the Code of Civil Procedure, 1908.
The provision under which the Plaintiff has approached this Hon‟ble Court and to which the
Plaintiff humbly submit is read herein under as:
Section 9 of the Code of Civil Procedure, 1908 states that:-
“The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
{Explanation 1}- A suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decisions of questions
as to religious rites or ceremonies.
{Explanation 2}- For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation 1 or whether or not such office is attached to
a particular place.”

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7
STATEMENT OF FACTS
BACKGROUND
Mr. Singhania (aged 16 yrs.) is the student of a multi-media course in NCT institute –
a premiere institute of computer education. The Course prescribed the requirement for laptop.
The Institute specified the configuration/specifications for laptop to pursue such course.
PLACING THE ORDER
Mr. Singhania (for pursuing such course) traced an e-commerce website on the
internet named as quickmart.com, a private company renowned as a leading destination for
online shopping in India which deals with sale of fresh electronic computer items like laptop,
desktop, printers etc. He saw different models of laptop on such e-commerce website and
placed an order thereafter for the laptop that suits his requirement prescribed by the Institute.
The order was based on Cash on-Delivery system.
CONFUSION IN TRANSACTION
The company at the time of giving the confirmation order delivered the description of
the other laptop model sent through company‟s email address to Mr. Singhania‟s email
address. In addition, there was a telephonic conversation between a company‟s executive
named as Mr. Jaij and Mr. Singhania regarding the consent of buying and delivering the
laptop at the desired destination. As a matter of practice and in order to avoid confusion in the
contract, the entire conversation was recorded by the company. Thereafter, the laptop was
delivered to him in a couple of days at his desired destination through Speedy Class Couriers
and he made the payment accordingly. While checking the configuration of the laptop, he
found that it was a mismatch from what he had ordered, and therefore, defeating the purpose
for which he wanted to have the laptop i.e. rendering the laptop unfit for pursuing his
computer course.

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8
COMPLAINT BY MR. SINGHANIA
Mr. Singhania lodged a complaint on the customer care of the website named as
quickmart.com and narrated the whole facts. The customer care department of such e-
commerce website, after a few days, called Mr. Singhania that after the investigation they
found that the order and the product delivered are of the same configuration. In addition to
this, the e-commerce website named as quickmart.com said that they will look into the matter
again and get back as soon as possible.
RESPONSE BY THE COMPANY
Mr. Singhania received no communication in this regard within a reasonable time

period from the company which has launched the leading e-commerce website named as
quickmart.com. Mr. Singhania called the customer care again but all he got was an automated
computer generated message that the problem is resolved.
VISIT TO COMPANY’S OFFICE
Mr. Singhania went to the company‟s office address for further enquiry. He was told
by the company that since quickmart.com outsources orders from private retailers as Agents
of the company, and therefore, the retailers are the ones who dispatch the products. The
company has nothing to do with this matter. After receiving the retailer‟s address, Mr.
Singhania went to the retailer‟s office, where the retailer Mr. Rattan as Agent of the company
refused to speak to him by telling him that he was never his customer and he has sent
whatever was asked to him.
PROBLEM IN THE PRODUCT AND WARRANTY
Furthermore, on the opening of the product, he finds that the product was a defective
one and so he called the service centre of the laptop company who said that since the product
was bought through a website, and therefore, that website shall provide the warranty. On
going back to quickmart.com on this issue, he finds that the details regarding his buying of
laptop is totally erased by the company. Mr. Singhania felt disheartened and disappointed.
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9
VISIT TO THE RETAILER AND THE PROMISE MADE BY HIM
Mr. Singhania further went to the retailer and narrated the whole story and declared
his intention to file a suit against the company. By observing the pathetic and depressed
situation of Mr. Singhania, the retailer as Agent personally assured him by providing written
acknowledgement on the letter pad of the company admitting that such laptop will be
replaced within 10 days and Mr. Singhania will be having no complaint against the company
in the near future. Mr. Singhania did not find any solution in this regard even after one
month. Furthermore, he gave notice to the Agent as well as the company regarding doing the
needful in this regard within another 15 days but no reply was given by any of them on this
matter. In this context, Mr. Singhania finally decides to go to the Civil Court for seeking
remedy in this regard.

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10
ISSUES INVOLVED
1. WHETHER THERE IS BREACH OF CONTRACT?

2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE
AGENT?
3. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT
OR CAN ONLY CLAIM DAMAGES?

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11
SUMMARY OF ARGUMENTS
The contract between the Plaintiff and the Defendant No.1 is a valid Agreement with a
lawful consideration and free consent, and it has not been expressly declared to be void.
Since it meets all the essentials mentioned under ICA 1872, the contract stands valid. And the
contract has not been breached by the Defendants. The contract is thus discharged by
performance and not breached.
2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF THE

AGENT?
In the instant case, “personal assurance” was given by Defendant No.2after seeing the
pathetic and depressed situation of the Plaintiff. The assurance Defendant No.2 gave
personally is not a concern of the company. The assurance Defendant No. 2 gave personally
cannot be treated as the assurance of Defendant No.1. As the Agent has not purported to
undertake personal contractual liability, he cannot incur such liability.
3. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT

OR CAN ONLY CLAIM DAMAGES?
In the instant case, it is submitted that there is no substantial failure to perform the
contract because the laptop confirmed in the telephonic conversation was delivered but only
there are some defects in the product. Therefore it is asserted that the stipulation is a warranty
and the Plaintiff can claim only damages.

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12
ARGUMENTS ADVANCED

It is humbly submitted that the Defendant 1 is not liable for breach of contract.
1.1 THAT THE CONTRACT IS VALID.

It is put forward that Section 10 of the ICA, 1872 states “All agreements are contracts
if they are made by the free consent of the parties competent to contract, for a lawful
consideration and with lawful object, and are not hereby expressly declared to be
void.”In the instant case, the contract between the Plaintiff and Defendant meets all the
essentials as per defined under Section 10.
1.1.1 AGREEMENT:Every promise and every set of promises forming the
consideration for each other is an agreement1”
A promise is a result of a proposal by one person and its acceptance by the other. A
proposal is defined in the ICA as follows:
“When one person signifies to another his willingness to do or to abstain from doing
anything, with a view to obtaining the assent of that other to such act or abstinence, he is
said to make a proposal.2”
Whereas, acceptance is defined as:
“When the person to whom the proposal is made signifies his assent thereto, the proposal
is said to be accepted.”
In the instant case the company quickmart.com makes a proposal to the Plaintiff via a
confirmation email and the same is accepted later through a telephonic conversation.
Thus, there is an agreement between the parties fulfilling the first essential of a contract.
1.1.2 FREE CONSENT: Consent under the ICA, 1872 is defined in Section 13 as
“two or more persons are said to be consent when they agree upon the same thing in
the same sense”3.
1
Section 2(e) of ICA, 1872
2
Section 2(a) of ICA, 1872
3
Section 13 of ICA, 1872
______________________________________________________________________
13
In the instant case the parties agree upon the same thing, i.e., a laptop, in the
same sense. Same can be proved as there was a confirmation email about the product
was sent by Defendant No.1 to the Plaintiff, which was later accepted. It cannot be
argued that the confirmation email was of a different product as the Plaintiff accepted
it.
One of the essentials of a valid contract mentioned in Section 10 is that the parties
should enter into the contract with their free consent. According to Section 14, consent is
said to be free when it is not caused by Coercion, Undue Influence, Fraud,
Misrepresentation or mistake. Since the consent is free in this case as it is not being
caused by any of the abose stated factors, the contract stands valid.
In the instant case, the consent of both the parties is free as the offer made by the
Defendant No.2 is accepted by the Plaintiff via telephonic conversation which was
recorded. The confirmation of a product was sent to the Plaintiff‟s email id and same is
accepted by him. The consent was not caused by any of the above mentioned factors and
since the essential free consent of the contract is not violated.
1) COMPETENT TO CONTRACT: Section 11 of the ICA, 1872 states “ Every person
is competent to contract who is of the age of majority according to law to which he is
subject and who is of sound mind, and is not disqualified from contracting by any law
to which he is subject”
The Plaintiff is a minor and thus he is incompetent to contract, however, there is an
exception to this law which states that a minor can enter into Contracts of Necessaries.
According to Section 68 of the Indian Contract Act 1872, Necessaries supplied to minor
should be suited to his condition in life. It does not mean bare necessities of the life but
means such things may be necessary to maintain a person according to his condition in
life., The Plaintiff can purchase a laptop as required by his course and the contract he
enters into cannot be held void.
Neither the Plaintiff nor the Defendant No.1 are of unsound mind or are disqualified
by the law to contract. Hence, the both the parties are competent to contract.

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14
2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF

THE AGENT?
It is humbly submitted that in Defendant No.1 is not liable for the acts of its Agent i.e.
Defendant No.2.
In the instant case “personal assurance” was given by Defendant No. 2, after seeing the
pathetic and depressed situation of the Plaintiff. The assurance Defendant No. 2 gave
personally cannot be treated as the assurance of Defendant No.1.4
In the instant case, the Defendant No.2 is a special agent of the Defendant No.1 as he had
a limited authority to dispatch the products. A special Agent has only authority to do
some particular act for some special occasion or purpose which is not within the ordinary
course of his business or profession5. The Agent is not entitled to personally enforce by a
contract entered into by him on behalf of his Principal 6, in the absence of a contract to
that effect7, or by the ordinary course of business or usage; and if he has no authority in
fact, he will be liable for breach of warranty8.
Moreover, it is submitted that the Defendant No. 2 was fully aware of the fact that his
duty is not to give any personal assurance to any customer of the Defendant No.1. An
Agent is bound not only not to insure the interest of the Principal, but also to further it9.
This requires that he should not place himself in a position where his interest might be
adverse to that of Principal. No Agent will be permitted to put himself in a position where
his interest conflicts with his duty and therefore, he must not enter into any transaction
likely to produce the result.
Thus, it is submitted that the Defendant No.1 is not liable for the Agent‟s personal
assurance.
The relationship between Defendant No. 1 and Defendant No. 2 is of Principal and Agent.
Section 182 of the ICA, 1872 defines Agent as “a person „employed‟to do any act for
another person or to represent another person in dealing with the third person”. Defendant
No.2 was an Agent of the company but he had the authority to only dispatch the products.
4
Para 8, p 11
5
Amrit Lal C.Shah v. Ram Kumar, AIR 1962 2 Pun 201, AIR 1962 Pun 325.
6
Hamid Hasan v. Shazad Khan, AIR 1919 Pat 143
7
Purmanundass Jivandass v. HR Cormack, AIR 1882 6 Bom 326, 362; Arunachalam Chettiar v. Kasi Nevenda
Pillai, AIR 1914 Mad 97; Babulal v. JagatNarain, AIR 1952 VP 51.
8
Sec 235 under heading “ Breach of Warrant of Authority. ”
9
Puran Mal v. Ford Macdonald and co. ,AIR 1919 All 440 per Walsh J at 444.
______________________________________________________________________
15
His employment was limited to that extent only. The function of an Agent is to enter into
contractual relations on behalf of his Principal with third persons. He acts at his discretion
and judgment, but within the limits of his authority10.
It is submitted that thus, an Agent may not deal, with himself, the Principal‟s property or
subject matter of the agency11. Where an Agent employed to sell himself becomes
thepurchaser, he must show that this was with the knowledge and consent of his
employer12.
Therefore, it is submitted that the Agent was not authorized to give any acknowledgement
to the customer.
10
State of Madras v. Jayalakshmi Rice Mill Contractors Co,AIR 1958 AP 671, AIR 1959 AP 352;
Lakshminarayan Ram Gopal v. Govt. of Hyderabad supra.
11
Armstrong v. Jackson, ( 1917) 2 KB 822, (1916-17) All ER Rep 1117; McPherson v. Watt, (1877) 3 App
Cas 254 (HL); Livingstone v. Ross, (1901) AC 327 (PC).
12
Charter v. Trevelyan,(884) 11 Cl and Fin 714 per Lord Lyndhurst at 732, 65 RR 305, 315; Firm of
Rameshardas Benararshidas v. Firm of Tansookhrai Bashesharilal, AIR 1927 Sind 195, 102 IC 366.
______________________________________________________________________
16
3. WHETHER THE PLAINTIFF CAN REPUDIATE THE

CONTRACT OR CAN ONLY CLAIM DAMAGES?
It is humbly submitted that it is important to first assert whether the stipulation in

question is a condition which is defined as: “A condition is a stipulation essential to the
main purpose of the contract, the breach of which gives rise to a right to treat the
contract as repudiated13.” or the stipulation in question is a warranty which is defined as:
“A warranty is a stipulation collateral to the main purpose of the contract, the breach of
which gives rise to a claim for damages but not to a right to reject the goods and treat the
contract as repudiated14.”In the instant case the Defendant1 delivered the laptop which
was accepted in the telephonic conversation. Therefore the defects found in the laptop
only amount to stipulation collateral to the main purpose of the contract and hence the
stipulation in question is a warranty and not a condition.”
Further it is also submitted that Sec 12(4) reads as follows: “Whether a stipulation in a
contract of sale is a condition or a warranty depends in each case on the construction of
the contract. A stipulation may be a condition, though called a warranty in the contract.”
In the instant case the main purpose of the contract was the sale of the laptop specified in
the email confirmation which was delivered and the Plaintiff can only claim the damages
as the stipulation in this case is a warranty and not a condition.
In Wallis V. Pratt15 in a judgement which was approved by The House Of Lords, at

Fletcher Moulton L.J. said16:
“There are some obligations in a contract that go so directly to the substance of the
contract, or in other words are so essential to its very nature that their non-performance
may fairly be considered by the other party as a substantial failure to perform the
contract at all. On the other hand there are other obligations which, though they must be
performed, are not so vital that a failure to perform them goes to the substance of the
contract”.
In the instant case, the Plaintiff didn‟t disclose to the Defendant No. 1, the purpose for
which he was buying the laptop and therefore it can be asserted that the sale in this case is
not a „sale by description‟.
13
Sec 12(2) , Sale Of Goods Act 1930.
14
Sec 12(3) ,Sale Of Goods Act 1930.
15
(1911) AC 394.
16
(1910) 2 KB 1003 P. 102.
______________________________________________________________________
17
Therefore, it is submitted that the Plaintiff cannot repudiate the contract but can only
claim damages by warranty.

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18
PRAYER
In light of the issues raised, arguments advanced and cases cited it is most humbly prayed
before this Hon‟ble Court-
A. To dismiss the case with cost.
Or grant such other relief as the court may deem fit in the light of justice, equity and good
conscience.
AND FOR THIS ACT OF KINDNESS THE DEFENDANT SHALL DUTY BOUND
EVER PRAY
Sd/-
Counsel for the Defendants

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19

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Indian Institute of Legal Studies ,2022 D

INDIAN INSTITUTE OF LEGAL STUDIES -2022

IN THE HON’BLE DISTRICT COURT OF SILIGURI, WEST BENGAL

(Under Section 9 Of The Code Of Civil Procedure, 1908)

QUICKMART.COM…………………………………………. DEFENDANT NO. 1

MR. RATTAN………………………………………………… DEFENDANT NO.2

ON SUBMISSION TO THE COURT OF CIVIL JUDGE, SILIGURI DISTRICT

MEMORIAL ON BEHALF OF THE DEFENDANTS

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

S.NO. ABBREVIATION DEFINITION

2. AIR All India Reporter

10. Ed. Edition

11. Govt. Government

12. HC The High Court

13. Hon‟ble Honorable

14. ICA Indian Contract Act

15. i.e. That is

16. Ker Kerala

17. Ltd. Limited

18. Mad Madras

19. No. Number

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

20. Ors. Others

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

PLACING THE ORDER

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

COMPLAINT BY MR. SINGHANIA

RESPONSE BY THE COMPANY

Mr. Singhania received no communication in this regard within a reasonable time

VISIT TO COMPANY’S OFFICE

PROBLEM IN THE PRODUCT AND WARRANTY

VISIT TO THE RETAILER AND THE PROMISE MADE BY HIM

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

1. WHETHER THERE IS BREACH OF CONTRACT?

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

1. WHETHER THERE IS BREACH OF CONTRACT?

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

3. WHETHER THE PLAINTIFF CAN REPUDIATE THE CONTRACT

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

1. WHETHER THERE IS BREACH OF CONTRACT?

1.1 THAT THE CONTRACT IS VALID.

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

2. WHETHER THE COMPANY IS LIABLE FOR THE ACTS OF

3. WHETHER THE PLAINTIFF CAN REPUDIATE THE

It is humbly submitted that it is important to first assert whether the stipulation in

In Wallis V. Pratt15 in a judgement which was approved by The House Of Lords, at

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANTS

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