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NOVICE (Ray) (APPELLANT)
NOVICE (Ray) (APPELLANT)
TC12
&
Mr. SHUBHAM
ANAND
(PETITIONER)
v.
GOVT.OF INDIA
(RESPONDENT)
STATEMENT OF JURISDICTION………………………………………………………. v
STATEMENT OF FACTS…………………………………………………………………vi
PRAYER
LIST OF ABBREVIATIONS
TABLE OF CASES:
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4. http://www.scconline.com
STATEMENT OF JURISDICTION
The Hon’ble Court has the jurisdiction to hear and adjudicate the instant matter under
Article 32 of the Indian constitution
STATEMENT OF FACTS
ISSUES RAISED
ISSUE 1:
ISSUE 2:
ISSUE 4:
SUMMARY OF ARGUMENTS
ISSUE I:
It is humbly submitted before the hon’ble court that above case is maintainable under
the Supreme Court and the petitioner has their right to move to Supreme Court under
Article 32 of The Constitution of India. If any person is aggrieved by the decree given
by the District court can approach the High court as, the HC has no pecuniary
jurisdiction over the said matter but only appeal lies before it.
ISSUE 2:
It is humbly submitted to the hon’ble court that Ms. Ray has not failed in her
duty and obligations towards Oxygena. This is a fact that before the COVID
situation she was working well and completed her task on time, the delay was
due to then ongoing situation and thus, it is clear that she has not failed in her
duties. Regardless of being paid only 50% of the first task.
ISSUE 3:
It is humbly submitted before the hon’ble High Court that the case was decided
without properly appreciating all the necessary facts. The District court has not
appreciated the fact that Ms. Ray resided in the red zone area and it resulted in her
inability to move out and work. Despite the restrictions being eased off for movement,
it was not safe for Ms. Ray to complete her task.
ISSUE 4:
It is humbly submitted before the hon’ble High Court that the compensation claimed by
Oxygena company is not justifiable as it was clearly mentioned in the contract that the
compensation was only to be asked only in case of non-performance of duty (breach of
contract). In this case it is clear that she couldn’t perform her duty due to the hazardous
conditions prevailing irrespective of all precautions.
ARGUMENTS ADVANCED
ISSUE I
The jurisdiction of the Supreme Court can be invoked under Article 32 of the
constitution for the violation of Fundamental rights guaranteed under Part – III of the
constitution.
The constitution makes have conferred on the Supreme Court the power to issue writs
for the time efficient and speedy enforcement of fundamental rights and has made the
right to approach the Supreme Court for enforcement of fundamental rights.
The fundamental rights provided in the Indian Constitution are guaranteed against any
executive and legislative actions. Any executive or legislative action, which supposedly
infringes upon the Fundamental Rights of any person or any group of persons, can be
declared as void by the Courts under Article 14 of the Constitution.
By including Article 32 in the Fundamental rights, the Supreme Court has been made
the protector and the guarantor of these rights.
Also, a Public Interest Litigation can be filed before the Supreme Court under Article
32 of the Constitution.
In this case,
In the case of S.P. Gupta v. Union of India3, Justice P.N. Bhagwati articulated the
concept of PIL as, “any member of public can maintain an application for an
appropriate direction, order or write in the High Court under Article 226 and in cases of
breach of fundamental rights of such persons or determinate class of person, in the
1
AIR 1951 SC 41.
2
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996
3
AIR 1982 SC 149.
court under Article 32 seeking judicial intervention for the legal wrong or legal injury
caused to such persons or determinate classes of persons.”
Also, the stern rule of locus standi has been explained in D.C. Wadhwa v. State of
Bihar4, The court held that the applicant as a member of the public has initiates
‘sufficient interest’ to maintain a writ petition under Article 32.
Additionally in the case of Janta Dal v. H.S Chaudhary5 that only a person ‘acting bona
fide’ and ‘having sufficient public interest’ in the proceeding of public interest
litigation will have alone the locus standi6 but not a person for personal gain or political
motive or any oblique consideration.
The rule of locus standi has stated that a person who is acting in a bonafide (good
intention) and having sufficient interest in the proceeding of public interest litigation
will have a locus standi and in that case he/she can approach the court to seek remedy
for such violation of fundamental rights.
4
1987 AIR 579
5
AIR 1993 SC 892, 64.
6
In Blacks’s Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum
ISSUE II
WHETHER MS. RAY HAS FAILED IN HER DUTY AND OBLIGATION TOWARDS
OXYGENA?
It is humbly submitted to the hon’ble court that Ms. Ray has not failed in her duty and
obligations towards Oxygena. This is a fact that before the COVID situation she was
working well and completed her task on time, the delay was due to then ongoing situation
and thus, she has not failed in her duties. Regardless of being paid only 50% of the first
task.
ISSUE III
It is humbly submitted before the Hon’ble High court that the decree passed by the District
(civil) court of Antalia is arbitrary as important facts regarding the case and circumstances
have been overlooked by the Hon’ble court while giving its final judgement regarding the
matter in favour of the respondent (Oxygena).
However, the Hon’ble civil court of Antalia overlooked upon the facts that Ms. Ray is a
resident of ‘BKC’ society, which had soaring number of covid-19 cases and subsequently it
was marked as a red zone by the respected municipal and other governmental authorities of
the respected town/area.
Due to unforeseen circumstances of covid-19 pandemic Ms. Ray was not able to perform
her duties as a brand ambassador for Oxygena and pleads frustration of the contract, u/s. 56
of the Indian contract act.
Section 56: Agreement to do an impossible act. A contract to do an act which after the
contract is made, becomes impossible, or, by reason of some event which the promisor
could not prevent, becomes void when the act becomes impossible or unlawful. 7
The performance of the contract had become physically impossible due to certain
requirements to be performed in obligation, as explicitly stated under the
contract/agreement. But the principle stated is not confined to only the physical
impossibilities but also considers other contributory factors such as non-availability and
frustration.8
To take recourse under the above stated section it is necessary to prove the essential and
cardinal ingredients of Sec. 56 of the Indian Contract Act, 1872:
In order to show to the Hon’ble High Court that the decree passed by the District Court of
Antalia is unfair and arbitrary lies in the facts of the case itself as due to unforeseen
circumstances created by the covid-19 pandemic and lawful intervention by the legislative
and executive authority in curbing out the spread of the virus to further control the loss
lives, In addition to all the necessary steps, imposed strict lockdown and curfew to contain
the pandemic as much as it could.
As in the case of Satyabrata Ghose v. Mugneeram Bangur & Co.9 The company of the
defendant started a scheme for development of a local tract of land in a housing society.
7
Contract Act, 1872, Section 56 (India)
8
Tarun Dua and Geetanjali Sethi, Force Majeure In Times Of COVID-19: Challenges and The Road
Ahead, Mondaq, 11 May 2020.
9
AIR 1954 SC 44: 1954 SCR 310.
The company undertook all the necessary precautions and formulated appropriate plans to
construct roads and drainage system for making the land suitable for living/housing
purposes. But before anything could be done, a majority portion of the land was
requisitioned by the government for military purposes.
Furthermore, considering the facts of the case it clearly states that Ms. Ray’s inability and
non-performance of the obligated contract was due to government’s intervention by
imposing strict lockdown and curfews to contain the spread of the covid-19 virus and
making certain specific zones namely red, yellow, and green zone to restrict the movement
of people and goods.
In addition, an order stated on 19 th Feb 2020 from the Ministry of Finance 10 (Govt. of India)
explicitly necessitated invoking Force Majeure Clause (FMC) in cases of contractual
obligation where the performance of the contract has become improbable and uncertain
because unforeseen supervening circumstances.
Henceforth, even if a contract does not explicitly have a Force Majeure (FM) clause, the
section of 56 of the Indian Contract Act is applicable (Doctrine of Frustration), the
applicability of the said section 56 of contracts acts, was decide in the landmark judgement
of Raja Dhruv Dev Chand v. Harmohinder Singh & Anr, 11 where the Supreme court shed
light on the difference between ‘executory contracts’ and ‘executed contracts’, and in the
case the contract between Ms, Ray and Oxygena is of executory in nature meaning
(consideration is either the promise of performance or an obligation) and in such contracts
10
Office Memorandum No. F.18/4/2020-PPD titled ‘Force Majeure Clause, issued by Department of
Expenditure, Procurement Policy Division, Ministry of Finance, Government of India
11
MANU/SC/0179/1968
the consideration can only be performed sometime in the future. 12 Hence, the Doctrine of
frustration as enshrined in Sec.56 of the ICA is applicable on executory contracts.
12
Business law, guides, Indian Contracts act 1872.
ISSUE IV
It is humbly submitted before the hon’ble h high court that the compensation claimed
by the Oxygena Company is not Justifiable. In pursuance of claiming unreasonable
compensation from the appellant (Ms. Ray) the District court of Antalia has done
grave injustice to Ms. Ray as usually in cases of breach of contract, the party guilty of
breach is liable only for reasonably foreseeable losses, i.e., those losses that normally
a prudent person, while in his/her place possessing information when contracting,
would have had a reason to foresee as probable consequences of future breach.
Therefore, the respondent (Oxygena) has to produce the best estimate of the amount
allowed by the circumstances. And it should be fairly persuasive evidence, ‘most
convincing’ evidence in order to claim the compensation.
In the case of Maula Bux v. Union of India, 1969 14 the court has specifically held that
the court is competent to award fair and reasonable compensation in case of breach
even if no actual damage is proved to have been suffered in consequence of the
breach of the contract, but the court has also held that in case of breach of some
specific contract it may be impossible for the court to assess compensation arising
from the breach. Also In some cases, the courts have demanded the parties to prove
the degree of loss or damage suffered as a result of the breach of the contract. 15
Furthermore, the District court did not take into consideration certain facts which led
to passing of an unfair and arbitrary decree in favour of the respondent (Oxygena).
So, in such cases the sum reasonable named by the party or preferably assessed by the
court, which upon brief examination is a genuine pre-estimate is awarded to the party
claiming the breach.
In addition, in the case of Iron & Hardware (India) Co. v. Firm Shamlal & Bros 16, it
was specifically stated that an automatic pecuniary(monetary) liability does not tend
to arise in the event of breach of the contract which explicitly contains a specific
clause for liquidated damages. But it solely lies upon the discretion of the court to
decide that the party complaining about the breach is actually has sufficient merits to
entitled to damages.
13
Sara Siddiqi, Proof of Actual Damage, Mondaq, 15th April 2019
14
Maula Bux v. Union of India (1969) 2 SCC 554
15
Fateh Chand v. Balkishan Dass AIR 1963 SC 1405
16
AIR 1954 Bom 423
Since Section 7417 awards reasonable compensation for damages or loss cause by a
breach of contract, the damages or the loss caused to the respondent is a sine qua non
for the applicability of the section, thus in the case where the sum named in the
contract is to be paid by way of damaged, the party complaining of a breach can only
receive reasonable compensation by way proving genuine pre-estimate fixed by both
the patoes and found to be such the court.
In conclusion, the respondent (Oxygena) should not have been entitled to be granted
compensation (Damages) by the mere presence of the liquidated damages clause, but
it should be duly assessed by the court of capacity to award such damages to the
respondent (Oxygena).
17
Contract Act, 1872, Section 74 (India)
PRAYER
AND/OR
PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT IN
THE BEST INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE. FOR THIS ACT OF KINDNESS, THE INFORMANT SHALL
FOREVER PRAY.
All of which is most humbly and respectfully submitted.
Place: S/d____________
Date: Appellants