Page |1

TC12

N.J.Y. NATIONAL MOOT COURT COMPETITION, 2021

BEFORE THE HONOURABLE SUPREME COURT

Ms. MOUMITA SAHA

&

Mr. SHUBHAM
ANAND

(PETITIONER)

v.

GOVT.OF INDIA

(RESPONDENT)

M EMORANDUM F ILED O N B EHALF O F T HE PETIONER

D RAWN AND F ILED B Y T HE C OUNSEL A PPEARING O N BEHALF O F T HE PETITIONER

a
b
TABLE OF CONTENTS

LIST OF ABBREVATIONS ……………………………………………………………… iii

INDEX OF AUTHORITES ……………………………………………………………… iv

STATEMENT OF JURISDICTION………………………………………………………. v

STATEMENT OF FACTS…………………………………………………………………vi

ISSUES RAISED …………………………………………………………………………

viii

SUMMARY OF ARGUMENTS …………………………………………………………. ix

ARGUMENTS ADVANCED …………………………………………………………… 1

PRAYER
LIST OF ABBREVIATIONS

AIR All India Reporter

Anr Another
FMC Force Majeure clause
Cr.P.C Code of Criminal Procedure
n. Foot Note no.
Ed. Edition
ICA Indian Contracts Act
IPC Indian Penal Code
i.e., That is
HC High Court
No. Number
Ors. Others
Rs. Rupees
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SCJ Supreme Court Journal
Sec./S. Section
v. Versus
 INDEX OF AUTHORITIES

TABLE OF CASES:

WEBSITES:

1. https://www.legitquest.com/

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

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

I. The Republic of Indiana, a self-governing ‘Union of States’, with 28 states and

9 Union Territories, got its Independence in 1947. And the constituent
Assembly drafted its constitution.
II. The constitution of the largest democracies core values are democracy, equality
and secularism. And the scope is expanded by various judgments of Supreme
Court of Indiana.
III. The Constitution also talks about reservation for certain section of the population,
which is also known as affirmative action, and also deemed as positive
discrimination.
IV. According to Indiana’s constitution, there are two basic goals for providing
reservation:
(a) Upliftment of Schedule Castes (SC) and the Scheduled Tribes (ST)
OR any socially and educationally backward classes of citizens. –
Article 15(4), Article 15(5).
(b) To ensure adequate representation of any backward class of citizens
in the services under the state. – Article 16(4).
V. With 229 votes in favour and 10 votes against in Lok Sabha, the government
introduces 104th amendment, which explains the extension of reservation policy,
and it was passed in Rajya Sabha.
VI. It applies to citizens from the unreserved category who are economically
disadvantaged. This reservation is in addition to the existing reservation scheme
and is limited to a (10%) ten percent reservation.
VII. People from economically weaker sections of the society generally could not have
the same opportunity and barred from higher educational institutions and pubic
jobs due to their financial inability to compete with those who are economically
more affluent.
VIII. The following are the amended article;
(a) Article 15(6) is inserted to offer reservation to economically weaker
section for admission in educational institutions, including private
educational institutions, whether sponsored or unaided by the state other
than the minority educational institution mentioned in clause (1) of the
 Article 30. The amendment attempts to give those who do not come
under Article 15(5) or 15(4) a reservation (effectively, SC’s, ST’s and
OBC’s).
(b) Article 16(6) is inserted to offer reservation in governmental jobs for
people from economically disadvantaged groups.
(c) According to the explanation, “economic weakness” will be determined
based on “family income: and other “economic disadvantaged factors.”
IX. Ms. Moumita Saha, a legal activist, petitioned the Supreme Court to declare the
104th Constitutional Amendment Unconstitutional.
X. Following the Judgment of Jarnail Singh case, regarding ‘creamy layer exclusion
theory’, the court ordered the government to bring in appropriate guidelines, which
the government failed to do so. Mr. Subham Anand filed a suit over the
government’s failure to follow the order.
XI. The government claims that this 5 judge bench decision violated the Anindita
Sawhney decision of a 9 judge Constitutional bench from 1993 by extending it to
SC/ST reservation.

ISSUES RAISED

ISSUE 1:

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREME COURT OR

NOT?

ISSUE 2:

WHETHER THE CREAMY LAYER NORM CAN BE EXTENDED TO SCHEDULED

CASTES(SC)/SCHEDULED TRIBES(ST)?
 ISSUE 3:

WHETHER THE DIVISION BENCH CAN OVERRULE THE JUDGEMENT OF THE

CONSTITUTIONAL BENCH?

ISSUE 4:

WHETHER ECONOMIC CRITERIA CAN BE SOLE GROUND FOR RESERVATION

AS PER ARTICLE 16(6)?

SUMMARY OF ARGUMENTS
ISSUE I:

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREMER COURT?

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:

WHETHER THE CREAMY LAYER NORM CAN BE EXTENDED TO SCHEDULED

CASTES(SC)/SCHEDULED TRIBES(ST)?

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:

WHETHER THE DIVISION BENCH CAN OVERRULE THE JUDGEMENT OF THE

CONSTITUTIONAL BENCH?

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:

WHETHER ECONOMIC CRITERIA CAN BE SOLE GROUND FOR RESERVATION

AS PER ARTICLE 16(6)?

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

WHETHER THE PRESENT SUIT IS MAINTAINABLE IN SUPREME COURT?

I.1 POWER UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

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 main objective of Art. 32 is the enforcement of fundamental rights guaranteed by

the Constitution of India. The original jurisdiction of the Supreme Court can be
invoked in any case of violation of fundamental rights guaranteed by part III of the
constitution of India as it has been previously observed in the case of Chiranjit Lal
Chowdhary v. Union of India1 amongst the many other. Also, in the right to approach
this Hon'ble Court in case of violation of fundamental rights is itself a fundamental
right enshrined in Art. 32.1. In Prem Chand Garg, it was held that this right is absolute
and may not be impaired on any ground.2

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,

Hence, the petitioner is justified in challenging the authority of Supreme Court’s

directive to government of applying the concept of “Creamy Layer” In the instance of
SC’s and ST’s.

I.2 MAINTAINABILITY OF PUBLIC INTEREST LITIGATION

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

WHETHER THE CIVIL COURT OF ANTALIA WAS CORRECT IN PASSING A

DECREE IN FAVOUR OF OXYGENA FOR THE BREACH OF CONTRACT?

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

Section 56 deals with two well-defined levels namely –

I. It renders void all agreement to do impossible acts, and

II. It envisages a situation wherein a lawful act has subsequently become
impossible or unlawful to perform.

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:

I. There must be a valid contract.

II. The performance of the contract is yet to be made or is ongoing; and
III. The aforesaid performance of the contract becomes impossible by way of
facts/prevalent circumstances or law.

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.

A ‘Force Majeure’ (FM) means an extraordinary event or circumstance beyond human

contract such as an event described as an act of God (like a natural calamity, war, or
pandemic) not including negligence or wrong-doing and predictable events specifically
excluded in the clause.

In addition, if a whole or specific performance of any necessary obligation is prevented or

delayed by any reason of FM for a period exceeding 90(Ninety) days, either party may at its
option terminate the contract without any financial repercussion on either side.

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.

Therefore, in conclusion due to unforeseen and supervening circumstances caused by

Covid-19 pandemic Ms. Ray was not able to fulfil certain obligations of the contract.

12
Business law, guides, Indian Contracts act 1872.
 ISSUE IV

WHETHER THE COMPENSATION CLAIMED BY THE OXYGENA COMPANY

IS JUSTIFIABE OR NOT?

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.

In addition, the contractor (respondent) is obliged to prove with reasonable certainty,

and not with philosophical and unforeseeable sureness that appellant’s breach
prevented gains or otherwise resulted in loss for the respondent (Oxygena), nor he is
 bound to prove with certain mathematical exactitude the amount of profit or loss in
question.13

Thus, if the respondent (Oxygena) is claiming a sum of Rs.3,00,000 /- he needs to

show convincingly that in the normal course of event, he would have realised a profit
if certain set of obligations were duly performed by the appellant (Ms. Ray).

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

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, MAY THIS COMMISSION BE PLEASED TO ADJUDGE
AND

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