Memorial. On behalf of respondents it is published by me, Study notes of Law

Download Memorial. On behalf of respondents it is published by me and more Study notes Law in PDF only on Docsity! Before the district court of delhi At delhi { under section 9 of code of civil procedure ,1908} Suit no . _/2020 In the matter of Mr. umanga (plantiff) Vs. Mrs . tsunami (defendant) In the memorial of plantiff List of abbreviation & and ₹ Rupees ¶ Paragraph AIR ALL INDIA REPORTER ALL ALLAHABAD Anr Another Bom Bombay cal Calcutta CJ Chief justice exch Exchequer reporter Hon’able Honorable i.e. That is ILR Indian law reporter j justice KB Kings bench kant Karnataka ker Kerala LR Law reporter lah Lahore Mp Madhya Pradesh mad madras Mr. Mister Mrs. miss Nag Nagpur No. Number Ors Other PC Privy council pg page Qb Queen bench Scc Supreme court cases Sr. serial V. versus Viz. namely Statement of jurisdiction Statement of facts 1. Tsunami, a renowned film star of sixteen years, wanted a small party house and a swimming pool constructed in her back garden. By misrepresenting that she is a major, she put the task out to tender and accepted the offer of Mr. Umanga, a building contractor, who agreed to do the work for Rs.5,00,000/-. 2. Both Tsunami and Umanga knew that this was an unrealistically low price contract and the amount will be paid in instalments in order of the completion of different phases of the assigned work. Umanga, having completed the small party house began construction of the swimming pool and ran out of money and materials for further construction. Umanga told Tsunami that he could not complete the construction unless further capital was made available to him. 3. Tsunami had arranged a poolside party to which she had invited top film directors from whom she hoped to win new leading roles and was desperate to have the pool completed as stipulated. She requested for the continuance of the construction work and further requested Mr. Umanga to spend the remaining amount of Rs. 3,00,000/- on the work out of his own pocket and the money would be paid to him when she secures her next contract. 4. The pool was completed; the party was a success and Tsunami was awarded the starring role in the new movie named “Tu Kaun Mein Khaamakhaan”. Tsunami tells Mr. Umanga, “Darling, you have saved my career. Don’t worry about Rs. 3,00,000/-.” Mr. Umanga started a new project, whereas Tsunami’s new film was a complete flop. She then found herself unable to pay the amount of Rs.3,00,000/- to Mr. Umanga. 5. Mr. Umanga compelled Tsunami, a leading film actor, to render dance performance in his party which he organized to invite rich people, relatives and friends in order to secure contracts regarding building construction, etc. and in return he agreed to release Tsunami from paying the debts of Rs.3,00,000/-. Tsunami agreed on this point and was ready for the dance performance in the party. But before the party, she suffered from a sprain due to over repetition of rehearsals. Then she did not perform in Mr. Umanga’s party on the advice of the doctor. 6. On Tsunami’s eighteenth birthday, both the parties, on the humanity ground, decided to alter the contract. Tsunami acknowledged the debt taken from Mr. Umanga for rendering the past services and further both agreed on the same point that Tsunami would pay the debt through easy monthly instalments (EMIs) of Rs.10,000/- per month till the repayment of the amount of Rs.3,00,000/-. 7. Tsunami, later on, felt that some of the work done by Mr. Umanga was not performed as she had specified. She further pointed out that the material used for constructing the small party house and a swimming pool was not of the right kind. She estimated that this would cost her Rs.3,50,000/- only. 8. Tsunami then decided to dispose-off her property at the price of Rs.9,00,000/- without giving a single penny to Umanga. When all this foul play came to the knowledge of Umanga, he tried to restrain Tsunami by putting enormous pressure in order to recover his money amounting to Rs.3,00,000/- which he spent on the construction of small party house and a swimming pool for Tsunami. 9. Umanga could not recover the debt from Tsunami even after a reasonably long time. He gave a notice to Tsunami regarding payment of money within 15 days but no reply was given by her on this matter. Summary of arguments Issue 1. Whether there was a valid contract between the plaintiff and the defendant ? It is humbly submitted before this court that there exists a valid contract between the plantifff and the defendant which arose due to alteration of contract after she become a major . Issue 2. Whether or not the benefits are bound to be restored by the defendant to the plaintiff ? It is humbly submitted before this court that the defendant is liable to restore the benefits gained by him from the agreement under – 1. Section 33(2)(b) of the specific relief act 1963: and 2. Section 65 of the Indian contract act ,1872 3. Recomndation of law commission of india 4. Section 29 and 39 of specific relief act ,1963 . Issue 3. Argument advanced Issue 1. Whether there was a valid contract between the plaintiff and the defendant ? 1.1. The first contract which took place between the plaintiff and defendant is a void agreement 1.2. According to our study ,we have come to the conclusion that the first agreement which took place between the plantiff and defendant was a void agreement . 1.3. In lakhwinder singh v. paramjit kaur1 the plantiff – respondent ,the daughter of one avtar singh , now deceased ,inherited a part of his property constituting land .when minor ,she executed a sale deed of land belonging to her daughter in favour of defendant –appellant. 1.4. In kartar singhv. Harbans singh2 held that the contention that the transferee was bonafide purchaser would not be available since he did not make all reasonable anddiligent enquired regarding the capacity of the transferor and the necessity to alienate the estate of the minor 1.5. In vaikuntarma pillai v. authimoolam chettiar ,the madras high court has held that there is a statutarory provision that the minor being incompetent to contract is incapable of incurring any liability for any debt . The law of estoppels cannot overrule his provision to make him liable . 1.6. Qccording to section 62 , novation ,rescission and altertation of contracts leads to cancellation of the intial contract ,according to this section – “effect of novation ,rescission and alteration of contract – if the parties to a contract agree to substitute a new contract for it’s or to rescind to alter it , the original contract need not to be performed “ A minors agreement is a contract entered with an individual of m0inority age. This means contract is void ab initio (void from beginning). ….. A minor cannot bind his or her parents ti a contract with third party unless the minor is acting as a agent in which cases the parent becomes liable for the contract . She being a ,minor the contract is void ab initio so when the alteration of contract took place after her becoming a major , consideration flew from both parties it became a valid contract. Case law :- 1.7. In manohar koyal v. Thakur das naskar , the plantiff sued to recover the sum of ₹1173due on a bond . after the due dateof the bond ,the plantiff agreed to accept ₹400 in cash and a new bond of ₹700 payable by installments subsequently the defendant neither gave bond and nor cash .the plantiff there upon sued him on the originsl bond . calcutta high court held the original contract was entitled to sue for the breach of the original contract . 1.8. In narendra kumar malik v. surendra kumar malik ,mr. ranjit kumar ,learned senior advocate contended that in view of the MOU and it is a fit case where section 62 of the indian contract act can beinvoked .we have already said that there was no concluded settlement or novation even otherwise there has been non- compliance with the terms and conditions of the mou bythe respondents and a party in breach can hardly seek to enforce a contract act .the cpntention of mr. ranjit kumar is therefore legally untenable . 1.9. According to section 56 , impossibility to performance of the contract by the defendant led to the discharge duty on her part . Where one person has promised to do something which he knew , or with reasonable dilligiencer , might have known ,to be impossibile and which the promise did not know tobe impossible or unlawfull such promisior must make compensation to such promissie for any