Plaintiff Final (1)

TEAM CODE: TC-33

ALL INDIA USLLS FIRST YEAR STUDENTS MOOT COURT COMPETITION, 2016

BEFORE THE DISTRICT COURT OF DELHI AT DELHI

( Under Under Sect Secti on 9 of of C ode of C i vil Pr oced cedure ur e, 1908) Civil Suit No. :______ / 2016

IN THE MATTER OF

Mr. Khalbali

Plaintiff Versus

Ms. Sansani

Defendant

MEMORIAL ON THE BEHALF OF THE PLAINTIFF

Drawn and filed by the Counsel for the Plaintiff


TABLE OF CONTENTS

LIST OF ABBREVATIONS

3

INDEX OF AUTHORITIES

5

STATE OF JURISDICTION

9

STATEMENT OF FACTS

10

STATEMENTS OF ISSUES

12

SUMMARY OF ARGUMENTS

13

ARGUMENTS ADVANCED

14-27

ISSUE 1: THAT THERE IS CONTRACT BETWEEN THE PLAINTIFF AND THE DEFENDANT 1.1: That the Construction of Swimming Pool and Party House is Necessary for the Defendant

14

1.2: Recommendation of the Law Commission

17

1.3: That the Defendant is Liable to Contract under Section 65 of the Indian Contract Act, 1872

18

ISSUE 2: THAT THE DEFENDANT IS BOUND TO RESTORE THE BENEFITS TO THE PLAINTIFF 2.1: Recommendation of the Law Commission

20

2.2: That the Defendant is Liable to Restore Benefits under Section 33 of the Specific Relief Act, 1963

23

2.3: That the Defendant is Liable to Restore the Benefits under Section 65 of the Indian Contract Act, 1872

26

PRAYER

Memorial on the Behalf the Behalf of of Plaintiff

28

Page 2


LIST OF ABBREVIATIONS Abbreviations

Full Form

&

And

₹

Rupees

¶

Paragraph

AIR

All India Reporter

All

Allahabad

Anr

Another

Bom

Bombay

Cal

Calcutta

CJ

Chief Justice

Exch

Exchequer Reports (England)

Hon’ble

Honourable

i.e.

That is

ILR

Indian Law Reporter

J

Justice

KB

King’s Bench

Kant

Karnataka

Ker

Kerala

LR

Law reporter

Memorial on the Behalf of Plaintiff

Page 3


Abbreviations

Full Form

Lah

Lahore

M&W

Meeson & Welsby's Exchequer Reports (England and Wales)

MP

Madhya Pradesh

Mad

Madras

Mr.

Mister

Ms.

Miss

Nag

Nagpur

No.

Number

Ors

Others

PC

Privy Council

Pg

Page

QB

Queen’s Bench

QBD

Queen’s Bench Division

SCC

Supreme Court Cases

Sr.

Serial

v.

Versus

Viz.

Namely

Vol

Volume


Page 4


INDEX OF AUTHORITIES I.

STATUTES:

II. Sr. No.

1

Sr. No

Statutes

1

Indian Contract Act, 1872

2

Special Relief Act, 1963

3

Indian Majority Act, 1875

4

Civil Procedure Code, 1908

CASES:

Cases

Abdul Majid Said and Ors v. Ramiza Bivi Sahiba and Ors

Citations

Page No.

AIR 1931 MAD 468

25

2

Anagha Prassad v. M.C Abu

ILR (2014) 4 Kerala 175

18

3

Chapple v. Copper

(1844) 13 M&W 252

14

4

Dyaviah and Anr v. Shivamma and Anr

AIR 1959 Kant 188

26

AIR 1941 Bom 378

26

(1909) ILR 36 CAL 768

14

(1868) 19 L T N S 398

16

5

6

7

Govind Keshav Dandavate v. Yeshwant Pandharinath Shete Jagon Ram Marwari v. Mahadeo Prasad Sahu Jenner v. Walker


Page 5


Sr. No.

8

9

Cases

Citations

ILR (1928) 9 Lah 701,

Khan Gul v. Lakha Singh

715-19

Kunwarlal Daryavsingh v. Surajmal Makhanlal

Page No.

21

AIR 1963 MP 58

16

10

Pearce v. Brain

(1929) 2 KB 310

25

11

Madura Municiplality v. Raman Servai

AIR 1936 Mad 98

26

12

Mohori Bibee v. Dhurmodas Ghose

13

14

15

16

17

18

19

Mt. Hamidan Bibi v. Nanhe Mal and Anr Nardan Prasad v. Ajudhia Prasad Nivarti Govind Ingale and Ors v. Revanagouda Bhimanagouda Patil Peters v. Fleming Ram Nagina Singh v. Governor General in Council

(1903) 30

25

(1910) ILR 32 ALL 325

19

(1997) 1 SCC 475

24

(1840) 6 M. & W. 42

15

AIR 1952 Cal 306

27

90:Exch. 32

Sadasheo Balaji v. Firm Hiralal Ramgopal

Page 6

20

AIR 1933 All 371

(1868) L.R. 3 Exch

Ryder v. Woombell


(1902-03) 30 IA 114: ILR

AIR 1938 NAG 65

15

15


Sr.

Cases

No.

Thakurian Harnath Kaur v. Thakur 20

Citations

Page No.

AIR 1922 PC 403

27

Indar Bahadur

21

Valentini v. Canali

[1889] 24 QBD 166

20

22

Varghese v. Iype Kuriakose and Ors

AIR 1973 Ker 267

25

23

Walidad Khan v. Janak Singh

ILR 35 All 370

27

24

Walter v. Everard

ILR 35 All 370

16

25

Watkins v. Dhunoo Baboo

(1881) ILR 7 CAL 140

19

III.

REFERENCE BOOKS: Sr. No.

1

2

Books

Pollock & Mulla; “The Indian Contract and Specific Relief Acts, Vol I ”; 14th Edition; 2013 Pollock & Mulla; “The Indian Contract and Specific Relief Acts, Vol II ”; 14th Edition; 2013

3

Singh, Avtar; “Contract and Specific Relief ”; 11th Edition; 2013

4

Justice P.S. Narayan; “ Law of Specific Relief ”; 7th Edition; 2010

5

Mulla; “The Code of Civil Procedure,Vol I ”;18th Edition; 2011


Page 7


IV.

V.

REPORTS Sr. No.

Reports

1

Law Commission of India; 13th Report; 1958

RESEARCH DATABASE: Sr. No

Research Database

1

http://www.manupatrafast.com/

2

http://www.scconline.com/

3

http://www.westlawindia.com/

4

http://home.heinonline.org/


Page 8


STATEMENT OF JURISDICTION

The Counsel on the behalf of the Plaintiff most humbly and respectfully submits to the jurisdiction of the District Court of Delhi under Section 91of the Civil Procedure Code, 1908.

1

Sec 9 of Civil Procedure Code, 1908: Courts to try all civil suits unless barred – 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.


Page 9


STATEMENT OF FACTS

I

Ms. Sansani, the defendant, was a renowned film star of sixteen years and wanted to construct a small party house and swimming pool in her back garden. She put out a tender for the same, misrepresenting herself to be a major and accepted the offer of Mr. Khalbali, a building contractor and the plaintiff, to do the work for ₹ 5 lakhs. Both of them though knowing that the sum was unrealistically low, agreed that the amount shall be paid in installments, in order of the completion of different phases of the work. The plaintiff completed the party house and began construction of the swimming pool but ran out of money and materials for further construction. He informed the defendant that construction could not be completed unless further capital was made available. II

The defendant was desperate to have the pool completed as stipulated because she had arranged a poolside party and invited top film directors, hoping to win new leading roles. So the defendant, requested for the continuance of the construction and further asked the plaintiff to spend the remaining amount of ₹ 3 lakhs out of his own pocket, which she would return once her next contract was secured. The plaintiff agreed to her request, the pool was completed and her party was a success. Due to this, she was awarded the starring role in the new movie named “Tu Kaun Mein Khaamakhaan”.


Page 10


III

After this the plaintiff started a new project and was assured by the defendant that he would get his money back. But the defendant’s movie was a complete flop and she found herself unable to pay the amount of ₹ 3 lakhs to the plaintiff. Upon this, the plaintiff compelled the defendant to render a dance performance in his party, in which he had invited some rich people in in order to secure contracts regarding building construction. He agreed to release the defendant from her debt of

₹ 3 lakhs in return of the

performance. The defendant agreed for the performance. But before the party, she suffered from sprain due to over repetition of rehearsals and was advised not to perform by her doctor. IV

On the defendant’s eighteenth birthday, both the parties decided to alter the contract, on the ground of humanity. The defendant acknowledged the debt taken from the plaintiff for rendering the past services and agreed to pay the debt through easy monthly installments (EMIs) of ₹10,000/- per month till the repayment of the amount of ₹ 3 lakhs. V

The defendant upon inspection later felt the work done by the plaintiff was not performed as she had specified. The materials used for the construction were not of the right kind and she estimated that it would only cost her ₹ 3.5 lakhs. The defendant then decided to dispose-off her property at the price of ₹ 9 lakhs, and not give the plaintiff a single rupee. Upon the knowledge of this, the plaintiff pressurized the defendant to recover his ₹ 3 lakhs which he had spent and also gave her a notice in this regard. But even after it the defendant defaulted in the payment and hence this suit.


Page 11


STATEMENT OF ISSUES

ISSUE 1: WHETHER THERE WAS A CONTRACT BETWEEN THE PLAINTIFF AND THE

DEFENDANT?

ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

BENEFITS?


Page 12


SUMMARY OF ARGUMENTS

ISSUE 1: THAT THERE WAS A CONTRACT BETWEEN THE PLAINTIFF AND THE

DEFENDANT? It is humbly submitted before this Court that there is a contract between the Plaintiff and the Defendant, as it was a contract of necessity and a minor is entitled to the contract for the necessaries supplied to him under Section 68 of the Indian Contract Act, 1872.

ISSUE 2: ARGUENDO, THAT THE DEFENDANT IS LIABLE TO RESTORE THE

BENEFITS? It is humbly submitted before this court that the Defendant is liable to restore the benefits gained by him from the agreement under1. Section 33(2)(b) of the Specific Relief Act, 1963; and 2. Section 65 of the Indian Contract Act, 1872


Page 13


ARGUMENTS ADVANCED

ISSUE 1: THAT THERE IS A CONTRACT BETWEEN THE PLAINTIFF AND

DEFENDANT It is most humbly and respectfully submitted before this Court that the contract between plaintiff and defendant for the construction of swimming pool and party house is a valid contract on the ground of necessity supplied to the defendant. 1.1. THAT THE CONSTRUCTION OF SWIMMING POOL A ND PARTY HOUSE IS A NECESSITY FOR THE

DEFENDANT In the current matter, the construction of swimming pool and party house was a necessity for the defendant. In the case of Jagon Ram Marwari v. Mahadeo Prasad Sahu2, Justice MOOKERJEE and Justice CARNDUFF stated that: “the term necessaries include everything necessary to maintain an incompetent person in the state, station, or degree of life in which he is, and what is necessary is a relative fact to determine with reference to the fortune and circumstances of a particular infant. There is no definition of the term "necessaries" in the Indian Contract Act, 1872.” In the landmark case of Chapple v. Copper 3, a very illustrative statement of the meaning of the term “necessaries” was laid by ALDERSON B: “Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like. About these there is no doubt. Again, as the proper cultivation of mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral and religious education may be necessary also…. 2

(1909) ILR 36 CAL 768 (1844) 13 M&W 252

3


Page 14


….Then the classes being establi shed, the subject and the extent of the contract may vary according to the state and condition of the infant himself. His clothes may be fine or coarse according to his rank; his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted, and the extent of his probable means when of full age ….But in all these cases it must first be made out that the class itself is one in which the things furnished are essential to the existence and of reasonable advantage and comfort of the infant contractor. Thus articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. ” The term necessaries are also not confined to goods. It includes other things such as good teachings and instruction, and the money enabling an incompetent person to procure these4. It was ruled by BARON PARKE J in Peters v. F leming 5 that: “from the earliest time down to the present, the word 'necessaries' is not confined in its strict sense to such articles as were necessary to support life, but extended to articles fit to maintain the particular person in the state, degree and station in life in which he is and therefore we must not take the word 'necessaries' in its unqualified sense but with the qualification as above pointed out.” This definition was adopted by the Exchequer Chamber in Ryder v. Woombell6, which stated that: “The rule of law is clearly established that an infant is generally incapable of binding himself by a contract that to this rule, there is an exception introduced not for the benefit of the tradesman who may trust the infant, but for that of the infant himself, that this exception is that he may make a contract for necessaries.”

4

Pollock and Mulla , Vol.II, Pg no.1047, ¶ 2, Sadasheo Balaji v. Firm Hiralal Ramgopal , AIR 1938 NAG 65 (1840) 6 M. & W. 42 6 (1868) L.R. 3 Exch 90: 4 Exch. 32 5


Page 15


In the case of Walter v. E verard 7, it was concisely observed that: “The term "necessaries" means goods suitable to the condition in life of the defendant and to his actual requirements at the time of the sale and delivery, and whether an article supplied to an infant is necessary or not, depends upon its general character and upon its suitability to the particular infant's means and station in life. It was further observed that as "necessaries" include everything necessary to maintain the infant in the state, station, or degree of life in which he is, what is necessary is a relative fact, to be determined with reference to the fortune and circumstances of the particular infant; articles therefore that to one person might be mere conveniences or matters of taste, may in the case of another be considered necessaries, where the usages of society render them proper for a person in the rank of life in which the infant moves. The infant's need of things may also sometimes depend upon the peculiar circumstances under which they are purchased and the use to which they are put. For instance, articles purchased by an infant for his wedding may be deemed necessary, while under ordinary circumstances the same articles might not be so considered.” In the case of J enner v. Walker 8 , it was ruled that wedding presents for the bride of the infant may be termed as necessaries. In the case of Kunwarlal Daryavsingh v. Surajmal Makhanlal 9, the defendant was living as a tenant in the plaintiff house for rent of ₹15 but later on the defendant refused to pay the amount and resisted on the ground that the agreement with a minor is void, but it was held that the agreement is not void as it comes under the purview of necessity. Similarly in the in the current matter, as the facts suggest the defendant had ₹ 5 lakhs only, which she decided to invest in the construction of a swimming pool and a small party house to organize a party for the top filmmakers in order to secure the film contracts. The defendant being an

7

[1891] 2 Q.B. 369 (1868) 19 L T N S 398 9 AIR 1963 MP 58. 8


Page 16


actress, securing contracts was a major requirement for the defendant so as to sustain her career and means of livelihood. As renowned film makers and directors were invited to the party, a rather “lavish” party would increase the probability of securing a contract of employment which was beneficial as well as necessary for her. This is where the construction of swimming pool and small party house became a necessity for the defendant. Hence, it is clearly established that the construction of the swimming pool and the small party is a necessity for the defendant. 1.2. R ECOMMENDATION OF THE LAW COMMISSION OF I NDIA

In the thirteenth report of Law Commission of India 10, the commission was suggested to provide a statutory definition the term “necessaries”. The commission gave its opinion that“The Director of Legal Studies, Madras, has suggested that the word ‘necessaries’ should be defined. But the word has been judicially interpreted on a number of occasions and it is not necessary to give a statuary definition thereof. The word ‘necessaries’ has been held to include money urgently needed for the requirements of minors and lunatics and is not restricted to what is necessary for elementary requirements, such as, food and clothing. It is now well established that payments or charges connected with legal matters in which minors are concerned would, under certain circumstances, come under the head of ‘necessaries’. We think this term should remain elastic and we are unable to accept the suggestion.” Thus, there is no precise definition of the term necessity provided in the Indian Contract Ac, and can be interpreted for the betterment of the parties in the light of equity and justice.

10

The Law commission of India, Thirteenth Report, ¶ 89


Page 17


1.3. THAT THE DEFENDANT IS LIABLE TO R EIMBURSE THE PLAINTIFF AS PER SECTION 68 OF THE

I NDIAN CONTRACT ACT, 1872 Section 6811 of the Indian Contract Act, 1872 clearly states that if a minor is supplied with

necessities, then the minor is liable to reimburse that person with his property. In the recent case of Anagha Prassad v. M.C Abu12 , where the plaintiff, who was minor, borrowed a sum of ₹ 2.5 lakhs from the respondent for her education and assured the respondent that she will return the money when she will get the education loan, later on both the parties entered into an agreement and the plaintiff acknowledged the debt and stated that she had got the education loan and also gave ₹ 10,000 to the respondent and further give three cheques to the respondent. But later on it was found that there was no money in the account of the minor. Kerala High Court while adjudging this case concluded that: “The principle underlying in the Section is that where a person incapable of entering into a contract (it includes a minor also) or any other person whom he is legally bound to support, is supplied by another person with necessaries, the supplier is entitled to be reimbursed out of the property or estate of the incapable person. The liability here is not to pay the agreed price, but to reimburse. In the case of a minor, he is not personally liable, but his property will be liable. The Section applies to minors and also to persons of unsound mind. That is evident from the illustrations given to the Section. It is therefore clear that the Section will not apply where necessaries have been supplied to someone, who is a person competent to contract. Even though by virtue of the section it can be contended that the petitioner's liability to reimburse the 1 st Respondent may be enforced against her property.”

11

Sec 68 of Indian Contract Act, 1872: Claim for necessaries supplied to person incapable of contracting, or on his accountIf a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person. 12 ILR 2014(4)Kerala175


Page 18


Thus from the above stated interpretation it is clear that the minor is liable to reimburse the person who supplied the minor with the necessities. In the case of Watkins v. Dhunoo B aboo13, the plaintiff, a high court attorney brought a suit against the defendant, a minor for the payment of debt of ₹1,469 for defending a suit for the defendant. It was held that the minor is liable to reimburse the plaintiff as this debt come under the purview of necessity. In the case of Nardan Prasad v. Ajudhia Prasad 14, it was held that the money advanced to a minor for marriage of his sister is recoverable under Section 6815 of the Indian Contract Act, 1872. In the above mentioned case, the Hon’ble Court expressed that even the expenses for a marriage can come into the purview of necessity. While, in the present matter the defendant entered into the agreement in order to ensure her means of livelihood and to sustain her own life, which hold a great significance in her life. Thus the present matter should be considered as a necessities supplied to the defendant by the plaintiff and hence the plaintiff is entitled for the reimbursement of the expenses incurred by him.

13

(1881) ILR 7 CAL 140 (1910) ILR 32 ALL 325 15 Supra at note 11 14


Page 19


ISSUE 2: THAT THE DEFENDANT IS BOUND TO RESTORE THE BENEFITS TO THE

PLAINTIFF It is humbly and respectfully submitted before the Court that the defendant is bound to restore the benefits to the plaintiff in the matter. Section 1116 of the Indian Contract Act, 1872 states that a person who has not attained the age of

majority17 is incompetent to contract and an agreement so formed is void ab initio18. In the suit filed the defendant was of the age sixteen (16) years at the time of contract and so was a minor and thus making the agreement void. In a transaction between a major and a minor, where the minor seeks unfairly to retain the benefit under the transaction while setting up its invalidity (and particularly in the case of a minor fraudulently misrepresenting his age) the English courts have not allowed the minor to retain the unfair advantage under equity.19

2.1. R ECOMMENDATION OF THE LAW COMMISSION OF I NDIA

In the thirteenth report of Law Commission of India20 the question was raised as to how far in the case of a minor’s agreement procured by the concealment of his age, the Court will relieve the other party to the agreement from the effects of the fraud.

16

Sec 11 of Indian Contract Act, 1872: Who are competent to contract — Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject. 17 Sec 3 of Indian Majority Act, 1875: Age of majority of persons domiciled in India. — (1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. (2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. 18 Mohori Bibee v. Dhurmodas Ghose, (1902-03) 30 IA 114: ILR (1903) 30, where the contracts with minors were declared void ab initio. 19 Valentini v. Canali, [1889] 24 QBD 166 20 The Law commission of India, Thirteenth Report, ¶ 35-37


Page 20


The landmark case of Khan Gul v. Lakha Singh21 was examined for this matter and two questions in the case were referred to for decision: 1. Whether a minor who, falsely representing himself to be a major, has induced a person to enter into a contract, is estopped from pleading h is minority to avoid the contract? 2. Whether a party who, when a minor has entered into a contract by means of a false representation as to his age, whether he be defendant or plaintiff, in a subsequent litigation, refuse to perform the contract and at the same time retain the benefit he may have derived therefrom? Sir SHADI LAL CJ giving the majority judgment held in this case“Where an infant has induced a person to contract with him by means of a false representation that he was of full age, he is not estopped from pleading his infancy in voidance of the contract and that Section 11522 of the Evidence Act, 1872 should be read subject to Section 1123 of the Contract Act, 1872. A false representation by an infant that he was of full age, give rise to an equitable liability. The court while relieving him from the consequences of the contract, may in the exercise of its equitable jurisdiction, restore the parties to the position which they occupied before the date of the contract; and The doctrine of restitution which finds expression in Section 4124 of the Specific Relief Act, 1877 is not confined to the cases covered by that section and rests upon the principle that an infant cannot be allowed to take advantage of his own fraud. This doctrine is applicable whether the minor is the plaintiff or the defendant.” 21

ILR (1928) 9 Lah 701, 715-19 Sec 115 of Indian Evidence Act: EstoppelWhen one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. 23 Supra at note 15 24 Sec 41 of Specific Relief Act, 1877: Power to require party for whom instrument is cancelled to make compensationOn adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require. 22


Page 21


In arriving at the above conclusions, the learned Chief Justice emphasized that the Court in granting the above relief does so, not because there is a contract which should be enforced but because the transaction. This is not the performance of the contract but the negation of it. The Report thus expressed its opinion25 that“Pollock and Mulla have expressed the view that the judgment of Shadi Lal CJ, in the Lahore case is correct and we share this view. Indeed, we have already expressed our preference in favour of the judgement of Shadi Lal CJ, in our report on the Specific Relief Act. We agree with the proposition that in ordering compensation, the Court is not giving effect to a contract but is doing its best to put the parties, so far as possible, in the position which they occupied before the void transaction took place and from which one of them was induced to depart by reason of the minor’s fraud. This view appears to be more in consonance with the principles of equity and justice. It appears to us incongruous that while sections 38 and 41 of the Specific Relief Act apply to cases of minors, the principles underlying those sections should not be applicable to cases under the Contract Act. We feel that the Judicial Committee had not correctly interpreted section 65 and we are of the opinion that an agreement is ‘void’ or ‘is discovered to be void’ even though the invalidity arises by reason of the incompetency of a party to a contract. We recommend that an Explanation be added to section 65 to indicate that the section should be applicable where a minor enters into an agreement on the false representation that he is a major .” The Law commission of India thus observed that restoration of status quo ante would not amount to the enforcement of the void contract against the defendant. This recommendation was followed by the legislature and the new Specific Relief Act of 1963 replaced the previous one.26

25

The Law Commission of India, Thirteenth Report, ¶ 37 Specific Relief Act, 1877

26


Page 22


2.2. THAT THE DEFENDANT IS LIABLE TO R ESTORE THE BENEFITS U NDER SECTION 33 OF THE

SPECIFIC R ELIEF ACT, 1963 Section 3327 of the Specific Relief Act, 1963 gives the court power ‘to make any compensation

which justice may require’ to the party to whom the relief is granted in the cases where cancellation of a void or voidable written instrument is ordered. The section embodies the principle that he who seeks equity must do equity. This provision is applicable to cases where a transaction is held to be void, and compensation is to be made for the benefit derived under that transaction. Sub-section 2(b) 28 of the aforesaid section applies where the defendant successfully resists any

suit on the ground that the instrument is void because he was incompetent to contract at the time the contract was made, in which case he may be ordered to restore to the other party, as far as may be, any benefit received under the agreement, to the extent he or his estate has benefitted thereby. The interpretation of the above clause as given in Contract and Specific Relief by Dr. Avtar Singh is as follows: “Sub-section (2)(b), provides that, if a minor is brought before the court as a defendant, he can be compelled to account for such portion of money or anything else received by him as

27

Sec 33 of Specific Relief Act, 1963: Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable. — (1) On adjudging the cancellation of an instrument, the court may require the party to whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require. (2) Where a defendant successfully resists any suit on the ground — (a) that the instrument sought to be enforced against him in the suit is voidable, the court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it; (b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby. 28 Ibid


Page 23


has gone to benefit him personally, such as education or training, or has resulted in an accretion to his estate.”29 In the case of Nivarti Govind I ngale and Ors v. R evanagouda Bhimanagouda Patil 30 , Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Pascayapur Village of Karnataka. According to her, she, with a view to dig a well in the same land, had obtained a loan in the year 1961 from the father of the respondent, a sum of ₹1,000. Since she was not in a position to complete the digging of the well, she approached again for a sum of ₹2,000 to complete the well. The respondent's father who was a constable had advanced the money on the condition that she would execute the sale deed in favour of his minor son i.e., the respondent. Accordingly, she executed the sale deed with an agreement of re-conveyance which was executed on August 31, 1961. She stated that she has paid from time to time a sum of ₹7,000 and had asked the respondent to execute the re-conveyance but the respondent did not execute the deed of re-conveyance; consequently, she filed the suit for specific performance. The High Court found that since the agreement of re-conveyance was not for the benefit of the minor, the decree for specific performance cannot be granted. The petitioner then filed a special leave petition in the Supreme Court. The Apex Court held that: “…we find no force in the contention. The appellants have been seeking the remedy in the civil suit; therefore, the subsequent purchaser is bound by this decree of specific performance and liable to re-convey the property to the appellants. The decree of the trial Judge is accordingly restored and that of the High Court and the Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent may be sought in an appropriate action.”

29

Singh, Avtar, Contract and Specific Relief , 11th Edition,2013, Pg no. 157, ¶ 2 30 (1997) 1 SCC 475.


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In the case of Abdul Maji d Said and Ors v. R amiza Bivi Sahiba and Ors31, it was held that: “W here the minor’s estate is benefitted by the purchase money and if that deed was cancelled that the minor is liable to restore the benefits.” In the case of Mt. H amidan B ibi v. Nanhe Mal and Anr 32, Justice SEN, while cancelling the land deed in the favour of the plaintiff, observed that the plaintiff “should make good the benefit which she had received ”, and order ed the plaintiff to restore the benefits he had obtained from the agreement. In the case of Varghese v. I ype K uriakose and Ors33, the plaintiff filed a suit to cancel a sale deed signed by him during the minority, the lower court cancelled the suit and issue no restoration but the High Court overruled the Lower Court’s judgment and held that the plaintiff is entitled to get the possession of the property but have to restore the benefits he received from the defendants. In the case of Pearce v. Brain 34, the plaintiff, a minor, who was trading goods for others, was not permitted by the court of law to recover the goods back while retaining the benefit obtained by trading them. Similarly, in the present matter, the defendant takes a loan from the plaintiff and asks him to continue the construction of the swimming pool which the plaintiff does and completes the pool, where the defendant successfully hosts a party. But at the time of returning the money she does not fulfill her promise. Now the defendant has enjoyed the benefit while the plaintiff suffered a loss. So under the aforesaid section of the Specific Relief Act, 1963, the plaintiff is entitled to recover the benefits procured by the defendant due to the agreement.

31

AIR 1931 MAD 468 AIR 1933 All 371 33 AIR 1973 Ker 267 34 (1929) 2 KB 310 32


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2.3. THAT THE DEFENDANT IS LIABLE TO R ESTORE THE BENEFITS U NDER SECTION 65 OF THE

I NDIAN CONTRACT ACT, 1872 Section 6535 of the Indian Contract Act, 1872 also contains the principle of restitution, where,

after a benefit has been received, and the agreement is later discovered to be void, or when the contract becomes void, viz., as provided under Section 32 or 56 of the Indian Contract Act, 1872. This section aims at preventing unjust enrichment. The intention of the section is to prevent a party from avoiding an agreement and retaining the benefits received under it and it ‘applies to agreements that are void ab intio’.36 In the case of Dyaviah and Anr. v. Shivamma and Anr 37, Justice MALIMATH held that: “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.” This clause requires that a proposal should be made by one person and assented to by another in order to constitute a promise. There is no thing to indicate that the word "person" used in this clause necessarily implies that he must be a major. If a minor enters into an agreement, it may not become a contract by reason of Section 11 but it may nevertheless be an agreement. In view of this discussion, it is difficult to accept that the word agreement used in the first part of Section 65 indicates that it must have been entered into by a person competent to contract i.e., by one who is a major. It is wide enough to include cases where the agreement was entered into by a minor also. In that case, no doubt, the agreement is unenforceable in law and is, therefore, void. Even then, it comes within the ambit of the provisions of Section 65.

35

Sec 65 of Indian Contract Act, 1872: Obligation of person who has received advantage under void agreement, or contract that becomes void. — When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. 36 Harnath Kaur v. Indar Bahadur Singh, AIR 1922 PC 403; Madura Municiplality v. Raman Servai, AIR 1936 Mad 98; Govind Keshav Dandavate v. Yeshwant Pandharinath Shete, AIR 1941 Bom 378 37 AIR 1959 Kant 188


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In the case of Thakuri an Harnath Kaur v. Thakur I ndar Bahadur 38, the contract was found not enforceable in the court of law due to absence of free consent as the consent was obtained by the undue influence. The lordship held that the though the contract is void, the plaintiff was entitled to recover the compensation under section 65 of the Indian Contract act, 1872. In the case of R am Nagina Singh v. G overnor-G eneral in Council 39, it was held: “In the case of agreements, Section 65 applies only to cases where benefit or advantage is derived under an agreement before it is discovered to be void. If the benefit is received after the agreement is discovered to be void, then the advantage cannot be said to have been received under the agreement. Section 65 embodies and is an expression of the principle of restitution and of prevention of unjust enrichment." In the case of Walidad K han v. Janak Singh40, ‘…certain Zamindari property was sold to persons who were minors on the date of sale. The purchasers were subsequently ousted by reason of a decree obtained by third Parties.’ It was then held that the purchasers were, at any rate, entitled to recover from the vendors the sum which they had paid as purchase money. Similarly in the present matter, the agreement was void, yet the defendant received the benefits from the agreement. So as per the aforesaid section41, the defendant is liable to restore the benefits to the plaintiff.

38

AIR 1922 PC 403 AIR 1952 Cal 306 40 ILR 35 All 370 41 Sec 65 of Indian Contract Act, 1872 39


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PRAYER

Wherefore, in the lights of the facts stated, issues raised, arguments advanc ed, and authorities cited, this Court may be pleased to adjudge and declare that: 

The Contract is Valid and Enforceable.



The Defendant is Liable to restore the benefits acquired by her.

And/Or to pass any other order(s) that this Court may deem fit in the larger interest of

“

justice.

”

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

For this act of kindness, the Plaintiff shall duty bo und forever pray.

Dated: ___ February 2016 S/d(Counsel for the Plaintiff)


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Plaintiff Final (1)

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