Defendant

TC :

INTRA MOOT COURT COMPETITION ICFAI LAW SCHOOL, THE ICFAI UNIVERSITY, DEHRADUN Before THE DISTRICT COURT OF DWARKA

Filed under Article 96(1) of CPC,

Mr. Kharak Singh

..Plaintiff

v.

Cockroach (P) Ltd.

...Defendant

Humbly submitted by the counsels appearing on the behalf of the defendant

Memorial on the behalf of defendant

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TABLE OF CONTENTS Index of Abbreviations..........................................................................................Page3 Index of Authorities...............................................................................................Page4 Statement of Jurisdiction........................................................................................Page5 Statement of Fact....................................................................................................Page6 Statement of Issues................................................................................................Page8 Summary of Arguments..........................................................................................Page9 Arguments Advanced................................................................,,,,..........................Page 11 Issue 1: Whether there is a contract between the parties or not?............................Page11 [1.1] There was no binding contract between the parties......................................Page11 [1.2] The word of advertisement doesn’t amount to promise.................................Page12h Issue 2. Whether the claim file by Kharak Singh is valid or not?........................... [2.1] Whether the contract is void ab initio making the claim invalid? [2.2] Whether there arises a question of specific performance or not? Issue 3. That Cockroach Pvt. Ltd. is not liable to pay compensation. [3.1] That the company cannot be held liable solely on the basis of the Plaintiff’s presumption. [3.2] That there is no liability of the company because there was no valid contract between the Plaintiff and the Defendant.

INDEX OF ABBREVIATIONS Memorial on the behalf of defendant

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ICA – INDIAN CONTRACT ACT HONB’LE – HONOURABLE CPC – CIVIL PROCEDURE CODE HC – HIGH COURT

Memorial on the behalf of defendant

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INDEX OF AUTHORITIES CASES: 1. Carlil v. Carbolic Smoke Ball Co. [ (1893) 1. QB. 256

... Page 10

2. Felthouse v. Bindley [ (1862)11, C.B.H.S.899]

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3. Mohori Bibee v. Dharmodas

...Page 11,12,14

4. Alka Bose v. Parmatma Devi

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5. Popat Namdeo Sodanvar v. Jagu Pandu Govekar

...Page13

6.Khan Gul v. Lakha Singh

...Page14

Books Referred: 1. Contract & Specific Relief – Avtar Singh – 12th Edition – Eastern Book Company Publishing 2. The Code of Civil Procedure, 1908 3. The Indian Contract Act, 1872

Website Referred: 1. www.indiankannon.org

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STATEMENT OF JURISDICTION

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STATEMENT OF FACTS 1. A Pharmaceutical Delhi based company, The Cockroach (P) Ltd. Manufactured a Multivitamin capsule “Maggots-M”. The company claimed that these Multi-Vitamins are necessary for health as they are purely health supplements. These Vitamin capsules were made up from minerals and vitamins and are directed towards men’s health. 2. The Pharmaceutical Company made an announcement publically that consumption of one capsule a day can provide immense amount of energy to the body and thus helps to combat tiredness. The price fixed by the Company per capsule at Rs.50/3. The Company in Public Interest released the news that consuming these capsules will enhance the quality of life and strengthen body organs as well. On December 01, 2013, the Company published an advertisement in all the reputed newspapers about all the benefits of “Maggots-M”. Although, there was additional information provided by the Company that these capsules were not been evaluated by FSSAI (Food Safety and Standard Authority of India. ) Also, the Advertisement declared that the capsules won’t be helpful in curing any specific disease and all the disputes arising will be dealt with the jurisdiction Courts in Dwarka, Delhi. 4. On June 15, 2014, the Company published further advertisements that in case any person who consumed these capsules according to the directions given i.e. one capsule per day , and gets sick will be given a reward of Rs. 50,000/5. Mr. Kharak Singh, aged 15 yrs. suffered from severe malnutrition, chronic fatigue syndrome and vitamin deficiency which led to muscle weakness in the entire body system. The doctor advised him to start the intake of Vitamin capsules. When Kharak Singh saw the advertisement of “Maggot-M” capsules that were manufactures by the Cockroach (P) Ltd. On June 15th , he decided to consume those tablets as per the directions given. Kharak Singh accordingly consumed those capsules for a period of 10 months but soon he realised that due to such huge intake of these capsules, his body has become dependent hugely on them and leaving these capsules results in frequent stomach upset, severe allergic reactions, difficulty in breathing, tightness in the chest; swelling of the mouth, face, lips or tongue; feeling of fatigue and weakness of the entire body.

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6. Later on, Mr. Kharak singh realised that after consuming those Capsules and felt better. Meanwhile, The Company raised the prices of the capsules by Rs. 75/- due to it’s huge success in January-2016. 7. Mr. Kharak Singh finally realised that he is addicted to the capsule and his body cannot remain fit without them. Kharak Singh felt deceived by the Pharmaceutical Company and decided to claim compensation of Rs. 50,000/- as was mentioned in their advertisement. 8. The Pharmaceutical Comp. Ignored the claim put up by Kharak Singh and thus after few days, Kharak Singh sent a notice for other damages and the reward of Rs 50,000/9. The officers of the Pharmaceutical Company relied through an anonymous letter denying to accept the fact that the capsule they manufactured got someone sick as they had full confidence on it. Therefore, they asked the Plaintiff to come and test their claim in front of themselves. 10. Kharak Singh decided to take this case to the court and hence this suit.

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STATEMENT OF ISSUES 1. Whether there is a contract between the parties or not? 2. Whether the claim file by Kharak Singh is valid or not? 3. That Cockroach Pvt. Ltd. is not liable to pay compensation.

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SUMMARY OF ARGUMENTS 1. Whether there is a contract between the parties or not? There was no binding contract between the parties. Firstly, the words of the advertisement did not amount to a promise. Secondly, the ad was too vague to make a contract, Thirdly, the terms are too vague to make a contract, Fourthly, a contract requires communication of intention to accept the offer or performance of some overact. 2. Whether the claim file by Kharak Singh is valid or not? The claim filed by Kharak Singh stands invalid. The reason for stating this is based on one very crucial and important fact that the claimant is of the age 15 years making him incompetent to even enter into a contract. Since the contract that was entered upon both the parties i.e. Kharak Singh and the Pharmaceutical Company, Cockroach (P) Ltd. Is void ab initio, therefore the conditions of the contract cannot be enforced at all. Thus, failing this suit all at once.

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ARGUMENTS ADVANCED Issue 1: Whether there is a contract between the parties or not? In the present case, the defendant alleged that there was no contract between the parties. The advdertisment was too vague to make a contract. To form a legally valid contract, the essentials for formation are Offer, Acceptance, Consideration, and Competency. There must be a lawful offer and acceptance for the formation of an agreement. The adjective ‘lawful’ implies that the offer and acceptance must satisfy the requirements of the contract act in relation thereto. In the present case, firstly there was no binding contract between the parties, Secondly; the word of advertisement doesn’t amount to promise. [1.1] There was no binding contract between the parties The defendant contended that there was no binding contract between them and the plaintiff. It essentially means is that they were contesting this claim on the ground that their offer was to the world at large and it was mere invitation to offer. In an invitation to offer, no specific party has the intention to enter into a contract. The seller may enter into a contract with anybody from the public who makes the best offer to him. So, the essence of an invitation to offer is that the offer is actually made by the seller. An invitation to offer ‘evolves’ into a contract in a different manner than an offer. Initially, it is an invitation to offer, say by a display of goods and their prices. When a person makes an offer that is good enough and the seller ‘accepts’ it, it becomes a contract. Unlike offer, which is made by the seller to the buyer. Additionally, the precedent laid down in Carlill v. Carbolic Smoke Balls Company1. In this case, the defendants carried out an advertisement claiming that their product, the “The Carbolic Smoke Ball”, if used three times daily, for two weeks, would prevent cold and influenza, along with an offer to pay a reward of 100£ to anyone who might catch influenza even after using the product as prescribed. It was alleged by the defendant in this case that it was invitation to offer. Furthermore, that there was no explicit contract between the plaintiff and the company was drafted to make them aware that he has decided to undertake that offer. The defendant stated that they didn’t have the ability to check the veracity of the claim of the plaintiff. They stated there may be chances that proper procedure wasn’t followed, or that plaintiff may even lie. So, there is no proper mechanism to check the claims of the plaintiff. 1

[1893] 1 QB 256 Court of Appeal

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Also, the defendant stated that the plaintiff hadn’t provided any consideration which forms an essential part in the formation of the contract. They stated that merely doing an act in private wouldn’t suffice in making that offer a binding document. In the present case, Mr. Kharak Singh was minor and incompetent to enter into a contract, as per the section 11 of ICA, 1872 it is given that who are competent to make a contract which includes the person who is of the age of majority according to the 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. In the case of Mohori Bibee v. Dhurmodas Ghose2, it was observed by Sir Lord North that, “Looking at section 11 their Lordships are satisfied that the act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who is by reason of infancy is incompetent to contract cannot make a contract within the meaning of the act. The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the act, and cannot arise in the case of an infant.” Hence, this contract is void ab inito. [1.2] The word of advertisement doesn’t amount to promise. The contract requires that there should be a communication of acceptance from the offeree to the offeror. The ICA, 1872 defines acceptance in Section 2 (b) as “When the person to whom the proposal has been made signifies his assent thereto, the offer is said to be accepted. Thus the proposal when accepted becomes a promise.” When the proposal is accepted and it becomes a proposal it also becomes irrevocable. An offer does not create any legal obligations, but after the offer is accepted it becomes a promise. And a promise is irrevocable because it creates legal obligations between parties. An offer can be revoked before it is accepted. But once acceptance is communicated it cannot be revoked or withdrawn. For a valid contract the acceptance should be communicated and moreover such communication should be made to the offeror.3 Now, in the present case appelant didn’t communicate his acceptance to the company that he was ready to accept the offer of the company, so since there was no communication of acceptance there was no offer.

2 3

(1903) 30 Cal. 539. Felthouse v. Bindley (1862) 11 Cb (NS) 869, EWHC CP ...

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The terms of the contract are too vague; it may seem that any person may claim that they are suffering from fatigue, weakness, or any disease caused by taking multi-vitamins “MaggotsM” capsules 10 years after using the product. So there is an absence of reasonableness regarding the time period within which the offer shall be in existence. Therefore, it is clear that the word of the advertisement doesn’t amount to promise.

Issue 2. Whether the claim file by Kharak Singh is valid or not? When the defendants, released the advertisement in the public newspaper and on other media channels on December 01, 2013 suggesting and telling the benefits of consuming the “Maggots-M” capsules per day, they made a general offer which was to be completed when anyone would buy those capsules and intake them according to the directions given. This is a form of unilateral contract. An unilateral contract refers to a gratuitous promise where only party makes a promise without a return promise.4. Also, it has been stated in Mohori Bibee V/S Dharmodas Ghose5 that, ny person who is below 18 yrs of age or who has not completed the age of 18 yrs. of age i.e. a minor cannot intend to create contract or make major decisions. According to Section 11, “Every person is competent to contract who is of the age of majority according to the 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.” According to the Indian Majority Act, 1875, the age of majority in India is defined as 18 years. For the purpose of entering into a contract, even a day less than this age disqualifies the person from being a party to the contract. Any person, domiciled in India, who has not attained the age of 18 years is termed as a minor. Let’s discuss the issues coming further in determining the validity of this contract. 2.1 Whether the contract is void ab initio making the claim invalid ? When section 11 of the Indian Contract Act, 1872 is looked upon, it makes the parties’ age an important factor. According to the section, any person below the age of 18 years is not liable to enter into a contract and if it happens, it renders the contract invalid or void ab initio. Since the criterias for a valid contract is not fulfilled so the claim asked is invalid.

4 5

Alka Bose vs Parmatma Devi & Ors on 17 December, 2008 Ilr (1903) 30 Cal 539 (Pc)

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[2.2] Whether there arises a question of specific performance or not? When the contract itself turns out to be invalid so there does not arises any question of specific performance of the contract. A minor's agreement being now decided to be void. It is clear that there is no agreement to be specifically enforced.6 Thus in the present case, there is no obligation on any party for the specific performance of the contract.

Issue 3. That Cockroach Pvt. Ltd. is not liable to pay compensation. [3.1] That the company cannot be held liable solely on the basis of the Plaintiff’s presumption. That Cockroach Pvt. Ltd. Company along with the advertisement of Maggots put a disclaimer stating that the medicine was meant to enhance the life and virality of a person and to diagnose, cure or treat any disease. The company also cleared stated and emphasized on the fact that the Maggots had not been authorized even by the FSSAI. Upon close scrutiny of the advertisement, it can be seen that the company stated that “…to any person who contracts with the increasing fatigue, weakness or any disease caused by taking multi-vitamins “Maggots M” capsules…”. The company specifically stated that the reward shall only be given to those who contract any such abnormality caused by taking the maggots capsules. In the present case, the Plaintiff contracted the abnormalities after stopping the consumption of the capsules, not because of the capsules. It should also be noted that the Plaintiff was already suffering from a significant deficiency in Vitamins before starting to take these capsules, therefore, the abnormalities which the Plaintiff is facing is nothing more than the ones which he would’ve faced had he not started the consumption of the tablets earlier. Therefore, the company cannot be held liable solely on the basis of a presumption that the Plaintiff contracted a condition which he was diagnosed with way before the consumption of the capsules started. Further, it is also very clear in the facts of the case that when the Plaintiff resumed the consumption of the said capsules, he started feeling better, therefore it is clear that the Plaintiff did not get any anomaly from the consumption of the capsules themselves, but the capsules helped him in curing them. The anomalies were in him way before he started the consumption, as is very clear from the facts of the case. 6

Popat Namdeo Sodanvor vs Jagu Pandu Govekar, AIR 1969 Bom 140, (1968) 70 BOMLR 456, ILR 1968 Bom 1245

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[3.2] That there is no liability of the company because there was no valid contract between the Plaintiff and the Defendant. On the very onset, the contract isn’t valid simply because the person making the contract by age is a minor. Section 10 of the Indian Contract Act, 1872 states that:Every agreement is a contract if made by free consent of parties, competent to contract, for a lawful consideration, and a lawful object, and not hereby expressly declared to be void. It is to be noted that Section 10 clearly mentions that competency to contract is an essential to any contract. The Competency of a person to enter into a contract is clearly mentioned in Section 11 of the Indian Contract Act, 1872. It states the following essentials to be necessary for a valid contract:1. Person attained the age of majority 2. Person not of unsound mind 3. Person not disqualified by law The very first of the essentials of Section 11 of the Indian Contract Act, 1872 states that a person who has attained the age of majority can enter into a contract. The Plaintiff in the present case is of 15 years of age, and the age of majority in the country of India is 18 years. 7 Therefore, the Contract isn’t valid because the Plaintiff isn’t of valid age to contract. Further emphasis may be laid on Khan Gul v. Lakha Singh8, and on Mohori Bibi v. Dharmodas Ghosh9, wherein it is specifically stated the a minor cannot enter into a contract. Therefore, the contract isn’t valid. Hence, Cockroch Pvt. Ltd. isn’t liable to pay any compensation whatsoever.

7

Section 3 of the Indian Majority Act, 1875 1928 Lah 609 9 19 M.L.J. 752 8

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_______________________________________________________________ PRAYER_______________________________________________________ Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities citied, the counsel humbly pleads before your lordship to dismiss this appeal or to pass any other such order which the court may deem fit in the light of justice, equity, and in good conscience to which the counsel shall forever be duly bound to.

Sd/(Humbly submitted by the counsels appearing on behalf of the defendent)

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