2nd MATS INTRA MOOT COURT COMPETITION, 2019
IN THE HON’BLE COURT OF CIVIL JUDGE AT WASSEYPUR
IN THE MATTER OF:
Mr. Ramadhir Singh ………………. Petitioner
Versus
Mr. Akhandha Singh …………… Respondent
PETITION NOS. ___/2019,
ON SUBMISSION TO THE HON’BLE CIVIL COURT OF WASSEYPUR
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS
COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS
2nd Mats Intra Moot Court Competition, 2019
2nd Mats Intra Moot Court Competition, 2019
LIST OF ABBREVIATIONS
AIR All India Reporter
All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
DW Defense Witness
Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
IT, Act The information and technology Act,2000
p. Page No.
P&H Punjab and Haryana High Court
Pat Patna High Court
PW Prosecution Witness
I&T Information and Technology
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus
2nd Mats Intra Moot Court Competition, 2019
INDEX OF AUTHORITIES
STATUTORY COMPILATIONS
1. THE SPECIFIC RELIEF ACT, 1963.
2. THE INDIAN CONTRACT ACT, 1872.
3. THE INDIAN MAJORITY ACT, 1875.
DICTIONARIES
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th eD. 2001).
2. P. RAMANATHA AIYER, THE LAW LEXICON (2ND ED. 2004).
3. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009).
4. WEBSTER’S NEW INTERNATIONAL DICTIONARY (1926).
WEBSITES
1. [Link].
2. [Link].
3. [Link].
BOOKS
1. Aiyer, Ramanatha, P., The Law Lexicon, 2 nd ed. New Delhi: Wadhwa and Company
(2004).
2. H.R. Saharay, Dutt on Contract, 9th Edition, 2000, Wastern Law House, New Delhi. \
3. Mallick, Indian Contract Act, 2008, Kamal Law House, Kolkata.
4. Sanjiva Row’s Commentary on The Indian Contract Act, 1872 and Tenders, 2004, Delhi
Law House, Delhi.
5. T.R. Desai, Law relating to Tenders and Government Contracts, 2nd Edition, 2009,
Universal Law Publications, New Delhi.
2nd Mats Intra Moot Court Competition, 2019
CASE INDEX
1. Hari v. Sew AIR 1949 Assam 57
2. Kashiba v. Shripat (1894) 19 Bom 697
3. Kedar Das Mohta v. Nand Lal Poddar AIR 1971 Pat 253 p. 255-256.
4. Lalman Shukla v. Gauri Dutt, (1913) 11 All.L.J. 489
5. Latcharao v. Viswanadham , AIR 1956 AP
6. Peters v. Flemings (1840) 6 M&W 42
7. Peters v. Flemings (1840) 6 M&W, 42
8. R. V. Clerk, (1927) 40 CLR
9. Rajubala Dasi v. Nidhurama Pandit AIR 1960 Cal 65
10. Rajubala Desi v. Nidhurama Pandit AIR 1960 Cal 65
11. Ritesh Aggarwal v. SEBI, (2008), 8 SCC 205
12. Williams v. Carwardine (1833) 4 B. & Ad. 621
13. Mohori Bibee v. Dhurmodas Ghose, 30IA 114, (1903) 30 cal 539
2nd Mats Intra Moot Court Competition, 2019
STATEMENT OF JURISDICTION
The Counsel on behalf of the Respondent, hereby submits his written statement in the suit for
recovery. The Counsel most humbly and respectfully, submits that this Hon’ble Court has the
requisite subject matter jurisdiction to entertain and adjudicate this matter.
2nd Mats Intra Moot Court Competition, 2019
STATEMENT OF FACTS
1. Akhanda Singh, a sole owner of his immovable property was a minor and Wasseypur High
Court of Hindiana appointed Akhanda Singh’s mother as his legal custodian for all legal
purposes.
2. Ramadhir shingh was a professional money lender in the same city.
3. Ramadhir Singh had given secured a loan amount of Rs. 25000 at 12 % Interest rate per
annum. Akhanda Singh mortgaged his immovable property as a security for the loan
amount of Rs. 25000 to Akhanda Singh, who was a minor and he fully had knowledge
about the incompetency of Akhanda Singh to perform or enter into contract and also that
he was incompetent legally to mortgage his property which belonged to him.
4. Later the minor Akhanda Singh recovered his immovable property from Ramadhir singh.
5. Now Ramadhir Singh filed a suit for recovery of loan amount against Akhanda Singh.
6. Akhanda singh at the time of filing of the suit attained majority as per the laws of Hindiana
Majority Act of 1875.
7. Now the suit is registered before this Hon’ble competent civil court to adjudicate the matter
accordingly.
2nd Mats Intra Moot Court Competition, 2019
STATEMENT OF ISSUES
1. Whether this Present case is maintainable in this Hon’ble Court?
2. Whether Mr. Akhandha Singh was Competent to do contract with Mr. Ramadhir Singh?
3. Whether Mr. Akhanda singh is entitled to pay the claimed amount to Mr. Ramadhir?
2nd Mats Intra Moot Court Competition, 2019
SUMMARY OF ARGUMENTS
1. Whether this Present case is maintainable in this Hon’ble Court?
1. The Counsel on behalf of the Respondent, hereby submits his written statement in the suit
for recovery. The Counsel on the behalf of Respondent humbly submitted before this
hon’ble court that the laws and provisions of the statue are very clear and no scope of this
case is in the eye of a law, hence it is very clear that the case is non Maintainable in this
Hon’ble court.
2. Whether Mr. Akhandha Singh was Competent to do contract with Mr. Ramadhir Singh?
The counsel on behalf of the respondent most humbly and respectfully submits before this
hon’ble court that Mr. Akhandha, was a minor and thus, not competent to contract as per the
provisions of section 10, 11 of the Indian Contract Act, 1872. Thus, a contract entered by him is
void ab initio and he is not entitled to any benefit from such contract.
3. Whether Mr. Akhanda singh is entitled to pay the claimed amount to Mr. Ramadhir?
It is humbly contented before this hon’ble court that Ramadhir was a professional
moneylender and he was full knowledge of the incompetency of Akhanda meanwhile
knowing all the facts he entered into a contract with a minor which was void, hence
Akhanda is not liable to pay any amount to Ramadhir or any compensation to Ramadhir.
2nd Mats Intra Moot Court Competition, 2019
ARGUMENTS ADVANCED
ISSUE-I
WHETHER THIS CASE IS MAINTAINABLE IN THIS HON’BLE COURT?
2. It is humbly submitted before this Hon’ble court that this case is non maintainable in this
Hon’ble Court The jurisdiction of Civil Court is defined under Section 9 C.P.C. as follows:
― Section 9: 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. Explanation I.- A
suit in which the right to property or to an office is contested is a suit of a civil nature, The
Courts obviously mean Civil Courts as C.P.C. applies on Civil Courts only. The preamble
of the C.P.C. is to the following effect: - ‗An Act to consolidate and amend the laws
relating to the procedure of the Courts of civil judicature. ‘
3. Section 9 only deals with the jurisdiction of the Court to try suit. However, for instituting
a suit two pre-requisites must be fulfilled. The first requirement which is ‗fundamental to
the maintainability of a Civil Suit is the existence of a cause of action‘ as held in Bharat
Aluminum Co. v. Kaiser Aluminum Technical services Inc. 2012 (9) SCC 552, para 173.
The cause of action must be live; neither dead nor in the womb. In para 175 of the same
authority it has been held that cause of action should not be contingent / speculative. If the
plaint does not disclose a cause of action, it shall be rejected at the threshold under order 7
2nd Mats Intra Moot Court Competition, 2019
rule 11(a) C.P.C. It has also been held that suit only for temporary injunction is not
maintainable.
4. The other pre requisite for instituting a suit is that the plaintiff must have right to sue. As
far as right to sue is concerned it is a common law or inherent right. Unlike appeal right to
sue need not be provided and has generally not been provided by any statute. Certain
statutory provisions only recognize the right of aggrieved party to
5. Institute suit. In Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126 para 15 it has been held as
follows: ―There is an inherent right in every person to bring a suit of a civil nature and
unless the suit is barred by statute one may, at one‘s peril, bring a suit of one‘s choice. It is
no answer to a suit, howsoever frivolous the claim, that the law confers no such right to
sue. A suit for its maintainability requires no authority of law and it is enough that no
statute bars the suit.
6. In Shiv Kumar Chadha v. Municipal Corps. Of Delhi, 1993 (3) SCC 161 it was held that
under classical law the position is that where there is a right there is a remedy. The position
regarding special Acts creating rights and liabilities was also clarified in same para 11
which is quoted below: ―11. In the olden days the source of most of the rights and
liabilities could be traced to the common law. Then statutory enactments were few. Even
such enactments only created rights or liabilities but seldom provided forums for
remedies. The result was that any person having a grievance that he had been wronged
or his right was being affected, could approach the ordinary Civil Court on the principle
of law that where there is a right there is a remedy-ubi jus ibi remedium. As no internal
remedy had been provided in the different statutes creating rights or liabilities, the
ordinary Civil Courts had to examine the grievances in the light of different statutes.
2nd Mats Intra Moot Court Competition, 2019
With the concept of the Welfare State, it was realised that enactments creating liabilities
in respect of payment of taxes obligations after vesting of estates and conferring rights
on a class of citizens, should be complete codes by themselves. With that object in view,
forums were created under the Acts themselves where grievances could be entertained
on behalf of the persons aggrieved. Provisions were also made for appeals and revision
to higher authorities.
7. The Counsel on the behalf of Respondent humbly submitted before this hon’ble court that
the laws and provisions of the statue are very clear and no scope of this case is in the eye
of a law, hence it is very clear that the case is non Maintainable in this Hon’ble court.
ISSUE-II
WHETHER AKHANDHA SINGH WAS COMPETENT TO DO CONTRACT WITH
RAMDAHIR SINGH?
8. The counsel on behalf of the Respondent most humbly submits before this Hon’ble Court
that Mr. Akhandha Singh was not competent to contract as per the provisions of the Indian
Contract Act, 1872. According to Section 10 of the Indian Contract Act, 1872 all
agreements are not contracts. Only those agreements are contracts that are made by parties
who are competent to enter into a contract.1 Further, the word ‘competent’ has been
described in Section 11 of Indian Contract Act; it is inclusive of 3 essentials-
The person should be of the age of majority; that is to say, 18 years2
1
Sec 10, Indian Contract Act, 1872
2
See the Indian Majority Act, 1875
2nd Mats Intra Moot Court Competition, 2019
He should be of sound mind at the time of making of contract.
He should not be disqualified from contracting by any law to which he is subject.
It can be said that majority is an essential before entering into a contract.
9. The counsel humbly submits before this hon’ble court that as Mr. Akhanda was a minor at
the time of a contract, he had not in a same sense which not consented to any contract and
the agreement is not for to supply necessities to the minor, thus it is not a valid contract.
THAT MR. AKHANDA WAS A MINOR:
10. The counsel humbly and respectfully submits before this hon’ble court that in this present
case Mr. Akhanda did a contract when he was minor, being a minor as per section 11 of
Indian Contract Act, 1872 was not competent to contract under the Indian Contract act,
1872.
DETERMINING MAJORITY:
11. Age of majority, according to section 11, Indian Contract Act, 1872 3 shall be determined
according to law to which the person is subject. Therefore, if there is a difference between
provisions of Indian Majority Act, 1875 and those of personal law to which the person is
subject, his personal law will prevail and over-ride those of Indian Majority Act, 1875.4
12. In the case of Kashiba v. Shripat5 the honourable court dealt with the case of a 16 year old
Hindu widow. It was held that “her capacity to contract shall be regulated by Indian
3
‘Who are competent to contract –Every person is competent to contract who is of age of majority according to the
law to which he is subject, and who is of sound mind and is not disqualified form contracting by any law to which
he is subject.’
4
H.R. Saharay, Dutt on Contract, p. 231.
5
(1894) 19 Bom 697
2nd Mats Intra Moot Court Competition, 2019
Contract Act, 1872 being the law of her domicile and she being a minor was not liable
under the bond.6
AGE OF MAJORITY UNDER THE INDIAN MAJORITY ACT, 1875:
13. A person who has not attained the age of majority is a minor. Section 3 of the Indian
Majority Act, 18757 provides that a person is deemed to have attained the age of majority
when he completes the age of 18 years.
14. Thus, the counsel on behalf of the respondent humbly and respectfully presents before this
hon’ble court that as Mr. Akhanda not attended the age of majority at a time of contract,
he was a minor and thus incompetent to contract under the Indian Contract Act, 1872.
NATURE OF MINOR’S CONTRACT:
15. The counsel on the behalf of the respondent most humbly and respectfully submits before
this hon’ble court that a minor is incompetent to enter into a contract and any contract
entered by him is void-ab-initio.8
16. In the case of Mohori Bibee v. Dharmodas Ghose9, in 1903 and Latcharao v.
Viswanadham10 it was held by the hon’ble court that, “as a minor cannot enter into a
contract, contract with minor is void ab inotio.”
6
Sanjiva Row’s Commentary on The Indian Contract Act, p. 649.
7
Section 3 in The 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.’
8
Mohori Bibee v. Dharmodas Ghose(1903) I.A. (P.C).
9
Supra8
10
AIR 1956 AP
2nd Mats Intra Moot Court Competition, 2019
17. In the case of Rajubala Dasi v. Nidhurama Pandit11 , it was held by the hon’ble court that,
“a contract is specifically enforceable against a minor if he has reaped any benefit under
the contract. Even though a minor cannot enter into a contract, yet, guardian of a minor can
validly enter into contract on his behalf.”12
18. In the case of Ritesh Aggarwal v. SEBI13 it was held by the hon’ble court that, “a contract
must be entered into by a person who can make a promise or make an offer. Else, the
contract will be void as an agreement which is not enforceable under law is void. Thus,
minors cannot enter into a contract.”14
19. For a contract to be valid, parties to contract must have a free consent. Consent is defined
under section 13 of Indian Contract Act, 187215 as agreement between two or more people
upon the same thing in the same sense. Mutual consent is essential for every agreement
and agreement is generally essential for formation of contract. Therefore, no binding
contract can be formed if there is no consensus ad idem.
20. Thus, it is most humbly submitted before this hon’ble court that as a minor is not competent
to give a valid consent, hence contract with Mr. Akhanda is void as it does not fulfil the
conditions specified under section 10 and 13 of the Indian Contract Ac, 1872.
21. In this present case as Akhanda singh was a minor when entered into a contract with
Ramadhir singh from the above submission it is very clear that the entered contract with
11
AIR 1960 Cal 65
12
T.R. Desai, Law relating to Tenders and Government Contracts, p. 136.
13
(2008) 8 SCC 205.
14
Supra 6.
15
Section 13, Indian contract Act, 1872: ‘Consent’ defined – Two or more people are said to consent when they
agree upon the same thing in the same sense.’
2nd Mats Intra Moot Court Competition, 2019
minor is void-ab-inotio and hence it has proven that akhanda was incompetent to entered
into a contract with Ramadhir.
ISSUE-III
WHETHER Mr. AKHANDA SINGH IS ENTITLED TO PAY THE CLAIMED
AMOUNT TO Mr. RAMADHIR?
22. It is most humbly and respectfully submitted before this Hon’ble court that Liability to pay
compensation by a minor are under the following heads: - Indian Contract Act, 1872 and
The Specific Relief Act, 1963In the present case there is not Liability of a minor who is
now a major to pay any compensation to Ramadhir singh under the provisions of the laws
as per the heads mentioned above [A] Indian Contract Act, 1872 [B] The Specific Relief
Act,1963 .The question of compensation by a minor under the Indian Contract Act may be
considered under the following heads: (i) Compensation under Sections 64 and 65; and (ii)
Compensation for necessaries under Section 68.
COMPENSATION UNDER SECTIONS 64 AND 65:
23. As regards the question of application of Sections 6416 and 6517 to the case of a person
incompetent to contract and payment of compensation by such incompetent persons there
16
Section 64 of The Indian Contract Act lays down: When a person at whose option a contract is voidable rescinds it,
the other party thereto need not perform any promise therein contained in which he is promiser. The party residing
avoidable contract shall if he has received any benefit there under from another party to such a contract, restore such
benefit, so far as may be, to the person from whom it was received.
17
Section 65 of the Indian Contract Act read as under: When an agreement is discovered to be void, or' 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
2nd Mats Intra Moot Court Competition, 2019
under, it has been settled by the Privy Council in Mohari Bibie v. Dharmadas Ghose18 that
these sections are not applicable to the case of a minor. It has been noted above that in that
case a minor, who had mortgaged his property in favour of a money lender brought an
action for the cancellation of the mortgage deed on the ground that at the time of the
execution of the deed he was a minor, and therefore, the agreement entered into by him
was void. The money lender interalia contended that if the relief applied for was granted
to the minor he should be asked to return the money borrowed by him under Sections 64
and 65 of The Indian Contract Act and the provisions of the Specific Relief Act. As regard
Section 64, the Privy Council held that section was applicable only to voidable contracts,
and since the minor's agreement was void the minor could not be asked under that provision
to return the amount. As regard Section 65, it was observed that this section is also based
on the presumption that there is an agreement between competent parties and that provision
has no application to a case in which there never could have been, any contract.19
24. As it has already been discussed in the last issue that in this present case the contract in
which Akhanda and Ramadhir entered is Void-ab-intio, it has never been a contract in the
eye of a law and relying on the judgement of the Mohari bibie the provisions of section 64
and 65 will not apply in this present case and could not asked to return the money.
COMPENSATION FOR NECESSARIES UNDER SECTION 68:
25. Necessaries does not mean mere necessities of life, but it includes all those things which
are necessary to maintain a person according to his condition in life. According to
Alderson, B.20 Things necessary are those without which an individual cannot reasonably
18
(1903) 301 A 114 (PC)
19
Ibid
20
Chappie v. Cooper, (1884) 13 M and W 252, at 258.
2nd Mats Intra Moot Court Competition, 2019
exist. In the first place, food, lodging and the like. About these there is no doubt. Again, as
the proper cultivation of the mind is as expedient as the support of the body, instruction in
art or trade, or intellectual, moral and religious information may be a necessary also. Again
as man lives in society, the assistance and attendance of offers may be necessary to his
wellbeing. Hence attendance may be the subject of an infant's contract. Then the classes
being established, the subject matter and the extent of the contract may vary according to
the state and condition of the infant himself. His clothes may be fine or corase 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 .Thus, articles of mere luxury are always excluded, though
luxurious articles of utility are in some cases allowed.
26. House given to a minor on rent for living and continuing his studies,21 racing cycle given
to an infant apprentice,22 contract for burial of an infant widow's husband,23 wedding
presents for the bride of a minor,24 amount borrowed by a minor to defend himself in a
criminal case,25 loan to a minor on the mortgage of his property with a view to save his
property from sale in the execution of a decree,26 are some of the examples of necessaries.
If, on the other hand, an infant has already sufficient supply of clothing according to his
conditions in life, supply of further eleven fancy waist coats to him is not the supply of
21
Kunwarlal v. Surajmal, A.I.R. 1963 M.P., 58.
22
Clyde Cycle Co. v. Hargreaves, (1898) 78 LT 296.
23
Chappie v. Cooper, (1844) 13 M W 252.
24
Jagon Ram Marwari v. Mahadeo Prased Salu, ILR (1 909) 36 Cal. 768; Mukundi v. Sarabsukh, ILR (1884) 6 All.
417.
25
Sham Charan Mai v. Chawdhry Debva Singh, ILR (1894) 21 Cal. 872.
26
Kidar Singh v. Ajudhia Parsed, (1883) Punjab Record, Case No. 165. to 522.
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necessaries.27 Similarly, an infant with an income of £500 per annum is supplied a pair of
crystal, ruby and diamond solitaires and an antique silver goblet, such things cannot be
considered to be necessaries.28 One welcome feature of the provision contained in Section
68 is that it permits reimbursement in respect of the necessaries supplied not only to a
person incapable of entering into a contract, but also to a person whom such incapable
person is legally bound to support. Thus if necessaries are supplied to the. wife and children
of a lunatic person, reimbursement for the same can also be claimed.
27. Thus, no quasi contractual obligation of the nature specified under Section 68, Indian
Contract Act, 1872 has been created. Under the Indian Law, the principle of indeditatus
assumpsit or quasi contracts has been incorporated to a limited extent under section 68 of
the Indian Contract Act, 1872.
28. In the case of Peters v. Flemings29 it was held that, “quasi contracts apply only in cases
where necessities are supplied to a minor. Necessities refer to things fit and proper to the
minor.”30
NECESSITIES SUITED TO HIS CONDITION IN LIFE:
29. The provisions of section 68, Indian Contract Act, 187231, apply in cases where some
benefits have been provided by someone to a person incapable to enter into a contract. In
27
Hash v. In Man, (1 908), 2 KB1.
28
Ryder v. Wombeell, (1868) LR 3 Ex. 90 In this context it was observed that certain things like ear rings for a male,
spectacles for a blind person, or a wild animal, cannot be considered as necessaries (p. 96).
29
(1840) 6 M&W, 42.
30
Supra
31
‘Claim of necessaries supplied to person incapable of contracting, or on his account –If a person, incapable of
entering into a contract, or anyone whom he is legally bound to support, is supplied by another person with necessities
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.’
2nd Mats Intra Moot Court Competition, 2019
such cases, expenses of the same can be reimbursed by such person only form the property
of such incapable person. However, in the instant case, no benefits have been provided to
Mr. Akhanda after getting entered into a void contract.
30. Hence, the counsel on the behalf of the respondent most humbly and respectfully submits
before this hon’ble court that no quasi-contractual relationship has been created between
Akhanda and Ramadhir.
COMPENSATION UNDER THE SPECIFIC RELIEF ACT:
31. It is humbly Contended in this Hon’ble Court that in this present case there is no scope of
compensation under the Specific Relief Act, the question of payment of compensation by
a minor under the provisions of the Specific Relief Act 1963, came in for consideration in
many cases. Since cases pertaining to the interpretation of the provisions of Specific Relief
Act 1877, such provisions are being discussed before referring to the provisions of Specific
Relief Act,1963. According to Section 38 of the Specific Relief Act, 1877 the court has
been empowered to grant compensation on judging the rescission of a contract.32 Similarly,
on adjudging any written instrument as void or voidable under Section 39,33 the court has
been empowered by Section 41 to require the party to whom such no relief is given, to pay
compensation to the other party.34
32
Section 38, the Specific Relief Act, 1877, is as follows: On adjudging the rescission of a contract, the court may
require the party to whom such relief is granted to make any compensation to the other which justice may require.
33
Section 39, is as follows: Any person against whom a written instrument is void or voidable, who has reasonable
apprehension that such instrument if left outstanding, may cause him serious injury, may sue to have it adjudged void
or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered. Up and cancelled.
34
Section 41 is as given as under: On 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.
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32. The question of compensation by the minor under Section 41 of the said Act of 1877 came
in for consideration before the Privy Council in Mohori Bibee's case, It was held that under
this provision the court has a discretion to require such party who wants the cancellation
of the instrument to make compensation to the other party, but under the circumstances of
the case since the money had been advanced with full knowledge of the infancy of the
plaintiff, justice did not require the return of such money by the minor.
33. The Allahabad High Court held just the opposite view. According to its decision the minor
can be asked to give relief only if he himself seeks relief from the court, as a plaintiff.
Asking a minor to provide relief to the other party when the minor is the defendant in the
case, in the view of the court, is contrary to the spirit and language of Section 41 of the
Specific Relief Act, 1877. Sulaiman, C.J. While disagreeing with the majority view in
Lahore case, but agreeing with the dissenting judgement of Harrison J. in that case,
observed35 : The learned judge rightly pointed out that Section 41, Specific Relief Act, had
no application because in a suit against an. infant there is no question of- the cancellation
of an instrument and when the minor is a plaintiff, there is a well-known principle that he
who seeks equity must do equity, and therefore held that no suit of this nature, being in its
essence contractual, can lead to an order for restitution by the infant on the ground of his
having dishonestly induced the plaintiff to contract with him to pay money.
34. It is humbly Submitted before this Hon’ble Court that in this instant case as per the fact
provided Mr. Ramadhir had a full Knowledge of the incompetency of Akhanda singh that
he was minor and Mr. Ramadhir had entered into a contract with a minor as per the
provisions of the laws mentioned above in such cases, the court has a discretionary power
35
A.I.R. 1937 All 610 at 617.
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to grant remedy, well just remedy of cancellation is not an absolute right, but the court
exercises discretion in the grant of remedy, the order of restoration of benefit or
compensation is also a matter of right, but of discretion of the court, which must be
exercised according to peculiar facts and circumstances of the particular case. In the case
of Kamta Prasad v. Sheo Gopal36 the court held that, the court may, refuse to order refund
of moneylender who knows that a person is under disability, and yet proceeds to advance
him a loan. In the case of Gurushiddswami v. Parowa Dunadya Narendra37 A court would
never exercise discretion unless there was equity in favour of defendant. Relying on the
above judgements and laws mentioned it is humbly contented before this hon’ble court that
Ramadhir was a professional moneylender and he was full knowledge of the incompetency
of Akhanda meanwhile knowing all the facts he entered into a contract with a minor which
was void, hence Akhanda is not liable to pay any amount to Ramadhir or any compensation
to Ramadhir.
36
(1904) ILR 26 All 342
37
AIR 1920 Bom.269
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PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed before this Hon’ble Court to adjudge and declare that:
1. The Present case is non- maintainable in the Hon’ble court.
2. The contract between Mr. Akhanda who was a minor and Mr. Ramadhir is Void.
3. Mr. Akhanda is not entitled to pay any amount or compensation to Mr. Ramadhir.
4. Mr. Ramadhir is entitled to pay the litigation cost of Mr. Akhanda in this present
case.
And any other order which this Hon’ble Court may be pleased to grant in the interest of justice,
equity and good conscience. All of which is most humbly and respectfully submitted.
Date…… Counsels for the Respondent
Place:
