SYMBIOSIS LAW SCHOOL PUNE, NOVICE MOOT ELEMINATION 2019-20

19010122096
19010122097

SYMBIOSIS LAW SCHOOL, PUNE – NOVICE MOOT

ELIMINATION

2019-20

BEFORE THE HON’BLE

HIGH COURT OF ZIGARO

UNDER SECTION 151 OF CIVIL PROCEDURE CODE, 1980

IN THE MATTER OF

1. KARMAKAR and JAYSHREE BUILDERS AND

PARTNERS DEVELOPERS PVT. LTD
v
2. MR RAWAT
(RESPONDENT)
(PETITIONERS)

UPON SUBMISSION TO THE HON’BLE CHIEF

JUSTICE AND HIS COMPANION

JUSTICES OF THE HON’BLE HIGH COURT OF ZIGARO

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MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

Contents
TABLE OF CONTENTS...........................................................................................................ii

INDEX OF AUTHORITIES....................................................................................................iV

I. CASES REFFERED.....................................................................................................iV

II. STATUTES...............................................................................................................iV

III. BOOKS REFERRED..................................................................................................v

LIST OF ABBREIVIATIONS……………………………………………………………….vi

STATEMENT OF JURISDICTION………………………………………………………vii

STATEMET OF FACTS…………………………………………………………………..viii

ISSUES RAISED……………………………………………………………………………xi

ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?.............xi

[1.1] The civil suit cannot be tried in high court of zigaro as cognizance is barred.........xi

[1.2] the civil should be instituted in the district court as per procedure..........................xi

[1.3] the civil suit be instituted in business place of builders...........................................xi

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement........xi

[2.1] Contract entered into by both the parties under free consent...................................xi

[2.2] Contract is lawful when arbitration included in the agreement................................xi

ISSUE 3: Whether the original contract can be considered to be legally amended on the...xi

occasions alleged by plaintiff or respondent.........................................................................xi

[3.1] Consent not taken by the builders............................................................................xi

[3.2] Breach of contract by builders as time being the essence of the contract................xi

[3.3] Mere silence of builders cannot be considered as acceptance..................................xi

[3.4] Non-performance of contract in the agreed order by builders.................................xi

ISSUE 4: Whether Jayshree builders are liable to pay damages under the law of tort.........xi

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[4.1] Negligence by the builders.......................................................................................xi

[4.1.1] Duty of care not performed by the firm................................................................xi

[4.1.2] Breach of duty to take care....................................................................................xi

SUMMARY OF ARGUMENTS………………………………………………………..xii

ISSUE1: Whether the High Court has territorial jurisdiction to entertain the suit?............xii

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement......xii

ISSUE 3: Whether the original contract can be considered to be legally amended on the..xii

occasions alleged by plaintiff or respondent.........................................................................xi

ISSUE 4: Whether Jayshree builders are liable to pay under law of torts...........................xii

ARGUMENTS ADVANCED………………………………………………………………
xiii.

ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?.........xiii

[1.1] The civil suit cannot be tried in High Court of Zigaro as cognizance is barred.. . .xiii

[1.2] The civil suit should be instituted in the district court as per procedure................xiii

[1.3] the civil suit be instituted in business place of builders.........................................xiii

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement......xiv

[2.1] Contract entered into by both the parties under free consent.................................xiv

[2.2] Contract is lawful when arbitration is included in the agreement...........................xv

ISSUE 3: Whether the original contract can be considered to be legally amended on thexvi

occasions alleged by plaintiff or respondent.......................................................................xvi

[3.1] Consent not taken by the builders..........................................................................xvi

[3.2] Breach of contract by builders as time being the essence of the contract.............xvii

[3.3] Mere silence of builders cannot be considered as acceptance.............................xviii

[3.4] Non-performance of contract in the agreed order by builders.............................xviii

ISSUE 4: Whether Jayshree builders are liable to pay under law of torts..........................xix

[4.1] Negligence by the builders.....................................................................................xix

PRAYER……………………………………………………………………………………xxo

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INDEX OF AUTHORITIES

I. CASES REFFERED

 Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32

 Angile Insulations vs Davy Ashmore India Ltd. And Anr, 1995 (3) SCR 443

 Hakam Singh vs M/S. Gammon (India) Ltd, 8 Jan, 1971 AIR 740, 1971 SCR (3) 314

 Austin Loyd Steamship Company v Gresham Life Assurance Society, [1903] 1 K.B.

249

 A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem on 13 March, 1989 AIR

1239, 1989 SCR (2) 1

 Donoghue v Stevenson [1932] A.C. 562

 Municipal Contract of Delhi v Shubhangwanti, AIR 1966 SC 1750

 Arcos v EA Ronaasen and Son ,1993 AC 470

 Bhudra Chand v Betts ,1915,22 Cal. LJ 566

 Mahabir Prasad V Durga Dutta, AIR 1961 SC 990 B.

 Felthouse v Bindley, 918620 EWHC CP J 35

 I.C.M Airport Techniques vs International Airport Authority of India, 2006 (1)

ARBLR 146(Delhi)

II. STATUTES

 Section 9 of civil procedure code, 1908

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 Sec 15 of civil procedure code, 1908

 Sec 20(3) of civil procedure code, 1908

 Section 13 of Indian contract act, 1872

 Section 14 of Indian contract act, 1872

 Section 26 of Indian contract act, 1872

 Sec 11(2) of Indian contract act, 1872

 Sec 11(6) of Indian contract act, 1872

 Sec 28(1) of Indian contract act, 1872

 Sec 55 of Indian contract act, 1872

III. BOOKS REFERRED

 AKSHAY SAPRE, The Law Of Torts

 SIR DINSHAW FARDUNJI MULLA, The Indian Contract Act

 TAKAWANI, Criminal Procedure Code

 J.N PANDEY, Constitution of India

 ANIRUDH WADHWA, ANIRUDH KRISHNAN; Law of Arbitration and

Conciliation

 MADHUSUDHAN SAHARAY, Arbitration and Conciliation with Alternative

Dispute Resolution.

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL WORD

Anr Another
sec Sec
i.e. That is
Pvt Private
No. Number
C.P.C Civil Procedure Code
AIR All India Report
Art Article
G. O Government Order
JEC Jayshree Engineers Committee
HC High Court
Ltd Limited
SC Supreme Court
Corp Corporation
V Versus
Cal Calcutta

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STATEMENT OF JURISDICTION

The respondent seeks to challenge the jurisdiction filed by the petitioner in the hon’ble High

Court of Zigaro under section 9 , section 15 and sec 16 of Civil Procedure Code.

Section 9 of Code of Civil Procedure, 1908 reads as:

“The court shall have jurisdiction to try all suits of civil nature excepting suits of which their

cognizance is either expressly or impliedly barred.”

From the present case, in the agreement of the contract it can be inferred that the other civil

courts are barred from the jurisdiction as it is expressly implied in writing in the contract ‘that

the jurisdiction can only be held in the court of Zelhi’.

Section 15 of Code of Civil Procedure 1908 reads as;

“Every suit shall be instituted in the Court of the lowest grade competent to try it”.

This section talks about a certain procedure which need be followed while filing the case in

the court, that is the suit is first required to be tried in lowest degree court. The procedure is

important to prevent bundling up of cases in the superior courts.

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STATEMENT OF FACTS

1. Zuamai, a capital city of Zigaro state faces heavy rainfall in month of May and June which

disturbs the lives of residents so, on June 17, 2017, Government of Zigaro passed an order

saying that all housing societies beyond the local limits of municipal corporation has to

take measures to ensure no damage due to rains.

2. Jayshree Builders and Developers Ltd. have their regional offices in Zuamai and Zigaro

with its Head Office in Zelhi. As per Government Order, the Jayshree Builders invited

tender and the Karmakar and Partners, the engineering firm with head office in Zuamai got

the tender.

3. On 1st September, 2017, Jayshree Builders and Karmakar and Partners entered into

contract where the work had to be finished within one year of contract otherwise the firm

would be held liable for any loss arising on the breach of the contract.

4. According to contract, the parties agreed on unilateral dispute resolution clause, where the

builders will appoint a sole arbitrator or take any other recourse within the jurisdiction of

Zelhi and if any dissonance faced by Karmakars, they have to send a notice to builder and

negotiations will be made accordingly and the payment clause; where it is divided into four

phases i.e. 20%, 30%, 30%, 20%, where first payment will be done within the 15 days and

others will be made within 5 days of approval by the independent engineering comittee

appointed by builders i.e. JEC, where 2 are employees of builders and 4 are recruited for

project and last payment within 3 months of completion. All the technical communication

with respect to work should be communicated to JEC by firm. This clause is agreed to be

lawful and valid consideration within agreement.

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5. On oct 12, 2017, the work of first phase starts and gets completed within 3 months and the

payment gets accordingly. On December 15, 2017, the work of second phase started and

within one month, the firm discovers a new set of pipes laid below the builders’ pipes. The

firm had the option to either sever the new pipes which would also risk the builders’ pipe .

6. The firm sent a mail to JEC regarding this. The JEC responded them to lay a new set of

pipelines above the builders’ pipes at safe distance resulting in easy work and there would

be no difference in two procedures and wouldn’t’t cost anything extra. They also sent an

email to the CEO of builders asking to change the design of the contract from milestone

basis to timeline basis and also asking for payment and went on to sever the new pipes

without the consent. It took 7 months to complete the second phase.

7. The firm started the third phase of building the reservoir as a precautionary measure to

prevent the rain water from overflowing and finished in 40 days. But, in that time the JEC

committee got defunct due to delay in services by the firm which was beyond the

apprehension of builders and in the fourth phase, the firm took another 3 months and still

didn’t connect the reservoir to the main source as they asked for the extra payment; for the

bills of the same were never forwarded to the builders and thus the builders were not

inclined to any payment beyond the agreement.

8. Due to this, Karmakars sends a legal notice to the builders and files a civil suit for breach

of contract in the High Court of Zigaro dated 1-05-2018 directed towards clearance of

payment for the work not completed by them.

9. While the matter was still pending for hearing, the city of Zuamai receives heavy rainfall

for 6 continuous days. The reservoir got almost full on the 3rd day and the builders were

informed about it. If the walls broke or leaked could lead to overflow and destruct 80% of

the homes.

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10. The engineers of the builders tried to decrease the water level, so that it could reach to

the safety mark but was unable to. As the spill way opened the five days of the rain water

gushed out uncontrolled and caused the death of person and damage of movable property

of around 2 crores due to the negligence caused by the firm.

11. The 37 affected parties brought an action against the builder through the secretary of

society, Mr. Rawat under law of torts. Thus, a civil suit was filed by Rawat in High Court

of Zigaro for damage for loss of property and life and the builders filed a written statement

stating the loss was due to inefficiency of Karmakar and Partners and was no negligence

from side of builders.

The High Court joined the two civil suits and the same is pending in the Hon’ble High Court.

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ISSUES RAISED

ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?

[1.1] The civil suit cannot be tried in high court of zigaro as cognizance is barred.

[1.2] the civil should be instituted in the district court as per procedure

[1.3] the civil suit be instituted in business place of builders

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement

[2.1] Contract entered into by both the parties under free consent

[2.2] Contract is lawful when arbitration included in the agreement

ISSUE 3: Whether the original contract can be considered to be legally amended on the

occasions alleged by plaintiff or respondent.

[3.1] Consent not taken by the builders

[3.2] Breach of contract by builders as time being the essence of the contract

[3.3] Mere silence of builders cannot be considered as acceptance

[3.4] Non-performance of contract in the agreed order by builders.

ISSUE 4: Whether Jayshree builders are liable to pay damages under the law of tort

[4.1] Negligence by the builders

[4.1.1] Duty of care not performed by the firm

[4.1.2] Breach of duty to take care

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SUMMARY OF ARGUMENTS

ISSUE1: Whether the High Court has territorial jurisdiction to entertain the suit?

It is contended that the high court doesn’t have the territorial jurisdiction to entertain

the suit under sec 9,sec 15 and sec 20(30) of CPC which talks about the nature of civil

suit, procedure of filing the civil suit and the places of filing the suit as per the cause

of action taken or the business of the respondent.

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement

It is contended that the ordinary legal remedy can be barred by way of an agreement

under sec 13, 14, 26, 11(2) , 11(6) and 28(1) of the Indian Contract Act, 1872 if the

contract entered into by both the parties is under free consent and is considered legal

when the arbitrator is included in the agreement.

ISSUE 3: Whether the original contract can be considered to be legally amended on the

occasions alleged by plaintiff or respondent.

It is admission that the contract can be legally amended on the occasions alleged by

the plaintiff of respondent if there mutual consent between both the parties and there

is no breach of contract by any of the party mentioned in under section 55 of Indian

Contract Act, 1872, where breach is done when time is the essence of the contract.

ISSUE 4: Whether Jayshree builders are liable to pay under law of torts

It is contended that the Jayshree builders are not liable to pay under law of torts as

the negligence was done by the firm, and the duty of care lied to protect the resident

from damages lied with the Karmakar and Partners.

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ARGUMENTS ADVANCED

ISSUE 1: Whether the High court has territorial jurisdiction to entertain the suit?

It is contended that the present suit is not maintainable before the honourable

high court of Zigaro under sec 9, sec 15 and sec 20 of CPC. The contention is

sought to be approved by way of three-fold arguments:

[1.1] The civil suit cannot be tried in High Court of Zigaro as cognizance is barred.

According to section 9 under the CPC, it clearly states that the jurisdiction of civil suit can

be barred if the rule of law is mentioned in the agreement and the cognizance of which

precludes it from being tried in the civil suit.

From the present case, the dispute resolution agreement of the contract it can be inferred that

the other civil courts are barred from the jurisdiction as it is expressly implied in writing in

the contract ‘that the jurisdiction can only be held in the court of Zelhi’.

It is based on the maxim “Expressio unius est exclusio alterius”  (expression of one is

exclusion of the other). This means that as it was expressed in the civil suit about the

jurisdiction in Zelhi, it intends to exclude jurisdiction of all other courts.

Many precedent cases have given their judgements based on this maxim:

As seen in the Supreme Court of India case, where the contract specifies the jurisdiction of

the courts at a particular place and such courts have jurisdiction to deal with the matter, the

court says that an inference may be drawn that parties are intended to exclude all other

courts.”1

1
Swastik Gases (P) Ltd. v. Indian Oil Corp. Ltd., (2013) 9 SCC 32

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Another case where it can be inferred from the judgement that the civil suit can only be tried

in the district court of Zelhi as it was mentioned in the dispute clause and bar other courts to

for trying. 2

[1.2] The civil suit should be instituted in the district court as per procedure

The section talks about the place of suing a case. It says that the rule laid laid down in

the section is a rule of procedure. In accordance with the section 15 of CPC,1908 it is stated

that there is a certain procedure which need be followed while filing the case in the cout i.e

the suit is first required to be tried in lowest degree court, just to bundle up all the cases in the

superior courts.

According to this section, it can be contended that in the present case, the suit should have

been first filed in the lowest degree of court.

[1.3] the civil suit be instituted in business place of builders

As per the section 20(3) of CPC, 1908, it states that:

“whether there are two or more defendants, any of them resides or carries on

business or personally works for gain, provided that in such case (a) either the leave

of the court is obtained; or (b) the defendant who do not reside or carry on business

or personally work for gain that place acquiescence in such institution.”

It can be said from this section that when there are two more places where the cause of action

arises or the business takes place or location of work is held, the jurisdiction can take place in

any of the place unless it is mentioned in the agreement.

2
Angile Insulations vs Davy Ashmore India Ltd. And Anr, 1995 (3) SCR 443

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In the said civil suit, it is clearly mentioned in the dispute clause that the builder in case of

dispute can take any other recourse within the jurisdiction of zelhi, so it is admission that the

civil suit should d be filed only in the court of zelhi.

As seen in the judgement of hakim case, where the two parties are in the dispute on issue of

territorial jurisdiction, but the parties in the agreement have agreed that the dispute should be

tried only in the jurisdiction of one of them, the court mentioned in the agreement shall have

jurisdiction.3

In the similar case, where while making the judgement the question that aroused was,” if

one of the parties to the contract is sued by the other in Budapest, he will not take any

objection to its jurisdiction; or, does it mean that the parties mutually agree that, if any

dispute arises under the contract, it shall be determined by the court in Budapest?”.

Eventually, the decision was in favour of jurisdiction being with the courts at Budapest

based on the language used in other provisions of the contract.4

ISSUE 2: Whether the ordinary legal remedy can be barred by way of an agreement

It is contended that the ordinary legal remedy can be barred by way of an

agreement. The contention is sought to be approved by three-fold argument.

[2.1] Contract entered into by both the parties under free consent

From section 13 of Indian Contract Act, 1856,where two persons are said to be in consent

when they agree upon the same thing in same manner and the dispute clause Any

outcome or settlement is understood to be final and binding on both the parties and shall

3
Hakam Singh vs M/S. Gammon (India) Ltd ,(8 Jan,1971) 1971 AIR 740, 1971 SCR (3) 314
4
Austin Loyd Steamship Company v Gresham Life Assurance Society, [1903] 1 K.B. 249

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be recorded in writing, it can be inferred that that while at the time of contract the

conditions of the contract were agreed upon by both the parties,

In the dispute resolution of the contract, it is stated that: The above clause is specifically

agreed to be lawful and validation consideration within the agreement.

In regard to the dispute clause, and sec 23 of contract act, it can be inferred that as the

dispute clause is considerd valid and lawful it is not fraudulent. Also, in relevance to the sec

14 of contract act, it can admission that as the clause is not caused by fraud it is a free consent

between the Karmakars and the builders.

According to sec 11(2) sub-section (6) of the arbitration and conciliation act, 1996

the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

This statement with regards to the dispute clause, it can be said that both the parties had

agreed upon for the builder to solely appoint an arbitrator in case of a dispute.

[2.2] Contract is lawful when arbitration is included in the agreement

According to the section 28 exception (2) of Indian Contract Act, 1856;

This section doesn’t restrain the agreements from legal proceedings when two more persons

agree to refer to arbitration any questions or affect any provision of law as reference to

arbitration. From this exemption clause it can be admitted that, the agreement between the

parties in dispute resolution will not be considered void. Even when the Karmakar and

partners allege to submit their rights to builders to resolve dispute in case of any dissonance,

the contact is still legal as both parties have mutually agreed to refer to arbitration in case of

any disagreement.

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From the judgement of supreme court in a landmark case, it can be inferred that if there is

any jurisdiction clause mentioned in the agreement that restrains the party of legal proceeding

in other court, the agreement will not violate sec 28 of the contract acts. 5

Hence in the civil suit, the agreement in the dispute clause stating “or take any other recourse

within the jurisdiction of zelhi’, though barres the legal right of Karmakars to go to any other

court other than zelhi, doesn’t violate the section 28 of the contract act as exception 2 of

clause is the clause is considered as an exclusionary clause.

ISSUE 3: Whether the original contract can be considered to be legally amended on the

occasions alleged by plaintiff or respondent.

It is contended that original contract can be considered to be legally amended but

only with mutual consent from both the parties. The contention is sought to be

approved by four- fold argument.

[3.1] Consent not taken by the builders

As seen in the present case, it can be inferred from the annexure 2 of email 3 that the firm had

not taken the consent of the builders for changing the design by severing the pipes instead of

laying new pipes on the builders’ pipes as suggested by the firm. This led to more

complications in the work and hence not completing the work on time. In the same annexure,

the firm also asks for extra expenses due the complications made by them, but still does pre

purchases for the second phase without the consent from the builders. the firm tried to

illegally amend the payment clause of the contract as they tried to change the mode of the

payment from the milestone basis to timeline basis; of which the consent was never granted

to them by the builders as seen in annexure 2.

5
A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem, (13March), 1989 AIR 1239, 1989 SCR (2) 1

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[3.2] Breach of contract by builders as time being the essence of the contract

According to the section 37, it is stated that the parties have an obligation to perform duty

according to the contract agreed upon and non-performance leads to breach of contract.

In the present case, in dispute resolution it was mentioned that if any dissonance caused by

the firms, a notice has to be sent to the builders regarding it. But the firm sends directly a

legal notice, which is a breach of contract.

In relation to judgement of a case, the court states that as the act amount to breach in the

conditions of the agreement, the whole contract can lead to breach of contract. 6

The time is the essence of the contract which is also breached by the firm as mentioned in,Sec

55 of Indian contract act, 1872. According the contract agreement between the builders and

the karmakars, it was agreed that the contract should be completed within one year of date of

signing the contract, from september1,2017 to 2018. But the builders were informed on nov

30, 2018, hence the contract considered to be voidable. The firm took 7 months to complete

the second phase due to their mistake as they chose to sever the pipes and hence due to the

breach of contract the contract is voidable by the defendant.

In the leading judgement of case, it said that, if extention of time asked for more than what is

mentioned in the contract and still the work is not completed, the aggrieved party can sue ofr

breach of damages.7

In another supreme court case, the judgement was given in accordance with time of payment

and arranging other things. These were given more importance.8

6
Arcos v EA Ronaasen & Son, [1933] AC 470
7
Bhudra Chand v. Betts, (1915) 22 Cal. LJ 566
8
Mahabir Prasad Vs. Durga Dutta, AIR 1961 SC 990 B.

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[3.3] Mere silence of builders cannot be considered as acceptance

It is implied that mere silence by the builders on an issue cannot be inferred to be acceptance.

In email 4, annexure 2 the builders mention that “they will look into the matter” of the extra

payment and time. But it was not expressly or impliedly stated by builders about consenting

for their condition

Instead, in the annexure 2 of email 3 the firm had wrongly said in the contract stating that,

“your office may kindly be pleased to release the part payment of second phase’. Even in

e mail 2, the builders have nowhere talked about the time and the payment. So, the

information was deceived by the firm just to get extra payment and more time.

Due to this the 15% of the payment was made by the builders, and that was not the extra

payment but the pre-payment of the second phase. So, there was no implied acceptance also

given by the builders.

In reference to judgement given, it says that one cannot impose an obligation on another to

reject one's offer. This is sometimes misleadingly expressed as a rule that "silence cannot

amount to acceptance".9

[3.4] Non-performance of contract in the agreed order by builders

In accordance with the section 52 of Indian contract act, the order of the reciprocal promises

is fixed in the contract. In the present case, the order mentioned in the payment clause was

that the work has to be initially done by the firm and the payment will be done accordingly by

the builder as per the contract. But in the annexure 4 of email 8, it is clearly mentioned that

the builder restricts from doing the complete work of connecting the shaft of the reservoir to

the main source and asks for the pre-payment and extra payment of the work not done.

9
Felthouse v Bindley, (1862) EWHC CP J 35, 

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And according to section 53, the contract becomes voidable at the choice of the builders and

the firm will be held liable for the loss of 2crore happened to the people of housing societies

and the death of the person.

A judgement of the case which talks about the section 52 of the contract comes to the

conclusion that the nature of transaction has to be determined by the order in which promises

had to be performed as per the contract.10

ISSUE 4: Whether Jayshree builders are liable to pay under law of torts

It is contended that the Jayshree builders are not liable to pay the residents damages under

law of torts. The contention is sought through following argument,

[4.1] Negligence by the builders

Under law of torts, negligence is defined as the failure to exercise standard of care which the

doer as a reasonable man should have exercised in the circumstances.

I admission to this statement, the Karmakar and partners are negligent in law of torts as they

failed to perform the standard of care, that is to complete the work on time. the firm failed to

connect the shaft of the reservoir to the main source which the firm should have done

reasonably and also the reservoir built was not efficient enough to control floods.

[4.1.1] Duty of care not performed by the firm

One of the essential conditions of liability of negligence is the duty of care towards the other

party. Firstly, duty of care towards the residents was with builders as the private rights of the

land of Jayshree homes was with the builders. but when the tender of the firm was accepted,

the duty of care shifted towards the Karmakar and partners. Thus, the Karmakar and partners

owned a legal duty towards the residents of Jayshree homes and are considered liable for the

damages caused to the residents.

10
I.C.M airport techniecs vs International Airport Authority of India,2006(1)ARBLR146(Delhi)

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According to the judgement in Donoghue V Stevenson case, the the party was liable on three

groundes i.e negligence, duty of care and neighbour principal.11 This case explains who is a

neighbour, the person who are so closely and directly affected by the act that it is ought

reasonably to have them in contemplation as being so affected.

[4.1.2] Breach of duty to take care

According to tort of law, the breach of duty to take care means the person who has an

existing duty of care should act wisely and not omit or commit any act which he has to do or

not to do.

According to this it can be admission that the firm had failed to perform the duty by not

completing the work i.e. by not connecting the main shaft to the reservoir, on time and is

therefore liable for the damages of 2 crore rupees caused to the residents of the town and is

also liable for the death of the resident. 12

11
Donoghue v Stevenson, [1932] A.C. 562
12
Municipal Contract of Delhi v Shubhangwanti, AIR 1966 SC 1750

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PRAYER

Wherefore, it is humbly prayed to this Hon’ble court that in view of above facts, issues

raised, and arguments advanced , the Hon’ble Court may be pleased to:

 Pass an order dismissing the civil suit filed by petitioner.

 Pass an order directing the petitioner (1), Karmakars and Partners to pay Rs.

2,50,00,000/-. for negligence and breach of duty of care where Rs. 2,00,00,000/-. is

for causing the death of person and damage of movable property and Rs. 50,00,000 /-.

as compensation for defective breach of contract.

 Pass an order directing the petitioner (1), to reimburse the respondent with Rs.

1,00,000/-. towards expenditure incurred till the date of the filling of reply to this

petition.

Pass any other order/direction that this Hon’ble Court may deem fit in order to

uphold the principle of justice, equity and good conscience

And for this act of kindness, the respondent shall forever humble play

Sd/-

Counsel for the petitoner

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