ARGUMENTS ADVANCED

ISSUE 1

Whether the agreement entered by the complainant and accused in lieu of the repayment of the
loan amount is legally valid?

It is humbly submitted before this Hon’ble Court that the agreement entered by the complainant
and accused in lieu of the repayment of the loan amount is legally valid as it is clear from the
application of section 10 of the Indian Contract Act, 1872. As per the facts of the case the
Complainant had loaned an amount of Rs. 80,000/- on 6 November 2020 (without interest) to the
accused and he (accused) promised to return the same within 2 months. The complainant and
accused had entered into an agreement regarding the aforementioned transaction on 6 November
2020. The terms of the agreement stated that if the accused fails to return the loan amount of
80,000/- within the stipulated time, he shall be liable to work at the complainant’s commercial
establishment for the 30 days without any remuneration as the penalty for delay in the repayment
of the amount. As per section 10 of Indian Contract act all agreements are contracts if they are
made by the free consent of parties competent to contract, for a lawful consideration and with a
lawful object, and are not hereby expressly declared to be void. The above section can be further
broken down in the following parts:

1.1 Offer and Acceptance: The complainant made an offer to loan Rs 80,000 to the accused, and
the accused wilfully accepted the offer by agreeing to the terms of the same. In the case of
Lalman Shukla v. Gauri Dutt (1913) 40 ALJ 489 , the court held that for a valid contract to exist,
there must be a clear offer by one party and an unequivocal acceptance by the other party.
Further the case of Union of India v. Uttam Singh Duggal and Co. (Pvt) Ltd., AIR 1972 Del 110,
The Delhi High Court observed-"When there is variance between the offer and acceptance even
in respect of any material term, acceptance cannot be said to be absolute and unqualified and the
same will not result in the formation of a legal contract."
1.2 Lawful Consideration: The loan amount of Rs. 80,000 serves as lawful consideration for the
contract while the promise to repay the loan within the stipulated time constitutes the
consideration by the accused and the two form the basis of the contract. In Currie v. Misa (1875)
LR 10 Ex 153 the court ruled that consideration must be something of value in the eyes of the
law and could be a benefit to the promisor. Further as per Section 2(d) in The Indian Contract
Act, 1872, when, at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise.

1.3 Legal Capacity: Though the facts are silent on the legal capacity but it is assumed that both
parties involved are presumably competent to enter into a contract, they are of sound mind and
have attained the age of majority. It was held by the privy council in Mohori Bibee v Dharmodas
Ghose(AIR 1903 PC 115) that a contract entered into by a minor shall be considered void.

1.4 Free Consent: Consent must be free from coercion, undue influence, fraud,
misrepresentation, or mistake. There is no indication of the following in the agreement between
the complaint and the accused as per the facts of the case. In the case of Lalman Shukla v. Gauri
Dutt (1913) 40 ALJ 489, the court held that consent obtained through fraud or misrepresentation
renders the contract voidable. It underscored the importance of free consent in contract
formation. Further in case of Daulat Ram v. State of Punjab (AIR 1962 SC 1206) the court
emphasized that consent must be free from coercion or undue influence. Any contract obtained
by coercion or undue influence is voidable at the option of the aggrieved party.

1.5 Lawful Object: The contract's primary object, which is to facilitate a loan for the domestic
needs of the accused, is lawful. In Kedarnath Bhattacharji v. Gorie Mahomed (1887) [ILR 14 Cal
64] the court stated that for a contract to be valid, its object must be lawful. If the object or
consideration of a contract is illegal or against public policy, the contract is void.

In the light of section 10 which is further supported by relevant case laws it is humbly submitted
to the honorable court that the agreement between the complaint and the accused is legally valid.

Further it is humbly submitted to the honorable court by the counsel that the accused should be
held guilty of breach of contract as per section 74 of the Indian Contract Act which states that,
When a contract has been broken, if a sum is named in the contract as the amount to be paid in
case of such breach, or if the contract contains any other stipulation by way of penalty, the party
complaining of the breach is entitled, whether or not actual damage or loss is proved to have
been caused thereby, to receive from the party who has broken the contract reasonable
compensation not exceeding the amount so named or, as the case may be, the penalty stipulated
for.

In Gujarat Maritime Board v. Larsen & Toubro Ltd. (2007) 14 SCC 692 the Supreme Court
emphasized that the court has the discretion under Section 74 to award reasonable compensation
for breach of contract, irrespective of the sum specified in the contract as damages. The court
reiterated that the purpose of Section 74 is to ensure that the aggrieved party is adequately
compensated for the loss suffered due to the breach of the contract.

In Raja Dhruv Dev Chand v. Raja Harmohinder Singh (1968) 3 SCC 297,The Supreme Court
reiterated the principles underlying Section 74 and held that the court has the discretion to award
reasonable compensation for breach of contract. The court emphasized that the primary objective
is to ensure that the aggrieved party is adequately compensated for the loss suffered due to the
breach.

In furtherance of the above argument as per the latest data by The Ministry of Statistics and
Programme Implementation under the government of India Average monthly wage / salary
earnings for the year 2019-2020 of an Indian male living in urban city is 21,624.03. Therefore as
per the following data, the penalty for breach of contract which is non remuneration at the
complaints commercial establishment for 30 days is not disproportionate to the actual loss
suffered by the aggrieved party in fact the complaint is at loss here.

Thus the counsel contends that the contract between the Mr. Mohan Lal (complaint) and Mr.
Suresh Kumar (accused) is valid contact as per the Indian Contract Act, 1872 as it covers all the
relevant aspect of the same.
ISSUE 2

Whether the ex-parte dismissal of the suit by Judicial Magistrate First Class is justified?

It is humbly submitted before this Hon’ble Court that the ex-parte dismissal of the suit by
Judicial Magistrate First Class with respect to the non-appearance of the complaint for one court
hearing and without the issue of summons to the complaint is not justified as per section 256 of
The Code of Criminal Procedure, 1973.

As per Section 256 in The Code of Criminal Procedure, 1973, sub section (1), If the summons
has been issued on complaint, and on the day appointed for the appearance of the accused, or any
day subsequent thereto to which the hearing may be adjourned, the complainant does not appear,
the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless
for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of opinion that the personal attendance of the complainant
is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

As per the facts of the case the complaint was regularly attending the court proceedings but, on
20 March 2023 the case was called several times and nobody appeared from the complainant’s
side. The Magistrate, after marking the presence of accused, dismissed the complaint in default
of presence of the complainant, this dismissal of the complaint due to absence of the petitioner
without issuing any summons to him by the court is in contravention to section 256 of The Code
of Criminal Procedure, 1973.

In the case of M/S Galaxie Plywood Industries [Link]. V. Vijay Kumar 2000 87 DLT 15, The
court considered the certified copy of order sheets and absence of any court notice being served
upon the complaint on the date of dismissal, leading to the conclusion that the default in
appearance was primarily due to the wrong notice of the date, further the impugned order was set
aside and the complaint was restored to its original number with direction for further proceedings
in accordance with the law.
In the case of Manisha Trading Pvt. Ltd. v. State & Others 2001 4 AD (Del), the Delhi High
Court set aside the dismissal of a complaint by the Metropolitan Magistrate due to the absence of
the complainant. The court found that the complainant’s non-appearance was due to a bona fide
mistake in noting the date. Therefore, the court restored the complaint to its original number.

In the case of Continental Papers Ltd. vs Darshan Print Pack Ltd., the court ruled in favor of
Continental Papers Ltd. The court criticized the dismissal of the case at early hours of the day,
acknowledging the chaotic traffic conditions and difficulties faced by parties in reaching the
court on time. The court emphasized that before dismissing a case due to non-appearance, it is
expected to wait till late hours. The petition by Continental Papers Ltd. was allowed.

Thus it is humbly submitted to the court in the light of section 256 of the Code of Criminal
Procedure, 1973 and the supporting case laws that, Mr. Mohan Lal, was not issued a summon on
his absence of the court proceeding and therefore the process of law was not duly followed
making the ex parte dismissal of the suit of the petitioner by Judicial Magistrate First Class is not
justified.

ISSUE 3

Whether the Hon’ble High Court has the jurisdiction to restore the complaint by setting aside the
order dated 20th March 2023 passed by Judicial Magistrate First Class, Indore?

The Council on behalf of Mr. Mohanlal (complainant) most humbly submits that hon’ble High
Court has the jurisdiction to restore the complaint by setting aside the order of Judicial
Magistrate first class; dated 20 March 2023 under section 482 of Cr.P.C which states -

‘482. Saving of inherent powers of High Court-- Nothing in this code shall be deemed to limit
or affect the inherent powers of High Court to make such orders as may be necessary to give
effect to any order under this code, or to prevent abuse of process of any Court or otherwise to
secure the ends of justice'. Hence, it becomes clear that with using this power Hon’ble High
Court can deliver justice to the person who hereby faced injustice during the process of trial.
It is humbly submitted before the Hon’ble Court that in the proposition it is given that after filing
complaint Mr. Suresh Kumar was not attending the proceedings even after receiving summons.
Hence, a bailable warrant was issued by the court against the accused on 15 th November 2022
then he appeared in the court on 2 February 2023. Mr. Mohan Lal regularly attended the
proceedings but was absent on 20th March. The magistrate, after making the presence of accused
dismissed the complaint in default of presence of complainant. Mr. Mohanlal 20 th April 2023
Filing application for restoration of his complaint. By noting that he in advertently noted the date
in his diary as 20th April 2023 instead of 20 th March, [Link] further also stated that the
absence was not intentional, hence, his complaint be restored. The magistrate did not appreciate
his arguments and dismissed his application, 11th June 2023.

The counseling with due respect contends that the denial for restoration of the proceedings even
after giving the reasoning of absence, is not justified. The reasoning which was given by the
complainant for absence duly cleared that it was just a mistake and was not acted intentionally.

Thus, the Hon’ble Court must restore the complaint by setting aside the order of Judicial
Magistrate First Class, Indore. The inherent powers conferred upon the High Court under
section 482of Cr.P.C can be used to prevent abuse of the process of the court or to secure the
ends of justice. The Court also enumerated specific instances where the High Court may
intervene, such as cases where the allegations are patently false or where there is an abuse of the
process of the court.(State of Haryana v. Bhajan Lal 1992 supp(1)SCC 335.)

3.1 Principle of Natural Justice

The two main Natural Justice Principles are as follows. 'Nemo judex in causa sua' is one of these
two principles. The prohibition against bias states that no one should be allowed to assess their
own case. "Audi alteram partem" refers to listening to the other side; nobody ought to be
condemned without being heard. The aim of this principle is a decision cannot be made until
both parties have been heard. This approach is to allow each party a chance to present their own
defense. First of all, Audi alteram partem translates to "hear the other side," "no man should be
condemned unheard," or "before passing any orders, both sides must be heard.

Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988): Here, the Supreme
Court held that the power under Section 482 CrPC can be exercised to prevent abuse of process
of any court or to secure the ends of justice. M. Sundaram Pillai v. R. Shanmugam Pillai (AIR
2012 Mad 169) The Madras High Court held that the ex parte dismissal of a suit due to the
petitioner's absence from one court hearing was unjustified. The Court stressed the importance of
giving the petitioner an opportunity to explain their absence and set aside the dismissal if the
petitioner can show sufficient cause.

The Madras High Court ruled that it was improper to dismiss a lawsuit ex parte simply because
the petitioner missed one court date. The petitioner must be given a chance to justify their
absence, and the court emphasised that if the petitioner can provide sufficient justification, the
dismissal should be overturned( M. Sundaram Pillai V. R. Shanmugam Pillai AIR 2012 Mad
269).

Thus, this is valid claim.