Team Code-D16

5th ARGUENDO MOOT COURT COMPETITION

BEFORE
THE HONOURABLE HIGH COURT
ANKARA, INDIANA

CIVIL SUIT……………………..OF 2019

IN THE MATTER OF
WINGMAN CONSTRUCTION COMPANY…......................................................PLAINTIFF

Versus

PROGRESSIVE HOTELS LIMITED………………………………………........DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT –Mr. DHIRAJ WADHWA

 
 MEMORIAL for DEFENDANT

-TABLE OF CONTENTS-

-TABLE OF ABBREVIATIONS- ………………………………………………………………04

-INDEX OF AUTHORITIES-…………………………………………………………………...05

-STATEMENT OF JURISDICTION-…………………………………………………………...07

-STATEMENT OF FACTS-…………………………………………………………………….08

-ISSUES RAISED-………………………………………………………………………………09

-STATEMENT OF ARGUMENTS-…………………………………………………………….10

-ARGUMENTS ADVANCED-………………………………………………………………….12

I. That there was no breach of contract…………………………………………..………… 12

II. Time is an essence of contract………………………………………………………..……13

III. Progressive hotels ltd. is not liable to pay damages………………..………………...…14.

[A] They did not fulfill their part of obligation…………………………………..……….14

[B] Wingman construction company ltd. intentionally caused delays in completion

of the project…………………………………………………………………..………..15

[C] The suit for compensation for breach will be barred if the suit for specific
performance will be dismissed…………………………………………………….… 15

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IV. That progressive hotels ltd. is not liable to pay for specific performance…………16

[A] Progressive Hotels ltd. can plead any ground is be available to them under any
law relating to contract .....................................................................................................16
[B] Doctrine of Quantum Meruit………………………………………………………...17

V. That progressive hotels ltd. are entitled to receive damages from Wingman
Construction Company Ltd………………………………………………………………...18

-PRAYER-……………………………………………………………………………………….19

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 MEMORIAL for DEFENDANT

-TABLE OF ABBREVIATIONS-

ABBREVIATIONS EXPANSIONS

LTD. Limited

PVT. Private

AIR All India Reporter

PC Privy Council

M/s Messers

SCR Supreme Court Reporter

SEC Section

SC Supreme Court

HC High Court

Hon’ble Honourable

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 MEMORIAL for DEFENDANT

-INDEX OF AUTHORITIES-

 STATUTES

 Section 55, INDIAN CONTRACT ACT, 1872………………………………………..13

 Section 75, INDIAN CONTRACT ACT, 1872……………………………………….12
 Section 09, SPECIFIC RELIEF ACT, 1963…………………………………………..16
 Section 16, SPECIFIC RELIEF ACT, 1963…………………………………………..11
 Section 24, SPECIFIC RELIEF ACT, 1963…………………………………………15

 TREATISES
 Anson’s Law of Contract, 26th Edition at p.25
 Dr. S Srivastava, Law Of Contract I and II 70 (Central Law Publications, Allahabad, 5th
edition, 2015)
 See Williams R. Anson, Principles of the Law of Contract 245 (Arthur L. Corbin Ed.3d.
Am.ed.1919)
 Avatar Singh – Indian Contract Act and Specific Relief Act

 CASES

 Shri Gopaldas Vishandas Mirani vs. M/s Kotak Mahindra Old Mutual Life Insurance

Ltd. ……………………………………………………………………………18

 Natesa Aiyar And Ors. vs Appavu Padayachi (1908) MLJ 230…………………12

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 M/s Mascon Multiservices & Ors. vs Bharat Oman Refineries
Ltd.(2014) Bombay HC .……………………………………………………13
 Mahabir Prasad Rungta vs Durga Datt, 1961 AIR 990, SCR (3) 639………..14
 M/s Citadel Fine Pharmaceuticals vs M/s Ramaniyam Real Estates Pvt. Ltd. (2011)….
 Ashapura Habitats Private Ltd. and three Ors. Vs Sau Shalka Nilkanth Shinde & Anr.(2019)
…………………………………………………………….
 Caltex(India) Ltd. vs Bhagwan Devi Marodia (1968) AIR 405 1969, SCR(2) 238……13
 Govind Prasad Chaturvedi vs Hari Dutt Shastri and another,1977 AIR 1005,SCR 877…...
 Gomathinayagam Pillai And Ors. vs Pallaniswami Nadar,1967 AIR 868,1967 SCR 227..
 Jamshed Khodaram Irani vs Burjorji Dunjibhai, AIR 1915,PC 83……………
 Madhya Pradesh Rural Road Development Authority vs L.G. Chaudhary Engineers and
contractors SCC 495………………………………………………………..
 Vardhman cables India Pvt. Ltd. vs Mahanagar Telecom Nigam Ltd. 1996 Delhi HC….
 Mangalore Electricity Supply Ltd. vs AMR Power Pvt. Ltd. 2014……….
 Gopinath Sen vs Bahadurmal Dhulichand and Ors. AIR 1979 CAL 203……….15

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 MEMORIAL for DEFENDANT

-STATEMENT OF JURISDICTION-

The Honorable High Court of Ankara, Indiana has the jurisdiction in this matter under Section
6 , 9, 15, 20 of Civil Procedure Code.

Section 06- Pecuniary jurisdiction

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give
any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the
pecuniary limits (if any) of its ordinary jurisdiction.

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.

Section 15- Court in which suits to be instituted

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

Section 20- Other suits to be instituted where defendants reside or cause of action arises

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction-

    (a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

    (b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution
or the cause of action, wholly or in part, arises.
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MEMORIAL for DEFENDANT

-STATEMENT OF FACTS-

.
In January 2009, it was decided in the Board Meeting of Progressive Hotels Ltd. to expand their
chain in Dudley, the Capital city of Indiana where the upcoming Summer Games of 2011 were to
be held and in Ankara so to provide a two day stay to the participants in the city of Ankara which
is a tourist attraction famous for its ivory – white marble mausoleum which is considered to be a
masterpiece of the world heritage.
In February 2009, for the aforementioned purposes Progressive Hotels Ltd. invited Request For
Proposal (“RFP”) (including Building designs, quotation etc.) from construction companies. In
March, 2009, Progressive Hotel Ltd. selected the proposal submitted by Wingman Construction
Company Ltd for its unique design, costs and other factors.
On 1st April 2009, Progressive Hotels Ltd. and Wingman Construction Company Ltd entered
into two separate contracts for the construction of the hotels in Dudley and Ankara. The
construction project was to begin simultaneously at both the locations.
(i) extra work is required to prepare the project before handing over of the finished project, and
(ii) increase in costs arising from delay in completion of project, where delay occurs from causes
outside the control of Wingman Construction Company Ltd.”
The construction began on 1st April 2009 immediately upon receiving the 1st Instalment for both
the projects and continued to move at the pace agreed upon in the contract and the payment was
made accordingly till 1st April 2010.
Before releasing the payment towards the 4th Instalment Mr. Dhiraj Wadhwa decided to visit
both the hotels to verify the progress. He was satisfied at the construction site of the Hotel in
Dudley as it is moving as per Schedule (80% of the work was complete by 1st Oct 2010).
However, he was disheartened that the construction work at Hotel in Ankara made no substantial
progress.
Due to the non-completion of the work as per the terms of the contract, Mr. Dhiraj Wadhwa
decided to rescind both the contracts and hired another contractor Supreme Consortium
Construction Ltd. to complete the remaining work at both the sites.
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MEMORIAL for DEFENDANT

+-

-ISSUES RAISED-

Issue 1

Whether there is a Breach of Contract by Wingman Construction Company Ltd.?

Issue 2

Whether time is an essence of contract signed by Wingman Construction Company Ltd.?

Issue 3

Whether Progressive Hotel Ltd. is liable to pay damages to Wingman Construction Company
Ltd.?

Issue 4

Whether Progressive Hotels be sued for Specific Performance?

Issue 5

Whether Progressive Hotel Ltd is entitled to receive damages from Wingman Construction
Company Ltd. ?
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MEMORIAL for DEFENDANT

-STATEMENT OF ARGUMENTS-

I. That there was no breach of contract

There was no breach of contract on part of the defendant as the plaintiff did not complete the
project within the stipulated time as per the payment schedule contained in the contract as
agreed to by the parties and they also had the dishonest intention of levying additional costs on
defendant. So due to these reasons the defendant had the right to rightfully rescind the contract
and thus there was no breach on part of the defendant.

II. Time is an essence of contract

The time is of the essence of the contract as the terms of contract stipulated that the project was
to be to be completed within 2 years from the date of signing of the contract as the hotels had to
be ready for the summer games.so clearly time was of the essence of the contract as the projects
were to be completed within 2 years.

III. Progressive hotels ltd. is not liable to pay damages

The defendant is not liable to pay damages to the the wingman construction company as they
did not perform the part of their obligation as agreed to in the contract, and the plaintiff
intentionally with a dishonest intention tried to cause delay in the completion of the project to
levy additional costs on the defendant, Moreover, the suit for compensation for damages will be
barred if the suit for Specific Performance will be dismissed, so, the defendant is not liable to
pay damages to the plaintiff.
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IV. That progressive hotels ltd. is not liable to pay for specific performance

The defendant can use relevant grounds for the defense against the relief sought from him by
the opposing party under any law relating to contracts as provided in section 9 of the Specific
Relief Act, 1963, and using the grounds as provided in section 16(b) and 16(c) of the Specific
Relief Act, 1963 the decree for Specific Performance cannot be granted.

V. That progressive hotels ltd. are entitled to receive damages from Wingman
Construction Company ltd.

According to the facts in hand the contract entered into by both the parties was rightfully
rescinded by Progressive Hotels ltd. as provided in section 75 of Indian contract act,1872 which
entitles them to compensation
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MEMORIAL for DEFENDANT

-ARGUMENTS ADVANCED-

I. THAT THERE WAS NO BREACH OF CONTRACT

The council on behalf of the defendant most respectfully submits that there was no breach of
contract which aroused between wingman construction ltd and progressively hotels ltd as they
didn’t complete the project within the stipulated Time as per the payment Schedule as agreed to
by the parties. According to the facts in hand, the plaintiff completed only 50% of the project
till 1st of April 2010 and it made no substantial progress since and by the time.
When it was time to release the 4th installment i.e. on 1st Oct 2010 for rs.30 lakhs each the project
Hadn’t been completed 80% of the total has been provided in payment schedule provided herein
in the contract.

According to section 75 of the Indian contract act 1872, Party rightfully rescinding contract,
entitled to compensation.—a person who rightfully rescinds a contract is entitled to
Compensation for any damage which he has sustained through the non-fulfillment of
the contract.1

According to the facts in hand it was agreed between two parties

Progressive Hotels Ltd. reserves the right to rescind the contract and Wingman Construction
Company Ltd would be liable to pay damages that would arise in case of non-completion of the
project. So due to the non-completion of the obligation on the part of the plaintiff the contract
hereby was rightfully rescinded by the defendant2.

Therefore, it is submitted that, considering the facts and law in hand, the contract arising between
wingman construction company and progressive hotels ltd.

1. Section 75, Indian contract act, 1872

2. Natesa Aiyar V. Appavu Padayachi
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II.TIME IS AN ESSENCE OF CONTRACT

According to the facts in hand

On 1st April 2009, Progressive Hotels Ltd. and Wingman Construction Company Ltd entered
into two separate contracts for the construction of the hotels in Dudley and Ankara. The
construction project was to begin simultaneously at both the locations.
The terms of the contract stipulated that the project was to be completed within two years from
the date of signing of the contract as the hotels had to be ready for the Summer Games3.

  Section 55 of The Indian Contract Act, 1872, provides that “When a party to a contract
promises to do a certain thing at or before a specified time, or certain things at or before
specified times, and fails to do any such thing at or before the specified time, the contract, or so
much of it as has not been performed, becomes voidable at the option of the promisee, if the
intention of the parties was that time should be of the essence of the contract4.”

It is hereby contended that, time is of essence in this contract as agreed to by both the parties to
the contract and thus, it is the obligation\n of the plaintiff to complete their part of the promise
within the stipulated time as given in the payment schedule of the contract.5

3. Section 55, Indian Contract Act, 1872

4. M/S Mascon Multiservices v. Bharat Oman Refineries Ltd
5.Caltex India Ltd v. Bhagwan Devi Marodia
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III.That Progressive Hotel Ltd. is not liable to pay damages to Wingman Construction
Company Ltd.

It is hereby contended that Progressive hotels ltd. is not liable to pay damages to the wingman
construction company ltd as [A] they did not fulfill their part of obligation, [B] Wingman
construction company ltd. intentionally caused delays in completion of the project and [C] The
suit for compensation for breach will be barred if the suit for specific performance will be
dismissed.

[A] They did not fulfill their part of obligation

According to the facts in hand the Plaintiff did not perform their part of obligation in the project
in Ankara as the project was not going with the agreed progress i.e. 80% of the project had to
be completed by 1st October, 2010 as per the payment schedule given in the contract enter into
by the parties6.

According to section 55 of the Indian contract act 1872 provides that, “When a party to a
contract promises to do a certain thing at or before a specified time, or certain things at or
before specified times, and fails to do any such thing at or before the specified time, the
contract, or so much of it as has not been performed, becomes voidable at the option of the
promisee, if the intention of the parties was that time should be of the essence of the contract3.”

It is respectfully submitted that Wingman construction company ltd. did not move on with the
project at the agreed pace which resulted in the non-completion of the project.

6.Mahabir Prasad Rungta v. Durga Dutta

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[B] Wingman construction company ltd. intentionally caused delays in completion of the
project.

It was stated in the contract that Wingman construction company ltd. would be entitled to levy
additional charges where (i) extra work is required to prepare the project before handing over of
the finished project, and (ii) increase in costs arising from delay in completion of project, where
delay occurs from causes outside the control of Wingman Construction Company Ltd.”

So, in order to levy additional costs on Progressive Hotels ltd. Wingman construction company
ltd. intentionally tried to cause delays in the competition of the project in hand therein as
according to the facts in hand the work at the construction site of the hotel in Ankara made no
substantial progress as the same was revealed when Mr. Dhiraj Wadhwa before releasing the
payment towards the 4th installment i.e. on 1st October 2010.

It is hereby contended that, the plaintiff deliberately tried to cause delays in the completion of the
project.

Therefore, it is submitted that, no damages will be paid by Progressive Hotels ltd. to the
Wingman Construction company ltd.

[C] The suit for compensation for breach will be barred if the suit for specific performance
will be dismissed.

Section 24 states that - Bar of suit for compensation for breach after dismissal of suit for specific
performance.—The dismissal of a suit for specific performance of a contract or part thereof shall
bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the
case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by
reason of such breach7.
7.Section 24, specific performance act

8.Gopi Nath Sen and ors vs Bahadurmul Dhulichand and ors.

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Therefore, it is contended that the plaintiff’s suit for damages will be barred if their suit for
specific performance is dismissed, the grounds for which have been stated in issue 4 of this
memorial8.

IV.Progressive Hotels cannot be sued for Specific Performance

[A] Progressive Hotels ltd. can plead any ground is be available to them under any law
relating to contract
Section 9 of Specific relief act 1963 provides that,” Defenses respecting suits for relief based on
contract.—Except as otherwise provided herein, where any relief is claimed under this Chapter
in respect of a contract, the person against whom the relief is claimed may plead by way of
defense any ground which is available to him under any law relating to contracts9.
It is hereby contended that progressive hotels ltd. can plead any grounds available to protect
them from paying any relief to the plaintiff as hereby provided in section 9 of the specific relief
act 196310.

Section 16 of the Specific relief act 1872 provides Personal bars to relief.—Specific performance
of a contract cannot be enforced in favor of a person—

(a)  Who would not be entitled to recover compensation for its breach; or

(b)  Who has become incapable of performing, or violates any essential term of, the contract that
on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance
with, or in subversion of, the relation intended to be established by the contract; or

(c) Who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms
the performance of which has been prevented or waived by the defendant. Explanation.—for the
purposes of clause C.

9. Section 9, Specific relief act, 1963

10.Rudan V. Ujagar Singh and ANR

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(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually
tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) The plaintiff must aver performance of, or readiness and willingness to perform, the contract
according to its true construction11.

Here in the following case section 16(b) and 16(c) have been pleaded as the grounds for
defense12. According to the facts in hand the part of the plaintiff remains to be performed and
also they have failed to aver and prove that he has performed or has been ready and willing to
perform the essential of the contract which were to be performed by it as there was no substantial
progress was there in the construction of hotel in Ankara where the participants of Summer
games 2010 will stay for 2 days and they failed to prove their willingness as they tried to delay
the work of completion of the project even after receiving the 3rd installment on 1st April 2010 i.e.
upon the completion of 50% of the project on Ankara as they had the intention to delay so as to
levy additional costs on Progressive Hotels ltd13.

So, it is hereby contended that the relief of specific performance be denied to Wingman
Construction Company Ltd. in Ankara.

[B] Doctrine of Quantum Meruit

Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract
law, it means something along the lines of "reasonable value of services".

The legal theory of quantum meruit holds that a person should not be obliged to pay, nor should
the other party receive, more than the value of the services exchanged.

It is contended that under doctrine of quantum meruit, the defendant is ready to give the benefit
for the work done by the plaintiffs in Dudley and thus there is no need for the plaintiff to sue for
specific performance.

11. Section 16 , Specific relief act , 1963

12.Singaravelu Rounder v. Sulaiman & ors.
13.Hari Ram v. Dau Dayal and anr.

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V. That progressive hotels ltd. are entitled to receive damages from Wingman
Construction Company ltd.

According to the facts in hand the contract entered into by both the parties was rightfully
rescinded by Progressive Hotels ltd. as provided in section 75 of Indian contract act,1872 which
entitles them to compensation14.

So, it is hereby contended that damages shall be awarded to the defendant for the rightful
rescission of the contract by the defendant as the contract was not completed within the
stipulated time as mentioned in the payment schedule of the contract entered into by both the
parties.
14. Shri Gopal Vishan Das Miradasi V. M Kotak Mahindra old mutual life insurance ltd

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MEMORIAL for DEFENDANT

PRAYER

Therefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the Hon’ble High Court, Ankara, that it may be graciously
pleased to adjudge and declare that:
1) The defendant is not liable to pay any damages to the plaintiff

2) That the defendant is not liable for specific performance.

3) The defendant is entitled to compensation after rightfully rescinding the contract.

Also, pass any other order that it may deem fit in the favor of the Defendant to meet the ends of
equity, justice and good conscience.
For this act of kindness, the Defendant shall duty bound forever pray.

Place: Ankara
Dated: _/_/_ Counsels on behalf of the Defendant
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