BEFORE THE HON’BLE SUPREME COURT OF HIND

UNDER ARTICLE-133 OF THE CONSTITUTION OF INDIA,1950

CIVIL SUIT NO :…../2021

RAIL TRACK MANUFACTURING COMPANY(RMTC)

(APELLANT)

V.

COASTAL RAILWAYS TRUST OF HIND

(RESPONDENT)

ON SUBMISSION TO THE HON’BLE SUPREME COURT, HIND

MEMORIAL FILED ON BEHALF OF THE RESPONDANT

HARI KRISHNAN. G

16040141036

BA.LLB (HONS) SEC-A

BATCH-2016-21

COUNSEL FOR THE RESPONDANT

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 TABLE OF CONTENTS

1. LIST OF ABBREVATION………………………………………………………………3

2. INDEX OF AUTHORITIES……………………………………………………………...4

Statutes…………..………………………………………………………………………..4

Indian case laws…….……………………………………………………………………..4

List of books..…….……………………………………………………………………….4

Website……………………………………………………………………………………4

3. STATEMENT OF JURISDICTION………………………………………………………5

4. STATEMENT OF FACTS………………………………………………………………..6

5. ISSUES RAISED………………………………………………………………………….7

6. SUMMARY OF ARGUMENTS………………………………………………………….8

7. ARGUMENTS ADVANCED…………….……………………………………………….10

8. PRAYER FOR RELIEF……………………….…………………………………………14

9.

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 LIST OF ABBREVIATIONS

S.N ABBREVATION EXPANSION

O
1 V. Versus

2 AIR All India Report

3 UOI Union of India

4 SC Supreme Court

5 SCC Supreme Court cases

6 Ors. Others

7 Anr. Another

8 Cal Calcutta

9 Hon’ble Honourable

10 Sec. Section

11 PH Punjab

12 Bom Bombay

13 U/S Under section

14 Art Article

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 INDEX OF AUTHORITIES
CONSTITUTION OF INDIA, 1950
I. STATUTES
Indian Contract Act, 1872
II. INDIAN CASE LAWS
S.N CASES CITATION
O
1 Oil & Natural gas corporation vs Saw pipes Ltd 2003 (1) Q.B.D 277
2 Food corporation vs JP. Khesharwani 1994 SUPP (1) SCC 531
3 Indus tower ltd vs Videocan telecommunications 14th Sep 2016
4 Union of India vs Rampur Distillery and chemical AIR 1973 SCC 649
Co. Ltd
5 National highway authority of India vs Ganga 2003 (3) SCR 114
enterprises
6 M/s Alopi parshad & sons Ltd vs Union of India AIR 1960 SCR 793
7 Standard Retail Pvt. Ltd. v. M/s G.S. Global Corp & 8th APRIL 2020
Ors
8 Karsandas H. Thacker v. Saraan Engg Co Ltd, AIR, SC 1981, 1965 (0) BLJR
78

9 Pannalal Janakidas vs. Mohanlal AIR 1951 SC 144

III. LIST OF BOOKS

1. CONTRACT & SPECIFIC RELIEF, Avtar Singh, 12th edition, EBC publication

IV. WEBSITE
1. www.manupatrafast.com
2. www.scconline.com
3. www.indiankanoon.com
4. www.legallyindia.com
5. www.legal-dictionary.thefreedictionary.com
6. www.legalserviceindia.com
7. www.lawmirror.com

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 8.
STATEMENT OF JURISDICTION

The Hon’ble Supreme court has jurisdiction to hear the instant matter under Article-133 of
Constitution of India, 1950. The respondent humbly submits memorandum before the Hon’ble
Supreme court of Hind.
Article-133 of Constitution of India, 1950 reads as,
The appellate authority of Supreme Court in appeals from High Courts regarding civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree, or final order in
a civil proceeding of a High Court in the territory of India if the High Court certifies
under Art134A.

(a) That the case involves a substantial question of law of general importance; and

(b) That in the opinion of the High Court the said question needs to be decided by the
Supreme Court
(2) Notwithstanding anything in Art132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of
law as to the interpretation of this Constitution has been wrongly decided
Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree, or final order of one Judge of a
High Court.

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 STATEMENT OF FACTS
1. The Coastal Railway Trust of Hind (“CRTH”) invited tenders for the supply of rails on the
24th of August 2019. The last to submit the bid was the 25th of November 2019 and the bid
will be opened on the 15th of December 2019. The Rail Track Manufacturing Company
(“RTMC”) submitted its offer to the tender. Clause 7 of the tender provided that the CRTH
will not bear the liability of the transit insurance. The supplier must deliver the concerned
goods without any defect. Clause 8 of the tender provided that the CRTH reserves the right
to reject the supplies if it is found defective and recover the freight charges from the supplier.
Clause 9 of the tender provided that a sum of Rs. 10,00,000 must be deposited as a security
amount along with the offer. RTMC submitted its offer which inter alia had a specific
condition that inspection of the rails will be conducted only at RMTCs warehouse and
refused to accept Clause 7 and Clause 8 of the tender. Subsequently, adhering to the other
terms and conditions of the Tender, RMTC made a payment of Rs. 10,00,000/- towards
security deposit.
2. The CRTH issued a revised notification to extend the last date of accepting the bids and the
date of opening the bids. It extended the last date to accept the bids to 31st of January 2020
and to open the bids to the 15th of February 2020. As the opening of the Tender was
postponed, RTMC submitted a revised offer reiterating its earlier position that inspection of
the rails will be conducted only at RMTCs warehouse and It does not accept Clause 7 and
Clause 8 of the tender.
3. The bids were opened on the given date, the bid of RMTC was the lowest. The CRTH
officials started discussing a few terms and conditions of RMTCs bids with RMTC officials.
RMTC clarified its stance on inspection of rails at its warehouse and communicated that it is
not in favour of the inspection of the rail conducted at the stores of CRTH. Upon discussion,
it was agreed between the parties that in the event of inspection is done at the stores of the
CRTH then RMTC would charge 18% above the quoted rate.
4. By a letter dated 21st of March 2020, the CRTH accepted the offer of the RMTC for the
supply of rails but with a condition of transit insurance and inspection of the rails at the
stores and requested RMTC to extend the delivery period of the rails by 30 days than the
earlier mentioned date of 2nd of May 2020. The RMTC vide its letter dated 22nd of March
2020, rejected the proposal of the CRTH and declined its request to extend the delivery date
thereof. The RMTC requested the CRTH to return the security deposit amount of Rs.
10,00,000. 22nd of March 2020 being declared as Janta Curfew by the Government of Hind,
the letter of RMTC rejecting the proposal did not reach the CRTH office. However, on the
same day of accepting the offer of the RMTC, the CRTH issued a purchase order dated 21st
March 2020 for the supply of Rails on the terms and conditions specified therein. The CRTH
communicated to the RMTC that if the supply of the rails were not made as per the purchase
order then the security deposit would be forfeited as risk purchase would be made at the cost
of the RMTC. The RMTC contested that there was no concluded contract between the parties
and requested the CRTH to refund the security deposit. Also, RMTC cited the government
lockdown due to the ongoing pandemic as one of its reason for not being able to supply the
goods, even if it presumes that there was a concluded contract, which in truth was not the
case.

5. The CRTH filed a suit against the RMTC for damages for breach of contract in the Civil
Court of Harappa. The RMTC filed a suit for recovery of security deposit along with interest,

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 cost, and other consequential reliefs before the Civil Court of Harappa. Both the suits were
clubbed together before the trial and the Civil Court of Harappa vide its judgement dated
25th of June 2020 decreed in favour of the Respondent in the suit of damages for breach of
contract and dismissed the suit of recovery of the security deposit on the grounds that the
CRTH had accepted the offer of the RMTC and issued a purchase order in relation to the
same resulting in the conclusion of the contract between the parties and as the RMTC did not
perform its part by supplying the rails as per the concluded contract, the CRTH was entitled
to damages for breach of obligations by the RMTC. The court rejected the Force Majeure
defence of RMTC.

6. The RMTC appealed against the trial court’s order in the High Court of Aryavrat. The High
Court vide its judgment dated October 10, 2020, upheld, and confirmed the Trial Court’s
Order. Being aggrieved, the RMTC filed the present appeal before the Supreme Court of
Hind against the Judgment of the High Court of Aryavrat.

HENCE, THE PRESENT PETITION IS BEFORE THIS HON’BLE SUPREME COURT

ISSUES RAISED

1. Whether the RMTC committed a breach of contract?

2. Whether the CRTH is entitled to recover the amount as claimed in the suit from the RMTC?
3. Whether the Appellant was entitled to a refund of the security deposit with interest as
claimed?
4. Whether the defence of Force Majeure would stand?

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 SUMMARY OF ARGUMENTS

ISSUE 1. WHETHER THE RMTC COMMITTED A BREACH OF CONTRACT?

It is contended on behalf of the RESPONDENT that the APPELLANT has established a concluded
contract and has committed the breach of by non-performance of the duty to the contract i.e., the
APPELLANT failed to supply the rails, further it is contended that acceptance to the offer has been
communicated to the APPELLANT and thereby binding to the contractual obligations. The
APPELLANT has admittedly not supplied the goods to the RESPONDENT as per the terms of the
purchase order resulting in non-performance and breach of contract.

ISSUE 2. WHETHER THE CRTH IS ENTITLED TO RECOVER THE AMOUNT AS

CLAIMED IN THE SUIT FROM THE RMTC?
It is contended that the RESPONDENT is entitled to recover the damages for breach of contract as
the APPELLANT is liable for the breach and the aggrieved party has the right to claim
compensation for the loss suffered by the breach of contract, Thus, the RESPONDENT irrespective
of any actual loss has been suffered or not, the APPELLANT is liable to pay for the damages.

ISSUE 3. WHETHER THE APPELLANT WAS ENTITLED TO A REFUND OF THE

SECURITY DEPOSIT WITH INTEREST AS CLAIMED?
It is contended that the RESPONDENT is entitled to forfeit the security deposit as the APPELLANT
has failed to perform his part of the contractual obligation after the acceptance further the
RESPONDENT is not liable to refund the security deposit with interest as claimed by the
APPELLANT.

ISSUE 4. WHETHER THE DEFENCE OF FORCE MAJEURE WOULD STAND?

It is contended that the APPELLANT cannot take the defense of force majeure as there was no
causal link between the force majeure and non-performance was established. The ongoing pandemic
may have slowed down the performance of the contractual obligations but has not abstained from
the whole performance further the APPELLANT had not taken any further step or reasonable effort
to perform the contractual obligations making the APPELLANT liable for non-performance of the
contractual obligation.

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 ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE APPELLANT HAS COMMITTED A BREACH OF CONTRACT
OR NOT?
It is humbly submitted to the Hon’ble Supreme Court that the APPELLANT has established
a concluded contract and has committed a breach of contract. When two or more parties to the
contract are binding under the obligation to perform specific terms and conditions given under
the contract and when one party has failed to fulfill the obligation, it becomes a breach of
contract. Therefore, RMTC(APPELLANT) has failed to perform the terms and conditions
mentioned in their contract, so breach of contract has been committed by RMTC.
The Indian Contract Act, 1872 defines the term Contract under Sec-2(h) as “An agreement is
enforceable by law”. In other words, a contract is anything that is an agreement and enforceable
by the law of a land.

It is humbly submitted to this Honourable Supreme Court that in the case of Food corporation vs
J.P. Keshwarani1, the court held that the breach (retaliation) of this amount occurred where one party
is making an unilateral change without any notice to the other and then cancelling the contract. The
APPELLANT has admittedly not supplied the goods to the RESPONDENT as per the terms of the
purchase order resulting in non-performance and anticipatory breach of contract.

It is humbly submitted before the Hon’ble Supreme court in the case of Indus Towers Limited
vs Videocon Telecommunications,2 the Delhi High court held that when an obligation of
contract has to be performed before certain or on a specific day then it must be performed
before the lapse of that time. In this case the RMTC had sent a letter for the refusal of contract
which dint reach the respondents due to the Janata curfew and the pandemic, they had failed to
perform their duty which was to deliver the supply of rails to the Respondents on 21 st March
2020. Although the appellants contend that there was no contract between them, there was
contract that was agreed by both the parties; therefore they have committed Breach of Contract.
It is humbly submitted to the hon’ble Supreme court that, the appellant have failed to live up to
the terms and conditions they have agreed upon in the contract. There was a contract on the day
both the parties had agreed to the Contract. The Appellants accepted the offer of the
Respondents and they agreed to supply the rails on 21st March 2020. But they failed to; they are

1
1994 SUPP (1) SCC 531
2
14th September 2016
10
stating the Janata curfew and ongoing Covid-19 pandemic as a reason for the breach of
contract. Although they sent a letter for a letter of refusal for the contract, they must know that
the letter will not reach the CRTH and they did not take any further action or step to confirm
it. Thus, the Appellants have committed a breach of Contract. The court is fully empowered to
adjudicate and review the case.

ISSUE 2: WHETHER THE RESPONDENT IS ENTITLED TO RECOVER THE AMOUNT

AS CLAIMED IN THE SUIT FROM THE APPELLANT OR NOT?

It is humbly submitted that the RESPONDENT is entitled to recover the damages compensation for
breach of contract. The aggrieved party has the right to claim compensation for the loss suffered by
the breach of contract. Such a party can claim compensation from the party who did not perform his
obligations under the contract.

The Section 73 of the Indian Contract Act, 1872 reads as

“73. Compensation of loss or damage caused by breach of contract-

When a contract has been broken, the party who suffers by such breach is entitled to
receive, form the party who has broken the contract, compensation for any loss or damage
caused to him thereby, which naturally arose in the usual course of things from such breach,
or which the parties knew, when they made the contract, to be likely to result from the breach
of it.

Such compensation is not to be given for any remote and indirect loss of damage
sustained by reason of the breach. Compensation for failure to discharge obligation resembling
those created by contract: When an obligation resembling those created by contract has been
incurred and has not been discharged, any person injured by the failure to discharge it is
entitled to receive the same compensation from the party in default, as if such person had
contracted to discharge it and had broken his contract.

It is humbly submitted to the Hon’ble Supreme court that Breach of contract happens from time
to time, especially when two or more parties are involved. But if your goal is to get the best
from every transaction and get more referrers, they must learn to keep to the terms of the
agreement. Most cases of breach of contract are because someone defaulted.

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It is humbly submitted by the court that in case, Karsandas H. Thacker v. Saraan Engg Co Ltd,3 the
court held that damages are to be awarded as compensation for any loss or damage arising naturally
in the usual course of things from the breach of contract. In this case the Appellants had accepted the
offer for the supply of rails to the respondents and failed to deliver within the stipulated time. This
naturally causes damage to the respondents. So, they must be entitled to recover the amount claimed
in the suit from the RMTC. And in the case of Pannalal Janakidas vs. Mohanlal 4 the Supreme court
held that, the party who is in breach must be compensated for any loss emerging out of the breach of
contract. The APPELLANT has committed the breach of contract and must be liable to pay for the
damages caused to the RESPONDENT.

It is humbly submitted to the Hon’ble Supreme court, that the letter send by the appellant was not
received by the respondent and the trains where not delivered by the Appellant and thus it lead to
significant loss for Respondent, Thus in this case the Respondent is entitled to recover the amount.

ISSUE 3: WHETHER THE APPELLANT IS ENTITLED TO A REFUND OF THE

SECURITY DEPOSIT WITH INTEREST AS CLAIMED OR NOT?

It is humbly submitted to the Hon’ble Supreme Court of Hind that the appellant is not entitled
to a refund of the security deposit with interest as claimed. Although the appellants contend
there was never a contract, they have agreed to the terms and conditions of the Tender and
made a payment of Rs. 1000000 towards security deposit. It is humbly contended to the
Hon’ble Supreme Court that the Appellant is not entitled to a refund of the security deposit
with interest.

It is humbly sumitted to the Hon’ble Supreme court that although the appellant petitioned that
there was no breach of contract, both parties have agreed on the terms and condition for the
supply of rails. This proves that there was contract between both the parties and the appellant
had breach of contract. The appellant is not entitled to refund of the security deposit with
interest because the amount it was made as a payment it towards security. The parties to the
contract had accepted the offer stated in clause 9 that states that a sum of Rs. 10, 00,000 must
be deposited as a security amount along with the offer. Also, the appellant had accepted to the
contract and made the payment.
In UOI v. Rampur Distillery and Chemical Co. Ltd.5, the court held that the security deposit
3
AIR, SC 1981, 1965 (0) BLJR 78
4
AIR 1951 SC 144

5
AIR 1973 SCC 649
12
was taken from the respondents in order to ensure the due performance of the contract and
respondents having defaulted, the entire amount was liable to be forfeited.

Hence, it is humbly contended to the Hon’ble Supreme Court that the Appellant is not entitled
to a refund of the security deposit with interest. The court is fully empowered to adjudicate and
review the case under its inherent power and to render complete justice to the parties and it
cannot be restricted in any manner.
ISSUE 4: WHETHER THE DEFENSE OF FORCE MAJEURE WOULD STAND OR NOT?

It is humbly submitted before the court that the APPELLANT could not stand to invoke the Force
Majeure Clause as defense, there is no causal link which has to be established and the APPELLANT
has not made reasonable effort to perform the contractual obligation. The term ‘Force majeure’
means any unforeseeable circumstances which prevents someone from fulfilling a contract.

It is humbly submitted in the Standard Retail Pvt. Ltd. v. M/s G.S. Global Corp & Ors 6. where,
while refusing an injunction as prayed, the Bombay High Court noted that the force majeure
clause was contained in the contract for sale of steel and not in the letters of credit. Although
the injunction was refused on other grounds as well, it nevertheless highlights the difficulties
that could arise when the underlying contract excuses performance but a separate / distinct
ancillary contract/ financing arrangement like a letter of credit or bank guarantee does not
contain a force majeure clause

It is humbly submitted to the Hon’ble Supreme court that the Force majeure refers to an
unforeseeable or unavoidable event beyond the reasonable control of the parties to an
agreement that works as an excuse or delay for performance of the obligations under the
contract. The parties to the contract must prove that the performance of a contract has become
impossible in order to invoke the same, and the terms and conditions have become
fundamentally different from those specified in the contract.
It is humbly submitted before the Hon’ble Supreme court that in the case Force majeure would not
stand because it is not a unforeseeable event, because the letter sent by Appellant to the Respondent,
but due to Janatha crew the letter did not reach the Respondent, in this case the Appellant should
know that the letter will not reach the Respondent. The appellant did not confirm whether the letter
reached or not. The appellant did not take any further action or step and he should be able to know
that the letter will not reach Respondent because of Janatha crew, and the Appellant should contact

6
8th April, 2020
13
the respondent with any other means like mailing them. Thus, in this case the force majeure does not
stand as a defence for the Appellant and escape from the liability.

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 Memorial on behalf of the Respondent

PRAYER FOR RELIEF

WHEREFORE, In the light of the facts stated, issues raised, authorities cited and pleadings
advanced, it is most humbly prayed before this Honourable Supreme Court of Hind that it may
be graciously pleased to:

1. Uphold there was binding Contract between APPELLANT and the RESPONDENT.
2. Declare that the RESPONDENT is entitled to claim the damages.
3. Dismiss the contention of the APPELLANT for the refund of security deposit with interest.
And/ Or
Pass any order that it deem fit in the best interest of justice, equity and good Conscience.

And for the RESPONDENT in the duty bound shall humbly pray.

(Counsel for the Respondent)

HARI KRISHNAN.G

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