May it please this Hon’ble court, esteemed members of the bench and respected

opponents, I stand before this court to answer the question of whether the
defendant, being the third company, has committed breach of contract.
Your honours, the counsel will commence the argument by most respectfully,
directing the court’s attention to a pivotal clause, clause 10.4, within the
contract at hand, which is also a part of paragraph 4 of the memorial. This
clause, Your Honors, serves as the linchpin of our position in this case and
stipulates as follows:
“It is clarified that neither party shall be entitled to terminate by notice
(without breach by the other party) for the first six months, and any even if such
termination occurs (without breach by the other party), such party shall be
liable for liquidated and unliquidated damages”
This clause unequivocally establishes, that any premature termination of this
contract, as carried out by The Third Company, contravenes the agreed terms
and constitutes a breach. However, there is a significant intricacy we must
consider, the only plausible defense that the defendants may avail, clause 16.9
which stipulates
Counsel seeks your honors permission to read out the same if it pleases the
court?
“If The Company fails to provide apparate-disapparate services at any site for
more than 24 hours, the same shall be construed as a breach of this agreement,
and The Third Company shall have the right to terminate this agreement
notwithstanding clause 10.4 hereinabove, apart from being entitled to
liquidated and unliquidated damages.”
Your honors, this alters the primary issue at hand. the crux of the matter lies in
establishing whether the Company's alleged failure to provide services
constitutes a breach of contract, for that is the sole method to demonstrate that
Clause 16.9 cannot be invoked and hence establish the premature termination is,
in fact, a breach per clause 10.4.
Your honours, the counsel of the defendants may contend that the part non-
performance of the agreement by The Company to deploy sufficient manpower
as well as carry out its services, amounts to repudiation and hence entitles them
to terminate the contract.
On the contrary, the court must consider that per S39 of ICA, if the promisee
indicates, either through words or actions, that they agree to let the contract
continue despite the breach by the promisor, they lose the right to terminate it
despite repudiation by the promisor.
The same was illustrated in the case Burn & Co. Vs. Sree Lukhdhriji
reported in AIR 1925 PC 188 even in instances of initial non-performance or
breach by one party, the continuation of a contract may be inferred if the other
party indicates, either explicitly or implicitly, a willingness to let the contract
proceed. Despite the defendant company's failure to deliver wagons in
accordance with the contract terms, the court did not interpret this as an
automatic termination. Instead, when the defendant company delivered eight
wagons to the plaintiff, even without receiving the outstanding payment, it
signified a commitment to uphold the contract. This ruling highlights the
significance of a party's subsequent actions in response to non-
performance, suggesting that such actions can serve as an implied acceptance of
the breach and a willingness to continue with the contractual obligations rather
than seeking termination.
Your honours the counsel for the plaintiff does not dispute that The
Company's inability to deploy services due to protests at certain sites
constitutes initial non-performance. However, the counsel does contend that the
subsequent response of The Third Company, to initial non-performance, was to
provide police protection, the same signifies an implied acceptance to the
repudiation. The Third Company through their own conduct and actions, have,
1- acknowledged non-performance and 2- moved to assist in the same so as to
obtain specific performance from The Company, instead of moving to terminate
due to breach, ab initio.
Moreover, the defendants contend that the responsibility to deploy and carry out
apparate-disapparate services lies with The Company, implying it is their duty
to address disruptions. Yet, rather than immediately alleging breach, the
defendants themselves sought police protection, effectively assuming this
responsibility. Subsequently claiming it was The Company's obligation is
contradictory and indicative of their acceptance of The Company's failure
to handle protests, as their subsequent conduct implied willingness to take over
this responsibility.
In light of these legal principles and the defendants' actions, it becomes
apparent that their claim of repudiation by The Company may lack merit. The
subsequent conduct of the parties suggests an implied acceptance of the breach
and a commitment to continue with the contractual obligations.
Furthermore, counsel will point out to this esteemed bench most respectfully,
the glaring omission of similar assistance for the remaining sites, despite the
evident implied assuming of responsibility and success of their actions in 2
sites, raises significant concerns. This selective response, when juxtaposed with
full awareness, cannot be disregarded. Your honours, this not only questions
their commitment to this contract but also is interpreted by counsel as an
effective prevention of the event upon which The Company's contractual
obligations hinge per section 52 of ica.
Your honours, by failing to address disruptions uniformly across all sites, The
Third Company impedes The Company's ability to fulfil its contractual
obligations, thereby frustrating the very purpose for which the contract was
entered into.
Esteemed judges, a contract is nothing but a set of agreements that are
enforceable by law, and agreements are nothing but reciprocal promises.
Referring to the agreement between the parties at hand, there are prima facie
reciprocal promises, the company to deploy sufficient man power to the third
company sites and carry out said services and for the third company to provide
purchase order and impliedly naturally, access to their sites.
The counsel most respectfully requests your honors to refer to para 5 and 6 of
the memorial, Section 51 allows each party to perform its obligations only when
the other party is ready to fulfil its promises. Additionally, Section 52 states that
obligations should be performed according to the nature of the transaction if the
order of performance is not specified in the contract. Since the contract requires
The Third Company to grant access to sites before The Company can deploy its
services, the failure to provide services does not constitute a breach by The
Company.
Lastly, even if The Company bears the responsibility for addressing protests, it
is the counsel's understanding that the performance of the contract at all
seven sites must be excused based on impossibility as per Section 56 of the
Indian Contract Act, 1872. The protests causing hindrance to site access were
unforeseeable events beyond The Company's control, rendering
performance impossible under the circumstances.
The impossibility primarily stems from commercial hardship. Coordinating
police protection across multiple sites amidst ongoing protests presents
significant logistical challenges and financial burdens, disrupting the
equilibrium of the contract.
While the counsel acknowledges that principles of "commercial
hardship" are not formally recognized in India, it is worth noting
international legal standards, particularly in Europe. According to the Principles
of European Contract Law, commercial hardship typically refers to any change
in circumstances after the conclusion of the contract, which severely alters the
equilibrium between the parties. Moreover, the UPICC, via article 6.2.2, adopts
an unambiguous approach by stipulating that a prima facie case of hardship
would be made out as soon as the parties experience a fundamental
disequilibrium that is manifested through an increase or decrease in the value of
performance.
Pleading our case, we urge this esteemed bench to consider the essence of
Section 56 of the Indian Contract Act considering the principle of commercial
hardship.
The explicit mention in a contract that non-providing of services for over 24
hours constitutes a breach suggests a clear threshold set by the parties for what
they consider an unacceptable delay. This seems to indicate an intention to treat
any delay beyond this period as a breach, potentially without requiring
examination of the reasons for such delay.
3. Materiality of Breach: Courts may consider whether the non-performance for
over 24 hours is a material breach affecting the essence of the contract, or if it is
a minor breach that could be remedied or compensated.
4. Mutual Agreement or Waiver: The parties may mutually agree to waive the
breach or modify the terms regarding the time for performance, either before the
occurrence of the breach or afterward.
CASE SUMMARIES:
Vairavan Chettiyar v. Kannapa Mudaliyar, AIR 1925 Mad. 1029
When the defendant agreed to keep in cold storage the plaintiff’s apple boxes,
and it was agreed that upon payment of hire charges the plaintiff could lift the
goods, and the plaintiff failed to make payment, it was held that the defendant
was justified in refusing to deliver the boxes to the plaintiff. It was also held that
the plaintiff had committed a breach of contract and, hence was not entitled to
damages.

Bal Krishna v. Bhagwan Das (Dead) by L.Rs, (2008) 12 SCC 145 : AIR 2008
SC 17862.
1. Reciprocal Promises: The case involves a contract with reciprocal promises,
where the plaintiffs seek specific performance from the defendant. The plaintiffs
allege that they have fulfilled their obligations by making payments to the
defendant as per the terms of the agreement. This situation aligns with the
concept of reciprocal promises, as outlined in the Indian Contract Act.
2. Plaintiffs' Allegations and Performance: The plaintiffs assert that they
have fulfilled their part of the contract by making payments to the defendant as
stipulated in the agreement. This assertion indicates the plaintiffs'
readiness and willingness to perform their obligations under the contract, which
is a key aspect emphasized in Sections 51 and 52 of the Indian Contract Act.
3. Defendant's Response and Allegations: On the other hand, the
defendant raises objections and denies the plaintiffs' claims. This dispute
triggers the consideration of whether the plaintiffs have indeed fulfilled their
obligations under the contract and whether they are entitled to specific
performance. The defendant's response prompts the court to evaluate the
plaintiffs' readiness and willingness to perform their part of the contract,
which is consistent with the principles outlined in Sections 51 and 52.
4. Court's Evaluation: In adjudicating the case, the court examines the
evidence presented by both parties to determine whether the plaintiffs have
demonstrated their readiness and willingness to perform their obligations under
the contract. This evaluation involves assessing the plaintiffs' conduct,
actions, and assertions regarding their compliance with the terms of the
agreement, which is in line with the principles set forth in Sections 51 and 52.
Sita Ram v. Radhey Shyam, (2007) 14 SCC 415 : AIR 2008 SC 143 the
pleadings did not meet the requirements of Section 16(c), which necessitates the
plaintiff to aver and prove that they have performed or been ready and willing to
perform the essential terms of the contract.
Outcome:
The learned Single Judge of the High Court upheld the dismissal of the Second
Appeal, stating that no substantial question of law was involved, as the
conclusions of the first appellate court were based on factual findings.