memo

MEMORANDUM ON BEHALF OF APPELLANT

IN THE HON’BLE SUPREME COURT OF INDIA

BYOMKESH BANERJEE (APPELLANT) V. NANI GOPAL BANIK (RESPONDENT)

MEMORANDUM ON BEHALF OF THE APPELLANT COUNSEL ON BEHALF OF THE APPELLANT ABHINAV K SHUKLA Semester – II Section A Roll No. 03

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MEMORANDUM ON BEHALF OF APPELLANT TABLE OF CONTENTS LIST OF ABBREVIATIONS ................................................................................ 3 TABLE OF AUTHORITIES ................................................................................. 4 CASES BOOKS STATUTES

STATEMENT OF JURISDICTION .............................................................................. 5

STATEMENT OF FACTS .................................................................................... 6 ISSUES RAISED .................................................................................................... 7 SUMMARY OF ARGUMENTS ........................................................................... 8 WRITTEN SUBMISSIONS................................................................................... 9 1. THERE WAS NO CONCLUDED CONTRACT BETWEEN THE PARTIES……………...9 (I)

2.

COMMUNICATION OF PROPOSAL IS INCOMPLETE………………… 10

THE SUIT IS BAD FOR WANT OF SPECIFIC AVERMENT…………………………...11

PRAYER FOR RELIEF ...................................................................................... 12

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MEMORANDUM ON BEHALF OF APPELLANT

LIST OF ABBREVIATIONS

AIR

All India Reporter

Ed.

Edition

Cal

Calcutta

NY

New York

AC

Appellate Court

PC

Privy Council

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Case Reports

v.

Versus

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MEMORANDUM ON BEHALF OF APPELLANT

TABLE OF AUTHORITIES

CASES (In Chronological Order) Harvey v. Facey (1893) AC 552 McPherson v. Appana AIR 1951 SC 184 Sultan Sadik v. Sanjay Raj Sabba (2004) 2 SCC 377 Fitch v. Snedkar (1868) 38 NY 248 Pushparani S. Sundaram v. Pauline Manomani James (2002) 9 SCC 582 Ardeshir v. Flora AIR 1928 PC 208 Gomathinayagam v. Paliniswami, [1967] 1SCR 227 Prem Raj v. D.L.F. Housing & Construction Ltd. [1968] 3 SCR 648 Ouseph Varghese v. Joseph Aley [1970] 1 SCR 921 Manick Lal Seal v. K. P. Choudhury AIR 1967 Cal 115

BOOKS Edwin Peel, Treitel on The Law of Contracts (Thomson Sweet and Maxwell), 12th Ed.

STATUTES Contract Act, 1872 - Sections 2, 3 & 4 Special Relief Act, 1963 - Section 16 Code of Civil Procedure (CPC), 1908 - Order 6 Rule 17

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MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

The counsel on behalf of the appellant has approached the Hon’ble Supreme Court of India under Article 136 of the Constitution Of India.

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MEMORANDUM ON BEHALF OF APPELLANT

STATEMENTS OF FACTS

1. The plaintiff-respondent by his letter. Ext. 1, to the defendant-appellant offered to purchase the disputed land at Rs. 3000/- per Katha. The defendant-appellant by his letter, Ext. 8, stated that he had already received higher offers at the rate of Rs. 3,250/- per Katha and the plaintiff was therefore required to inform him if he was agreeable to purchase the land at the rate of Rs. 3,300/- per katha and, if so agreeable, to send Rs. 3000/- towards advance.

2. The plaintiff replied by Ext. 2 enclosing therewith a bank draft for Rs. 3000/- and stating therein that he would pay the balance amount before or on the execution of the Sale Deed in his favour. Ext. 2 was dated 13-5-1974 and was sent by registered post but it came back with the postal endorsement "unclaimed" and "absent".

3. Thereafter the said bank draft was again sent to the defendant by registered post on 29-6-1974 along with a letter of that date, Ext. 10, written by the plaintiff's lawyer and this letter also came back with postal endorsement "refused", vide Ext. 4(a).

4. The plaintiff thereafter received a letter from the defendant dated 29-6-1974, being Ext. 2(a), wherein it was stated that the proposal made by the defendant to the plaintiff stood cancelled and the defendant would no longer sell the land.

5. The plaintiff thereafter served a notice through his lawyer dated 30-7-1974 and ultimately filed the suit for specific performance. The trial court decreed the suit and hence this appeal by the defendant.

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MEMORANDUM ON BEHALF OF APPELLANT ISSUES RAISED 1. Whether there was a concluded contract between the parties?

2. Whether the suit is maintainable for want of specific averment?

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MEMORANDUM ON BEHALF OF APPELLANT SUMMARY OF ARGUMENTS

1.

There was no concluded contract between the parties as there was no offer and on behalf of defendant-appellant to sell land to the plaintiff-respondent. Even if there was any such offer, there was in law no acceptance thereof by and on behalf of the plaintiffrespondent.

2.

The suit is bad for specific averment as the plaintiff-respondent did not, at the time of his hearing in the Trial Court, say that he was ready and willing at all relevant time to perform his part of the contract. Neither was this point taken in their plaint.

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MEMORANDUM ON BEHALF OF APPELLANT WRITTEN SUBMISSIONS (A) THERE

WAS NO CONCLUDED CONTRACT BETWEEN THE PARTIES.

Section 2(h) of the Indian Contract Act 1872 reads “an agreement enforceable by law is a contract.” Thus for the formation of a contract there must be (i) an agreement, and (ii) the agreement must be enforceable by law. In the present case, the respondent by means of a letter expressed his will and desire to purchase the disputed land at Rs. 3000 per Katha. Since, the appellant had already received offers quoting amounts higher than the sum offered by the respondent, he rejected the proposal by not consenting to the terms laid down by the interested party and rejected it by course of postal communication. The appellant in this dispute further went on to add in the same letter that if the respondent was agreeable to purchase the land in question at Rs. 3300 per Katha then he can send Rs. 3000 in advance. The fact to consider and give attention to over here is that there never existed any offer to which the other party can give his consent and acceptance to. When the owner of the land rejected the sum of money offered per Katha by the interested party, it is there and then where the contract was rejected. It put an end to the original offer and cannot be revived by a subsequent acceptance. The appellant had made no offer to sell his land but merely made an invitation to offer by his letter Ext. 8. It is the respondent in this case who made an offer to purchase the land by his letter Ext. 2 to which the owner of the land didn’t give acceptance. So as a consequence, no contract arose. The latter half of Ext. 8 is only an invitation to offer and not a final offer as such. “An offer should be distinguished from an invitation to receive offers. An offer is the final expression of willingness by the offeror to be bound by his offer should the other party choose to accept it. Where a party, without expressing his final willingness, proposes certain terms on which he is willing to negotiate, he does not make an offer, but only invites the other party to make an offer on those terms.”1 In Harvey v. Facey2 the plaintiffs contended that by quoting their minimum 1

th

, 10 ed. 2010, pp. 20 (1893) AC 552

2

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MEMORANDUM ON BEHALF OF APPELLANT price in response to the inquiry the defendants had made an offer to sell at that price. But the Judicial committee turned down the suggestion. “Their lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the person making the inquiry.”

The principle of the aforementioned case was followed by the Supreme Court in McPherson v. Appana3. In that case the plaintiff offered to purchase a lodge owned by defendants for Rs.6000. He wrote the defendant’s agent asking whether his offer had been accepted and saying that he was prepared to accept any higher price if found reasonable. The agent replied: Won’t accept less than rupees ten thousand”. The plaintiff accepted this and brought a suit for specific performance. It was held that the defendant did not make any offer or counter-offer but was merely inviting offers. There was no assent to the plaintiff’s offer to buy at Rs. 10,000 and, therefore, no concluded contract. (i) THE COMMUNICATION OF PROPOSAL WAS INCOMPLETE In the present dispute, however, the contract would essentially have been binding if the offer made by the respondent to purchase the land by means of the letter Ext. 2 which was accompanied by an advance of Rs. 3000, was accepted by the owner of the land by means of postal communication. But this offer was never communicated to the other party. According to Section 4 of the Indian Contract Act 1872: “The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made”

Obviously, therefore, an offer cannot be accepted unless and until it has been brought to the knowledge of the person to whom it is made, as observed in Sultan Sadik v. Sanjay Raj Sabba.4 A judge remarked in Fitch v. Snedkar5: How can there be consent or assent to that of which the other party has never heard? Similar are the state of affairs in the present discussion where the letter Ext. 2 in which the offer was made from the respondent’s side to the other party which was supplemented by an advance never reached the offeree. The letter which was sent by registered 3

AIR 1951 SC 184 (2004) 2 SCC 377 5 (1868) 38 NY 248 4

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MEMORANDUM ON BEHALF OF APPELLANT post came back with the postal endorsement "unclaimed" and "absent". Thereafter the said bank draft was again sent to the defendant by registered post on 29-6-74 along with a letter of that date, Ext. 10, written by the plaintiff's lawyer wherein it was reiterated that the said amount was being sent "as advance" and this letter also came back undelivered. The owner of the land, Byomkesh Banerjee, then sent a letter to the other party on 29-6-74 being Ext. 2(a), wherein it was stated that the proposal made by the defendant to the plaintiff stood cancelled and the defendant would no longer sell the land.

When the purchaser had not sent any communication to the vendor regarding his readiness and willingness, had paid only an insignificant amount as advance, neither led evidence nor entered the witness box in support of his willingness, the Supreme Court held that the High Court had rightly upheld the dismissal of his suit for specific performance, as held in Pushparani S. Sundaram v. Pauline Manomani James6.

It is quite evident that on not hearing from Nani Gopal Banik under a reasonable time the appellant assumed that the former was not interested in purchasing the land and hence sent a letter informing him that he would no longer sell the land which is plausibly fair.

6

(2002) 9 SCC 582

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MEMORANDUM ON BEHALF OF APPELLANT (B) THE SUIT IS NOT MAINTAINABLE FOR WANT OF SPECIFIC AVERMENT.

The decree for specific performance of the contract by the Trial Court is improper and trivial. According to Section 16 (c) of the Specific Relief Act, 1963. “Specific performance of a contract cannot be enforced in favour of a person 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”

The expression aver and prove would indicate that the plaintiff must not only prove at the trial his readiness and willingness but must also aver the same in the plaint. The plaintiff-respondent during the trial court proceedings neither took this point in their memorandum nor pleaded it in the court house. The necessity of such an averment would also appear from the provisions of Explanation (ii) to Section 16 wherein it has been provided that "the plaintiff must aver performance of, or readiness and willingness to perform the contract, according to its true construction". Even under the preceding Specific Relief Act of 1877, which did not contain any such provision analogous to Section 16(c) requiring the plaintiff to plead as well as to prove his readiness and willingness at all relevant time during the contract, it was nevertheless held that the plaintiff was to plead as well as prove such readiness and willingness and was to fail if he had failed to do so. This fact appears from the decisions of the Privy Council in Ardeshir v. Flora7. Gomathinayagam v. Paliniswami8, Prem Raj v. D.L.F. Housing & Construction Ltd.9, Ouseph Varghese v. Joseph Aley10

The law was that a suit for specific performance without any averment in the plaint as to the plaintiff's readiness and willingness was not maintainable. If it may so be reiterated, the plaintiff-

7

AIR 1928 PC 208 [1967] 1 SCR 227 9 [1968] 3 SCR648 10 [1970]1SCR921 8

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MEMORANDUM ON BEHALF OF APPELLANT respondent did not take this point into account while pleading in the Trial Court and the court in ignorance of the rule mentioned in Section 16(c) decreed a suit for specific performance. The

counsel for appellant is of the view that such an improper decree should well be reversed for the betterment of the suit. In a case the court ruled out specific performance of the contract on the sole ground that the plaintiff, at the time of his hearing, did not say that he was willing and ready at all relevant time to perform his part of the contract; as held by the court in Manick Lal Seal v. K. P. Choudhury11.

11

AIR 1967 Cal 115

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MEMORANDUM ON BEHALF OF APPELLANT PRAYER FOR RELIEF Wherefore, in the light of the facts stated, arguments advanced and authorities cited, the appellants humbly pray that the Supreme Court of India be pleased to adjudge and declare that:

1. There was no concluding contract between the two parties. 2. The decree of specific performance is improper.

Or, pass any order, decree as the Court may deem fit in the lights of Justice, Equity & Good Conscience.

All of which is humbly prayed.

Place: New Delhi Date: 06/03/2013

COUNSEL ON BEHALF OF THE APPELLANT ABHINAV K SHUKLA

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