Memorial Tort- Moot court exercise

IN THE CIVIL COURT OF CALCUTTA AT CALCUTTA CIVIL SUIT NO…………../2014

UNDER THE

Under Section 9 of the Code of the Civil Procedure

-IN THE MATTER OF-

MR. ALOK BANERJEE………………………………………………….………………………….PLANTIFF VERSUS SHIPPING COMPANY………………………………………………………………………………DEFENDANT

Memorial on behalf of the Defendant DRAWN AND FILED BY COUNSEL ON BEHALF OF DEFENDANT

RASHI PANDIT ROLL NO. – 402 SEMESTER – I ‘A 1 | Page

TABLE OF CONTENT

Particular

Page No.

1. List of Abbreviations……….…………………………………………………………3 2. Index of authorities……….…………………………………………………………...4  Books referred…….…………………………………………………………..4  Statues…………….…………………………………………………………..4  Websites………….…………………………………………………………...4  List of cases…….……………………………………………………………..5 3. Statement of Jurisdiction.……………………………………………………………..6 4. Statement of Facts…………………………………………………………………….7 5. Statement of Issues……………………………………………………………………8 6. Statement of Arguments………………………………………………………………9 7. Arguments Advanced…………………………………………………………………10 8. Prayer………………………………………………………………………………….14

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ABBREVIATIONS



&

-

And



A.I.R.

-

All India Reporter



Hon’ble

-

Honorable



CPC

-

Civil Procedure Code



Sec

-

Section



Co.

-

Company



Vs.

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Versus



Ltd.

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Limited



Rs.

-

Rupees



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INDEX OF AUTHORITIES

LIST OF BOOKS  Ratanlal & Dhirajlal - The Law of Torts. Twenty Sixth Edition  Dr. R.K. Bangia- Law of Torts. Twenty Second Edition

 Ramaswamy Iyer's The Law of Torts, Tenth edition.  Winfield & Jolowicz's Tort, Eighteenth edition.

STATUTES  Code of Civil Procedure, 1908

LIST OF WEBSITES  www.manupatra.com

 www.lexisnexis.com/in/legal  www.westlawindia.com  www.scconline.com

LIST OF CASES

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1. Gloucester Grammar School Case, (1410) Y.B. Hill……………………………………………………………………………10 2. Mogul Steamship Co. v. McGregor Gow and Co. 1892 A.C. 25…………………………………………………………….…………………..11 3. Bradford Corp. (Mayor of) v. Pickles, (1895) A.C. 587……………………………………………………………………………..11 4. Vishnu Datta v. Board of H.S. & Intermediate education, U.P. A.I.R. 1981 All. 46…………………………………………………………………………12 5. P. Seetharamayya v. Mahalakshmamma A.I.R. 1958 A.P. 103……………………………………………………………………...12

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STATEMENT OF JURISDICTION

The Plaintiff has approached this Hon’ble Civil Court under Sec - 9 of CPC. The Defendant humbly submits to the jurisdiction of this Hon’ble Civil Court. The defendant has opposed the plaintiffs approach to the Civil Court of Calcutta under section 9 of The Civil Procedure Code, 1908. The counsel for the defendant most humbly and respectfully submits to the jurisdiction of this Civil Court which has the power under its jurisdiction under Section 9 of The Civil Procedure Code to hear the present matter and adjudge accordingly which reads as: Courts to try all civil suits unless barred – the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature expecting suits of which their cognizance is either on expressly or impliedly barred. Explanation1. A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation2. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in explanation 1 or whether or not such office is attached to a particular place.

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STATEMENT OF FACTS

The Defendant most respectfully and humbly submits as under:

 Mr. Sunil, Mr. Rajesh, Mr. Sanjeet & Mr. Sohan were the owner of a shipping company.  They used to ship clothes from one port to another.  Mr. Ram and Mr. Shyam planned to join their business together.  Later all six of them agreed to run their business together with their head office in Calcutta.  Offered special terms to new customers.  Mr. Alok Banerjee sued all the six partners for the loss caused to him because of the competition in the market.

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STATEMENT OF ISSUE

Issue 1: Whether Damnum Sine Injuria applies in this case?

Issue 2: Whether the Plaintiff can claim compensation from the defendant?

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SUMMARY OF ARGUMENTS

I.

Whether Damnum Sine Injuria applies in this case?

It is humbly submitted before the Hon’ble court that Damnum Sine Injuria applies in this case. The Defendant did not infringe any legal rights of the plaintiff. They have by lawful means acted to protect and extend their trade and increase their profit. In this case, the plaintiff did suffered damage but there was no legal injury.

II.

Whether the Plaintiff can claim compensation from the defendant?

It is humbly submitted before the Hon’ble court that the plaintiff is not entitled of any damages as no legal injury has been caused to the plaintiff by the defendant. They all came together to extend their trade and increase their profit, which is not wrong and it doesn’t infringe any legal right of the plaintiff. So, no compensation can be claimed by the plaintiff.

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ARGUMENTS ADVANCED

Issue 1: WHETHER DAMNUM SINE INJURIA APPLIES IN THIS CASE?

It is humbly contended before the hon’ble court that ‘Damnum Sine Injuria’ perfectly applies in this case. The legal maxim, “Damnum Sine Injuria” contains two very important terms, ‘damnum’ and ‘injuria’. Damnum means damage, whereas injuria stands for legal injury. It means damage which is not coupled with an unauthorized interference with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. “Damnum may be abseque injuria, as if I have a mill and my neighbor builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged…… but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.”1 In the Gloucester Grammar School Case2, there the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Thus, setting up a rival school by the defendant is not actionable even though the plaintiff suffered loss because of competition. Similarly in this case, the plaintiff suffered loss as the defendant gave offers to their new customers but there was no legal damage. 1 Hankford J, Said 2 (1410) Y.B. Hill 11 Hen, 4 of 47, p. 21,36 10 | P a g e

In Mogul steamship Co. v. McGregor Gow and Co.,3 a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits. Similarly in this case, the defendant was just exercising its right to free trade and the act done by them was to extend their trade and gain profit. Even if the Defendant had evil intent, they cannot be held liable for the compensation as, in Bradford Corporation (Mayor of) v. Pickles,4 the house of lords held that even if the harm to the plaintiff has been caused maliciously, no action can lie for the same unless the plaintiff can prove that he has suffered injuria. Thus, a legal act though motivated by malice, will not make the defendant liable. Therefore, it is humbly submitted before this court that ‘Damnum sine injuria’ arises in the present case and the defendant is not liable for any damage suffered by the plaintiff.

3 (1892) A.C. 25 4 (1895) A.C. 587 11 | P a g e

Issue 2: WHETHER THE PLAINTIFF CAN CLAIM COMPENSATION FROM THE DEFENDANT? It is humbly contended before this court that the defendant cannot be held liable to pay compensation to the plaintiff as there is no legal injury or infringement of legal right in this case. The plaintiff did suffer damage but such a case is not enforceable in law for damages. Claiming compensation does not fall under any of the heads recognized in common law. As said by Lord Wright, “The mere fact that a man is injured by another’s act gives us in itself a cause of action, if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.”5 In Vishnu Datt v. Board of H.S. & intermediate education, U.P.,6 Vishnu datt, an intermediate student, was detained for shortage of attendance. His detention was found by the court to be illegal as the attendance registers of the college were not maintained according to the regulations of the board. As a consequence of the detention, he lost one year. His action to claim compensation was not allowed as the plaintiff’s claim did not fall under any of the heads recognized in common law, and moreover, the statutory provision did not provide for any compensation in the circumstances mentioned above. In P. Seetharamayya v. Mahalakshmamma,7 The four defendants tried to ward off the flow of water into their plot from a stream by digging a trench as well as putting up a bund on their lands. The fifth defendant acting independently put up bunds on her land to prevent the flow of water to her land. As a result, the rainwater now flowed to the plaintiff’s land causing damage to them. The plaintiff in his suit requested for damages amounting Rs. 300 for the loss cause due to the flow of the water to their land.

5 Grant v. Australian knitting mills, (1935) All E. R. 209, 217; (1936) A.C. 85, 103, per Lord Wright 6 A.I.R 1981 All. 46 7A.I.R 1958 A.P. 103 12 | P a g e

The High court held that the owner of land on or near a river has a right to build a fence upon his ground to prevent damage to his ground by the overflow of river, even though as a result of the same, the overflowing water is diverted to the neighbor’s land and causes damage. This being a clear case of Damnum Sine Injuria the defendants were not held liable for the harm to the plaintiffs. Similarly in this case, the plaintiff has not suffered any legal injury but damage, so Damnum Sine Injuria applies in this case, due to which plaintiff cannot be granted any compensation. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Keeping in mind the above arguments, it is humbly submitted before this Hon’ble Civil Court that the defendant has committed no tort and thus can on no grounds be held liable for compensation under the law of torts in the civil court of justice.

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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, the defendant humbly prays before the court to declare that:

1. The Defendant shall not be liable, as no legal injury was caused. 2. The plaintiff is not entitled to get compensation. And pass any order in favor of the Defendant that it may deem fit in the ends of justice, equity and good conscience.

All of which is most respectfully submitted before this court.

Counsel on behalf of the Defendant

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