TC – 11R

De Novo INTRAMOOT COURT COMPETITION, 2018

Before
THE HIGH COURT OF DELHI

MR NAMBIYANDAN SUBRAMANIYAM …………………………………..……… PLAINTIFF

v.

MRS. NALLAMUTHU KRISHNAN …………………………………...... DEFENDANT

[MEMORIAL ON BEHALF OF THE RESPONDENTS]

 MEMORIAL ON BEHALF OF DEFENDANT
De NOVO INTRAMOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

Table of authorities ................................................................................................................ 3.

Statement of Facts ................................................................................................................ 5.
Issues raised ............................................................................................................................. 6.
Summary of Arguments ......................................................................................................... 7
Arguments Advanced..................................................................................................................... 9
I. That the plaint filed by the plaintiff is not maintainable before the hon’ble Delhi high
court.
II. That the aforesaid advertisement in the newspaper was an ‘invitation to treat’ and
not an proposal.
A. The Contents of the Advertisement were such that it showed no intention of the
B. advertisement is for the publicity of the shop
C. limited number of product makes it an invitation to treat
D. There is no legal intention to create a legally binding contract
E. Such type of Advertisement in Newspaper constitutes an Invitation to treat.
F. Conditions for an advertisement in newspaper to be considered as an proposal.

III. Whether the refusal to sell the motorcycle is justified?.............................. 16

IV. Whether the proposal via e-mail was accepted or not?.............................. 18

Prayer .................................................................................................................................... 20

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TABLE OF AUTHORITIES

CASES

1. Dayal Singh v. Union of India (2003) 2 SCC 593

2. Mahesh v. B (1992) IIMLJ 444
3. Macpherson v. appanna AIR 1951 SC 184
4. JN Bagga v. All India Reporter Ltd AIR 1969 Bom 302
5. Partridge V Crittenden [1968] 1 W.L.R 1204
6. Matanhella brothers v. shri mahabir industries pvt. ltd. AIR 1970 Patna 91
7. Ziglin V. Players MH, L.P.,36 S.W.3d 786,789(Mo. Ct. App. 2001)
8. Leonard v. PepsiCo, Inc. 88F. Supp. 2d 116, (S.D.N.Y. 1999)
9. Alfferd Schonlank and Anr. V. A. Muthunayana Chetti, ( 1892 ) 2 Mad LJ 57
10. ONGC V. Utpal Kumar Basi And Others, JT 1994 (5) SC 1
11. Speech and SoftwareTechnologies(India) (P) Ltd. (2009) 1SCC 475
V. Neos Interactive Ltd. (2009) 1SCC 475

STATUTES

Indian Contract Act, 1872

Civil Procedure Code,1908

Delhi High Court Act, 1966

Delhi High Court (Amendment) Act, 2003

Delhi High Court (Amendment) Act, 2015

TREATISES

Williston and Corbin Treatise Joseph M. Perillo ed., rev. ed. 1993

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BOOKS

C.K. Takwani, CIVIL PROCEDURE with Limitation Act, 1963, 8th Edition (2017)

Surender Malik & Sudeep Malik, SUPREME COURT ON CONTRACT AND SPECIFIC
RELIEF, VOL. 1

Dr. Avtar Singh, CONTRACT & SPECIFIC RELIEF, Twelft Edition, 2017

LIST OF ABBREVIATIONS

Abbreviation Full Form

S. Section
CPC Code of Civil Procedure
Hon’ble Honourable
Art. Article
v. Versus
SC Supreme Court
SCR Supreme Court Reports
SCC Supreme Court Cases
ORS Others
ANR Another
& And
ED Edition
HC High Court
ADD Advertisement
ICA Indian Contract Act

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STATEMENT OF FACTS

Backdrop

 Mrs. Nallamuthu Krishnan has just bought “A & O Tatneft” and, anxious to please the
locals, decides to put an advertisement in the local paper stating that she will sell a
famous motorcycle Doyle Silverfield at a discount price of Rs. 20,00,000 instead of the
recommended retail price of Rs. 50,00,000.
 It also states that there are only 10 such motorcycles available.
 Mrs. Nallamuthu Krishnan has recently bought a computer from her daughter, Ms.
Nallaban Krishnan, to help her with the running of the shop.
 The advertisement states that anyone wanting Doyle Silverfield should contact Mrs.
Nallamuthu Krishnan in person at the shop, “A & O Tatneft” or e-mail her at
nallamuthukrishnan@A&OTatneft.co.in.

The Proceedings

 The advertisement appears in the local paper, ‘Hapkloph Times’ on Saturday i.e
September, 2018.
 Mr. Nambiyandan Subramaniyam sees the advertisement at 14:17 on the Saturday and
immediately sends an e-mail to Mrs. Nallamuthu Krishnan ordering two Doyle
Silverfield.
 The e-mail is received in Mrs. Nallamuthu krishnan’s machine at 15:03 on Saturday.
 On Saturday evening Mrs. Nallamuthu Krishnan realizes that the discount was too
generous as she is making no money on the motorcycle and people are not coming to the
shop and buying lots of other motorcycles as she had hoped.
 She phones the local paper, asking them to put notice in the next day informing people
that the discount price is no longer available.
 The Sunday paper, ‘hapkloph Sunday times’, is published at 08:13 on Sunday morning
and it is delivered to Mr.nambiyandansubramaniyam at 10:07. Mrs. Nallamuthu Krishnan
opens for business at 09:03 on the Sunday. She reads Mr. nambiyandansubramanuyiam’s
e-mail at 10:50, but refuses to sell him the motocycle. She replies stating that the discount
is no longer available.

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STATEMENT OF ISSUES

I.
Whether the plaint filed by the counsel is maintainable before the Hon’ble High
Court of Delhi?

II.
Whether the aforesaid advertisement in the newspaper is a proposal or invitation to
treat?
III.
Whether the refusal to sell the motorcycle is justified?

IV.
Whether the proposal via e-mail was accepted or not?

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SUMMARY OF ARGUMENTS

I. That the plaint filed by the plaintiff is not maintainable before the hon’ble Delhi
high court.

It is humbly submitted before the Hon’ble High Court of Delhi that the plaint filed by Mr.
Nambiyandan Subramaniyam cannot be filed directly in the Hon’ble High Court of
Delhi. When there are two forums available to the plaintiff, the plaintiff has to file the
suit at the Court of the lowest grade. The reasoning of section 15 of the Code of Civil
Procedure that every suit should be instituted in the Court of the lowest grade competent
to try it, is intended for the protection of the Courts of higher grade from over-burdening.
This is not what the rule of law is meant for. Unnecessarily overburdening the Court
system when there is efficacious machinery available, the ingenuity making averment in
the plaint regarding fixation of the valuation for the purpose of jurisdiction, will invest
this Court with the jurisdiction to try the suit. For the reasons stated above, we pray that
this plaint should be returned with a direction that the same may be filed in the Court of
District Judge having jurisdiction to deal with the matter.

II. That the aforesaid advertisement in the newspaper was an ‘invitation to treat’ and
not an proposal.

It is humbly submitted before the Hon’ble High court that the advertisement by Mrs.
Nallamuthu Krishnan does not satisfy the pre-requisites of a valid proposal as defined in
the section 2(a) of Indian Contract Act, 1872 . Hence, the advertisement is mere publicity
of the new arrivals in the showroom. It informs public of the stock and brand of the
motorcycle. There is no intention to seek any assent thereto. It is very reasonable from
the contents of the advertisement to comprehend that neither the offeror nor the Offeree
reading the advertisement has any intention to make legal obligations, Since there is no
description or terms and conditions for a valid consideration. Hence this is a perfect
example of invitation to treat as opposed to the contentions of the plaintiff that this ad is
an proposal.

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III. That the refusal to sell the motorcycle by the defendant is justified.

According to Section 3 of the Indian Contract Act, 1872, “the communication of

revocation is deemed to be made by any act or omission of the party revoking, by which
he intends to communicate the revocation or has the effect of communicating with”. In
the present situation Mrs. Nallamuthu Krishnan makes an invitation to proposal in the
form of the afore mentioned advertisement and revokes it thereafter. There was no
acceptance in the mentioned case, hence Mrs. Nallamuthu Krishnan was not even obliged
to send the revocation but out of courtesy he sent it. There is no question, of illegality of
revocation as there was no dlegal relationship established.

IV. That the proposal via email was not accepted.

That the communication in the form of e-mail, made to Mrs. Nallamuthu Krishnan at
14:17 on Saturday by Mr. Nambiyandan Subramaniyam was a proposal which was
formally refused by Mrs. Nallamuthu Krishnan as a Proposee have the choice to either
accept the Proposal or reject it, the latter of which was done by the defendant.

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ARGUMENTS ADVANCED

I. THAT THE PLAINT FILED BY THE PLAINTIFF SHOULD HAVE BEEN

FILED IN THE DISTRICT COURT.

It is humbly submitted before the hon’ble court that it is common knowledge that the suit must
always be filed in the lowest subordinate court that is competent to entertain such a suit. Here
competency refers to pecuniary jurisdiction, which shall be determined by High Court from time
to time. 1.

This is mentioned in the Section 15 of the Code of Civil Procedure, 1908 according to which:

Every suit shall be instituted in the Court of the lowest grade competent to try it.2

In the present plaint the lowest court, competent to try such a case is not the Hon’ble High court
of Delhi but the subordinate court at District level.

The pecuniary jurisdiction of the Hon’ble court is mentioned in Section 5 of the The Delhi High
Court Act, 1966:

(2) Notwithstanding anything contained in any law for the time being in force, the High Court of
Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every
suit the value of which exceeds 2[2][rupees five lakhs.]

The term ‘Rupees five lakhs’ was substituted for ‘rupees twenty lakhs’ by the The Delhi High
Court (Amendment) Act, 2003 which was later substituted for ‘rupees two crore’ in the Delhi
High Court (Amendment) Act, 2015:

2. In sub-section (2) of section 5 of the Delhi High Court Act, 1966, for the words ‘‘rupees
twenty lakhs’’, the words ‘‘rupees two crore’’ shall be substituted.3

1
Section 15 of civil procedure code,1908
2
Section 15 of the Code of Civil Procedure, 1908
3
Section 2 of Delhi High Court (Amendment) Act, 2015

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Full effect has to be given to the language employed to sub-section (2) of Section 5
“notwithstanding anything contained in any law for the time being in force” and that can be done
only by saying that for purposes of Section 92 of the Code, the Court of the District Judge Delhi,
will be the principal Civil Court of original jurisdiction in every suit the value of which does not
exceed two crore.

The valuation of the suit is decided on the ‘market value’ of the product in dispute.

‘Market value’ is defined in the case of Dayal Singh v. Union of India 4:

“Price that a willing purchaser is ready and willing to proposal as a consideration to the seller”

The plaint filed by the plaintiff seeks to make a contract valid which will be worth not more than 40
lakhs, hence this falls out of the specified value of the original civil jurisdiction of high court of
Delhi.

The plaint filed by the plaintiff is worth a remedy of 40,00,000, the competent court should be made
the adjudicator of the case to ease the overburdening of High Court .The Plaintiff, by directly
approaching the Hon’ble High Court have bypassed the due process of law. The present plaint,
which is supposed to be filed under the lowest court empowered to entertain the case, is not
supposed to filed in the Hon’ble High Court directly, had this be the case it would disrupt the legal
mechanism prevalent in the country. The validity of section 15 and its significance is highlighted in
the case of HM Mahesh v. B5 saying ‘Section 15 says that a suit shall be instituted only in the
lowest Court competent to try it. It cannot be denied that the City Civil Court is Competent to try
the same and, therefore, when it is available, I do not think that the petitioner can be permitted to
institute the petition in the High Court". "In the circumstances, the petitioner has to institute his
petition only before the City Civil Court and the High Court need not entertain this petition." 6

4
(2003) 2 SCC 593
5
(1992) IIMLJ 444
6 H.M. Mahesh vs B on 24 March, 1992

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II. THE ADVERTISEMENT IN THE NEWSPAPER IS AN INVITATION TO

TREAT

A. The Contents of the Advertisement were such that it showed no intention of

the defendant to constitute a Proposal

According to section 2(a) of Indian contract act,1872, “when one signifies to another his
willingness to do or to abstain from doing anything with a view to obtaining the assent of that
other to such act or abstinence is said to make a proposal.”7

The advertisement lacks any specific description of the product and terms and conditions on
which acceptance can be made. on the first reading of advertisement the words like “will sell a
famous motocycle”, “anyone wanting doyle silverfield should contact Mrs. Nallamuthu Krishnan
in person or email her” shows that she is willing to sell her motorcycle if someone shows an
interest to give an proposal for the same. It is like cases in which you proposal to negotiate, or
you issue advertisements that you have a stock of books to sell, or houses to let, in which case
there is no proposal to be bound by any contract. Such advertisements are proposals to negotiate
— proposals to receive proposals. 8

B. Advertisement is for the publicity of the shop

“The expression proposal for sale is common in English as well as Indian statutes. In order to
canvass the point of view of the word proposal treatment Is equivalent or synonyms to a proposal
in Indian courts.”9
In Macpherson v. Appanna case, the Supreme Court held that even after the proposal and counter
proposal no contract has been concluded. In the present suit there Is only proposal and not even
counter proposal hence there is no question of a contract or an agreement.

7
Section 2(a) of Indian contract act, 1872
8
1980 scc online cal 20: air 1981 cal 37
9
Macpherson v. appanna AIR 1951 SC 184

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“Though the advertisement contains the reference to prices yet they do not create a right In the
reader of advertisement to compel the sale at that price the reason is again obvious, the mention
of price in the advertisement is not a proposal in the sense In which that expression is understood
as the Indian contract.”10 The newspaper advertisement is meant to attract proposals and solicite
the public.

“More broadly the reasonable ration is grounded in an empirical assumption that both
advertiser and consumer typically understand that a general advertisement is a form of publicity
and solicitation and not the penultimate step in the creation of a legal relationship.” 11

C. Limited number of product makes it an invitation to treat

“A newspaper advertisement is in the nature of an intimation which serve 2 purposes, one is that
it discloses the fact that the advertiser has certain articles it further makes it known that he is
willing to sell. The willingness to sell is to be inferred from the facts itself.” 12 The fact that he
had 10 bikes itself makes it clear that it cannot be general proposal had that be the case he would
have been bound by too many contracts. “If an advertisement were constitute to be an proposal
the advertiser could be bound by excessive number of contracts requiring delivery of goods far in
accesses of amount available.” 13

D. There is no legal intention to create a legally binding contract

The rule that an advertisement is not an proposal is an application of the definition of proposal.
According to section 2(a) of Indian contract act,1872, “when one signifies to another his
willingness to do or to abstain from doing anything with a view to obtaining the assent of that

10
JN Bagga v. All India Reporter Ltd AIR 1969 Bom 302
11
Corbin, supra note 4, dealta 2.4, at 116 (“usually, neither the advertiser nor the reader of the notice understands
that the reader is empowered to close the deal without further expression by the advertiser.”)
12
JN Bagga v. All India Reporter Ltd AIR 1969 Bom 302
13
Mesaros, 8485 F .2d at 1581

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other to such act or abstinence is said to make a proposal.” 14 The key to this definition is that the
other person in justied in understanding that a legally binding relationship has been proposed to
protect the reasonable expectation of parties.
“There is a considerable support from the view that it is essential for the plantif who wishes to
establish the existence of a contract to prove that the creation of a legal relationship was
intended. If no such intention can be established, there can be no contract.”15
The line in the facts which reads “anyone wanting to buy should contact Mrs. Nullumuthu
Krishnan in person in shop or email her” directly implies a notice of goods available and an
invitation to examine, negotiate, and buy, but it is not reasonably understood as an proposal the
acceptance of which obligates the advertiser to sell rather our client is seeking proposal from the
other party for the same to come to deal and make a legally binding contract.

E. Such type of Advertisement in Newspaper constitutes an Invitation to treat.

Fundamental feature of an proposal is that it expresses a definite willingness to be bound by a

contract on the part of the person making the proposal. The proposal sets out the terms upon
which the Offeror is willing to enter into contractual relations with the offeree. The essential
thing to emphasis about an proposal is that, once it is accepted the offeree, a legally binding
contract has been entered into, and failure to perform what has been promised will result in the
breach of contract.
“Generally advertisement will be treated as an invitation to treat and not obligations to enter into
a binding agreement.”16these advertisements are usually for goods that are for sale and can
appear in places including newspapers, catalogues, magazines, etc.
For an advertisement to be an proposal it has to be very specific and detailed.
This case lack the details with regards to the subject matter that is Dyole Silverfield motorcycle,
which makes this advertisement an invitation to treat and not an proposal for sale.

14
Section 2(a), Indian Contract Act, 1872
15
Subbammal v. masanamuthu thevar and Ors. (1998) 1 CTC 36
16
Partridge V Crittenden [1968] 1 W.L.R 1204

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Advertisement lacking specificity of terms is not an proposal

.
F. Conditions for an advertisement in newspaper to be considered as an proposal
For an advertisement in newspaper to be considered as an proposal

1. The most important thing is intention of the proposer to in enter into a legal relationship.
This relation is such where by a breach would result into a court proceeding. By giving
every detail like where the money should be transferred for the bike, features of bike ,first
come first serve basis or how the add will deal with so many proposals. Mere
communication of the prevailing rate of product does not amount to proposal17.
In the present case there’s no intention, hence no details are mentioned. The defendant only
seeks for proposals from public at large.

2. Another important aspect is that advertisement should contain very specific details of the
product which is to be sold and from the detailing itself it should be very clear in mind of
the promisee,for a person to buy a product he must know every specifications of the
product like whether the product is new or old ,in case of bike how is engine, the mileage
etc. Then only consensus ad idem18 can be estabillished. In the famous case of Ziglin v.
players mh19 its is said that advertisement can be considered an proposal when it contains
more than the usual details.
In the present case if we assume that a contract is made then there is no specification of
anything neither the product nor the way transaction would proceed.

3. If it is considered to be an proposal an advertisement one can never have enough stock to

deal with the needs of the general public because he does not know how many people may
respond, when such advertisement is put in newspaper it is the disclousure of the products
and to attract the public to come make an proposal. In leonard v. pepsico.20 the
advertisement made was referred to a catalogue was referred for the details of the proposal

17
Matanhella brothers v. shri mahabir industries pvt. ltd.
18
Section 13 ica,1872
19
Ziglin V. Players MH, L.P.,36 S.W.3d 786,789(Mo. Ct. App. 2001)
20
Leonard v. PepsiCo, Inc. 88F. Supp. 2d 116, (S.D.N.Y. 1999)

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.And it was found that there is nothing as such in the catalogue which the advertisement
shows because they couldn’t comprehend the no. of proposals they might receive.
In the present case the defendant only states her discounted price and mentions no clause in
the add that who will be served and how 10 bikes will be dealt if more than 10 people
respond.this shows that her intention was only to attract propsosals for her shop and make
her shop run better .This is also a technique called bait and switch in which seller displays
some goods on discount price to attract customers to the shop.

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III. THAT THE REFUSAL TO SELL THE MOTORCYCLE BY THE

DEFENDANT IS JUSTIFIED.

The proposal to buy motorcycle was made on Saturday, the email was received on Mrs. Nallamuthu
krishnan’s machine on Saturday at 15:03 but She didn’t open the machine on that day. Up to this
point there is only invitation to treat and proposal, there is no agreement or consideration. It is held
that “in the absence of consideration for the promise to keep the proposal open for a time the
promise is a mere nudum pactam.”21

In the present case the email received by the Mrs. Nallamuthu Krishnan constitutes a Proposal as
opposed to the contention of the Plaintiff that this email constitutes an acceptance to the Proposal
made by the defendant. And the Revocation of such a Proposal was communicated to the Plaintiff
by an email dated 1st September, 2018 at 15:03 disregarding of the fact that the advertisement for
discontinuity of the discount period was notified after the aforementioned email.

According to section 5 of Indian Contract Act, 1872, “A proposal may be revoked at anytime before
of the communication of its acceptance is complete against the proposer but not afterwards.” 22 But
in this case the revocation is of the invitation to treat and not proposal, which creates no legal injury
to the plantiff. “Therefore mere advertisement would not constitute an integral part of the cause of
action.” 23
It is well settled legal position that an agreement to enter into an agreement is not
enforceable nor does it confer any right upon the parties. 24

3.1 There is no consideration passed by the defendant and the plaintiff.

The plaintiff replied to the advertisement by showing his willingness to buy two bikes. He
did not even bother to ask how he is going to make collateral transactions and any kind of
specifications which is necessary to buy a product. This itself shows that the plaintiff did
not have final intentions to enter into a legal contract. Considering the present situation if its
is deemed that contract is established then what about the consideration? The defendant in
the advertisement never stated that she will sell the motorcycle to whoever responds to the
add. Which shows that her intentions were to further negotiate and reach to an

21
Alfferd Schonlank and Anr. V. A. Muthunayana Chetti, ( 1892 ) 2 Mad LJ 57
22
section 5 of Indian Contract Act, 1872
23
ONGC V. Utpal Kumar Basi And Others, JT 1994 (5) SC 1
24
Speech and SoftwareTechnologies(India) (P) Ltd. V. Neos Interactive Ltd. (2009) 1SCC 475

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agreement.The plaintiff misinterprets the text of the advertisement and assumes that
contract is complete. In fact a reasonable expectation would be to contact the seller and
make an proposal.

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IV. THE PROPOSAL VIA EMAIL WAS NOT ACCEPTED.

Essentials of a proposal

Word proposal is often replaced by another word ‘offer’, but it must be noted that the word
‘offer’, is nowhere defined in Indian Contract Act, 1872. As per Indian Contract Act,1872
“when one person signifies to another his willingness to do or to abstain from doing anything,
with a view to obtaining the assent of that other to such act or abstinence, he is said to make a
proposal.”25

In present case our client gave an advertisement showing her willingness to get an proposal to
further negotiate on the terms and make a legally binding contract. After seeing the
advertisement Mr. Nambiyandan Subramaniyam, he misinterpreted our client’s intention and
thought that advertisement was a general offer, interested in making a deal he send his
acceptance via email to our client, which actually is not an acceptance but an proposal from Mr.
nambiyandan subramaniyam to our client. Hence the legal intention of both the parties does not
match with each other.

Communication via E-mail

E-mail is a non instantaneous way of communication, hence the rules are different for email
when compared to a communication over other electronic ways.

When Mr. Nambiyandan Subramaniyam saw the advertisement in the newspaper he reply to
our clients invitation by sending an proposal via E-mail, our client haven’t opened her machine
and before she could do that she already takes back her invitation to treat by publishing another
advertisement in the newspaper. So in totality what took place over here is that before reading
the mail of proposal from Mr. Nambiyandan Subramaniyam our client withdrew her invitation
to treat from the newspaper and hence there is no more an invitation open to make an proposal
when our client got a notice of the proposal of Mr. Nambiyandan Subramaniyam via e-mail.
Hence his proposal was never accepted in the first place.

25
Section 2(a) of Indian Contract Act, 1872

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And even if just for a second we take into consideration the argument of Mr. Nambiyandan
Subramaniyam that his communication via E-mail was complete then too it was a mere
proposal which can be rejected by our client at any point of time without giving rise to any
legal obligation on anyone.

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PRAYER

WHEREFORE in the light of the facts stated, arguments advanced and authorities cited, the
DEFENDANT humbly prays before the Honourable Court, to be graciously pleased to:

1. Declare that the present petition has been dismissed and refer .
2. Declare that the present plaint to be sent to the correct subordinate court.
3. Declare that the advertisement by the respondent was not a proposal but merely a invitation to
treat and thus there was no contractual obligations between the defendant and the plaintiff.

And/ Or

Pass any other order that the Court may deem fit in light of light of Justice, Equity and Good
conscience.

And for this, the Respondent, as duty bound as ever, shall humbly pray.

RESPECTFULLY SUBMITTED

11R

(COUNSEL ON BEHALF OF THE DEFENDANT)

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