XXXP

IN THE

LEARNED DISTRICT & SESSIONS COURT OF JODHPUR

AT JODHPUR

IN THE MATTER OF

PUBLIC WORKS DEPARTMENT...………………………….. PLAINTIFF

(REPRESENTED BY THE COUNSEL FOR PLAINTIFF)

V.

GEHLOT GRANITES TRADING CO....……………………DEFENDANT

(REPRESENTED BY THE COUNSEL FOR DEFENDANT)

CIVIL SUIT NO. XXX/2024

[UNDER ORDER VII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908]

MEMORIAL ON BEHALF OF THE PLAINTIFF

DRAWN AND FILED BY THE COUNSEL FOR THE PLAINTIFF

 TABLE OF CONTENTS

Contents
INDEX OF AUTHORITIES .......................................................................................................................... iii
STATEMENT OF FACTS ............................................................................................................................. iv
STATEMENT OF JURISDICTION ................................................................................................................ vi
ISSUES FOR CONSIDERATION ................................................................................................................. vii
SUMMARY OF ARGUMENTS ................................................................................................................. viii
1. A LEGALLY BINDING CONTRACT EXISTED BETWEEN PWD AND GGTC. ..................................... viii
2. THE CONSIGNMENT NOTE REQUESTING PRICE REVISION CANNOT BE TERMED AS A COUNTER
OFFER ................................................................................................................................................ viii
3. PWD IS ENTITLED TO SEEK SPECIFIC PERFORMANCE ............................................................... viii
ARGUMENTS ADVANCED ........................................................................................................................ 1
1. A LEGALLY BINDING CONTRACT EXISTED BETWEEN PWD AND GGTC. ....................................... 1
1.1. Existence of Original Contract ............................................................................................. 1
1.2. Terms of Original Contract .................................................................................................. 2
2. THE CONSIGNMENT NOTE REQUESTING PRICE REVISION CANNOT BE TERMED AS A COUNTER
OFFER .................................................................................................................................................. 3
2.1. Counter Offer vs Request for Modification ......................................................................... 3
2.2. No Counter-Offer Post Acceptance ..................................................................................... 4
2.3. Lack of Mutual Agreement on Introduced Term ................................................................. 5
3. PWD IS ENTITLED TO SEEK SPECIFIC PERFORMANCE ................................................................. 6
3.1. Breach of Contract by refusal to deliver ............................................................................. 6
3.2. Specific Performance as most suitable remedy .................................................................. 6
3.3. Unique Nature Of Granite and Timing Of Project ............................................................... 7
3.4. Estoppel and Reliance ......................................................................................................... 8
3.5. Price Escalation due to market changes.............................................................................. 8
PRAYER FOR RELIEF ................................................................................................................................. 9
 INDEX OF AUTHORITIES

Cases
Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co. , AIR 1966 SC 543 ... 2
Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256 (CA). ........................................................ 2
Cass. Soc. 8 juillet 2015, n° 14-11.025 ...................................................................................... 5
CIT v. Hindustan Housing and Land Development Trust Ltd. [1986] 161 ITR 524 (SC). ....... 3
Gobind Ram v Gian Chand, (2000) 7 SCC 548......................................................................... 8
Hyde v Wrench (1840) 49 ER 132. ............................................................................................ 4
M/s Alopi Parshad & Sons Ltd. v. Union of India, 1960 AIR 588, 1960 SCR (2) 793 ............. 5
Reliance Broadcast Network Limited v Raj Oil Mills Ltd LNIND 2014 BOM 60 ................... 4
State of Bihar v Bengal Chemical & Pharmaceutical Works Ltd, AIR 1954 Pat 14 ................. 2
Storer v Great Western Rly Co. (1842) 2 Y ............................................................................... 7
Trimex International FZE Limited, Dubai Vs Vedanta Aluminium Limited, India 2010 (2)
AWC 1170 (SC) ..................................................................................................................... 1
Union of India v. Raman Iron Foundry, AIR 1974 SC 1265 ..................................................... 6
Statutes
Section 10 of the Specific Relief Act, 1963 ............................................................................... 7
Section 8 of the Indian Contract Act, 1872 ................................................................................ 2
Section 2(a) of the Indian Contract Act, 1872 ........................................................................... 1
Section 2(b) of the Indian Contract Act, 1872. .......................................................................... 1
Section 3 of the Indian Contract Act, 1872 ................................................................................ 1
Section 58 in The Sale Of Goods Act, 1930 .............................................................................. 6
Section 8 of the Indian Contract Act, 1872. ............................................................................... 2
 STATEMENT OF FACTS

• On April 1, 2024, the Public Works Department (PWD), Government of Rajasthan,

contacted M/s Gehlot Granites Trading Co. (GGTC), Sardarpura, Jodhpur, via email
requesting the supply of 1000 tonnes of granite blocks for the construction of the new
Collectorate Building near Jhalamand Circle.

• PWD specified that the delivery was to be executed in 8 consignments, with each
consignment comprising 125 tonnes of granite to be delivered monthly. It was stated
that a fresh purchase order would be issued upon the completion of each delivery.

• PWD insisted, via an email dated April 20, 2024, that GGTC commence delivery of the
granite, while the detailed contract would be formalized within eight months. The
construction of the building was scheduled to begin in May.

• On May 1, 2024, GGTC delivered the first consignment of 125 tonnes of granite, along
with a consignment note. The note stated that any fresh purchase orders would be
subject to revised pricing guidelines based on market conditions. The consignment note
was signed by the PWD site manager as a delivery receipt.

• The first and second consignments were delivered without issue. However, due to the
detection of illegal quarrying activities and subsequent arrests of quarry owners, the
price of granite in Jodhpur increased by 35%.

• On June 10, 2024, GGTC wrote to PWD requesting a revision of the prices for future
deliveries in accordance with the increased market rates. PWD refused to pay any
amount beyond the initially agreed rates.

• On June 20, 2024, GGTC informed PWD that it would not deliver the remaining
consignments unless the payments were adjusted according to the revised rates.
• PWD filed a lawsuit against GGTC in the District & Sessions Court, Jodhpur, seeking
specific performance on the grounds that the initial agreement obligated GGTC to
deliver all 8 consignments at the agreed rates.

• GGTC contended that the consignment note represented a counteroffer to PWD’s initial
offer and that no binding contract had been concluded as PWD had not accepted the
revised terms stated in the consignment note.
 STATEMENT OF JURISDICTION

The Plaintiff most humbly and respectfully submits to the jurisdiction of the Learned District

& Sessions Court of Jodhpur, and accepts that this Court has the jurisdiction to hear the

present matter of Civil Suit No. XXX/2024 filed under Order VII, Rule 1 of the Code of Civil

Procedure, 1908.

All of which is urged in detail in the written submission and is submitted most respectfully.
 ISSUES FOR CONSIDERATION

1. Whether the communication and actions between PWD and GGTC resulted in a
binding contract?
2. Whether the consignment note requesting price revision was a counter offer, or was
it merely a request for modification?
3. Whether PWD can enforce specific performance requiring GGTC to deliver the
remaining consignments at the initially agreed price?
 SUMMARY OF ARGUMENTS

1. A LEGALLY BINDING CONTRACT EXISTED BETWEEN PWD AND GGTC.

The email from PWD dated April 1, 2024 constitutes a proposal to purchase granite
blocks, and GGTC’s delivery of the granite according to the terms set forth in the
email, constitutes as acceptance by conduct, which is a valid form of acceptance
under Section 8 of the Indian Contract Act, 1872. The initial agreement, combined
with the subsequent actions of both parties, implies that there was an understanding
and acceptance of the terms. Although a detailed contract was to be drawn up within
the next 8 months, this does not negate the existence of the initial contract. The
terms regarding quantity, delivery schedule, and price clearly communicated and
agreed upon at that time, establishing a valid and enforceable contract.

2. THE CONSIGNMENT NOTE REQUESTING PRICE REVISION CANNOT BE

TERMED AS A COUNTER OFFER

The consignment note issued by GGTC requesting a price revision should be viewed
as a modification request rather than a counter offer, as it does not negate the
existing contract but seeks to amend its terms. Since this note was provided after
the deliveries had begun, suggests it was not a prerequisite for forming the initial
contract. The site manager's signature on the note, which was only for delivery
receipt purposes, does not indicate acceptance of the revised prices. Consequently,
PWD's refusal to agree to the new prices means there was no mutual consent to alter
the contract, and therefore, the original contract terms remain in effect.

3. PWD IS ENTITLED TO SEEK SPECIFIC PERFORMANCE

GGTC’s refusal to deliver the remaining consignments unless the price is revised
constitutes a breach of contract. Consequently, PWD is entitled to enforce the
original contract terms and seek specific performance to ensure the timely
completion of the project. The granite blocks, required for construction, are of
unique quality and specifications essential to the project. Under Section 10 of the
Specific Relief Act, 1963, which allows for the enforcement of a contract when it is
not specifically performed, PWD’s reliance on these specific deliveries for their
construction project further reinforces the claim for specific performance. Since,
two consignments had already been delivered, and construction had begun,
unfulfillment of the contract would cause unfair hardship to PWD and hence,
specific performance should be enforced.
 ARGUMENTS ADVANCED

1. A LEGALLY BINDING CONTRACT EXISTED BETWEEN PWD AND GGTC.

1.1. Existence of Original Contract

1.1.1. Email Constitutes as a Valid Proposal
It is humbly submitted before the Tribunal that the email dated April 1, 2024,
specifying the delivery of 1000 tonnes of granite blocks in 8 consignments of
125 tonnes each, constitutes a proposal to form a legally binding agreement.
Section 2(a) of the Indian Contract Act, 18721 defines proposal as, “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”.
Section 3 of the Indian Contract Act, 18722 states that the communication of
a proposal is deemed to be made by any act of the party proposing, by which he
intends to communicate such proposal, or which has the effect of
communicating it.
As seen in the Trimex v. Vendata3, The Supreme Court held that agreements
that are entered into, with the help of e-mails, as a source of communication, are
valid contracts.

1.1.2. Delivery as Acceptance by Conduct

It is humbly submitted before the tribunal that GGTC's delivery of the first
consignment on May 1, 2024, according to the terms set forth in the email
indicates acceptance of the offer.
Section 2(b) of the Indian Contract Act, 18724 defines acceptance as follows:

1
Section 2(a) of the Indian Contract Act, 1872.
2
Section 3 of the Indian Contract Act, 1872.
3
Trimex International FZE Limited, Dubai v Vedanta Aluminium Limited, India 2010 (2) AWC 1170 (SC).
4
Section 2(b) of the Indian Contract Act, 1872.

1
 “When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted.”
The definition clearly requires that the assent should be signified or expressed
by an act or omission by which the party accepting intends to communicate his
assent or which has the effect of communicating it.
GGTC delivered the first consignment on May 1, 2024, and subsequent
deliveries were made according to the terms stated in the email. According to
the principle established in Bhagwandas Goverdhandas Kedia v. Girdharilal
Parshottamdas & Co.5, acceptance can be signified by conduct. GGTC’s
conduct of delivering the granite as per the original terms signifies acceptance
of the contract.
Section 8 of the Indian Contract Act, 18726 states, “Performance of the
conditions of a proposal, is an acceptance of the proposal.”
It has been observed in a decision of the Patna High court in State of Bihar v
Bengal Chemical & Pharmaceutical Works Ltd7 that “where the acceptance
is to consist of an act, as for example, despatching goods ordered by post, the
rule is that no further communication of acceptance is necessary”.
Another Authority is Carlill v Carbolic Smoke Ball Co8, also known as the
smoke ball case where it was held that performance as directed in offer,
constituted acceptance of offer, thereby forming a binding contract.

1.2. Terms of Original Contract

It is humbly submitted before the tribunal that with the offer, acceptance and the
agreed price for granite constituting as consideration, a binding contract existed
for all 8 consignments.
The contract, formed via email dated April 1, 2024, specified the delivery of
1000 tonnes of granite blocks in 8 consignments of 125 tonnes each, with the
price agreed upon at that time for the construction of the new Collectorate
Building.

5
Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co. , AIR 1966 SC 543
6
Section 8 of the Indian Contract Act, 1872.
7
State of Bihar v Bengal Chemical & Pharmaceutical Works Ltd, AIR 1954 Pat 14.
8
Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256 (CA).
 Since the construction of the building had to begin in May, PWD insisted on the
commencement of supply by May 1, 2024, and a detailed contract to be drawn
within the next eight months.
The requirement for a detailed contract to be drawn up within the next eight
months does not negate the existence of the initial contract. In, CIT v.
Hindustan Housing and Land Development Trust Ltd.9 The court held that
once parties have acted in furtherance of the agreement, even if the formalities
are not fully completed, the actions of the parties can establish an intention to
create legal relations, thereby forming a binding contract.
The decision indicated that the absence of formal execution or specific
documentation does not negate the existence of a contract if the parties' conduct
indicates that they have accepted the terms and started acting accordingly.
The initial agreement, combined with the subsequent actions of both parties,
implies that there was an understanding and acceptance of the terms of the
contract.

2. THE CONSIGNMENT NOTE REQUESTING PRICE REVISION CANNOT BE

TERMED AS A COUNTER OFFER
It is humbly submitted before the tribunal that the first consignment delivered by GGTC on
May 1, 2024, with a consignment note stating that “any fresh purchase order had to be
subject to revised pricing guidelines based on market conditions” could not be interpreted
as a counter-offer, but merely a request for modification of terms and without PWD's
explicit acceptance, cannot be termed as a part of the binding contract.

2.1. Counter Offer vs Request for Modification

A counter offer results in rejection of the original offer and creation of a new
offer. Once a counter offer is made by the original offeree, he cannot
subsequently accept the original offer, since the original offer stands revoked. It
is only if acceptance is given to the new offer that a contract shall be created.

9
CIT v. Hindustan Housing and Land Development Trust Ltd. [1986] 161 ITR 524 (SC).
 In Hyde v Wrench10, the court ruled that when a counter offer is made, this
supersedes and destroys the original offer. This original offer is no longer
available or on the table.
Whereas, a request for modification does not reject the original terms but seeks
to alter them. If not accepted, the original contract remains intact. Along with
this, the timing of the note, provided after the commencement of deliveries,
suggests it was not a prerequisite for forming the initial contract but a mere
inquiry. GGTC's subsequent note about price adjustments was merely a good
faith communication and not a strict condition, thereby not affecting the validity
of the existing contract.
“Where the acceptance of an offer is initially unconditional, the fact that it is
accompanied with a direction or request looking to the carrying out of its
provisions, but which does not limit or restrict the contract, does not render it
ineffectual or give if the character of a counter-offer.”11

2.2. No Counter-Offer Post Acceptance

It is humbly submitted before the tribunal that GGTC delivered consignments
according to the provisions of the contract, acceptance of the terms of the
contract is proven. And once a party accepts a contract, there cannot be a counter
offer after that. As stated in the judgement, Reliance Broadcast Netword
Limited v Raj Oil Mills12, “There is no such thing in law as the formation of a
contract by a conditional acceptance. Either a contract is accepted, or it is not.
If a condition is imposed, it is a counter-offer, not a conditional acceptance; and
where the offeree has signed the contract, he cannot insist on a condition that he
also imposes. In other words, he cannot both sign the contract and impose a
condition.”

10
Hyde v Wrench (1840) 49 ER 132.
11
Reliance Broadcast Network Limited v Raj Oil Mills Ltd LNIND 2014 BOM 60.
12
Reliance Broadcast Network Limited v Raj Oil Mills Ltd LNIND 2014 BOM 60.
 2.3. Lack of Mutual Agreement on Introduced Term
2.3.1. Note signed only as delivery receipt
It is humbly submitted before the tribunal that while the note was signed
by PWD’s site manager as a delivery receipt and not an acceptance of
the note’s terms.
It can be further termed as an acknowledgement receipt that managers
and supervisors primarily use to confirm that they've
received a document, payment or another business-related item. This
means acknowledgment of the receipt, not acceptance. These documents
typically require the recipient's signature to demonstrate that they've
successfully obtained the item.
A relevant case illustrating that a signature on a document does not
necessarily mean acceptance of all its terms is a French employment law
case decided on July 8, 2015. In this case, an employee signed a letter
extending his trial period, but the Supreme Court held that the signature
alone did not indicate acceptance of the renewal. The court emphasized
that an acceptance must be clear and unequivocal, and the signature only
acknowledged receipt of the document, not agreement with its contents.
2.3.2. Lack of Mutual Consent
It is humbly submitted before the tribunal that as affirmed in Alopi
Parshad & Sons Ltd. v. Union of India, 196013, for any modification
of contract terms to be valid, there must be mutual consent.
It can be inferred that the note stating the request for modification of the
price does not reject the original terms of the contract but only seeks to
alter them. If not accepted with mutual consent by both parties would be
considered null and the original contract would remain intact.

13
M/s Alopi Parshad & Sons Ltd. v. Union of India, 1960 AIR 588, 1960 SCR (2) 793
 PWD did not agree to the revised pricing terms proposed by GGTC.
Their refusal to pay any additional amount beyond the agreed rates, as
communicated on June 10, 2024, indicates no acceptance of the new
terms. The delivery of the first consignment and the subsequent ones
were under the agreed terms of the original contract, as demonstrated by
the actions and communications of both parties.
As observed in Union of India v. Raman Iron Foundry14, where the
court emphasized the enforceability of original contract terms, the price
increase requested by GGTC due to external factors such as illegal
quarrying activities does not alter the binding nature of the original
contract.

3. PWD IS ENTITLED TO SEEK SPECIFIC PERFORMANCE

3.1. Breach of Contract by refusal to deliver
It is humbly submitted before the tribunal that GGTC is contractually obligated
to deliver all 8 consignments, as the initial contract (email from April 1st and
subsequent deliveries) constitutes a binding agreement. GGTC’s refusal to
deliver the remaining consignments unless the price is revised constitutes a
breach of contract. Consequently, PWD is entitled to enforce the original
contract terms and seek specific performance to ensure the timely completion of
the project.

3.2. Specific Performance as most suitable remedy

According to Section 58 in The Sale of Goods Act, 1930,15
“Subject to the provisions of Chapter II of the Specific Relief Act, 1877 (1 of 1877),
in any suit for breach of contract to deliver specific or ascertained goods, The Court
may, if it thinks fit, on the application of the plaintiff, by its decree direct that the
contract shall be performed specifically, without giving the defendant the option of
retaining the goods on payment of damages.

14
Union of India v. Raman Iron Foundry, AIR 1974 SC 1265
15
Section 58 in The Sale of Goods Act, 1930
 The decree may be unconditional, or upon such terms and conditions as to
damages, payment of the price, or otherwise, as the Court may deem just, and
the application of the plaintiff may be made at any time before the decree.”

3.3. Unique Nature of Granite and Timing of Project

Section 10 of the Specific Relief Act enumerates those cases in which the
specific performance of contracts can be enforced.16
[a) when there exists no standard for ascertaining the actual damage caused by
the non-performance of the act agreed to be done; or
[b) when the act agreed to be done is such that compensation in money, for its
non-performance would not afford adequate relief.

The granite was required for the construction of the new Collectorate Building
near Jhalamand Circle. It was selected for its specific colour, texture, and
quality, which were integral to the aesthetic and architectural design of the new
Collectorate Building. Such specifications often require materials of a particular
standard or source, making them unique and difficult to substitute. The granite's
timely availability and specific qualities was crucial for maintaining the project's
construction schedule. Delays or substitutions would impact the overall
timeline, leading to additional costs or compromising the project's integrity.
Therefore, GGTC's refusal to deliver the remaining consignments under the
original terms significantly impacted the project's execution, and mere
compensation would not afford adequate relief.
As stated in the judgment, Storer v Great Western Rly Co,17
“The plaintiff is entitled to have this contract specifically enforced, for his
interest in its performance cannot be adequately compensated for by money.”

16
Section 10 of the Specific Relief Act, 1963
17
Storer v Great Western Rly Co. (1842) 2 Y
 3.4. Estoppel and Reliance
Having commenced performance and induced reliance by PWD (who planned
and scheduled construction activities based on the agreed deliveries), GGTC is
estopped from denying the existence of a binding contract. PWD had reasonably
relied on GGTC's performance and delivery, which should bind GGTC to the
agreed terms.

3.5. Price Escalation due to market changes

A party cannot unilaterally modify or abandon a contract solely due to
unfavourable market changes, especially after partially performing under the
contract and hence, GGTC is obligated to continue supplying granite at the
agreed-upon rates, despite the subsequent price increase.
In Gobind Ram v Gian Chand, the court states that,
"In view of the clear finding of the High Court that the appellant tried to wriggle
out of the contract between the parties because of escalation in prices of real
estate properties, the respondent is held entitled to get a decree as he has not
taken any undue or unfair advantage over the appellant. It will be inequitable
and unjust at this point of time to deny the decree to the respondent.”18
GGTC’s refusal to deliver the remaining consignments based on the original
terms, even after having started deliveries, is inequitable and unfair, especially
since PWD had made plans and investments based on the expectation of
receiving the granite at the agreed price. The judgment implies that courts favour
upholding contracts where one party has relied on the terms and performed
accordingly.

PWD did not exploit GGTC or benefit unfairly from the market price increase.
Instead, it merely sought to enforce the original terms of the agreement. The
judgment underscores the idea that parties should be held to their contractual
obligations, provided they have not acted in bad faith or sought to unfairly
benefit at the other's expense.

18
Gobind Ram v Gian Chand, (2000) 7 SCC 548.
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully prayed before this Learned District Court, that it may be
pleased to

1. Declare that legally binding contract existed between both the parties.
2. Declare that the consignment note did not constitute a counter-offer altering the original
terms of the contract.
3. Grant the relief of specific performance and direct the defendant to excecute the

And pass any order or decree that the court may deem fit in the light of justice, equity and good
conscience to which the counsel shall forever be bound.

All of which is most humbly and respectfully submitted. deliveries of the remaining
consignments.

Date: 3rd August, 2024 Code: XXXA

Place: Jodhpur, Rajasthan Counsel For The Plaintiff