cre-memo

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I N THE LEARNED DISTRICT COURT OF DELHI

In the matter of

Vibha.............................................................................................................................Plaintiff

Versus

Vikash.........................................................................................................................Defendant

Written Submission on the behalf of the Plaintiff.

Counsel for the Plaintiff

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TABLE OF CONTENTS

Table of Authorities ................................................................................................................... 1

Statement of Fact ....................................................................................................................... 2

Statement of Jurisdiction............................................................................................................ 3

Issue for Consideration .............................................................................................................. 4

Summay of Arguments .............................................................................................................. 5

Arguments Advanced................................................................................................................. 6

Prayer……………………………………….………………………...……………………….7

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TABLE OF AUTHORITIES

BOOKS & CASES:

Avtar Singh, Contract and Specific Relief Act..........................................................................8

R.K. Bangia, The Indian Contract Act, ed 13

th

2008................................................................8 Nilima bhalbhade, Pollock & Mulla The Indian Contract Act, 1872, ed.14th, page no.67,....9

Chitty on contract, ed.28th page 155............................................................................9

Merritt v Merritt [1970] 2 ALL ER 760 (CA)..................................................................9

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STATEMENT OF FACTS

The Counsel for the plaintiff most humbly and respectfully showeth that:

Vikas , an engineer (the defendant), married to Vibha a practising doctor (the

plaintiff) on January 12th 2010 in delhi.

Vikas got a job offer of a MNC based in Bombay and he with his wife decided that he

would go to Bombay and his wife would try to find a job there.

Until she gets a job he will give him 40000/- per month to sustain her.

Vikas shifted to Bombay. Eventually plaintiff’s income increased and she decided not

to go to Bombay.

She told this to her husband who tried to convince her many time. Once when he was

persuading her on telephone he said that if she did not want to come Bombay then

now onwards he would pay only Rs. 15000/- per month. To which Vibha replied that

she do not care.

But after this Vikas did not pay anything to Vibha.

And hence the present suit.

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STATEMENT OF JURISDICTION

The Counsel for the Plaintiff most humbly and respectfully submits that this Learned district

Court at New Delhi has the jurisdiction to hear this matter under Sections 9 and 15 of the

Code of Civil Procedure, 1908.

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ISSUE FOR CONSIDERATION

WHETHER THERE IS BREACH OF CONTRACT ON THE PART OF DEFENDANT OR

NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THERE IS BREACH OF CONTRACT ON THE PART OF

DEFENDANT OR NOT?

a) Defendant made a proposal which was accepted by the plaintiff.

b)

There was consideration given by plaintiff which makes the contract binding.c) There was an intention to create legal relationship.

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ARGUMENTS ADVANCED

1. WHETHER THERE IS BREACH OF CONTRACT ON THE PART OF

DEFENDANT OR NOT?

1.1 Defendant made a proposal which was accepted by the plaintiff.

According to section 2(a) of 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 proposal1.

And according to section 2(b) of Indian Contract Act 1872,”When the person to whom

the proposal is made signify his assent thereto, the proposal is said to be accepted”

Here, in this case defendant made a proposal over phone to pay Rs. 15000/- instead of

40000/- per month which he was initially giving to the plaintiff in case she did not want

to come to reside with the defendant in Bombay and plaintiff gave her assent by saying

that she will not mind. This shows that the husband agreed implicitly to the fact of her

wife not coming to Bombay.

1.2 There was consideration given by plaintiff which makes the contract binding.

Section 2(d) of Indian Contract Act 1872 provides, “When at the desire of promisor, the

promisee, or any other person has done or abstained from doing, or does or abstains from

doing, or promises to do or to abstain from doing, something such act or abstinence or

promise is called a consideration for the promise.2

The words in definition-“or promises to do or to abstain from doing, something”

supplemented by subsection 2(e) and 2(f), convey in an indirect manner the extremely

1 Avtar Singh, Contract and Specific Relief Act

2 R.K. Bangia, The Indian Contract Act, ed 13

th 2008

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important proposition that a contract may be formed by the exchange of mutual promises,

each promise being the consideration for the other.3

In this case the defendant promised to pay 15000/- per month to the plaintiff in case if she

was not coming to Bombay, for this promise the plaintiff replied that she do not mind

which indicates that she promised not to go Bombay.

1.3 There was an intention to create legal relationship.

An agreement is not a contract without an intention of creating legal relationship, even

though supported by consideration4. The test of intention is objective one. Although , the

promisor never intended to create legal relation , he will be bound if a reasonable person

would consider that there was an intention to contract.

Like in merritt v merritt 5 an estranged husband promised to pay GBP 40 monthly to

his wife and told her to pay out of it the mortgage debt on matrimonial house. He agreed

to transfer the ownership of the house to her after the mortgage paid off. But after the

mortgage paid off he reduced the monthly allowance and refused to transfer the house. In

this case it was observed because the husband and wife were living separately, there was

an intention to create legal relationship.

This can be applied to this present case also where the husband and the wife were livin

far away from each other one in Bombay and the other in delhi. So it can be said that

there was an intention to create legal relationship.

3

Nilima bhalbhade, Pollock & Mulla The Indian Contract Act, 1872, ed.14th

, page no.674 Chitty on contract , ed.28

th page 155

5 Merritt v Merritt [1970] 2 ALL ER 760 (CA)

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PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly and respectfully prayed before this learned District Court at Delhi that it

may be pleased to,

Allow the compensation to the plaintiff for breach of contract.

and grant any other order in favor of the Plaintiff that this Learned District Court may deem

fit in the light of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Date: 31st July, 2014

Place: New Delhi Counsel for the Plaintiff

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