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V.
&
INDEX OF AUTHORITY
...........3
STATEMENT OF
JURISDICTION
.6
STATEMENT OF
FACTS
....7
IV. STATEMENT OF
ISSUES
...8
SUMMARY OF
ARGUMENTS
...9
VI. ARGUMENTS
ADVANCED
...
REQUISITES OF
SPECIAL LEAVE
PETITION
There is no Grave
Miscarriage of Justice.
Expunge of
Derogatory Remark
Exhaustion of
Remedies
THAT RAMSEY
BOLTON DOES NOT
HAVE A
REMEDY...13
Negligence
Contributory Negligence
Contract between
Khaleesi and sons and
Laos wasnt
enforceable.
THE CONTRACT OF
INDEMNITY BETWEEN
LAOS AND KHALEESI
& SONS IS NOT
ENFORCEABLE
16
Contractual
Incompetency
Holding out to be a
partner makes him to be
personally liable
Acceptance made
without consulting the
partners.
VII. PRAYER
2
-WRITTEN
SUBMISSION ON
BEHALF OF THE
APPELLEANT-
INDEX OF AUTHORITY
Cases: -
Indian Cases
Sr NO.
CASE LAWS
CITATION
1
Bhim Mandal v. Magaram Corain,
AIR 1961 Pat 21.
2
Mathai Mathai v. Joseph Mary
(2015) 5 SCC 622
3
Mohori bibi v. Dhurmodas Ghose
(1903)30 IA 114,
4
Sanyasi Charan Mandal v Krishnandhan Banerji
(1922) 49 IA 108 : 49
Cal 560, at 570 : AIR
: 67 IC 124
5
CIT v. Oriental T. Maritime
(1997) 227 ITR 244
(AP)
6
Commissioner Of Income-Tax vs Chandrika Enterprises
(1992) 198 ITR 548
Ker
7
CIT v. Nand Lal Jagdish Prasad
(1997) 226 ITR 312
All
8
Collingwood v Berkeley,
(1863) 15 CBNS 145
9
Mathai @ Joby v. George
JT 2010 (3) SC 160:
2010
10
Kunhayammed v. State of Kerala
(2000) 245 ITR 360
(SC)
12
Beant Singh v. Union of India and others
1977 SCR (2) 122
13
S.L. Hedge & Ors. v. M.B. Tirumale
(1960) SCR 890: AIR
1960 SC 137
14
M.V. Volipero v. Fernandeo Lopez & others
1989 SCR Supl. (1)
187
15
Haripada Dey vs The State Of West Bengal and others
1956 SCR 639
16
Lochgelly Iron CO. v M.Mullan
1974 AC 25.
17
Venkatesh Iyer v Bombay hospital Trust
AIR 1998 Bom373
18
Poonam Verma v Ashwin Patel
AIR 1996 SC 2111
19
Lakshman Balakrishnan Joshi(Dr) v dr. Timbak bapu
AIR 1969 SC 128
Godbole.
BOOKS: -
th
POLLOCK & MULLA, THE INDIAN CONTRACT ACT, 1872 (14 ed. 2015)
P.M. Bakshi, The Indian Contitution, (13th ed Universal Law Publishing), 2015, pg. 161.
th
M.P. Jain, Indian Constitutional Law (7 ed 2016)
nd
V. Kesva Rao, Contract 1 cases and materials, Lexis Nexis, (2 ed 2014)
th
Sir Dinshah Fardunji Mulla, The sales of Good Act and The Indian Partnership Act (10 ed
2015)
STATUTES: -
HAS BEEN GRANTED BY THIS HONBLE COURT AND THE MATTER HAS NOW
FORCES.
5
A hospital named Laos was established in the capital of the country, Winterfell.
The hospital was founded by an ex-bussiness man Eddard stark.
On December 2015, an offer was sent by Mr. Eddard Stark via an E-mail to the firm
for the acceptance of the contract. Eddard stark mention in his mail that
The technology for production of SUV-236 shall be shared by Laos hospital with
Khaleesi & sons under Non- Disclosure Agreement.
Khaleesi &sons shall indemnify Laos Hospital for any injury occurred by the use
of machine.
One of the partners, Rhaego Drogo (aged 17 years), due to the non- availability
of the other partners responded to the email saying that firm accepts the offer
made by Laos hospital. However, other partners of the firm returned, Drogo
informed him about the mail without mentioning the terms and other partners
accepted to perform the contract without delay.
However, one patient Ramsey Bolton who was treated by SUV-236 fell ill and the
tests conducted that cancer cells were growing at much rate and metastasised to
new location. Here Ramsey wife demanded compensation. As due to this they
have to go with extra one year treatment of cancer.
Doctors stated that patient in not cooperating with staff and this machine used on
other patients which are showing the sign of improvement. The court held
Ramsey wife would get compensation.
The Hospital informed Khaleesi and sons about this and they denied existence of
contractual term. Then Laos hospital sued the company.
The defendant contended that the contract was entered by a minor. The district court
held that firm approved to the contract and the consideration of same. Then Khaleesi and
sons appealed in High Court and Aggrieved by the Judgement of High court company
appealed Supreme court under the Article 136 of the constitution of Kingslanding.
Supreme court admit the appeal and decide to hear the case.
6
ISSUE I
ISSUE 2
ISSUE 3
Appeal is maintainable under the Article 136 as in this case substantial question of
law is present and there has been grave injustice occurred with the Ramsey Bolton.
Article 136 also involves the general public importance which is there in the case. As
per relying on the reasons appeal under Article 136 is maintainable.
Ramsey Bolton has a remedy from Laos Hospital as the contractual term is void and
there was negligence on the part of the Hospital as stated in factsheet.
It is humbly submitted before this honble Supreme Court that the appeal filed under
special leave petition is maintainable. Article 136 of the Indian Constitution states that:
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
Nothing in clause I shall apply to any judgment, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.
The power of the Supreme Court to hear appeals in this Article is much wider and
general. It vests in the Supreme Court plenary jurisdiction in the matter of
entertaining and hearing appeals by granting special leave against:
The above-mentioned requirements are fulfilled in the instant case, thus the appeal
filed under Article 136 is maintainable.
1
In the case of Mathai @ Joby v. Geoge the Two-Judge Bench of the Supreme Court opined that
only the following categories of cases should be entertained by the Supreme Court
It is contended that the matter involves substantial question of law and hence entitled to be
maintainable. Since the substantial question of law lies between petitioner and respondent is
regarding the validity of contract, and the High Court upheld the judgment of the District Court
1
Mathai @ Joby v. George, JT 2010 (3) SC 160: 2010
Section 11 of The Indian Contract Act, 1872 states that Who are competent to contract.
Every person is competent to contract who is of the age of majority according to the law to which
he is subject, and who is of sound mind and is not disqualified from contracting by any law to
which he is subject.
Section 3 of The Indian Majority Act, 1875 provides: Every person domiciled in India
shall attain the Age of majority on his completing the age of 18 years and not before.
In computing the Age of any person, the day on which he was borne is to be included
as a whole day and he shall be deemed to have attained to have majority at the
beginning of the 18th anniversary of the day.
Section 30(1) of The Indian Partnership Act, 1932, states that A person who is a minor according
to the law to which he is subject may not be a partner in a firm, but, with the consent of all the
partners for the time being, he may be admitted to the benefits of partnership.
Hence it is humbly submitted that in the instant case there is clear substantial question of
law therefore the appeal under Article 136 of the Indian Constitution, is maintainable.
It is humbly submitted that it is the discretionary power under Article 136 should be exercised
2
sparingly to interfere in suitable cases where grave miscarriage of justice. So the petition
cannot be dismissed and hence is maintainable in the honble court of kingslanding.
2
P.M. Bakshi, The Indian Constitution, (13th edn Universal Law Publishing), 2015, pg. 161.
10
The same scenario is present in the instant case, the doctors also stated that Ramsey Boltons
condition was already quite bad when the treatment began, he did not cooperate and was not
taking medicine on time. Also, the hospital refused that the SUV-236 machine had any connection
with the worsening of Ramseys illness and cited that several other patients being treated by this
4
machine were showing signs of improvement . There being no sign of injury arising out of the use
of the SUV-236 on Ramsey Bolton, there is clear sign of Grave Injustice with Khaleesi and Sons.
Hence the appeal under special leave petition is maintainable.
5
In the case Beant Singh v. Union of India and others , it was held that in order to induce this
Court to interfere under Article 136 of the Constitution the question must
6
Relied on the S.L. Hedge & Ors. v. M.B. Tirumale in exceptional cases the court admits appeals
under Article 136 even through appellant has not exhausted all other remedies,
if there are exceptionally sound reasons for such admissions.
7
In case M.V. Volipero v. Fernanedo Lopez & others , it was held that the academic exercise is
unnecessary in the present case since it cannot be doubted that irrespective
of the question of res judicata, earlier decision on the same point by a Division Bench of the High
Court will atleast be a binding precedent when the matter is re-agitated before the Division Bench
hearing the appeal against the final decision in the suit. In such a situation directing the resort to
the remedy of an appeal under the Letters Patent against the final decision in the suit will
needlessly delay decision of the point by this Court. We are, therefore, of the opinion that, in the
present case, it is neither necessary
Indira Kaur and others v. Sheo Lal Kapoor AIR 1988 SC 1074
Beant Singh v. Union of India and others 1977 SCR (2) 122
S.L. Hedge & Ors. v. M.B. Tirumale (1960) SCR 890: AIR 1960 SC 137
M.V. Volipero v. Fernandeo Lopez & others 1989 SCR Supl. (1) 187
11
8
In case of Haripada Dey v. The State Of West Bengal and others it was held that no
High Court can arrogate that function to itself and pass on to us a matter which in its view
is purely one involving questions of fact, because it finds itself helpless to redress the
grievance. In such a case, the High Court should refuse to give a certificate under article
134(1) (c) and ask the parties to approach us invoking our special jurisdiction under
Article 136(1) of the Constitution.
In the instant case there is question of fact, substantial question of law, grave injustice
suffered by the appellant and therefore in the light of the above mentioned case laws,
the appeal under Article 136 of the constitution is maintainable, and the justice should
be provided to the appellant.
HOSPITAL.
The Appellant humbly submitted before the honble Court that Ramsey Bolton has
remedy from Laos and not from Khaleesi and Sons due to:
(A) Negligence
(B)Contributory Negligence
Negligence
Negligence in the sense of conduct refers to the behavior of a person who although innocent of
any intention to bring about the result in questions, has failed
8
Haripada Dey vs The State Of West Bengal and others 1956 SCR 639
12
In this instant case the moment Ramsey Bolton got admitted in the hospitals the doctors and
the staff of the hospitals had a legal duty imposed on themselves.
A breach of duty occurs when one person or company has a duty of care toward
another person or company, but fails to live up to that standard.
In this instant case, when the treatment was going on Bolton was strucked with formation of
new Cancer Cells due to which he even had to go to for a treatment for one more extra year
due to which he even had to go through pain and also according to the factsheet,doctors
9
said that the patient didnt take medicines on time, but it was the duty of the hospital to
provide him with medicines which is clearly wjere they have missed.Thus thare has been a
breach of duty.
In the instant case, Bolton had to suffer a yearlong treatment and pain due to hospital
who were not fulfilling the duty properly.
In addition to the above mentioned reasons the Appellant also relies on the case of Lochgelly
10
Iron CO. v M.Mullan where Lord Wright said In strict legal analysis, negligence means more
than headless or careless conduct, whether in omission or commission; it properly connotes the
complex concept of duty, breach and damage thereby suffered by the person to whom the duty
11
was owing. Reliance is also based on the case of Venkatesh Iyer v Bombay hospital Trust
where the court held that Negligence is the omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human affairs would
do or doing something which a reasonable and prudent man wouldnt do.The appellant relies on
12
the case of Poonam Verma v Ashwin Patel the doctor who had followed a wrong treatment
resulting in the death of the patient was held guilty of
Factsheet,pno.13.
1974 AC 25.
Thus, relying on the above mentioned reason, it is stated that there has been a
Negligence on the side of the hospital.
B. Contributory Negligence
Contributory Negligence is an expression which implies that the person who has sufferd
damages is also guilty of some negligence and has contributed towards the damages.
In this instant case Ramsey Bolton, didnt take the medicines on time and does not
cooperate with the hospital staff. As this shows that he is also negligent towards his
health and thrugh this it is clear that there is a case of occurrence of contributory
negligence on the behalf of Hospital and Ramsey Bolton.
Competency to contract is an essential of a contract According to section 10, Contract Act 1872. It is
14
mentioned in Section 11 of the Contract Act that if a person doesnt attain the age of majority
15
according to the law to which he is subject , is incompetent to contract.
The age of majority being 18 years, a person less than that age even by a day would
16 17
be minor for the purposes of contracting. Under the Sec. 11, of the Contract Act ,
18
any agreement made by a minor is void ab initio.
14
The Appellant humbly submitted before the honble court that The contract signed
between the parties is unlawful and will not be followed according to the Kingslanding
Contract,1872 and the Kingslanding Partnership Act,1932 the performed contract is
unlawful and hence not enforceable.
The age of majority being 18 years, a person less than that age even by a day would
21 22
be minor for the purposes of contracting. Under the Sec. 11, of the Contract Act ,
23
any agreement made by a minor is void ab initio.
24
Reliance is put on the case of Mathai Mathai v. Joseph Mary , where the apex court held that
Many courts have held that a minor can be a mortgagee as [mortgage] is transfer of property in
the interest of the minor. We feel that this is an erroneous application of the law keeping in mind
25
the decision of the Privy Council in Mohori Bibee case. As per the Indian Contract Act, 1872 it is
clearly stated that for an agreement to become a contract, the parties must be competent to
contract, wherein age of majority is a condition for competency. A deed of mortgage is a contract
and we cannot hold that a mortgage in the name of a minor is valid, simply because it is in the
interests of the minor, unless she is represented by her natural guardian or guardian appointed
by the court. The law cannot be read differently for a minor who is a mortgagor and a minor who
is a mortgagee as there are rights and liabilities in respect of the immovable property would flow
out of such a contract on both of them. Therefore, this
15
-WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT-
Court has to hold that the mortgage deed is void ab initio in law and the Appellant
cannot claim any rights under it.
In this instant case, Rahego Drogo, one of the partners of Khalessi & Sons, is 17 years
old and thus he is minor according to the Indian Majority Act, 1875. Hence it defeats the
provisions of the contract being valid. Therefore, it is submitted before the Honble court
that the contract entered between Laos hospital and Khaleesi & Sons is void ab initio.
The law in India states that a minor cannot make any contract at all, and therefore
26 27
cannot be a partner .According to Section 30(1) of the Partnership Act, a minor
could only be admitted to the benefits of a firm and not as a partner.
28
It is submitted before the Honble Court that in the case of CIT v. Oriental T. Maritime lays down
that section 30 of the Indian Partnership Act provides that a minor cannot be made liable for the
losses of the partnership. If at all a minor should be admitted into the partnership, he should be
admitted for the purpose of profits only. In that case the minors were clearly admitted to share in
the profit and loss of the firm. In that view of the matter it was held by the Andhra Pradesh High
Court that the assesse was not entitled for registration of the firm. Same was held in the case of
29
Commissioner Of Income-Tax vs Chandrika Enterprises which is of the view that a minor
admitted to the benefits of partnership cannot be treated as a partner. Simillar decision was held
30
in the case of CIT v. Nand Lal Jagdish Prasad that a minor is not a partner and is only admitted
to the benefits of partnership. Reliance is also put on the case of Dwarkadas Khetan & Co.'s
where the apex court held pointed out that as long as a partnership deed does not make a minor
full partner, a partnership deed cannot be regarded as invalid on the ground that a guardian has
purported to contract on behalf of a minor if the contract is for the purposes mentioned above.
While construing the terms of the deed before them their Lordships pointed out that the
partnership deed must be construed reasonably. Great emphasis was laid upon the recital which
expressly stated that it is the major members who had decided to constitute the partnership and
admit the minors to the benefits of the said partnership.
Sanyasi Charan Mandal v Krishnandhan Banerji,(1922) 49 IA 108 : 49 Cal 560, at 570 : AIR 1922 PC
237 at239-240 : 67 IC 124
16
If a person knowingly holds himself out to be a partner of the firm by allowing ones
32 33
name to be put on the prospectus or becoming a part to a resolution , the firm will
not be liable in that instant.
In this instant case Drogo also knowingly held himself as a partner of the group while
making the contract while he was not full-partner of the firm in other words he was
not allowed to take decisions regarding the firm business. Thus, the firm will not be
liable to Laos Hospital for the confirmation sent by Rahego Drogo.
It is the right of every partner to be consulted in all matters affecting the business of
34
the firm. Section 12(c) of the Partnership Act, that it is the right of every partner to
express his opinion before the matter of the business is decided.
In this instant case, according to the factsheet Drogo never consulted to its partner before
35
taking the decision. .Thus he interfered with rights of the other partners in the firm.
In the light of above arguments it is clear that the contractual term of Indemnity between
Factsheet, p.9.
17
PRAYER
TOHOLD
THAT THE CONTRACTUAL TERM OF INDEMNITY BETWEEN LAOS & KHALEESI ANS SONS
IS NOT ENFORCEABLE
TODIRECT
TOSETASIDE
MISCELLANEOUS
AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO