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IN THE
AT NEW DELHI
UNDER ARTICLE 133 OF THE CONSTITUTION OF INDIA READ WITH SECTIONS 96 AND 109 OF THE
CODE OF CIVIL PROCEDURE, 1908 AND ORDER XVI OF THE SUPREME COURT RULES, 2013
IN THE MATTER OF
V.
AND
I. The retailer is not liable for breach of the relevant implied conditions under Section 16
(a) The retailer is not liable under Section 16(1) of the Sale of Goods Act. ................. 1
(b) The retailer is not liable under Section 16(2) of the Sale of Goods Act. ................. 3
PRAYER ................................................................................................................................... 6
ii
INDEX OF AUTHORITIES
Cases
Bengal Corporation Pvt. Ltd. v. The Commissioners for the Port of Calcutta, AIR 1971 Cal
357.......................................................................................................................................... 2
Bristol Tramways Co. v. Fiat Motors Ltd., [1910] 2 KB 831 (CA). ......................................... 3
Sumner Permain & Co. v. Webb & Co., [1922] 1 KB 55 (CA). ............................................... 3
Treatises
Pollock & Mulla, The Sale of Goods Act, Ninth Edition, LexisNexis (A Division of Reed
iii
STATEMENT OF JURISDICTION
The Counsel for the Respondents most humbly and respectfully submits that this Honourable
Supreme Court of India has the requisite jurisdiction to hear and adjudicate the present matter
under Article 133 of the Constitution of India read with Sections 96 and 109 of the Code of
Civil Procedure, 1908 and Order XVI of the Supreme Court Rules, 2013.
iv
STATEMENT OF FACTS
Ramesh Bahadur (the appellant) had a brief history of skin disease for which he was under
the treatment of a dermatologist. On 20th March, 2012, he bought underwear from National
Handloom House & Co. (the retailer), who had in the ordinary course at some previous
date purchased the same from Japs Knitting Mills Ltd. (the manufacturer).
II
Over the next two weeks, the appellant often wore the underwear and at the same time,
redness appeared on each of his ankles. The appellants skin trouble only got worse with
every passing day. On 4th April, the appellant discarded the underwear on being advised to do
III
Finally, in May, the appellant became convalescent and went to Haridwar to recuperate. He
returned after two months and felt sufficiently recovered to resume his practice. Soon after,
however, he had a relapse and was hospitalised again, for one month.
IV
The appellant first brought an action against the retailer and the manufacturer in the Kota
District Court, which ruled in his favour. However, in appeal, the High Court of Rajasthan set
v
ISSUES FOR CONSIDERATION
ISSUE 1: WHETHER THE RETAILER IS LIABLE UNDER SECTION 16 OF THE SALE OF GOODS
ACT, 1930?
vi
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE RETAILER IS LIABLE FOR BREACH OF THE RELEVANT CONDITIONS
The retailer is not liable for breach of the implied conditions under either Section 16(1) or
Section 16(2) of the Sale of Goods Act, 1930. It is not disputed that the implied conditions do
exist in the present case. However, it is submitted there is no breach of the said conditions.
Nothing in the evidence goes to show that the garment was not fit for the purpose of being
worn next to the skin, nor is there any positive evidence establishing that the garment was not
of merchantable quality. The presence of free sulphites in the garment is merely assumed, and
there is nothing to show that the disease was caused due to the garment. The relapse of the
dermatitis even after the garments had been discarded further makes it improbable that the
garments were the cause of the disease in the first place. The appellants history of skin
The tort of negligence requires three essential ingredients to be established, viz., existence of
a duty, breach of the said duty, and resultant damage to the claimant as a consequence of the
breach. Looking to the principles evolved judicially in the landmark case of Donoghue v.
Stevenson, it can be seen that a manufacturer despite the absence of privity of contract can be
held liable for the tort of negligence. However, in the present case, the manufacturer is not
liable for negligence as, though a duty to take care existed on its part, it has neither been
established that there was a breach of the said duty, nor has the damage suffered by the
vii
ARGUMENTS ADVANCED
I. The retailer is not liable for breach of the relevant implied conditions
The Sale of Goods Act, 1930 governs the rights and liabilities of the parties to a
contract of sale. In the present case, such a relationship exists only between the
appellant (buyer) and the retailer (seller). Section 16 of the Act is an exception to the
rule of caveat emptor. The most important exceptions to the rule of caveat emptor,
and the ones relevant to the present case, are the implied condition of fitness for a
(a) The retailer is not liable under Section 16(1) of the Sale of Goods Act.
quality or fitness of the articles sold. It is attracted when the buyer expressly or
by implication had made known to the seller the particular purpose for which
the goods were purchased.1 It is immaterial whether the buyer has, or has not,
It may be observed that the conditions under Section 16(1) will not be implied
if the goods are not of a description which it is in the course of the sellers
business to supply; and, even where the goods are of that description, it is
necessary that the purpose for which they are bought should be made known to
1
Eternit Everest Ltd. v. CV Abraham, AIR 2003 Ker 273.
1
the seller in such circumstances as to show that the buyer relies on his skill and
judgment.2
In the present case, it may be said that the appellant, by implication, made
known to the retailer the purpose for which the underpants were required, viz.,
for being worn next to the skin. Also, the retailer deals in the said goods,
is, however, submitted that there is no breach of the implied condition that the
The appellant had a history of skin disease for which he was under the
there was no problem. The itching began only after the garment had been
washed once. The appellants claim is based on the assumption that disease
has been caused to him by the presence of an irritating chemical, viz., free
sulphite, in the underpants. While it is not conceded that the presence of such
chemical is a fact as the same has not been proved, it may be submitted that
There is nothing to show that the garment was unfit for being worn. It has not
been established that the dermatitis caused was due to the garment. The
disease relapsed even when the garments had been returned. Reading Sections
101 to 103 of the Indian Evidence Act together, it can be safely said that the
2
Bengal Corporation Pvt. Ltd. v. The Commissioners for the Port of Calcutta, AIR 1971 Cal 357.
2
(b) The retailer is not liable under Section 16(2) of the Sale of Goods Act.
Section 16(2) of the Sale of Goods Act introduces the implied condition that in
quality. The rule is that, in the case of goods sold by description by a seller
who deals in such goods, the seller is always, in the absence of agreement to
the contrary, responsible for latent defects in the goods which render them
unmerchantable, whether the buyer has examined them or not, and for all such
English case,4 the phrase has been explained as meaning that the article is of
such quality and in such condition that a reasonable man, acting reasonably,
would after a full examination accept it under the circumstances of the case in
performance of his offer to buy that article, whether for his own use or for
resale. The condition is that the goods shall be of merchantable quality, i.e.,
that they shall not differ from the normal quality of the described goods to
Applying Section 16(2) to the present case, it is submitted that as the retailer is
a dealer in the goods sold, there is an implied condition that the goods are of
said condition. There is nothing in the facts of the case to show that the goods
3
Pollock & Mulla, The Sale of Goods Act, Ninth Edition, LexisNexis (A Division of Reed Elsevier India Pvt.
Ltd.), 2014.
4
Bristol Tramways Co. v. Fiat Motors Ltd., [1910] 2 KB 831 (CA).
5
Sumner Permain & Co. v. Webb & Co., [1922] 1 KB 55 (CA).
3
In Griffiths v. Peter Conway Ltd.,6 the plaintiff purchased from the defendant,
a retail trader, a Harris tweed coat, and shortly after she began to wear the coat
she contracted dermatitis. It was found that the plaintiffs skin was abnormally
sensitive, and there was nothing in the cloth which would have affected the
skin of a normal person. It was held that the sub-section did not apply in such
a case as no seller could assume that a buyer was allergic to any particular
goods. In the present case too, the appellant has had a brief history of skin
disease. He has not revealed the same to the retailer. It is possible that the
defect was not in the garment, but that the appellants skin was extra sensitive.
that the disease was caused to him by the garment, and that the garment had
the alleged defect. A claim based on mere assumptions cannot stand without
circular argument, that the garments must have caused the dermatitis because
they contained sulphites, and that they must have contained sulphites because
The appellant wishes to make the manufacturer liable; however, there is no direct or
immediate relation of buyer and seller between them, and therefore, no liability can
arise under the Sale of Goods Act, 1930. Therefore, the appellant has alleged that the
disease caused to him was due to the presence of an irritating chemical in the
6
Griffiths v. Peter Conway Ltd., [1939] 1 All ER 685.
4
In the landmark case of Donoghue v. Stevenson,7 Lord Atkin stated as follows:
intends them to reach the ultimate consumer in the form in which they left him
Thus, the manufacturer does owe a duty of care to the appellant. However, it has
neither been established that there was a breach of such duty, nor has it been proved
that the damage (disease) caused to the appellant was a result of the negligence of the
manufacturer. It is possible that the appellants skin was abnormally sensitive, as has
been shown above. Nothing in the facts proves that the garments caused the disease,
or that the garments even contained free sulphites as contended. The appellant has not
Australian Knitting Mills Ltd.,8 the facts of which are similar to those of the present
case. This case can be distinguished from the present case as, in this case, it was
proved with the help of positive evidence that the disease was external and that the
buyers skin was normal. Also, the seller had accepted that free sulphite was present
7
Donoghue v. Stevenson, [1932] A.C. 562.
8
Grant v. Australian Knitting Mills Ltd., [1936] A.C. 562.
5
PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully prayed before this Honourable Supreme Court of India, at
And pass any other order in favour of the Respondents which this Court may so deem fit in