Memorial for Respondent

IN THE COURT OF CIVIL JUDGE, BEDFORD

PETITION UNDER SECTION 15 OF THE CIVIL PROCEDURE CODE, 1908

Case No. _____/ 2017

PLAINTIFF DEFENDANT

TERMINATOR COMPANY VERSUS HOMER

BEFORE SUBMISSION TO
CIVIL COURT

MEMORAMDUMON BEHALF OF THE RESPONDENT

 MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS

1. LIST OF ABBREVIATION ii

2. INDEX OF AUTHORITIES iii

Books iii

Cases iii

Statutes iii

3. STATEMENT OF JURISDICTION iv

4. STATEMENT OF FACTS v

5. ARGUMENTS PRESENTED vi

6. SUMMARY OF ARGUMENTS vii

7. ARGUMENTS ADVANCED 1-9

8. PRAYER 10

i
 MEMORIAL FOR RESPONDENT

LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. Anr. Another
3. CPC Civil Procedure Code
4. HC High Court
5. Ors. Others
6. Pg. Page
7. SC Supreme Court

ii
 MEMORIAL FOR RESPONDENT

INDEX OF AUTHORITIES

STATUTES REFFERED:
1. Civil Procedure Code, 1908

CASES REFFERED:
1. Bradshaw v Waterlow & Sons 1915 3 KB 527
2. Bromage v. Prosser 1825 C 247
3. Harbhajan Singh v. State of Punjab AIR 97, 1965 SCR (3) 235
4. Heeralal v. Bandhu 1889 9 AWN 189
5. Mirza v. Bhagwati Parshad 1895 1 OB 786
6. Mohammad Amin v Jogendra Kumar AIR 1947 PC 108
7. Muhammad Saddiq v. Panna Lal (1903) 26 All. 220
8. Osumanuyawa Yaw Ewna v. Nana Sue Ofori Atta AIR 1930 PC 260
9. Pannalal v. Shrikrishna ILR 1955 MB 189
10. Rookes v. Bernard 1964 AC 1129

11. Savile v. Roberts (1698) 1 Ld Rayam 374

12. Venu v. Coorya Narayan1881 ILR 6 Bom 376

BOOKS REFFERED:

STATEMENT OF JURISDICTION

iii
 MEMORIAL FOR RESPONDENT

The present Petition is filed before the Hon’ble Court under section 15 of the Civil Procedure
Code, 1908

That the section 15 of the CPC states that:

“Court in which suits to be instituted: Every suit shall be instituted in the Court of the
lowest grade competent to try it.”

STATEMENT OF FACTS

iv
 MEMORIAL FOR RESPONDENT

Homer, a business owner in Bedford was in urgent need of fumigation. Insects have overrun his
offices. On 4th October 2016 he searches the Internet, and finds a company called Pest Patrol,
who offer a range of cleaning products and services, Including fumigation. Horner calls Pest
Patrol, and speaks to their representative Christine. Homer states that he has an insect problem,
and that his offices in Bedford are infested with insects and that he needs the building
fumigated. Christine responds that Pest Patrol will be happy to do the work at a cost of £400.
When Homer says that he is happy to accept on that basis, Christine says that for evidence
purposes, all contracts must be coincided by filling and signing a document, which will be
posted to him.

On 5th October, a form arrives from Peal Patrol, offering to complete the work specified for
£400 inclusive of the chemical us and the fumigation service Homer duly signs the forms, and
posts them the 5th Oct. at 12:00, however, Homer does not hear back from Christine, and when
he tries to call the office on the 10th Oct., there is no response. Annoyed. Homer then contacts
a second company on the 11''' of October. Terminator, and discusses his infested offices. I
really need a way of getting rid of the Insects. Homer said. Louis responded saying 'we have
all the chemicals needed to kill any type of Insect and the equipment for the fumigation. It
will cost you £350 to hire including the cost of chemicals. Homer responded. 'Fantastic,
when can we do this'?

Louis said. 'We'll bring everything around tomorrow morning'. After hanging up, Homer wrote
a second letter to Pest Patrol, criticizing the speed of their response end and he revoked his
offer.

The next morning, Louis came to the Bedford office with the fumigation equipment and
materials asked Homer where he wants them. Homer responded by saying 'what do you
mean? You're supposed to fumigate the building’. Louis denied this and said 'we only rent the
equipment we don't use it. Homer refused to accept the equipment and he refused to pay Louis
any money.

ARGUMENTS PRESENTED

v
 MEMORIAL FOR RESPONDENT

A. Whether the there was valid contract between the plaintiff and
Defendant?
B. Whether the defense of mistake of fact under section 20 of the Indian
Contract Act is available to the Defendant or not?

SUMMARY OF ARGUMENTS

vi
 MEMORIAL FOR RESPONDENT

A. WHETEHR THERE WAS A VALID CONTRACT BETWEEN BOTH THE

PLAINTIFF AND THE DEFENDANT OR NOT?

It is submitted that there was no valid contract between the Plaintiff and the Defendant. In Fact,
The contract between both the parties was void as it was ambiguous in nature.

The conversation between both the parties makes it clear that there was ambiguity about what
the parties intended. The meaning of the agreement was not certain to neither of the parties.
Section 29 of the Indian contract act deals with such kind of ambiguous agreement and declare
them agreement void in nature. It is a well known rule of contracts that the terms should be
clear and should not be in a confusing manner. Essential terms tell the parties what their
essential rights and obligations are. They are terms which are at the heart of the agreement.

If the terms are complete but their meaning is unclear, it is difficult for courts to establish what
constitutes performance and breach. It is well settled that a contract cannot be uncertain. It must
not be vague. Its terms must not be indefinite. A contract, it is said must be construed so as to
lead to a conclusion that the parties understood the meaning thereof

A. Whether the defense of mistake of fact under Section 20 is available to

the defendant or not?
It is submitted that the defense of mistake of fact under Section 20 of the Indian Contract Act is
available to the Defendant. Defendant was not aware of the fact the Plaintiff Company gives
fumigation equipment and chemicals on rent. He was of the view that Plaintiff company
provides service of fumigation as it is clear from the statement of facts that his intention was to
get his office fumigated as soon as possible Further Plaintiff cannot take defense of section 22
of the Indian contract act, 1872

ARGUMENTS ADVANCED

vii
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016

A. Whether there was a valid contract between the plaintiff and the
defendant?

It is humbly submitted before the hon’ble court that there is no valid contract between the
plaintiff and the defendant. In fact the contract is void ab initio due to its ambiguous nature.
According to oxford dictionary ambiguous means “open to more than one interpretation;
not having one obvious meaning"1

There was no clarification during the conversation that whether the fumigation shall be done
by the company itself or not and this makes the contract void because defendant himself was
not aware of the fact that the company only deals in the hire of chemicals and its equipments
not in giving the service for fumigation thus making the agreement unclear because Getting
the fumigation done by the company itself was the main motive of the defendant and it was
the crux of the agreement too.

29. Agreements void for uncertainty.—Agreements, the meaning of which is not certain, or
capable of being made certain, are void. —Agreements, the meaning of which is not
certain, or capable of being made certain, are void."

It is humbly submitted before the hon’ble court that According to section 29, agreements the
meaning of which is not certain or capable of being made, are void. It is necessary that there
should be no ambiguity about what the parties intend. If the meaning of an agreement is
neither certain, nor capable of being made certain, the agreement is void. In the present case
there was ambiguity about the intention of the parties. Hence they misunderstood about the
real agreement2.

1
https://en.oxforddictionaries.com/definition/ambiguous
2
Bangia R.K Indian Contract Act, Allahabad Law Agency, Faridabad, 2010, page 198

2
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016
In Case of Scammell v Ousto3, House of Lords observed:

It is a necessary requirement that an agreement in order to be binding must be sufficiently

definite to enable the court to give it a practical meaning. Its terms must be definite, or
capable of being made definite without further agreement of the parties.

Hence in the present case the plaintiff by saying that they have chemicals and equipments
for fumigation and it will cost you 350 to hire including the cost of chemicals made the
agreement ambiguous and thus there was lack of clarity that whether the fumigation service
shall be done by the company or not.

It is humbly submitted before the hon’ble court that It is a well known rule of contracts that
the terms should be clear and should not be in a confusing manner. Essential terms tell the
parties what their essential rights and obligations are. They are terms which are at the heart of
the agreement.

If the terms are complete but their meaning is unclear, it is difficult for courts to establish
what constitutes performance and breach. It is well settled that a contract cannot be uncertain.
It must not be vague. Its terms must not be indefinite. A contract, it is said must be construed
so as to lead to a conclusion that the parties understood the meaning thereof4

Hence it is clear from the above law and facts that it is necessary that the agreement should
be precise and clear in nature so that both the parties can understand the basic nature of the
contract and when the agreement is vague or ambiguous then it can be declared void by the
hon’ble court.

3
1941 AC 251
4
Bangia R.K Indian Contract Act, Allahabad Law Agency, Faridabad, 2010, page 200

3
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016

WHETHER THE DEFENCE OF MISTAKE IS AVAILABLE TO THE DEFENDANT

OR NOT?

It is humbly submitted before the court that there is always a consensus ad idem (meeting of
the minds) between parties that enter into a contract. What this means is that both parties to a
contract are thinking of the same thing when they enter into a contract. Thus, when a party
enters into a contract on a mistaken assumption of some fundamental facts, the consensus ad
idem is lost. This then justifies the contract being voided for mistake5.

According to section 13:

“Two or more persons do not agree to the same thing in the same sense, there is deemed to
be no consent on their part. In other words there may be absence of meeting of minds of
the parties, or there may be no consensus ad idem. In such cases there arises no contract
which can be enforced”

It is submitted that section 13 makes it very much clear that the persons should agree the
same thing in the same sense otherwise there would be no contract at all. Whereas in the
present case the plaintiff as well as defendant was not agreeing to the same thing in the same
sense.

In Raffles v Wichelhaus6The parties entered a contract for the sale of some cotton to be
shipped by 'The Peerless' from Bombay. The Peerless had a sailing from Bombay in October
and in December. The defendant thought that it was the October sailing and the claimant
believed it was the December sailing which had been agreed. The court applied an objective
test and stated that a reasonable person would not have been able to state with certainty which
sailing had been agreed. Therefore the contract was void as there was no consensus ad idem.

5
Kleinwort Benson Ltd v. Lincoln City Council[1999] 2 A.C. 34
6
AIR 1998 S.C.1400

4
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016

It is humbly submitted before the court that Mistake in the law of contract only applies to
fundamental facts that go to the root of the contract. For example, suppose that the contract
states that a shipment of "plates" is to be delivered. Here, the contract is referring to paper
plates, but if one party believes it to be ceramic plates, it could be a mistake of fact. In many
cases, a mistake of fact can result in the contract being voided.

Case of Bell v Lever Brothers Ltd 7 recognises that a common mistake which totally
undermines a contract renders it void.

Case of Solle v.Butcher8 recognises a doctrine of ‘mistake in equity’ under which a serious
common mistake in contract formation falling short of totally undermining the contract could
give an adversely affected party the right to rescind the contract.

In Indian law the position of mistake of fact is same as of English law. According to section
20 of Indian Contract act 1872.

Agreement void where both parties are under mistake as to matter of fact.—where both the
parties to an agreement are under a mistake as to a matter of fact essential to the
agreement the agreement is void.

Explanation. — An erroneous opinion as to the value of the thing which forms the subject-matter
of the agreement, is not to be deemed a mistake as to a matter of fact.

It is submitted before the court that section 20 makes the contract void when both the parties
are at mistake of a fact which is essential to the agreement and from the statement of facts it
is clear that both parties were not aware of each other intentions. This has to be noted down
that there was a mistake of fact not a mistake of law and the mistake was essential to the
agreement.

In Tarsem Singh V Sukhminder Singh9, the parties to the agreement for the sale of land
were not ad idem with respect to the unit of measuring land, the case was held to be covered
by section 20, making the agreement void. In this case the seller intended to sell land in terms
of “Kanals”, whereas the buyer intended to purchase it in terms of “Bighas”. It was held to be

7
[1932] A.C. 161
8
[1950] 1 K.B. 671
9
AIR 1998 S.C.1400.

5
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016
mistake relating to a matter essential to a agreement. The agreement was, therefore, held to be
void.

It is humbly submitted before the hon’ble court that in the present case there was a mistake of
fact and that too was a fundamental one. According to the statement of fact, Defendant was in
the urgent need to get fumigation done in his offices and he himself doesn’t want to do the
fumigation.

Accordingly he contacted Terminator Company and said “I really need a way of getting rid of
the Insects. The company said “‘we have all the chemicals needed to kill any type of Insect
and the equipment for the fumigation. It will cost you £350 to hire including the cost of
chemicals.

If we carefully observe the statement than it will be clear that both the parties were mistaken
about a very important fact and that fact was “SERVICE OF FUMIGATION”.

The defendant wanted the fumigation to be done by the company only whereas the plaintiff
thought that defendant only want equipments and chemicals and defendant will do the same
himself.

In Case of Dularia Devi V. Janardan Singh10, The plaintiff illitereate women wanted to
execute a gift deed in favour of her daughter. Her thumb expression was frequently obtained
on two documents, one being gift deed in favour of her daughter and other on a sale deed in
respect of her other property in favour of the defendant, who were her daughter’s husband
and his brothers. While putting the thumb impressions, she honestly believed she was
executing a single document i.e. gift deed in favour of her daughter.

It was held by the Supreme Court that the sale deed executed by her was totally void,
because, “The Plaintiff-Appellant never intended to sign what she did sign, She never
intended to enter into the contract to which she unknowingly became a party. Hence it was
declared void.

10
A.I.R 1990 S.C. 1173

6
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016

It is to be noted that defence of section 22 shall not be available to the plaintiff which reads
that:

22. Contract caused by mistake of one party as to matter of fact.—A contract is

not voidable merely because it was caused by one of the parties to it being under a mistake
as to a matter of fact

It is submitted that in the present case the mistake was bilateral one i.e. , both of the parties
were having some mis-impresson. Hence this made the contract void. Secondly, it should be
taken into consideration that there was a mistake of fact not a mistake of law and thirdly the
mistake which is made is essential to the agreement. So un all cases the defendant was
unaware of the most important fact that the company terminator do not provide service of
fumigation.

7
 MEMORIAL FOR PETITIONERS
Academic Moot, 2016

Prayer for Relief

Wherefore in the light of the contentions raised, arguments advanced and authorities cited,
Counsel for the petitioners humbly pray & implore before this Hon’ble Court that it may be
pleased to adjudge and declare that:

That the contract between the plaintiff and the defendant is not valid on the following
Grounds:
 That the contract is ambiguous in nature.
 That there is a bilateral mistake of fact in the contract.

The Court may in its discretion grant any provisional relief and also make any such order as it
may deem fit in terms of equity, justice and due conscience.

And for this act of kindness the Defendant shall as duty bound ever humbly pray.

Respectfully submitted,

…………...….……...……………………

(Counsel for the Defendant)