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Культура Документы
2016
BEFORE
OF
GURGAON, HARYANA
COMPLAINT UNDER
RAKESH KUMAR
(PETITIONER)
V.
SHIPKART.PVT.LTD
(RESPONDENT)
Page 1
TABLE OF CONTENT
TABLE OF ABBREVIATIONS 3
STATEMENT OF JURISDICTION 4
STATEMENT OF FACTS 5
QUESTIONS/ISSUES PRESENTED 6
SUMMARY OF PLEADINGS /ARGUMENTS 7
PLEADINGS/ARGUEMENTS ADVANCED 8
[I] WHETHER THE TERMS AND CONDITIONS CLAUSE BE SAID TO BE AN UNFAIR
CONTRACT TERM? 8
STATEMENT OF JURISDICTION 14
PLEADINGS/ARGUMENTS ADVANCED 16
[I] WHETHER THE TERMS AND CONDITIONS CLAUSE BE SAID TO BE AN UNFAIR
CONTRACT TERM? 16
[III] WHETHER SHIPKART CAN BE HELD LIABLE FOR DEFICIENCY IN SERVICES? 18
Page 2
TABLE OF ABBREVIATIONS
Private
Pvt.
Limited
Ltd.
Ampersand
&
Communication
Comms.
V. Versus
Hon'ble Honorable
SC Supreme Court
Ors. Others
IT Information Technology
Page 3
STATEMENT OF JURISDICTION
Page 4
STATEMENT OF FACTS
Page 5
QUESTIONS/ISSUES PRESENTED
ISSUE -I
ISSUE-II
ISSUE-III
Page 6
SUMMARY OF PLEADINGS /ARGUMENTS
1
Black's Law Dictionary
Page 7
PLEADINGS/ARGUEMENTS ADVANCED
2. It is evident from the fact, that it is a click wrap agreement, where the
terms and conditions of the contract are laid out and the contractee has no
means to negotiate on these terms.3
remedy-available-in-india/
4 https://coporatelaws.wordpress.com/2010/05/13/unfair-terms-in-contract-and-legal-
remedy-available-in-india/https://coporatelaws.wordpress.com/2010/05/13/unfair-
terms-in-contract-and-legal-remedy-available-in-india/
Page 8
shall be treated as unfair if the contract or terms thereof are by themselves
harsh, oppressive or unconscionable.5
6. The entire basis of contract, that it was freely and voluntarily entered into
by the parties with equal bargaining power, completely falls on the ground
when it is practically impossible for the party to not accept the offered
terms.
7. The petitioner claims that the terms and conditions of Shipkart is a type
of Standard form of contract including:-
9. In case of Oil Corp. v. Indian Oil Comp.8 that contract reserved the right
to the defendant to cancel the plaintiff's dealership at time without assigning
any reason on cancellation by the defendant, the plaintiff filled a suit and
the suit was decreed on the grounds that the term was an unfair terms of
contract.9
5
199th law commission report.
6
1986 AIR 1571
7
Indian Airline Corp. vs. Madhuri Chaudhary
8
AIR 1969 Mad 423
9
Lily White vs. R. Munuswamy
Page 9
1. It is humbly submitted before the hon'ble court that the click-wrap
agreement would not be enforceable as against Mr. Kumar because the
option 'I Agree' simply signified that it was a take it or leave it situation
proving that there was an unequal level of bargaining power that put Mr.
Kumar to a contractual disadvantage.
4. In Bragg v Linden Research Inc, the plaintiff had argued that the click-
wrap agreement was a form of Adhesion contract where the terms were
extremely one- sided and would shock the conscience of the customer. The
court had upheld the contention of the plaintiff here and refuted the validity
of the contract.
Page 10
reading the hard to understand clauses but whenever a problem arises, he
cannot claim that that he was never aware of the contract.
1. It is humbly submitted that Shipkart has violated the rights of Mr. Kumar
by breaking the contract. There was legal contract between Mr. Kumar and
Shipkart named "FIRST CITIZEN" under which Shipkart is liable to provide
fast delivery and premium services, and by not delivering product on time
there was deficiency in service and the ultimate motive of the contract was
violated.
10
Section 2(1)(g), Consumer Protection Act,1986
11
Section 2(1)(o), Consumer Protection Act, 1986
12
Supriyo Ranjan Mahapatra v. M/S Amazon Development Centre India PVT. LTD.
13
1989 AIR 1433, 1989 SCR (2) 357
Page 11
deficiency in services is arises. Similarly delay in delivery even after it being
the ultimate motive has been violated here.
14
Section 56 of Indian Contract Act,1872
15
Section 39 of Indian Contract Act,1872
Page 12
PRAYER
(b) The click wrap agreement between the parties be deemed non-
enforceable as against Mr. Kumar.
And/or pass any other order that this Hon'ble court may deem fit in the
interest of justice, equity, fair and good conscience.
For this act of Kindness, the petitioner, as in duty bound, shall humbly
pray.
Page 13
STATEMENT OF JURISDICTION
Page 14
SUMMARY OF PLEADINGS /ARGUMENTS
17
Section 2(1)(g) of Consumer Protection Act, 1986.
Page 15
PLEADINGS/ARGUMENTS ADVANCED
18
Unilateral Gratuitous Obligation are also known as unilateral voluntarily obligations or gratuitous promises.
Page 16
and legibly and that terms that might disadvantage the consumer should be
given appropriate prominence.
3. Sec. 10-A of the IT Act recognizes the basic features of the contract such
as the communication of the proposals, acceptance of proposals, as the case
may be which could be expressed either in electronic form or by means of an
electronic record.
4. Taking into consideration the fact that all the terms and conditions of the
contract had popped up on the screen in the form of a click-wrap agreement
while Mr. Kumar was placing the order and he had given his consent to it by
clicking 'I agree' , so the terms and conditions were legally binding on him.
5. When the online user has been given reasonable notice of the agreement's
terms and it is clear that the user has manifested assent to the click-wrap
agreement, it becomes legally binding on it and the same reasoning has
19
Indian Technology Act 2000
Page 17
been provided in Feldman V Google 20. Click-wrap agreements had also been
held enforceable in Appliance Zone V Nextag21.
7. In another case of the Appistry Inc. V Amazon Inc 23, the plaintiff had
argued that the plaintiff had argued that the click- wrap agreement was not
binding because it was forced upon the company without an opportunity to
bargain. The court rejected all agreements and had upheld the validity of the
argument.
3. In the case of Ravneet Singh Bagga V. KLM Royal Dutch Airlines26 , the
respondent was not held liable for deficiency of services as delay was caused
due to unforeseeable circumstances. In the present case, Shipkart also
claims that the delay was unforeseeable so it should not be liable .
20
Feldman v. Google, Inc. -513 F. Supp. 2d229(E.D. Pa. 2007)
21
Appliance Zone, LLC v. Nextag, Inc., No.4:2009cv00089
22
Specht v. Netscape Commc'ns Corp., 306 F.3d 17(2d Cir. 2002)
23
Appistry LLC v. Amazon. com, Inc., No. 16-2417(Fed. Cir. 2017)
Page 18
4. Moreover, according to the terms and conditions of Shipkart there is a
Bipartite Contract between the buyers and the sellers i.e. (Mr. Kumar and
Spectre Electronics) and Shipkart only provides a platform where buyer and
seller come together. Thus, Shipkart cannot be held responsible for
deficiency in services.
5. In the case of Cit V. Saurashtra Cement & Chemical 27 , it was held that
the reasons for delay should be considered and in the present case internal
contingencies should be given due consideration. In the recent amendment
to Consumer Protection Act , 1986 the term “electronic service provider”has
been defined. According to Section 2(17)28 of The Consumer Protection Act,
2019 , Shipkart is just an electronic service provider who is enabling Spectr
Electronics to engage in advertising or selling its goods to Mr. Kumar and it
had no control on the delivery system.
6. There was 'Negligence' on the part of Mr. Kumar, as he did not read the
terms and conditions stated29 in the contract and proceeded with it.
7.Lastly, Shipkart had offered its sincere apologies for the delay to Mr.
Kumar and also offered him a discount of Rs. 100 on his next order from the
platform as a compensation . This act shows that Shipkart cared for its
customers and felt responsible even if it wasn’t in the first place.
Page 19
PRAYER
(a) The terms and conditions clause is not an unfair contract term.
(b) The click wrap agreement between the parties be deemed enforceable as
against Mr. Kumar.
And/or pass any other order that this Hon'ble court may deem fit in the
interest of justice, equity, fair and good conscience.
Page 20
PETITIONERS:-
RESPONDENTS:-
Page 21