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BEFORE
THE HONORABLE DISTRICT COURT

IN THE MATTER OF

MR. D.P Mittal

(PLAINTIFF)

VS

Defendant Co.
(DEFENDANT)

MEMORANDUM ON BEHALF OF THE PLAINTIFF

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………..3

STATEMENT OF JURISDICTION………………………………………..4

STATEMENT OF FACTS………………………………………………….5

STATEMENT OF ISSUE…………………………………………………..7

SUMMARY OF ARGUMENTS……………………………………………8

ARGUMENTS ADVANCED………………………………………………9

PRAYER FOR RELIEF…………………………………………………….12

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 INDEX OF AUTHORITIES

• STATUTES

1. CIVIL PROCEDURE CODE

2. THE SPECIFIC RELIEF ACT, 1963

• FOREIGN LEGISLATIONS

1. English Sale of Goods Act 1979

2. Law Reform (Frustrated Contracts) Act of 1943

• CASE LAWS

1. Taylor v. Caldwell (1863)

2. Krell v. Henry (1903)
3. Ocean Tramp Tankers Corporation v. VIO Sovfracht (the Eugenia) (1964)
4. Davis Contractors Ltd. v. Fareham Urban District Council (1956),
5. Satyabrata Ghose v. Mugneeram Bangur and Co. (1953)
6. Sushila Devi v. Hari Singh (1971)
7. Robinson v. Davison (1871)
8. Firm Bachhraj Amolakchand v. Firm Nand Lal Sitaram (1962)

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 STATEMENT OF JURISDICTION

It is humbly submitted that the plaintiff has approached the honorable Court of the Senior
Civil Judge in accordance with the Section 15 of the Civil Procedural Code for the suit
concerning “breach of contract and related issue”. The Court has the jurisdiction to decide all
the matters referred to it for decision. Both the parties shall accept the Court’s decision as
final and binding and execute in good faith.

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 STATEMENT OF FACTS

1. The Defendants co. is the owner of track of land in the vicinity of the Damdama
Lakes in greater Noida. The company decide to use this property for residential basis
and divide this property into large plots and offers were invited by different buyers.
The company intended to make different agreements with different buyers who would
pay only some proportion of the total amount during the time of the agreement. The
company promised to make roads and drainage system necessary for the land to be
suitable for building construction. After the construction will be completed the buyer
would pay the whole price.
2. The plaintiff D.P Mittal entered into an agreement with the defendant co. dated 5
august 2014 and paid Rs. 1,00,000 as the earnest money. the receipt had the following
conditions:
[a] Received from D.P Mittal a sum of Rs. 1,00,000 as earnest money having agreed
to sell him or his nominee 3,000 sq. feet in plot No. 76 on 30 ft. road in Premises No.
Lake Vihar Scheme No. 1, Western Block at the average rate of Rs. 10,00,000 per 720
sq. feet. b.
[b] The conveyance must be completed within one month from the date of completion
of roads on payment of the balance of the consideration money, time being deemed as
the essence of the contract. In case of default, this agreement will be considered
cancelled with forfeiture of earnest money.
[c]Terms of payment: - One-third to be paid at the time of registration and the balance
within six years bearing Rs. 6 percent interest per annum.
3. On November 12, 2015 an order was passed by the collector under the rule 79 of the
defence of India rules. Under the order a portion of land was requisitioned for military
purposes, some portion as taken by the govt. and the remaining was requestioned in
the scheme later.
4. On November 19,2017 a letter was addressed to D.P Mittal informing him about the
requisitioning of the land by the govt. and there is no knowing how long the govt, will
be having the possession of the land. The construction of the proposed roads and
drains could not be taken during the continuance of the land and many years after its
termination. The company then decided to consider the agreement as cancelled and
gave him option to take the earnest money back within 1 month of the issue of this
letter, an alternate offer was made in case the Dammam purchaser refused to treat the
agreement cancelled. first option was that if he liked he could he could complete the
conveyance of the property within 1 month of receiving and take the land in the
condition as it is, the company will complete the construction of the roads and
drainage after the war when the circumstances permit. The letter ended by saying that
if the letter is ignored and no response is received then the agreement will be treated
as cancelled and the earnest money will be forfeited.
5. After that the plaintiff exchanged some words with him and the company through the
lawyers. The plaintiff refused to accept either of the two options offered and stated

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 that the latter was bound by the terms of the agreement from which it could not in law,
resile.
6. On 18 January 2020, a suit was filed by the plaintiff against the defendant sating that
the contract was still subsisting and the plaintiff was entitled to get conveyance
executed and registered by the defendant on the payment of the consideration money.

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 STATEMENT OF ISSUES

1. Whether the requisition orders affected the contract dated 5 August 2014 or made its
performance possible?

2. Whether the contract dated 5 August 2014 between the parties is subsisting or stands
discharged by frustration?

3. Whether the plaintiff is entitled to get a conveyance executed or registered by the

defendant on the payment of the consideration money mentioned in the agreement?

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 SUMMARY OF ARGUMENTS

1. Whether the requisition order affected the contract date 5 august 2015 or made
its performance impossible?
The plaintiff's counsel argues that the requisition orders issued by the government do not
affect the contract dated 5 August 2014 or make its performance impossible. It is contended
that the contractual obligations, absence of explicit clauses regarding requisitioning, the
application of force majeure and frustration doctrines, and the refusal of the company's
cancellation offer all support the plaintiff's position. The counsel asserts that the defendant
company is bound by the contract's terms and cannot unilaterally cancel it or forfeit the
earnest money. The plaintiff seeks execution and registration of the conveyance as per the
agreement's terms.
2. Whether the contract dated 5 august 2015 between in parties is subsisting or
stands discharged by frustration?
The counsel contends that the contract dated 5 August 2014 is still in effect and has not been
discharged by frustration. it's asserted that the requisition orders by the government do not
constitute unforeseen events that render performance impossible. The counsel emphasizes
that the explicit "time is of the essence" clause in the contract indicates that delays in
construction do not automatically nullify the agreement. The plaintiff's refusal of the
cancellation offer further supports their intention to uphold the contract. Therefore, the
counsel contends that the contract remains binding, and the plaintiff should be entitled to the
execution and registration of the conveyance as per its terms.

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 ARGUMENTS ADVANCED

1. Whether the requisition order affected the contract date 5 august 2015 or made
its performance impossible?
The defendant company, the owner of a sprawling tract of land in the idyllic vicinity of the
Damdama Lakes within Greater Noida, embarked upon a scheme known as Lake Vihar
Scheme No. 1. This ambitious endeavor aimed to transform the land into a residential haven,
offering plots for sale to those desiring a place to call their own. The scheme captivated the
hearts and imaginations of prospective buyers, including the plaintiff, Mr. D.P. Mittal.
Mr. Mittal, driven by the yearning to create a haven for his family, entered into a contract
with the defendant company on 5 August 2014. In good faith, he entrusted a significant sum
of money as earnest, eagerly anticipating the fulfilment of the promised dream.
The gravity of this matter cannot be understated, as it involves the livelihood and future of
our client, who finds himself caught in the vortex of events beyond his comprehension or
control. The requisitioning of the land by the government, first on 12 November 2015 and
subsequently on two subsequent occasions, for military purposes has cast a shadow of
uncertainty and despair over the hopes and dreams of countless buyers like Mr. Mittal. As the
company informed Mr. Mittal in a letter dated 19 November 2017 that a considerable portion
of the land had been taken in possession by the government, the construction of the promised
roads and drains, essential for making the land suitable for residential purposes, stood halted,
with no clarity on when it would resume.
In our arguments, the counsel is establishing legal principles and presenting relevant case
laws to substantiate our contention that the requisition orders have undeniably affected the
contract and made its performance impossible. We shall delve into the intricacies of the
agreement, the specific terms regarding completion of conveyance, and the devastating
impact of the requisition orders on the promised infrastructure. The crux of the matter lies in
determining the impact of the requisition orders on the contract dated 5 August 2014. It is
important to ascertain whether the requisition orders have affected the validity of the contract
or made its performance impossible.
The counsel puts forth the argument that the requisition orders issued by the government have
significantly impacted the performance of the contract dated 5 August 2014. The plaintiff,
Mr. D.P. Mittal, entered into the agreement with the understanding that the defendant
company would complete the necessary infrastructure, including roads and drains, within a
reasonable time frame. However, the requisition orders have disrupted this timeline, making
it impossible for the defendant company to fulfil its obligations under the contract. The
requisitioning of a substantial portion of the land for military purposes has rendered the
construction of roads and drains impracticable during the continuance of the war and possibly
for many years after its termination. As a result, the performance of the contract has become
impossible.
Further the requisition orders constitute an unforeseen event that has fundamentally altered
the circumstances under which the contract was entered into. The doctrine of frustration
applies in cases where an unforeseen event occurs, making the performance of a contract
impossible or radically different from what was initially contemplated. In the present case,
the requisition orders have frustrated the purpose of the contract by making it impossible for
the defendant company to construct the necessary infrastructure. This aligns with the
principles established in the case of Satyabrata Ghose v. Mugneeram Bangur & Co. (1954

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SCR 310), where the Supreme Court recognized the doctrine of frustration and held that
when a contract becomes impossible to perform due to an unforeseen event beyond the
control of the parties, the contract may be considered frustrated.
Additionally, The requisition orders have resulted in the possession of a considerable portion
of the land by the government, which has adversely affected the commercial viability of the
contract. The construction of roads and drains, which was a crucial component of making the
land suitable for residential purposes, has become impracticable due to the requisitioning of
the land. The requisition orders have caused a substantial change in the circumstances under
which the contract was formed, making it commercially impracticable for the defendant
company to fulfill its obligations. This aligns with the principles established in the case of
Alopi Parshad & Sons Ltd. v. Union of India (1960 AIR 588), where the court recognized that
if an unforeseen event or change in circumstances renders the performance of a contract
impossible or radically different, the parties may be discharged from their contractual
obligations

2. Whether the contract dated 5 august 2015 between in parties is subsisting or

stands discharged by frustration?
In the first place, the doctrine of English law relating to frustration of contracts that acts as a
device to set aside contracts where an unforeseen event either renders contractual obligations
impossible, or radically changes the party's principal purpose for entering into the contract
has no application to India in view of the statutory provision contained in section 56 of the
Indian Contract Act which states that Agreement to do an act impossible in itself is void. It
further states that a contract to do an act which, after the contract is made, becomes
impossible, or, by reason of some event which the promisor could not prevent, unlawful,
becomes void when the act becomes impossible or unlawful and where one person has
promised to do something which he knew, or, with reasonable diligence, might have known,
and which the promise did not know, to be impossible or unlawful, such promisor must make
compensation to such promise for any loss which such promise sustains through the non-
performance of the promise.
The doctrine of frustration was first dealt in modern times in Taylor v. Caldwel. lIn which a
music hall was burnt down in which concerts were supposed to be performed by the plaintiff
on certain specific days. The court held that the defendant (the music hall co.) was excused as
its performance became impossible. Over the time, English law has pronounced many
theories and principles relating to the law of frustration. However, it is made clear by the
given case that in India we have statutory provisions to be followed under Section 56 of
Indian Contract Act relating to Frustration of Contracts.
In another case, The case of Satyabrata Ghose v. Mugneeram Bangur & Co.(1954 SCR
310) recognized the principle that when a contract becomes impossible to perform due to an
unforeseen event beyond the control of the parties, it may be considered frustrated.
Additionally, the case of Alopi Parshad & Sons Ltd. v. Union of India (1960 AIR 588)
further affirmed the doctrine of frustration and held that if an unforeseen event or change in
circumstances makes the performance of a contract impossible or radically different, the
parties may be discharged from their contractual obligations. These case laws establish the
legal foundation for our argument that the requisition orders have frustrated the contract and
its performance.

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The Supreme Court of India held that although the government requisitioned the land,
impossibility can not apply in this case, and the principles of Frustration of Contract in
English law, as per the judgment passed by the High Court, were not relevant in the statutory
provisions of the Indian Contract Act. Besides this, the court also affirmed that the execution
of the contract did not become impossible.
In another case named, Smt. Sushila Devi v. Hari Singh [1971 AIR 1756, there was a contract
regarding giving property on lease. Unfortunately, the property which was situated in
Gujranwala became a part of Pakistan due to partition. The Supreme Court held that the term
'impossibility' need not be confined to practical impossibility. It could also mean
impracticability with regard to the object and purpose of the parties to the contract. For this,
some supervening event must have occurred which impacts the foundation of the contract.
Thus, the contract was held to be frustrated.
Further, the Supreme Court said that Section 56 lays down a positive law and doesn't leave
the matter determined according to the intention of parties. Section 56 (2) deals with when
matter is not determined to the intention of parties. It is applied when parties did not have an
intention regarding the supervening event and when there is no implied term in the contract.
Another important aspect to check for the application of impossibility is that the foundation
of the contract gets upset.
Thus, from above mentioned cases it can be concluded that though theories of law of
frustration of England are not applicable in India, the matter is always determined to the court
which analyzes the contract as presented by the parties and considers the circumstances
around the contract and even if the English law Applies, it can have no application to
contracts for sale of land and that is in fact the opinion expressed by the English judges
themselves. On the admitted facts and circumstances of this case there was no frustrating
event that could be said to have taken away the basis of the contract or tendered its
performance impossible in any sense.
Thus, this makes it clear that the contract dated 5 August 2014 between the parties is
subsisting. Further, we can also see that there was no time limit specified in the contract for
the completion of the construction of the roads and drains because it was understood that the
work will be completed in a reasonable time period. Therefore, the work was to be completed
within a reasonable time, and also since, the war conditions prevalent were known to both the
parties while entering into the contract, that reasonable time was to be modified accordingly.
Hence the contract had not become incapable of being performed under section 56 i.e.
Agreement to do impossible acts. Also in the given case, the work could be continued after
the termination of the war, and hence the contract was not held void. And it did not fall in the
criteria of a frustrated contract as mentioned under section 56 of The Indian
Contract Act, 1872.

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 PRAYER FOR RELIEF

In the light of the facts stated, issues raised, arguments advanced and authorities cited, it is
most humbly prayed and implored before the honorable district court it may be graciously
pleased to adjudge and declare that:
1. The requisition orders did not affect the performance of the contract or made its
performance of the contract impossible.

2. The contract dated 5 August 2015 is still subsisting and there is no applicability of
doctrine of frustration of contract.

3. The plaintiff is entitled to get conveyance executed and registered by the defendant on
the payment of the consideration money mentioned in the contract.

Hence it is prayed before the honorable district court to pass an order in favor of the plaintiff
as prayed for in the complaint, in the interest of natural justice and equity.

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