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Statement of fact List of abbreviations List of authorities Statement of facts Statement of jurisdiction
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STATUTES:-
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The Plaintiff humbly submits this memorandum for the suit filed before this Honourable Court. The suit concerning “breach of contract and related issues” is filed in the Court of the Senior Civil Judge in accordance with the Section 6, Section 9 and Section 20 of the Civil Procedural Code , 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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Whether the acceptance of a sum different than that in the contract was valid and if it was then what was the effect of it on the original contract. Whether there was any breach of contract by Sapatrangi Pvt. Ltd.
Whether losses were accrued to the plaintiff due to the breach.
Whether the losses accrued to the plaintiff amounted to Rs. 1,50,000.
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1) Whether the acceptance of a sum different than that in the contract was valid and if it was then what was the effect of it on the original contract:- R D Parmanandka Pvt. Ltd had entered into a valid contract to purchase kids wear garments from Sapatrangi Pvt. Ltd for the ascertained price of Rs. 6,00,000. Under Section 16 of the Sale of Goods Act 1930 it was a valid agreement to sell. Both had agreed on a schedule of payment. After sometime , Sapatrangi Pvt. Ltd realised that R D Parmanandka Pvt. Ltd might not able to pay the sum due so Sapatrangi Pvt. Ltd., agreed to accept Rs.50,000 instead of Rs.2,00,000 as decided per the original contract. This was a part remission of the contract by Sapatrangi Pvt. Ltd under section 63 of The Indian Contract Act , 1872.
2) Whether there was any breach of contract by Sapatrangi Pvt. Ltd. According to the paying schedule in the contract R D Parmanandka Pvt. Ltd were supposed to pay Rs.4,00,000 on taking the delivery of the clothes on 1st^ January 2017 and had to pay the rest of the amount Rs.2,00,000 as full and final settlement on 1st^ March 2017 but the full delivery of clothes was not received on 1st^ January , only a part delivery was received and the rest was received on 3rd^ March 2017, which is a breach of contract under Section 47 of The Indian Contract Act 1872. The quality of the rest of the clothes delivered on 3rd^ March 2017 was poor and regardless of the notices sent to the Sapatrangi Pvt. Ltd., out of which one was acknowledged and accepted and the other was ignored the goods were not exchanged. The supply of poor quality of clothes is a breach of contract under Section 16(1) of „Sale of Goods Act 1930. This was a breach of contract under Section 39 of the Indian Contracts 1872.
3) Whether losses were accrued to the plaintiff due to the breach.
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1) Whether the acceptance of a sum different than that in the contract was valid and if it was then what was the effect of it on the original contract:- The plaintiff R D Parmanandka Pvt. Ltd had entered into an agreement with a Sapatrangi Pvt. Ltd for the delivery of kids wear garments under Section 4 of the Sale of Goods Act 1930. According to the Section 16 of the Sale of Goods Act 1930 , in case of transfer of property of goods is to take place at a furniture time or to some conditions to be fulfilled after , the contract is called an agreement to sell. It becomes a sale when the time elapses and the conditions are fulfilled subject to which the property in the goods to be transferred 1. The defendant was supposed to give the full delivery of the garments on 1st^ January 2017 and the plaintiff Pvt. Ltd were supposed to pay Rs.4,00,000 in exchange of the full delivery and the full and final payment of Rs.2,00,000 was to be payed on 1st March 2017 2. Accordingly R D Parmanandka Pvt. Ltd payed Rs.4,00,000 on 1st January though the full payment was recieved. After sometime when both the parties were facing financial challenges , the defendant realised that the plaintiff might not be able to pay the final payment due of Rs.2,00,000 , hence the plaintiff agreed to accept Rs.50,000 instead of Rs.2,00, due to be payed by the plaintiff. This a part remission of the contract by the defendant according to the Section 63 of The Indian Contract Act 1872 3. According to Section 63 of the Indian Contract Act 1872 that every promisee may dispe^1 nse with or remit , wholly or in part , the performance of the promise made to him , may extend the time of performance or may accept instead of it any satisfaction which he thinks fit. Here in the case the promisee on his accord agreed to accept an amount of Rs.50, instead of Rs.2,00,000 which he thought he was fit. Hence this was a valid remission to the contract and no other changes were agreed upon to be made in the
(^1) Part 2 of section 16 of the Sale Of Goods Act 1930. (^2) second point in summary of facts. (^3) section 63 of contract act :- promise to dispense with or remit peformance of promise.
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contract by the parties and the rest of the contract was supposed to be performed in the same way it was decided to be and the defendants were still obliged to pay the remaining clothes which were supposed to be delivered on 1st^ January 2017.
2) Whether there was any breach of contract by Sapatrangi Pvt. Ltd.
According to the facts of the case the plaintiff entered into a contract with the defendant for the delivery of kids wear clothes for a consideration of Rs.6,00,000 and a payment schedule was agreed upon according to which a payment of Rs.4,00, was to be made by the palintiff on the delivery of goods on 1st^ January and the whole (^2) delivery should have been made on that date. According to the facts of the case it is mentioned that a payment schedule was agreed upon by the parties and not a schedule for deliveries , the payments were to be made in parts but nowhere in the contract was it mentioned that part goods will be delivered. It was clearly mentioned in facts that “ R.D Parmanandka Pvt. Ltd agreed to pay Rs.4,00,000/ partially on the delivery of the kids wear garments on 1st^ January 2017 and a final payment of Rs.2,00,000/ on 1st March 2017. It was never ever mentioned anywhere in the contract that the full and final settlement was to be paid on recieving the part delivery of the clothes. The defendant was supposed to deliver the whole on 1st^ January but a part of it was delivered in 3rd March which in inconsistent with the contract and is therefore a breach of contract according to Section 52 of The Indian Contract Act 1872 4. Accoding to this section 52 in a contract when the order in which the reciprocal promises are to be performed in that order ; and where the order is not expressly fixed by the contract , they shall be performed in that order , in this case the order was clearly expressed in the form of a payment schedule the defendant was supposed to deliver the whole before taking the full and final payment but it did not deliver the whole on 1st^ January 2017 as required by the contract but on 3rd^ March 2017.
According to Section 55 of The Indian Contracts Act^5 , when a party to a contract promises to do a certain thing at or before a specified time , fails to do any such thing
(^4) section 52 of contract act – order of performance of promises.
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In the case KWALITY MANUFACTURING CORPORATION v. CENTRAL WAREHOUSING CORPORATION^7 in the contract for 32 lakh bamboo mats when the bamboo mats of poor quality were delivered to the applicant damages were awarded to the applicant for the breach of contract in pursuance to Section 16 of The Sale of Goods Act 1930. 3) Whether losses were accrued to the plaintiff due to the breach. Accoding to the foresaid contract the full delivery of the contract goods was not recieved by the plaintiff on the date agreed upon. Without any doubt that led to loss of sale and business , loss of goodwill and reputation of the plaintiff party. In the case Shanti Devi v. Bhojpur Rohtas Gramin Bank^8 , it was held that when a promise has to be performed before a certain or on a specific day then it must be performed before the lapse of that time. Even when the rest of the goods due to be delivered were delivered on 3rd^ March 2017 they were found to be of poor quality which could not be sold , traded and performed business and the consideration for that was paid to the defendant by the plaintiff on time. Also according to the facts the defendant very well knew that the plaintiff was suffering heavy losses in business and would be affected greatly by loss of sale and business that the delivery of poor quality of products would result in. So the plaintiff accrued losses due to the partial and late delivery of the goods and also due to the poor quality of the products delivered.
4) Whether the losses accrued to the plaintiff amounted to Rs. 1,50, According to the case Karsandas H. Thacker v. Saraan Engg. Co. Ltd^9 ., Damages are to be awarded as compensation for any loss or damage arsing naturally in the usual course of things from the breach of contract. (^4) Also in the case Hadley v. Baxendale (^10) certain principles were laid down ,
(^7) AIR 1965 SCC 1981 (^8) AIR 2007 DOC 102 (NCC) (^9) AIR 1965 SCC 1981 (^10) All Er Rep 1846.
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In this case plaintiff was an extensive business miller , their mill was stopped by a breakage of the crankshaft by which the mill worked. The defendants, a firm of carriers were engaged to carry the shaft to the manufacturers and patent for a new one. The plaintiff‟s servant told the defebdants that the mill was stopped and the new shaft must be sent immediately , but due to the neglect of the defendant the delivery was delayed and the plaintiff did not recieve the new shaft for several days after the after they would have otherwise done. The action was bought for loss of profits they would have made in the time delayed. In this beacause the complete delivery was not recieved on the agreed date , it led to loss of consignments and sales to the plaintiff which ultimately transforms into loss of profits even after the delivery of the remaining products they were of poor quality and they could not be sold at all which again resulted into loss of sales and profits and also the price paid for the goods which could not have be recovered. According too the rules laid down t^5 his case only general damages can be recovered and not special damages and for a business of garments the loss of profits and sales is what takes place in usual course if the delivery is on time or the quality and it is not any special damage. Also the defendant was aware of the conditions of the plaintiff which were financially canstrained.
So the damages accrued by the plaintiff includes :- loss of sale and profits due to the partial delayed delivery of the goods for the two months + loss in godwill and reputation + loss for sale and profits of poor quality + loss of compensation for the clothes which could not be recovered.
For the breach ofcontract on the part of the defendant under Section 39^11 of the Indian Contract Act 1872, the plaintiff claims damages under Section 73 of the Act^12.
Hence the plantiff is entitled to Rs.1,50,000 as damages for the breach of contract by the defendant.
(^11) section 39 – breach of contract (^12) section 73 – claim for damages
