CIVIL MOOT COURT MEMORIAL

(DEFENDANT SIDE)
BEFORE THE HON'BLE COURT OF CIVIL JUDGE
AT SARDAM
CIVIL ORIGINAL JURISDICTION

CIVIL SUIT NO._____/2023

IN THE MATTER OF

M/S SENGHAL & SENGHAL

(PLAINTIFF)

V.

SIDD MALHAR

(DEFENDANT)

UNDER SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT

Most Respectfully Submitted to the Honourable Civil Judge.

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 TABLE OF CONTENTS

Sl No. Page No.

1. Index of Authorities 4

2. List of Cases 5

3. Statement Of Jurisdiction 6

4. Statement of Facts 7-9

5. Issues Presented 10

6. Summary of Arguments 11

7. Arguments Advanced 12 - 18

8. Prayer 19

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 INDEX OF AUTHORITIES

STATUTES
1. The Indian Contract Act, 1872
2. The Indian Majority Act, 1872
3. Civil Procedure Code, 1908

BOOKS
1. Pollock & Mulla; “The Indian Contract and Specific Relief Acts, Vol I”; 14th
Edition; 2013
2. Pollock & Mulla; “The Indian Contract and Specific Relief Acts, Vol II”; 14th
Edition; 2013
3. Mulla; “The Code of Civil Procedure, Vol I”;18th Edition; 2011

WEBSITES
1. https://indiankanoon.org
2. https://livelaw.in
3. http://www.bareactslive.com
4. https://www.mondaq.com
5. https://www.indiacode.nic.in
6. http://www.legalservicesindia.com

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 LIST OF CASES

1. BANK OF RAJASTHAN LTD. V/S SH. PALA RAM GUPTA AIR 2001 DEL.58
2. KASHIBA V. SHRIPAT (1894) 19 BOM 697
3. KHAN GUL V. LAKHA SINGH AIR 1928 LAH. 609
4. MOHORI BIBEE V. DHURMODAS GHOSE (1902-03) 30 IA 114: ILR (1903) 30
5. MATHAI MATHAI V. JOSEPH MARY [2015] 5 SCC 622
6. LATCHARAO V. VISWANADHAM , AIR 1956 AP
7. RAJUBALA DASI V. NIDHURAMA PANDIT AIR 1960 CAL 65
8. RITESH AGGARWAL V. SEBI, (2008), 8 SCC 205
9. VIRENDER SINGH V/S LAXMI NARAIN (2007) BC 530

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 STATEMENT OF JURISDICTION
The Counsel on behalf of the Defendant, hereby submits his written statement in
the suit for recovery. The Counsel most humbly and respectfully, submits that this
Hon’ble Court has the requisite subject matter jurisdiction to entertain and
adjudicate this matter.

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 STATEMENT OF FACTS

1. Sidd Malhar, a sixteen-year prodigy, citizen of Indiana was the recipient of the

“Sensational Voice of the Nation” award. He was an astounding singer, extremely

talented not only in Rap, Rock, Hip-Hop and Jazz but also in Classical and Folk. He
wanted a multi-purpose, ultra-modern architectural marvel where he could have
his recording studio, theatre- for live musical performances and a roof top pool
for hosting parties. Thus, he put the task out to tender.
2.M/s. Senghal & Senghal was a leading building constructor and infrastructure
provider. They offered to do the entire work for Rs.10, 00,000/. Both the parties
knew that this was an unrealistically low-price contract and the amount will be
paid in instalments in order of the completion of different phases of the assigned
work.
3. Sidd accepted their offer and entered into a contract for construction of the
multi-purpose building and for providing al amenities therein. According to the
contract, the ground floor was for parking, the first floor was for the music
theatre, the second floor was for the recording studio and the last floor for the
roof top pool.
4.M/s Senghal & Senghal completed the construction of the ground floor and first
floor and ran out of money and materials for further construction. They
informed Sidd that they could not complete the construction unless further
capital was made available to them.

5. Sidd had arranged a poolside party to which he had invited top music directors,
producers and other renowned individuals in the music industry whom he
believed would fund for his dream music albums and music tours. So he was
desperate to have the construction of the roof top pool completed as stipulated.
He had requested for the continuance of the construction work and further
requested to spend the remaining amount of Rs.7,00,000/- on the work out of
their own funds and assured them that the money would be paid to them as
soon as his album is released,

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6. The roof top pool was completed and the party was a success. Sidd entered
into a contract with Veenaghaana Producers who agreed to fund for the fusion
albums and world tours. Sidd told Ms. Asha Senghal, the Manager of M/s.
Senghal & Sengal “Madam, you have saved my career. Don't worry about
Rs.7,00,000/-" Having this words as a promise, M/s. Senghal & Senghal started a
new project. However, Sidd's new fusion music album was a disastrous flop, He
then found himself unable to pay the amount of Rs.7,00,000/- to M/s. Senghal &
Senghal.
7. Ms. Asha Senghal compelled Sidd to render a music performance in her
daughter’s birthday party. Apart from relatives and friends she had also invited
rich people, in order to secure contracts regarding building, construction etc. and
in return she agreed to release Sidd from paving the debts of Rs.7,00,000/-. Sidd
agreed on this point and was ready for the music performance in the party. He
also wanted to get back his lost reputation and start his career afresh. However
before the party, he suffered from a severe sore throat due to over-repetition of
rehearsals. Then he did not perform in Ms .Asha's party on the advice of his
doctor.
8. On Sidd's eighteenth birthday, both the parties, on grounds of humanity,
decided to alter the contract. Sidd acknowledged the debt taken from M/s.
Senghal & Senghal for rendering past services and further both agreed on the
same point that Sidd would pay the debt through easy monthly instalments
(EMIs) of Rs. 20,000/- per month till the repayment of the amount of
Rs.7,00,000/-.
9. Sidd, later on, felt that the work done by M/s. Senghal & Senghal was not
performed as he had specified. He further pointed out that the material used for
constructing was substandard and not satisfactory. He estimated that this would
have cost them Rs.3,00,000/- only. He claimed that he had paid the money
already.
10. Sidd then decided to dispose of his property, without paying a single dime to
M/s. Senghal & Senghal. When all this foul play came to their knowledge, they
tried to restrain him by putting enormous pressure in order to recover their
money amounting to a total sum of Rs.7,00,000/- which they spent on the
construction and amenities. Even after such prolonged period and altered mode

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of payment, M/s. Senghal & Senghal could not recover the debt from Sidd. As a
last resort, they sent him a legal notice, claiming that the money to be repaid
within 15 days. However, Sidd did not send any correspondence or reply to the
said notice.
11. In this context, M/s. Senghal & Senghal finally decided to seek remedy from
the Court of Law in this regard. The suit was filed by M/s. Senghal & Senghal
before the Civil Court of Sardam, in the State of Indiana on the ground that they
had constructed the building as per the terms of the contract and had taken all
the diligent steps to recover the loan made available to Sidd Malhar for
Rs.7,00,000/- but now he refused to pay the said amount and alleged fraud
against him. They also prayed tor injunction restraining Sidd from selling the
property until the suit was disposed off.
ISSUES
a. Whether there is a valid contract between M/s. Senghal and Senghal and Mr.
Sidd Malhar?
b. Whether the judgment passed in Mohori Bibee v. Dharmodas Ghose needs
reconsideration?
c. Whether the Plaintiff can take the plea of restitution?

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 ISSUES PRESENTED

1. WHETHER THERE IS A VALID CONTRACT BETWEEN M/S. SENGHAL AND

SENGHAL AND MR. SIDD MALHAR?
2. WHETHER THE JUDGMENT PASSED IN MOHORI BIBEE V. DHARMODAS GHOSE
NEEDS RECONSIDERATION?
3. WHETHER THE PLAINTIFF CAN TAKE THE PLEA OF RESTITUTION?

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 SUMMARY OF ARGUMENTS

1. WHETHER THERE IS A VALID CONTRACT BETWEEN M/S. SENGHAL AND

SENGHAL AND MR. SIDD MALHAR?

The counsel on behalf of the defendant most humbly and respectfully submits
before this Hon’ble court that Mr. Sidd Malhar, is a minor i.e. below the age of 18
year and thus, not competent to contract as per the provisions of section 10, 11
of the Indian Contract Act, 1872. Thus, a contract entered by him is void-ab-initio
and he is not entitled to give a valid consent for such contract.

2. WHETHER THE JUDGMENT PASSED IN MOHORI BIBEE V. DHARMODAS GHOSE

NEEDS RECONSIDERATION?
The pronouncement given in Mohori Bibee v. Dharmodas Ghose does not
needs any reconsideration, as because a contract entered into and with a
minor is void ab initio, as because, it is presumed that a minor lacks the mental
maturity to enter into a valid and enforceable contract.

3. WHETHER THE PLAINTIFF CAN TAKE THE PLEA OF RESTITUTION?

The plaintiff cannot take the plea of restitution as per Section 65 because the
contract was void ab initio.

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 ARGUMENTS ADVANCED

1. WHETHER THERE IS A VALID CONTRACT BETWEEN M/S. SENGHAL AND

SENGHAL AND MR. SIDD MALHAR?

The counsel on behalf of the Defendant most humbly and respectfully submits
before this honourable Court that Mr. Sidd Malhar is not competent to contract
as per the provisions of the Indian Contract Act, 1872. For an agreement to be a
contract, provisions of section 10, Indian Contract act, 1872, must be fulfilled.

For an agreement to be a contract:

- Parties should be competent to contract

- There must be free consent of parties
- There should be lawful consideration
- There should be lawful object
- It should not be expressly declared to be void

the counsel on behalf of the Defendant must humbly and respectfully submits
before this Hon’ble court that Mr. Sidd Malhar is a minor, his consent can’t be
considered as valid consent and the agreement is not for to supply necessities to
the minor, thus it is not a valid contract.

That Mr. Sidd Malhar is a minor.

The counsel on behalf of the defendant most humbly and respectfully submits
before this Hon’ble court that Mr. Sidd Malhar , being below the age of 18 years,

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is a minor and thus not competent to contract under the Indian Contract act,
1872.

Determining majority
Age of majority, according to section 11, Indian Contract Act, 1872 shall be
determined according to law to which the person is subject. Therefore, if there is
a difference between provisions of Indian Majority Act, 1875 and those of
personal law to which the person is subject, his personal law will not prevail over
Indian Majority Act, 1875.

In the case of Kashiba v. Shripat the honourable court dealt with the case of a 16
year old Hindu widow. It was held that “her capacity to contract shall be
regulated by Indian Contract Act, 1872 being the law of her domicile and she
being a minor was not liable under the bond.”

Age of majority under the Indian majority Act, 1875.

A person who has not attained the age of majority is a minor. Section 3 of the
Indian majority Act, 1875 provides that a person is deemed to have attained the
age of majority when he completes the age of 18 years.

Thus, the counsel on behalf of the defendant most humbly and respectfully
presents before this Hon’ble court that Mr. Sidd Malhar is below 18 years, he is a
minor and thus incompetent to contract under the Indian Contract Act, 1872.

Minor’s Competence to Contract

The counsel on behalf of the defendant most humbly and respectfully submits
before this Hon’ble court that a minor is incompetent to enter into a contact and
any contact entered by him is void-ab-initio.

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In the case of Latcharao v. Viswanadham it was held by the Hon’ble court that,
“as a minor cannot enter into a contract, contract with minor is void ab initio.”

In the case of Rajubala Dasi v. Nidhurama Pandit, it was held by the Hon’ble
court that, “a contract is specifically enforceable against a minor if he has reaped
any benefit under the contract. Even though a minor cannot enter into a contract,
yet, guardian of a minor can validly enter into contract on his behalf.”

In the case of Ritesh Aggarwal v. SEBI it was held by the Hon’ble court that, “a
contract must be entered into by a person who can make a promise or make an
offer. Else, the contract will be void as an agreement which is not enforceable
under law is void. Thus, minors cannot enter into a contract.”

For a contract to be valid, parties to contract must have a free consent. Consent is
defined under section 13 of Indian Contract Act, 1872 as agreement between two
or more people upon the same thing in the same sense. Mutual consent is
essential for every agreement and agreement is generally essential for formation
of contract. Therefore, no binding contract can be formed if there is no consensus
ad idem.

Thus, it is most humbly submitted before this Hon’ble court that as a minor is not
competent to give a valid consent, hence contract with Mr. Sidd Malhar is void as
it does not fulfil the conditions specified under section 10 and 13 of the Indian
Contract Act, 1872.

2. WHETHER THE JUDGMENT PASSED IN MOHORI BIBEE V. DHARMODAS

GHOSE NEEDS RECONSIDERATION?

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Section 11 of the Indian Contract Act (“the Act”) states that to be competent
to contract, a person must have attained the age of majority. As per the
Indian Majority Act, 1875, the age of majority in India is 18 years. Read
together, it is obvious that a person under the age of 18 is not ‘competent’
to contract under Indian contract law. The ambiguity however arises from
the absence of any provision under the Act putting forth the ramifications of
entering into a contract in contravention of Section 11.

The Privy Council was tasked with resolving this vagueness in the seminal
case of Mohori Bibee v. Dharmodas Ghose, where the dispute pertained to
the validity of a mortgage deed executed by a minor in favor of a money-
lender. The minor contended against the enforceability of this agreement,
claiming that he was not competent to enter into a valid contract under the
Act. A connected issue was the possibility of restitution under Sections 64 or
65 of the Act, which mandate the restitution of any benefit received under
avoidable or void contract respectively. Essentially, the Privy Council had to
determine whether (a) the mortgage-deed was valid and enforceable, and
(b) whether the money-lender could seek reimbursement of the money
advanced by him to the minor in pursuance of the mortgage-deed. It was
held that contracts entered into with a minor would be void ab initio, which
could not even be deemed to be contracts within the meaning of the Act in
the first place. Accordingly, the enforceability of minors’ contracts was
completely rejected, and even restitution under Section 65 was denied, as
the Privy Council asserted that ‘voidness’ envisaged under this provision
presupposes the existence of a contract (while, as pointed out, an
agreement with a minor is never deemed to be a contract from the offset).
This position has been reaffirmed by Indian courts time and again since,
with the Supreme Court following this rationale even in the recent case of
Mathai Mathai v. Joseph Mary. The only notable modification to this rigid
rule has been the declaration as valid and binding of contracts entered into
by guardians on minors’ behalf, provided such contracts are in the interest
of the minor. However, in the present case, the minor i.e. Mr. Sidd Malhar

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 did not entered into a contract through his guardians, therefore the
exception to the rule does not applies to this given case.
Hence, the judgement given in Mohori Bibee v. Dharmodas Ghose does not
needs any reconsideration.

3. WHETHER THE PLAINTIFF CAN TAKE THE PLEA OF RESTITUTION?

The counsel on behalf of the defendant most humbly and respectfully submits
before this Hon’ble court that Mr. Sidd Malhar is a minor i.e. below the age of 18
year and not a competent party according to section 11 of Indian Contract Act,
187215 to enter into a contract/ agreement with any other party who is competent
according to Indian Contract Act, 1872.

Under the Indian Law, Generalis Regula Generaliter Est Intelligenda means a
general rule is to be generally understood, as minor is not a competent party to
enter into a valid contract /agreement and to give a valid consent, as contract
with minor is void-ab-initio.

According to section 65 of Indian Contract Act, 1872 It clearly states that the
agreements is discovered to be void i.e. the agreement was valid earlier but at the
time of enforceability it cannot be enforced by law. Every contract means an
agreement enforceable by law, which means firstly there should be an agreement
which is enforceable by law. But in the instant case the agreement was not
discovered void but was void-ab-initial i.e void from the very beginning.

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Under Indian law, the doctrine of restitution literally means restoration. It is
based on the notable principle that a person should not be allowed to unjustly
enrich himself at the expense of another.

According to section 65 of Indian Contract Act, 1872 the doctrine of restoration /

restitution may arises:

 When the agreement is subsequently discovered to be void; or

 When the contract becomes void.

In the case of Bank of Rajasthan v/s Sh. Palla Ram Gupta it was held by Hon’ble
court that, “where even at the time when the agreement is entered into both the
parties knew that it was void then it was neither the case of agreement
discovered to be void nor contract becomes void therefore section 65 of Indian
Contract Act, 1872 does not apply”.

In the case of Virender Singh vs. Laxmi Narain it was held by the Hon’ble court
that, “the parties were aware of the illegality of the agreement at the time it was
entered therefore it is not the case of an agreement which was discovered to be
void. Consequently, section 65 was found not to be applicable and the return of
the sum of money could not be enforced”.

In the instant case M/S Senghal had no knowledge that he was minor and
therefore the agreement was discovered to be void by plaintiff. Mr. Sidd Malhar is
only obliged to return the money which is traceable by the Hon’ble court.

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In the case of Khan Gul vs Lakha Singh it was held by Hon’ble court that, “minor
contract is void, specific performance can’t be granted and only traceable amount
was to be refunded”.

The counsel on behalf of the defendant most humbly and respectfully submits
before this Hon’ble court that for the reasons above-mentioned, the plaintiff
cannot take the plea of restitution as the contract was void ab initio.

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 PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Hon’ble Court to
adjudge and declare that:

 Mr. Sidd Malhar is a minor and does not have capacity to enter into a valid
contract.
 The suit is not maintainable as the minor is not a competent person to
enter into a valid contract/agreement.
 M/S Senghal is not entitled to any compensation.

And any other order which this Hon’ble court may be pleased to grant in the
interest of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

___________

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