RGNUL INTRA MOOT COURT COMPETITION, 2017

TC - 36

THE RGNUL INTRA MOOT COURT COMPETITION, 2019

Intra Moot Court Competition, 2019

IN

THE HON’BLE DISTRICT COURT OF ZOME INDISTAN

IN THE MATTER OF

BOARD OF DIRECTORS………………………………………………………………………..PETITIONER

v.

MR. GANESH GAITONDE……………………………………………………RESPONDENT

MEMORIAL FOR DEFENDANT

MEMORIAL ON THE BEHALF OF RESPONDENT I Page

|Pa1 ge
 Table of Contents
TABLE OF ABBREVIATIONS ........................................................................................................................................ III
INDEX OF AUTHORITIES ............................................................................................................................................ IV
STATEMENT OF JURISDICTION................................................................................................................................... V
STATEMENT OF FACTS .............................................................................................................................................. VI
ISSUES RAISED .......................................................................................................................................................... VII
ARGUMENTS ADVANCED ....................................................................................................................................... - 1 -
I. Mr. Ganesh Gaitonde, M.D. Is not liable for negligence / fraud / civil conspiracy etc. for increasing the
payment made to Yagermister. ......................................................................................................................... - 1 -
II. Bombay Sapphire is vicariously liable for the acts of its M.D. ..................................................................... - 3 -
III. The Board of Directors have committed the tort of Defamation ................................................................. - 6 -
Prayer ........................................................................................................................................................................ IX

II | P a g e
 TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

AIR ALL INDIA REPORTER

Hon’ble HONOURABLE

Ltd. LIMITED

SCC SUPREME COURT CASES

HCC HIGH COURT CASES

i.e., THAT IS

Comp. Company

Pvt. Private

Publ. Published

III | P a g e
 INDEX OF AUTHORITIES

Cases

Anita Bhandari & Others v. Union of India. 2001 (8) SCC 151 ........................................................................... - 5 -
Baxi Amrik Singh v. Union of India.1994 - AIR (1962) SC 933. ......................................................................... - 4 -
Broome v. Morgan. [1953] 1 QB 597.................................................................................................................... - 5 -
Grant v. Australian Knitting Mills Ltd. HCA 35, (1933) 50 CLR 387 .................................................................. - 1 -
Imperial Chemical Industries Ltd. v. Shatwell. AC 656 ........................................................................................ - 4 -
Morgans v. Launchburry and another. CA ([1971] 2 QB 245) .............................................................................. - 4 -
Poland v. John Parr and Sons. [1927] 1 K.B. 236 ................................................................................................. - 5 -
Ram Jethmalani v. Subramaniam Swamy. AIR 2006 Delhi 300, 126 (2006) DLT 535........................................ - 6 -
Ritnand Balved Education Foundation v. Alok Kumar. 131(2006)DLT563......................................................... - 7 -
S.P. Chengalvaraya Naidu v. Jagannath. 1994 AIR 853, 1994 SCC (1) .............................................................. - 2 -

IV | P a g e
 RGNUL INTRA MOOT COURT COMPETITION,2019

STATEMENT OF JURISDICTION

The hon’ble Court has the jurisdiction to here the suit under Section 9 of the Civil Procedure Code,
1980. Section 9 provides that the courts shall have jurisdiction to try all suits of a civil nature.

V|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

STATEMENT OF FACTS

PARTIES INVOLVED

Ganesh Gaitonde: Defendant, M.D. Of Bombay Sapphire.

Bombay Sapphire: A company involved in business of import and export of cricket bats and
sports equipments.

Yagermister: A service company maintaining and servicing the warehouses of Bombay

Sapphire.

BACKGROUND

1. Bombay Sapphire is a company, situated in the city of Zome of Indistan, involved in

business of import and export of sport equipments and has many warehouses in the
same city which need to be maintained every month.
2. Yagermister, service company, was hired by Bombay Sapphire for the maintenance
purpose.
3. The contract of service, between Yagermister and Bombay Sapphire, got renewed
periodically, and the payment for the same was done in every six months.
4. Due to considerable increase in cost, Yagermister sought raise in payment and
approached Ganesh Gaitonde, M.D. of Bombay Sapphire.
5. Ganesh Gaitonde raised the amount of payment through normal procedure.
6. Board of directors asked for the justification of same. Ganesh Gaitonde justified that
due to unforeseen circumstances the amount has been raised.
7. The directors alleged fraud, negligence, not following due care and bribery without
any lawful justification and proof.

VI | P a g e
 RGNUL INTRA MOOT COURT COMPETITION,2019

ISSUES RAISED

1. Whether Mr. Ganesh Gaitonde, M.D. is liable for negligence / fraud / civil conspiracy
etc. for increasing the payment made to Yagermister?

2. Whether Bombay Sapphire is vicariously liable for the acts of its M.D.?

3. Whether the Board of Directors have committed the tort of Defamation?

VII | P a g e
 RGNUL INTRA MOOT COURT COMPETITION,2019

SUMMARY Of ARGUMENTS

1. Mr. Ganesh Gaitonde, M.D. Is not liable for negligence / fraud / civil conspiracy
etc. for increasing the payment made to Yagermister - It is humbly submitted in
the Hon’ble Court that Ganesh Gaitonde did not commit negligence, fraud, civil
conspiracy or any other tort. Ganesh Gaitonde took due care in signing the contract to
raise the amount of payment and did this with full authority. The warehouses needed
monthly service and termination of the contract could have led to extraordinary
circumstances. There was no breach of duty on part of Ganesh Gaitonde. The act was
done with bona fide intention causing no injury to any person. Ganesh Gaitonde did
the act with full conscience and by himself only. There was no meeting of minds of
anyone with Ganesh Gaitonde. Thus, Ganesh Gaitonde shall be held free of liability.
2. Bombay Sapphire is vicariously liable for the acts of its M.D. - It is humbly
submitted that Bombay Sapphire is vicariously liable for the act of Ganesh Gaitonde
as they shared the master-servant relationship where Ganesh Gaitonde was the
delegate of the company. The act was done in the course of employment with bona
fide intention and due care. Under the maxims, ‘Respondeat Superior’ and ‘Qui facit
per alium facit per se’, the company shall be held liable. Also, the act was done for the
interest of the company. Thus, it shall be held that Bombay Sapphire is vicariously
liable for the act of Ganesh Gaitonde.
3. The Board of Directors have committed the tort of Defamation - It is humbly
submitted that Ganesh Gaitonde has been defamed by the board of directors. The
statement was completely false and defamatory in nature. The intention of the board
of directors doesn’t matter in this case as no reasonable care was taken. No legal
justification is there for the defamatory statement. And, that defamatory statement
lowered the image of Ganesh Gaitonde in the eyes of the other members in the office
of Bombay Sapphire.

VIII | P a g e
 RGNUL INTRA MOOT COURT COMPETITION,2019

ARGUMENTS ADVANCED

I. Mr. Ganesh Gaitonde, M.D. Is not liable for negligence /

fraud / civil conspiracy etc. for increasing the payment
made to Yagermister.

1. It is humbly submitted in the Hon’ble Court that Ganesh Gaitonde was not negligent
in his act of raising the amount of payment for the service. Negligence is defined in
Black’s Dictionary as, “Conduct, whether of action or omission, which may be
declared and treated as negligence without any argument or proof as to the particular
surrounding circumstances, either because it is in violation of a statute or valid
municipal ordinance or because it is so palpably opposed to the dictates of common
prudence that it can be said without hesitation or doubt that no careful person would
have been guilty of it. As a general rule, the violation of public duty, enjoined by law
for the protection of person or property, so constitutes”. There was no omission on the
part of Ganesh Gaitonde. Also, Ganesh Gaitonde took due care in doing the act, as
held in the case of Grant v. Australian Knitting Mills Ltd1., by following the normal
procedure to raise the amount of payment given to Yagermister. The act done was not
a violation of statute or valid municipal ordinance, or opposed to any dictates of
common prudence. Ganesh Gaitonde had the authority to raise the amount of payment
given to Yagermister under extraordinary circumstances. The amount had been raised
during the half- yearly payment for the service and the maintenance was needed
monthly2. “Yagermister realised that its cost has gone up considerably.”3 Without the
raise in amount the service would have been terminated causing extraordinary
circumstances. No breach of duty was done by Ganesh Gaitonde by fulfilling his duty

1
Grant v. Australian Knitting Mills Ltd. HCA 35, (1933) 50 CLR 387.
2
Para 1 Proposition.
3
Para 2 Proposition.

-1-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

by raising the amount with due care and adopted normal procedure which was in his
course of employment. Ganesh Gaitonde took due care which a normal prudent man
should take and his action caused no harm to any person or property. Thus, it shall be
held that Ganesh Gaitonde was not negligent as alleged by the board of directors.
2. It is humbly submitted in the Hon’ble court that Ganesh Gaitonde had no intention to
deceive Bombay Sapphire as normal procedure was adopted by Ganesh Gaitonde and
no measures were taken to conceal the same fact. “The expression ‘fraud’ involves
two elements, deceit and injury to the person deceived.” The act of raising the amount
of payment was done in bona fide to protect the company from the termination of the
contract which caused no injury to anyone or the company. Also, no steps were taken
by Ganesh Gaitonde to conceal the fact Ganesh Gaitonde took due care and worked
under the authority given to him.4 Ganesh Gaitonde did not deceive anyone and got
no gain, as stated in S.P. Chengalvaraya Naidu v. Jagannath5, by the act of raising the
amount of payment. The raise in payment was solely done to ensure the continuation
of the contract with Yagermister without ill-will or any selfish motive. The absence of
selfish motive and no concealment of any fact suggests the innocence of Ganesh
Gaitonde and proves the fact that Ganesh Gaitonde did not deceive anyone or any
property. Thus, the absence of both the major elements proves that Ganesh Gaitonde
did not commit fraud and shall be held free from the liability of fraud.
3. It is humbly submitted in the Hon’ble Court that Ganesh Gaitonde is not liable for
criminal conspiracy. “A civil conspiracy is a group of two or more persons acting
together to achieve an unlawful objective or criminal means.” The very main essential
of criminal conspiracy is having more than one person and in the concerned case there
is only Ganesh Gaitonde. He had no common intention with Yagermister. There was
no meeting of minds. The act of raising the amount of payment given to Yagermisten
was done by himself by not taking into consideration the offer given by Yagermister.
The procedure adopted was normal and lawful. The amount of payment was raised
due to the considerable raise in the cost of maintaining and servicing. There was no
unlawful objective and method. Lawful means with lawful aim was adopted by the
M.D., Ganesh Gaitonde, with full authority6. Thus, Ganesh Gaitonde shall be held
free of liability of Civil Conspiracy.

4
Annexure-1 Proposition.
5
S.P. Chengalvaraya Naidu v. Jagannath. 1994 AIR 853, 1994 SCC (1).
6
Annexure-1 Proposition.

-2-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

4. It is humbly submitted in the Hon’ble Court that Ganesh Gaitonde could not be held
liable for any civil wrong. The liability is Indistan is fault based liability and Ganesh
Gaitonde has done no fault. The act done by him was done with bona fide intention
and in his course of employment. Due care was taken by Ganesh Gaitonde in raising
the amount of payment of service provided by Yagermister. No negligent act was
done and no harm was done to any person or property. A person shall be held liable
only when there is an injury to the rights of some other person. Also, the principles of
strict liability or absolute liability can not be applicable here and acc. to the principle
of vicarious liability B.S. shall be held liable. Thus, it shall be held that Ganesh
Gaitonde is free of any tortuous liability.

II. Bombay Sapphire is vicariously liable for the acts of its M.D.

5. It is humbly submitted in the Hon’ble Court that B.S. is vicarious liability for the acy
of Ganesh Gaitonde, as there existed master servant relationship between Bombay
Sapphire and the M.D. The relation which exists between both is proved by the very
fact from the propostion that the M.D. of the company i.e., Ganesh Gaitonde was
given the power to raise the amount of payment under extraordinary circumstances.
Ganesh Gaitonde exercised his power to raise the amount solely to protect the
contract from termination. The act was done in the interest of the company under
proper authority and due care. Thus, it shall be held that the act is covered in
Vicarious Liability .
6. It is humbly submitted that the vicarious liability shall be on Bombay Sapphire as
Ganesh Gaitonde (M.D. of Bombay Sapphire) was working under the master servant
relationship of the company. As the word ‘vicarious’ means acting as a substitute on
behalf of someone else as a delegate or under that person’s delegated authority.
Similarly, is this very case Ganesh Gaitonde was appointed as a delegate to the
company Bombay Sapphire and is also acting as a substitute on the behalf of the
company. So, the act done by Ganesh Gaitonde should be considered as the act done
by the company itself as Ganesh Gaitonde represented the whole company as single
unit. Thus, it shall be held that the liability of all the acts done by Ganesh Gaitonde in
his course of employment will fall on B.S.

-3-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

7. It the case of Morgans v. Launchburry and another7 and Baxi Amrik Singh v. Union of
India8, the principle on which the fundamentals of vicarious liability is laid, is defined
through two latin maxims. ‘Respondent Superior’ which means that ‘let the master or
principal be answerable or liable’ which in the concerned case is the company,
Bombay Sapphire itself. ‘Qui facit per alium facit per se’ implies that ‘he who acts
through another is deemed in law as doing in himself’. In the concerned case B.S.
works through the face of Ganesh Gaitonde, which implies that the act done by
Ganesh Gaitonde was done by B.S. Thus, it shall be held that the liability falls on the
shoulders of B.S. for all the done by Ganesh Gaitonde in the interest of company.
8. In the case of Imperial Chemical Industries Ltd. v. Shatwell9 the following points
regarding the rationale behind vicarious liability was observed. The master having
presumably for his own benefit, employed the servant, and being better able to
compensate for any damage which may occasionally result from the arrangement.
Thus, it is presumed in the eyes of law that master is economically stronger than his
servant. The other rational is that the cases of vicarious liability are very complex and
it is very difficult to find on whom the actual liability falls. So, believing that all the
acts are done for the benefit of the master and are done under his full control as his
delegate, the master is held liable. So, the master is answerable to the world at large
for all the torts committed by his servant within the scope of employment. The points
specified in the case makes Bombay Sapphire vicariously liable and by this, the
notification stands valid.
9. It is humbly submitted in the Hon’ble Court submitted that the act done by Ganesh
Gaitonde was done in his course of employment. The act was done with due care with
the full authority given to him with bona fide intention. The act was done solely for
the interest of the company to protect the warehouses from extraordinary
circumstances. Thus, it shall be held that act done by Ganesh Gaitonde was done in
his course of employment.
10. It is humbly submitted that if an act is done by servant for master’s benefit in course
of employment also honestly believing and with bona fide intention. In such cases, the
master is generally held liable for the injury or harm caused by such wrongful acts of

7
Morgans v. Launchburry and another. CA ([1971] 2 QB 245).
8
Baxi Amrik Singh v. Union of India.1994 - AIR (1962) SC 933.
9
Imperial Chemical Industries Ltd. v. Shatwell. AC 656.

-4-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

his servant. a.) In the case of Anita Bhandari & Others v. Union of India10, the bank
guard erroneously thought that the deceased who was in fact a customer of the bank,
had come to the bank for committing dacoity and, therefore, shot at him causing his
death. The court held that the guard was acting within the course of employment and,
therefore, the bank was held vicariously liable for the act of his servant. b.) Also in
the case of Poland v. John Parr and Sons11 the defendant i.e., the servant done the act
by which the plaintiff got badly injured and also the servant was having honest
intentions regarding it. So, in this case the master was held liable on the ground that
the action of the servant was solely in the master’s interest and any servant under
those conditions would have acted the same way in order to protect his master’s
interest. The above mentioned cases describes that if a servant has done an act in the
course of employment and with honest and bona fide intention. Along with it, the act
was for master’s interest and any devoted servant under those circumstances would
have done the act in the same manner and this will make the master or the company
vicariously liable for the act and due to this the notification will stand valid.
11. It is submitted that by the above discussed cases, Bombay Sapphire is liable for the
act done by Mr. Ganesh Gaitonde as he was working in the course of employment
with honest and bona fide intention. These points can be proved by the facts
mentioned in the proposition that Yagermister provides the service to Bombay
Sapphire and the operating cost of the service has gone up considerably and if the
defendant didn’t sign the payment vouchers then the contract may be ended. So, as to
protect the contract defendant signed it with honest intention and also if the contract
ends at that time then the monthly service which the warehouses need will not be
provided, the company will suffer a major loss and so the notification stands valid.
12. It is humbly submitted that the master is liable for the wrongful acts of his servant due
to “Deep Pocket Principle” which means that the master has far better financial
resources to compensate the aggrieved party than the servant. The same principle has
been stated in the case of Broome v. Morgan12 in which it is asserted that the principle
holds sound on moral considerations. Also, in this it was stated that it is master’s
moral duty to bear the risk for accidents, mistakes or losses caused by the servant’s
acts.

10
Anita Bhandari & Others v. Union of India. 2001 (8) SCC 151.
11
Poland v. John Parr and Sons. [1927] 1 K.B. 236.
12
Broome v. Morgan. [1953] 1 QB 597.

-5-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

III. The Board of Directors have committed the tort of

Defamation

13. It is humbly submitted that a man’s reputation is considered to be his most valuable
property. Defamation is not only a civil wrong but it is also an offence punishable
under the penal law. Defamation tends to lower the reputation of a person in the
estimation of right thinking members of society. The case filed by the Board of
Directors against the M.D. and also seeking the raised amount was done without
reasonable care and any proof to harm the reputation of the defendant. Ganesh
Gaitonde was asked to leave his position in the company and to give his personal
money to the company without any proof of negligence, fraud etc. which clearly
indicated that they were proving that Ganesh Gaitonde has done a civil wrong. The
act lowered the image of Ganesh Gaitonde in the eyes of the other member of the
company. So, by this the notification stands valid.
14. It is submitted that the following are essential ingredients of defamation and in an
action for defamation, the plaintiff has to prove the following facts against the
defendant. The essentials are:
15. In an action for defamation, the first thing that the plaintiff has to prove against the
defendant is that the statement made by the latter against him was false and also
defamatory in nature. It is no defence for the defendant to say that he did not intend to
defame the plaintiff. The point can be easily explained by the case of Ram Jethmalani
v. Subramaniam Swamy13 in which the commission of inquiry constituted to inquire
into the assassination of Late Prime Minister Rajeev Gandhi. The defendant who
appeared as witness made wide allegations against the plaintiff. It was held that this
offering statement was quite unconnected with and irrelevant to the inquiry and
hence, the case was in favour of the plaintiff. The same is the thing in this case, the
board of directors made a defamatory statement against the plaintiff which was false
and defamatory in nature. Thus, the Board of Directors shall be held liable for
defamation under civil law.
16. The said statement must refer to the plaintiff. Secondly, the plaintiff has to prove that
the defamatory statement refers to the plaintiff. It is immaterial that the defendant did
not intend to defame the plaintiff. As in the case of Ritnand Balved Education

13
Ram Jethmalani v. Subramaniam Swamy. AIR 2006 Delhi 300, 126 (2006) DLT 535.

-6-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

Foundation v. Alok Kumar14. In the concerned case, the Board of Directors explicitly
asked Ganesh Gaitonde to leave his position and give the amount back to the
company, which clearly states the fact the statement was referred to Ganesh Gaitonde.
Thus, Board of Directors shall be held liable for the tort of defamation.
17. The statement must be published. Thirdly, the statement must be published.
‘Publication’ here implies the communication of the defamatory matter to some
person or persons other than the person defamed. The publication was done. The
defamatory statement was communicated to the office of B.S. lowering the image of
Ganesh Gaitonde in the eyes of the other employees.
18. There should be no reasonable or legal justification for such statement. The fact
provides that there were no proofs when Ganesh Gaitonde was asked to leave his
post and give the money to Bombay Sapphire. Thus, it can be concluded that there is
no legal or reasonable justification for the defamatory act. Thus, it must held that
the Board of Directors of Bombay Sapphire shall be held liable for the tort of
defamation.

14
Ritnand Balved Education Foundation v. Alok Kumar. 131(2006)DLT563.

-7-|Page
 RGNUL INTRA MOOT COURT COMPETITION,2019

Prayer

In the light of issues raised, argument advanced & authorities cited, may this Hon’ble Court
may be pleased to adjudge & declare that:

1. Ganesh Gaitonde is innocent of any civil wrong.

2. Bombay Sapphire is vicariously liable for the acts of Ganesh Gaitonde.
3. The board of directors has committed the offence of Defamation.

Pass an order that it deems fit in the interest of justice, equity and good conscience.

For this act of kindness, the counsel for the respondent shall duty bound forever pray.

All of which is humbly submitted by

Counsel on behalf of the respondent

IX | P a g e