IDIA JHARKHAND MEMORIAL DRAFTING COMPETETION 2024
Participation Code: "TC-173 R"
IDIA – JHARKHAND MEMORIAL DRAFTING
COMPETITION 2024
CIVIL SUIT JURISDICTION
UNDER SECTION 9 OF THE CODE OF CIVIL PROCEDURE OF ALBANION
SUIT (CIVIL) NO._/2024
IN THE MATTER OF
MCL
V.
REPUBLIC OF ALBANION
UPON SUBMISSION TO THE HON'BLE JUDGES OF DISTRICT COURT OF
BOTSWANIA
-THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED-
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TABLE OF CONTENTS
TABLE OF CONTENTS________________________________________________________________2
INDEX OF AUTHORITIES_____________________________________________________________3
LIST OF ABBREVIATIONS____________________________________________________________5
STATEMENT OF JURISDICTION_____________________________________________________6
STATEMENT OF FACTS_______________________________________________________________7
ISSUE RAISED_________________________________________________________________________9
SUMMARY OF THE ARGUMENTS________________________________________________________10
DOES ALBANIA'S DELAY IN HANDING OVER 70% OF PROJECT LAND BREACH THE
CONTRACT AND BAR ENFORCEMENT OF MCL’S CLAIM RESTRICTION?____________10
ARGUMENTS ADVANCED___________________________________________________________11
ISSUE 1: DOES ALBANIA'S DELAY IN HANDING OVER 70% OF PROJECT LAND BREACH THE
CONTRACT AND BAR ENFORCEMENT OF MCL’S CLAIM RESTRICTION?_______________11
ISSUE 2: IS MCL RESPONSIBLE FOR PREVENTING TRIBAL ENCROACHMENTS, OR DOES THE
DUTY TO SECURE THE LAND REST WITH THE GOVERNMENT OF ALBANION?____________15
PRAYER_______________________________________________________________________________20
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INDEX OF AUTHORITIES
CASES
Alopi Parshad & Sons Ltd. v. Union of India AIR 1960 SC 588_______________________15
B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355_______________________________16
Gujarat Maritime Board v. Larsen & Toubro Ltd. (2016) 10 SCC 46___________________10
Hind Construction Contractors v. State of Maharashtra (1979) AIR 720__________________8
Karsandas H. Thacker v. Saran Engineering Co. Ltd. AIR 1965 SC 198_________________14
McRae v. Commonwealth Disposals Commission (1951) 84 CLR 37___________________14
ONGC v. SAW Pipes Ltd., (2003) 5 SCC 705_____________________________________15
P.D. Agrawal v. State of U.P. (1987) AIR 1676_____________________________________9
Ramnath International Construction Pvt. Ltd. v. Union of India (2007) 2 SCC 453_________9
Satyabrata Ghose v. Mugneeram Bangur & Co. AIR 1954 SC 4_______________________14
Shree Hanuman Cotton Mills v. Tata Aircraft Ltd 1970 AIR 1986_____________________15
Sowbaghya Agency v. Union of India (2005) 3 SCC 217____________________________16
State of Bihar v. Bengal C & P Works AIR 1982 SC 1013____________________________15
State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 12 SCC______________12
Tarapore & Co. v. State of M.P. (1994) 3 SCC 521_________________________________10
Union of India v. Rampur Distillery Co. Ltd. AIR 1973 SC 109_______________________14
STATUTES
Indian Contract Act, 1872 § 32, No. 9, Acts of Parliament, 1872 (India)._________________9
Indian Contract Act, 1872 § 55, No. 9, Acts of Parliament, 1872 (India)__________________8
Indian Contract Act, 1872 § 73, No. 9, Acts of Parliament, 1872 (India)_________________11
Indian Contract Act, 1872, § 37, No. 9, Acts of Parliament, 1872 (India)________________14
Indian Evidence Act, No. 1 of 1872, § 115 (India)__________________________________16
FOREIGN CASES
Central London Property Trust Ltd. v. High Trees House Ltd. [1947] KB 130.____________16
Cutter v Powell (1795) 101 ER 573_____________________________________________11
Hoenig v Isaacs [1952] 2 All ER 176____________________________________________11
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Larsen & Toubro Ltd. v. State of Karnataka (2013) 10 SCC 761________________________9
Monarch Steamship Co Ltd v Karlshamms Oljefabriker [1949] AC 196_________________12
Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon Mound No. 1)
[1961] A.C. 388(P.C.)______________________________________________________12
Ruxley Electronics & Constructions Ltd v Forsyth [1996] AC 344_____________________11
MOOT PROPOSITION
Moot Proposition, IDIA Jharkhand Memorial Drafting Competition, 2024 – 2025, ¶ 10.____13
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List of Abbreviations
[Link] ABBREVIATION FULL FORM
1. & And
2. § Section
3. ¶ Paragraph
4. AIR All India Record
5. Anr. Another
6. Art. Article
7. cl. Clause
8. Const. Constitution
9. Hon’ble Honourable
10. Ltd. Limited
11. No. Number
12. Ors. Others
13. Pvt. Private
14. SCC Supreme Court Cases
15. Sch. Schedule
16. v. Versus
17. MCL Marc Construction Limited
18. EOT Extension Of Time
19. w.e.f. With effect from
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Statement Of Jurisdiction
The Hon’ble jurisdiction of the District Court of Botswania has jurisdiction to hear the instant
matter under Section 9 in The Code of Civil Procedure, 1908 of Albanion.
Section 9 in The Code of Civil Procedure, 1908 of Albanion reads as follows:
[Link] to try all civil suits unless barred .-
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
Explanation [I ].-A suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.
Explanation [II] .-For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.] [Inserted by the Code of Civil Procedure (Amendment) Act, 1976, Section 5
(w.e.f. 1.2.1977). ]
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Statement Of Facts
[A] THE PARTIES
1. Marc Construction Limited [“MCL”] is an Engineering & Construction company, and has
its registered office in Botswania district of Albanion.
2. The Government of Albanion is the governing body of Albanion region.
[B] CONTRACT BETWEEN MCL AND GOVERNMENT
1. MCL, an international infrastructure contractor, entered into a contractual agreement
with the Government of Albania to execute a large-scale development project. As part
of the agreement, the government was obligated to provide MCL with encumbrance-
free land (70 percent land) within a specified timeframe of 30 days to allow smooth
commencement of the project. The land was intended for the construction of critical
public infrastructure, aligning with Albania's broader goals of economic and regional
development.
[C] CONTRACTUAL DISPUTE BETWEEN MCL AND GOVERNMENT OF
ALBANION
2. Despite its commitments, the government failed to deliver land free from tribal
encroachments. Tribes in the region began occupying sections of the project area,
citing unresolved land claims and disputes with the government. This encroachment
created significant obstacles for MCL, including delays in site preparation, financial
losses from idle machinery and labour, and disruptions to its project timeline.
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[D] SUBSEQUENT PETITION
3. MCL issued multiple notices to the government, requesting intervention to clear the
encroachments. However, the government’s delayed or inadequate response
exacerbated the situation, resulting in prolonged project delays. As a result, MCL
faced potential claims of breach of contract for failing to meet project deadlines,
despite the root cause being outside its control.
4. Accordingly, the MCL on July 2, 2021; August 2, 2021 and September 2, 2021,
requested the Government of Albanion to compensate it in terms of On-site overhead
charges, Head office overheads charges and Loss of profit. The claim raised by MCL
was rejected by the Government of Albanion vide letter its dated September 10, 2021.
Aggrieved by the decision of the Government of Albanion, the MCL filed a suit
against the Republic of Albanion on September 1, 2024, invoking the jurisdiction of
the District Court of Botswania under Section 9 of the Code of Civil Procedure of
Albanion.
[E] CURRENT DISPUTE
The case now revolves around two primary disputes:
Liability for Delay: Whether MCL is liable for breach of contract due to
delays caused by encroachments.
Government Accountability: Whether the Government of Albania breached
its contractual duty to provide encumbrance-free land and is therefore liable
for the delays and resultant financial losses incurred by MCL.
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Issue Raised
[ISSUE 1]
Does Albania's delay in handing over 70% of project land breach the Contract and Bar
Enforcement of MCL’S Claim Restriction?
[1.1] Time Is Not of the Essence
[1.2] Enforceability of the "No Additional Costs"
[1.3] Doctrine of Substantial Performance
[1.4] Liability for Third-Party Acts: Responsibility of the Contractor
[ISSUE 2]
IS MCL RESPONSIBLE FOR PREVENTING TRIBAL ENCROACHMENTS, OR DOES THE DUTY
TO SECURE THE LAND REST WITH THE GOVERNMENT OF ALBANION?
[2.1] Doctrine Of Commercial Prudence
[2.2] Obligation to Perform Without Excuse
[2.3] Doctrine of Caveat Emptor
[2.4] Waiver and Estoppel Due to Acceptance of Land Handover
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SUMMARY OF THE ARGUMENTS
[ISSUE 1]
DOES ALBANIA'S DELAY IN HANDING OVER 70% OF PROJECT LAND BREACH THE
CONTRACT AND BAR ENFORCEMENT OF MCL’S CLAIM RESTRICTION?
The delay in handing over 70% of the project land by Albania does not breach the contract or
bar enforcement of MCL’s claim restriction. Firstly, time was not of the essence, as
evidenced by MCL’s acceptance of the Extension of Time (EOT) without objections.
Secondly, the "no additional cost" clause is enforceable, as MCL accepted it without protest.
Thirdly, under the Doctrine of Substantial Performance, minor delays do not justify a breach.
Lastly, the disruptions caused by tribal encroachments are external factors, breaking the
causal chain and absolving the Government of liability.
[ISSUE 2]
IS MCL RESPONSIBLE FOR PREVENTING TRIBAL ENCROACHMENTS, OR DOES THE DUTY
TO SECURE THE LAND REST WITH THE GOVERNMENT OF ALBANION?
The Respondent is not responsible for securing the land, as the land was handed over to
MCL. First, under the Doctrine of Commercial Prudence, MCL, as a seasoned contractor,
should have anticipated and mitigated risks like tribal encroachments. Second, the obligation
to perform without excuse applies, as external challenges do not absolve MCL from fulfilling
its duties. Third, the Doctrine of Caveat Emptor places the onus on MCL to manage
foreseeable risks. Finally, MCL waived its right to claim damages by accepting the Extension
of Time (EOT) without objection, as established in the principles of estoppel and waiver.
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ARGUMENTS ADVANCED
Issue 1: Does Albania's delay in handing over 70% of project land breach the Contract
and Bar Enforcement of MCL’S Claim Restriction?
1. It is humbly contended before this Hon’ble Court that the Respondent delay in handing
over 70% of project does not land breach the contract and Bar Enforcement of MCL’S claim
restriction. This will be dealt with in a fourfold manner:
[1.1] Time Is Not of the Essence
[1.2] Enforceability of the "No Additional Costs"
[1.3] Doctrine of Substantial Performance
[1.4] Liability for Third-Party Acts: Responsibility of the Contractor
1.1 TIME IS NOT THE ESSENCE
2. The EPC contract does not specify that time is of the essence, and the acceptance of an
Extension of Time (EOT) by MCL without reserving claims for damages indicates that time
was not a fundamental term of the contract. Under Section 55 of the Indian Contract Act,
1872,1 time is considered the essence of a contract only when expressly stated or when it can
be implied as a critical factor from the circumstances.
3. The principle of “Quod Approbo Non Reprobo” (a party cannot approve and later
disapprove of the same terms) applies here. By accepting the EOT without raising objections
or reserving claims for compensation, MCL has waived its right to assert a breach due to
delayed land possession.
4. In Hind Construction Contractors v. State of Maharashtra2, the Supreme Court held
that time is not of the essence in construction contracts unless explicitly stated. Mere delays
in performance, especially when extensions of time are granted and accepted without
reservation, do not constitute a breach of contract.
1
Indian Contract Act, 1872 § 55, No. 9, Acts of Parliament, 1872 (India).
2
Hind Construction Contractors v. State of Maharashtra (1979) AIR 720.
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5. In P.D. Agrawal v. State of U.P.3, the court emphasized that when a party does not make
time essential through explicit terms or conduct, and later grants extensions, it cannot later
claim the breach of contract due to delays.
6. Moreover, in Ramnath International Construction Pvt. Ltd. v. Union of India 4, it was
held that the mere acceptance of extensions of time, even if not formally documented,
indicates that both parties did not treat time as essential.
7. In this case, the absence of explicit contractual language designating time as essential,
coupled with MCL’s acceptance of EOT without reserving its rights to compensation,
signifies that time was not a critical factor. Thus, MCL is estopped from asserting a breach of
contract based on delays, as the Government’s actions were consistent with the contract's
provisions. The absence of claims during the EOT period reflects a waiver of such rights, as
per Larsen & Toubro Ltd. v. State of Karnataka 5, where the Supreme Court clarified that
a waiver is implied when a party continues the contract without raising objections during a
delay.
8. Conclusively, MCL’s conduct, in conjunction with the contractual provisions and the
principles laid down in the aforementioned judgments, demonstrates that time was not of the
essence, and no breach has occurred due to the delay in land possession.
1.2 ENFORCEABILITY OF THE NO ADDITIONAL COST
9 Under Section 32 of the Indian Contract Act, 18726, a contingent condition agreed upon
in a contract must be fulfilled as stipulated. In this case, the extension of time (EOT) was
granted to MCL with the explicit precondition that no additional costs or claims would be
entertained due to the delay caused by the Government of Albanion in handing over the
required land. By accepting this condition without protest and continuing with the contract,
MCL has made this clause binding and enforceable.
3
P.D. Agrawal v. State of U.P. (1987) AIR 1676.
4
Ramnath International Construction Pvt. Ltd. v. Union of India (2007) 2 SCC 453.
5
Larsen & Toubro Ltd. v. State of Karnataka (2013) 10 SCC 761.
6
Indian Contract Act, 1872 § 32, No. 9, Acts of Parliament, 1872 (India).
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10. The principle of Pacta Sunt Servanda (agreements must be kept) underscores the sanctity
of contractual obligations in commercial transactions. This principle requires parties to honor
the agreed terms of a contract unless they are unfair or illegal. Allowing MCL to renege on
the agreed terms after deriving the benefit of the EOT would not only violate the principle of
Pacta Sunt Servanda but also undermine contractual certainty in commercial dealings.
11. In Gujarat Maritime Board v. Larsen & Toubro Ltd. 7 the Supreme Court upheld a
contractual clause limiting liability, stating that such clauses are enforceable unless they are
manifestly unconscionable or contrary to public policy. The precondition barring additional
claims for costs in the MCL case is neither unconscionable nor against public policy.
12. In Tarapore & Co. v. State of M.P.8 the Court ruled that where a party has expressly
accepted amended or conditional terms to a contract, it is estopped from later challenging
those terms or raising additional claims. MCL’s acceptance of the “no additional cost”
condition is binding and prevents it from seeking compensation.
1.3 DOCTRINE OF SUBSTANTIAL PERFORMANCE
13. The Doctrine of Substantial Performance means that if most of the main parts of a
contract are completed, small mistakes or delays don't automatically mean the contract is
broken. It acknowledges that in big or complex contracts, perfect performance might not
always happen. As long as the most important parts of the contract are done, the contract is
still considered valid and enforceable.
14. The Government's partial land possession and grant of an Extension of Time (EOT) show
that the main goal of building the railway could still be achieved, despite minor delays. Under
the principle of substantial performance, these small delays don’t justify a claim for breach or
damages, as they don’t affect the core purpose of the contract.
15. The maxim De Minimis Non Curat Lex (“The law does not concern itself with trifles”)
supports this notion by suggesting that the law is not concerned with trivial deviations from
7
Gujarat Maritime Board v. Larsen & Toubro Ltd. (2016) 10 SCC 46.
8
Tarapore & Co. v. State of M.P. (1994) 3 SCC 521.
13
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the contract that do not materially affect its outcome or purpose. Courts, thus, tend to
overlook minor delays or deviations unless they constitute a serious failure that undermines
the contract’s fundamental purpose.
16. In Hoenig v. Isaacs9, the court found that the defects did not constitute a fundamental
breach and the contractor was entitled to the agreed payment, less any deductions for the
defects. Cutter v. Powell10 illustrates how courts assess substantial performance and whether
deviations from the contract are considered material enough to warrant non-payment.
17. Ruxley Electronics and Construction Ltd v. Forsyth11 affirmed that a breach must be
considered in terms of its effect on the contract's purpose. The court ruled that even though
there was a deviation from the contract (a swimming pool was constructed shorter than
specified), the non-performance was not fundamental enough to justify reducing the
compensation for the cost of the pool.
1.4 LIABILITY FOR THIRD-PARTY ACTS: RESPONSIBILITY OF THE CONTRACTOR
18. The disruptions caused by tribal encroachments represent an external and uncontrollable
factor that breaks the causal chain between the Government’s actions and the alleged losses.
Once the Government handed over the site to MCL, the responsibility to safeguard the site
and ensure smooth execution of the project fell squarely on MCL.
19. The principle of “Novus Actus Interveniens” applies here. This legal maxim holds that if
an unforeseeable or independent event (such as tribal encroachments) occurs and disrupts the
chain of causation, the original party (the Government) is absolved of liability for any
resulting losses.
20. Under Section 73 of the Indian Contract Act, 12 compensation for breach of contract is
limited to damages that directly arise from the breach and were reasonably foreseeable at the
9
Hoenig v Isaacs [1952] 2 All ER 176.
10
Cutter v Powell (1795) 101 ER 573.
11
Ruxley Electronics & Constructions Ltd v Forsyth [1996] AC 344.
12
Indian Contract Act, 1872 § 73, No. 9, Acts of Parliament, 1872 (India).
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time of contract formation. It bars claims for losses not directly attributable to the defaulting
party’s actions.
21. In Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon
Mound No. 1)13, the court emphasized foreseeability in determining liability, ruling that
damages for unforeseeable intervening events cannot be claimed. Similarly, in Monarch
Steamship Co. Ltd. v. A/B Karlshamns Oljefabriker 14 the House of Lords held that a
novus actus interveniens breaks the causal chain when the intervening event is independent
and unforeseeable
22. In State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. 15 the court reiterated
that liability cannot be imputed to a party for acts of third parties or external events that are
beyond its control, especially when the other contracting party is responsible for mitigating
risks on-site.
Issue 2: Is MCL responsible for preventing tribal encroachments, or does the duty to
secure the land rest with the Government of Albanion?
23. It is humbly contended before this Hon’ble Court that the Respondent is not responsible
for the duty of securing land as the land was handed over to the Petitioner. This will be dealt
in a fourfold manner
[2.1] Doctrine Of Commercial Prudence
[2.2] Obligation to Perform Without Excuse
[2.3] Doctrine of Caveat Emptor
[2.4] Waiver and Estoppel Due to Acceptance of Land Handover
2.1 DOCTRINE OF COMMERCIAL PRUDENCE
13
Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon Mound No. 1) [1961] A.C.
388(P.C.).
14
Monarch Steamship Co Ltd v Karlshamms Oljefabriker [1949] AC 196.
15
State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 12 SCC 1
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24. Under the Doctrine of Commercial Prudence, contracts impose reciprocal duties on
parties to act responsibly and anticipate foreseeable risks. This principle ensures that parties
undertake reasonable measures to safeguard their interests and fulfill their obligations. MCL,
as a seasoned contractor in infrastructure projects, is presumed to possess the expertise and
foresight to predict potential risks, including tribal encroachments 16, especially in areas
known to be prone to such disruptions.
25. The foreseeability of tribal encroachments as a risk aligns with the maxim Vigilantibus
Non Dormientibus Jura Subveniunt—the law aids those who are vigilant and not those who
neglect their rights or duties. By failing to secure the land post-handover, MCL demonstrated
a lapse in commercial prudence. They cannot shift the blame for project delays onto the
Government when such risks were inherent and could have been managed through adequate
preparation.
26. The court in Union of India v. Rampur Distillery Co. Ltd.17 (1973) emphasized that
parties to a contract must act prudently and foresee possible obstacles. The failure to
anticipate and address foreseeable issues is considered a lack of due diligence. Karsandas H.
Thacker v. Saran Engineering Co. Ltd.18 (1965), underscored the obligation of a party with
greater expertise or control over the subject matter to act responsibly in managing foreseeable
risks.
27. In McRae v. Commonwealth Disposals Commission19 (1951), the High Court of
Australia ruled that a party cannot absolve itself of responsibility by claiming ignorance of
risks that it had the means and obligation to anticipate and address.
2.2 OBLIGATION TO PERFORM WITHOUT EXCUSE
16
Moot Proposition, IDIA Jharkhand Memorial Drafting Competition, 2024 – 2025, ¶ 10.
17
Union of India v. Rampur Distillery Co. Ltd. AIR 1973 SC 1098
18
Karsandas H. Thacker v. Saran Engineering Co. Ltd. AIR 1965 SC 1981
19
McRae v. Commonwealth Disposals Commission (1951) 84 CLR 377
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28. Section 37 of the Indian Contract Act, 1872 20, establishes that parties to a contract are
bound to perform their respective obligations unless excused by the contract terms or by
operation of law. A party cannot evade its responsibilities simply due to external difficulties
unless explicitly exempted by the contract.
29. In the case of MCL, the events were not unforeseeable, particularly in areas prone to
disruption. MCL, as a professional contractor, was expected to anticipate and mitigate these
risks. The occurrence of tribal encroachments, therefore, does not absolve MCL from its duty
to perform under the contract as these are challenges inherent to the nature of the work.
30. In Satyabrata Ghose v. Mugneeram Bangur & Co.21 (1954), the Supreme Court of
India emphasized that mere inconvenience or hardship in performance does not excuse a
party from its contractual obligations unless it renders performance impossible under Section
56 (Doctrine of Frustration). This case reinforces the expectation that parties must fulfill their
contractual duties unless legally exempted.
22
31. Similarly, in Alopi Parshad & Sons Ltd. v. Union of India and Shree Hanuman
Cotton Mills v. Tata Aircraft Ltd ,23 the cases reiterated the principle that agreements must
be honored and obligations cannot be avoided merely because performance becomes more
onerous or challenging.
2.3 DOCTRINE OF CAVEAT EMPTOR
32. The principle of caveat emptor (“let the buyer beware”) applies analogously to
contractors, placing the responsibility on them to assess and accept risks inherent in a project
before entering into a contract. Contractors are expected to conduct thorough due diligence to
anticipate challenges and risks, as their expertise positions them to manage these effectively.
33. The principle of caveat emptor (“let the buyer beware”) applies analogously to
contractors, placing the responsibility on them to assess and accept risks inherent in a project
20
Indian Contract Act, 1872, § 37, No. 9, Acts of Parliament, 1872 (India).
21
Satyabrata Ghose v. Mugneeram Bangur & Co. AIR 1954 SC 44
22
Alopi Parshad & Sons Ltd. v. Union of India AIR 1960 SC 588.
23
Shree Hanuman Cotton Mills v. Tata Aircraft Ltd 1970 AIR 1986.
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before entering into a contract. Contractors are expected to conduct thorough due diligence to
anticipate challenges and risks, as their expertise positions them to manage these effectively.
34. Tribal encroachments, a foreseeable risk in sensitive infrastructure projects, were within
MCL's expertise to anticipate and mitigate. The Government’s role was limited to handing
over the land, with no implied duty to address such risks. MCL’s failure to manage them
reflects a breach of its duty under the principle of caveat subscriptor.
35. In State of Bihar v. Bengal C & P Works 24 (1985), the Supreme Court of India held that
a contractor is bound by the terms of the contract and cannot seek redress for risks or issues
that were foreseeable and manageable within the scope of their professional expertise. The
same was held in ONGC v. SAW Pipes Ltd.25 (2003) wherein it was stated that the express
terms of a contract govern the obligations of parties, and contractors must abide by the agreed
risk allocation, even in the face of challenging circumstances.
2.4 WAIVER AND ESTOPPEL DUE TO LAND HANDOVER
36. Under Section 115 of the Indian Evidence Act, 1872 26, the legal principle of estoppel
operates to prevent a party from denying or resiling from a statement or position it has
previously taken, provided the other party acted upon such representation to its detriment.
37. The doctrine of waiver complements this, as it entails the voluntary relinquishment of a
known right, which, once waived, cannot be subsequently reclaimed.
38. MCL’s acceptance of the extension of time (EOT) without objection constitutes an
implied waiver of its right to claim damages for delays. By affirming the EOT terms through
its conduct, MCL is precluded from later alleging a fundamental breach, as this would
contradict its prior affirmation.
39. This is particularly significant where the principle of Volenti Non Fit Injuria applies,
emphasizing that a party who voluntarily consents to a condition cannot subsequently
complain of injury or
24
State of Bihar v. Bengal C & P Works AIR 1982 SC 1013.
25
ONGC v. SAW Pipes Ltd., (2003) 5 SCC 705.
26
Indian Evidence Act, No. 1 of 1872, § 115 (India).
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40. In B.L. Sreedhar v. K.M. Munireddy 27 (2003) 2 SCC 355, the Supreme Court held that
a party cannot approbate and reprobate—i.e., accept a benefit and later deny its basis—
28
emphasizing the principle of estoppel. Similarly, in Sowbaghya Agency v. Union of India
(1974) AIR 338, it was established that once a party knowingly and voluntarily waives its
rights, it cannot later claim those rights, thereby preventing inconsistent positions. These
cases reinforce the concepts of estoppel and waiver in legal proceedings.
41. In Central London Property Trust Ltd. v. High Trees House Ltd 29. [1947] KB 130
(High Trees Case) not an Indian case, it has persuasive value, establishing the principle of
promissory estoppel, where a promise intended to create a legal relationship, acted upon by
the other party, binds the promisor.
27
B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355.
28
Sowbaghya Agency v. Union of India (2005) 3 SCC 217.
29
Central London Property Trust Ltd. v. High Trees House Ltd. [1947] KB 130.
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Prayer
Wherefore, in the light of issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:
1. To dismiss the Claimant's (MCL) claim in its entirety, as the Government has fulfilled its
contractual obligations, and the delays are primarily due to factors beyond its control.
2. To declare that the Government is not liable for any additional costs or damages claimed
by MCL, including On-site overhead charges, Head office overheads, and Loss of profit, as
such claims arise from MCL’s failure to manage external interference, like tribal
encroachments.
3. To hold that the delay in land handover was limited to the initial 30-day period and that the
subsequent delays are attributable to MCL’s failure to secure the land, including addressing
encroachments.
4. To affirm the validity of the Extension of Time (EOT) granted, rejecting any claims for
compensation related to delays beyond the EOT.
5. To order MCL to bear its own litigation costs, as the claim is without merit.
6. To grant any other relief deemed just and appropriate by this Court.
AND/OR
Pass any additional orders it may deem fit to uphold justice, equity, and good conscience.
All of which is most humbly and respectfully submitted
Date: __________,2024
Counsel on behalf of the Respondent
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MEMORIAL ON THE BEHALF OF RESPONDENT
IDIA JHARKHAND MEMORIAL DRAFTING COMPETETION 2024
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MEMORIAL ON THE BEHALF OF RESPONDENT