DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

Team Code: D-1

BEFORE THE HON’BLE CIVIL COURT OF KANPUR

CIVIL SUIT UNDER THE SECTION 20 OF THE CODE OF CIVIL PROCEDURE

MR.ADITYA....................................................................................................PLAINTIFF
V.

CLICK TO OWN COMPANY AND LA DELA CO…….................................DEFENDANT

(Civil Appeal No. 1 of 2018)

ON SUBMISSION TO THE CIVIL COURT OF KANPUR

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................................. 2

LIST OF ABBREVIATIONS ........................................................................................................................ 3
INDEX OF AUTHORITIES ......................................................................................................................... 4
STATEMENT OF FACTS............................................................................................................................ 5
STATEMENT OF ISSUES........................................................................................................................... 6
Issue 1- ................................................................................................................................................ 6
Issue 2- ................................................................................................................................................ 6
SUMMARY OF ARGUMENTS .................................................................................................................. 7
Issue 1- ................................................................................................................................................ 7
Issue 2- ................................................................................................................................................ 7
ARGUMENTS ADVANCED ....................................................................................................................... 8
PRAYER ................................................................................................................................................. 12

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

LIST OF ABBREVIATIONS

Abbreviations Full Forms

AIR All India Reporter

HC High Court

CPC Code of Civil Procedure

Co. Company
Edn Edition

Ltd Limited

SCC Supreme Court Cases

SCR Supreme Court Reporter

TRA Technology Revolution Agreement

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

INDEX OF AUTHORITIES

Cases

Arbitration and Conciliation Act, 1996 ................................................................................... 13

Indian Contract Act, 1872 ........................................................................................................ 16

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

STATEMENT OF FACTS

1. Aditya, a law graduate, placed an order with Click to Own (C20.com) of a Nokia phone for
his father who had been complaining of his old phone. He placed the order with his newly
acquired credit card and converted the purchase into 6 EMIs. The amortization agreement
was made by the credit card company and was mailed to him. The order was placed on 8th
December, 2017. C2O is an e-commerce firm which runs a B2C firm and provides a
platform for sellers and buyers. The seller in this case was La Dela company based in
Bengaluru.
2. The order was dispatched and an SMS was sent to his I-phone informing him that the date
of dispatch was 19th December, 2017. On 21st December, when his father again complained
about the phone, Aditya inquired on the C2O website and came to know that the phone had
been dispatched. The seller told him that the phone had been sent by the National Postal
Service and he was experiencing delay in their service.
3. Aditya wrote to C2O Company about the non-delivery of the phone on 30th December,
2017. When he received his credit card statement requisitioning him to deposit his
outstanding amount including the first EMI of the phone, he got annoyed and wrote a mail
to C2O Customer Care about the irresponsible behaviour of the seller and asked the
company to intervene. In response, the company guaranteed the sale of the phone and
insured that the needful shall be done. The C2O even filed a claim for cancellation of order
and repayment of the purchase price on behalf of Aditya which was settled by the company
on 5th January, 2018.
4. The company also told Aditya that once an order has been placed, there is nothing they can
do about the delivery of goods. The order, shipment, delivery and cancellation of the goods
is the sole prerogative of the seller. Aditya, on being annoyed by this, filed a civil suit for
the breach of contract against La Dela impleading C2O in the Kanpur Civil Court for the
delivery of phone and reasonable compensation to be paid to him.
5. The C2O took the plea that the issue has been already resolved. The issue of jurisdiction
was also raised by the defendants in the case. The payment shall be reverted in a few
business days via the original mode of purchase, i.e. the credit card. However, the
contention of Aditya is that he was misguided and misinformed about his order since he
placed his order and the good, i.e. the phone was of immense value as it was the first
purchase of Aditya for his father by his own earnings.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

STATEMENT OF ISSUES

Issue 1- That the Kanpur Civil Court does not have jurisdiction over C20 Company.

Issue 2- That there was no actual loss caused to the plaintiff which could attract
compensation.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

SUMMARY OF ARGUMENTS

Issue 1- That the Kanpur Civil Court does not have jurisdiction over C20 Company.
It is very humbly submitted before this Hon’ble Court that the Kanpur Civil Court does not
have jurisdiction over the Click to Own (C2O) Company because with reference to Section
20 of the Code of Civil Procedure the suit can only be instituted in the court in the
jurisdiction of which the defendant actually or voluntarily resides, or carries on business, or
personally works for gain or where the cause of action, wholly or in part, arises.

Issue 2- That there was no actual loss caused to the plaintiff which could attract
compensation.
It is further submitted that the defendant is not liable for providing any kind of compensation
since no actual loss was caused to the Plaintiff. It has already been assured to the plaintiff by
the defendant that the payment shall be reverted (returned back) to the plaintiff in few
business days hence, there is no pecuniary loss that can be attributed to the plaintiff

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

ARGUMENTS ADVANCED

Issue 1-That the Kanpur Civil Court does not have jurisdiction over C20
Company.

It is very humbly submitted before this Hon’ble Court that the Kanpur Civil Court does not
have jurisdiction over the Click to Own (C2O) Company because with reference to Section 20
of the Code of Civil Procedure the suit can only be instituted in the court in the jurisdiction of
which the defendant actually or voluntarily resides, or carries on business, or personally works
for gain or where the cause of action, wholly or in part, arises. In the present case the La Della
Company and ‘Click to Own’ Company is not based in Kanpur and neither they carries on
business in this city therefore the Kanpur Civil Court cannot exercise jurisdiction over the C20
Company.

In the case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr 1 the
Division Bench of the Hon’ble Delhi High Court settled the law on the subject of exercising
jurisdiction on the accessibility of website. The court held that merely accessing a website in
Delhi would not satisfy the exercise of jurisdiction by the Delhi court. Rather, it has to be shown
that the defendant "purposefully availed" itself of such jurisdiction, by demonstrating that the
use of the website was with intent to conclude a commercial transaction with the site user, and
such use resulted in injury or harm to the plaintiff.

In the present case, there is no harm caused by the use of the website. The Delay was caused
by the National postal service and not by the ‘Click to Own’ Company. Besides this, the
payment shall be reverted in few business days2 which means that there is no actual loss or
harm caused to the Plaintiff. The decision of the Delhi High Court in Banyan Tree case prevails
over the judgment delivered in Casio India Co. Limited v. Ashita Tele Systems Fvt. Limited1
and in the case of Independent News Service Pvt. Limited v. India Broadcast Live Llc And
Ors.2 Therefore with reference to the aforementioned case-laws it is humbly submitted that the
Kanpur Civil Court does not have jurisdiction over the matter concerned in this present case
and besides this the C2O company cannot be interpleaded in this civil suit.

1
C.S. (OS) No. 894/2008 (Delhi High Court).
2
¶11 of the Moot Proposition.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

Issue 2- That there was no actual loss caused to the plaintiff which could
attract compensation.

It is further submitted that the defendant is not liable for providing any kind of compensation
since no actual loss was caused to the Plaintiff. It has already been assured to the plaintiff by
the defendant that the payment shall be reverted (returned back) to the plaintiff in few business
days3 hence, there is no pecuniary loss that can be attributed to the plaintiff. In the case of Prem
Lata v MCD4, it was held that a mere alleged delay in supply of the product without any actual
loss caused to the claimant would not attract damages. In the Present case as well, the La Della
company has itself suffered delayed in its service and that delay is only because of the reckless
behavior of the National Postal Services Authority5 and not of its own or of C2O.

The broad objective underlying the assessment of damages is to put the aggrieved party
monetarily in the same position as far as possible in which it would have been if the contract
has been performed. ‘Damages’ means compensation in terms of money for the loss suffered
by the injured party. Burden lies on the injured party to prove his loss.6 In the case of Union of
India v Tribhuwan Das Lalji Patel7it was held that Section 73 does not give any cause of
action unless and until damage is actually suffered.Similar was the holding of the hon’ble apex
court in Suresh Prabhakar Volvilokar v Gopal Babu Savolkar8.In this case a booking clerk of
theatre misappropriated a sum of money for deposit in the film’s exhibitor’s account, employer
liable, but the plaintiff had to proof the loss. The Court held that if the locus standi and the
quantum of damages were not proved, the case could not stand. Same is applicable in this
present case.

The claim of the Plaintiff that the goods(mobile phone) was of immense value as it was the
first purchase for his father by his own earnings also holds no ground for providing
compensation because the courts provide compensation for mental anguish only when the
contract was regarding performance to provide peace of mind or freedom from distress. This

3
¶ 11 of the Moot Proposition.
4
A.I.R. 2003 Del 211.
5
Para 5 of the Moot Proposition.
6
Suresh Prabhakar Volvilokar v Gopal Babu Savolkar, (1996) 5 Bom. CR 1,. ONGC v Saw Pipes Ltd (2003) 5
SCC 705: AIR 2003 SC 2629, breach of contract and loss must be proved. Chief Secy, State of Gujaratv Kothari
Associates, (2003) 3 Guj LR 2177.
7
A.I.R. 1971 Del. 120; Vishwanath v Amarlal, A.I.R. 1957 M.B. 190. Prem Lata v MCD, A.I.R 2003 Del. 211,
alleged delay in Supply, but no loss shown to have been caused. Claim of damages not allowed. Maharastra SEB
v Sterlite Industries (India), (2001) 8 S.C.C. 482.
8
(1996) 5 Bom. CR 1.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

has been confirmed in the writings of the esteemed author Chitty who states that normally no
damages in contract will be awarded for injury to the plaintiffs feelings, or for his mental
distress, anguish, annoyance, loss of reputation or social discredit caused by the breach of
contract; the exception in only limited to contract whose performance is to provide peace of
mind or freedom from distress. The court of appeal in England has confirmed that damages for
anguish and vexation caused by breach of contract cannot be awarded in ordinary commercial
contract. 9 Therefore the Plaintiff is not entitled to any kind of compensation that can be
attributed to any act of the defendants.

C2O is only an intermediary as defined under Information Technology Act, 2000 and not
liable with reference to section 79 of the Act.

It is further submitted that the function of the ‘Click to Own’ company was only to act as an
interface between the consumer (the Plaintiff) and the seller (La Della Company) and nothing
more. Therefore after acting as an interlink and by bringing both of them together the job of
the C2O company is done and it is absolved of all the legal obligations hence no question of
the liability of C20 Company arises in this case. Besides this, the payment has been reverted
and there is no actual loss that can be attributed by the non-delivery of the asset. With reference
to section 79 of the Information technology Act, 2000 the intermediaries are not liable
regarding the anomalies caused between the seller and the buyer.

It is further submitted that Aditya was never ‘misguided’ or ‘misinformed’. The order was
dispatched and for the perusal of records an SMS was send to his phone and the date of dispatch
was told to him as that of 19th December, 2017.10 Besides the delay in service was due to the
National Postal Service and neither by the Seller (la Della Company) nor the C20(Click to
Own) Company. Upholding a judgment passed by the Punjab State Consumer Disputes
Redressal Commission, the National Consumer Disputes Redressal Commission (NCDRC)
said earlier this month that the post office concerned in Mohali was required to compensate a
Punjab Public Service Commission aspirant after his application was not delivered on time.
The NCDRC also upheld the State commission’s order for compensation of ₹1 lakh to the
aspirant. Upholding the same, the NCDRC said the postal service “cannot take shelter behind
Section 6 of the Indian Postal Act to absolve of its responsibility by merely stating that the

9
Chitty on Contracts (27th Edition, Vol 1 para 26.041).
10
¶ 4 of the Moot proposition.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

complainant should have kept track of the article on the postal website. There is a clear cut of
deficiency of service on their part.

MEMORIAL ON BEHALF OF DEFENDANT

 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW WINTER GRAND INTRA, 2018

PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited this Hon’ble Court may be pleased to adjudge and declare that:–

I. The Kanpur Civil Court does not have jurisdiction over C2O Company or La Dela
Company.
II. The plaintiff is not entitled to any kind of compensation

AND/OR

Pass any other order it may deem fit, in the interest of justice, equity and good conscience, and
for this, the Respondent as in duty bound, shall humbly pray.

MEMORIAL ON BEHALF OF DEFENDANT