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Before

THE LEARNED DISTRICT COURT OF BURNPUR

W.P (Civil) No. ……… of 2012

PETITION INVOKED UNDER SECTION 9 OF CPC

MR. LAJ
(Petitioner)

Versus.

MR. DINESH
(Respondent)

MEMORIAL ON BEHALF OF THE PETITIONER

Submitted by : Shambhavi Choudhary

Semester I

Roll No. : 887

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TABLE OF CONTENTS

List of Abbreviations …………………………………………………………………….. 3

Index of Authorities ……………………………………………………………………… 4

A. Statutes …………………………………………………………………… 4
B. Books …………………………………………………………………….. 4
C. Websites …………………………………………………………………. 4
D. List of Cases ……………………………………………………………... 4
Statement of Jurisdiction …………………………………………………… …………… 5
Statement of Facts ………………………………………………………………………... 6
Statement of Issues ……………………………………………………………………….. 7
Summary of Arguments ………………………………………………………………..… 8
Arguments Advanced ……………………………………………………………………. 9-12
Prayer …………………………………………………………………………………….. 13

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LIST OF ABBREVIATION

& And
Acc. According
AIR All India Reporter
SCC Supreme Court Cases
v. Versus
Sect. Section
CPD Common Plea Division
QBD Queen Bench Division
HLC House of Lords cases by Clack
Ch. Chancery, Law Report
CP Common Pleas
CPC Civil Procedure Code

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INDEX OF AUTHORITIES

 STATUTES

The Indian Contract Act, 1872

Civil Procedure Code

 List of Books

o Nilima Bhadbhade, Pollock & Mulla, India Contract & Specific Acts
(13th ed. , 2006)
o Avtar Singh, Contract & Specific Relief (12th ed. , 2017)

 List of Websites
 www.manupatra.com

 List of Cases

 Bryne & Co. v. Leon Van Tien Hoven & Co., (1880) 5 CPD 344
 Stevenson v. Melean, (1880) QBD 348
 Dunlop v. Higgins, (1848) 1 HLC 381
 Henthon v. Fraser, (1892) 2 Ch 27
 Nutakki Susharatanan v. Sub-Collector, (1992) 1 SSC 114
 Byomkesh Banerjee v. Nani Gopal Banik, 1987 Cal 92
 Ram Das Chakarbarti v. Official Liquidator Cotton, Ginning Co. Ltd.,
ILR (1887) 9 All 366

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STATEMENT OF JURISDICTION

The Counsel for the Petitioner most humbly and respectfully submits before the Learned
District Court of Burnpur to exercise its jurisdiction under Section 91 of CPC to adjudicate the
present matter.

1
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.

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STATEMENT OF FACT

1. On November 1, 2012 : Mr. Dinesh of Nagpur, Maharashtra through post offered to

sell his customised Maruti Swift VDI motor car to Mr. Laj of Burnpur, West Bengal
for Rs 5,00,000. The offer was open until 5th November, 2018.
2. On November 2, 2018 : Mr. Laj received the offer and left for a business trip to
Lucknow. And Mr. Dinesh sold the car to Mr. Kamal & posted a revocation of his
offer to Mr. Laj.
3. On November 3, 2018 : The revocation letter was delivered to Mr. Laj’s Burnpur
address.
4. On November 4, 2018 : Mr. Laj posted an acceptance of the offer from Lucknow, to
Mr. Dinesh at his business address, in Akola.
5. On November 5, 2018 : The acceptance was delivered.
6. On November 6, 2018 : Mr. Dinesh read the acceptance letter.
7. On November 7, 2018 : Mr. Laj returned home and read the letter of revocation.

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STATEMENT OF ISSUES

ISSUE 1 - Whether a contract has been formed between the Petitioner and the Respondent?

ISSUE 2 - Whether the revocation sent by the Respondent admissible in the court of law?

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SUMMARY OF ARGUMENT

1. Whether a contract has been formed between the Petitioner and the Respondent?

It is humbly contended before the learned Court that according to Sect. 4 of The Indian Contract
Act, 1872, The communication of a proposal is complete when it comes to the knowledge of
the person to whom it is made. The communication of an acceptance is complete, as against the
proposer, when it is put in a course of transmission to him, so as to be out of the power of the
acceptor; as against the acceptor, when it comes to the knowledge of the proposer. And in this
case the above section is justified.

2. Whether the revocation sent by the Respondent admissible in the court of law?
It is humbly contended before the learned Court that according to Sect. 4 of The Indian
Contract Act, 1872, the communication of a revocation is complete, as against the person who
makes it, when it is put into a course of transmission to the person to whom it is made, so as
to be out of the power of the person who makes it; as against the person to whom it is made,
when it comes to his knowledge.

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ARGUMENT ADVANCED

1. A contract has been formed between the petitioner and the respondent.
1.1 It is humbly stated that the communication of an acceptance is complete, as against the
proposer, when it is put in a course of transmission to him, so as to be out of the power of the
acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The offeror
becomes bound when a properly addressed and adequately stamped letter of acceptance is
posted.

1.2 In case of Ram Das Chakarbarti v. Official Liquidator Cotton, Ginning Co. Ltd.2, the
same aspect was emphasised by the Allahabad High Court. A letter of allotment of shares was
claimed to have been posted by a company, but the applicant denied to have received it. The
High Court said, “It follows from Sect. 4 and 5 that a notice of allotment, which is the
acceptance of the offer to purchase shares, is communicated to the allottee when it is
despatched, and from that moment there is a complete contract for him. Whether or not he
receives the letter is absolutely immaterial.”3

1.3 The contract is concluded at the place from where the proposal is accepted and
communication of acceptance is despatched.

1.4 In the case of Dunlop v. Higgins4, where an acceptance letter posted in due time was
delayed by one day as the slippery state of roads from frost prevented the mail bag from
reaching the station before departure of the train, nevertheless the defendants were held
bound. It was held that an acceptance sent by post was a proper mode of acceptance, and the
contract was complete from the time the letter was posted.

2
ILR (1887) 9 All 366.
3
Byomkesh Banerjee v. Nani Gopal Banik, 1987 Cal 92, letter of acceptance duly posted by acceptor was held
effective though the other party refudes to receive it and it came back undelivered.
4
(1848) 1 HLC 381.

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1.5 In the case of Henthorn v. Fraser5, it was held that if the acceptance by the plaintiff of the
defendant’s offer is to be treated as complete at the time the letter containing it was posted, it
can entertain no doubt that the society’s attempted revocation of the offer was wholly
ineffectual. And that a person who has made an offer must be considered as continuously
making it until he has brought to the knowledge of the person to whom it was made that it is
withdrawn.

1.6 In another case of Nutakki Susharatanam v. Sub-Collector6, it was held that till the offer
was accepted there was no contract between the parties and the appellant was entitled to
withdrawn its offer. There was nothing inequitable or improper in withdrawing the offer, as the
appellant was on way bound to keep the offer open indefinitely. In the present case, the offer
was for a fixed period of time, also the defendant’s letter of revocation reached the offeree after
it was accepted by the plaintiff and complying with the above judgement the offeree can only
withdraw the offer if it was not accepted by the offeree.

1.7 It has been suggested by the Calcutta High Court in such a case it is enough if the acceptor
has ‘posted the acceptance before the stipulated time’, even if it reaches the offeror after
stipulated date. The court said, “that an effective date on which the option of acceptance is
exercised by a party is to be ascertained from the date when the acceptance is put in transmission
and the letter is posted.”

It is humbly contended before this learned court that acceptance by the Plaintiff amounted to
the formation of Contract between the Respondent and the Petitioner.

5
(1892) 2 Ch 27.
6
(1992) 1 SSC 114.

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2. The revocation sent by the Respondent is not admissible in the court of law.

2.1 It is humbly stated before the court that the revocation of the offer by the Respondent is
not accepted and cannot be sustained. Acc. to sect. 5, “A proposal may be revoked at any time
before the communication of its acceptance is complete as against the proposer, but not
afterwards. And the communication of an acceptance is complete as against the proposer,
when it is put in a course of transmission to him, so as to be out of the power of the acceptor.

2.2 Explaining the principle, Lord Herschell observed : “If the acceptance by the plaintiff of
the defendant’s offer is to be treated as complete at any time the letter containing it was
posted, I can entertain no doubt that the society’s attempted revocation of the offer was
wholly ineffectual. I think that a person who has made an offer must be considered as
continuously making it until he has brought to the knowledge of the person to whom it was
made that it is withdrawn.”

2.3 Thus the communication of revocation should reach the offeree before the acceptance is
out of his power. An illustration of Sect. 5 explains the mater. It means that the
communication of revocation to be effective must reach the offeree before he conveys his
acceptance and makes it out of his power. A revocation is effective only when it is brought to
the mind of the person to whom the offer is made.

2.4 In the case of Bryne & Co v. Leon Van Tien Hoven & Co7, it was held that the offer is
only revoked by direct communication with the offeree. Issue of revocation in relation to the
postal rule does not apply in revocation. In it Lindley J of the High Court Common Plea
Division, ruled that an offer is only revoked by direct communication with the offeree, and
the postal rule does not apply in revocation; while simply posting a letter counts as a valid
acceptance, it does not count as valid revocation. In present case, the letter of revocation is not
directly communicated to the offeree and hence with the procedure of the above judgement
the offer stands and not revoked and can be accepted by the offeree.

2.5 In case of Stevenson v. Mclean8, it was held that the communication of revocation should
reach the offeree before the acceptance is out of his power.

7
(1880) 5 CPD 344.
8
(1880) 5 QBD 346

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2.6 An offer can be revoked before its acceptance and the revocation become effective when it
comes to the knowledge of the offeree. In the present case the offeree did not have any such
knowledge.

In summation it is humbly submitted before the court that the reocation of the offer is not valid.

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PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Learned court may be
pleased to adjudge and declare that:

1. a contract has been formed between the Petitioner and the Respondent
2. the revocation sent by the Respondent is not admissible in the court of law

The court may also be please to pass any other order, which this Hon'ble Court may deem fit
in the light of justice, equity and good Conscience.

All of which is most humbly prayed

Counsel for the Petitioner.

Memorial on Behalf of the Petitioner