TEAM CODE – N13-43

13th NASCENT MOOT COURT COMPETITION, 2023, SYMBIOSIS LAW SCHOOL,

NOIDA

IN THE DISTRICT COURT OF GAUTAM BUDDHA NAGAR

CIVIL CASE NO. (Original Side) /2023

IN THE MATTER OF

MS. VERA RUBY ………Plaintiff

VERSUS

SKLODOWSKA BUILDERS PRIVATE LIMITED ………Defendant

As submitted before this Hon’ble District Court of Gautam Buddha Nagar

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

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TABLE OF CONTENTS

INDEX OF AUTHORITY ............................................................................................................ 3

INDEX OF ABBREVIATION ..................................................................................................... 5

STATEMENT OF JURISDICTION ............................................................................................. 6

STATEMENT OF FACTS ........................................................................................................... 7

ISSUES RAISED ......................................................................................................................... 9

SUMMARY OF ARGUMENTS ................................................................................................ 10

ARGUMENTS ADVANCED..................................................................................................... 11
ISSUE 1: WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT, AND WHETHER
THERE WAS BREACH OF AGREEMENT BY MS. RUBY? ................................................................... 11

(1.1)TIME WAS OF THE ESSENCE UNDER THE AGREEMENT MADE BETWEEN

SKLODOWSKA AND Ms. RUBY ...................................................................................................... 11

(1.2) THERE WAS BREACH OF AGREEMENT ON THE PART OF Ms. RUBY. ......................... 14

ISSUE 2: ASSUMING ARGUENDO THERE WAS NO BREACH OF CONTRACT, WHETHER

SKLODOWSKA IS ENTITLED TO DEMAND PAYMENT OF MARKET VALUE .............................. 17

(2.1) THERE WAS ANTICIPATORY BREACH COMMITTED BY THE PLAINTIFF .................. 17

(2.2) THE DEFENDANT CAN CLAIM EXEMPLARY DAMAGES ................................................ 19

ISSUE 3 – WHETHER SPECIFIC PERFORMANCE CAN BE AWARDED TO MS RUBY OR NOT... 20

PRAYER ............................................................................................................................................... 22

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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INDEX OF AUTHORITY

CASES
1. Orissa Textile Mills Ltd., and another v. Ganesh Das Ramkishun AIR 1961 Pat 107
2. Lombard North Central PLC v. Butterworth 1987 1 QB 527
3. M/s. P.R. Deb and Associates v. Sunanda Roy AIR 1996 SC 1504
4. Dipnarain Sinha and another v. Dinanath Singh and other AIR 1981 PAT 69
5. Saradamani kandappan v. S. Rajalakshmi (2011) 12 SCC 18
6. Sat Parkash L. Tara Chand and another v. Dr. Bodh Raj L. Bhagwan Das Khatri and other
AIR 1958 PJ 111
7. Orissa Textile Mills Ltd., and another v. Ganesh Das Ramkishun AIR 1961 Pat 107
8. N. Srinivasa v. Kuttukaran Machine Tools Ltd. (2009) 5 SCC 182
9. A.K. Lakshmipathy v. Rai Saheb Pannalal H. Lahoti Charitable Trust (2010) 1 SCC 287
10. Gomathinayagam Pillai v. Palaniswami Nadar AIR 1967 SC 868
11. Bishambhar Nath Agarwal v. Kishan AIR 1990 All 65
12. Jawahar Lal Wadhwa and another v. Haripada Chakroberty AIR 1989 SC 606
13. Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18
14. Mahadeoprasad v. Siemens (India) Limited 1993 SCC OnLine 243
15. Air India Ltd. v. Gati Ltd 2015 SCC OnLine Del 10220
16. Mohd. Abdul Razak v. B. Venkatesh AIR 2006 AP 300
17. Bibi Anwarunisa v. Daulat Rai and another AIR 1988 Pat 229
18. Navnithbhai Harmanbhai Patel vs Ambalal Kalidas Patel 1999 SCC Guj 493
19. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115

STATUTES REFERRED

1. Civil Procedure Code, 1908.

2. Indian Contract Act, 1872.
3. Specific Relief Act, 1963.
4. Real Estate (Regulation and Development) Act, 2016.

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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BOOKS REFERRED

1. Stephen A. Smith, Atiyah’s introduction to law of contracts [(6th ed. 1995),

2. Harold Shepherd & Harry W. Wellington, Contracts And Contract Remedies 805 (4th
Ed. 1957
3. Sir DinshawFardunji Mulla, Mulla The Indian Contract Act (Anirudh Wadhwa 15 th
ed. 2016).
4. Poonam Pradhan Saxena, Property Law, (LexisNexis, 3rd ed. 2017).

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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INDEX OF ABBREVIATION

Bom. Bombay

Cal. Calcutta

Corp. Corporation

Co. Company

Del. Delhi

Exch. Exchequer Court

Govt. Government

Ltd. Limited

Mad. Madras

M.P Madhya Pradesh

Ors. Others

Pat. Patna

PG. Page

Raj Rajasthan

SC Supreme Court

SCC Supreme Court Cases

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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STATEMENT OF JURISDICTION

In accordance with Section 9 read with Section 19 of the Civil Procedure Code, 1908, the
Plaintiff have approached the Hon’ble High Court of Delhi.

Section 9 of the Civil Procedure Code, 1908.

Section 9: Courts to try all civil suits unless barred. - The Court 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.

Thus, the Plaintiffs have approached this Hon’ble Court of District Judge at Gautam Buddha
Nagar for adjudicating the matter brought before the court of law.

All of which is most respectfully submitted.

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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STATEMENT OF FACTS

Sklowdowska Builders Private Limited (Defendant) is an infrastructure and construction company

and Ms. Vera Ruby(Plaintiff) who works in the NOIDA branch of an MNC headquartered in
London enters into an agreement in 2012 for purchasing an apartment complex that defendant had
begun constructing in 2011 in Sector 62 NOIDA. One of the conditions under the agreement was
that plaintiff had to make payments in ten installments on a construction-linked milestone basis
depending on the progress made in building the apartment which was as per the annexure A
appended to the agreement. Since at the time of agreement first two milestones were already
completed, Ms. Ruby paid the requisite amount on the date of signing the agreement and was issued
a letter of allotment for the flat. The aforesaid agreement had a clause that required defendant to
send an e-mail to plaintiff as when milestones were met, and the plaintiff had 60 days from the date
of receiving the mail to make the payment of the installment. The clause also mentioned that the
mode of payment must be by deposit of cheque or by bank transfer, the details of which was
mentioned in the agreement. It was expressly mentioned that the plaintiff has to strictly follow the
schedule of payment as provided in the agreement, the agreement provided that if the plaintiff fails
to make payment within the stipulated time of 60 days, defendant had the right to terminate the
contract and/or impose penal interest on the delayed payment. The agreement also mentioned that
if defendant terminates the contract, the entire amount paid by the plaintiff will be refunded without
any interest. It also provided that if the refund is made after 30 days then 1% simple interest per
month will be charged. Plaintiff made the next three payments being milestone 3, 4 and 5 as
according to the schedule. The plaintiff went out of job in July, 2016 when her company decided to
shut down the office which resulted in her missing the payment of sixth milestone and thereafter
she received an e-mail from defendant on 01.08.2016. Defendant also issued four reminder e-mails
to plaintiff on 01.10.2016, 01.01.2017, 01.04.2017 and 01.06.2017, all of the mails were left
unanswered by plaintiff. The plaintiff was able to obtain employment with another company and
began working again from 02.11.2017. However, her salary for the first 12 months due to condition
of probation was only 50% of her salary she was getting in her previous job. Meanwhile defendant
had finished Seventh, eight, and ninth milestone and also sent e-mails to the plaintiff regarding the
payment of the same on 01.03.2017, 01.05.2017 and 01.10.2017 and also sent a reminder e-mail for
the payment of sixth, seventh and eighth milestones on 01.10.2017, the aforesaid mail sent by the
defendant also mentioned a warning that defendant still reserves its rights to remedies under the
agreement, including termination and imposition of penal interest if payments are not made in
timely fashion. Further reminder mails were sent to the plaintiff on 01.12.2017, 01.02.2018, and

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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15.05.2018. The plaintiff paid the sixth and seventh milestone payment on 01.06.2018 and received
no objection from the defendant. The defendant then issued reminder e-mail for the payment of
eighth and ninth milestone payment claiming that seventh milestone payment is also outstanding.
Replying to the aforesaid mail the plaintiff stated she has already paid the sixth milestone payment
and also attached a proof of it with the e-mail. However, she did not mention about the payment of
seventh milestone. The plaintiff did not receive any reply to this e-mail. On 01.07.2018 the
defendant issued a reminder e-mail for the payment of eighth and ninth milestone payment which
was left unanswered by the plaintiff. On 01.10.2018 the defendant intimated the plaintiff of
completion of tenth and last milestone, and called upon the plaintiff to make the full payment within
sixty days as required under the agreement, the mail was left unanswered by the plaintiff. On
04.12.2019 the defendant sent an e-mail terminating the agreement for breach of agreement, to this
the plaintiff immediately replied on 04.12.2018 itself that she is willing to make the payment of
remaining dues within 48 hours and called upon the defendant to withdraw the notice. She
mentioned that strict adherence to the timelines was never the intention of the parties. The defendant
replied refusing the request of the defendant and said there was a breach of agreement and because
of it the agreement has been terminated and as per the agreement the refund will be made within 30
days and the defendant requested the plaintiff to share her bank account details. The plaintiff then
filed a case against the defendant under specific performance before the court of the district judge,
Gautam Buddha Nagar, in the appeal the plaintiff specifically mentioned that she is ready and
willing to make the payment for the dues. The plaintiff even contended that there was no
understanding of the parties that it is compulsory for the plaintiff to make payments as per the
timelines specified in the agreement and that parties had given it a go-by. The plaintiff submitted
that she must necessarily be given specific performance as the agreement is of an immovable
property. The defendant opposed the suit that time was an essence under the agreement and the
plaintiff having failed to comply and make the payment of ninth installment within sixty days, they
had the right to terminate the agreement. The defendant also contends that they never condoned
delayed payments and still reserve the right under the agreement to demand penal interest for the
delayed payments. They respectfully submitted that they are willing to refund the money paid by
the plaintiff and present a demand draft to this Hon’ble Court. The defendant additionally argues
that if Ms. Ruby is willing to buy the property now, they are ready and willing to sell it at market
value, only on condition that Ms. Ruby pays the remaining dues as well as the difference between
the amount of consideration and the market value, which was 60% over the agreed value. The
Hon’ble court has the matter to be heard

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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ISSUES RAISED

ISSUE 1: WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT,

AND WHETHER THERE WAS BREACH OF AGREEMENT BY MS. RUBY?

1.1 Time was of the essence under the agreement between Sklodowska and
Ms. Ruby

1.2 There was breach of agreement on the part of Ms. Ruby.

ISSUE 2: ASSUMING ARGUENDO THERE WAS NO BREACH OF

CONTRACT, WHETHER SKLODOWSKA IS ENTITLED TO DEMAND
PAYMENT OF MARKET VALUE

2.1 There was anticipatory breach committed by the plaintiff.

2.2 The defendant can claim exemplary damages

ISSUE 3: WHETHER SPECIFIC PERFORMANCE CAN BE AWARDED TO MS

RUBY OR NOT.

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT, AND

WHETHER THERE WAS BREACH OF AGREEMENT BY MS. RUBY?

It is humbly submitted before this Hon’ble Court that the Plaintiff was in breach of the
agreement as the time was essential in the agreement and the plaintiff did not comply with the
stipulated time. In the agreement the time was of the essence as it was expressly mentioned in
the agreement that the installments must be paid within sixty days after the defendant sent an
e-mail asking for the payment. Also the defendant gave several reminders asking for the due
payment of installment which shows that the agreement had time as its essence and since time
was of the essence, there was breach of agreement on part of Ms. Ruby.

ISSUE 2: ASSUMING ARGUENDO THERE WAS NO BREACH OF CONTRACT,

WHETHER SKLODOWSKA IS ENTITLED TO DEMAND PAYMENT OF MARKET
VALUE

It is humbly submitted before this Hon’ble Court that the defendant is entitled to demand payment
of market value because Anticipatory Breach was committed and it allows the defendant to claim
for damages incurred, and in the present case the defendant may claim exemplary damages.

ISSUE 3 – WHETHER SPECIFIC PERFORMANCE CAN BE AWARDED TO MS RUBY

OR NOT.
It is humbly submitted before this Hon’ble Court that Ms. Ruby must not be awarded specific
performance as she was never ready and willing to perform her part of the contract to grant her
specific performance.

-MEMORIAL ON BEHALF ON THE DEFENDANT-

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER TIME WAS OF ESSENCE UNDER THE AGREEMENT, AND

WHETHER THERE WAS BREACH OF AGREEMENT BY MS. RUBY?

It is humbly submitted before the Hon’ble Court that Ms. Ruby has committed breach of the
contract by violating the condition of making the payment of installments within the stipulated
time which was within sixty days after Sklodowska sent an e-mail asking for payment.

(1.1)TIME WAS OF THE ESSENCE UNDER THE AGREEMENT MADE BETWEEN

SKLODOWSKA AND Ms. RUBY

1. The defendant humbly submits that, the plaintiff enters into an agreement with the defendant for
purchasing an apartment complex1 that the defendant started constructing in 2011 in Sector 62
NOIDA, when the agreement was made the first two milestones were already prepared and since
the agreement mentioned that the payment would be made as per construction-linked milestone
2basis, the plaintiff paid for the first two milestones at the time of entering in the contract.

2. The defendant humbly submits that, the agreement had a clause that the installments were to be
made within the stipulated time which was within sixty days after the e-mail was sent by the
defendant to the plaintiff asking for payment3. This clause was expressly mentioned in the contract
which makes the time the essence of the agreement. As per Section 50 of the Indian Contracts Act
1872, “the performance of any promise may be in any manner, or at any time which the promisee
prescribes.”

3. The defendant humbly submits that, as per Section 55 of the Indian Contracts Act 1872, which
says “when a party to a contract promises to do a certain thing at or before a specified time, or certain things
at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so
much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the
parties was that time should be of the essence of the contract”, since the time was of the essence in the
agreement the payment of installments was to be made within the stipulated time and the plaintiff
failed to do so as the payment was not made by her within the period of sixty days and this makes
it the breach of the agreement and voidable on the part of the defendant.

1
Moot Proposition Para 2 line 1
2
Moot Proposition Para 3 line 1
3
Moot Proposition Para 4 line 1
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4. The defendant humbly submits that, in the case of Orissa Textile Mills Ltd., and another v.
Ganesh Das Ramkishun4 the court says that “Time is always considered of the essence of the
contract in the following cases: (1) where the parties have expressly agreed to treat it as of the
essence of the contract; (2) where delay operates as an injury; and, (3) where the nature and
necessity of the contract require it to be so construed. (4) Where time is of the essence of the contract
and is extended, the extended date is also of the essence of the contract.”

5. The defendant humbly submits that, according to section 55 of Indian Contracts Acts when in a
contract the time is of essence the intention of the parties should be looked upon and it must also
depend upon the facts and the surrounding circumstances to ascertain the intention of the parties to
make time the essence of the contract. In the present case the time was of the essence since the first
five payments of the installments were made on time and the contract expressly mentioned about
the stipulated time for payment, even the reminder e-mails for due payments which were sent by
the defendant to the plaintiff shows that the parties did intended to make time the essence of the
contract.

6. The defendant humbly submits that, the plaintiff was given several reminders for the due payment
of the installment of several milestones the dates of the aforesaid reminders were 1.10.2016,
1.1.2017, 1.4.2017, 1.6.2017 for the payment of 6th milestone, on 1.10.2017 for the payment of 7th,
8th,9th milestone. Further reminders were sent for the payment of all the dues on 1.12.2017,
1.2.2018, 15.4.2018 and 15.6.2018. All these reminder e-mails implicate that time was of the
essence in the agreement.

7. The defendant humbly submits that, even though in the sale of an immovable property the time
cannot be of essence there are a few circumstances where the time can be of essence in an agreement
for sale of property, one of the condition to make time the essence of the contract is when it is
expressly mentioned in the agreement and a specific time within which completion is to take place
is given.

8. The defendant humbly submits that, in the case of Lombard North Central PLC v. Butterworth5
it was said that “It is possible by express provision in the contract to make a term a condition, even
if it would not be so in the absence of such a provision. A stipulation that time is of the essence, in
relation to a particular contractual term, denotes that timely performance is a condition of the

4
Orissa Textile Mills Ltd., and another v. Ganesh Das Ramkishun AIR 1961 Pat 107
5
Lombard North Central PLC v. Butterworth 1987 1 QB 527
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contract. The consequence is that delay in performance is treated as going to the root of the contract,
without regard to the magnitude of the breach. It follows that where a promisor fails to give timely
performance of an obligation in respect of which time is expressly stated to be of the essence, the
injured party may elect to terminate and recover damages in respect of the promisor’s outstanding
obligations, without regard to the magnitude of the breach”

9. The defendant humbly submits that, since in the cases where sale of immovable property takes
place time is not considered as the essence but if expressly mentioned in the agreement and a
particular time is stipulated then reasonable period of time is considered, which means that the court
decides whether when the act was completed was reasonable or not, in this case the plaintiff took 1
year 10months 6to complete the payment of installment, the payment was supposed to be completed
within 60 days7.

10. The defendant humbly submits that, in the case of M/s. P.R. Deb and Associates v. Sunanda
Roy8 the court says that “This Court has observed that although in the case of a sale of immovable
property time is not of the essence of the contract, it has to be ascertained whether under the terms
of the contract, when the parties named a specific time within with completion was to take place
really and in substance it was intended that it should be completed within a reasonable time.

11. It observed that the specific performance of a contract will ordinarily be granted not
withstanding default in carrying out the contract within the specified period, if having regard to the
express stipulations of the parties, nature of the property and the surrounding circumstances, it is
not inequitable to grant the relief. If the contract relates to sale of immovable property, it would
normally be presumed that the time was not of the essence of the contract. But even if it is not of
the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the
conditions of the contract so warrant.”

12. The defendant humbly submits that, in the case of Dipnarain Sinha and another v. Dinanath
Singh and other9 the court says that “Even where the time is not of the essence of contract, the court may
infer that in the circumstances of the case it has to be performed within a reasonable time, and it will depend
upon the intention of the parties which has to be ascertained (1) from the expressed stipulation of the contract;

6
Moot proposition para 9 line 1
7
Moot proposition para 4 line 1
8
M/s. P.R. Deb and Associates v. Sunanda Roy AIR 1996 SC 1504
9
Dipnarain Sinha and another v. Dinanath Singh and other AIR 1981 PAT 69
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(2) from the nature of the property; and (3) from the surrounding circumstances.”

13. The defendant humbly submits that, in the case of Sat Parkash L. Tara Chand and another v. Dr.
Bodh Raj L. Bhagwan Das Khatri and other10 Time will be of the essence of the contract if it is
so provided in the contract or if one of the parties after unreasonable delay on the part of the other
party gives a reasonable notice to the other party making time as of the essence of the contract. If
none of the two has happened, reasonable time will be deemed to be the time which will be of the
essence of the contract. The contention that the only modes in which the time can be made of the
essence of the contract are by express provision in the contract or by notice by one of the parties is
not correct.

(1.2) THERE WAS BREACH OF AGREEMENT ON THE PART OF Ms. RUBY.

14. The defendant humbly submits that, the time was of the essence in the agreement as it was
expressly mentioned in the agreement 11also it was essential to make the payment of the installment
within the time stipulated in the agreement, the plaintiff not following the aforesaid essential for the
payment of eighth, ninth and tenth payment of the milestone 12breached the agreement.

15. Harbury’s laws of England says that “Where time is of the essence of the contract. The
expression time is of the essence means that a breach of the condition as to the time for performance
will entitle the innocent party to consider the breach as a repudiation of the contract. Exceptionally,
the completion of the work by a specified date may be a condition precedent to the contractor's
right to claim payment. The parties may expressly provide that time is of the essence of the contract
and where there is power to determine the contract on a failure to complete by the specified date,
the stipulation as to time will be fundamental. Other provisions of the contract may, on the
construction of the contract, exclude an inference that the completion of the works by a particular
date is fundamental.”13

16. The defendant humbly submits that, in the case of Saradamani kandappan v. S. Rajalakshmi14
the court said that “The intention to make time stipulated for payment of balance consideration will
be considered to be essence of the contract where such intention is evident from the express terms
or the circumstances necessitating the sale, set out in the agreement. Even if the urgent need for the

10
Sat Parkash L. Tara Chand and another v. Dr. Bodh Raj L. Bhagwan Das Khatri and other AIR 1958 PJ 111
11
Orissa Textile Mills Ltd., and another v. Ganesh Das Ramkishun AIR 1961 Pat 107
12
Moot proposition para 11 line 1
13
4th edition of Halsbury's Laws of England
14
Saradamani kandappan v. S. Rajalakshmi (2011) 12 SCC 18
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money within the specified time is not set out, if the words used clearly show an intention of the
parties to make time the essence of the contract, with reference to payment, time will be held to be
the essence of the contract.”

17. The defendant humbly submits that, in the case of N. Srinivasa v. Kuttukaran Machine Tools
Ltd.15 the court said that “In a contract for sale of immovable property, normally it is presumed that
time is not the essence of the contract. Even if there is an express stipulation to that effect, the said
presumption can be rebutted. It is well settled that to find out whether time was the essence of the
contract, it is better to refer to the terms and conditions of the contract itself.”

18. In the present case the terms and conditions of the contract was that the plaintiff was required
to pay the installment on the stipulated time16 and if not done so the plaintiff reserves the right to
either terminate the contract or impose penal interest17. The aforesaid terms and conditions implies
that the time was of the essence in the agreement.

19. The defendant humbly submits that, in the case of A.K. Lakshmipathy v. Rai Saheb Pannalal
H. Lahoti Charitable Trust18, the court said that “Reiterated, presumption is that time is not to be
of the essence in case of sale of immovable property, unless contrary intention is expressed - In
present case, even before entering agreement appellants were aware that time was of the essence of
contract - Time was repeatedly mentioned to be of prime importance and it was stated quite clearly
that under all circumstances, appellants would have to definitely deposit balance amount by the date
stipulated in the contract for sale - Cls. 3 and 10 of agreement established intention of parties that
time is of the essence of the contract- Hence, held, time was of the essence of the present contract”,
in the present case the multiple reminders 19and the terms and conditions of the agreement, even the
first five payments made by the plaintiff states quite clearly that time being the essence of the
contract was parties intention.

20. The defendant humbly submits that, in the case of Gomathinayagam Pillai v. Palaniswami
Nadar20 the court said that “It is not merely because of specification of time at or before which the
thing to be done under the contract is promised to be done and default in compliance therewith, that
the other party may avoid the contract. Such an option arises only if it is intended by the parties that
time is of the essence of the contract. Intention to make time of the essence, if expressed in writing,

15
N. Srinivasa v. Kuttukaran Machine Tools Ltd. (2009) 5 SCC 182
16
Moot Proposition para 4 line 1
17
Moot Proposition para 5 line 2
18
A.K. Lakshmipathy v. Rai Saheb Pannalal H. Lahoti Charitable Trust (2010) 1 SCC 287
19
Moot Proposition para 8 line 2
20
Gomathinayagam Pillai v. Palaniswami Nadar AIR 1967 SC 868
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must be in language which is unmistakable: it may also be inferred from the nature of the property
agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract.
Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying
out the contract within the specified period, if having regard to the express stipulations of the parties,
nature of the property and the surrounding circumstances, it is not inequitable to grant the relief.”

21. In the present case the parties did intend to make time the essence of the contract by the
stipulation imposed in the agreement by the defendant and the following of the stipulation for the
first two 21and next three payment22 by the plaintiff .

22. The defendant humbly submits that, the manner in which the act relating to furtherance of the
contract was to make the payment of the installment in a milestone-linked payment method which
means that the installment becomes due to be paid as soon as the milestone is reached in the present
case it is construction of a floor in the apartment and the payment was to be made within 60 days
after receiving an e-mail from the defendant asking for the payment23.

23. In the present case the plaintiff failed to pay within the stipulated time which proves that the
manner in which the contract was meant to be done was not followed, the aforesaid statement makes
the performance of the plaintiff to be done in a particular manner and the plaintiff was bound to
perform in that particular manner itself, and not performing it in the manner which was agreed upon
makes it a breach.

24. The aforesaid statement was given in the judgement of the case Bishambhar Nath Agarwal v.
Kishan24, the court said that “If any agreement states that a particular act relating to the furtherance
of the contract was to be done in a particular manner; then it should be done in that manner and it
is not open to the concerned parties to chalk out his own manner of performing his part of contract”

25. The defendant humbly submits that, the Section 19(6) of the RERA act says that “Every allottee,
who has entered into an agreement for sale to take an apartment, plot or building as the case may
be, under section 13, shall be responsible to make necessary payments in the manner and within
the time as specified in the said agreement for sale”, since the agreement between the defendant

21
Moot Proposition para 3 line 2
22
Moot proposition para 6 line 1
23
Moot Proposition para 4 line 1
24
Bishambhar Nath Agarwal v. Kishan AIR 1990 All 65

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and the plaintiff specifically mentioned about the stipulated time which under the aforesaid section
was the responsibility of the plaintiff, which was not followed by the plaintiff.

ISSUE 2: ASSUMING ARGUENDO THERE WAS NO BREACH OF CONTRACT,

WHETHER SKLODOWSKA IS ENTITLED TO DEMAND PAYMENT OF
MARKET VALUE

It is humbly submitted before the Hon’ble Court that the defendant can demand payment of market
value under the clause of Anticipatory breach, asking for exemplary damages.

(2.1) THERE WAS ANTICIPATORY BREACH COMMITTED BY THE PLAINTIFF

26. The defendant humbly submits that, Section 39 of Indian Contract Act says that “When a
party to a contract has refused to perform, or disabled himself from performing, his promise in its
entirety, the promisee may put an end to the contract, unless he has signified, by words or
conduct, his acquiescence in its continuance.”, which means that a party by expressed words says
or by his conduct it is implied that he/she will not perform the promise further as per the contract.

27. The defendant humbly submits that, Section 39 of the Indian Contract Act 1872 originates the
concept of anticipatory breach “An anticipatory breach occurs when, prior to the promised date of
performance, the promisor absolutely repudiates the contract.” It is an announcement by the
contracting party of his intention of not to fulfil the contract and that he will no longer be bound by
it, the party may expressly mention about the non-performance or may be implied by his actions.
This kind of anticipatory renunciation has certain effects upon the rights of the parties.

28. The defendant humbly submits that, Anticipatory breach can be of two types expressed
repudiation and implied repudiation, in the present case the concept of implied repudiation applies,
implied repudiation means that, “In this type of anticipatory breach of contract the party does not
clearly refuses to perform his or her obligation rather imply from his/her words or actions that
he/she is not going to perform his part of contract.”

29. The defendant humbly submits that, the plaintiff made the payment of the sixth milestone’s
installment with a delay of one year and ten months25, then the plaintiff again started delaying the

25
Moot Proposition para 9 line 1
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payment for the eighth, ninth, and tenth milestone’s installment, even after the reminder emails that
were sent by the defendant26,the delay showed implied repudiation on the part of the plaintiff which
makes the delay an anticipated breach, because of which the defendant terminated the contract.

30. The defendant humbly submits that, in the case of Jawahar Lal Wadhwa and another v.
Haripada Chakraborty27, the court said that “When a party to a contract has refused to perform, or
disabled himself from performing, his promise in its entirety, the promisee may put an end to the
contract, unless he has signified, by words or conduct, his acquiescence in its continuance.” “It is
settled in law that where a party to a contract commits an anticipatory breach of the contract, the
other party to the contract may treat the breach as putting an end to the contract and sue for damages,
but in that event he cannot ask for specific performance.”

31. The defendant humbly submits that, the plaintiff was provided multiple reminders for making
the payment of milestones which were pending. Moreover, none of the mails were replied by the
plaintiff which shows that the plaintiff was neither ready nor willing to perform her part of contract.
Although the plaintiff did reply to the mail which was sent to terminate the contract and also
mentioned her readiness and willingness to pay within the next 48 hours28,which shows that at the
time when the reminder e-mails were sent to the plaintiff she had the resources to pay but the reason
why the plaintiff did not reply to the mail or pay the requisite amount is that she was never willing
or was never ready to pay the amount.

32. The defendant humbly submits that, the defendant tried everything possible from his part to
continue with the contract but the plaintiff continuously for a period of 2 years 7months29 ignored
the reminder e-mails which were sent to the plaintiff by the defendant for the payment of the due
installments. Moreover, the delay was unreasonable, and was sufficient for the defendant to
understand the willingness of the plaintiff to perform her part of contract. Therefore, the plaintiff
impliedly repudiated the contract, which makes it an Anticipated breach of contract.

33. The aforesaid statements qualify the defendant in successfully terminating the contract and
asking for the market value, as in the present case it was implied repudiation because of the conduct
of the plaintiff because of which the defendant can put an end to the contract30 and can claim for

26
Moot Proposition para 12 line 1
27
Jawahar Lal Wadhwa and another v. Haripada Chakroberty AIR 1989 SUPREME COURT 606
28
Moot Proposition Para 13 line 1
29
Moot Proposition Para 11 line 1
30
Jawahar Lal Wadhwa and another v. Haripada Chakroberty AIR 1989 SUPREME COURT 606
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exemplary damages 31as anticipatory breach was committed, therefore the defendant can ask for the
market value as compensation for the damages.

(2.2) THE DEFENDANT CAN CLAIM EXEMPLARY DAMAGES

34. Exemplary Damage means, “An amount of money that someone who commits an offence has to
pay, which is intended to be large enough to prevent them or others from committing similar
offences in the future.”

35. The defendant humbly submits that, due to the delay in the payment of the plaintiff the defendant
incurred losses since the inflation in the current market is very high and the plaintiff delayed the
payment of the milestone by a significant duration of time, which was 2 years and 10 months, which
is sufficient to increase the price of the property due to inflation. The actual damage incurred by the
plaintiff is the difference between the market price of the property and the price at which the
property was to be sold in the agreement.

36. The defendant humbly submits that, in the case of Saradamani Kandappan v. S. Rajalakshmi32,
“The assumption was that grant of specific performance would not prejudice the vendor defendant
financially as there would not be much difference in the market value of the property even if the
contract was performed after a few months. This principle made sense during the first half of the
twentieth century, when there was comparatively very little inflation in India.”33

37. In the case of Mahadeoprasad v. Siemens (India) Limited34. the claimant must prove actual
damages. As the delay in the payment of the milestone by the plaintiff was very long therefore due
to the high inflation rate the price of the property ordinarily increased therefore the difference
between the market price of the property and the price which was mentioned in agreement was the
actual damage occurred by the defendant.

38. In Air India Ltd. v. Gati Ltd35., in the case of repudiatory breach of contract by one party,
termination of the contract by the other party is justified,

31
Ibid
32
Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18
33
Ibid
34
Mahadeoprasad v. Siemens (India) Limited 1993 SCC OnLine 243
35
Air India Ltd. v. Gati Ltd 2015 SCC OnLine Del 10220
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39. In regard to all the arguments put forward in front of this Hon’ble District Court of Gautam
Budhha Nagar, it can safely be inferred that the defendant suffered actual loss due to the delay in
payment made by the plaintiff, and hence the defendant can claim exemplary damages under
Anticipatory breach of agreement.

ISSUE 3 – WHETHER SPECIFIC PERFORMANCE CAN BE AWARDED TO MS

RUBY OR NOT.

It is humbly submitted before the Hon’ble Court that the plaintiff cannot be awarded the specific relief as the
plaintiff was never ready and willing to perform the essential terms of the contract as per Section 16(c) of
the Specific Relief Act 1963

40. The defendant humbly submits that, the section 16(c) of the Specific Relief Act 1963 says that
specific performance of a contract cannot be enforced in favor of a person “who fails to aver and
prove that he has performed or has always been ready and willing to perform the essential terms of
the contract which are to be performed by him, other than terms the performance of which has been
prevented or waived by the defendant”, in the present case the essential terms of the contract was
to pay for the installments on a stipulated time which the plaintiff did not perform or failed to
perform, also the delay of 1 year 10 months in the payment of the due installment of sixth milestone
implicates that the plaintiff was not willing to perform the essential term of the contract.

41. The defendant humbly submits that, in the case of Mohd. Abdul Razak v. B. Venkatesh36 the
court said that “If a plaintiff is negligent and dilatory in carrying out his part of the contract for sale
of immovable property, the plaintiff cannot get his contract specifically performed.
It is settled proposition of law that where time is of the essence of the contract, and the plaintiff has
failed to perform his part of the contract within the stipulated time, specific performance can be
refused.”

42. The defendant humbly submits that, in the case of Bibi Anwarunisa v. Daulat Rai and another
37 the court said that “If the plaintiff fails to perform his part of the contract within the stipulated
period, he cannot come forward to seek relief under the plea that time should not be regarded as
essence of the contract.”

36
Mohd. Abdul Razak v. B. Venkatesh AIR 2006 AP 300
37
Bibi Anwarunisa v. Daulat Rai and another AIR 1988 Pat 229
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43. The defendant humbly submits that, in the case of Navnithbhai Harmanbhai Patel vs Ambalal
Kalidas Patel38 the court said that “The court held that section 16(c) of the Specific Relief Act,
1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent
for obtaining relief of grant of specific performance. It is also clear that in a suit for specific
performance, the plaintiff must allege and prove a continuous "readiness and willingness" to
perform the contract on his part from the date of the contract. The onus is on the plaintiff. The court
further held that it is settled law that even in the absence of specific plea by the opposite party, it is
the mandate of the statute that plaintiff has to comply with section 16(c) of the Specific Relief Act
and when there is non-compliance with this statutory mandate, the court is not bound to grant
specific performance and is left with no other alternative but to dismiss the suit. "Readiness and
willingness” to perform the part of the contract has to be determined/ascertained from the conduct
of the parties.”

44. The defendant humbly submits that, in the case of N.P. Thirugnanam v. Dr. R. Jagan Mohan
Rao39 the court held that “it was held that section 16(c) of the Act envisages that the plaintiff must
plead and prove that he had performed or has always been ready and willing to perform the essential
terms of the contract which are to be performed by him, other than those terms the performance of
which has been prevented or waived by the defendant. The continuous readiness and willingness
on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This
circumstance is material and relevant and is required to be considered by the court while granting
or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail.”

38
Navnithbhai Harmanbhai Patel vs Ambalal Kalidas Patel 1999 SCC Guj 493
39
Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115
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PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble District Court of
Judicature at Gautam Buddha Nagar, that is may be graciously pleased to adjudge and:

1. DECLARE that time was an essence of the contract.

2. HOLD Ms. Vera Ruby liable for breach of contract.
3. DECLARE that Sklodowska is entitled to the payment at market value.

AND/OR

Also, pass any other order that the court may deem fit in the favour of the defendant to meet
the ends of equity, justice and good conscience.

For this act of Kindness, the Defendant shall duty bound forever pray.

All of which is most respectfully submitted.

Counsel for the Defendant

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