CLINICAL COURSE – I (MOOT COURT) 2023-24

MOOT PROBLEM – III

ICFAI LAW SCHOOL

IN THE HONOURABLE
SUPREME COURT OF REPUBLIC OF NEHAR
APPELLATE JURISDICTION

IN THE MATTER OF

APPELLATE JURISDICTION

SLP (appeal) No. ___________ OF 2023

1. MR. ROHAN
…. APPELLANT

VERSUS

1. MR. PRADEEP
…. RESPONDENTS

MEMORANDUM ON BEHALF OF THE APPELLANT

CLINICAL COURSE – I (MOOT COURT) 2023-24, MOOT PROBLEM – III, ICFAI LAW SCHOOL
MEMORIAL ON BEHALF OF APPELLANT
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 TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………………….. 2
INDEX OF ABBREVIATIONS………………………………………………………………... 3
INDEX OF AUTHORITIES…………………………………..……………………………….. 4
STATUTES……………………………..……………………………………………………….. 4
WEBSITE LINKS………………..…………………………………………………………….. 4
CASES……………………………..………………………………………………………..….... 4
STATEMENT OF JURISDICTION ……………………………..………………………….... 5
STATEMENT OF FACTS ……………………………..………………………………………. 6
ISSUES……………………………..……………………………………………………………. 8
SUMMARY OF ARGUMENTS……………………………..………………………………… 9
ARGUMENTS ADVANCED ……………………………..…………………………………...10

Issue 1:Whether or not Rohan can claim specific performance of the contract after the
lapse of five years from the date of the agreement of sale? ………………………………… 10

Issue 2: Whether or not the High Court of Nehar was correct in upholding the judgment
of the Subordinate Judge, and rejecting Rohan’s appeal for specific performance
Of contract?……………………………………………………………………………………..12

Issue 3:Whether or not the challenge of the High Court order by the appellant is
sustainable under Law of Limitation? ………………………………………………………. 14

PRAYER ………………………………………………………………………………………. 16

CLINICAL COURSE – I (MOOT COURT) 2023-24, MOOT PROBLEM – III, ICFAI LAW SCHOOL
MEMORIAL ON BEHALF OF APPELLANT
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 INDEX OF ABBREVIATIONS

1. 1. S. SECTION
2. 3. & AND
3. 6. Art. ARTICLE
4. 8. Govt. GOVERNMENT
5. 9. HC HIGH COURT
6. 10. Hon'ble HONORABLE
7. 11. i.e. THAT IS
8. 12. No. NUMBER
9. 13. Ors. OTHERS
10. 14. P. PAGE
11. 16. r/w READ WITH
12. 17. SC SUPREME COURT
13. 18. SCC SUPREME COURT CASES
14. 19. SCR SUPREME COURT REPORTER
15. 20. LR LAW REPORTER
16. 21. U/S UNDER SECTION
17. 22. UOI UNION OF NEHAR
18. 23. V./Vs VERSUS
19. 24. w.r.t WITH RESPECT TO

CLINICAL COURSE – I (MOOT COURT) 2023-24, MOOT PROBLEM – III, ICFAI LAW SCHOOL
MEMORIAL ON BEHALF OF APPELLANT
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 INDEX OF AUTHORITIES

STATUTE

1. Specific Relief Act 1963

2. The Limitation Act 1963
3. Neharian Civil Procedure Code

WEBSITE LINKS

● www.indiankanoon.org
● www.ssrana.in
● www.law.asia
● www.indiacode.nic.in

CASES

1. N.Srinivasa v. Kuttukaran Machine Tools Ltd

2. A. Kanthamani v. Nasreen Ahmed
3. Mehboob-ur-Rehman v. Ahsanul Ghani
4. Umabai v. Nilkanth Dhondiba Chavan
5. Ram Karan v. Govind Lal

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Nehar has the inherent jurisdiction to try, entertain and dispose of
the present case by virtue of Article 136 of The Constitution of Nehar.

“Article 136- Special Leave to Appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence, or order in any cause
or matter passed or made by any court or tribunal in the territory of Nehar.

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces”

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 STATEMENT OF FACTS

1. Pradeep, proprietor of a garment business, takes a loan of Rs.1,00,000/- (one lakh) from
Bank of Nehar to elevate his business and expand his shop,but due to sudden deterioration
of his health, Pradeep fails to continue his business and thus incurs huge loss in the
business. Since Pradeep neither has anyone to take care of his business nor any other source
of income to repay the installments of the loan, he agreed to sell 19 cents of his land situated
in Ravula village of Peluru district to Mr. Rohan, against an amount of 5 (five) Lakhs via
an instrument of agreement of sale dated 10th May, 1990.

2. As per the stipulations of agreement, Rohan shall pay the consideration amount i.e.;
Rs.1,00,000/-(one lakh) to the Bank of Nehar on behalf of Pradeep for discharge of
Pradeep’s pending loan along with the interest due.

3. While this being so, Rohan makes certain payments but fails to repay the entire loan
amount with interest to the bank.

4. Consequently, the Bank instituted a suit (being O.S.No.58 of 1992)against Pradeep for
recovery of the amount before the Subordinate Judge, Nehar. Later, in the said suit Rohan
got himself impleaded as a party. The suit filed by the Bank for recovery of Rs.75,000
was decreed in favor of it with interest in the year 1998.The decree attained finality.

5. Since the commitment made by Rohan was not fulfilled by him regarding the repayment
of the loan amount, Pradeep filed a suit (O.S. No.28 of 1995) before the Subordinate
Judge, Nehar against Rohan for recovery of possession of land which he had delivered to
him at the time of aforesaid agreement of sale.While this being so, Rohan too filed a suit
before the Subordinate Judge, Nehar(O.S.No.37 of 1995) against Pradeep for specific
performance of contract after five years of agreement.

6. The Hon’ble court disposed of both the suits by a common judgment dated 21st

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 April,2000. In the verdict,the court dismissed the case filed by Rohan .The court further
directed Pradeep to pay back the initial amount paid by Rohan, to the bank for repayment
of loan, within three months.The court ordered Rohan to surrender the possession of the
plaint schedule property to Pradeep within one month of payment .

7. Not satisfied by the decree of the Subordinate Judge, Nehar. Rohan filed an appeal before
the High Court of Nehar, to which the high court upheld the lower court judgment by
rejecting Rohan appeal and thus no relief of specific performance was granted to him,
since he failed to perform his part of contract.

8. Aggrieved by the Judgment of the High Court,Rohan filed a civil appeal before the Apex
court of Nehar questioning the judgment of the High Court. Notice was issued before
admission to Pradeep

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 ISSUES

1. Whether or not Rohan can claim specific performance of the contract after the lapse of
five years from the date of the agreement of sale?

2. Whether or not the High Court of Nehar was correct in upholding the judgment of the
Subordinate Judge, and rejecting Rohan’s appeal for specific performance of contract?

3. Whether or not the challenge of the High Court order by the appellant is sustainable
under Law of Limitation

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 SUMMARY OF ARGUMENTS

1. Conditions for Claim of Specific Performance : Under Article 16 of the Specific Relief Act 1963
which envisages that plaintiff must plead and prove that he had performed or has always been
ready and willing to perform the essential terms of the contract.

2. Principle of acceptance on the sale of immovable property, time is never regarded as the essence
of the contract

3. Pecuniary compensation granted by the court is not enough for the damages faced by the client
therefore making him eligible for the specific relief to be granted to him

4. It is not necessary for the appellant to tender the money due under a contract under Article 16.

5. Enforceability of Specific Performance of the Contract according to Section 10 of the Specific

Relief Act under the conditions :
● Compensation of Money is not adequate relief
● Where the subject of matter of the contract is an immovable property

6. Enforceability of the Specific Performance of the Contract under S.12(2) of the Specific Relief
Act 1963, where a party to a contract is unable to perform the whole of his part, but the
part which was left unperformed was only a small proportion to the whole in value and
admits of pecuniary compensation, the court may, at the suit of either party, direct the
specific performance of so much of the contract as can be performed and award
pecuniary compensation for the deficiency.

7. Under the Limitation Act 1963 , Period of 60 days from the date of grant of the certificate by the
High Court.

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 ARGUMENTS ADVANCED

Issue 1. Whether or not Rohan can claim specific performance of the contract after the
lapse of five years from the date of the agreement of sale?

8. It is submitted that u/s 16 of Specific relief Act, 1963, the conditions for not granting
specific relief are listed:
a. Who would not be entitled to recover compensation for its breach or
b. Who has become incapable of performing, or violates any essential term of, the
contract that on his part remains to be performed or acts in fraud of the contract, or
wilfully acts at variance intended to be established by the contract or
c. 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.
i. Where a contract involves the payment of money, it is not essential for the
plaintiff to actually tender to the defendant or to deposit in court any money
except when so directed by the court.
ii. The plaintiff must aver performance of, or readiness and willingness to
perform the contract according to its true construction.
9. It is submitted that Mr Rohan is entitled to the grant of specific relief as he does not violate
the conditions mentioned u/s 16 of specific relief act.

10. It is submitted in the Case of N.Srinivasa v. Kuttukaran Machine Tools Ltd, that “in the
contract relating to immovable property, time cannot be the essence of the contract", the
appellant put forth the contention that in all contracts relating to sale of immovable
property, time stipulated for performance, even if expressed to be the essence, has to be
read as not being the essence of the contract and consequently the contract does not become
voidable by the failure to perform before the specified time.

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11. It is submitted that the market values of properties are no longer stable or steady. Judicial
notice of the comparative purchase power of a rupee in the year 1990 and now, as also the
steep increase in the value of the immovable properties between then and now. The steep
increase in prices is a circumstance that makes it inequitable to grant the relief of specific
performance.

12. It is submitted that order granted by the Subordinate Judge by common judgment dated 21
April, 2000 which dismissed the case filed by the appellant, Mr.Rohan that Mr. Pradeep
has to compensate the amount paid to the bank within 3 months but by considering the
facts provided it is to be considered that the pecuniary compensation would not suffice to
the current value the land is worth.

13. It is submitted that as such, Mr Rohan is eligible to the grant of specific relief even after
the lapse of 5yrs and should be paid compensation for the loss he is incurring.

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Issue 2. Whether or not the High Court of Nehar was correct in upholding the judgment of
the Subordinate Judge, and rejecting Rohan’s appeal for specific performance of contract?

14. It is submitted that in the case of Mehboob-ur-Rehman v. Ahsanul Ghani , with the
amendment of the Specific Relief Act, 1963 by Act 18 of 2018, the specific performance
of a contract cannot be enforced in favor to the person who fails to prove that he has already
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 the terms of which, the performance
has been prevented or waived by the other party.”
15. It is submitted that one of the factors showing the readiness and willingness is the ability
of the appellant to make the payment and cannot be a factor by itself to disentitle the
appellant the grant of relief.

16. It is submitted in the Case of A. Kanthamani v. Nasreen Ahmed that the expression
“readiness and willingness” has been the subject-matter of interpretation in many cases
even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963.The Privy
Council in a leading case which arose from the Neharian courts in Bank of India Ltd. v.
Jamsetji A.H. Chinoy, approved the view taken by Chagla, Acting. C.J., and held inter alia
that:“it is not necessary for the plaintiff to produce the money or vouch for a concluded
scheme for financing the transaction to prove his readiness and willingness.”

17. It is submitted in the Case of Umabai v. Nilkanth Dhondiba Chavan, it was well settled
that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-
respondents were all along and still are ready and willing to perform their part of contract
as is mandatorily required under Section 16(c) of the Specific Relief Act must be
determined having regard to the entire attending circumstances.

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18. It is submitted that under Section 10 of Specific Relief Act 1963 in the following conditions
specific performance of the contract is enforceable when there exists no standard for
ascertaining actual damage caused by the non-performance of the act agreed to be done.

19. It is submitted that compensation of money is not adequate relief: In following cases
compensation of money would not provide adequate relief where the subject matter of the
contract is an immovable property.

20. It is submitted in the Case of Ram Karan v. Govind Lal , an agreement for sale of
agricultural land was made The buyer brought an action for the specific performance of
contract and it was held by the court that the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favor of appellant.

21. It is submitted that the appellant under S.12(2) of the Specific Relief Act 1963, where a
party to a contract is unable to perform the whole of his part, but the part which was left
unperformed was only a small proportion to the whole in value and admits of pecuniary
compensation, the court may, at the suit of either party, direct the specific performance of
so much of the contract as can be performed and award pecuniary compensation for the
deficiency.

22. It is submitted that under S.12(2) of specific relief act 1963 , Mr.Rohan is eligible for the
Specific Performance of the Contract as he intended to pay the bank loan as shown when
he made certain payments even though he failed to repay the loan amount with the interest
due. Hence the HC is not justified in upholding the judgment of the subordinate court and
rejecting the appeal for specific performance.

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Issue 3. Whether or not the challenge of the High Court order by the appellant is
sustainable under Law of Limitation.

23. It is submitted that the Law of limitation prescribes a time period within which a right can
be enforced in a Court of Law. The time period for various suits has been provided in the
schedule of the Act.

24. It is submitted that under S.115 of CPC, the Supreme Court has the authority to revise the
decision of the HC.

25. It is submitted that under the limitation act, 1963 the time period for filing an appeal to
challenge the judgment of HC in the SC/ Apex court is 60 days from the grant certificate
of HC.

26. It is submitted that the appellant i.e. Mr Rohan was not satisfied with the judgment of HC
and filed an appeal to the SC to revise the orders of the HC and Subordinate Court as the
HC had rejected the appeal of specific performance on the basis of non performance of
contract.

27. It is submitted that the appellant filed an appeal to the SC within the time period prescribed
under the limitation act i.e. 60 days. Hence Mr. Rohan’s appeal to challenge the decision
of the HC is valid and sustainable.

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 PRAYER

In the light of the above arguments advanced and authorities cited, the appellant humbly prays
before the hon’ble court to:
1) To dismiss the suit of the respondent
2) To set aside the order of The High Court
3) To grant specific performance of the contract made with Pradeep

For this act of kindness, the appellant shall be duty bound forever, in the interest of justice.

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