IN THE HON’BLE HIGH COURT OF DELHI
IN THE MATTER OF CATHERINE SUSAN BONES......................…...............................................CLAIMANT VERSUS RETRO APPARELS PVT. LTD. .................................................................RESPONDENT
ON SUBMISSION TO THE HON’BLE HIGH COURT OF DELHI MEMORIAL FILED ON BEHALF OF THE APPELLANT
MOST RESPECTFULLY SUBMITTED
RACHIT GOEL COUNSEL FOR THE APPELLANT
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29TH AUGUST 2013
TABLE OF CONTENTS
INDEX
OF
AUTHORITIES......................................................................................................3 STATUTES REFERRED..........................................................................................................3 CASES REFERRED..................................................................................................................3 WEBSITE................................................................................................................................... 3 LIST OF ABBREVIATIONS....................................................................................................4 STATEMENT OF JURISDICTION…………………..……………………………………… 5 SUMMARY
OF
FACTS............................................................................................................6 STATEMENT
OF
ISSUES........................................................................................................7 SUMMARY
OF
ARGUEMENTS.............................................................................................8 ARGUEMENTS ADVANCED.................................................................................................9 PRAYER..................................................................................................................................11
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INDEX OF AUTHORITIES
STATUTES REFERRED 1. Indian Arbitration And Conciliation Act,1996 2. Family Law Reform Act ,1969
CASES REFERRED 1. Nash v Inman 1908 2 kb 2. Fawcett v Smethurst 1914
WEBSITES 1. www.manupatra.com 2. www.indlaw.com 3. www.lawteacher.com
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LIST OF ABBREVIATIONS
Co. -Company Ed. - Edition Hon’ble - Honourable Ltd. - Limited No. - Number Pvt. - Private u/s - Under Section UK- United Kingdom v. - Versus Vol. – Volume
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STATEMENT OF JURISDICTION
THE APPELLANT HUMBLY APPROACHES THE HONOURABLE HIGH COURT OF DELHI UNDER SECTION 34 OF INDIAN ARBITRATION AND CONCILIATION ACT, 1996 READ WITH CLAUSE 23 OF THE CONTRACT BETWEEN THE APPELLANT AND RESPONDENT
Section 34 reads as under: Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and subsection (3). (2) An arbitral award may be set aside by the Court only if(a) the party making the application furnishes proof thatWRITTEN SUBMISSIONS ON BEHALF OF THE CLAIMANT
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(i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) …….
Clause 23 reads as under a. Any dispute arising out of or in connection with this contract shall be referred to and finally resolved by arbitration in India. b. The number of arbitrators shall be one to be appointed by the agreement of parties. The seat of arbitration shall be New Delhi, India c. For all matters arising therefrom, the exclusive jurisdiction shall be vested with courts in New Delhi, India d. The governing law of the Contract shall be the substantive law of England
SUMMARY OF FACTS
Retro Apparels is a Co. incorporated under the laws of UK engaged in the business of sale of designer clothing for use by child actors and celebrities. The said Co. entered into a contract with Miss Catherine Susan Bones, a famous child actor, aged 16, for the sale of 6 evening gowns to be worn by Miss Catherine Susan Bones to the Cannes film festival 2013. Miss Catherine Susan Bones is a citizen of India.
On January 10, 2013 a dispute regarding the payment of purchase arose between the parties and a resort was made to binding arbitration before Mr.X- a sole arbitrator appointed by the agreement of parties.
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Mr. X on July 10, 2013 delivered a binding Award in favour of Retro Apparels and ordered Miss Catherine Susan Bones to pay up Rs. 7.8 lakhs as contract price plus Rs. 5 lakhs as damages and cost. Aggrieved by the Arbitral award given by the sole arbitrator Mr.X the Appellant has filed this application before this Honourable Court for setting aside the Arbitral Award
ISSUES RAISED
1. WHETHER THE CONTRACT BETWEEN THE PARTIES IS VALID?
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SUMMERY OF ARGUMENTS
1. WHETHER THE CONTRACT BETWEEN THE PARTIES IS VALID?
a. No. the contract between the parties is not a valid one as one of the party is a minor
b. Also the Minor cannot be sued.
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ARGUEMENTS ADVANCED
1. WHETHER THE CONTRACT BETWEEN THE PARTIES IS VALID?
It is humbly submitted before this Hon’ble Court that the contract between the parties is not a valid one as one party to the Contract is minor. According to Sec.1 of the Family Law Reform Act 1969 minor is simply a person under the age of 18. In the present case the Appellant was at the age 16 at the time of entering the contract hence minor. It is humbly submitted before this honourable Court that a minor can enter too a Contract if the Contract is for its necessaries as under Sec 3 of the sales of Goods Act 1979. 1 Sec 3(3) explain the word necessaries. In the case of Nash v Inman 2 A Cambridge undergraduate, the son of an architect entered into a contract with tailor for the supply of clothes including 11 ‘fancy waistcoats’, to the value of $122. The cloth could be appropriate to the station in life of the undergraduate, but the contract was not enforceable because the minor was already adequately supplied with clothes. Therefore clothes supplied by the tailor could not be classified as necessaries. It humbly submitted before this Honourable Court that the minor cannot be sued nor is personally liable for the breach of Contract.
1
Capacity to buy and sell.
(1)Capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property. (2)Where necessaries are sold and delivered to a minor or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them. (3)In subsection (2) above “necessaries” means goods suitable to the condition in life of the minor or other person concerned and to his actual requirements at the time of the sale and delivery.
2
Nash v Inman 1908 2 kb WRITTEN SUBMISSIONS ON BEHALF OF THE CLAIMANT
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In the case of Fawcett v Smethurst3 Minor hired a car to transport his luggage. This is prima facie a ‘necessary’. But a term in the contract states that the minor was to be held absolutely liable for any damage to the car regardless of how it was caused. The court held that the minor is not personally liable and the contract is too onerous and therefore unenforceable against the minor.
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1914
PRAYER
Wherefore in the light of the facts, issue raised, arguments advanced, reasons given and authorities cited, the counsel for the Appellant humbly pray before this Hon’ble Court 1. That the Contract Between the parties is void 2. That the arbitral award may set aside
Place: Delhi
All of which respectfully submitted S/r:______________________
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