memorial of appellant.pdf

8/22/2019 memorial of appellant.pdf

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DEPARTMENT OF LAW OF DHAKA UNIVERSITYGRAND INTRA-MOOT COURT COMPETITION

In the Honble High Court of the Supreme court of Bangladesh

X-treme Ltd.... (Appellants)

V.Mr.Muktadir.(Respondents)

On submission to the Honble High Courtof the Supreme court of Bangladesh

Memorial on behalf of the AppellantX-treme Ltd.


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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................. 1

INDEX OF AUTHORITIES ....................................................................... 2

STATEMENT OF JURISDICTION .......................................................... 4

SYNOPSIS OF FACTS ........................................................................... 5

STATEMENT OF ISSUES ........................................................................ 8

SUMMARY OF ARGUMENTS ................................................................. 9

ARGUMENTS ADVANCED ...................................................................... 10

I.WHETHER X-TREME WAS BOUND BY ITS ORIGINAL PROMISE TO GIVE THE

50% DISCOUNT ?........... 10

A. That there was no consideration for the promise.................................................

10

B. That the principle in Williams V. Roffey is not applicable here. ...................... 11

II. WHETHER X-TREME WOULD BE ESTOPPED BY THE LATER PROMISE TO

ACCEPT TK.100000 IN FULL SETTLEMENT OF THE

BALANCE?.......................................................... 12

A. That there was no binding settlement .................................. 12

B. That it was not inequitable to allow X-treme to withdraw the

promise.......................................................................................... 14

PRAYER ................................................................................................. 16


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INDEX OF AUTHORITIES

A. CASES

1. WILLIAMS V. ROFFEY BROS & NICHOLLS (CONTRACTORS)

LTD.[1991] 1 QB 1

2. WILLIAMS V. BAYLEY (1866) LR 1 HL 200

3. HUGHES V. METROPOLITAN RAILWAY CO (1877) 2 APP CAS 439

4. D & C BUILDERS V. REES[1966]2 QB 617

5. CENTRAL LONDON PROPERTY TRUST LTD V. HIGH TREES HOUSELTD[1947]KB 130

6. FOAKES V. BEER (1884) 9 APP CAS 605

7. PINNELS CASE(1602) 5 CO REP 117 A

B. BOOKS

1. MUHAMMAD EKRAMUL HAQUE LAW OF CONTRACT.

2. MULLA, INDIAN CONTRACTS AND SPECIFIC RELIEFS ACT,

(LEXISNEXIS BUTTERWORTHS INDIA, 13TH EDITION, 3RD REPRINT,

NEW DELHI) (2008)

3. CHITTY ON CONTRACTS(SWEET AND MAXWELL, 25TH EDITION,

VOL.1 & 2(1983)

4. EWAN McKENDRICK, LAW OF CONTRACT,8TH EDITION

5. C.A. MACMILLAN & R. STONE, ELEMENTS OF THE LAW OF

CONTRACT.


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6. MAJOR & TAYLOR, LAW OF CONTRACT, 9TH EDITION.

7. TREITEL, G. LAW OF CONTRACT (SWEET AND MAXWELL, 8TH

EDITION, INDIA) (2006)

C. DICTIONARIES

1. BLACK, HENRY CAMPBELL: BLACKS LAW DICTIONARY, 9TH

EDN., CENTENNIAL ED. (1891-2001).

2. AIYAR, RAMANATHA P.: THE LAW LEXICON, WADHWA &

COMPANY, 2ND EDN. NAGPUR (2002).

3. CURZON. L. B: DICTIONARY OF LAW, PITMAN PUBLISHING, 4TH

EDN. NEW DELHI (1994).

4. GARNER, BRYAN A.: A DICTIONARY OF MODERN LEGAL

USAGE, OXFORD UNIVERSITY PRESS 2ND EDN. OXFORD (1995).

5. GREENBERG, DANIEL AND ALEXANDRA, MILLBROOK:

STROUDS JUDICIAL DICTIONARY OF WORDS & PHRASES, VOL. 2,

6TH EDN., LONDON: SWEET & MAXWELL (2000).

D. STATUTORY COMPILATIONS

1. THE CONTRACT ACT, 1872

2. THE CODE OF CIVIL PROCEDURE(CPC),1908.

E. INTERNET SITES

1. http://www.findlaw.com

2. http://www.bdlaws24.blogspot.com

3. http://www.clc.bd.org/

4. http://www.jstor.org.

5. http://www.lawersnjurists.com


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STATEMENT OF JURISDICTION

The Appellants have approached to the High Court Division of Supreme Court

basing their arguments upon section 2(d),(e),and (g) of the Contract Act 1872 while

going for appeal, a right enshrined in section 96 of the Code of Civil Procedure

1908, against the judgment in the X-treme Vs. Mr. Muktadir case. The judgment

was handed down by the District Court.

96. Appeal from original decree.

(1)save where otherwise expressly provided in the body of this code or by any

other law for the time being in force, an appeal shall lie from every decree

passed by any court exercising original jurisdiction to the court authorized to

hear appeals from the decisions of such court.

(2)An appeal may lie from an original decree passed ex parte.

(3)No appeal shall lie from a decree passed by the Court with the consent of

parties.


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SYNOPSIS OF FACTS

X-treme Ltd & Mr. Muktadir

Mr. Muktadir Ahmed booked an all-inclusive holiday with X-treme Ltd, a holiday

company specialising in extreme sport package deals. The holiday was 7 days long,

with a different extreme sporting activity being scheduled for each whole day. The

cost was Tk. 300000, with Tk. 100000 paid up front to secure the booking and the

balance upon completion of the holiday. He chose X-treme as he had used them in

the past and had always been happy with the service they provided.

REDUCTION OF THE COST OF HOLIDAY

Later, Mr. Muktadir discovered that a friend going on the same holiday package

had received a 50% discount on the cost of his holiday via an email voucher.

Muktadir had registered his details on the X-treme website at the same time as his

friend, but had not received the same email voucher. Having unexpectedly lost his

job, Mr. Muktadir telephoned X-treme, to ask for the discount to be applied to the

balance of his holiday as he feared he may not be able to afford to pay it otherwise

and would have to cancel the holiday, and explaining that he was a loyal customer.

Thinking that they may obtain further custom from him if they acceded to

Muktadirs wishes, X-tremes area manager orally agreed to the reduction in price


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SETTLEMENT OF THE ACCOUNT

The holiday went well, as plannedMuktadir had a great time hang-gliding,

white-water rafting, abseiling and the like. X-treme then sent their invoice, asking

for Tk. 200000. Muktadir protested vehemently, saying that X-treme should not

renege on its earlier promise of the 50% discount on the balance, and saying that

he would only pay Tk. 100000, as agreed. He then sent a cheque for this amount

and X-treme wrote back to say the account had been settled.

The DISPUTE

X-treme suffered a downturn in business due to the credit crunch. They decided to

seek to claim the Tk. 100000 from Muktadir, arguing that they were not bound to

the area managers promise as no consideration had been given for it. They further

argued that, if the court agreed that the earlier promise was not binding upon them,

the later acceptance of Muktadirs cheque for Tk. 100000 did not preclude them

from claiming the remaining Tk. 100000 as no consideration had been provided by

Muktadir for X-tremes promise that the account had been settled and, even in the

absence of consideration, Muktadir could not raise an estoppel to prevent X-treme

from going back on this promise, on the basis that estoppel does not apply to one-


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off debts. (It was not argued in either instance that X-tremes promise was

procured under duress.)

JUDGEMENT OF THE DISTRICT COURT

The District Court found that Muktadir was not liable for the Tk. 100000 balance

because:

1. X-treme was bound by its original promise to give the 50% discount because

there was consideration for the promise, albeit a promise to reduce the price,

stemming from the principle in Williams v Roffey.

2. Even if X-treme's original promise of a discount had not been binding, X-treme

would be estopped by the later promise to accept Tk. 100000 in full settlement of

the balance as the promise had been made with the intention that it be acted upon

and Muktadir had relied on this. Furthermore, given that duress had not been

argued in either instance, it would appear that Muktadir had come to equity with

clean hands.

APPEAL

X-treme appeals to the High Court Division of the Supreme Court against both of

these findings.


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STATEMENT OF ISSUES

THE APPELLANTS RESPECTFULLY ASKS THE HONBLE HIGH COURT

DIVISION OF THE SUPREME COURT OF BANGLADESH, THE

FOLLOWING QUESTIONS:

ISSUE I

WHETHER X-TREME WAS BOUND BY ITS ORIGINAL PROMISE TO

GIVE THE 50% DISCOUNT ?

ISSUE

2WHETHER X-TREME WOULD BE ESTOPPED BY THE LATER

PROMISE TO ACCEPT TK.100000 IN FULL SETTLEMENT OF THE

BALANCE ?


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SUMMARY OF ARGUMENTS

X-TREME WAS NOT BOUND BY ITS ORIGINAL PROMISE TO GIVE50%DISCOUNT

It is humbly submitted that there was no consideration for the promise that X-treme

would give 50% discount as a lesser sum of money cannot be consideration for a

greater sum owed. So,payment of less than is due on or after the date for payment

will never provide consideration for a promise to forgo the balance. Further, the

principle in Williams v. Roffey is not applicable here as X-tereme did not get any

benefit which can consitute a consideration for the promise.

X-TREME WOULD NOT BE ESTOPPED BY THE LATER PROMISE TO

ACCEPT TK.100000 IN FULL SETTLEMENT OF THE BALANCE

It is humbly submitted that Mr.Muktadir offered to pay a smaller amount of the

total (discount of 50%),otherwise the X-tereme Ltd. would get nothing as he infers

that due to his unemployment he may have to cancel. Hence,X-treme accepts the

cheque of that discount amount. Here promise was not freely given and so the

settlement must be set aside. Further this is the reason which make it inequitable

for Muktadir to rely on promissory estoppel.


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ARGUMENTS ADVANCED

I.WHETHER X-TREME WAS BOUND BY ITS ORIGINAL

PROMISE TO GIVE THE 50% DISCOUNT ?

A. That there was no consideration for the promise

1. It is humbly submitted that section 2 (d) of the Contract Act,1872 provides for

consideration which states that:

When, at the desire of the promisor, the promisee or any other person has done or

abstained from doing, or does or abstains from doing, or promises to do or to

abstain from doing, something, such act or abstinence or promise is called a

consideration for the promise.

Here something means anything which has any value in the eye of law. It implies

that consideration need not be adequate, because it is mentioned in the law that

consideration must be sufficient rather something which requires the existence of

consideration in any form.

2. There was no consideration for the promise that X-treme would give the 50%

discount as a lesser sum of money cannot be consideration for a greater sum owed

which was held in pinnels case (1602). But payment of less than is due on or after


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the date for payment will never provide consideration for a promise to forgo the

balance.

B. That the principle in Williams V. Roffey is not applicable here

3. The District court cited Williams V. Roffey(1991). Draw a distinction that one of

the defining facts of that case was the time pressure. The benefit that made up the

consideration was not that the carpentry work was done at all, but that it was to be

done quickly due to the penalty clause in their building contract.

X-treme is under no such pressure ( as Muktadir did not cancel the holiday ). The

same consideration does not exist.

4. Again, in Williams V. Roffey the claimant accepted a new obligation to comlete

the flats one by one and by that the defendant obtained a benefit that he did not to

pay under penalty clause.

X-treme did not get any benefit which can constitute a consideration for the

promise.


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II. WHETHER X-TREME WOULD BE ESTOPPED BY THE LATER

PROMISE TO ACCEPT TK.100000 IN FULL SETTLEMENT OF THE

BALANCE?

A. That there was no binding settlement

5. This case reads much, much more like D&C Builders v Rees( 1996 ). In that

case, the debtor similarly offered to pay a smaller amount of the total, otherwise

the creditor would get nothing. Creditor accepts a cheque, and later demands

settlement in full. In this case, it was held (by Denning MR - the architect of the

doctrine) that Promisee could not operate as the promise was not freely given,

hence it was not inequitable to go back on it.

In the current case, Muktadir demands discount, and infers that due to his

unemployment he may have to cancel.

Like the Rees family, he does not advertise his dissatisfaction immediately. Not

until his discovery that a friend has paid less for a similar holiday.

At this point, he calls X-treme Ltd. and demands a discount of 50% , using as

leverage his own altered financial status - (clearly not so onerous that he would


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instead ask for his money back, and cancellation). X-treme Ltd. agrees, despite

having been given no consideration. Very much like the Rees.

Following enjoyment of the holiday, when presented with a statement for the

full sum, the respondent issues a cheque - much like the Rees.

Having considered Hughes and High Trees, all three judges at the Court of

Appeal in D & C Builders v Rees held that there was no binding settlement, and

that Promisee could not operate under those circumstances, which are directly

analogous to X-treme.

6. The explanation II to section 25of the Contract Act,1872 provides that-

An agreement to which the consent of the promisor is freely given is not void

merely because the consideration is inadequate; but the inadequacy of the

consideration may be taken into account by the Court in determining the

question whether the consent of the promisor was freely given.

So, the explanation makes it clear that if consent is given freely then the

agreementwill not be void merely because the consideration is inadequate. But


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the court may take into account the amount of consideration to determine the

question whether the consent of the promisor was freely given or not.

In the current case, Mr. Muktadir similarly offered to pay a smaller amount of

the total (discount of 50%),otherwise the X-tereme Ltd. would get nothing as he

infers that due to his unemployment he may have to cancel. Hence,X-treme

accepts the cheque of that discount amount. Here promise was not freely given.

In an English case, Williams V. Bailey (1866) it was held that at the time of

making the settlement the claimant was not able to make a freely voluntary

assent, and the settlement must be set aside.

B. That it was not inequitable to allow X-treme to withdraw the promise

7. The doctrine of promissory estoppel, however, provides that in certain

circumstances a promise may be binding even though it is not supported by

consideration. The doctrine has its origins in equitable waiver. It is thus

regarded as an equitable doctrine.

8. The way that this is usually stated is that it must be inequitable for the

promisor to withdraw the promise. What does inequitable mean ? It will

cover the situations where the promisee has extracted the promise by taking

advantage of the promisor.


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9. This was the the case, for example, in D & C Builders V. Rees (1966) where

the promise of a firm of builders to accept part payment as fully discharging a

debt owed for work done was held not to give rise to a promissory estoppel,

because the debtor had taken advantage of the fact that she knew that the

builders were desperate for cash.

In the current case, Muktadir did not come to equity with clean hands as he

indued area manager by offering to pay a smaller amount of the total ( discount

amount ), otherwise they would get nothing as he infers that due to his

unemployment he may have to cancel.

This make it inequitable for Muktadir to rely on promissory estoppel.


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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS HONBLE COURT MAY BE

PLEASED TO:

TO HOLD

THAT X-TREME WAS NOT BOUND BY ITS ORIGINAL PROMISE TO GIVE

50%DISCOUNT

THAT X-TREME WOULD NOT BE ESTOPPED BY THE LATER PROMISE TO

ACCEPT TK.100000 IN FULL SETTLEMENT OF THE BALANCE

MUKTADIR WAS LIABLE FOR THE TK.100000 BALANCE

TO SET ASIDE

THE ORDER PASSED BY THE DISRICT COURT


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MISCELLANEOUS

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TOGRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE APPELLANTS

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT


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memorial of appellant.pdf

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