IN THE

HONOURABLE DISTRICT COURT OF MAATHAINPUR

AT MAATHAINPUR
CIVIL PETITION ____/2014

OUTLAWED ELECTRIC LIMITED

PLAINTIFF
V

INVICTA ENERGY PRIVATE LIMITED

DEFENDANT

MEMORANDUM FOR THE PLAINTIFF

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TABLE OF CONTENTS

INDEX OF AUTHORITIES....3
STATUTES USED..3
LIST OF BOOKS.3
DICTIONARIES..4
INDEX OF CASES..................4
STATEMENT OF JURISDICTION..5
STATEMENT OF FACTS.6
ISSUES RAISED.9

SUMMARY OF PLEADINGS...10
PLEADINGS & AUTHORITIES...12
I. INVICTA

CAN BE SUED BOTH UNDER TORTS AND EXISTING CNFES AGREEMENT BY OUTLAWED.

12
II.INVICTA WAS NEGLIGENT IN ITS SALE OF THE FUEL RODS TO OUTLAWED ENERGY..13
A.
SUFFICIENT

INVICTA

OWED A

PROXIMITY

DUTY

OF CARE TO

BETWEEN

OUTLAWED

THEM

AS

BECAUSE THERE WAS A

SUPPLIER

AND

CONSUMER..13
B. INVICTA BREACHED THE DUTY OF CARE OWED TO OUTLAWED..14
C. INVICTA IS LIABLE FOR ALL DAMAGES CAUSED TO OUTLAWED BECAUSE OF

REASONABLE AND

FORESEEABLE CONSEQUENCES OF ITS ACTIONS

15
III. THERE WAS NO DEFAMATION OF INVICTA PRIVATE LTD. BY Ms CHOHAN..16
IV.INARGUENDO-: THE SELLER

OF THE DEFECTIVE PRODUCT SHOULD BE HELD LIABLE UNDER THE

TORT OF ABSOLUTE LIABILITY..17

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PRAYER18

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INDEX OF AUTHORITIES

STATUTES USED

Code of Civil Procedure,1908

LIST OF BOOKS
C.D.BAKER, Tort, Sweet and Maxwell, (London, 6th Edition, 1996)
DURGA DAS BASU, The Law of Torts, Kamal Law House (Kolkata, 12 th
Edition, 2006)
JUSTICE G.P.SINGH, The Law of Torts, Ratanlal and Dhirajlal (Nagpur,
23rd edition, 1999)
MARGARET BRAZIER &

JOHN

MURPHY , Street on Torts, Butterworths

(London, 10th edition, 1999)

R VENKATARAMANI, Halsburys Laws of India, Butterworths (New Delhi,
Volume 29 (1), 2001)
RICHARD KIDNER, Casebook on Torts, Blackstone Press Limited
(Shropshire, 4th Edition, 1996)
TONY WEIR, A Casebook on Torts, Sweet and Maxwell (London, 8th
Edition, 1996)
DAVID PRICE , Defamation : Law, procedure and practice, Sweet and
Maxewell (London, 2nd Edition, 2001)
WINFIELD AND JOLOWICZ, Tort, Sweet and Maxwell (London, 17th edition,
2006).
POLLOCK

AND

MULLA , The Indian contract and Specific Relief Act, Vol

I, Lexis Nexis (Nagpur, 14th edition, 2012)

CHARLESWORTH & P ERCY
(London, 12th edition, 2010).
4

ON

NEGLIGIENCE, Sweet and Maxwell

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DICTIONARIES

BLACKS LAW DICTIONARY, (Bryan Garner, 7th ed., 1999)

Index of Cases
Home Office V Dorset Yacht Co. Ltd

12

Anns v. London Borough Merton

13

Donoghue v. Stevenson

12, 13

Hedley Byrne and Co. Ltd. v. Haller Partners Ltd

13

Home Office v. Dorset Yatch Co. Ltd

13

Jacob Mathew v. State of Punjab

12

Murphy v. Brentwood District Council

13

Poonam Varma v. Ashwin Patel

12

M/S. Crop Care Federation Of India vs Rajasthan Patrika (Pvt) Ltd

15

London artist V. Litter

15

Henderson V. Merret Syndicates Ltd

11

M.C. Mehta v. Union of India

16, 9

Union Carbide India Limited vs Union Of India And Ors

16

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STATEMENT OF JURISDICTION

THE PETITIONER HEREBY SUBMITS THIS MEMORANDUM IN THE MATTER OF THE SUIT FILED IN
THE

HONBLE DISTRICT COURT

COURT UNDER SECTION

OF

MAATHAINPUR,

INVOKING THE JURISDICTION OF THIS

9 OF THE CODE OF CIVIL PROCEDURE, 1908.

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STATEMENT OF FACTS

I
Rijulia is a state in the Republic of Rajhaland which is a developing country. The Head of state is
King Ganpati. The country witnessed enormous economic growth in past few years but is facing
deep energy crisis. To overcome this energy crisis, Republic of Rajhaland decided to establish
Nuclear Power Plants. It also managed to end its nuclear isolation at the global stage by obtaining
a waiver from the block of nuclear energy exporting countries known as Non-Smoking Grass
Group (NSG Group).
II
The Republic of Rajhaland opened its energy sector to private sector. The costal town of
Maathainpur in state of Rijulia due to its strategic location, ideal population distribution, ample
supplies of cooling water and availability of lands and favourable physical considerations such as
geology, meteorology and continuous presence of strong wind became a hub for plant
establishment.
III
The contract for construction was secured by Outlawed Electric Limited. Outlawed appointed
Invicta Energy Private Limited as the sole supplier of all raw materials and fuel. Invicta was also
the exclusive supplier for 34 nuclear plants internationally. Both the corporations entered into
Composite Nuclear Fuel and Equipment Supply (CNFES) Agreement.
IV
As the construction started, Maathainpur plant started facing criticism due to apprehensions about
its location. The plant also faced stiff criticism from localities for land acquisition irregularities
and potential threat to Rekhi tribe living 150 km from Maaithanpur. The agitation turned into
national protest and was supported by many eminent personalities. Eventually, however, the
protest was quelled down and the plant started to function in 2010.
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V
With the capacity of 9900 MW, which made it largest nuclear power generating station in the
world by net electrical power rating, it was termed as the one of the new age temples of
Rajhaland. The plant couldnt also stay away from certain controversies. The workers after getting
drunk got into tussle with locals. Even some reports of free movement of goods, unauthorized
people and materials also caused unnecessary troubles to Outlawed. Outlaweds employees were
also alleged to be indulged in smuggling and other nefarious activities.
VI
The much acclaimed Maathainpur plant was commissioned in 2010. After 3 years of its
commissioning, it was stuck by a deadly accident on December 3, 2013. This accident lead to
release of large amounts of lethal substance including xenon , iodine and zirconium in the
environment. This accident also resulted in outbreak of radiation in the environment and killing 30
workers including fireman. The accident also resulted in huge loss to Outlawed damaging 3 out of
4 reactors.
VII
The aftermath of accident was followed by statement given by Ms Chohan, spokesperson of
Outlawed against Invicta which created a flutter in media. Invicta came under the fire of media
followed by interview of their spokesperson at a News channel where he denied all the
allegations.
VIII
The accident also proved deadly for common people and resulted in 700 deaths and 1000 people
being hospitalized. Thousand more were reported to suffer from swollen eyes, nausea and
choking. A study conducted by Rocky Institute of Medical Science also revealed that large scale
radiation will cause mutations in future generations. Outlawed also reported a loss of INR 13
billion.
IX
A newspaper article published in Dooblin Times also created much more controversies. The article
reported to allege Invicta for the Maathainpur disaster due to there faulty supplies.

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X
Aggrieved by reports and public pressure to provide justice Outlawed Electric Limited filed a case
against Invicta Energy Private Limited in the District Court of Maathainpur and Invicta limited
filled a case for alleged defamation by Ms Chohan.

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ISSUES

I.
II.

OUTLAWED CAN SUE INVICTA UNDER BOTH LAW OF TORTS AND CNFES AGREEMENT
INVICTA WAS NEGLIGENT IN THE SALE OF FUEL RODS TO OUTLAWED

A. INVICTA OWED A DUTY OF CARE TO OUTLAWED

B. THE DUTY OF CARE WAS BREACHED BY THE SALE OF THE FAULTY, NEGLIGENT MATERIALS
C. THE DAMAGES SUFFERED BY OUTLAWED ARE FORESEEABLE AND JUSTIFIED
III.

THERE WAS NO DEFAMATION OF INVICTA BY MS CHOHAN

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SUMMARY OF PLEADINGS
[A] OUTLAWED PRIVATE LTD HAS A RIGHT TO SUE INVICTA UNDER BOTH
TORTS AND EXISTING CNFES AGREEMENT.
It is established under the principal of Product Liability that Outlawed private limit is entitled to
sue Invicta under both torts and existing CNFES agreement. The landmark judgment of
Henderson v Merrett Syndicates Ltd established the possibility of concurrent liability under both
torts and contracts. Under the principle of Product liability and The sale of goods act Invicta
private ltd are liable to pay damages to Outlawed under both negligence and breach of contract.
[B] INVICTA PRIVATE LTD. HAS NOT CONFERRED WITH THE REQUIRED DUTY
OF CARE AS DEFINED IN THE TORT OF NEGLIGENCE.
[B].1.THERE WAS REASONABLE PROXIMITY BETWEEN THE SUPPLIER AND THE
PLAINTIFF.
It is established that the relationship between Invicta private Ltd. and Outlawed falls under the
ambit of the term neighbor as defined by Lord Atkin in Donoghue v. Stevenson (1932) AC 562,
580 provides an adequate basis on which to resolve duty of care questions" wherein he has stated
Neighbors are anyone who are directly affected by any act or omission of a person. As the
company clearly falls under the ambit of the term neighbour as defined above, Invicta should be
held responsible for the losses suffered by Ms A due to their breach of duty of care. It is
reasonable to expect Invicta to have had in contemplation the harm that a potentially dangerous
item might cause to any consumer.
[B].2 THE EXPECTED STANDARD OF CARE WAS JUST AND REASONABLE.
Sending faulty and negligent fuel rods for a process that involves very high amounts of risk and
danger to human life and property which clearly states that Invicta couldnt come up with
expected standard of duty of care as required. In the present case Invicta has caused very large
amounts of physical damage to the plaintiff. This is a case of absolute negligence on the part of
Invicta and are supposed to be held liable under the tort of negligence.
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[C] THE DAMAGES CLAIMED BY OUTLAWED ARE REASONABLY FORESEEABLE
AND NOT REMOTE.
Using the landmark judgment laid down in the Wagon Mound Case-2, the counsel humbly
contends that the damages claimed by Outlawed Energy Private Ltd. are reasonably foreseeable
and not too remote. In the instant case, it is reasonable to believe that Invicta were aware that
selling highly faulty and dangerous nuclear fuel rods would cause large amounts of damage to the
consumer. It is immaterial to contemplate whether the full extent of the were foreseeable by the
defendant. Sticking to the guiding principle laid down by Lord Reid in Hedley Byrne & Co Ltd v
Heller & Partners Ltd (1964), as long as Invicta could foresee even a minor damage from their
negligent act, they should be held liable for all the concurrent damages which were a consequence
of their negligence.
[D] THERE WAS NO DEFAMATION OF INVICTA PRIVATE LTD. BY Ms CHOHAN
It is clearly evident from the statement of Ms Chohan that the statement was made in faith of
public good and wasnt intended to defame Invicta Private Ltd. As established on Hunt v. Star
Newspaper Co. Ltd the statement made by Ms. Chohan clearly falls under the ambit of a comment
and not a fact which was made in public good. Statement made by Ms. Chohan was just to express
solidarity with the victims of accident on amounts of large pressure from public groups.
IN ARGUENDO- THE SELLER OF THE DEFECTIVE PRODUCT SHOULD BE HELD
LIABLE UNDER THE TORT OF ABSOLUTE LIABILITY.
The principle of absolute liability was established by the Supreme court of India in M.C. Mehta v.
Union of India . The principle laid down the guidelines for a case to fall under the ambit of
absolute liability i.e There should be a dangerous thing, the dangerous thing should escape and it
should cause damage to the claimant. In the instant case the nuclear fuel can be classified as the
dangerous thing. The fact that the accident was caused due to faulty nuclear fuel and the claimant
suffered pecuniary damages. In light of the above mentioned arguments, the defendant should be
held liable under absolute liability.

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PLEADINGS & AUTHORITIES

I. INVICTA

CAN BE SUED BOTH UNDER TORTS AND EXISTING CNFES AGREEMENT

BY OUTLAWED.

1. Plaintiff submits that Invicta can be sued under both law of

torts and breach of contract and is liable to pay damages for both under the principle of
product liability. The negligient act of Invicta has made them strictly liable.
.
2. The landmark case of Henderson v. Merret Syndicates1
established the principle of concurrent liabilities under both torts and breach of contract. In
the present case, the defendant has clearly breached the contract under the liability cause
7.2 which states that the maximum liability of the Supplier to the Purchaser arising out of
the breach or non-performance of the Agreement shall be INR 2 billion.2The defendants
has clearly breached the contract by not supplying the plaintiff with the best quality
material as stated under clause 5.4 and are liable to pay damages worth INR 2 Billion as
stated.
3. Plaintiff also submits that defendants have a no fault liability
under CISG. The acts committed by defendants are clearly a violation of Section 79.3 and
thus they are strictly liable. The defendants may claim that they are not strictly liable as
they didnt bring any potentially dangerous substance, however, under the product
liability ,seller can be held strictly liable if the claimant suffered damages due to faulty
supplies.

4. The plaintiff also wants to bring into notice of court that

essentially having its origin in common law no-fault liability is considered to be a vital part
of compensation systems concerning sales contracts and is designed to overcome alleged
deficiencies of fault based compensation systems prevalent in civil law systems. Thus in

1 [1994] UKHL 5
2 Annexure I
3 Convention on Contracts for the International Sale of Goods [1980]
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the light of above facts, the plaintiff humbly pleads the honourable court to award damages
to the plaintiff under principle of strict liability.

II.

INVICTA WAS NEGLIGENT IN ITS SALE OF THE FUEL RODS TO OUTLAWED

ENERGY.

5.

Plaintiff submits that Invicta has committed the tort of negligence in its sale of the faulty and
negligent fuel rods to the plaintiff, and is therefore liable to pay damages for injuries suffered by
Outlawed.

6.

Negligence is the breach of a duty of care, caused by omission to do something which a

reasonable man would do, or caused by an act which a reasonable man would not do. 4 There are
therefore, three essential components of the tort of negligence, i.e. a duty of care, breach of that
duty, and injury that is caused by that breach.5

7.

Plaintiff submits that in this case, Invicta owed a duty of care to Ms. A [A], and this duty was
breached by the sale of fuel rods with defects. [B]. Finally, this breach of duty resulted in injury,
for which Invicta is liable [C].

B.

INVICTA

OWED A

DUTY

OF CARE TO

PROXIMITY BETWEEN THEM AS

8.

OUTLAWED

BECAUSE THERE WAS A SUFFICIENT

SUPPLIER AND CONSUMER

It is submitted that Invicta owed a duty of care to Outlawed as the only supplier of fuel rods.. The
legal principle is that one must take reasonable care to avoid acts or omissions which one can
reasonably foresee causing an injury to ones neighbours.

4 Poonam Varma v. Ashwin Patel (1996) 4 SCC 332

5 (paras 10 and 11) Jacob Mathew v. State of Punjab (2005) 6 SCC 1
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9.

The definition of neighbour was laid down by the House of Lords in the case of Donoghue v.
Stevenson6 as:
persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts
or omissions which are called in question
This definition has been followed in a number of English cases7 .

10.

In the present case, Invicta sold the fuel and fuel rods directly to the final consumer, without any
intermediate changes to the fuel rods itself. Therefore, Invicta should reasonably have
contemplated that its consumers, including Outlawed are directly affected by the sale of a faulty
fuel material and fuel rods.

11.

In conclusion, Plaintiff submits before the Honble Court that Invicta owed a duty of care to
Outlawed in relation to the sale of the fuel material and fuel rods.

C.

INVICTA BREACHED THE DUTY OF CARE OWED TO OUTLAWED

12.

Plaintiff submits that by selling the faulty fuel materials which caused such high amounts of
damage, Invicta has breached the duty of care that it owed to Outlawed. The Defendant may argue
that Outlawed was also negligent by not inspecting the fuel materials at the time of delivery,
however, the Plaintiff submits that according to Clause 6.1 in Annexure I , plaintiff was not
bound to inspect the materials. The plaintiff also submits that in accordance with clause 6.1 and
6.2 of Annexure I the inspection was to be carried out at the suppliers premises and not the
purchasers premises thus it clearly establishes that Invicta was negligent in discharge of its duty
of care towards Outlawed.

13.

In Anns v. London Borough Merton, the court held that in determining whether or not a duty of
care of particular nature is owed by the defendant, it is material to take into consideration whether
6 (1932) AC 567 (HL)
7 Ibid, Hedley Byrne and Co. Ltd. v. Haller Partners Ltd (1964) AC 465: (1963) WLR 101, Home Office V Dorset
Yacht Co. Ltd (1970) AC 1004: (1970) 2 WLR 1140

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it is just and reasonable that it should be so. 8 Further, in Donaghue, the court also held that it was
necessary that the standard of care be adapted in light of changing social conditions.9
14.

In addition to the above, a higher duty of care is expected when the services or goods in question
are highly dangerous towards human life and property which was there in the sale of nuclear
fuels.10

15.

In the present case, the Plaintiff also says that the highly faulty negligent fuel rods were the real
cause of the disaster as the fuel was not burning at its correct boiling and melting points. Due to
such high degree of negligence on the part of defendant, 3 out of 4 of the reactors of my client
precipitated which resulted in large amount of damages.

16.

Plaintiff submits that, the defendant may claim that it was the sole supplier of 34 out of 40 nuclear
power plants all around the world but there are no evidences claiming that all the other nuclear
power plants uses the same fuel at same concentration as used by my client.

17.

It is submitted that due to the condensation on fuel material , the reactors went unstable and
caused such a huge accident. The prima facie facts says that the condensation occurred on fuel
materials due to the poor, faulty and negligient kind of fuel supplied by Invicta to my client. On
further inspection it was also found that the fuel rods were being used at 55% power capacity and
not at 95%which was a general practice in Rajhaland. This ,However, operating the reactor at 55%
power can only reduce the amount of damage but cannot eliminate it entirely. The plaintiff pleads
that such poor quality of fuel material caused the large amount of substantial damages to my
client.

18.

In light of the above, Plaintiff submits to the Honble Court that Invicta has not discharged its duty
of care and thus liable to pay all the financial losses occurred by plaintiff on account of their gross
negligence.

8 Anns v. London Borough Merton (1977) 2 All ER 492.

9 Ibid.
10 [ ]
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D.

INVICTA IS LIABLE FOR ALL DAMAGES CAUSED TO OUTLAWED BECAUSE OF

REASONABLE AND

FORESEEABLE CONSEQUENCES OF ITS ACTIONS

19.

The plaintiff pleads in front of this honourable court that Invicta is liable to pay damages worth
$13 billion as calculated by experts around the world in light of their negligient act.

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III. THERE WAS NO DEFAMATION OF INVICTA BY MS CHOHAN

20.

In the present case, the plaintiff pleads that there was no defamation by Ms Chohan as
alleged by Invicta. The statement was purely made with innocent conscience and wasnt
intended with malice towards Invicta. The statement was purely a comment rather being a
fact.

21.

Outlawed was bound to make such a statement in light of the incidents that it faced after
the deadly disaster which created a state of panic among people. The plaintiff submits that
statement was purely made to condole the feeling of sufferers rather defaming the
defendant.

22.

In similar case of M/S. Crop Care Federation Of India vs Rajasthan Patrika (Pvt) Ltd.11
India Supreme court dismissed a similar appeal by defendant against plaintiff for alleged
defamation regarding use of pesticides.

23.

The plaintiff would also submit that the statement to a reasonable man of prudence would
never sound defamatory or derogatory. The statement delivered by Ms Chohan was rather
a statement of criticism and opinion. It would in no way cause any decrease in reputation
of the defendant.

24.

The plaintiff will also bring into notice of the honourable court that the statement was
made in the matter of public interest. In London Artists v. Litter12 , Lord Denning clarified
that matter of public interest must be interpreted in wider senses. The spokesperson of
Outlawed made this statement to clarify the given facts and to make public aware of actual
happening.

25.

In the lights of above facts, the plaintiff humbly requests the honourable court to quash any
proceedings of defamation against my client.

11 CS (SO) 531/2005
12 [1969] 2 QBD 375
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IV.

INARGUENDO THE

SELLER OF THE DEFECTIVE PRODUCT SHOULD BE HELD LIABLE UNDER

THE TORT OF ABSOLUTE LIABILITY

26.

The plaintiff pleads in front of the honourable court to hold the defendant liable under tort
of absolute liability. In the landmark judgment of Union Carbide India Limited vs Union
Of India And Ors on 4 April, 198613 , Justice Bhagwati laid down the principle of absolute
liability. The plaintiff pleads that this case is very similar to the case said above and
defendant should be held liable under the tort of absolute liability. The accident was
caused due to the sole negligence of Invicta. There faulty supplies resulted in humungous
loss to my client. In another similar case of MC Mehta V. Union of India14,the honourable
court directed to pay damages to the victims.

27.

In light of above cases and facts, the plaintiff humbly requests the honourable court to
convict defendants under rule of absolute liability and pay exemplary damages to
Outlawed Energy Private Ltd.

13 1986 AIR 1097, 1986 SCR (2) 162

14 1987 SCR (1) 819
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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
Plaintiff humbly prays before this Honble Court to kindly adjudge, hold and declare:
A. INVICTA IS BOUND

TO PAY DAMAGES UNDER BOTH BREACH OF CONTRACT AND STRICT

LIABILITY UNDER PRINCIPLE OF PRODUCT LIABILITY.

B.

INVICTA IS WAS NEGLIGENT IN ITS SALE OF FUEL MATERIAL TO THE

PLAINTIFF.

C.

THE DAMAGES CLAIMED BY THE PETITIONER ARE NOT TOO REMOTE AND ARE
REASONABLE FORESEEABLE.

D. THE STATEMENT MADE BY MS. CHOHAN WAS NOT DEFAMATORY AND DEFAMATION
PROCEEDING TO BE QUASHED .

E. IN THE ALTERNATIVE, THE DEFENDANT IS ABSOLUTELY LIABLE FOR THE

CONSEQUENCES OF THE SALE OF A DEFECTIVE PRODUCT.

F.

AND PASS ANY OTHER APPROPRIATE ORDER AS THE COURT MAY DEEM FIT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

And for this act of Kindness, the Plaintiff as in duty bound, shall forever pray.

Respectfully Submitted
Sd/Counsels for the Plaintiff
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