119A

TEAM CODE: TN - 119
1ST SYMBIOSIS LAW SCHOOL, HYDERABAD

NATIONAL MOOT COURT COMPETITION, 2016
SPECIAL LEAVE PETITION NO. ______________/ 2016
BEFORE THE HONBLE SUPREME COURT OF INDUX
In the proceedings between
BULBTECH AGGRIEVED PARTIES GROUP (BAPG)

..APPELLANT
versus
NOTSOGENERAL ELECTRONICS (NGE) & UNION OF INDUX
.......RESPONDENTS
MOST RESPECTFULLY SUBMITTED
COUNSELS APPEARING ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
11
SUMMARY OF ARGUMENTS
12
ARGUMENTS ADVANCED
14
ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

CONTRACT?
14
ISSUE 1.1 THAT THE SHRINK WRAP CONTRACT IS A FORM OF STANDARD

CONTRACT
14
ISSUE 1.2 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS
WERE NOT BASED ON ANY FREE CONSENT
15
ISSUE 1.3 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS
WERE UNCONSCIONABLE AND OPPOSED TO PUBLIC POLICY
17
ISSUE 2. WHETHER NGE HAS ACTED CONTRARY TO THE LAWS OF THE

COUNTRY?
21
ISSUE 2.1 THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT
21
ISSUE 2.2 THAT BULBTECH IS IN CONTRAVENTION OF THE COUNTRY'S

DATA PRIVACY LAWS
22
ISSUE 2.3 THAT THE INDEMNITY CLAUSE IS INVALID

ISSUE 3. WHETHER BULBTECH IS A PATENTABLE INVENTION?
ISSUE 3.1 THAT THE INVENTION IS NOT NOVEL
24
25
25
ISSUE 3.2 THAT THE INVENTION IS OBVIOUS AND DOES NOT INVOLVE AN
INVENTIVE STEP
26
ISSUE 4. WHETHER THE GOVERNMENT OF INDUX HAD AN OBLIGATION TO

CONDUCT A DUE DILIGENCE ON BULBTECH
MEMORIAL ON BEHALF OF THE APPELLANT Page | 2
29
ISSUE 4.1 THAT THE GOVERNMENT IS NOT EXEMPT FROM THE LIABILITY
OF AN INTERMEDIARY.
29
ISSUE 4.2 THAT THE DOCTRINE OF LEGITIMATE EXPECTATION APPLIES TO

THE GOVERNMENT OF INDUX.
PRAYER
29
32
LIST OF ABBREVIATIONS
Abbreviation
Definition
&
And
Paragraph
A.I.R.
All India Reporter
Anr.
Another
BAP
Barium Arsenide Phosphide
EMI
Equated Monthly Installments
H.C.
High Court
Honble
Honorable
i.e.
that is
Ibid
Ibidem
ICA
Indian Contract Act
MOU
Memorandum of Understanding
NGE
Notsogeneral Electronics
No.
Number
Ors.
Others
RSPDI
Reasonable Security Practices and Procedures and

Sensitive Personal Data or Information
S.
Section
SC
Supreme Court of India
SCC
Supreme Court Cases
SCR
Supreme Court Reporter
SFC
Standard Form Contract
v.
Versus
Vol.
Volume
INDEX OF AUTHORITIES
CASES CITED
S.No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
S.No.
21.
22.
23.
24.
25.
26.
Name of Case
Alexander v. Railway Executive
Attorney General of Hong Kong v. Ng Yuen Shiu
Central Inland Water Transport Corporation
Limited and Anr v. Braja Nath Ganguly and Anr
City Municipal Council v. C. Ramu
Council of Civil Services Union v. Minister of
Civil Services
Dularia Devi v. Janardan Singh
Fanning v. Fritz's Pontiac-Cadillac-Buick
Farbwerke Hoechst & B. Corporation v. Unichem
Citation
[1951] 2 KB 882
[1983] 2 AC 629
Page No.
19
30
[1986] 2 SCR 278
17
ILR 1989 Kant 2138
20
(1984) 3 All ER 934 (HL)
30
AIR 1990 SC 1173

472 S.E.2d 242 (1996)
17
17
Laboratories
Foster v. Mackinnon
Gadd and Mason v. Manchester Corporation
Gobind v. Madhya Pradesh
Graham v. John Deere Co.
Kedar Nath Motani and Ors v. Prahlad Rai and
AIR 1969 Bom 255
27
(1869) LR 4 CP 704
(1892) 9 RPC 516
AIR 1975 SC 1378
383 US 1 (1966)
16
27
21
25
Ors
Kharak Singh v. State of U.P.
Lallubhai Chakubhai Jariwala v. Chimanlal
[1960] 1 SCR 861
19
AIR 1963 SC 1293
22
Chunilal
Leapfrog Enterprises Inc. v. Fisher Price Inc
Lily White v. R Munuswami
Lloyds Bank Ltd. v. Bundy
M Siddalingappa v. T Nataraj
M/S Bishwanath Prasad Radhey Shyam v.
AIR 1936 Bom 99
25
485 (Fed Cir 2007)

AIR 1966 Mad 13
[1975] QB 326
AIR 1970 Kant 154
27
18
17
20
AIR 1982 SC 1444
27
Citation
Patent Appliation No.
Page No.
Hindustan Metal Industries

Name of Case
M/s. Crompton Greaves Ltd. Mumbai v. M/s.
Bharat Heavy Electricals Ltd. Hyderabad
Madras City Wine Merchants Association v. State
of Tamil Nadu
Mariappan v. AR Safiullah & Ors
Molnlycke v. Procter & Gamble
Monsanto v. Corommandal
Muthiah v.CIT
221/BOM/96 (184657)
26
(1994) 5 SCC 509
30
2008 (38) PCT 341 (Mad.) (DB)

(1994) RPC 49, C.A
AIR 1986 SC 712
AIR 1956 SC 269
25
27
26
22
National Building Construction Co. v. S
27.
Raghunathan
Nichol v. Godts
Ningawwa v. Byrappa
Novartis AG v. Union of India
Poosathurai v. Kannappa Chettiar
ProCD, Inc. v. Zeidenberg
PTR Exports v. Union of India
Punjab Communications Ltd. v. Union of India
R. Rajagopal v. State of T.N.
Rado v. John Tye & Son Ltd.
Ram Jethmalani v. Union of India
Ryko Manufacturing Co. v. NuStarInc
Saunders v. Anglia Building Society
Sheopal and Ors v. Smt. Lakhpata
Smith v. Kay
Steven v. Fidelity & Casualty co.
Surendra Lal Mahendra v. Jain Glazers
Suresh Mahajan v. Myveneers
Union of India v. Hindustan Development
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
(1998) 7 SCC 592
31
(1854) 10 Exch. 191

[1968] 2 SCR 797
2013 (6) SCC 1
(1919) ILR 43 Mad 546 (PC)
13 Berkeley Tech L.J. 35 (1998)
(1996) 5 SC 268
(1999) 4 SCC 727
(1994) 6 SCC 632
(1967) RPC 29
(2011) 8 SCC 1
US F.2 714 1991
[1970] UKHL 5
1979 (5) ALR 487
(1859) 7 HLC 750
58 Cal. 2d 862 n.10 (1962)
(1979) 11 SCC 511
ILR 1990 Kant 2910
19
16
25
18
15
31
31
22
28
22
27
16
16
18
14
26
20
(1993) 3 SCC 499
30
AIR 2005 Delhi 424
18
(1993) 1 SCC 154

Citation
(1998) 8 SCC 296
JT 2002 (10) SC 214
30
Page No.
21
21
Corporation
Usha International Ltd. v. United India Insurance
46.
Co. Ltd.
UT Chandigarh v. Dilbagh Singh
Name of Case
X v. Hospital Z
X v. Hospital Z
47.
S.No.
48.
49.
STATUTES REFERRED
S.No.
1.
2.
3.
4.
5.
6.
Name
The Constitution of India, 1950
The Indian Contract Act, 1872
The Information Technology (Intermediaries Guidelines) Rules, 2011
The Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules, 2011
The Information Technology Act, 2000
The Patents Act, 1970
BOOKS REFERRED
S.No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Name
Ananth Padmanabhan, Intellectual Property Rights (1st Edition, 2012)
Anirudh Rastogi, Cyber Law (2nd Edition, 2009)
Aparna Viswanathan, Cyber Law (1st Edition, 2012)
Avtar Singh, Contract and Specific Relief (11th Edition, 2013)
C.K Takwani, Lectures On Administrative Law (5th Edition, 2012)
Elizabeth Verkey, Intellectual Property (1st Edition, 2015)
I.P. Massey, Administrative Law (8th Edition, 2012)
Justice Yatindra Singh, Cyber Laws (4th Edition, 2010)
Larry A DiMatteo, Law of International Contracting (2nd Edition, 2009)
Sir Dinshaw Fardunji Mulla, The Indian Contract Act (15th Edition, 2016)
STATEMENT OF JURISDICTION
The Honourable Supreme Court of Indux is vested with the jurisdiction to hear the present
matter by virtue of Article 136 of the Constitution of Indux.
The provision under which the Appellants have approached this Hon'ble Court and to which
the Respondent humbly submits is read herein under:
"ART. 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 India
(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"
STATEMENT OF FACTS
The Parties
NGE (NotSoGeneral Electronics) with its registered office in Germnazi ventured in the State
of Indux with its laws in pari-materia to Indias. Mr. Ashok Ganguly, along with the
aggrieved customers and Monolever Limited (ML) have come together as BulbTech
Aggrieved Parties Group (BAPG). NGEs main focus was on creating expensive electronic
technology largely focused on reduction of customer expenditure on the same in the longterm.
The Technology
NGE created an energy efficient LED Bulb Technology known as BulbTech that could last
for 100 years without fusing. Because NGE had used Barium Arsenide Phosphide in a novel
way by using it in conjunction with LED devices along with heating it whilst adding a certain
impurity of nitrogen, it finally got patent production in the bulb in Indux. However, to
achieve the optimum longevity, NGE had also used LED driver devices manufactured by
Monolever Limited (ML) of Indux.
The Impugned Contract and BulbTechs Operation
BulbTech was sold on the basis of Easy Monthly Instalments (EMIs) to customers.
Customers were required to provide their credit card details to pay the first instalment, and
this continued for 15 months. The bulb was packaged along with a Shrink-Wrap Contract, the
terms of which every customers was bound with the moment they tore open the wrapper of
the bulb box. On failure of payment of any instalment, the circuit of the bulb was cut off from
the main server in Germnazi and the bulb stopped functioning. The contract included terms
that made the customers adhere to a particular choice of data privacy standards in Germnazi
(and not IS/ISO/IEC 27001 standards) and an indemnity clause that contracted NGE out of
any liability for loss of data provided.
The MOU With the Government of Indux
The Government of Indux approached NGE to sign an MOU with them in order to provide
subsidies under the Make in Indux initiative, and premises to manufacture BulbTech and
facilitate the physical sale of the same, respectively. This was done only on the basis of the
demand figures for total energy consumption in Indux and projections of reductions of energy
consumption in relation to CFLs and ordinary bulbs. There was also unconfirmed news that
NGE was exerting its influence on the Government of Indux to procure government bids.
The Factum of Dispute

On account of the failure to pay instalments, a number of customers faced disconnection of
the bulb. Many customers also received promotional/solicitation calls from various
international commercial banks in Germnazi not approved by the Reserve Bank of Indux for
solicitation of investments. It was only on further enquiry that Mr. Ganguly and other
aggrieved customers realized that the shrink wrap contract contained terms which allowed
NGE to waive away the customers privacy rights.
The History of Proceedings
Following Mr. Gangulys writ petition, which was joined by Monolever Limited and other
aggrieved customers together as BAPG, in the High Court of Channel against the
Government of Indux and NGE, BAPGs pleas having been rejected by the High Court,
BAPG chose to invoke the Special Leave Jurisdiction of the Honble Supreme Court of
Indux.
STATEMENT OF ISSUES

CONTRACT?
1.1 THAT THE SHRINK WRAP CONTRACT IS A FORM OF STANDARD
CONTRACT.
1.2 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE
NOT BASED ON ANY FREE CONSENT.
1.3 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE
UNCONSCIONABLE AND OPPOSED TO PUBLIC POLICY.
COUNTRY?
2.1.
2.2.
THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT.

THAT BULBTECH IS IN CONTRAVENTION OF THE COUNTRYS DATA
PRIVACY LAWS.
2.3.
THAT THE INDEMNITY CLAUSE IS INVALID.
3.1. THAT THE INVENTION IS NOT NOVEL.
3.2. THAT THE INVENTION IS OBVIOUS AND DOES NOT INVOLVE AN
INVENTIVE STEP.
CONDUCT A DUE DILIGENCE ON BULBTECH?
4.1. THAT THE GOVERNMENT IS NOT EXEMPT FROM THE LIABILITY OF AN
INTERMEDIARY.
4.2. THAT THE DOCTRINE OF LEGITIMATE EXPECTATION APPLIES TO THE
GOVERNMENT OF INDUX.
SUMMARY OF ARGUMENTS

CONTRACT?
NGEs indemnity clause is unconscionable and opposed to public policy as well, and thus
violates Section 16 and Section 23 of the Indian Contract Act, 1872. NGE having the higher
bargaining power touched the doctrine of fundamental breach by unfairly contracting itself
out of any liability for a considered purpose of the contract. The plea of non est factum is
available to plead to BAPG because the difference between the transaction assented to and
the transaction intended is "radical", "essential", "fundamental", or "very substantial.

COUNTRY?
NGE has acted in contravention of the laws of Indux by collecting and then selling the
sensitive data of the customers. It has done so by violating the fundamental right to privacy.
NGE has violated the Data Privacy laws by disregarding and acting contrary to Section 43A
of the IT Act, 2000, and Rules 4, 5 (1), 5 (5), 6, and 8 of the IT (Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
For a patent to be granted, certain essentials need to be proved. It is humbly submitted that in
the instant case, firstly, the invention is not novel since it was already in public domain and
was being used prior to the application for the patent. Secondly, the invention is obvious and
does not involve an inventive step since the process undertaken is fairly ordinary and
routinely followed in the field of Integrated Circuits.
The Government of Indux did not observe due diligence while discharging its duties as laid
down in the Information Technology (Intermediaries Guidelines) Rules, 2011. Further,
according to the Doctrine of Legitimate Expectation, the aggrieved customers comprised by
BAPG had a legitimate and reasonable expectation of the Government of Indux to act fairly
and to be treated in a way that wouldnt infringe the privacy rights of the citizens and open
them and the country up to grave financial and security risks. In order to prevent this, it was
the Governments duty as a provider of the premises and key facilitator of the sale of
BulbTech to preserve the compelling public interest of the safety of its people in the
immediate by conducting a basic due diligence on the consequences of the inclusion of the
term and breach of contract on the part of the customers.
ARGUMENTS ADVANCED
1. WHETHER
THE
SHRINK-WRAP CONTRACT WAS AN
ENFORCEABLE
CONTRACT?
It is humbly submitted that the shrink-wrap contract that was offered to customers was not a
valid form of contract. A shrink-wrap license is an unsigned licensing agreement, generally
accompanying the sale of computer software which states that acknowledgment on the
client of the terms of the assertion is demonstrated by opening the shrink-wrap bundling or
other bundling of the product, by utilization of the product, or by some other determined
instrument.1
In the current case, regardless of what the terms in the contract entailed and whether or not
the individual consumers were aware of the extent of non-liability of NGE, this issue shall
be pleaded on three grounds: that the shrink-wrap contract is a form of a standard form
contract (1.1); that the agreements between NGE and the customers were not based on free
consent (1.2); and, anyway, the terms of the shrink-wrap contract are unconscionable. (1.3)
1.1. THAT THE SHRINK WRAP CONTRACT IS A FORM OF STANDARD CONTRACT.
1. A Standardized contract form is, prepared by one party, to be signed by the party in a
weaker position, usually a consumer, who has little choice about the terms.2 For a
contract to be treated as a contract of adhesion, it must be presented on a standard form on
a "take it or leave it" basis, and give one party no ability to negotiate because of their
unequal bargaining position.3
2. Shrink-wrap licenses impose specific restrictions on use, reproduction, transfer, and
modification of the software program by consumers in an attempt to prevent unauthorized
1 Sakshi Bhatnagar, E-contracts What are Shrink Wrap, Click Wrap, and Browse-Wrap Agreements?,
IPLEADERS
(last visited Aug. 18, 2016), http://blog.ipleaders.in/e-contracts-shrink-wrap-click-wrap-browsewrap-agreements/
2 BLACKS LAW DICTIONARY 368 (9th ed. 2009)

3 Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862, 882 n.10 (1962).
duplication of the program, and to give the software owner a breach of contract action
should the restrictions be violated.4 These contracts do not provide the customer with an
opportunity to review the contract before making the purchase by opening the packaging
because the contract itself is accepted and seller is deemed to be shielded from liability
owing to the opening of the packaging.5 Shrink-wrap contracts thus, take the form of nonnegotiable and instantaneous contracts. Unless constructive notice can be established, such
agreements are likely to be found unenforceable on grounds of inadequate notice to the
user.6 Thus, though shrink-wrap contracts bear enough similarities to standard form
contracts, they differ only in the time at which the contract is accepted and the former is
thus a form of the latter.
1.2. THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE NOT
BASED ON ANY FREE CONSENT.
1. A contract must be used to imply any term or meaning necessary and proper in carrying
out its intent and spirit. The spirit of the contract stems from the fact that the voluntary
engagement to the convention of contract commits the parties to a common enterprise. If a
term is not within the consensual core of an agreement, it will be susceptible to an attack
upon the ground of unconscionability, the core of which is not an unequal bargaining
position, but the lack of real assent. 7 In order to be enforceable, a contract must fulfill the
criteria as laid down in Section 108 of The Indian Contract Act: one of which is that there
should be free consent between the parties and the agreement should not be founded on
misrepresentation. As per section 139 of ICA, 1872, consent is defined as: two or more
persons are said to consent when they agree upon the same thing in the same sense. If
4 Brian Covotta and Pamela Sergeeff, ProCD, Inc. v. Zeidenberg, 13 Berkeley Tech. L.J. 35 (1998). LEY TECH.
L.J. 35 (1998). Available at: http://scholarship.law.berkeley.edu/btlj/vol13/iss1/3
5 APARNA VISWANATHAN, CYBER LAW: INDIAN & INTERNATIONAL PERSPECTIVES ON KEY TOPICS INCLUDING
DATA SECURITY, E-COMMERCE, CLOUD COMPUTING AND CYBER CRIMES 281 (1st ed. 2012).
6 ANIRUDH RASTOGI, CYBER LAW: LAW OF INFORMATION TECHNOLOGY AND INTERNET 255 (1st ed. 2014).
7 LARRY A. DIMATTEO, LAW OF INTERNATIONAL CONTRACTING 26 (2ND ED 2009).
8 Section 10, The Indian Contract Act, 1872.
9 Section 13, The Indian Contract Act, 1872.
parties to a contract are under a mistake as to a matter of fact essential to the agreement,
there is no meeting of minds and hence the contract is void.
2. In the case of Foster v. Mackinnon,10 the plea of non est factum was evolved by Byles J. to
apply where a party never intended to sign, and therefore in contemplation of law never
did sign, the contract to which is name is appended on the ground that the mind of the
signer did not accompany the signature; in other words, that he never intended to sign, and
therefore in contemplation of law never did sign, the contract to which is name is
appended. In other words, the plea will apply when the transaction, which the document
purports to effect is essentially different in substance or in kind from the transaction
intended.11 Further, in Saunders v Anglia Building Society,12 the scope of this plea was
detailed wherein it was held that the plea was available as long as the person signing the
document had made a fundamental mistake as to the character or effect of the document,
and that the disparity must be "radical", "essential", "fundamental", or "very substantial.
This difference is to be analysed by taking into account the object which the signor
intended to achieve and which the signed document helped achieve. In Ningawwa v.
Byrappa,13 the court has taken the position of giving importance to the distinction between
the effect of being deceived as to the contents and to the character of the document.14
3. The impugned term in the contract is the leak of credit card details as a consequence of
non-payment of any of the instalments of the EMI. It is humbly submitted that the consent
to this term is non est factum as an entirely different transaction was contemplated.
Presuming a large majority of the customers to be aware of the term in the contract dealing
with their credit card details being submitted to NGEs operating centre in Germnazi, the
aggrieved customers who are part of BAPG signed the contract expecting important credit
card details to be kept safe with NGE. The customers would never have assented to terms
that essentially waive away their right to privacy and expose them up to dangerous
financial risk and the country to national security danger. Hence, there was a lack of
10 (1869) LR 4 CP 704.
11 See Sheopal and Ors. v. Smt. Lakhpata, 1979 (5) ALR 487.
12 [1970] UKHL 5.
13 [1968] 2 SCR 797.
14 Ibid, p. 801: the authorities make a clear distinction between fraudulent misrepresentation as to the
character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the
former, it has been held that the transaction is void, while in the case of latter, it is merely voidable."
mutual assent from the customers by lack of disclosure (apparents assent) as to the
character of the document.15 Further, there was no negligence on the part of the customers
as no one could have foreseen NGE disposing off the details of the customers freely. Thus,
this is a case of fraudulent misrepresentation as to the character of the document and not
merely as to its contents or as to its legal effect.16
1.3. THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE
UNCONSCIONABLE AND OPPOSED TO PUBLIC POLICY.
1. The current dispute arose because one party took undue advantage of its economic power
and necessity of the vendor or the borrower which has been termed as pressure resulting
from an inequality of bargaining position.17 The word "unconscionable" is defined, when
used with reference to actions as "showing no regard for conscience; irreconcilable with
what is right or reasonable".18 Unconscionability in standard form contracts usually arises
where there is an "absence of meaningful choice on the part of one party due to one-sided
contract provisions, together with terms which are so oppressive that no reasonable person
would make them and no fair and honest person would accept them." 19 An unconscionable
bargain would, therefore, be one which is irreconcilable with what is right or reasonable.20
2. This principle is that the courts will enforce, when called upon to do so, and strike down
an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract,
entered into between parties who are not equal in bargaining power. For instance, inter
alia, the above principle will apply where the inequality of bargaining power is the result
of the great disparity in the economic strength of the contracting parties, or where a man
has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign
15 Supra note 7, page 27.
16 Dularia Devi v. Janardan Singh, AIR 1990 SC 1173.
17 Lloyds Bank Ltd. v. Bundy, [1975] QB 326.
18 SHORTER OXFORD ENGLISH DICTIONARY 2288 (Lesley Brown ed. 3rd ed. 1993)
19 Fanning v. Fritz's Pontiac-Cadillac-Buick, 472 S.E.2d 242 (1996).
20 Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr., [1986] 2
SCR 278.
on the dotted line in a prescribed or standard form or to accept a set of rules as part of the
contract, however unfair, unreasonable and unconscionable a clause in that contract or
form or rules may be.21
3. Section 16 applies to every case where "influence is acquired and abused, where
confidence is reposed and betrayed".22 The essentials of this section are that there must be
a party in a dominant position (real or apparent authority) and there must be a use of it to
obtain an unfair advantage on the weaker party (unconscionable transaction). 23 Sub-section
(3) of section 16 has been interpreted by the Privy Council in Poosathurai v. Kannappa
Chettiar24 as meaning that both the elements of dominant position and the unconscionable
nature of the contract will have to be established, before the contract can be said to be
brought about by undue influence.25 Section 16 deals with unconscionability which is an
aspect of 'substantive' unfairness but links it up with 'procedural' unfairness of domination
of will.
4. In Lily White v. R Munuswami,26 the firm of launderers contracted themselves out of any
liability for loss by a printed condition that the customer would be entitled to claim only
50 per cent of the market price or value of the article in case of loss. The High Court of
Madras held that such a term was prima facie opposed both to the public policy and to the
fundamental principles of the law of contract which cannot be enforced by a Court. The
Delhi High Court in Usha International Ltd. v. United India Insurance Co. Ltd.27 explained
the rule of contra proferentum that is to be applied to an adhesion contract of insurance.
The court observed that prospective policyholders usually do not read the policy carefully
which is in standard form. This results in the insured being the weaker party in the
insurance contract due to non-reading of the terms in the contract. The insurance
21 Ibid, 92.
22 Smith v. Kay, (1859) 7 HLC 750, p. 779.
23 ANIRUDH WADHWA, MULLA: THE INDIAN CONTRACT ACT BY SIR DINSHAW FARDUNJI MULLA 75 (15TH ED
2016).
24 (1919) ILR 43 Mad 546 (PC).

25 Raghunath Prasad Sahu v. Sarju Prasad Sahu, AIR 1924 PC 60.
26 AIR 1966 Mad 13.
27 AIR 2005 Delhi 424.
corporation becomes the stronger party with greater bargaining power. Therefore, the
contracts are to be understood in their ordinary meaning unless the terms of the contract
are shown to have been negotiated equally between the contracting parties.
5. Further, the doctrine of fundamental breach has been used when a person who, as
promised to perform a duty or make a delivery, fails to perform or delivers something else
altogether. The breach is so fundamental that the contract is deemed to have not been
performed in entirety in most cases and this puts an end to the said contract. 28 The drafting
of SFCs is designed to limit rights rather than to create duties. This is done through the
drafting technique of contracting out, whereby clauses narrowing substantive
responsibility and procedural remedy are incorporated into a contract. 29 In an SFC, it is
likely that the party having a stronger bargaining power may insert such exemption clause
in the contract that his duty to perform the main contractual obligation is thereby negative.
Thus, in Alexander v. Railway Executive,30 a term printed on the ticket exempted the
defendant from liability for loss or mis-delivery of luggage. It was held that non-delivery
of luggage to the plaintiff amounted to fundamental breach of contract for which the
defendant was liable.
6. What one has to see is whether the illegality goes so much to the root of the matter that the
plaintiff cannot bring his action without relying upon the illegal transaction into which he
had entered.31 As was held in the case of Central Inland Water Transport Corporation
Limited and Anr. v. Brojo Nath Ganguly and Anr,32 the validity of a provision or a clause
shall not be challenged unless it was arbitrary and unreasonable under provision of law.
Section 2333 states that the consideration or object of an agreement is lawful unless inter
alia the Court regards it as opposed to public policy. It is not necessary that the contract
28 Nichol v. Godts (1854) 10 Exch. 191.

29 Alfred W. Meyer, Contracts of Adhesion and The Doctrine of Fundamental Breach, VIRGINIA LAW REVIEW,
Vol. 50, No. 7 (Nov., 1964), Pp. 1178-1199.
30 [1951] 2 KB 882
31 Kedar Nath Motani and Ors. v. Prahlad Rai and Ors., [1960] 1 SCR 861.
32 Supra note 20, 96.
should be tainted with illegality. It would be enough if it contains terms which are so
unfair and unreasonable so as to shock the conscience of the court.34
7. A term is unreasonable if it would defeat the very purpose of the contract or if it is
repugnant to the public policy. In M Siddalingappa v. T Nataraj,35 where a condition that
only eight per cent of the cost of garment would be payable in case of loss was held to be
unreasonable. In the instant case, the contract was unreasonable and unfair to the extent of
being unconscionable since it gave arbitrary and absolute power to NGE to disseminate its
data without providing any time to repay back the failed instalment or to have the clause
mentioned in clear, legible language or form. Therefore it was unconscionable and
opposed to public policy for it adversely affected the rights and interests of the employees
and created a sense of insecurity and subservience to unfair and unreasonable terms of
corporation. Hence, it was void according to S.23 of ICA.
33 Section 23, Indian Contract Act, 1872: What consideration and objects are lawful, and what not.The
consideration or object of an agreement is lawful, unless The consideration or object of an agreement is
lawful, unless"it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of
any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court
regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
34 City Municipal Council v. C. Ramu, ILR 1989 Kant 2138 and Suresh Mahajan v. Myveneers, ILR 1990 Kant
2910.
35 AIR 1970 Kant 154.
2. WHETHER NGE HAS ACTED CONTRARY TO THE LAWS OF THE COUNTRY?

It is humbly submitted that Notsogeneral Electronics, in its pursuit of producing, marketing,
and selling BulbTech, has acted contrary to the Data Privacy Laws of the country. It has
made the grave error of collecting and then selling the sensitive personal data and
information of the citizens of the country.
Notsogeneral Electronics is in clear contravention of Section 43A of the Information
Technology Act, 2000. Further, NGE has disregarded and acted contrary to the Information
Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011 namely, Rules 4, 5 (1), 5 (5), 6, and 8.
2.1. THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT
1. It is submitted that the right to privacy is a fundamental right, and the actions of
Notsogeneral Electronics are violative of the citizens rights to protect their personal data.
2. Over the course of time, the Jurisprudence over this matter has been progressing towards
recognising how important the limiting the disclosure of private information is, along with
granting the owners of these rights control over the dissemination of their sensitive data. In
1998, the disclosure of private information was declared to be justified under certain
circumstances36, but that was reviewed in 2002 and the judgment overturned 37
demonstrating the shift in the Judiciarys approach.
3. The right to privacy has been implied in Article 19 and Article 21 of the Constitution. In
Gobind v. Madhya Pradesh,38 Justice Mathew acknowledged that the right to privacy
flows from Article 19(1)(a), (d) 39 and Article 21.40 While holding that the right to privacy,
though a fundamental right, was not absolute, he asserted that a restriction on that
fundamental right had to be in the face of compelling public interest.The concept of
36 X v. Hospital Z, (1998) 8 SCC 296.
37 JT 2002 (10) SC 214.
38 AIR 1975 SC 1378.
39 Article 19(1)(a), The Constitution of India: (1) All citizens shall have the right (a) to
freedom of speech and expression; (d) to move freely throughout the territory of India;
liberty in Article 21 was comprehensive enough to include right to privacy and that a
persons house where he lives with his family in his castle and that nothing is more
deleterious mans physical happiness and health than a calculated interference with his
privacy.41
4. In R. Rajagopal v. State of T.N.,42 the court held that a citizen has the right to safeguard the
privacy of his own, his family, marriage, motherhood, child- bearing and education among
other matters. No one can publish anything concerning the other matters without his
consent. Further, in Ram Jethmalani v. Union of India, 43 the Supreme Court held that the
Right to Privacy is an integral part of Right to Life, a cherished constitutional value and it
is important that human beings be allowed domains of freedom that are free of public
scrutiny unless they act in an unlawful manner.
5. It must be noted that it is not open to a citizen to waive any of the fundamental rights
conferred by Part III of the Constitution.44 These rights are not merely for the benefit of the
individual but as a matter of public policy for the benefit of the general public.
2.2. THAT NGES BULBTECH IS IN VIOLATION OF THE COUNTRYS DATA PRIVACY
LAWS
40 Article 21, The Constitution of India: Protection of life and personal liberty No person
shall be deprived of his life or personal liberty except according to procedure established by
law.
41 Kharak Singh v. State of U.P., AIR 1963 SC 1293.
42 (1994) 6 SCC 632.
43 (2011) 8 SCC 1.
44 Muthiah v.CIT, AIR 1956 SC 269.
1. At the international level, the most recognised definition of the term 'personal data' is the
one laid out in Article 2(a)45 of the European Data Protection Directive. 46 In India, Section
2(o)47 of the Information Technology Act, 2000 defines the term data.
2. The term Sensitive personal data or information with respect to credit card details is
clearly identified in Rule 3(ii) 48 of the Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. In the
instant case, there can be no doubt that the credit card details collected by NGE fall
squarely into the definition of sensitive personal data or information.
3. Under Section 43A49 of the Information Technology Act, 2000, privacy rights have been
given statutory protection along with the private right of compensation. Here, liability
must be imposed on the companies such as NGE that misuse data by acquiring it by less
than conscionable means.
45 Article 2(a), European Data Protection Directive: personal data shall mean any
information relating to an identified or identifiable natural person ('data subject'); an
identifiable person is one who can be identified, directly or indirectly, in particular by
reference to an identification number or to one or more factors specific to his physical,
physiological, mental, economic, cultural or social identity;
46 European Union Directive 95/46/EC, L281, 23/11/1995, p. 3150
47 Section 2(o), Information Technology Act, 2000: "data" means a representation of
information, knowledge, facts, concepts or instructions which are being prepared or have
been prepared in a formalised manner, and is intended to be processed, is being processed
or has been processed in a computer system or computer network, and may be in any form
(including computer printouts magnetic or optical storage media, punched cards, punched
tapes) or stored internally in the memory of the computer;
48 Rule 3(ii), Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules, 2011: Sensitive personal data or information
of a person means such personal information which consists of information relating to; (ii)
financial information such as Bank account or credit card or debit card or other payment
instrument details;
49 Section 43A, Information Technology Act, 2000: Where a body corporate, possessing,
dealing or handling any sensitive personal data or information in a computer resource which
it owns, controls or operates, is negligent in implementing and maintaining reasonable
security practices and procedures and thereby causes wrongful loss or wrongful gain to any
person, such body corporate shall be liable to pay damages by way of compensation to the
person so affected.
4. Furthermore, according to Rule 5 of the IT (RSPDI) Rules, 2011, collection of information

has specific criteria and guidelines:
Clause (1)50 of Rule 5 states - Body corporate or any person on its behalf shall obtain
consent in writing through letter or Fax or email from the provider of the sensitive
personal data or information regarding purpose of usage before collection of such
information. In the instant case, such express consent in writing was not sought by the
collectors, or provided by the customers.
Clause (5)51 of Rule 5 states: The information collected shall be used for the purpose for
which it has been collected. In the present matter, the sale of the information to
commercial entities is not the purpose for which the information was collected, and it
cannot even be interpreted to be so.
5. It is submitted before the Hon'ble Court that in the instant case, NGE violated Rule 652as
well. Rule 6 requires Corporate bodies to seek the consent of the concerned data provider
before disclosing the sensitive data to a third party, unless such disclosure was agreed by
the parties through any lawful contract. - this is not the case in the present matter, since the
shrink-wrap contract is not valid, as argued above.
6. Further, it is submitted that since the personal details of the customers were collected by
the Government shops through which BulbTech was being sold, the Government of Indux
fulfils the definition of the term 'intermediary' as given under S. 2(w)53 of the IT Act.
2.3. THAT THE INDEMNITY CLAUSE IS NOT VALID
50 Clause (1), Rule 5, Information Technology (Reasonable Security Practices and

Procedures and Sensitive Personal Data or Information) Rules, 2011.
51 Clause (5), Rule 5, Information Technology (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules, 2011.
52 Rule 6, Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules, 2011.
53 Section 2(w), Information Technology Act, 2000: "intermediary", with respect to any
particular electronic records, means any person who on behalf of another person receives,
stores or transmits that record or provides any service with respect to that record and
includes telecom service providers, network service providers, internet service providers,
web-hosting service providers, search engines, online payment sites, online-auction sites,
online-market places and cyber cafes;
It must be reiterated that since the particular shrink-wrap entered into by virtue of purchasing
BulbTech is invalid and unconscionable, as submitted and detailed in the first issues
submissions, the indemnity clause so contained is also invalid and thus the argument that the
consumers agreed to having their data disseminated is an illegitimate argument.
3. WHETHER BULBTECH IS A PATENTABLE INVENTION?

It is most humbly submitted before this Honourable Court that BulbTech is not a patentable
invention.
It is an established principle of Patent Law that for a patent to be granted, the invention
should be new or novel, non-obvious and should have some industrial utility. That is to say,
it should be new and useful in nature.54 In essence, for the invention to be patentable
according to the law laid down in the Patents Act 1970, the invention needs to be an actual
invention of the inventor and not a mere replication of a known substance or item. As held
in the landmark case of Novartis AG v. Union of India55, the mere use of a known process
and/or discovery of a new property or use for an existing substance cannot be patented as it
clearly fails the test of novelty and utility, which are important qualifiers of the NUNS test 56,
i.e. the tests of Novelty, Non-obviousness and Utility.
3.1 THAT THE INVENTION IS NOT NOVEL.
1. For the invention to qualify as novel as defined under S.2(l)57 of the Act, it should be new
in every sense of the word. The test of novelty will be defeated if it has been either
published in any form, or used earlier. It cannot have been in public domain or use prior to
the application for a patent as that would nullify the very essential test of novelty, as held
in Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal.58 After all, something that exists
54 M/S Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC
1444.
55 2013 (6) SCC 1.
56 Mariappan v. AR Safiullah & Ors., 2008 (38) PCT 341 (Mad.) (DB).
57 Section 2(l), The Patents Act, 1970: "new invention" means any invention or technology
which has not been anticipated by publication in any document or used in the country or
elsewhere in the world before the date of filing of patent application with complete
specification, i.e., the subject matter has not fallen in public domain or that it does not form
part of the state of the art;
58AIR 1936 Bom 99.
beforehand cannot be repurposed for the simple intent of causing a patent to exist and
therefore induce economic benefit from the same.59
2. In Monsanto v. Corommandal,60 the Honble Supreme Court held that to satisfy the
requirement of being 'publicly known' as used in clauses (e) 61 and (f)62 of Section 64(1), it
is not necessary that it should be widely used to the knowledge of the consumer public.
Thus, it is sufficient if it is known to the persons who are engaged in the pursuit of the
knowledge of the patented product or process either as men of science or men of
commerce or consumers.
3. It is submitted before the Hon'ble Court that the law clearly denies the grant of patent to an
invention that has been used prior to the filing of the patent 63. Further, in the case of an
invention relating to a process, importation of the product made by the process to the
country in question is also considered as public knowledge and use in India, as held in
Surendra Lal Mahendra v. Jain Glazers.64 Thus, the facts of the instant case make it
abundantly clear that Barium Arsenide Phosphide (BAP) has previously been used at some
point of time.65 Thus, for the Respondent to try to patent a publicly known device and
attempt to claim novelty for the same is nothing short of ridiculous.
59 Graham v. John Deere Co., 383 US 1 (1966).

60 AIR 1986 SC 712.
61 Section 64(1)(e), The Patents Act, 1970: that the invention so far as claimed in any claim
of the complete specification is not new, having regard to what was publicly known or publicly
used in India before the priority date of the claim or to what was published in India or
elsewhere in any of the documents referred to in section 13.
62 Section 64(1)(f), The Patents Act, 1970: that the invention so far as claimed in any claim
of the complete specification is obvious or does not involve any inventive step, having regard
to what was publicly known or publicly used in India or what was published in India or
elsewhere before the priority date of the claim.
63 M/s. Crompton Greaves Ltd. Mumbai v. M/s. Bharat Heavy Electricals Ltd. Hyderabad,
Patent Application No.221/BOM/96 (184657).
64 (1979) 11 SCC 511.
65 Moot Problem, 2.
3.2 THAT THE INVENTION IS OBVIOUS AND DOES NOT INVOLVE AN INVENTIVE
STEP.
1. It is submitted before the Hon'ble Court that for an application of patent to be granted, it
first needs to pass the parameters established by Section 2, and then Section 3 of the
Patents Act, 1970. In the instant case, the application for the patent does not sufficiently
indicate a non-obvious nature or an inventive step. On the contrary, the process of heating
the product and then adding Nitrogen as an impurity is a fairly ordinary, and in fact a
routine process used in the doping of semiconductors. As witnessed in the reports 66
attached herewith, the process is nothing new, and there is no step of the process that can
be construed as non-obvious.
2. Further, The test of obviousness of a patent application involves invoking the expertise of
a normally skilled person of that particular field, as held in Farbwerke Hoechst & B.
Corporation v. Unichem Laboratories.67 An obviousness determination is not the result of
a rigid formula disassociated from the consideration of facts of a case. 68 Instead of
deducing what was subjectively obvious to the inventor at the time of invention, the Court
must what would have been objectively obvious to one of ordinary skill in the art at such a
time.69
3. The existence of an inventive step as defined under S.2(1)(ja) 70 of The Patents Act, 1970
has to be decided by an expert of the particular field in question71, who would ordinarily
be expected to know the obviousness of a step or process followed or otherwise included
66 Tadashige Sato & Megumi Imai, Effects of nitrogen on GaAsP light-emitting diodes, 91,
6266 (2002); A. T. Fiory, Methods In Rapid Thermal Annealing.
67 AIR 1969 Bom 255.
68 Leapfrog Enterprises Inc. v. Fisher Price Inc, 485 (Fed Cir 2007).
69 Ryko Manufacturing Co. v. NuStarInc, US F.2d 714 1991.
70 Section 2(1)(ja), The Patents Act, 1970: Inventive Step means a feature of an invention
that involves technical advance as compared to the existing knowledge or having economic
significance or both and that makes the invention not obvious to a person skilled in the art.
71 Molnlycke v. Procter & Gamble, (1994) RPC 49, C.A.
in the patenting process as one or all of the steps involved, including but not limited to the
actual end product of the manufacturing process.72
4. The common legal principle of the necessity of a substantial improvement or deviation in
an established process to identify as an invention rather than a mere improvement of state
of affairs was established in a landmark British judgment,73 which was further confirmed
by the Supreme Court in Bishwanath Prasad Radhey Shyam v. Hindustan Metal
Industries.74 Since the process as described by the Respondents already exists, it is
reasonable to presume that any normally skilled person 75 from the field of Integrated
Circuits would clearly find the inventive step to be lacking as it is obvious to anybody
familiar with the issue. Hence it is the humble submission of the Appellants that the
invention claimed by the Respondent lacks an inventive step.
It is thus clear that the invention, i.e. BulbTech fails to clear the tests that qualify an
invention for patent, namely Novelty and Inventive Step. It is therefore the Appellants
humble submission that the Respondents invention be declared as not patentable.
72 Supra, note 58.

73 Gadd and Mason v. Manchester Corporation, (1892) 9 RPC 516.
74 Supra, note 54.
75 Rado v. John Tye & Son Ltd., (1967) RPC 29.
4. WHETHER THE GOVERNMENT OF INDUX HAD AN OBLIGATION TO

4.1 THAT THE GOVERNMENT IS NOT EXEMPT FROM THE LIABILITY OF AN
INTERMEDIARY.
1. Under S. 79(1)76 of the IT Act, an intermediary cannot be held liable if it fulfils all the
conditions laid down in S. 79(2)77. It is humbly submitted that in the instant case, it is clear
from Rule 3(3)78 of the Information Technology (Intermediaries Guidelines) Rules, 2011
that the Government of Indux did not observe due diligence while discharging its duties.
2. It is further submitted that since the Government of Indux was supposed to observe due
diligence while discharging its duties, and because it failed to do so, it is not exempt from
the liability of an intermediary according to S. 79(2)(c).79
4.2 THAT THE DOCTRINE OF LEGITIMATE EXPECTATION APPLIES TO THE
GOVERNMENT OF INDUX.
1. It is most respectfully submitted that the Government of Indux was instrumental in
promoting and selling BulbTech to the citizens of Indux and, therefore, it was expected to
have done a diligence on BulbTech. In the instant case, the people of Indux bought
BulbTech bulbs in large quantities and it became quite popular.80 The Ministry of Power
provided subsidies to NGE for manufacturing BulbTech under the Make in Indux
initiative, as well as also selling BulbTech through Government shops and the electricity
76 Section 79(1), Information Technology Act, 2000: Notwithstanding anything contained in
any law for the time being in force but subject to the provisions of sub-sections (2) and (3),
an intermediary shall not be liable for any third party information, data, or communication link
made available or hosted by him.
77 Section 79(2), Information Technology Act, 2000.
78 Rule 3(3), Information Technology (Intermediaries Guidelines) Rules, 2011: The intermediary shall not
knowingly host or publish any information or shall not initiate the transmission, select the receiver of
transmission, and select or modify the information contained in the transmission as specified in sub-rule (2).
79 Section 79(2)(c), Information Technology Act, 2000: The provisions of sub-section (1) shall apply if- (c) the
intermediary observes due diligence while discharging his duties under this Act and also observes such other
guidelines as the Central Government may prescribe in this behalf.
80 Moot Proposition, 5.
department.81 The Ministry of Power is a department of the Government funded, operated

and headed publicly, and hence would be considered a part of the Government.
2. In essence, the doctrine of legitimate expectations imposes a duty to act fairly.82 A person
may have a legitimate expectation of being treated in a certain way by an administrative
authority even though he has no legal right in private law to receive such treatment. 83 In
Council of Civil Services Union v. Minister of Civil Services 84 a case of legitimate
expectations may arise from an expression or promise made by the public authority or
from an established past practice which cannot be violated without good reasons and an
expectation which is legitimate85 and reasonable.86 Further, this case is also precedent to
the fact that the reviewability of discretionary power must depend upon the subject-matter
and not upon its source. A doctrine of legitimate expectation has been developed both in
the context of reasonableness and in the context of natural justice. In the leading case of
Ng Yuen Shiu,87 Lord Fraser stated: "When a public authority has promised to follow a
certain procedure, it is in the interest of good administration that it should act fairly and
should implement its promise, so long as the implementation does not interfere with its
statutory duty.
3. Demarcating the scope of the doctrine, the Court in Union of India v. Hindustan
Development Corpn.88 held that though the denial of legitimate expectation is a ground for
challenging an administrative action, but the Court will not interfere unless the denial is
arbitrary, unreasonable, not in the public interest, and inconvenient with the principles of
natural justice or where denial is in violation to a right. This is, essentially a question of
81 Moot Proposition, 4.
82 C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW 283 (5th ed 2012).
83 HALSBURY'S LAWS OF ENGLAND 151,152 (Vol. I (1) 4th ed 2008).
84 (1984) 3 All ER 934 (HL)
85 DR. I.P. MASSEY, ADMINISTRATIVE LAW 344 (8th ed 2012).
86 Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509.
87 Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 AC 629.
88 (1993) 3 SCC 499
fact.89 However, it does not mean that an administrative body cannot change its policy, so,
denial of legitimate expectation can be justified only by showing some overriding public
interest.90 There is no denial of legitimate expectation where it is not based on any law,
custom, or past practice.91 In National Building Construction Co. v. S Raghunathan 92 the
SC held that enforcement of any legitimate expectation required: (i) reliance on
representation; (ii) resultant detriment.
4. In the same way, the MOU between NGE and the Government of Indux was related to the
provision of premises for the sale of BulbTech, thus making the Government of Indux a
key stakeholder even though the contract was between NGE and the customers. The
provision of premises was the key facilitator for the sale of BulbTech and thus the duty
extended not only to monitor the product but the sale as well. In Punjab Communications
Ltd. v. Union of India,93 the SC observed that the substantive aspect of legitimate
expectations related to the representation that a benefit of a substantive nature will be
granted or be continued. It is acknowledged that there is immense public interest in the
sale of BulbTech for the citizens of Indux, but the serious privacy infringement and
national security risk, which is an equally compelling public interest, from the
dissemination of credit card details of private citizens as well as top government officials
cannot be ignored. It was the peoples legitimate expectation that the MOU signed with
NGE would be preceded by the Govt. of Indux protecting the people from their privacy
rights being waived off with the Govt. playing such an active role.
89 UT Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154.

90 PTR Exports v. Union of India, (1996) 5 SC 268.
91 Supra note 88.
92 (1998) 7 SCC 592.
93 (1999) 4 SCC 727.
PRAYER
Wherefore, in the light of the facts stated, issues raised, argument advanced and authorities
cited, it is most humbly prayed by the Appellants in this matter that the Hon'ble Supreme
Court of Indux may be pleased to adjudge and declare:
1. That the impugned term in the contract is null and void.

2. That the BulbTech contract is ultra vires to the data privacy laws of Indux.
3. That BulbTech is not a patentable invention.
4. That due diligence be held to be the government's obligation.
And any other order that this Honble Court may deem fit, in the light of Justice, Equity and
Good Conscience.
For this act of kindness the Appellants shall forever humbly pray.
Respectfully Submitted by,

Counsel for the Appellants

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TEAM CODE: TN - 119

1ST SYMBIOSIS LAW SCHOOL, HYDERABAD

SPECIAL LEAVE PETITION NO. ______________/ 2016

BEFORE THE HONBLE SUPREME COURT OF INDUX

In the proceedings between

BULBTECH AGGRIEVED PARTIES GROUP (BAPG)

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF THE APPELLANT

ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

ISSUE 1.1 THAT THE SHRINK WRAP CONTRACT IS A FORM OF STANDARD

ISSUE 2. WHETHER NGE HAS ACTED CONTRARY TO THE LAWS OF THE

ISSUE 2.1 THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT

ISSUE 2.2 THAT BULBTECH IS IN CONTRAVENTION OF THE COUNTRY'S

ISSUE 2.3 THAT THE INDEMNITY CLAUSE IS INVALID

ISSUE 4. WHETHER THE GOVERNMENT OF INDUX HAD AN OBLIGATION TO

MEMORIAL ON BEHALF OF THE APPELLANT Page | 2

ISSUE 4.2 THAT THE DOCTRINE OF LEGITIMATE EXPECTATION APPLIES TO

MEMORIAL ON BEHALF OF THE APPELLANT Page | 3

All India Reporter

Barium Arsenide Phosphide

Equated Monthly Installments

Indian Contract Act

Reasonable Security Practices and Procedures and

Supreme Court of India

Supreme Court Cases

Supreme Court Reporter

Standard Form Contract

MEMORIAL ON BEHALF OF THE APPELLANT Page | 4

[1986] 2 SCR 278

ILR 1989 Kant 2138

(1984) 3 All ER 934 (HL)

AIR 1990 SC 1173

AIR 1969 Bom 255

[1960] 1 SCR 861

AIR 1963 SC 1293

AIR 1936 Bom 99

485 (Fed Cir 2007)

AIR 1982 SC 1444

Hindustan Metal Industries

(1994) 5 SCC 509

2008 (38) PCT 341 (Mad.) (DB)

MEMORIAL ON BEHALF OF THE APPELLANT Page | 5

National Building Construction Co. v. S

(1998) 7 SCC 592

(1854) 10 Exch. 191

(1993) 3 SCC 499

AIR 2005 Delhi 424

(1993) 1 SCC 154

MEMORIAL ON BEHALF OF THE APPELLANT Page | 7

"ART. 136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

MEMORIAL ON BEHALF OF THE APPELLANT Page | 8

The Impugned Contract and BulbTechs Operation

MEMORIAL ON BEHALF OF THE APPELLANT Page | 9

The Factum of Dispute

The History of Proceedings

MEMORIAL ON BEHALF OF THE APPELLANT Page | 10

MEMORIAL ON BEHALF OF THE APPELLANT Page | 11

ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT.

MEMORIAL ON BEHALF OF THE APPELLANT Page | 12

ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

ISSUE 2. WHETHER NGE HAS ACTED CONTRARY TO THE LAWS OF THE

MEMORIAL ON BEHALF OF THE APPELLANT Page | 13