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BETWEEN

Reid Taylor
………………………..Plaintiff
V.
Star wash pvt.ltd ………………………..Defendant

MEMORIAL FOR THE PLANTIFF

TABLE OF CONTENTS
SL.NO TABLE PG.NO
1 LIST OF ABBREVIATIONS

2 INDEX OF AUTHORITIES

3 STATEMENT OF JURISDICTION

4 STATEMENT OF FACTS

5 STATEMENT OF ISSUES

6 SUMMARY OF ARGUMENTS

7 ARGUMENTS ADVANCED

8 PRAYER

LIST OF ABBREVIATION
AIR…………………………………………….. ALL INDIA REPORTERS
AC………………………………………………. APPEAL CASES
CO………………………………………………. CORPORATION
EDN……………………………………………… EDITION
ER………………………………………………… ENGLISH REPORTERS
HON’BLE………………………………………. HONORABLE
LJ………………………………………………….. LAW JOURNALS
LTD………………………………………………. LIMITED
REP………………………………………………… REPORT
SCC………………………………………………… SUPREME COURT CASES
ANR………………………………………………… ANOTHER
ORS………………………………………………….. OTHERS
V………………………………………………………. VERSUS
PVT………………………………………………….. PRIVATE

INDEX OF AUTHORITIES

A. BOOKS REFERRED :
o CONTRACT AND SPECIFIC RELIEF, AVTAR SINGH, EDN.2016.
 INTERPRETATION OF STATUTES:
THE INDIAN CONTRACT, 1872
CIVIL PROCEDURE CODE
B. CASE LAWS CITED
Issue 1- Whether the present suit before the District Court is maintainable?

Issue 2-Whether Star Wash Pvt. Ltd. owes any contractual obligation towards
Reid Taylor?

Issue 3- Whether the clause limiting the liability of Star Wash Pvt. Ltd. to Rs.
1000 is good in law?
 STATEMENT OF JURISDICTION
The Appellant humbly submits this memorandum for petitions filed before this Hon’ble
District Court under section 96 of The Code of Civil Procedure, 1908. The application
invokes that save whereas 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 decision of such courts.
 STATEMENT OF FACTS

I
Star Wash Pvt. Ltd., a private limited company based in New Delhi, obtained a
franchise from the iconic worldwide car wash company A1A Car Wash Ltd.,
headquartered in Albuquerque, New Mexico, US, to use its business model and brand
name for a period of 10 years in India.

II
Star Wash Pvt. Ltd. entered into an agency agreement with WashNGo Services Pvt.
Ltd., based in Bhopal, whereby WashNGo Services Pvt. Ltd. was appointed as the agent
of Star Wash Pvt. Ltd. for the purpose of setting up and operating the car washing
business of Star Wash Pvt. Ltd. in the state of Madhya Pradesh. WashNGo Services
Pvt. Ltd. opened a facility in Bhopal and Indore each where it used the name of A1A car
wash as the agent of Star Wash Pvt. Ltd.

III
Reid Taylor, a businessman, bought an Aston Martin V12 Vanquish, which he drove to
all his business meetings. He had a very important meeting scheduled for 21st October,
2014, with a Japanese client, Mr. Yamamoto. Reid Taylor hoped to sign a deal with Mr.
Yamamoto’s company which would generate Rs. 25, 00,000 for his business. Before
departing for Jaipur, on 17th October, 2014, he had given instructions to his driver,
Basant, to have his car washed and gleaming in preparation of this meeting.

IV
Reid Taylor was to arrive at Bhopal airport at 12:00 p.m. on 21st October, 2014 and
was to be picked up and taken straight away to Picnic@ Kerwa, the venue of the
meeting, which was due to start at 1:00 p.m. Reid had told his driver to ensure that the
car looked in absolute mint condition and advised him to get the car washed preferably
at Reid’s regular wash service.

V
Basant, the driver, took the car to the new A1A car wash on 20th October, 2014. At the
car wash Basant was convinced by the employees of WashNGo Services Pvt. Ltd. to
accept a new kind of wax polish which had come to the market. Basant was informed
that this wax polish had no yet come into widespread use, so it was difficult to say if it
would live up to the hype around it. Basant ordered for new wax polish.
VI
Basant paid Rs 5000 to the cashier and received a receipt/ticket he had to show the car
wash professional. The receipt given to Basant had the following words stamped on the
back, “The car wash shall not be liable for any accident or damage to the car, arising
from the wash, beyond making a refund of Rs 1000.”

VII
Basant collected the car from the car wash at 10:30 a.m. on 21st October, 2014 and
drove to the airport to pick up Reid. Upon Reid’s arrival at the airport, while Reid was
being escorted by Basant back to his car which had been parked in the open, both Reid
and Basant realized that the expensive chrome paint on the car seemed to be dissolving
and a very foul odor was emanating from the car.

VIII
Reid knew he could not be driven in this car to the meeting and had to hail an ordinary
taxi to go to the meeting. Because of the delay at the airport and the slow taxi he arrived
15 minutes late to the venue. Mr. Yamamoto’s mood was worsened when he realized he
would not get a chance to view the Ashton Martin for himself and Reid late arrival. He
stiffly informed Reid of his decision to not go ahead with the deal and immediately left.
Reid further spent an additional Rs. 1, 50,000 on re-painting his car as the custom paint
had to be imported.

IX
Reid has decided to sue Star Wash Pvt. Ltd. for breach of contract and claimed
damages for the loss caused to him.
 STATEMENT OF ISSUES

ISSUE 1. Whether the present suit before the District Court is maintainable?

ISSUE 2. Whether Star Wash Pvt. Ltd. owes any contractual obligation towards
Reid Taylor?

ISSUE 3. Whether the clause limiting the liability of Star Wash Pvt. Ltd. to Rs.
1000 is good in law?
 SUMMARY OF ARGUMENTS

1.Whether the present suit before the District Court is maintainable?

As per Section 6 of Code of Civil Procedure, the suit is maintainable because of the
Pecuniary jurisdiction save in so far as is otherwise expressly provided, nothing herein
contained shall operate to give any court’s jurisdiction over suits the amount or value of the
subject matter of which exceeds the pecuniary limits of its ordinary jurisdiction.
2.Whether Star Wash Pvt. Ltd. owes any contractual obligation towards Reid Taylor?
No, Star Wash Pvt. Ltd. owes any contractual obligation towards Reid Taylor because the
Contract obligations are those duties that each party is legally responsible for in a contract
agreement. In a contract, each party exchanges something of value, whether it is a product,
services, money, etc. On both sides of the agreement, each party has various obligations in
connected with this exchange.
3.Whether the clause limiting the liability of Star Wash Pvt. Ltd. to Rs. 1000 is good in
law?

No, limiting the liability of a person is not good in law. A term is unreasonable if it would
defeat the purpose of the contract or if it is repugnant to public policy. A person has done the
injury of Rs 1000 and he is liable for that but he has added some issue in his receipt that only
ten percent will be refunded if any accident or lost of the thing happens. Then he is liable for
the injury caused to another person and he has to return the money of the suit.
 ADVANCED ARGUMENTS

1. Whether the present suit before the District Court is maintainable?

As per section 15, every suit shall be instituted in the court of the lowest grade competent
to try it. This is a fundamental rule which means that if a remedy is available at a lower
court, the higher court must not be approached. More specifically, this rule refers to the
monetary value of the suit. Each court is deemed competent to hear matters having a
monetary value of only certain extent. A matter that involves a monetary value higher than
what a court is competent to hear, the parties must approach the lowest grade court which
is competent to hear the suit.

However, this rule is a rule of procedure, which is meant to avoid overburdening of higher
courts. It does not take away the jurisdiction of higher courts to hear matter of lesser
monetary value . Thus a decree passed by a court which is not the lowest grade court
competent to try a matter for which a lower court is competent. This rule applies to the
parties as it bars the parties to approach a higher court when a lower court is competent to
hear the matter.

o As per law suits amounting to Rs.1 - Rs.20, 00,000 lie before district courts.

For e.g.:

A dispute between A and B took place in a certain village of Agra. The value of the suit is
2 crore. Then, it has to be seen that in this case the pecuniary jurisdiction lies with the
District Court of Agra which also has territorial jurisdiction in that particular village; and
hence in this case the court of lowest grade competent to try this suit will be District Court
of Agra.

 As in Bulk Trading S.A. vs Dalmia Cement (Bharat) Limited on 19 December,

2005,

The petitioner/decree holder has responded to each of these contentions. It is the case of
the petitioner/decree holder that there is no bar to the filing of a second Execution
Application. It was also submitted on behalf of the petitioner/decree holder that the award
amount was more than Rs. 20,00,000/- and, therefore, this Court has pecuniary jurisdiction
to entertain the present petition. Lastly, it was contended on behalf of the petitioner/decree
holder that Section 42 of the said Act falls in Part I thereof, whereas foreign awards are
governed by Part II. Therefore, Section 42 would have no applicability insofar as the
present case is concerned, it being a case involving a foreign award.

2. Whether Star Wash Pvt. Ltd. owes any contractual obligation towards Reid Taylor?

A document is said to be contractual if it embodies the contract, that is to say, if the person
to whom it is delivered should know that it is supposed to contain conditions. But where
the paper is not supposed to express the condition of the contract, it will be regarded as
mere voucher etc., and extra care will have to be taken to communicate its term than mere
warning on the face.

 A good illustration is chapelton v Barry UDC1, The claimant hired a deck chair from
Barry UDC for use on the beach. There was a notice on the beach next to the deck
chairs stating that the deck chairs could be hired at 2d for three hours and also
'respectfully requested' the public to obtain tickets issued by the chair attendants. The
claimant obtained a ticket and put it in his pocket without reading it. In fact there was
an exclusion clause printed on the ticket excluding the council's liability for personal
injury caused in using the deck chair. The claimant was injured when he sat on the
chair. The fabric of the deck chair split away from the frame. He brought an action
against the council and they sought to rely on the exclusion clause contained in the
ticket.

Held:

The exclusion clause was not incorporated into the contract. A reasonable person would
regard the ticket as nothing more than a receipt and would not expect it to contain
contractual terms. Furthermore, the wording of the notice suggested that a person could
obtain the deck chair and get a ticket later. The notice constituted an offer and collecting
the chair would amount to acceptance. It would not be open to the council to introduce
new terms after the contract had been formed. The council was held liable for his injury.

1
[1940] 1 KB 532.
  Henderson v Stevenson2

FACTS: Plaintiff bought a steamer ticket. Which contained on the face, words “Dublin to
White heaven” on the back, certain terms, one of which excluded liability of the Co. for loss,
injury or delay to the passenger or his luggage. Plaintiff had not seen back of the ticket not
there was any indication on the face about the conditions on the back. Plaintiff’s luggage was
lost by the ship wreck caused by the fault of Company’s servants.

HELD: Pt was entitled to recover his loss from the Company inspite of exemption clause.

OBSERED: Pt could not be said to have accepted the a term which he has not seen, of which
he knew nothing and which is not in any way ostensibly connected with that which is printed
and written upon the face of the contract presented to him. The result would have been
otherwise, if words like “for conditions see back” had been printed on face of the ticket to
draw the passengers’ attention to the place where the conditions were printed.

PRINCIPLE: “Where a written document is presented to a party for acceptance, a reasonably

sufficient notice shall be given of the presence of terms and conditions. Notice will be
regarded as sufficient if it will convey to the minds of people in general that ticket contains
conditions.

 Parker v South Eastern Railway Co.3

The plaintiff deposited a bag in a cloak-room at the defendants' railway station. He received a
paper ticket which read 'See back'. On the other side were printed several clauses including
"The company will not be responsible for any package exceeding the value of £10." The
plaintiff presented his ticket on the same day, but his bag could not be found. He claimed £24
10s. as the value of his bag, and the company pleaded the limitation clause in defence. In the
Court of Appeal, Mellish LJ gave the following opinion:

If the person receiving the ticket did not see or know that there was any writing on the ticket,
he is not bound by the conditions;

2
(1875) 2 Sc&Div 470: (1875) 32 LT 709 (HL).
3
(1877) 2 CPD 416.
If he knew there was writing, and knew or believed that the writing contained conditions,
then he is bound by the conditions;

If he knew there was writing on the ticket, but did not know or believe that the writing
contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in
such a manner that he could see there was writing upon it, was reasonable notice that the
writing contained conditions.

3. Whether the clause limiting the liability of Star Wash Pvt. Ltd. to Rs. 1000 is good
in law?

 An example of unreasonable term is to be found in lily white v Munuswami4,A

laundry receipt contained a condition that a customer would be entitled to claim
only fifteen percent of the market price or value of the article in case of loss. The
plaintiff new sari was lost. The court observed certainly the condition printed on
the reverse of a bill may govern or modify any simple contract……subject to the
obligation on the part of the business man to perform the process properly and to
return the article safe and intact. But if a condition is imposed which is in flagrant
infringement of the law relating to negligence ….the court will not enforce such a
term which is not in the interest of the public, and which is not in accordance with
public policy. And there is certainly justification for the observation that this may
well be putting a premium upon the abstraction of clothes which may be committed
by an employee of the firm, intent on the private gain, though the firm itself may be
blameless regard to the actual loss.
 Levison v patent steam carpet cleaning Co.ltd5. A valuable Chinese carpet had
been taken for cleaning but was lost by the bailee. The bailee said that his liability
was limited under the terms of the contract to a particular sum. A fundamental
breach is ‘a breach going to the root of the contract’. The claimant pleaded by way
of reply that the carpet had been lost by reason of a fundamental breach. The
question arose whether the burden lay upon the bailor to establish a fundamental
breach of contract or upon the bailee to establish that there had been no
fundamental breach of contract.

4
AIR 1966 Mad 13, (1965) 1 MLJ 7
5
[1978] 1 QB 69, [1977] 3 All ER 498.
Held: Whilst recognising that there had been conflicting decisions, the burden lay upon the
bailee to establish that there been no fundamental breach.

Lord Denning MR said: ‘Upon principle, I should have thought that the burden was on the
cleaners to prove that they were not guilty of a fundamental breach. After all, Mrs. Levison
does not know what happened to it. The cleaners are the ones who know, or should know,
what happened to the carpet, and the burden should be on them to say what it was . . It is,
therefore, a moot point for decision. On it I am clearly of opinion that, in a contract of
bailment, when a bailee seeks to escape liability on the ground that he was not negligent or
that he was excused by an exception or limitation clause, then he must show what
happened to the goods. He must prove all the circumstances known to him in which the
loss or damage occurred. If it appears that the goods were lost or damaged by a slight
breach – not going to the root of the contract- he may be protected by the exemption or
limitation clause. But, if he leaves the cause of loss or damage undiscovered and
unexplained – then I think he is liable: because it is then quite likely that the goods were
stolen by one of his servants; or delivered by a servant to the wrong address; or damaged
by reckless or wilful misconduct; all of which the offending servant will conceal and not
make known to his employer. Such conduct would be a fundamental breach against which
the exemption or limitation clause will not protect him.’

Orr LJ said: ‘as a matter both of justice and of common sense the burden ought to rest on
the bailee who, if the goods have been lost whilst in his possession, is both more likely to
know the facts and in a better position to ascertain then than the bailor.’

Sir David Cairns said: ‘however difficult it may sometimes be for a bailee to prove a
negative, he is at least in a better position than the bailor to know what happened to the
goods while in his possession.’

A limitation of liability clause is a provision in a contract that limits the amount of exposure a
company faces in the event a lawsuit is filed or another claim is made. If found to be
enforceable, a limitation of liability clause can "cap" the amount of potential damages to
which a company is exposed. The limit may apply to all claims arising during the course of
the contract, or it may apply only to certain types of causes of action. Limitation of liability
clauses typically limit the liability to one of the following amounts: (i) the compensation and
fees paid under the contract; (ii) an agreed upon amount of money; (iii) available insurance
coverage; or (v) a combination of two or more of the above.
An exclusion clause "aims to exclude and to limit one's liability for breach of contract or
negligence.” It must be correctly incorporated into the contract. This is done by signing the
contract (known as signature), having reasonable notice of the clause (known as notice) and
by having a course of dealings i.e. previous consistent dealing based on the same terms.
Ignorance or misunderstanding of the term does not stop someone from being bound by the
term but misrepresenting the effect of this term can render part or the whole of the agreement
ineffective. An unfair term is “contrary to the requirement of good faith as it causes a
significant imbalance in the parties' rights and obligations under the contract..." That is, it
gives one party an unfair advantage.

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsels for
the Applicant humbly and forever pray before this Hon’ble Court to kindly:
 ALLOW THE SUIT APPLICATION

AND/ OR

PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

And for this the Petitioner as in duty bound shall forever humbly pray.

(Counsels on behalf of the Petitioner)