IN THE HON’BLE DISTRICT COURT OF DELHI

In the matter of

Raman Kataria

(Counter-

Claimant)

M/S Belo Home

(Respondent)

ON THE SUBMISSION TO THE DISTRICT COURT

MEMORANDUM FOR THE COUNTER-CLAIMANT

COUNCIL FOR THE COUNTER-

CLAIMANT (SANCHAY

WADHWA)

ROLL NO. 126, SEMESTER: II

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

TABLE OF CONTENT:

LIST OF ABBREVIATIONS… .............................................................................................. 2

INDEX OF AUTHORITIES… ............................................................................................... 3

.STATEMENT OF FACTS… ................................................................................................... 4

ISSUES RAISED… ................................................................................................................ 5

SUMMARY OF PLEADINGS…............................................................................................ 6

WRITTEN PLEADINGS ......................................................................................................... 7

PRAYER FOR RELIEF .......................................................................................................... 10

LIST OF ABBREVIATIONS

1. V – Versus
2. UOI- union of India
3. www. - World wide web
4. Ors. – others
5. H.C.- High court
6. Etc.- et cetera
7. Ltd. – limited
INDEX OF AUTHORITIES
JUDICIAL DECISIONS:

1. Ranbir Singh Thakur v. Hindustan General Electric Corporation Ltd.

2. Blanchi v. Nash
3. Minerals Trading Corpn Ltd. V. Dimple Overseas Ltd
4. Eternit Everest Ltd. Vs. Abraham

STATUTES

1. The Sale of Goods Act 1930

BOOKS

1. Mulla, The Sale of Goods Act, 10th edition

2. Chitty on Contracts, 32nd edition

LIST OF INTERNET SITES

1. www.manupatra.com

2. www.ssconline.com
 STATEMENT OF JURISDICTION

The Council approaches the present court under Section 9 of the Civil Procedural Court, 1908,
which places the original jurisdiction in the present court.
 STATEMENT OF FACTS

1. The counter-claimant’s son visited India in the month of July, 2010, in order to buy
furniture for his newly built home in USA, as the reliability and steadiness of Indian
furniture is far more superior than imported ones.
2. The respondent was known to the counter-claimant and represented that he
manufactures furniture of superior quality in his showroom at C16 Mansarovar
Garden, New Delhi.
3. The counter-claimant along with his son went to his showroom, assured the quality and
superiority of the furniture and it was brought to the notice of respondent that the goods
were to be shipped to USA and hence had to be packed and shipped.
4. The respondent stated that they do export worthy packaging and would get the furniture
shipped through the cargo agent who was very reliable, and the appellant made inquiry
into the same and the amount to be paid was around 200000 excluding the cost of
shipping, the charges which will be paid to the cargo agent.
5. It was made clear to the respondent that special care should be taken with respect to
specification and the requirement otherwise the appellant will have to bear grave
irreparable loss and injury.
6. In the month of September the counter-claimant went to the showroom and found that
the goods were not ready on time. The respondent requested for the payment of advance
amount of 100000 and further asked for 50000 as the goods were required on priority
basis.
7. The goods got finally ready in the month of November, and the counter-claimant went
to check the goods. However, the goods were packed before he could check, and thus
he could not check for any damages. When the respondent asked for the payment, the
counter-claimant replied that 75% of the amount had already been paid and the
remaining amount will be paid once the goods are delivered, checked and inspected.
8. The cargo agent was engaged who to collect and ship the goods was not an authorized
agent of the appellant, the goods arrived in the USA but were not as per the
specifications of the appellant and were broken and damaged.
9. On repeated calls made to the respondent to replace the goods, the respondent claimed
the amount of 75000 which was duly made to him. After that he refused to replace the
broken goods as well as the goods which were not as per the specifications.
10. Counter-claimant approached the insurance company to inspect the goods and
insurance company appointed an independent surveyor to inspect the goods. The report
of the independent surveyor stated that the damage caused to the goods was due to the
faulty, inferior, and substandard packaging carried out. Hence, this counter claim has
been made.
 ISSUES RAISED

1. Whether the respondent in the present case has duty of care with respect to the goods
delivered?

2. Whether the counter claimant accepted the said goods ?

 SUMMARY OF PLEADINGS

1. The respondent in the present case had duty of care with respect to the goods
delivered.

The counter-claimant had agreed upon purchase of the goods due to their reliability and steadiness.
Indian furniture being far superior, the counter-claimant specifically wanted to buy the same from
the respondent, to which the respondent agreed to manufacture as per the terms of the contract.

The counter-claimant was not allowed to check the condition of the goods before they were
packaged, and the goods were found to be not as per specifications when received by the counter-
claimant. In addition to this, the goods were damaged in transit which is the responsibility of the
seller as per the terms of the contract.

Therefore, due to the abovementioned circumstances, it is evident that the respondent had duty of
care with respect to the goods delivered and the same cannot be denied after the goods were
delivered.

2. The counter-claimant did not accept the said goods in question.

The acceptance of the goods is covered under section 42 of the Sale of Goods Act, 1930 and the
same is cited in the present case to explain that acceptance of the goods didn’t take place.
 WRITTEN PLEADINGS

ISSUE

ISSUE 1: The respondent in the present case has duty of care with respect
to the goods delivered.

It is imperative to establish that seller has a duty of care to the buyer of goods before proceeding as
to whether the respondent has a duty of care to the counter claimant. The same can be provided
with the help of sale of goods act, 1930.

Section 16 of the aforementioned act states that:

Subject to the provisions of this Act and of any other law for the time being in force, there is no
implied warranty or condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale, except as follows:—
(1) Where the buyer, expressly or by implication, makes known to the seller the particular
purpose for which the goods are required, so as to show that the buyer relies on the seller’s
skill or judgment, and the goods are of a description which it is in the course of the seller’s
business to supply (whether he is the manufacturer or producer or not), there is an implied
condition that the goods shall be reasonably fit for such purpose.

(2) here goods are bought by description from a seller who deals in goods of that description
(whether he is the manufacturer or producer or not), there is an implied condition that the
goods shall be of merchantable quality: Provided that, if the buyer has examined the
goods, there shall be no implied condition as regards defects which such examination ought
to have revealed.

(3) An implied warranty or condition as to quality or fitness for a particular purpose may be
annexed by the usage of trade.
In the present case, the buyer has by implication1 made the respondent know that the goods
purchased from him are for the purpose of superior quality which he claims to provide. Apart from
this, the counter claimant did not examine the goods and as per sub section 2 of the aforementioned
section, there is an implied condition that the respondent must match the description that the buyer
requires for the purchase of goods.

The facts of the case Eternit Everest Ltd. Vs. Abraham2 are similar to that of the present case
and provide support to the arguments of the present council. The buyer purchased asbestos sheets
which had the reputation regarding quality and the buyer was trusting the judgment or skill of the
manufacturer. Sheets didn’t confirm to quality or fitness because there was leakage. The court held
that there was a breach of implied condition of merchantable quality and the seller is liable to pay
damages.
In the present case as well, the buyer relied upon the merchantable quality of the seller. Not only
the quality is of substandard, but the goods didn’t match with the specifications which is quite
evident from the photos that the counter claimant has taken once the goods are received.
Respondent was known to the counter−claimant and represented that he manufactures superior
quality of the furniture items from its showroom at C−16 Mansarovar Garden, New Delhi. The
above claim by him indicates that the goods are of a description which is in the course of the
seller’s business to supply

Sub section (3) states that a warranty as to quality for a particular purpose (which is standard
Indian quality) may be annexed by the usage of trade. Thus the counter claimant claims the goods
be covered under warranty. 3

It was also brought to the notice of the respondent that the goods were to be shipped to USA, and
hence, the same were required to be packed and shipped. Respondent stated that they carry out
export worthy packaging and could get the goods shipped through his cargo agent being Reliable
Travels and Cargo Pvt. Ltd., who are working with the respondent for some time. It was also

1
Ranbir Singh Thakur v. Hindustan General Electric Corporation Ltd., AIR 1971 Bom 97
2
2003(2)KLT907
3
Warranty is defined under section 12 (3)
brought to the notice of the respondent that since the furniture had to be shipped to USA, same be
strictly as per the requirement and specification, otherwise counter− claimant shall suffer damages
and grave irreparable loss and injury.

Section 21 of the Sale of Goods Act,1930 states that:

Where there is a contract for the sale of specific goods and the seller is bound to do something to
the goods for the purpose of putting them into a deliverable state, the property does not pass until
such thing is done and the buyer has notice thereof.

Since the goods are not as per specifications, mere posting of the goods doesn’t make the goods to
be in deliverable state and section 26 4 of the same act doesn’t apply to this present case.

4
Risk prima facie passes with property is what the particular section deals about.
 ISSUE 2: The counter claimant did not accept the said goods

The acceptance of the goods is covered under section 42 of the sale of goods act and the same is
cited in the present case to explain that acceptance of the goods didn’t take place.
Section 42 of the act states that:
The buyer is deemed to have accepted the goods when he intimates to the seller that he has
accepted them, or when the goods have been delivered to him and he does any act in relation to
them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable
time, he retains the goods without intimating to the seller that he has rejected them.

In the present case, the seller has rejected the goods once the same reached to the place the goods
were meant to be delivered. Thus as per section 42 of the Sale of goods act,1932 it is clear that
acceptance of the goods is said to not have taken place in the present matter and the sum 2,37,225
(including interest) is the money that the counter claimant has paid for the goods which he hasn’t
accepted as per section 42 of the act.

In the case of Blanchi v. Nash5, it was held that buyer is not precluded from objecting to the
goods received by merely receiving them, for receipt is one thing, and acceptance another.

Also, in the case of Minerals Trading Corpn Ltd. V. Dimple Overseas Ltd.6, it was held that a
sale is not contemplated unless the purchaser accepts the goods and when the buyer accepts the
goods without any reservation, he is bound by the contract of sale.

Thus due to the non-acceptance of the goods, the buyer must be refunded his amount with interest.

5
(1836) 1 M&W 545.
6
AIR 2001 Del 427
PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, the
counsel on behalf of the respondent humbly prays to the Hon’ble Court to-

 Allow the counter claim

 PASS A DECREE FOR A SUM OF RS. 2,37,225/− IN THE FAVOUR OF
COUNTER CLAIMANT.

All of which is humbly submitted before this Hon’ble court.

Place: Delhi

Counsel for Counter-

claimant

Date: 8th April 2019

Sanchay Wadhwa