Good morning, your lordships.
The council seeks permission to address the bench
collectively as “your lordships” (Much Obliged).
May it please this hon’ble court, I am Satvik Mittal, the counsel representing the
appellant TSBPL.
With the permission of Your Lordships, The Counsel for the appellant seeks to begin.
(Much Obliged Your Lordships)
With Your Lordships permission, the counsel would be proceeding with the second
issue that is, “TS BUILDTECH PVT. LTD. IS DISCHARGED FROM ITS LIABILITY
TO REPAY THE LOAN UNDER THE DSA” in three limbs i.e.,
1. THE IMPUGNED ORDER RENDERED THE SUBJECT MATTER IMPOSSIBLE;
2. DELAY DUE TO PROTEST AND STRIKE MADE THE EXECUTION OF THE CONTRACT
IMPOSSIBLE AND HENCE THE CONTRACT STOOD VOID; and lastly,
3. THE DSA IS VOID DUE TO NON-PERFORMANCE OF RECIPROCAL PROMISES
If the lordships are clear and satisfied with the counsel’s scheme of representation, then
with Your Lordships permission the counsel would like to begin with the first limb of the
sub issues.
1. IT IS RESPECTFULLY SUBMITTED FOR YOUR LORDSHIPS CONSIDERATION THAT THE
CHANGE IN SEAT OF JURISDICTION COUPLED WITH THE IMPUGNED ORDER
RENDERED THE SUBJECT MATTER IMPOSSIBLE AND MADE THE CONTRACT VOID
Your lordships, in the case at hand, DSA stood frustrated due to two reasons
mainly, the change in seat of judiciary which was the main objective for the
investors to invest in the first place.
Further your lordships, the impugned order which acted as a subsequent
impossibility, directly affected the subject matter of the contract, leading to a
complete change in the nature of the agreement.1
May the counsel respectfully direct Your Lordships attention to the laws
governing the situation of the case at hand,
S. 24 wherein unlawful objective and consideration makes the contract
void;
Para 2 of S. 56 which governs force majeure and talks about
subsequent impossibility2;
In conclusion, Your Lordships, the counsel respectfully submits that, the contract
is frustrated due to the lack of object and consideration and the subsequent
order, and hence, the DSA is void.
1
Steel Authority of India And Ors v. Tycoon Traders and Ors, (2015) 5 SCC 767; see also
DDA v. Kenneth Builders & Developers (P) Ltd, (2016) 13 SCC 561; Raj Kumar Gupta v.
Des Raj, AIR 1995 HP 107; N. Satyanarayana v Vedprakash Dusaj, (2003) 2 ALD 884.
2
frustration of contract can arise due to: (1) Destruction of the subject matter, (2)
Change in circumstances, or (3) Legislative intervention. [well settled principle of law]
2. TO ASSIST YOUR LORDSHIPS IN UNDERSTANDING THE ISSUE AT HAND, THE
COUNSELS SUBMITS THAT DELAY WAS DUE TO PROTEST AND STRIKE WHICH MADE
THE EXECUTION PHYSICALLY IMPOSSIBLE
The counsel would respectfully submit for Your Lordships consideration that the
Strikes and protests by the MMA workers, constituted force majeure events. 3
The counsel would further elaborate for the benefit of Your Lordships, The
prolonged delays, significantly disrupted the schedule, making timely
performance impossible. This delay was beyond the Appellant’s control and could
not have been mitigated.
The delays resulting from such inevitable events, which impede the performance
of a contract, can justify a claim of frustration.4
In conclusion, it is humbly submitted before Your Lordships, that the delays
caused by these inevitable events justify a claim of frustration, making the
contract unenforceable.
3. IT IS HUMBLY CONTENDED BEFORE YOUR LORDSHIPS THAT THE DSA IS VOID DUE
TO NON-PERFORMANCE OF RECIPROCAL PROMISES.
If Your Lordships would kindly permit, the counsel would like to draw your
attention to the law governing performance of contract. Section 38 read with
section 39 clearly states that refusal to accept the performance and refusal to
perform respective part of contract enables the promisee to put an end to the
contract.
Further, your lordships, DSA was contingent and dependent upon SSA and SHA
since redemption was to be made from the profits received from sale of Tower B
and C.5
Impugned order made the completion of the contract impossible and hence the
contract became void.6
The counsel further directs your lordships attention to the fact that since
Respondent was the main financier of the whole transaction, their refusal to
release the funds lead to the whole issue.7
The breach of reciprocal promise by the respondent enables the appellant to
declare the contract.8
3
Force Majeure - Force majeure is an unforeseeable, uncontrollable event that excuses
contractual performance if parties show efforts to mitigate its impact. [Md. Serajuddin
v. State Of Orissa, AIR 1969 Ori 152; see also Dhanrajamal Govindram v. Shamji Kalidas
and Co., AIR 1961 SC 1285]
4
Naihati Jute Mills Ltd. v. Khyaliram Jagannath, 1968 AIR SC 522.
5
Clause F further read with clause 2.5.3 of annexure B.
6
Section 32.
7
Para 21 read with para 29.
8
Section 51 – 55; Saradamani Kandappan v. S. Rajalakshmi & Others, (2011) 12 SCC 18.
See also, Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575.
Therefore Your lordships, the non-performance of the SSA and SHA renders the
DSA voidable at the option of the Appellant.
The Counsel respectfully rests the arguments. If Your Lordships have no further
questions, the Counsel seeks permission to conclude.
The counsel would respectfully submit for Your Lordships’ consideration that –
1. The DSA is void due to frustration caused by the frustration of the objective
coupled with the impugned Order and subsequent delays; and lastly
2. The DSA is voidable due to non-performance of reciprocal promises by the
Respondent.
Therefore, with utmost respect, the counsel submit that TSBPL is not liable to repay the
loan under the DSA, and the Appellant is entitled to relief as prayed.
