Civil Law I

Delhi Judicial Service  -  2010
CIVIL LAW – I
PART  A
Q.1.  FACTS:
"A" along with his father ("F") and mother ("M") were joint owners of an immovable property which comprised of a land and a dwelling house consisting of a ground floor, garage and first floor.  F and M had another son B.  A deed of declaration was drawn up; whereby it was declared that A held an undivided half share in aforementioned property as joint tenant.  The deed, however, provided a right to either party, to sever joint tenancy at any time.  By another agreement A and F decided to hold the property as tenants in common each having an undivided equal share in the property.  F some years later transferred his undivided equal share in the property as tenants in common each having an undivided equal share in the property.  F some years later transferred his undivided equal share in the property to his other son B comprising of the garage and ground floor.  B died.  The widow (X) and his two minor sons Y and Z acquired B's undivided half share in the property.  X, Y and Z sold their share to a stranger S.  S took possession of the ground floor and garage.
STAND TAKEN:
A filed a suit for perpetual injunction on the ground that the superstructure built on the immovable property was a dwelling house, even though he and his brother's family lived separately there had been no division by metes and bounds, and that the two families were living separately only by way of convenience.  S who is stranger to the family had no right of joint possession.  In support of his submission second paragraph of section 44 of the Transfer of Property Act was relied upon.  Ad-interim injunction was sought on the ground that irreparable harm would be caused to him which could not be compensated by money.
In defence, X, Y and Z submitted that though late B was owning the land and superstructure thereon in equal moiety with A.  B in point of fact was holding the ground floor and garage in his individual capacity, which position obtained even after the death of B.  X, Y and Z had separate water and electricity meters; X, Y and Z paid property taxes separately for portion of the property in their possession.  In these circumstances even though they were tenants in common, there was already a partition of property by virtue of user.
POSER:
In the background of the aforesaid facts, circumstances and stands taken by the opposite parties, is A entitled to mandatory injunction against S in a form which would result in 'S' being evicted from the property?  Give detailed reasons in support of your conclusion.
Q.  2.  S, a ten year old son of T, fractured his leg while playing on the beach near a sea resort.  T who was trained as a para-medic gave first-aid treatment to S by strapping the leg with wooden splints.  Looking to the gravity of the injury, S was removed to a city hospital which was almost 200 miles away from the sea resort.  It was a long journey by car, there being no other mode of transport available.  The journey by car took nearly 12 hours.  At the city hospital S was attended by A.  A took x-rays of the fractured leg and thereafter reduced the fracture with the help of three assistants at the hospital.  Within four hours the condition of S worsened.  S died the following morning.
T sued A for damages on the ground that he had acted negligently.  The gravamen of the suit was that A had reduced the fracture without subjecting S to general anesthesia.  At the trial, evidence emerged that: S died of shock; A had manually reduced the fracture, a process which lasted nearly an hour; fractures were reduced by subjecting patients to general anesthesia; and lastly, S was fatigued when he reached the city hospital and was suffering from high temperature on arrival at the city hospital.
In his defence, A had submitted that he acted to the best of his ability; at a given point of time doctor is required to take a call as to the best procedure to be adopted, and lastly, in every medical intervention there is an inherent risk of failure attached.
POSER
Q.  3.  FACTS:
In January, 1991, t a public limited company announced issuance of fresh share capital.  Interested applicants applied for shares of T.  The share issue was oversubscribed.  In the meanwhile, T had employed B, a scheduled bank, to deal with the refund order.  For the said purpose, T had remitted to B funds to the tune of Rs. 10 crores.  The refund orders were valid only for 3 months.  B, however, honored refund orders beyond 3 months.  From time to time, B dispatched details of the refunds made in the form of a statement of account.  T as a matter of fact gave additional funds to B even after the validity of the refund orders had expired.  The last refund was made by B on 31st December, 1992.  Four years after the share issue, i.e., in 1995, T instituted a suit seeking rendition of accounts and thereupon recovery of money of the amount found due.
STAND TAKEN:
B defended the suit.  In its defence it was contended that the suit was barred by limitation; it had submitted accounts to T from time to time; it had no surplus funds available with it; and lastly the money of which recovery was sought did not belong to T and that T had not shown that any applicant had come forth asking for refund.  B had proved in support of its stand the statement of account by filing a certified copy by relying upon the Bankers Books Evidence Act, 1891.  In the cross-examination the counsel for T had not confronted the witness of B who sought to prove the statement of account on this aspect.  The counsel for T, however, contended that if the statement of account filed by B is accepted in its totality even then it would not add up to more than Rs. 9 crores.  In support of its stand that there were unclaimed refund orders normally to the extent of 105 of the total value of refund, it relied upon the testimony of several share transfer agents.
POSER:
Is T entitled to a judgment and decree for rendition of accounts and recovery of amount as prayed?

PART  B

SHORT QUESTIONS:
Q.  4.  X, a partner in an unregistered partnership firm M/s.  X& Co., which was in the business of exporting ready made garments, entered into contract with Y for purchase of 1000 meters of raw fabric to enable him to execute an export order with Z Ltd.  Z ltd.  had a back to back arrangement with retail outlets in Europe and USA.  The delivery of raw fabric had to be made within 8 weeks.  Y reneged on his obligation to supply the fabric.  X & Co. resultantly suffered a huge loss.  T, who was the other partner of X & Co, blamed X in failing to carry out adequate market survey before identifying Y as the supplier for the export order concluded with Z Ltd.  T wanted to opt out the partnership firm by suing for dissolution.  X, on the other hand, wanted to sue Y for breach of contract and damage.  Similarly, Z Ltd.  was inclined to sue X & Co for failure to fulfill their obligations under the contract with it and resultant loss suffered thereof.
Q.  5.  X Ltd., which is in the business of manufacture and sale of air conditions, appointed Y as their sole and exclusive dealer for the NCT of Delhi.  The dealership agreement, which was for 5 years, provided that on every sale Y would be paid a 5% commission in addition to transportation and installation charges at the rate of Rs. 1, 000 per sale.  Within 2 years the officers of X Ltd.  received complaints from customers as to the rude behavior of the employees of Y and faulty installation of air conditioners.  There were also reports received that Y was also selling the air conditioners of Z Ltd; a rival of X Ltd.  X Ltd terminated the dealership of Y.  In the termination notice reference was placed on clause 2 of the dealership agreement which empowered X Ltd to terminate the dealership agreement forthwith in case a dealer acted against its business interest.  the dealership agreement also contained clause 3 which permitted either party to teminate the agreement without assigning any reason upon giving one (1) month's notice.  Y instituted a suit.  In the suit Y prayed for the following relieves:
(i)    declare that the termination of dealership agreement was illegal;
(ii)    specific performance of the agreemtn for the balance period, i.e., 3 years, and
X Ltd opposed the suit on the ground that the termination was valid, in the alternative the dealership agreement was determinable at will and hence specific performance could not be ordered, and lastly damages, if any, could only be paid only for the 30 days period in terms of clause 3.
The evidence on record showed that the complaints against Y were bogus.  Y in the past one year had contributed to the increase of sales of X Ltd in the NCT of Delhi.
Discuss what relief, if any, would Y be entitled to?
Q.  6  Discuss with the help of relevant case law the exceptional circumstances in which a court will injunct a bank from honoring a guarantee issued by it in favor of the beneficiary.
Q.  7.  FACTS:
A, who was in Shimla, made an offer to B residing at Delhi over telephone for sale of 1000 boxes of apples of 10 Kgs. Each of the rate of Rs. 100 per kg.  B accepted the offer.  It was agreed between them that 50% of the consideration will be paid in advance by wire transferring the money to A's account with his bank in Shimal within 2 days.  The consignment was to reach Delhi most definitely by the end of the following week since the season for apples was drawing to a close.  A breached the contract inasmuch as the consignment was late by 2 weeks.  B, who had transmitted the advance sum, refused to lift the consignment.  A instituted a suit in Shimla for the balance consideration.
STAND TAKEN:
B defended the suit on merits as well as on the ground that since the acceptance was intimated from Delhi the contract was concluded in Delhi and hence, the court in Delhi had jurisdiction to entertain and try the suit.
POSER:
Is the suit instituted by A in Shimla maintainable?  Give short reasons.
Q.  8.  How are damages awarded under a contract any different from those awarded for committing a tort?
Q.  9.  How are liquidated damages different from general damages?  Are liquidated damages required to be proved?
Q.  10  X who was the owner of one room on a barsati floor in a residential building situated in north Delhi gave it on rent of Rs. 3000 per month for a period of 3 years to Y.  The tenancy agreement provided for a yearly hike in rent at the rate of 10% p.a.  At the commencement of the third year of the tenancy, X's husband passed away.  X filed a petition for eviction invoking the provisions of the Delhi Rent Control Act, 1958 on the ground that she being a widow required the tenanted premises for her purposes as her husband's official residence had to be vacated.  Y opposed the petition on merits as well as on jurisdiction.  The argument being that since the agreement provided for a 10% yearly hike the rent of the tenanted premises was more than Rs. 3,500 per month.  The fact, however, remained that before the hike could be triggered the petition for eviction was filed.
Can 'X' maintain her eviction petition against 'Y'?