Memorial for PLaintiff- Army Institute of Law, Mohali · Indico, a private limited company...

TEAM CODE: ST-03

Before

THE HONOURABLE HIGH COURT OF BOMBAY, MUMBAI

Indico…..............….……………………………….....…...Plaintiff

v.

Carco…………………...............…………........................ Defendant

SURANA & SURANA INTERNATIONAL TECHNOLOGY LAW

MOOT COURT COMPETITION – 2014

______________________________________________________________

-Table of Contents-

I

-Memorial for the Plaintiff-

TABLE OF CONTENTS

Table of Contents........................................................................................................I

Table of Abbreviations………………………………………………………………………II

Table of Authorities…………………………………………………………………………III

Statement of Jurisdiction............................................................................................XI

Statement of Facts.....................................................................................................XII

Questions of Law.....................................................................................................XIII

Summary of Pleadings..............................................................................................XIV

Pleadings……………………………………………………………………………..……1-14

1. THAT THE PRESENT SUIT IS MAINTAINABLE BEFORE THIS HON’BLE COURT.......1

1.1 The present dispute cannot be resolved by arbitration…………………..…2

1.2 In the present arbitration clause is unenforceable….….…………………...…3

2. THAT A QUIA TIMET LIES AGAINST THE DEFENDANT…………..……..................5

2.1 The ownership of computer program vests with Indico….………………...5

2.2 Carco has acted beyond the scope of the nonexclusive license agreement....6

2.3 A Quia Timet action lies against Carco…………………………..….........6

3. THAT THE DEFENDANT HAS COMMITTED A BREACH OF CONTRACT ..….......11

3.1 There is a fundamental breach of contract by Carco…………..........…11

3.2 Carco has unlawfully terminated the contract……………..…………...12

3.3 Carco is liable to pay third instalment....................................….…14

Prayer…………………………………………………………………………………...…XV

-Table of Abbreviations-


TABLE OF ABBREVIATIONS

& And

$ United States Dollar

§ /Sec./sec. Section

A.C. Appeal Cases

ADR Alternative Dispute Resolution

Act The Indian Copyright Act,1957

Anr. Another

Bom Bombay

CBNS Common Bench Reports, New Series

Ch. Law Journal - Chancery Reports

Cir. Circuit

Co. Company

Del Delhi

Eng. England

ER English Reports

Etc. Et cetera

EWHC England and Wales High Court

Exch Exchequer Reports

-Table of Abbreviations-


Hon’ble Honourable

Lloyd’s Rep Lloyd's Law Reports

Ors. Others

p. Page

para. Paragraph

PTC Patent & Trade Marks Cases.

Pvt. Ltd. Private Limited

Rep. Reporter

SC Supreme Court of India

SCALE Supreme Court Almanac

SCC Supreme Court Cases

TCC Technology and Construction Court

U.S. United States Reports

URL Uniform Resource Locator

v. Versus

Vol. Volume

-Table of Authorities- IV


TABLE OF AUTHORITIES

CASES

Bibliographical Information Page No.

Allman v. Capricorn Records, 42 Fed. Appx, 82 (9th Cir. 2002) 9

Appellate Tribunal For Electricity Gujarat Urja Vikas Nigam Limited v.

Gujarat Electricity Regulatory, MANU/ET/0148/2014

13

Apple Computer, Inc. v. Formula Int'l, Inc. 725 F.2d 521, 523 (9th Cir. 1984) 5

Associated Engg. Co. v. Govt. of Andhra Pradesh, (1992) AIR 232 (SC) 2

Attwood v. Small, (1838) 6 Ch & Fin 232 13

Bannerman v. White, (1861) 10 CBNS 844 11

Bluewater Energy Services BV v. Mercon Steel Structures BV and Ors.

(2014) EWHC 2132 (TCC)

14

C. Czarnikow Ltd. v. Centralla Handlu Zagranicznego Rolimpex, (1979) AC

351

13

Clearsprings Management Ltd v. Businesslinx Ltd., (2005) EWHC 1487 (Ch) 5

Crosstown Music Company, LLC v. Rive Droite Music Ltd &Ors., (2010)

EWCA Civ 1222

11

Dalkia Utilities Services PLC v. Celtech International Limited, (2006) EWHC

63 (Comm)

12

Dalpat Kumar & Anr. v. Prahlad Singh & Ors., (1993) AIR 276 (SC) 9

-Table of Authorities- V


De Beers U.K. Ltd v. Atos Origin IT Services U.K. Ltd., 2010 EWHC 3276

(TCC)

12

Dhankappan v. Vidyarambhan Press and ook Depot (P) Ltd., (1969) ILLJ 323

(Ker)

5

Fletcher v. Bealey, (1885) 28 ChD 688 7

Foodworld v. Foodworld Hospitality Pvt. Ltd., (2012) 42 PTC 108 (Del) 7

Gallaher International Ltd v. Tlais Enterprises Ltd., (2007) EWHC 464

(Comm)

11

Gangabai v. Purshotum Atmaram, (1907) 9 BOMLR 912 7

Glolite Ltd. v. Jasper Conran Ltd. Chancery Division, (2008) EWHC 804 12

Gujarat Bottling Co. Ltd. v. Coca Cola Company and Others, (1995) 5 SCC

545

9

Hadley v. Baxendale, (1854) 9 Ex 341 15

Heyman v. Darwins Ltd., (1942) A.C. 356, 361 14

Himachal Fruit Growers Co-op Mktg and Processing Society Ltd v Upper

India Food Preservers & Processors Pvt Ltd, (1984) AIR 18 (HP)

15

Historical Pub Co. v jones Bros Pub Co, 231 F. 638 (3d Cir. 1916) 9

Jackson Dairy, 596 F.2d 70 (2d Cir. 1979) 8

Jawahar Engineering Co and Ors v Javahar Engineering Private Ltd,(1984)

AIR 166 (Del)

7

Johnson v Agnew, (1980) A.C. 367 15

-Table of Authorities- VI


Johnson v. Jones, 149 F. 3d 494, 500 (6th Cir.1998) 6

Joshua Meier v. Albany Novelty Mfg. Co., 236 F.2d 144 (2 Cir. 1956) 8

Kensoft Infotech Limited v Sundaram BNP Paribas Home Finance Limited &

Anr, (2010) IndLaw 1250 (Mad)

1

Kuldip Singh v Subhash Chander Jain &Ors., (2000) 4 SCC 50 7

L. Schuler AG v Wickman Machine Tool Sales Ltd, (1973) 2 All ER 39 11

MDY Industries LLC v Blizzard Entertainment Inc., 629 F.3d 928 (9th Cir.

2010)

6

Metal Distributors (U.K.) Ltd v ZCCM Investment Holdings Plc., (2005)

EWHC (Comm) 156

2

M. Sreenivasulu Reddy v Kishore R. Chhabria, (2002) 109 CompCas 18

(Bom)

9

Milan Commercial Private Limited v Asian Healthcare Sendees Limited and

ors. , (2010) 2 Bom.C.R. 295 (Bom)

9

MSK Projects (I) (V) Ltd. v State of Rajasthan & Anr., (2011) AIR 2979

(SC)

2

Microsoft v Yogesh Papat & Anr, (2005) 118 DLT 580 2

National Power Plc v United Gas Co Ltd & Anr, (1998) All ER (D) 231 11

P.J. van der Zijden Wildhandel N.V. v Tucker & Cross Ltd. (1924) 2 K.B.

220

13

Ray v. Classic FM Plc, (1998) E.C.C. 488 7

-Table of Authorities- VII


Re Locki v Craggs (1901) 86 L.T. 388 13

Renusagar Power Co. Ltd. v General Electric Company & Anr., (1985) AIR

1156 (SC)

2

Robinson v Harman, (1848) 154 Eng. Rep. 363 (Exch) 15

Rushton v. Vitale, 218 F.2d 434 (2 Cir. 1955) 8

Shearson Lehman Hutton Inc. v. Maclaine Watson & Co Ltd , (1989) 2

Lloyd’s Rep. 570

13

Shoe Machinery Co. Ltd v. Cutlan, (1896) 1 Ch 667 8

Socimer International Bank v. Standard Bank, (2008) EWCA Civ 116 14

Super Cassettes Industries Ltd. v. Myspace Inc. & Anr., (2011) 48 PTC 49

(Del)

8

Tashi Delek Gaming Solutions Ltd. and Anr. v. State of Karnataka and Ors.

(2006) 1 SCC 442

8

Thomas Whitter Ltd. v. TBP Industries (1994) 14 T.RL .Rep, 145 (Ch D) 14

Tom Doherty Assoc. v. Saban Entm’t Inc., 60 F. 3d 27, 38 (2d Cir. 1995) 10

Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 n. 1 (2 Cir.

1967)

8

Ultra Tech Cement Limited v. Alaknanda Cement Private Limited and Anr.,

(2011) 5 Bom.C.R. 588 (Bom)

9

Vernor v. Autodesk, Inc., 621 F. 3d 1102, 1108-09 (9th Cir. 2006) 6

Zechman v. Merrill Lynch, Pierce, Fenner& Smith, Inc., 742 F.Supp. 1359, 4

-Table of Authorities- VIII


1364 (N.D.Ill.1990)

TREATIES, CONVENTIONS, REPORTS AND STATUTES


Agreement on Trade Related Aspects of Intellectual Property Rights,

April,15,1994, 1869 U.N.T.S 299, 33 I.L.M. 1197 (1994).

5

Berne Convention for the Protection of Literary and Artistic Works, Sept. 9,

1886, as revised at Paris on July 24, 1971 and Amended in 1979, S. Treaty

Doc. No. 99-27 (1986).

5

Indian Copyright Act, 1957. 1

UNCITRAL Model Law on International Commercial Arbitration, (1985),

June 21, 1985, 21 U.S.T 2517 , 330 U.N.T.S 38.

2

UNIDROIT Principles of International Commercial Contracts, 2010, 834

UNTS 169

12

BOOKS, DIGEST AND TREATISES


William Reynell Anson, J. Beatson, Andrew S. Burrows & John Cartwright

Anson’s Law Of Contract (Oxford University Press, 29th Ed. 2010)

11

Boris Beizer, Software Testing Techniques (Dreamtech Press 2003) 14

Clive Maximilian Schmitthoff, Clive M Schmitthoff’s Select Essays on

International Trade Law (Brill 1988)

4

-Table of Authorities- IX


Edward Avery Harriman, Elements of Law of Contracts (Ullan Press 2012) 13

Gary Born, International Commercial Arbitration: Commentary and Materials

(Kluwer Law International 2001)

4

Julian D. M. Lew, Loukas A. Mistelis & Stefan Kröll, Comparative

International Commercial Arbitration (Kluwer Law International 2003)

4

Kshirasagar Naik & Priyadarshi Tripathy, Software Testing and Quality

Assurance: Theory and Practice (John Wiley & Sons 2011)

14

Michael Mustill Et Al, Mustill And Boyd: Commercial Arbitration

(LexisNexis, 3rd ed. 2008)

3

Michael Rustad, Software Licensing: Principles and Strategies (Oxford

University Press 2010)

14

N.S. Gopala Krishnan, Intellectual Property And Criminal Law, (Natl. Law

Sch. of In. 1994)

5

Nigel Blackaby, Constantine Partasides, Alan Redfern & Martin Hunter,

Redfern and Hunter on International Arbitration (Oxford University Press, 5th

ed. 2009)

2, 3

Sir John George Woodroffe, The Law Relating To Injunctions In India,

Pakistan and Burma (T. Spink 1964)

7

T. R. Srinivasa Iyengar, Commentary on The Copyright Act (Universal Law

Publishing Co. Pvt. Ltd., 7th ed. 2010)

5

-Table of Authorities- X


ARTICLES


Alexdander Jolles, Consequences of Multi-tier Arbitration Clauses: Issues of

Enforcement, 72 Arbitration (2006)

3

Dennis S. Karjala, Copyright, Computer Software and The New Protectionism,

28 Jurismetrics J. (1987-1988)

1

Dr. Ulrich Loewenheim, Legal Protection for Computer Programs in West

Germany (Sept. 16, 2014)

http://www.law.berkeley.edu/journals/btlj/articles/vol4/Loewenheim/html/reader.html

1

Duncan M. Davidson, Protecting Computer Software: A Comprehensive

Analysis, 23 Jurimetrics J. (1983)

10

Kathleen Scanlon, Country report for US, in Enforcement of Multi-tiered

Dispute Resolution Clauses, IBA Newsletter of Committee D (Arbitration and

ADR), Vol.6 No.2, October 2001.

3

World Intellectual Property Organisation, WIPO Guide on Licencing Of

Copyright And Related Rights, 90 (September 12, 2014)

http://www.wipo.int/edocs/pubdocs/en/copyright/897/wipo_pub_897.pdf.

6

DICTIONARIES


Wharton’s Law Lexicon (15th ed. 2009) 12

Black’s Law Dictionary (8th ed. 2004) 7

-Statement of Jurisdiction- XI


STATEMENT OF JURISDICTION

The Plaintiff humbly submits this memorandum for this suit filed before this Honourable

Court. The suit is under section 20 of the Civil Procedure Code, 1908 and Section 62(2) of

the Indian Copyright Act, 1957. It sets forth the facts and the laws on which the claims are

based.

-Statement of Facts- XII


STATEMENT OF FACTS

Indico, a private limited company incorporated in India Specialising in Information

Technology Services especially for the Automobile related software technology entered into

a contract with Carco, a Detroit based US Company. Carco had engaged Indico for

completing the scope of work to create software programs for GPS programming systems,

Tyre Pressure Sensors, Light Programming systems, etc. for a consideration of USD 7

Million. A set of milestones and time framework was agreed upon by the two parties for the

said work and the related payments. Further, the contract provided for a multi-tier dispute

resolution clause to settle all disputes, differences or claims of parties through amicable talks

and to submit un-resolved disputes to arbitration under the aegis of NYIAC by a sole

arbitrator. The contract also transferred the non – exclusive IPR to the programs submitted by

Indico to Carco. Moreover, within 10 days of signing the contract, Carco then added an extra

requirement in the scope of work to which Indico agreed and confirmed its ability to deliver

the same in the time deadline as agreed to earlier. Indico then submitted the preliminary plans

for the additional work within 7 days of the revision of the scope of work which Carco was

not satisfied with and hence did not accept the submissions made by Indico on ground that

the submissions were not as per the specifications and was a delay on part by Indico. As a

result, the relations between the two companies soured. After several exchanges including

communications between the parties and modified submissions, Carco issued a termination

letter to Indico within 10 days of submission of the 2nd milestone. It stopped all further

payments and raised a claim for refund of the monies already paid by it on the grounds that

Indico had misrepresented its ability to deliver the requirements under the Scope of Work

and had also committed a breach of the contract. Indico rejected all of Carco’s claims and

contented that Carco had breached the contract by peremptorily terminating the contract and

sought payment of their 3rd instalment. Further, it also sends a notice to Carco for payment of

the 3rd instalment within 15 days and to cease and desist from using the proposals already

forwarded by Indico to Carco, as the proprietary rights to the same still vested with Indico.

On expiry of the 15 day notice, Indico filed a composite suit for recovery of monies and

protection of their copyright to the software programs; designs and templates submitted to

Carco in the High Court of Mumbai.

-Questions Presented- XIII


QUESTIONS PRESENTED

I. WHETHER THE SUIT FILED BY THE PLAINTIFF IS MAINTAINABLE IN THE BOMBAY HIGH

COURT?

II. WHETHER THE PLAINTIFF HAS COMMITTED A BREACH OF CONTRACT?

III. WHETHER THE DEFENDANT CAN USE THE COMPUTER PROGRAMS DEVELOPED BY THE

PLAINTIFF?

-Summary of Pleadings- XIV


SUMMARY OF PLEADINGS

The contract entailed a nonexclusive license agreement, wherein certain rights would be

granted to the Defendant. In absolute disregard of the terms of this license agreement, the

Defendant subsequently claimed ownership of the software entirely developed by Indico.

Furthermore, the Defendant has committed a fundamental breach of contract by failing to pay

the third instalment.

I. THE PRESENT SUIT IS MAINTAINABLE BEFORE THE BOMBAY HIGH COURT.

The Plaintiff approaches this Hon’ble Court under the Indian Copyright Act, 1957 for

protection of its rights envisaged under the Act. Further, arbitration clause cannot bar

the present suit as the dispute resolution clause would only apply to disputes arising

from the contractual obligations and in the present case the dispute is beyond the scope

of the agreement. Also, the arbitration clause fails to provide a clear procedure of

establishment of the arbitral tribunal rendering the arbitration clause of the agreement

unenforceable.

II. THE DEFENDANT HAS COMMITTED A BREACH OF CONTRACT.

The Defendants have committed a fundamental breach of the contract by failing to pay

the consideration. Further, since there was no material breach by the Plaintiff, it was

unlawful on the part of the Defendant to have peremptorily terminated the contract.

Therefore, the Defendant is not entitled to any claim for damages.

III. A QUIA TIMET ACTION LIES AGAINST THE DEFENDANT

The ownership of the computer programs developed vests in the Plaintiff being the

author. Also, the Defendant was only entitled to a limited set of rights under the

nonexclusive license. Thus, the Defendants claim of the exclusive rights as an owner is

in clear contravention with the license agreement. Therefore, a quia timet action lies

against the Defendant because there exits an imminent threat of infringement and the

possibility of irreparable harm if the Defendant is not restraint.

-Pleadings- 1


PLEADINGS

1. THAT THE PRESENT SUIT IS MAINTAINABLE BEFORE THIS HON’BLE COURT

It is humbly submitted that the present suit has been filed before this Hon’ble court under the

Act, 1957 for protection as well as enforcement of the rights of the plaintiff, as an owner of

copyrighted material, emanating under the Act, 1957.

Programs are usually created using an intermediate programming language which are called

source code.1 This use of symbolic language to create programs leads to their characterization

as “literary works” under the Act and definite protection to such “computer programs”2 has

been provided under the Act, 1957. Despite the fact that the development of software often

requires large investments of time and money, modern copying techniques allow quick and

inexpensive duplication.3 It is asserted that the availability of simple copying makes

innovative software peculiarly vulnerable to improper loss of commercial advantages over

competitors makes it critical that the copyright in software must be protected.4

Indico in the present case had developed the computer programs by investing its money,

resources and time. In light of the modern copying techniques that are available, it is of

utmost importance that the copyright vested in these computer programs must be protected to

ensure that the producers of original software are not deprived of the benefits of their labors.

The exclusive right to access the source code, right to adapt, right to reproduce, right to

resale, right to license, right to make derivatives and adaptations, etc vest only with the owner

1 Dennis S. Karjala, Copyright, Computer Software and The New Protectionism, 28

Jurismetrics J. 33, 37 (1987-1988). 2 Indian Copyright Act (1957) Sec. 2(ffc) - “Computer programme means a set of

instructions expressed in words, codes, schemes or in any other form, including a machine

readable medium, capable of causing a computer to perform a particular task or achieve a

particular result”. 3 Dr. Ulrich Loewenheim, Legal Protection for Computer Programs in West Germany (Sept.

16, 2014)

http://www.law.berkeley.edu/journals/btlj/articles/vol4/Loewenheim/html/reader.html. 4 DENNIS, supra note 1 at 35.

-Pleadings- 2


of the copyright.5 When the copyright in a work is infringed the plaintiff would be entitled to

the wide ranging injunctions to restrain any further infringement of its intellectual property

rights in any of its software at the hands of the defendants. 6

Indico is the sole owner of the computer program developed under the contract and Carco

merely had a nonexclusive license to these computer programs. However, in clear

contravention of the license agreement, Carco has claimed the “ownership” of the computer

programs.7 Therefore, this suit has been filed before this Hon’ble Court to ensure that Indico

exclusive rights remain unblemished.

1.1 THE PRESENT DISPUTE CANNOT BE RESOLVED BY ARBITRATION

Assuming, but not conceding that the claim with regards to the copyright of the programs

developed by Indico are to be decided by the arbitral tribunal and the tribunal must

interpret the text of the arbitration clause strictly as it is an indication of the parties’

intent.8 It is important that an arbitrator should not go beyond the mandate reached at in

the agreement.9 Thus, the jurisdiction of arbitrators depends upon what matters have

been submitted to arbitration in accordance with the particular arbitration agreement. In

absence of adherence to this directive, there is a risk that the award will be refused

recognition and enforcement under Article V(1)(c) of the New York Convention10 and

the UNCITRAL Model Law.11 Moreover, the Supreme Court in M/s MSK Projects (I)

(V) Ltd. v. State of Rajasthan & Anr. reiterated this principle and held that any attempt to

5 Kensoft Infotech Limited v. Sundaram BNP Paribas Home Finance Limited & Anr., (2010)

IndLaw 1250 (Mad). 6 Microsoft v. Yogesh Papat & Anr., (2005) 118 DLT 580. 7 Para 12, p. 4, Factsheet. 8 Metal Distributors (U.K.) Ltd v. ZCCM Investment Holdings Plc. (2005) EWHC (Comm)

156. 9 NIGEL BLACKABY, CONSTANTINE PARTASIDES, ALAN REDFERN& MARTIN HUNTER,

REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION 107 (Oxford University Press, 5th

ed. 2009). 10 Ibid. 11 UNCITRAL Model Law on International Commercial Arbitration, (1985), art. 34(2)(iii)

and 36(i)(a)(iii), June 21, 1985, 21 U.S.T 2517, 330 U.N.T.S 38.

-Pleadings- 3


go beyond the terms of the agreement would be void and without any jurisdiction12 and

an arbitrator cannot widen his jurisdiction by deciding a question not referred to him by

the arbitration clause.13 If he does so, he commits a jurisdictional error.14

In the present case, the dispute resolution clause could only be enforced to decide claims

and disputes emanating from contractual obligations. Therefore, the present dispute with

regard to ownership of the computer programs developed by Indico is per se beyond the

scope of the agreement between the parties, more so, the dispute resolution clause in the

agreement.

Whether in any particular case a dispute falls within an agreement to arbitrate depends

primarily upon the wording of the agreement.15 It is submitted that in the present case

only disputes which would be unresolved by amicable talks could be referred to

arbitration.16 Therefore, the arbitration agreement in the present situation is applicable

only to certain categories of disputes of arbitration and leaving others to jurisdiction of

the national courts.17

1.2 IN THE PRESENT CASE THE ARBITRATION AGREEMENT IS UNENFORCEABLE

It is asserted that the present arbitration clause is a multi-tier clause which the defendant

has failed to comply with.18 Such a clause typically provide for certain steps and efforts

to be taken by the parties prior to commencing arbitration.19 It requires the parties to

fully explore the possibility of amicable settlement prior to the launch of often lengthy,

expensive and disruptive arbitral proceedings.20 Moreover, arbitral award risks

enforcement if the parties have failed to satisfy participation in mandatory negotiation

12 MSK Projects (I) (V) Ltd. v. State of Rajasthan & Anr., (2011) AIR 2979 (SC). 13 Associated Engg. Co. v. Govt. of Andhra Pradesh, (1992) AIR 232 (SC). 14 Renusagar Power Co. Ltd. v. General Electric Company & Anr., (1985) AIR 1156 (SC). 15 MICHAEL MUSTILL ET AL, MUSTILL AND BOYD: COMMERCIAL ARBITRATION 108 (LexisNexis, 3rd ed. 2008). 16 Para 3, p. 3, Factsheet. 17 REDFERN, supra note 9, at 108. 18 Para 3, p. 3, Factsheet. 19 Alexdander Jolles, Consequences of Multi-tier Arbitration Clauses: Issues of Enforcement,

72 Arbitration, 329–338 (2006). 20 REDFERN, supra note 9, at 115.

-Pleadings- 4


sessions as provided in the contract prior to commencing arbitration.21 Thus, in the

present case, the non-compliance with the multi-tiered dispute resolution method as

provided by the contract by Carco blemishes the prospective arbitration.

It is humbly submitted that the failed term is not an ancillary logistical concern but rather

is an important consideration as the agreement to arbitrate itself, a court will not sever

the failed term from the rest of the agreement and the entire provision for arbitration will

fail.22 The courts have found performance of the arbitration clause impossible where the

parties have agreed upon a specific procedure that cannot be realized or where the terms

of an arbitration agreement are so vague, indefinite, or internally contradictory that the

Tribunal cannot ascertain the parties’ intent.23 Such clauses are commonly referred to as

“pathological”.24 Considerable difficulties arise where the arbitration clause provides for

the appointment of an arbitrator by a third person, a statutory or an institutional

framework and appointer fails to make an appointment, a vacuum is created and

arbitration cannot proceed.25 It is submitted that in the present case, the lack of a definite

procedure with regards to arbitration makes the arbitration clause pathological and

incapable of being performed.

21 Kathleen Scanlon, Country Report for US, in Enforcement of Multi-tiered Dispute

Resolution Clauses, IBA Newsletter of Committee D (Arbitration and ADR), Vol.6 No. 2,

October 2001. 22 Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.Supp. 1359, 1364

(N.D.Ill.1990). 23 GARY BORN, INTERNATIONAL COMMERCIAL ARBITRATION: COMMENTARY AND MATERIALS

160 (Kluwer Law International 2001); Wilson v. Lignotock, 709 F. Supp 797, 798 (E.D.

Mich. 1989). 24 JULIAN D. M. LEW, LOUKAS A. MISTELIS & STEFAN KRÖLL, COMPARATIVE INTERNATIONAL

COMMERCIAL ARBITRATION 154 (Kluwer Law International 2003); Lovelock Limited v.

Exportles (1968) 1 Lloyd's Rep. 163. 25 CLIVE MAXIMILIAN SCHMITTHOFF, CLIVE M SCHMITTHOFF’S SELECT ESSAYS ON

INTERNATIONAL TRADE LAW 614 (BRILL 1988).

-Pleadings- 5


2. THAT A QUIA TIMET ACTION LIES AGAINST THE DEFENDANT

It is humbly submitted that [2.1] the ownership of the copyright in the computer program

vests with Indico. [2.2] Further, Carco has acted beyond the scope of the license. [2.3]

Therefore, a Quia timet action lies against Carco.

2.1 THE OWNERSHIP OF THE COMPUTER PROGRAMS VESTS WITH INDICO

It is a well-established proposition that computer programs are copyrightable subject-

matter, just like other literary work.26 Computer programs, whether in source code or

object code are to be protected as literary works27 under the Berne Convention, 1971.28

Furthermore, both systems and applications programs have been held subject to

copyright protection.29 Therefore, in the present circumstances the computer programs

developed by Indico are protected by the established principles of copyright law.

Further, it is submitted that sole authorship of the computer software vests in Indico. An

author engaged on a fixed remuneration is not a servant of the publisher and the

copyright vests with the author.30 A party which merely provides ideas cannot claim joint

authorship of the eventual program31 unless there is an expressed provision to the

contrary in the contract.32 Also, a license merely permits certain things to be done by the

licensee and does not transfer the title in the copyright.33

26 N.S. GOPALAKRISHNAN, INTELLECTUAL PROPERTY AND CRIMINAL LAW,

159-60 (Natl. Law Sch.of In. 1994). 27 Agreement on Trade- Related Aspects of Intellectual Property Rights, art. 10(o), April, 15,

1994, 1869 U.N.T.S 299, 33 I.L.M. 1197 (1994). 28 Berne Convention for the Protection of Literary and Artistic Works, art. 4, Sept. 9, 1886, as

revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986). 29 Apple Computer, Inc. v. Formula Int'l. Inc., 725 F.2d 521, 523 (9th Cir. 1984). 30 Dhankappan v. Vidyarambhan Press and Book Depot (P) Ltd.(1969) ILLJ 323 (Ker). 31 Ray v Classic FM Plc.(1998) E.C.C. 488. 32 Clearsprings Management Ltd v. Businesslinx Ltd., (2005) EWHC 1487 (Ch). 33 T. R. SRINIVASA IYENGAR, COMMENTARY ON THE COPYRIGHT ACT 212 (Universal Law

Publishing Co. Pvt. Ltd. (7th ed. 2010).

-Pleadings- 6


Therefore, in the light of the facts of the case the codes have been developed by Indico

and Carco was only given a non-exclusive license,34 thus, the “ownership” of the

copyright in the computer programs vests with Indico.

2.2 CARCO HAS ACTED BEYOND THE SCOPE OF THE NONEXCLUSIVE LICENSE

AGREEMENT

It is well settled that “a software license is a right granted by a copyright owner of a

software program to a person, permitting him to use the said software, without infringing

the licensor’s copyright”35. Further, in a nonexclusive license there are significant

restrictions on the use of the software.36 It would be pertinent to submit in the present

case that Carco was granted a non-exclusive license by Indico and therefore, Carco was

only entitled to use the software programs in a limited way as contemplated by the terms

of their license.

A licensee arguably may act beyond the scope of license by continuing to use the

licensed work while failing to make required payments, even though a failure to make

payments otherwise lacks a nexus to the licensor's exclusive statutory rights.37 Carco had

failed to pay Indico the consideration (third instalment) for the programs submitted by

Indico and had continued to use the program, thereby acting outside the scope of the

license agreement.

A nonexclusive license is not a transfer of ownership.38 Carco acted beyond the ambit of

the license by claiming “ownership”39 of the computer programs that were developed by

Indico.

2.3 A QUIA TIMET ACTION LIES AGAINST CARCO

34 Para 3, p.2, Factsheet. 35 World Intellectual Property Organisation, WIPO Guide on Licencing of Copyright And

Related Rights, 90 (September 12, 2014)

http://www.wipo.int/edocs/pubdocs/en/copyright/897/wipo_pub_897.pdf. 36 Vernor v. Autodesk, Inc., 621 F. 3d 1102, 1108-09 (9th Cir. 2006). 37 MDY Industries LLC v. Blizzard Entertainment Inc., 629 F.3d 928 (9th Cir. 2010). 38 Johnson v. Jones, 149 F. 3d 494, 500 (6th Cir.1998). 39 Para 12, p.4, Factsheet.

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Quia timet action is a well settled principle of equity. It is an action preventive in nature

and a specie of precautionary justice intended to prevent apprehended wrong or

anticipated mischief and not to undo a wrong or mischief when it has already been

done.40Unlike interim injunctions, a Quia timet injunction would be granted based on a

mere threat of an infringing act.41 In the present circumstances, if Carco utilizes the

computer programs developed by Indico in contravention of the license agreement, it

would amount to an act of infringement.

The principle of Quia timet has been recognised in Indian jurisprudence.42 The court

would assist the party who seeks its aid, because he fears some future probable injury to

his rights or interests, and not because an injury has already occurred, which requires any

compensation or other relief.43It is humbly submitted that in the present circumstances, if

the remedy is delayed, the damage suffered would be such that it would be impossible

for Indico to protect itself against the damage.44

The concept of Quia timet action was established in the English case of Fletcher v

Bealey45 which has settled into a well-defined principle. For a Quia timet action [2.2.1]

there must be, if no actual damage is proved, be proof of imminent danger, and; [2.2.2]

there must also be proof that the apprehended damage will, if it comes, be very

substantial. [2.2.3] Since both these essentials are fulfilled, a Quia timet action lies

against the defendant.

2.2.1 THERE IS AN IMMINENT DANGER OF INFRINGEMENT OF COPYRIGHT 40 Kuldip Singh v. Subhash Chander Jain & Ors. (2000) 4 SCC 50. 41 Jawahar Engineering Co. and Ors v. Javahar Engineering Private Ltd., (1984) AIR 166

(Del). 42 Foodworld v. Foodworld Hospitality Pvt. Ltd., (2012) 42 PTC 108 (Del); Tube

Investments of India Ltd. v. BSA-Regal Group Ltd. (2010) 42 PTC 493 (Mad); Radio Today

Broadcasting Ltd. v. Indian Performing Rights Society Ltd. and Ors. (2009) 39 PTC 431

(Cal); K.R.B.L. Limited v. Ramesh Bansal & Anr. (2009) 41 PTC 114 (Del); Radio Today

Broadcasting Ltd. v. Indian Performing Rights Society Ltd. & Ors., (2009) 39 PTC 431 (Cal). 43 SIR JOHN GEORGE WOODROFFE, THE LAW RELATING TO INJUNCTIONS IN INDIA, Pakistan

and Burma 18 (T. Spink 1964). 44 Fletcher v. Bealey (1885) 28 ChD 688. 45 Gangabai v. Purshotum Atmaram (1907) 9 BOMLR 912; supra note 40.

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An imminent danger is such an appearance of threatened and impending injury as

would put a reasonable and prudent man to his instant defence.46 The said danger of

infringement is imminent risk of substantial damages with certainty as the defendants

have already acted beyond the scope of the license agreement and will continue to do

so in the light of the continuous acts of the defendants and their unilateral act of

claiming ownership over the program.47

Despite a cease and desist notice, Carco continued to act outside the ambit of the

license agreement.48 It has been held that if after such a notice, a party continues the

act of non-compliance, evidence of it can be to show that the plaintiff was right in his

allegation that, at the date of action brought, the defendant was threatening &

intending to infringe.49

Further, Carco has claimed ownership of the computer programs developed by Indico

in clear contravention of the license agreement. Therefore, there exists an

unmistakable case of imminent threat of copyright infringement.

2.2.2 THE APPREHENDED HARM WILL BE IRREPARABLE

Irreparable harm is an injury that is not remote or speculative but actual and

imminent, and for which a monetary award cannot be adequate compensation.50 A

copyright holder in the ordinary case may be presumed to suffer irreparable harm

when his right to the exclusive use of the copyrighted material is invaded.51

The Supreme Court in the case of Tashi Delek Gaming Solutions Ltd. and Anr.v.

State of Karnataka and Ors 52held that a fortiori, a Quia timet application would be

46 Black’s Law 765 (8th ed. 2004) . 47 Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. (2011) 48 PTC 49 (Del). 48 Para 11, p.4, Factsheet. 49 Shoe Machinery Co. Ltd. v. Cutlan, (1896) 1 Ch 667. 50 Jackson Dairy, Inc. v. H.P. Hood & Sons In 596 F.2d 70, 72 (2nd Cir.1979). 51 Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 (2nd Cir. 1967); Joshua

Meier v. Albany Novelty Mfg. Co., 236 F.2d 144 (2 Cir. 1956); Rushton v. Vitale, 218 F.2d

434 (2 Cir. 1955). 52 Tashi Delek Gaming Solutions Ltd. and Anr.v. State of Karnataka and Ors. (2006) 1 SCC

442.

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maintainable if one’s right to carry on business is infringed. It is submitted that in the

present set of circumstances, if Carco is allowed to use the programs developed by

Indico it would hamper the future commercial viability of the Indico’s business.

2.2.3 AN INJUNCTIVE RELIEF IS THE APPROPRIATE REMEDY

Since one of the objects of an injunction is to restrain future commission of injurious

acts, the court will grant an injunction, if infringement is threatened, though no actual

infringement has taken place.53 In Gujarat Bottling Co. Ltd.54 the Hon’ble Supreme

court laid down the essentials of granting an injunction. These standards have been

often used by Indian courts as a basis of testing the ingenuity in the facts and

circumstances of a case55. These pre-requisites are that [2.2.3.1] that there exists a

prima facie case for injunction; [2.2.3.2] that the balance of convenience lies in favour

of the plaintiff; and [2.2.3.3] the plaintiff cannot be adequately compensated with

monetary damages.

2.2.3.1 A PRIMA FACIE CASE EXISTS FOR INJUNCTION

It has been held that for a Quia timet action the court may not require proof of

absolute certainty or a proof beyond reasonable doubt before, but only a

probability that the apprehended infringement will in fact arise.56The remedy of an

injunction is preventive in its nature and therefore, it is not necessary that a wrong

should have been actually committed before the Court will interfere, since if this

were required it would in most cases defeat the very purpose for which the relief is

sought by allowing the commission of the act which the complainant seeks to

restrain. 57

53 Historical Pub co. v. Jones Bros Pub Co. 231 F. 638 (3rd Cir, 1916). 54 Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) AIR 2372 (SC). 55 Dalpat Kumar & Anr. v. Prahlad Singh & Ors., (1993) AIR 276 (SC); M. Sreenivasulu

Reddy v. Kishore R. Chhabria.,(2002) 109 CompCas 18 (Bom); Milan Commercial Private

Limited v. Asian Healthcare Sendees Limited and ors., (2010) 2 Bom.C.R. 295 (Bom); Ultra

Tech Cement Limited v. Alaknanda Cement Private Limited and Anr., (2011) 5 Bom.C.R.

588 (Bom). 56 Ibid. 57 Supra note 47.

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In the present case, the actions and claims of Carco are a clear indication that the

defendants will infringe the copyright in the computer programs developed by

Indico. Also, if a license is limited in scope, and the licensee acts outside the scope

of the license, the licensor can bring an action.58 Therefore, the present

circumstances present a prima facie case of imminent infringement of copyright.

2.2.3.2 THE BALANCE OF CONVENIENCE LIES IN FAVOR OF THE PLAINTIFF

It is further asserted that need of the defendant to be protected against injury

resulting from his having been prevented from exercising his legal rights for which

he could not be adequately compensated is to be weighed against the

corresponding need for such an injunction to be given. The court must weigh one

need against another and determine where the “balance of convenience” lies.59

It is asserted that in the present case, Indico would suffer greater harm in terms of

money, goodwill and future commercial prospects if an injunction is not granted. A

computer program typically is written in several tedious steps.60 Indico has put in

unfathomable time, effort and resources into the development of the computer

program. Therefore, the losses incurred by Indico if Carco is not barred from

infringing the copyright in the computer programs outweigh the loss of Carco.

2.2.3.3 THE PLAINTIFF CANNOT BE ADEQUATELY COMPENSATED BY

MONETARY DAMAGES.

When a particular product is essential to the life of a business or increases business

of the plaintiff beyond the sales of the product, the damages caused by the loss of

such a product would not be compensable monetarily.61 Further, it is submitted that

due to the intangible nature of a copyright and the inherent difficulty in calculating

damages for infringement the plaintiff cannot be compensated in monetary terms.

The software development agreement was Indico’s first international contract,

whereby Indico had invested an enormous amount of capital in order to deliver the 58 Allman v. Capricorn Records, 42 Fed.Appx, 82, 83 (9th Cir. 2002). 59 Supra note 54. 60 Duncan M. Davidson, Protecting Computer Software : A Comprehensive Analysis, 23

JURIMETRICS J. 337, 341-42 (1983). 61 Tom Doherty Assoc. v Saban Entm’t Inc., 60 F. 3d 27, 38 (2nd Cir. 1995).

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software worth $ 7,000,000 USD. Also, it can be logically deduced that there was a

contemplation of future business on account of licensing of the software to various

other automobile companies.

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3. THAT THE DEFENDANT HAS COMMITTED A BREACH OF CONTRACT

If a party to a contract breaches an obligation which the contract imposes, then that party is

said to be in breach of contract.62[3.1] In the present case, the defendant has committed a

fundamental breach of the contract. [3.2] further, the defendant terminated the contract

without any lawful grounds. [3.3] Therefore, Carco is liable to pay the 3rd instalment.

3.1 THERE IS A FUNDAMENTAL BREACH OF CONTRACT BY CARCO

A breach is of fundamental character when it “goes to the root of the contract”.63 This

connotes the concept of significance, as opposed to triviality, and its materiality has to be

measured in its total context.64 It is humbly submitted that [3.1.1] consideration is an

essential to the present contract and that [3.1.2] non-payment of consideration is a

fundamental breach of the contract.

3.1.1 CONSIDERATION IS AN ESSENTIAL TO THE CONTRACT

A promise made without a consideration is not actionable as a contract.65 A valuable

consideration consists in some right, interest, profit or benefit accruing to the one

party, or some forbearance, detriment, loss or responsibility given, suffered or

undertaken by the other.66 It is asserted that Indico had agreed to develop the software

only on the consideration of the payment upon various milestones. The party would

not have contracted if the assurance had not been given.67

3.1.2 BREACH OF AN ESSENTIAL ELEMENT IS BREACH OF CONTRACT.

A fundamental breach is a breach that has a serious effect on the benefit that the

innocent party would have otherwise derived from the contract.68 Further, the

62 WILLIAM REYNELL ANSON, J. BEATSON, ANDREW S. BURROWS & JOHN CARTWRIGHT

ANSON’S LAW OF CONTRACT 507 (Oxford University Press, 29th ed. 2010). 63 L. Schuler AG v. Wickman Machine Tool Sales Ltd., (1973) 2 All ER 39. 64 Crosstown Music Company, LLC v. Rive Droite Music Ltd & Ors., (2010) EWCA Civ

1222; Gallaher International Ltd v. Tlais Enterprises Ltd , (2007) EWHC 464 (Comm). 65 ANSON, supra note 26, at 118. 66 Ibid. at 91 67 Bannerman v. White (1861) 10 CBNS, 844. 68 National Power Plc. v. United Gas Co Ltd. & Anr., (1998) All ER (D) 231.

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UNIDROIT Principles on International Commercial Contracts define ‘non-

performance’ as a failure by the party to perform its obligations under the contract.69

It is submitted that whether a breach of an agreement is “material” must depend upon

all the facts of the particular case, including the terms and duration of the agreement

in question, the nature of the breach and the consequences of the breach.70The

plaintiff contends that the consideration was a quintessential element of the contract

and Carco had failed to perform its contractual obligations by its failure to pay the

third instalment. It was held in a recent case that non-payment in a software

development contract would constitute material breach.71 The nonexclusive license

can as a rule be revoked by the licensor if the licensee has not paid money for it.72

Therefore, non- payment of the whole of the agreed instalment, at a time when Carco

enjoyed unrestricted right to benefits of contract was clearly a breach of terms of

contract.73

3.2 CARCO HAS UNLAWFULLY TERMINATED THE CONTRACT

It is asserted that Carco has terminated the contract without any legal grounds.[3.2.1]In

the present case the force majeure clause condones the delay by Indico. [3.2.2] Also, it is

submitted that there was no misrepresentation by Indico. [3.2.3] Therefore, the Carco has

terminated the contract unlawfully.

3.2.1 THE DOCTRINE OF FORCE MAJEURE IS APPLICABLE

It is humbly submitted that the present contract embodies a “force majeure” clause.74

A “force majeure clause” is a contractual term by which a party to the contract is

entitled to claim extension of time for performance, upon happening of a specified

69 UNIDROIT Principles of International Commerical Contracts, art. 7.1.1 2010, 834 UNTS

169 – “Non-performance is failure by a party to perform any of its obligations under the

contract, including defective performance or late performance”. 70 Glolite Ltd. v. Jasper Conran Ltd., Chancery Division, (2008) EWHC 804; Dalkia Utilities

Services PLC v. Celtech International Limited, (2006) EWHC 63 (Comm). 71 De Beers U.K. Ltd v. Atos Origin IT Services U.K. Ltd, (2010) EWHC 3276 (TCC). 72 Wharton’s Law Lexicon 996 (15th ed. 2009). 73 Supra note 70. 74 Para 3, p.2, Factsheet.

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event beyond his control.75 If such a provision exists in a contract, the circumstances

which merely hinder the performance may also fall within the provision.76 When a

claim is made under the provision of “force majeure” clause, the claimant must show

that he has been prevented from fulfilling the contract by such an event or cause.77

It seems unlikely that a clause which merely permits one party to suspend, postpone

or cancel performance upon the happening of events beyond his control would, in a

commercial contract, be held to be unreasonable,78 however the force majeure clauses

are recognised universally.It has been held that a party could rely upon a force

majeure clause where the delivery was prevented, inter alia, by ‘government

intervention…. beyond the seller’s control’.79

Therefore, it is submitted that the delay by Indico to deliver the second milestone is

attributable to the government enquiry.80 Further, the contract clearly stipulated a

force majeure provision under Clause III which states that Indico had “the option” to

extend the submission of the SOW “by one calendar month, in the event that such

delay was due to circumstances beyond its control”.81 Therefore, it is submitted that

such delay by Indico is liable to be condoned.

3.2.2 THERE WERE NO MISREPRESENTATIONS MADE BY INDICO

75 JOSEPH CHITTY, CHITTY ON CONTRACTS, VOL. 1 981 (Thomson Reuters 13th ed., 2008). 76 Re Locki and Craggs, (1901) 86 L.T. 388. 77 P.J. van der ZijdenWildhandel N.V. v. Tucker & Cross ltd (1924) 2 K.B. 220. 78 Shearson Lehman Hutton Inc. v. Maclaine Watson & Co Ltd., (1989) 2 Lloyd’s Rep. 570,

612. 79 C. Czarnikow Ltd. v. Centralla Handlu Zagranicznego Rolimpex (1979) AC 351;

Appellate Tribunal For Electricity Gujarat Urja Vikas Nigam Limited v. Gujarat Electricity

Regulatory MANU/ET/0148/2014. 80 Para 6, p. 3, Factsheet. 81 Para 3, p. 2, Factsheet.

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It is contended that there is an absence of misrepresentation by Indico. In the present

case, the plaintiff has not misstated any material fact specifically made for the purpose

of inducing Carco to award the contract to Indico.82

When the party claiming misrepresentation relies on its own judgment or

investigations, there will be no liability on the part of the other party.83It is contended

by the plaintiff that the SOW was assigned to Indico on the basis of its

“specialization” in information technology services, especially for automobile related

services.84 Therefore, the contract was awarded to Indico in accordance with its

market reputation. It is must also be noted that the defendants had confirmed of

Indico’s ability to deliver the SOW.85 Further, if the statements made by a party were

true to their knowledge, before the contract was made, and the circumstances change

in due course of time, the party cannot be made liable for such changes.86

3.2.3 THE CONTRACT WAS ARBITRARILY TERMINATED BY CARCO

In the case of Bluewater Energy Services BV v Mercon Steel Structures BV and

others87it was held that whilst the question of what was ‘satisfactory’ was a matter for

the subjective view of the party, however this was subject to the implied limitation

that where a decision is left to the subjective view of one of the parties to the contract

then concepts of honesty, good faith and genuineness are relevant as well as a need

for the absence of arbitrariness, capriciousness, perversity and irrationality.88

In the present circumstances, the outright rejection of the beta version of the software

implies that there was no proper user acceptance testing.89 Furthermore, it is

82 EDWARD AVERY HARRIMAN, ELEMENTS OF LAW OF CONTRACTS 426 (Ullan Press 2012);

ANSON, supra note 9, at 232-233. 83 Attwood v. Small, (1838) 6 Ch& Fin 232. 84 Para 1, p.1, Factsheet. 85 Para 4, p.3, Factsheet. 86 Thomas Whitter Ltd. v. TBP industries, (1994) 14 TRL Rep, 145 (Ch D). 87 (2014) EWHC 2132 (TCC). 88 Socimer International Bank v. Standard Bank, (2008) EWCA Civ 116. 89 KSHIRASAGAR NAIK & PRIYADARSHI TRIPATHY, SOFTWARE TESTING AND QUALITY

ASSURANCE: THEORY AND PRACTICE 1.13 (John Wiley & Sons 2011).

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submitted that a beta version is a testing phase version wherein detection of flaws is

very common.90 Also, a licensee that accepts a performance has the burden of

establishing the breach of contract. A licensee should not be able to cancel a software

contract because of a minor bug or errant line of code.91 Therefore, the defendants

arbitrarily terminated the contract.

3.3 CARCO IS LIABLE TO PAY THIRD INSTALMENT

After its termination, a contract survives for the sole purpose of measuring the losses

arising out of breach.92 Where a party sustains loss by reason of a breach of contract, he

is, so far as money can do it to be placed in the same situation, as if the contract had been

performed.93 Damages are the pecuniary recompense given by process of law to a person

for the actionable wrong that another has done him.94 Additionally, it has been held that

“the defaulting party will be liable in damages both for any earlier breaches and also for

the breach leading to the discharge of the contract.”95 In the present case, the losses

which are suffered by Indico are due to the non-payment of the third instalment by the

defendant.

It is further essential that a person who claims damages for breach of a contract should

have performed or was ready to perform his part of obligations arising under the

contract.96 It is submitted that in the present case, the performance of Indico was of such

high standard that Carco awarded Indico additional work. Therefore it is submitted that

Indico had performed its contractual obligations and thus, Carco is liable to pay the third

instalment.

90 BORIS BEIZER, SOFTWARE TESTING TECHNIQUES 2 (Dreamtech Press 2003). 91 MICHAEL RUSTAD, SOFTWARE LICENSING: PRINCIPLES AND STRATEGIES 252 (Oxford

University Press 2010). 92 Heyman v. Darwins Ltd. (1942) A.C. 356, 361. 93 Robinson v. Harman, (1848) 154 Eng. Rep. 363 (Exch).; The No.2 Unique Mariner, (1979) 1 Lloyd’s Rep.

37, QBD (admlty). 94 Hadley v. Baxendale (1854) 8 Ex 341. 95 Johnson v. Agnew, (1980) A.C. 367; (1979) 1 All ER 883. 96 Himachal Fruit Growers Co-op Mktg. and Processing Society Ltd. v Upper India Food

Preservers & Processors Pvt. Ltd. (1984) AIR 18 (HP).

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PRAYER

In the light of arguments advanced and authorities cited, the Plaintiff humbly submits that

the Hon’ble Court may be pleased to adjudge and declare that:

1. That, the suit filed is maintainable in this Hon’ble court.

2. That, a Quia timet action lies against the defendant.

3. That, Carco is liable to pay the 3rd instalment to Indico.

Any other order as it deems fit in the interest of equity, justice and good

conscience.

For This Act of Kindness, the Plaintiff Shall Duty Bound Forever Pray.

Memorial for PLaintiff- Army Institute of Law, Mohali · Indico, a private limited company...

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Transcript of Memorial for PLaintiff- Army Institute of Law, Mohali · Indico, a private limited company...