70

BEFORE THE HONOURABLE

HIGH COURT OF MAHANAGAR

THE 2025 FALL MOOT COURT SOCIETY (MCS) INDUCTIONS,

JINDAL GLOBAL LAW SCHOOL (JGLS)

SHIVAM MERCHANTILE PVT. LTD.

(APPELLANT)

vs

AGRINOX MACHINERY LLP

(RESPONDENT)

MEMORIAL for the APPELLANT

I
 TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS................................................................................... 6

STATEMENT OF JURISDICTION........................................................................................…7

QUESTIONS PRESENTED...................................................................................................…..8

SUMMARY OF ARGUMENTS...................................................................................................9

ARGUMENTS ADVANCED.......................................................................................................11

[1] WHETHER SHIVAM ACTED WITHIN THE SCOPE OF ITS …………………… 11

COMMERCIAL ARRANGEMENT WITH ZAE IN ITS DEALINGS WITH AGRINOX?

(1.1) Transaction with Agrinox Was Commercially Justified............................................11

(1.2) Promotional Materials Were Permitted Market Adaptations …………………… 12

(1.3) Verbal Discussions Are Not Actionable and Are Superseded by Written Terms… 14

[2] THE STATEMENTS BY MS RATHORE SOLICITED ……………….……………. 16

AS SENIOR SALES LEAD DOES NOT INDUCE AGRINOX TO PLACE THE ORDER

(2.1) statements by ms rathore solicited as senior sales lead some not……………………16

induce agrinox to place the order

(2.2) the statement by ms. rathore was never contractually……………………………... 18

binding and cannot constitute inducement or misrepresentation

(2.3) primary duty of the buyer under the doctrine of caveat emptor ……………….…20

to ascertain suitability for contract

(2.4) waiver of inspection precludes rejection and confines remedy to warranty claim ..21

II
 [3] MAINTANABILITY OF SUIT

(3.1) THE SUIT WAS NOT MAINTAINABLE DUE TO …………………………….. 23

NON – COMPLIANCE OF S.12A OF THE COMMERCIAL COURTS ACT

(3.2) THE LEGISLATIVE MANDATE OF SECTION 273………

PRECLUDES SECTION 273A TO BE RECONCILED HARMONIOUSLY

(3.3) INCONSISTENCIES ARE OF SUCH A NATURE THAT IT IS IMPOSSIBLE TO OBEY

ONE WITHOUT DISOBEYING THE OTHER.................................................................................25

PRAYER.......................................................................................................................................26

II
 STATEMENT OF RELEVANT FACTS

I) Background of the Parties and Distribution Arrangement

Shivam Mercantile Pvt. Ltd. (“Shivam”) is a Mumbai-based company engaged in the trade and

distribution of advanced agricultural equipment, including GPS-enabled tillers and AI-integrated

ploughing systems. It operates in multiple Indian states and has recently expanded into smart-farming

solutions under the AgriTech Bharat 2030 initiative. On 1 June 2023, Shivam entered into a Distribution

and Marketing Agreement with Zhongxing Agricultural Equipment Co. Ltd. (“ZAE”), a Chinese

manufacturer of the “ZT-9X Pro Max” autonomous tiller. The agreement authorised Shivam to promote,

market, and facilitate sales of ZAE products in India, with certain transactions—such as high-value

orders or deployment in untested environments requiring prior written intimation to ZAE.

(II) Order by Agrinox and Contractual Terms

Agrinox Machinery LLP (“Agrinox”), based in Coimbatore, manufactures customised agricultural tools

and is a supplier under the Tamil Nadu Smart Farming Initiative (“TNSFI”). At the AgroInnovate Expo

in September 2023, Agrinox representatives discussed the ZT-9X Pro Max with Shivam’s sales team,

inquiring about its suitability for Tamil Nadu’s black soil. On 15 September 2023, Agrinox placed a

bulk order for 42 units valued at ₹1.68 crore. The contract provided for delivery in three batches of 14

units each, with corresponding advance payments of ₹56,00,000 prior to each delivery, scheduled on or

before 10 November 2023, 31 December 2023, and 31 January 2024. Shivam’s standard terms contained

a disclaimer for performance variations in untested conditions.

(III) Delivery, Performance Issues and Response

The first batch of 14 units was delivered in November 2023 against full advance payment. On 4

X
December 2023, Agrinox reported technical issues such as GPS instability, terrain-adaptation

difficulties, and recurring manual recalibration requirements, attaching a technical report. Shivam

immediately forwarded the report to ZAE. On 18 December 2023, ZAE noted that the product was not

fully calibrated for Indian black soils, though this information had not been conveyed to Shivam earlier.

Shivam engaged with ZAE to address the concerns.

(IV) Repudiation, Suit and Decision of the Commercial Court

Before the second instalment was due, Agrinox withheld payment and refused further deliveries, seeking

cancellation of the contract and refund of the first payment, or alternatively, compensation exceeding

₹95 lakh for alleged urgent-equipment rentals and claimed risks to its TNSFI contract, though no formal

termination had occurred. On 5 January 2024, Agrinox filed a suit before the Commercial Court,

Coimbatore. By judgment dated 4 March 2025, the Court declined to cancel the contract but awarded

Agrinox ₹70 lakh, holding that Shivam exceeded its authority in certain representations.

STATEMENT OF JURISDICTION

X
The Apppellant (Shivam Merchantile Pvt. Ltd.) submits to the jurisdiction of the Hon’ble High

Court of Mahanagar invoking its Appellate Jurisdiction under Article 136 of the Constitution of

Bindia impleading Agrinox Machinery LLP as Respondents. It sets forth the facts and the laws

on which the claims are based.

IN THE HIGH COURT OF MAHANAGAR

THE APPELLANT HUMBLY AND RESPECTFULLY SUBMIT

TO

THE SPECIAL LEAVE JURISDICTION OF THE

HONORABLE COURT

QUESTIONS PRESENTED

[I]

WHETHER SHIVAM ACTED WITHIN THE SCOPE OF ITS COMMERCIAL ARRANGEMENTS WITH
ZAE IN ITS DEALINGS WITH AGRINOX?

X
 [ II ]

EFFECTS OF MS RATHORE’S STATEMENTS ON THE TRANSACTIONS BETWEEN SHIVAM AND

AGRINOX

[ III ]

WHETHER THE COMMERCIAL COURT’S DECISION AND REMEDY AWARDED TO AGRINOX

WARRANTS AN INFERENCE IN APPEAL?

SUMMARY OF ARGUMENTS

[1] SHIVAM ACTED WITHIN THE SCOPE OF AGREEMENT WITH ZAE

X
The Commercial Court erred in holding that Shivam breached Clause 4.2. The clause permits proceeding

without written confirmation “where commercially feasible”. In the time-sensitive environment of the

AgroInnovate Expo, delaying the ₹1.68 crore Agrinox order to obtain written approval would have risked

losing the sale. As held in Nabha Power v. Punjab, Satya Jain v. Anis Ahmed, and The Moorcock (UK),

commercial contracts must be interpreted to reflect business efficacy. In Maharashtra Electricity v.

Ratnagiri Gas, the Court held that interpretation should not defeat original commercial intent. On 15

September 2023, Shivam acted in good faith based on ZAE’s own demonstration models and marketing

implying suitability for Indian soils. Under Section 223, ICA 1872 (Marine Container Services v. Go Go

Garments), an agent acting in good faith is indemnified by the principal. Absence of proof of non-

notification triggers the presumption of regularity (Rangammal v. Kuppuswami).

Promotional materials were within Clause 4.3, allowing adaptations without material deviation. Statements

on soil adaptability aligned with ZAE’s claims and were permissible puffery (Reckitt Benckiser v.

Wipro; Colgate v. HUL; Kent RO). Clause 6.2 allows discretion in consulting ZAE for new claims; Sections

186 and 188 ICA extend implied authority for acts necessary to business. Oral remarks cannot override

written terms (Sec. 92 IEA; Mangala v. Prakash Damodar). Disclaimers validly excluded liability (Seth

Pherumal v. UOI), and under Sec. 237 ICA, liability lies with ZAE.

[2] STATEMENTS BY MS. RATHORE DID NOT INDUCE THE CONTRACT

The statement regarding Erode and Hosur trials was factual, based on preliminary results, and referred to

“similar” conditions, which denotes resemblance, not identity. Agrinox’s presumption of identical

performance was commercially unrealistic. This was competitive sales advertising permissible under Article

19(1)(a). The contract contains no soil-type performance term, and pre-contract opinions not incorporated

are unenforceable (A.B.C. Laminart; Mohun v. Gungaji Cotton Mills).

X
Under caveat emptor, Agrinox bore the primary duty to inspect (Sorabji v. Ismail; Bragg v. Villa

Nova; Peer Mohammad Rowther). Waiver of inspection confines remedies to warranty (Sha Thilokchand v.

Crystal & Co.; Sections 13, 15, 16(2) SOGA). By accepting delivery without inspection, Agrinox cannot

now reject the goods.

[3] MAINTAINABILITY OF THE SUIT

Non-compliance with Section 12A, Commercial Courts Act, 2015 renders the suit untenable (Patil

Automation; Yamini Manohar). Agrinox failed to mitigate loss (Murlidhar Chiranjilal; British

Westinghouse; M. Lachia Setty; UOI v. B. Prahlad), incurring inflated rentals without seeking alternatives

or notifying Shivam. Damages must be assessed at market price on breach date; Agrinox produced no such

proof. Clause 5 incorporated Shivam’s standard terms, excluding liability unless expressly warranted by

ZAE. Time was of the essence; Agrinox’s breach of payment and acceptance schedules warrants specific

performance (Saradamani Kandappan), not cancellation.

X
 ARGUMENTS ADVANCED

[1] SHIVAM ACTED WITHIN THE SCOPE OF AGREEMENT WITH ZAE

(A) Transaction with Agrinox Was Commercially Justified

1. The Commercial Court is wrong in finding that Shivam breached Clause 4.2 of the Agreement which

requires notification and written confirmation for transactions exceeding INR 1 crore or untested

environments “where commercially feasible”. This finding ignores Shivam’s discretion and

commercial context of the transaction.

10
 2. Clause 4.2’s “where commercially feasible” allows Shivam to act without written confirmation when

impractical. In Nabha Power v. Punjanab1 the Supreme Court held that contracts must be interpreted

to reflect business efficacy and parties’ commercial intent. Where terms are ambiguous, courts will

adopt the interpretation that produces the practical outcome. Similarly in Satya Jain v. Anis Ahmed 2

court applied the business efficacy test from The Moorcock Case 3 of the United Kingdom and held

that terms should be construed to produce intended commercial result. At the AgroInnovate Expo, a

time sensitive and competitive environment, delaying the ₹1.68 crore contract with Agrinox to get

written confirmation from ZAE would have meant losing the sale. Shivam’s decision to proceed was

a reasonable exercise of commercial judgment consistent with Clause 4.2’s flexibility.

3. In Maharashtra Electricity Distribution Company v. Ratnagiri Gas Limited 4 the Supreme Court held

that commercial contracts should not be interpreted to defeat the parties’ original intention.

Requiring written approval in a fast-paced expo environment would have defeated the purpose of

Agreement to enable Shivam to facilitate sales and would have made it commercially impractical.

4. Shivam’s actions should be judged on the information available as on 15th September 2023 when

the contract was signed. ZAE informed Shivam on 18th December 2023 three months later that the

ZT-9X Pro Max was not fully calibrated for Indian black soils. Before this ZAE had provided

demonstration models and marketing materials implying suitability for Indian markets. Sec.223 of

I.C.A,18725 states that a principal shall indemnify an agent for acts done in good faith. In Marine

Container Services v. Go Go Garments6, Supreme Court established that an agent who acts in good

faith based on the principal's information is not personally liable for the principal's defaults.

Therefore, Shivam, having acted in good faith by relying on ZAE’s materials, cannot be held liable

for ZAE’s delayed disclosure.

1
Nabha Power Limited v Punjab State Power Corporation Limited (2018) 11 SCC 508
2
Satya Jain (D) v Anis Ahmed Rushdie (D) (2013) 8 SCC 131
3
The Moorcock (1889) 14 PD 64 (CA) (UK)
4
Maharashtra State Electricity Distribution Co Ltd v Ratnagiri Gas & Power Pvt Ltd, 2023 INSC 993
11
 5. Absence of evidence that Shivam did not inform ZAE triggers the presumption of regularity as held

in Rangammal v. Kuppuswami7 which puts the burden on the party alleging non-compliance (here

Agrinox) to prove it. There is no such evidence available, hence Shivam is deemed to have complied

with Clause 4.2.

(B) Promotional Materials Were Permitted Market Adaptations

6. The Commercial Court’s finding that Shivam’s brochures contained unauthorized representations

misinterprets the Agreement’s provisions allowing marketing adaptations.

Clause 4.3 allows Shivam to “adapt promotional language without materially deviating” The

brochure claims the tiller is “fully adaptive across all major South Asian soil types” which is in line

with ZAE’s marketing of “terrain adaptability and satellite-based self-calibration”. In Reckitt

Benckiser v. Wipro Enterprises8, the Delhi High Court held that puffery – exaggerated or vague

promotional claims – is a legitimate marketing strategy and not actionable unless disparaging.

7. Similarly, Colgate Palmolive v. Hindustan Lever Limited (1998) 9 held that puffery involves

subjective statements not meant to be taken as verifiable facts. Shivam’s claim was permissible

puffery, not a warranty, and was tailored to Indian buyers without materially deviating from ZAE’s

positioning.

8. Kent RO v. Advertising Standards Council10 supports this, holding that puffery falls outside the

scope of actionable misrepresentations. Shivam’s promotional language was a standard marketing

adaptation, within its authority under Clause 4.3.

5
Indian Contract Act 1872, S. 223
6
Marine Container Services (I) Pvt Ltd v Go Go Garments (1998) 8 SCC 514
7
Rangammal v Kuppuswami and Anr (2011) 12 SCC 220
8
Reckitt Benckiser (India) Pvt Ltd v Wipro Enterprises (P) Ltd, 2023:DHC:3418
12
 9. Clause 6.2 requires consultation with ZAE “where appropriate” for new performance claims, which

gives discretion. Sections 18611 and 18812 of I.C.A,1872 provide that an agent’s authority, whether

express or implied, extends to acts necessary for business conduct, interpreted liberally in

commercial contexts. In Nabha Power Limited (supra), the Supreme Court endorsed practical

interpretations of discretionary clauses to reflect business realities. Shivam reasonably thought

consultation was not necessary as the brochure language was an adaptation of ZAE’s existing claims

and not a new performance assertion.

10. Judicial interpretations of discretionary powers, as noted in administrative law contexts, emphasize

rationality and good faith, which Shivam exercised in its marketing decisions.

(C) Verbal Discussions Are Not Actionable and Are Superseded by Written Terms

11. The Commercial Court’s reliance on Ms. Rathore’s unrecorded statement is legally flawed as written

contract terms and Shivam’s disclaimers prevail.

12. Ms. Rathore’s statement "extensively field-tested in Erode and Hosur districts" was unrecorded, not

incorporated in the sales contract and disputed. Shivam said it conveyed "positive early feedback

from similar soil conditions", with qualifying words. Sec.92 I.E.A,1872 states that oral evidence that

contradicts written contract terms is not admissible, as held in Mangala v. Prakash Damodar13. The

court held that written agreements are best evidence of intent, unless oral modifications are made

without fraud or separate agreements. Written contracts prevail over oral statements in commercial

disputes. The statement was promotional in nature and not contractual hence not actionable.

13. Shivam’s standard commercial terms given to Agrinox disclaimed liability for "performance

variations in untested field conditions" and limited warranties to those "expressly confirmed in
9
Colgate Palmolive (India) Ltd v Hindustan Lever Ltd, AIR 1999 SC 3105
10
Kent RO Systems Ltd v Advertising Standards Council of India & Ors, 2024 LiveLaw (Del) 86
11
Indian Contract Act 1872, s 186.
12
Indian Contract Act 1872, s 188.
13
Mangala Waman Karandikar v Prakash Damodar Ranade CA No 10827 of 2010
13
 writing by the manufacturer". In Seth Pherumal v. UOI(1955)14 Supreme Court upheld exclusion

clauses that clearly limit liability, as parties are free to contract out of damages claims. Section 23 of

the I.C.A.187215 supports enforceable disclaimers unless unconscionable, which is not the case here

as Agrinox is a sophisticated manufacturer. Rangammal v. Kuppuswami(supra) puts the burden on

Agrinox to prove reliance on the oral statement, which it cannot as the disclaimers are clear and

there are no written warranties in the contract.

14. Sec.237, ICA187216 further binds ZAE to Shivam’s actions if its conduct (e.g. providing marketing

materials) induced Agrinox to believe in Shivam’s authority, so any liability lies with ZAE and not

Shivam.

14
Seth Thawardas Pherumal v Union of India (1955) 2 SCR 48
15
Indian Contract Act 1872, s 23.
16
Indian Contract Act 1872, s 237.
14
[2] THE STATEMENTS BY MS RATHORE SOLICITED AS SENIOR SALES LEAD DOES

NOT INDUCE AGRINOX TO PLACE THE ORDER

(2.A) STATEMENTS BY MS RATHORE SOLICITED AS SENIOR SALES LEAD DOES NOT

INDUCE AGRINOX TO PLACE THE ORDER

15. Ms. Rathore’s position, conforming the field testing was never intended to mean that

its suitable for Indian Black Soil, the statement was factually correct and was a positive early

15
 feedback17, not referring to a particular soil type, the statement regarding Erode and Hosur

districts was based on comparable or similar soil conditions 18, the word “similar” does not

mean same19 , it denotes only partial resemblance and not sameness in all particulars nor

absolute equivalence20. Even though Erode and Hosur are agronomically similar that does

not mean that the soil type would be exactly the same and performance uniformity cannot be

presumed. Ms. Rathore’s positive early feedback referred mainly to Hosur trials with

favorable results, while Erode trials were still ongoing, making it a factual, good faith with

no final performance data available.

16. The statement therefore reflected a factual account of preliminary outcomes which could

have been considered good faith opinion, and not a guarantee. As its clear that similar does not

mean same, Annexure 3 shows that its trials were conducted solely on its Erode plot, where

micro-variations in gradient, compaction, and mineral content unique to that soil type caused the

recorded performance variation. As per the report21, Agrinox’s Erode trials faced GPS drift,

gradient adaptation issues (>2%), and frequent recalibration errors (“Error 61 – Terrain

Mismatch”), all of which can be said to be linked with micro-variations in soil content and

difference between Erode and Hosur soil technicality, the conditions for which machine was not

yet fully calibrated.

17. The Appellant humbly submits that, since it was Agrinox, not the Claimant, who assumed

that results from similar conditions would replicate identically, such a presumption was contrary

to commercial reality and settled law22. The statement was given in the capacity of sales lead as

a competitive sales advertising which is permissible 23. It is a settled legal position that

17
Moot Proposition, MCS Fall Inductions (2025), paragraph 5
18
Ibid
19
Similar, Black’s Law Dictionary (4th ed. Rev., 2023)
20
M/s Resoursys Telecom v Navodaya Vidyalaya Samiti [2021] SCC OnLine Del 4532
21
Annex 3
22
Deva Sharma v Laxmi Narain AIR 1956 Punjab 49.
23
CS(OS) 44/2024. (kent ro case)
16
 competitive sales advertisement and puffery is permissible 24 under Article 19(1)(a)25. Therefore,

such statements do not amount to any representation of facts and nor it can be stated as

misrepresentation26, Agrinox’s claim of being induced is based on their own assumption.

Ccommercial sales advertisement by Ms. Rathore was not any misrepresentation27.

(2.B) THE STATEMENT BY MS. RATHORE WAS NEVER CONTRACTUALLY BINDING AND

CAN NOT CONSTITUTE INDUCEMENT OR MISREPRESENTATION

18. In commercial usage, “comparable” means broadly similar, not identical, and carries no

contractual guarantee of identical performance. 28 As the Supreme Court held, “similar” indicates

partial resemblance, not sameness. Apples and pears, for instance, share core traits yet differ in

texture and taste—likewise, Erode and Hosur soils share agronomic traits but are not identical,

and uniform machinery performance cannot be presumed. The Respondent’s reading of

“comparable” as a warranty of identical results is baseless; the sales contract contains no soil-

type performance term.29

19. Annexure 2’s final Distribution Agreement must be construed strictly by its terms, excluding

pre-contract communications.30 Courts in A.B.C. Laminart v. A.Pc31 held that pre-contract

assurances are unenforceable unless expressly incorporated or proven to be misrepresentations,

and mere opinions do not qualify. Here, Ms. Rathore’s preliminary remark, based on incomplete
24
Pranav Aggarwal & Satyam Mehta, 'Regulating Puffery: The No 1 solution to covert disparagement' (Live Law, 3 December
2024) [Link] accessed 14 August 2025.
25
Art.19(1)(a)
26
Sec.17 ICA
27
Colgate Palmolive (n8)
28
M/s Resoursys Telecom v. Navodaya Vidyalaya Samiti 2022 SCC OnLine SC 194).
29
ibid
17
 trials, was a good-faith opinion from comparable—but not identical—conditions. It lacked

certainty, was never incorporated into the contract, and cannot amount to actionable

misrepresentation. Protected under Article 19(1)(a), it remains lawful commercial promotion,

incapable of supporting the Respondent’s inducement claim. the Privy Council held that even if

later inaccurate, an opinion does not amount to misrepresentation 32. Likewise, in Mohun v.

Gungaji Cotton Mills33, Court emphasized that a statement is only “warranted” if founded on

reliable, conclusive information, which was not the case here.

(2.C) PRIMARY DUTY OF THE BUYER UNDER THE DOCTRINE OF CAVEAT

EMPTOR TO ASCERTAIN SUITABILITY FOR CONTRACT

20. It is submitted that being a commercial purchase, Agrinox bore the primary responsibility to

inspect and ascertain suitability of the product before coming into a contract. The doctrine of

caveat emptor34 requires the buyer to take care and not to take chances, in absence of any

express warranty, the defects discoverable by reasonable diligence are borne by the buyer 35. It

has been repeatedly held by the courts that a purchaser needs to be diligent and if they accept the

delivery neglecting any due diligence and inspection, liability cannot be invoked towards seller

based on uninspected defects36 and it is the settled principle of law that “who had an

opportunity to inspect the goods did not avail himself of the same and was content to take

delivery and having done so it does not lie in his mouth now to say that unmerchantable goods

were fraudulently palmed off on him”37.

30
Roop Kumar v Mohan Thedani (2003) 2003 (6) SCC 595.
31
A.B.C. Laminart Pvt. Ltd. v A.P. Agencies, Salem AIR 1989 SC 1239.
32
Bisset v Wilkinson (1927) AC 177
33
34
Commnr. Of Customs(Preventive) vs M/S. Aafloat Textiles (I) [Link].&Ors on 16 February, 2009
35
Sorabji Hormusha Joshi v. V.M. Ismail (Madras) (1960)
36
1991 ALLMR ONLINE 89
37
Sorabji Hormusha Joshi And Co. vs V.M. Ismail And Anr. on 18 November, 1959, [29]
18
21. Here, Agrinox had the opportunity to test and inspect the units but elected to conduct its

detailed trials only after delivery. Annexure 3 records Agrinox’s own trial results in erode

districts38, GPS drift, gradient-adaptation failure and repeated “Error 61” recalibrations,

demonstrating that Agrinox was, or with reasonable diligence would have been, aware of

performance variations. Agrinox cannot now shift the commercial risk to Shivam and having

taken delivery without inspection and any reasonable care, it does not lie in his mouth now to

say that unmerchantable goods were fraudulently palmed off on him, and he was induced to

enter into the contract.”39

(2.D) WAIVER OF INSPECTION PRECLUDES REJECTION AND CONFINES REMEDIES TO

WARRANTY CLAIMS

22. It Was the Express Duty of Agrinox to Seek Inspection, and Having Waived That

Opportunity, Its Sole Remedy Was a Claim for warranty, Not Rejection of the goods. It is a

settled proposition in Indian sale of goods jurisprudence that while a seller may afford the

opportunity for inspection, the burden squarely rests on the buyer to specifically request and

avail such inspection before entering into the contract.

23. This principle, affirmed by the Madras High Court in Sorabji v. V.M. Ismail 40, and

reaffirmed in Bragg v. Villa Nova 41 and Peer Mohammad Rowther v. Dalooram

Jayanarayan42 establishes that if a buyer either neglects to inspect or undertakes only a

perfunctory examination, the seller cannot thereafter be made liable for defects that ordinary

diligence would have exposed.

38
Moot Proposition, Annexure 3
39
Sorabji Hormusha Joshi And Co. vs V.M. Ismail And Anr. on 18 November, 1959
19
 24. The law is explicit that “the opportunity to inspect is to be afforded only on request from the

buyer. Where no such request is made it may be presumed that the buyer has dispensed with

this requirement, i.e., has chosen to waive 43”. In the instant case, Agrinox neither sought nor

availed any pre-contract inspection of the ZT-9X Pro Max machines, By accepting delivery

without inspection, Agrinox evinced a conscious waiver of its right to reject the goods for

apparent defects, as clarified in Sorabji Hormusha, para 29, “having taken delivery, it does

not lie in his mouth now to say that unmerchantable goods were fraudulently palmed off on

him.”44

25. Jurisprudence is unequivocal that the remedies of rejection and damages for breach of

warranty are alternative and not cumulative. As held in Sha Thilokchand v. Crystal& Co 45.

and restated at para 35 of Sorabji Hormusha, once goods are accepted, the buyer is precluded

from seeking rejection and is relegated solely to a claim for damages, if any, for breach of

warranty. This flows directly from Sections 13(1)46, 1547, and 16(2)48 of the SOGA,1930.

26. Therefore, Agrinox’s current attempt to repudiate the contract on grounds that could—and

ought—to have been discovered at the threshold is legally insupportable 49. Its conduct not

only offends the doctrine of caveat emptor, but also raises the spectre of unjust enrichment,

whereby the buyer seeks to wield contractual remedies to its selective advantage after

waiving its procedural rights.

40
N.C. Padmanabhan And Ors. vs S. Srinivasan AIR 1960 Mad 201
41
Sorabji Hormusha Joshi and Co. v. V.M. Ismail and Anr. (1923) 40 TLR 154
42
Peer Mohammad Rowther v. Dalooram Jayanaryan (AIR 1919 Mad 728),
43
National Traders v. Hindustan Soap Works AIR 1959 MADRAS 112
44
Sorabji Hormusha Joshi And Co. vs V.M. Ismail And Anr.
45
Sha Thilokchand Poosaji v Crystal and Co AIR 1955 Mad 481.
46
The Sales of Goods Act 1930, s 13(1)
47
The Sales of Goods Act 1930, s 15
48
The Sales of Goods Act 1930, s 16(2)
49

20
 [3]

DAMAGES ARE EXCESSIVE, REMOTE, AND UNMITIGATED.

(3.A) THE SUIT WAS NOT MAINTAINABLE DUE TO NON – COMPLIANCE OF S.12A OF

THE COMMERCIAL COURTS ACT

27. It is respectfully submitted that the Commercial Court erred in entertaining the suit without

21
 compliance with Section 12A of the Commercial Courts Act, 2015 50, which mandates pre-institution

mediation (PLM) except in cases of demonstrable urgency warranting interim relief. In Patil

Automation v. Rakheja Engineers51, the Supreme Court held that Section 12A is mandatory,

interpreting the term “shall” in line with legislative intent, and that non-compliance warrants

rejection of the plaint under Order VII Rule 11 CPC. In Yamini Manohar v. TKD Keerthi 52, it was

clarified that urgency cannot be a mere pretext to bypass PLM. In the present case, no such bona fide

urgency was recorded, rendering the plaint’s acceptance without jurisdiction and all subsequent

proceedings legally unsustainable.5 3

28. Further, in Yamini Manohar v. TKD Keerthi54, the Supreme Court clarified that a prayer for

urgent interim relief cannot be used as a “disguise or mask to wriggle out of and get over

Section 12A.” The Court observed that vesting plaintiffs with an absolute choice to determine

whether their suit qualifies for the exception would run contrary to the very object of Section

12A, which is to compel litigants to undergo mediation as a condition precedent.

(3.2) F A I L U R E T O M I T I G A T E A N D S U B S T A N T I A T E L O S S

EXTINGUISHES AGRINOX’S ENTITLEMENT TO DAMAGES

29. It is a settled principle of law that a party seeking damages for breach must not only have performed

or been ready and willing to perform its part of the contract but must also take all reasonable steps to

mitigate the loss resulting from the breach55. In Murlidhar Chiranjilal v. Harishchandra Dwarkadas56,

following the House of Lords in British Westinghouse Electric & Manufacturing Co. Ltd. v.

Underground Electric Railways57, the Supreme Court held that a plaintiff is duty-bound to take all

50
Commercial Courts Act 2015, s 12A
51
(2022) 10 SCC 1)
52
Yamini Manohar v TKD Keerthi, (2023) [Link] 407 (SC).
53
Commercial Courts Act 2015, s 12A
54
55
Murlidhar Chiranjilal v. Harishchandra Dwarkadas AIR 1962 SC 366.
56
ibid
57
Maharashtra State Electricity Distribution Company Limited v. Datar Switchgear Limited & Ors. (2018) 3 SCC 133.
22
 reasonable steps to mitigate the loss, and he is prevented from claiming any part of the damage

which is a consequence of his failure to mitigate, in the present case, Agrinox asserts that alleged

defects in Batch 1 compelled it to arrange “last-minute equipment rentals at higher costs”58

exceeding ₹95 lakh, and that non-deployment of the tillers risked termination of its TNSFI contract.

However, the material placed on record reveals:

(i) no formal termination of the TNSFI contract as of the filing date.

(ii) no competitive procurement or efforts to secure equivalent equipment at reasonable rates;

and

(iii) no notice to Shivam seeking a cure or replacement before incurring extravagant rental

expenses.

(iv) It is evident from the facts that agrinox acted unilaterally and selectively in a manner that

maximized its own claim rather than minimized the loss to both parties.

58
Mot prop
23
 (3.2)

30. It is a settled principle of law that a party seeking damages for breach must not only have performed or
been ready and willing to perform its part of the contract but must also take all reasonable steps to mitigate
the loss resulting from the breach59. In Murlidhar Chiranjilal v. Harishchandra Dwarkadas60, following the
House of Lords in British Westinghouse Electric & Manufacturing Co. Ltd. v. Underground Electric
Railways61, the Supreme Court held that a plaintiff is duty-bound to take all reasonable steps to mitigate the
loss, and he is prevented from claiming any part of the damage which is a consequence of his failure to
mitigate, in the present case, Agrinox asserts that alleged defects in Batch 1 compelled it to arrange
“last-minute equipment rentals at higher costs”62 exceeding ₹95 lakh, and that non-deployment of the tillers
risked termination of its TNSFI contract. However, the material placed on record reveals:

24. It is evident from the facts that agrinox acted unilaterally and selectively in a manner that maximized its
own claim rather than minimized the loss to both parties.

30. 25. The Supreme Court in M. Lachia Setty & Sons Ltd. v. Coffee Board63and in another case of

Union of India v. B. Prahlad & Co.64 emphasized that a claimant must act reasonably not only in his

own interest but also in the interest of the defendant and on a failure to do so, he may not be entitled

to damages for losses which could have been reasonably avoided6566. Clarifying that the duty to

mitigate includes a duty to refrain from unnecessary acts that aggravate the loss. Agrinox’sinflated

rentals without exploring alternative, cheaper solutions directly contravene these settled principles.

31. For assessment of damages67, the Commercial Court misapplied the settled measure. The law is that

damages for non-delivery or late delivery of goods are assessed with reference to their value “at the

time and place at which they ought to have been delivered68”. Market price for equivalent goods in

59
Murlidhar Chiranjilal v. Harishchandra Dwarkadas AIR 1962 SC 366.
60
ibid
61
Maharashtra State Electricity Distribution Company Limited v. Datar Switchgear Limited & Ors. (2018) 3 SCC 133.
62
Mot prop
63
M. Lachia Setty & Sons Ltd v. Coffee Board Bangalore AIR 1981 SC 162.
64
Union of India v. B Prahlad & Co. AIR 1976 Del 236.
65
Nilima Bhadbhade (ed.), Pollock & Mulla, The Indian Contract Act and Specific Relief Acts, vol 2 (updated 14th edn,
LexisNexis Butterworths Wadhwa) 1260.
66
Maharashtra State Electricity Distribution Company Limited v. Datar Switchgear Limited & Ors. (2018) 3 SCC 133.
24
 the relevant market at that time and place where delivery should have been made 69 and in the

absence of an appropriate market70 for determination of the price, the closest market is referred71,

therefore Agrinox failed to discharge the burden of proving such market value as they produced no

contemporaneous market quotations, no evidence of comparable goods, and no proof that the rentals

in question reflected the market rate for equivalent equipment.

26. For assessment of damages, the Commercial Court misapplied the settled measure. The law is that
damages for non-delivery or late delivery of goods are assessed with reference to their value “at the time
and place at which they ought to have been delivered72”. Courts ascertain this by the market price for
equivalent goods in the relevant market at that time and place where delivery should have been made 73 and
in the absence of an appropriate market74 for determination of the price, the closest market is referred75,
therefore Agrinox failed to discharge the burden of proving such market value as they produced no
contemporaneous market quotations, no evidence of comparable goods, and no proof that the rentals in
question reflected the market rate for equivalent equipment.

27. The object of damages is to restore the innocent party to the position it would have occupied had the

breach not occurred76 and damages should not exceed the loss suffered or likely to be suffered77. In absence

of special circumstances, the proper measure is the difference between the contract price and the market

price on the breach date, not speculative consequential losses78. Here, there was a ready market for

equivalent agricultural equipment. The correct computation would therefore be:

(contract price – prevailing market price at breach) × number of units wrongfully refused, plus any proven

67
Nishith Desai Associates, Law of Damages in India (Nishith Desai Associates 2022) 22
68
Hajee Ismail Sait and Sons v. Wilson And Co. AIR 1919 Mad 1053 (DB).
69
ibid
70
. Buago Steel Furniture Pvt. Ltd. v. Union of India AIR 1967 SC 378.
71
Saraya Distellery v. Union of India AIR 1984 Del 360.
72
Hajee Ismail Sait and Sons v. Wilson And Co. AIR 1919 Mad 1053 (DB).
73
ibid
74
. Buago Steel Furniture Pvt. Ltd. v. Union of India AIR 1967 SC 378.
75
Saraya Distellery v. Union of India AIR 1984 Del 360.
76
Manju Bagai v. Magpie Retail Ltd., (2010) 175 DLT 212.
77
Trojan & Co. v. RMNN Nagappa Chettiar [1953] SCR 789.
78
Trojan & Co. v. RMNN Nagappa Chettiar [1953] SCR 789.
25
 incidental costs reasonably incurred in mitigation.79

32. The resale of the rescinded goods couldn’t take place, then the measure of damages would be based

on the difference between the contract price and the market price on the date of breach 80 and With

respect to the time to be considered for considering the market price required for determining the

damages81, the date on which the contract was to be performed by delivery and acceptance as per the

contractual terms, or at the time of refusal to perform such a contract, would be the relevant date 82

and also the annexure 2, the contract between Shivam and agrinox had clause 5, which states that

this contract is subject to seller’s standard commercial terms, unless otherwise agreed in writing, and

the contract in writing doesn’t have any other commercial terms so Shivam’s commercial terms will

be implemented and Shivam will not be liable for any performance variation and if ZAE, the

manufacturer does not provide any warranty expressly confirmed in writing then Shivam is not

liable for any warranty as per the commercial terms of the contract and the commercial court

overlooked this fact and if any claim of warranty will arise then only ZAE is liable for those claims

and not Shivam.

[3.3] THE COURT CAN GRANT SPECIFIC PERFORMANCE TO UPHOLD

CONTRACTUAL TIMELINES

33. The Agrinox–Shivam agreement stipulated fixed timelines and advance payments of ₹56,00,000

before each batch of 14 units, with deliveries scheduled for 10 November 2023, 31 December 2023,

and 31 January 2024. This structure clearly evidences the parties’ intent that time was of the essence.

It is a settled principle that where contracts prescribe specific performance periods, courts must treat

79
Ibid
80
Bismi Abdullah & Sons, Merchants and Commission Agents v. Regional Manager, Food Corporation of India, Trivandrum AIR
1987 Ker 56; V/O ‘Tvazhpro-mexport’ v. Mukand Limited, 2005 (3) Arb LR 406 Bom.
81
Book
82
Satish J Shah, Pollock & Mulla The Sale of Goods Act (8th edn, LexisNexis Butterworths Wadhwa 2011) 396
26
 such deadlines as binding and strictly scrutinize any delay83. Agrinox’s failure to make advance

payments and refusal to accept timely deliveries constitutes a direct breach of essential terms.

Applying Saradamani Kandappan, such breaches cannot be excused. What is warranted is Specific

performance and not cancellation to preserve contractual sanctity and commercial reliability, as the

Commercial Court rightly declined cancellation.84.

28. The resale of the rescinded goods couldn’t take place, then the measure of damages would be

based on the difference between the contract price and the market price on the date of breach 85 and

With respect to the time to be considered for considering the market price required for determining

the damages, the date on which the contract was to be performed by delivery and acceptance as per

the contractual terms, or at the time of refusal to perform such a contract, would be the relevant

date86.

83
Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18
84
ibid
85
Bismi Abdullah & Sons, Merchants and Commission Agents v. Regional Manager, Food Corporation of India, Trivandrum AIR
1987 Ker 56; V/O ‘Tvazhpro-mexport’ v. Mukand Limited, 2005 (3) Arb LR 406 Bom.
86
Satish J Shah, Pollock & Mulla The Sale of Goods Act (8th edn, LexisNexis Butterworths Wadhwa 2011) 396
27
28
 PRAYER

WHEREFORE, CONSIDERING THE ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS

MOST HUMBLY PRAYED THAT THIS HON’BLE COURT MAY BE PLEASED TO:

For reasons stated above, the Appellant respectfully requests this Hon’ble Court to adjudge and
declare that:

-I-
THE APPELLANT HAS ACTED WITHIN THE SCOPE OF CLAUSE 4.2 OF THE AGREEMENT
WITH RESPONDENT NO. 1, AND THE TRANSACTION WITH RESPONDENT NO. 2 WAS
COMMERCIALLY JUSTIFIED AND IN GOOD FAITH.

-II-
THE RESPONDENT NO. 2, HAVING FAILED TO EXERCISE ITS DUTY TO INSPECT UNDER
THE DOCTRINE OF CAVEAT EMPTOR, IS LIMITED TO WARRANTY CLAIMS AND
CANNOT REJECT THE GOODS ON ALLEGED DEFECTS.

-III-
THE FINDINGS OF THE LEARNED COMMERCIAL COURT ON BREACH, DAMAGES, AND
CONTRACTUAL OBLIGATIONS ARE ERRONEOUS BOTH IN FACT AND LAW AND
WARRANT INTERFERENCE UNDER SECTION 13 OF THE COMMERCIAL COURTS ACT,
2015.

Respectfully submitted,
COUNSEL FOR THE APPELLANT
[81P]

Respectfully submitted,

COUNSEL FOR THE PETITIONERS [1252P]

29