Court : Kolkata
Reported in : AIR1959Cal472
..... the judgment of the judicial committee was delivered by lord dunedin who, after referring to section 55, para 1 of the indian contract act said:'the respondents here did not elect to avoid the contract; they held it as subsisting, and agreed to prorogue the time of performance this they were ..... on behalf of the plaintiff reliance is placed upon sections 55 and 63 of the indian contract act and it is argued that on the failure of the defendant to supply the goods on the due dates of delivery, the contracts became voidable, but the buyers elected not to avoid the contract and agreed to grant an extension of the dates of delivery and as such extension was consented to by the seller the buyers are entitled to damages on the basis of the market rates prevailing on the ..... he expresses his opinion thus:'it may be that mr, yagnik had not in so many words agreed to the extension granted up to 29th february and 31st march 1952, at any time, but i have no doubt that by his act and conduct, he had given the plaintiff companies, the impression that he accepted the extension. ..... that time was of the essence of the contract; that the appellant was in default in not making complete delivery in time, that is at 31-5-1913; that the appellant applied for and was granted an extension of time until 30-11-1913, for delivery of the balance goods and that delivery of the balance goods was not made by the respondents on november 30, and they were consequently in default. ..... the managing agent of the agarpara .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1959Cal576,63CWN549
..... of air) appears to have been rejected by their lordships or the supreme court as not being, strictly speaking, relevant on the law of frustration of contract, so far, at least, as section 56 of the indian contract act (with which alone we are here concerned), and the other theory which appears to have been preferred and approved by them (vide pp. ..... , the said two sections of the contract act embrace the whole of the indian law on the subject, section 32 applying in cases of contingent contracts and section 56, covering the rest, under either, however, impossibility is the central or the dominating idea and the determining factor, impossibility in cases of contingent contracts in the happening of the event or events, on which same depend, and, in other cases, impossibility of the act to be performed under the contract, illegality or unlawfulness of the act, given in section 56 as a separate ground for frustration of contract, being comprehended within ..... held above by us, in the particular context afforded by the relative background to which due attention has been drawn hereinbefore, the requisition orders and/or the interruption of work, that followed in consequence, did not affect or destroy the foundation or fundamental basis of the contract in suit, which, therefore, cannot be said to have become frustrated or discharged by reason thereof. ..... other'important thing that requires notice in the above connection is that the war was already on when the parties entered into the contract. .....
Tag this Judgment!Court : Kolkata
Reported in : 163Ind.Cas.331
..... whether the unsatisfied decree is a bar to the suit, it has been argued that the effect of sections 42 to 45 of the indian contract act is to alter the principle of english law, by making the liability in respect of a joint contract, a joint and several instead of a joint liability. ..... held that the second defendant was liable under section 70 of the indian contract act for half the price of the goods supplied ..... be decided the question whether the second defendant is liable under section 70 of the indian contract act and to what extent.26. ..... the rule is not one of procedure only, and the indian contract act does not profess to be a complete code dealing with the law relating to contracts, and in the absence of specific law and usage, rules of justice, equity and good conscience must be applied, which has been interpreted to mean rules of ..... ), as follows:it would be clearly contrary to every principle if a creditor who has seen and known and dealt with and given credit to the agent should be driven to sue the principal if he does not wish to sue him; on the other hand, it would be equally contrary to justice that the creditor, on discovering the principal who really has had the ..... 1887, 229, in which it was held that the plaintiff having elected to hold the agent responsible upon a contract and having obtained judgment and decree against him could not afterwards maintain a suit against the same principal in respect of the ..... been made a party to the appeal and has got no notice of it.4. .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1952Cal93,55CWN765
..... , i have come to the conclusion that the earnest money, in the real sense of the term, as explained above, is, in the absence of a contract to the contrary, either express or implied, liable to be forfeited by the vendor when the contract goes off for default on the part of the purchaser and such1 liability exists, notwithstanding sections 64, 65 and 74 of the indian contract act, and is not affected by any of the said provisions, although, when the vendor sues the purchaser for compensation for ..... runs as follows, namely, 'it (the deposit or earnest money) is not merely a part payment, but is then also an earnest to bind the bargain so entered into', apparently indicates that the description of the characteristics of the earnest money, as given in the above statement of the 'golden rule of intention', is inaccurate, that, in any event, it is incomplete and, therefore, unsafe to rely upon. ..... 92-93, is also, in the ultimate analysis, founded upon the same exposition of the rule, and, the disinclination, of the courts, noticed above, to differentiate between cases with and without clauses of forfeiture is also referable to the same and clearly consistent therewith. ..... where, therefore, the contract of sale is broken by the purchaser and,as a consequence, the earnest money is forfeited by the vendor, the forfeiture takes place under the express or implied 'contract of security' which is strictly speaking, no part of the real contract of sale. .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1960Cal47,63CWN717
..... parties. the two other relevant considerations, namely, that the proper law of the contract was the indian contract act and that the case raised the difficult question of frustration of contract, as understood in india, do not also appear to have been given sufficient attention in the court below and as, in our opinion, upon a proper appreciation of the materials before us in the light of and in accordance with the right legal principles and in consonance with justice and to avoid ..... on april 3, 1958, the defendants michael golodetz and others gave notice of the present application under section 34 of the indian arbitration act, in which they prayed for (a) a stay of the suit, (b) an injunction, restraining the plaintiff from proceeding with the same and (c) an appropriate interim order. 11. ..... the buyers did not agree and, in consequence, arose disputes and differences between the parties which, the buyers, as stated above, referred to the arbitration of the american arbitration association, purporting to do so under the arbitration clause, quoted hereinbefore. 8. .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1959Cal715,[1960]30CompCas582(Cal)
..... we are familiar with possessory lien of the finder of the goods, of the bailees, bankers, factors, attorneys and policy brokers, powers and agents under sections 168, 170, 171, 173, 174 and 221 of the indian contract act and possessory lien of the seller of goods and auctioneer under section 47 of the sale of goods act. ..... in the second place, the party liable to restitution under section 65 of the indian contract act is the private company and even if the plaintiff is a member or director of the private company, he is in law ..... das that section 23 of the indian contract act applies to the case of a contract entered into by the managing director of a public company with another private company in which the said director ..... if certain technicalities stand in the way, those technicalities should be brushed aside and provided proper notice is given to all entitled to notice, the court should uphold such a meeting and recognise as valid all acts done in that meeting, including the appointment of directors and passing of the accounts, even though the meeting is held without an ..... also to be noted:--'if there is good faith, and i emphasise that, the mere fact that the person claiming the benefit of the section has notice of the existence of the facts which led to the disability is not sufficient to disentitle him to rely upon it if he can honestly say, 'i was not aware of the defect and the consequences of the facts i knew, i was not aware of the disqualification which now exists. ..... , (1872); .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1973Cal268
..... the question is whether section 39 of the indian contract act is attractedsection 39 of the indian contract act provides as follows:'when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.'43. ..... the prayer of the petitioner is for (a) sale of land, buildings, machinery and other assets mortgaged and charged in favour of the financial corporation, (b) ad interim order of attachment (c) ad interim order of injunction (d) for notice to be issued calling upon the respondent company to show cause why the ad interim orders of attachment and injunction should not be made absolute, (e) if the respondents fail to show sufficient cause then the ad interim orders may be ..... with regard to the clause in the mortgage deed where it is provided that further loan may be given at the 'discretion' of the petitioner. mr. ..... ' with respect to that class it has always been held that the party must adopt to form of remedy given by the statute.'36. mr. ..... 6,00,000/- to be given, but also applied for further loan and further loan was sanctioned by the corporation.31. ..... manner as he thinks fit: provided further that unless the financial corporation intimates to the district judge that it will not appeal against any order releasing any property from attachment, such order shall notbe given effect, to. .....
Tag this Judgment!Court : Kolkata
Reported in : 16Ind.Cas.852
..... country, in view of the provisions of section 43 of the indian contract act, we must hold that the presumption is that the agency is joint and several; and that conclusion is fortified by the terms of the contract in this particular case. ..... there pointed out that if the agency is strictly a joint agency, that is, if it is the intention of the parties that the work of the agency must be done jointly by all the agents acting together and not individually, the work must be done by all of them jointly, and, consequently, upon the death of one of such agents, as the agency can no longer be carried out in the manner intended by the parties, it must be presumed to have terminated. ..... consequently, the defendant is still liable under the original registered contract executed on the 19th march 1888, and not under any implied oral contract of agency subsequent to the death of his co-agent ..... but the appellant contends that article 116 is not applicable because the contract of agency, as embodied in the registered instrument, terminated upon the death of his co-agent, and that his own service thereafter as an agent must be deemed to have been under a new contract of agency not embodied in a written and registered instrument; in this view, the article applicable would be either 89 ..... had stood alone, uncontroled by section 201, the result might have followed that upon the death of one of two joint agents, his representative became liable under the contract of agency along with the surviving agent. .....
Tag this Judgment!Court : Kolkata
Reported in : AIR1960Cal261,63CWN745
..... learned counsel for the petitioner urged, in the first place, that the transaction did not fall within the mischief of section 30 of the indian contract act and also urged, in the next place, that even assuming that the parties were speculating that by itself did not render the transaction a contract by way of wagering and therefore void. ..... the contract in question before us comes, within the category of wagering contracts and is void under section 30 of the indian contract act. ..... , wagering contract is not denned under she indian contract act. ..... agree to speculate only in differences according to the rise and fall of the price in the market, and the delivery of the goods is not in the contemplation of either, the transaction is in the nature of wager or gamble; and a contract relating to the same is not enforceable in view of section 30 of the contract act. ..... being so, to admit oral evidence of any agreement to wager for the purpose of contradicting or varying the terms of the written contract will not be admissible in evidence, tinder section 92 of the indian evidence act, unless, of course, it comes within the language or the five provisos to section 92. ..... classical definition of wagering contract was given by hawkins j. ..... on the side of the plaintiff evidence was given to explain why and in what circumstances the resale took ..... the delivery was not to be given, so it was settled cross-examined -- my partner signed, not ..... am quoting below the material portion of the evidence given by d.w. .....
Tag this Judgment!Court : Kolkata
Reported in : AIR2002Cal65
..... it was argued that the contract which contains clauses opposed to public policy is void ab inltio as per section 23 of the indian contract act whereas section 19 of the indian contract act empowers the party which is affected by coersion, fraud, misrepresentation, etc. ..... all the provisions from sections 19 to 30 of the indian contract act which deal with void or voidable contracts were also explained to him. ..... counsel for the claimant citing sections 21 to 24 of the indian contract act, further argued that the said contract involves reciprocal promises. ..... the very foundation of the reference to the arbitrator is being shaken on the ground of the alleged invalidity of the agreement containing the arbitration clause, the participation of the party in the arbitration proceedings, culminating in an award will be of no consequence and he would be entitled to move an application for a declaration that the arbitration does not exist or the same is a nullity or void ab initio. ..... 1997 have been waived or violated by the respondent?4(a) whether the unilateral termination of the contract dated 10th july, 1997 by the respondent was proceeded by a legal and valid notice?4(b) whether termination of the contract dated 10th july, 1997 by the respondent by issuing letters dated 8th jan. ..... interestingly both the parties have given their consent in respect of nature of reference and appointment of arbitrator by the court. ..... 167, 168, 169, 229, 222 and 223 and also the evidence of mr. g. k. .....
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