Skip to content


Mirriyala China Subbaraidu Vs. Kallarsu Mahadeva Rao - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 718 of 1960
Judge
Reported inAIR1965AP171
ActsIndian Contract Act, 1872 - Sections 63
AppellantMirriyala China Subbaraidu
RespondentKallarsu Mahadeva Rao
Appellant AdvocateN. Ramamohana Rao, Adv.
Respondent AdvocateR.V. Subba Rao, Adv.
Excerpt:
.....is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens.....ordersatyanarayana raju , j.(1) on the strength of the decision of a division bench of the madras high court in ramaswami v. g. rudrappa, air 1939 mad 688 : 1939 mad w n 464, the learned counsel for the appellant has contended that what section 63 of the contract act permits is not an agreement to remit in future but an actual remission and that a promise to remit requires consideration in order to a binding contract. (2) referring to this decision, a division bench of the calcutta high court, consisting of b. k. mukherjea j. , (as he then was) and pal j., in jitendra chandra roy v. s. n. banerjee, air 1943 cal 181 pointed out as follows : - 'in 1939 mad w n 464 : air 1939 mad 688, the point was not discussed properly, but the proposition of law was sought to be supported with reference.....
Judgment:
ORDER

Satyanarayana Raju , J.

(1) On the strength of the decision of a Division Bench of the Madras High Court in Ramaswami v. G. Rudrappa, AIR 1939 Mad 688 : 1939 Mad W N 464, the learned counsel for the appellant has contended that what Section 63 of the Contract Act permits is not an agreement to remit in future but an actual remission and that a promise to remit requires consideration in order to a binding contract.

(2) Referring to this decision, a Division Bench of the Calcutta High Court, consisting of B. K. Mukherjea J. , (as he then was) and Pal J., in Jitendra Chandra Roy v. S. N. Banerjee, AIR 1943 Cal 181 pointed out as follows : -

'In 1939 Mad W N 464 : AIR 1939 Mad 688, the point was not discussed properly, but the proposition of law was sought to be supported with reference to illustrations (b), (c), and (d) attached to Section 63, Contract Act. In our opinion, this is not a sound view to take and it clearly goes against the express words of the section.'

(3) After considering Section 63 with the illustrations attached thereto, the learned Judges of the Calcutta High Court pointed out as follows :

'In our opinion, it is open to the promisee to remit a portion of the obligation under Section 63, Contract Act even though the obligation on the part of the promisor to perform the unremitted part still continues.'

(4) In view of the decision of the learned Judges of the Calcutta High Court, the decision in AIR 1939 Mad 688 : 1939 Mad W N 464, it is contended, requires reconsideration. The second appeal may be posted before a Division Bench.

* * * * *


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //