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.
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