Court : Chennai
Decided on : Sep-13-1933
Reported in : AIR1934Mad75; 147Ind.Cas.1146; (1934)66MLJ180
..... the case of negotiable instruments, except to the limited extent recognised in section 39 of the act. that section runs thus:when the holder of an accepted bill of exchange enters into any contract with the acceptor which, under section 134 or 13s of the indian contract act, 1872, would discharge the other parties, the holder may expressly reserve his right to charge the other ..... discharged if he can bring the case within the terms of section 135 of the contract act.10. it seems to me that these observations in shephard, j.'s judgment in ramakistnayya v. kassim i.l.r. (1889) mad. 172, far from being an authority in favour ..... creditor and principal debtor is reversed. at page 177 he observes;that section (section 135 of the contract act) has to be read with the provisions of the negotiable instruments act; and as here there was--within the meaning of the negotiable instruments act, section 37--a 'contract to the contrary' making defendant a surety instead of principal debtor, the defendant is entitled to be ..... ) 1 q.b.d. 536.18. i may in passing refer to section 132 of the contract act (although that section, as it refers to joint debtors, does not apply to the case in hand) for the purpose of showing that the framers of the indian act have not, as regards the law of suretyship, always adhered to the english principles.19. i .....Tag this Judgment!
Court : Chennai
Decided on : Jan-09-1933
Reported in : AIR1934Mad31a
..... invited by the order of reference to do, the effect of which ''might be to fetter the discretionary power vested in the court by section 74, contract act. compound interest is, as their lordships have said in sundar koer v. rai sham krishen (1907) 34 cal 150, perfectly legal. nevertheless, it may ..... do not think it necessary to discuss the various decisions referred to by the learned advocate for the appellants. after the amendment of section 74, contract act in 1899, the decisions under the old section, that stipulation for increased interest from date of default would not ordinarily be stipulation by way of ..... mr. varadachari, the learned advocate for the appellants, addressed to us a lengthy argument on the meaning of the word ' penalty' in section 74, contract act. we think it is used in the sense of a secondary stipulation which provides for the payment of an additional burden on default. it is said that ..... subordinate judge, finding that the clauses in the documents relating to interest amount to stipulations by way of penalty within the meaning 'of section 74, contract act, awarded as reasonable compensation simple interest at the rate of rs. 1-2-3 per cent per annum and accordingly gave a decree for rs ..... stipulation for the payment of compound interest at a rate higher than that of simple interest is a penalty within the meaning of section 74, contract act, and can be relieved against. but the question that has been debated is, what is the extent of the relief that can be granted? .....Tag this Judgment!
Court : Chennai
Decided on : Aug-31-1933
Reported in : AIR1934Mad162; (1934)66MLJ625
..... fixed as the term for which the partnership was to subsist. in the face of the express provision contained in section 253(10) of the contract act which says,partnerships, whether entered into for a fixed term or not, are dissolved by the death of any partner,this argument is of no avail ..... a dissolution on that account. in the meantime srinivasaraghavacharya died and the partnership became dissolved by operation of law. (see section 253(10) of the contract act.) it would be futile to ask the court to dissolve a partnership, which has already become dissolved. the suit then is in substance for an ..... thus. the alienation by the 1st defendant of his interest gave the plaintiff the right to claim a dissolution (see section 254(3) of the contract act). that being the plaintiff's cause of action, he could file a suit under article 120 within six years from the date of the accrual of ..... a certain period is fixed and it is not permissible for the court to infer merely from the term a contract to the contrary within the meaning of section 253 of the contract act. lindley in his principles of partnership, p. 703, observes:death is a contingency which all persons entering into ..... real nature of the suit that is filed in court in determining whether a particular article of the limitation act is applicable. when srinivasaraghavacharya died in 1920, under section 253 of the indian contract act the partnership was dissolved by his death, subject to the argument to be noticed under the second heading .....Tag this Judgment!
Court : Chennai
Decided on : Mar-24-1933
Reported in : AIR1933Mad704; 145Ind.Cas.476
..... that in such a case as this, though he could not sue for specific performance, he could have treated the agreement as void under section 55, contract act, and sued for restoration of the rs. 5,000.13. these remarks are obiter. in gopala ayyar v. ramaswamy sastrigal (1912) 10 ic 320 ..... therefore apply. in this connexion may be quoted muthayya maniagaran v. lakku reddiar air 1914 mad 573, where it was held that section 63, contract act, does not entitle a promisee for his own purposes and without the consent of the promisor to extend the time for performance which had been agreed ..... there only arose when those, who had been indemnified, suffered damage by being called upon to pay the debts. section 124, contract act, is the section which deals with an indemnity contract. without damage there is no cause of action under that section. it is clear however that the district board suffered damage ..... which the legislature intended to confer upon him.9. the learned subordinate judge has held that section 107, contract act, which has been wrongly printed in the judgment as article 107, lim. act, applies to a case like the present and that the district board had a reasonable time within which to ..... say: 'this section follows upon sections dealing with those subject-matters.' i am quite clear that section 39, contract act, applies to the present case. it runs: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 .....Tag this Judgment!
Court : Chennai
Decided on : Apr-26-1933
Reported in : AIR1933Mad764; 145Ind.Cas.998; (1933)65MLJ455
..... kamisetti subbiah v. katha venkatasawmy i.l.r. (1903) 27 mad. 355, where it was held that under the indian contract act where the proposal and acceptance are made by letters, the contract is made at the time when and at the place where the letter of acceptance is posted. the letter of acceptance in this ..... . 128, a decision of the divisional court in england in respect of a matter arising in the county court. it was there held that where a contract is made by offer and acceptance sent through the post between parties residing in different county court districts, the posting of the offer is not part of ..... the acceptance was sent from by means of the post to madras. it is argued that, the proposal being received in calcutta and being there accepted, the contract was made in calcutta. two cases have been referred to, one an english decision and another a decision of this high court. the former is clarke ..... insurance company; and this proposal was accepted by the insurance company by its directors in calcutta. it is contended on behalf of the appellants that the contract between the assured and the company was made in calcutta, that being the place where the proposal as it is described in the insurance policy was in ..... form of proposal and declaration signed by him and dated the 25th day of may, 1919, which he has agreed shall be the basis of the contract of assurance between him and the company.4. it is, of course, conceded on both sides that this policy of insurance was put through by means .....Tag this Judgment!
Court : Chennai
Decided on : Mar-15-1933
Reported in : AIR1933Mad736; 145Ind.Cas.1023; (1933)65MLJ491
..... pay the 25 per cent, deposit before 10 a.m. on the 9th and that the contract was to be cancelled if he did not. section 55 of the contract act provides that if a party to the contract has failed to do a certain thing which he has promised to do before a specified time ..... section is therefore section 22, which provides that:the court may properly exercise a discretion not to decree specific performance where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff ..... very root of the agreement, and that the parties intended that if payment was not made within that time limit the contract of sale was to be cancelled. the defendant-mortgagees acted entirely within their rights in giving notice (exhibit f) of cancellation to palaniyandi, on his failure to make the deposit within ..... , the contract is voidable at the option of the promisee if the intention of the parties was that time was of the essence of the contract. their ..... the stipulated time, and from that moment the contract to sell the land to him was at an end.14. the only .....Tag this Judgment!
Court : Chennai
Decided on : Feb-01-1933
Reported in : AIR1933Mad729; 145Ind.Cas.721; (1933)65MLJ620
..... held in kamalammal v. peeru meera levvai rowthen i.l.r. (1897) 20 mad. 481 : 7 m.l.j. 263 (see pollock and mulla's contract act, 6th ed., p. 430.)10. i conclude accordingly that the interest up to suit awarded by the court below must be disallowed.11. upon this finding the ..... distinguishable. that upon this question the law in this country is substantially the same as in england is not disputed. our interest act reproduces lord tenterden's act, and section 73 of the contract act is based upon the common law. accordingly the judgment of the house of lords in london, chatham and dover railway co. v ..... which the above cited judgment of the house of lords was followed. the learned judges then consider the effect of section 73 of the contract act, coupled with illustration (n), and point out the conflict which would arise if the section were held to allow the award of interest not admissible under ..... the damages are not unliquidated but liquidated. this is to misconceive the meaning of 'liquidated damages,' a term not used in the contract act but employed to denote a sum named in the contract as the amount to be paid in case of a breach. section 74 deals with such a case, while section 73 relates ..... therefore be found if the claim is to be admitted.3. we are asked to hold that, independently of the interest act, interest is payable as damages under section 73 of the contract act. the act itself closes with a proviso 'that interest shall be payable in all cases in which it is now payable by law .....Tag this Judgment!
Court : Chennai
Decided on : Sep-14-1933
Reported in : 147Ind.Cas.650; (1934)66MLJ361
..... of false pretences. we think that those english decisions are not of much help in deciding the question according to the express provisions of the old section 178 of the contract act, and accordingly refrain from making a detailed reference to them.7. in the result, we confirm the decree of the lower court and dismiss this appeal with the costs of ..... position than the purchaser one possible explanation is that this is due to the difference in the terms of section 108 and section 178. in the commentary on the indian contract act by pollock and mulla (v edition), while dealing with 2nd proviso to section 178, the learned authors states that the true meaning of that proviso is not free from obscurijty ..... whether the pledge in favour of the 2nd defendant on 9th june, 1929, is valid and binding on the plaintiff. section 178 of the indian contract act, as it stood before its amendment by the indian contract (amendment) act, 1930, which came into force on 1st july, 1930, is the section governing the present case. according to that section, a person in possession of ..... , he promptly rushed to the criminal court for prosecuting the 1st defendant.5. some stress is laid on the wording of exception (3) to section 108 of the contract act, which indicates that a person in possession of goods under a contract voidable on the ground of fraud can make a valid sale to a bona fide purchaser, at any time before the .....Tag this Judgment!
Court : Chennai
Decided on : May-04-1933
Reported in : AIR1933Mad795; 145Ind.Cas.965; (1933)65MLJ588
..... found in annada mohan roy v. gouri mohan mullick in which it was held, in agreement with a decision of the high court of calcutta, that a contract by a hindu to sell immovable property to which he is the then nearest reversionary heir, expectant upon the death of a widow in possession, and to ..... transfer it upon possession accruing to him is void, and that section 6(a) of the transfer of property act, which forbids the transfer of expectancies, would be futile if a contract of such a character was enforceable. in their decision their lordships quoted with approval the remarks of tyabji, j. in sri ..... r. (1917) 41 mad. 418 : 34 m.l.j. 17. the decision of the full bench was that section 43 of the transfer of property act could not be applied to make valid an alienation which at the time of its being made was prohibited by statute, even if the prohibition against alienation was subsequently ..... of this court in alamanayakunigari nabi sab v. murukuti papiah (1915) 29 m.l.j. 733 and that the illustration to section 43 of the transfer of property act also supports them. sundaram chetty, j. has found himself unable to follow the decision in alamanayakunigari nabi sab v. murukuti papiah (1915) 29 m.l.j. ..... prasada rao i.l.r. (1915) 39 mad. 554 : 28 m.l.j. 650 thatit would be defeating the provisions of the (transfer of property) act to hold that though such hopes or expectations cannot be transferred in present or future, a person may bind himself to bring about the same results by giving to .....Tag this Judgment!
Court : Chennai
Decided on : Mar-30-1933
Reported in : AIR1933Mad649; (1933)65MLJ317
..... of the mortgage. as regards the legal effect, the learned district munsif held that both parties having under a mistake of fact consented to the agreement, section 20 of the contract act applies, and he therefore dismissed the suit. on appeal the learned district judge agreed that both parties were ignorant of the existence of the prior mortgage on the suit property ..... which he can set aside. the grounds of setting aside a sale are those set out in section 37-a and section 38 of the act. the effect of holding that a contract of sale held under act ii of 1864 is not completed until the collector has confirmed it would be practically to nullify the provisions relating to default by the purchaser ..... of the government is on the following lines. the method of recovery in case of default with respect to an abkari contract being under act ii of 1864, the sale is regulated by the provisions of that act and section 36 of that act describes the manner in which the sale is to be held, which is as follows: 'in the sale of immovable ..... , while they have at the same time to admit that according to the terms of act ii of 1864 he should have got the house free of encumbrance altogether, which benefit he does not enjoy. it was even argued for the respondent that there was no contract at all between the appellant and the government, and for this purpose certain remarks in .....Tag this Judgment!