Court : Kerala
Reported in : 230ITR686(Ker)
..... contended that a partnership firm formed for the purpose of exploiting a licence in the name of one of the partners would be hit by section 23 of the indian contract act, 1872. according to the assessee, even if the licence can be issued only in the name of an individual, it is not illegal to conduct the business through a partnership by ..... all rights and liabilities arising therefrom. under these circumstances, without any hesitation, we would hold that the partnership was hit by the provisions contained under section 23 of the indian contract act. the assessing authority was, therefore, fully justified in refusing to grant registration.16. in the light of the above discussion, we answer all the questions in the negative, against the ..... follows (page 218) :'so, the partnership that has been entered into for sharing the privilege in dealing in liquor with other partners is a prohibited one. such a contract of partnership is void under section 23 of the contract act.'13. we fully agree with the above observation. if that be so, no difference can be spelt out in the legality of the ..... the provisions in rule 6(22) of the rules. it was also held that such a contract of partnership is void under section 23 of the contract act and a void contract of partnership cannot be recognised as a genuine partnership for the purpose of the income-tax act, 1961.4. learned counsel for the assessee contended that the above decision has no application in .....Tag this Judgment!
Court : Kerala
Reported in : AIR1999Ker72
..... have a peep into the sanctity of bank guarantees in commercial transactions. section 126 of the indian contract act, 1872 defines 'contract of guarantee' as a contract to perform the promise, or discharge the liability, of a third person in case of his default. the contract of guarantee is a trilateral contract, that is to say three persons, surety, principal debtor and creditor are involved. generally speaking ..... injunction is to restrain the bank from performing the bank guarantee which cannot be done whereas the respondent could sue the appellant for damages.20. section 17 of the indian contract act defines 'fraud'. it is a comprehensive term and embraces large number of delinquencies. a person who alleges fraud must give particulars thereof in his pleadings. it must be established ..... supreme court in new india assurance company ltd. v. kusumanchi kameshwara rao and another (1997) 9 scc 179 held that as per sections 91 and 92 of the indian evidence act, 1872 no evidence dehors the terms of the agreement, whether documentary or oral, can be led by the parties to get out of the express terms thereof. it further held :'whether ..... against dues to greater cochin development authority/hscl if any.14. it is no doubt true that the terms and conditions of the contract do not specifically refer to the payment of contribution under the welfare fund act. that does hot mean the whole transaction is vitiated for exercise of fraud. whether such payment falls under any general provisions of the .....Tag this Judgment!
Court : Kerala
Reported in : AIR2000Ker36
..... that the creditor should proceed either against the principal debtor or against other sureties before proceeding against him since the liability of a surety is joint and several (vide indian contract act, 1872). in the aforesaid discussion, it is held as follows :'the liability of the sureties is co-extensive with that of the principal debtor. consequently creditor can proceed against the ..... approval in state bank of india v. saksaria sugar mills ltd., air 1986 sc 868, wherein it has been held that under section 128 of the indian contract act, 1872 save as provided in the contract, the liability of the surety is co-extensive with that of the principal debtor. since the sureties have agreed to pay the entire amount their liability is immediate ..... her husband has got other properties does not imply that the sureties cannot be proceeded against. further, this is against the provisions of ext. p-1 agreement and the indian contract act which provide that payment can be enforced simultaneously with the sureties previously or subsequently to the enforcement against the principal. therefore, i am of the view that if the impugned ..... debtor before proceeding against the surety. respondents 3 and 4 have not properly adverted to the correct legal position as laid down in the various judicial pronouncements and the indian contract act.5. the reasoning adopted by respondents 3 and 4 is erroneous and unsustainable. ext. p-2 order which is passed by the 3rd respondent does not state any reason .....Tag this Judgment!
Court : Kerala
Reported in : AIR1982Ker90
..... that the goods were carried by the plaintiff lawfully and in the course of business, and he is therefore on the basis of the principle of section 70 of the contract act, 1872. entitled to compensation for nonpayment of the correct rate of charges.5. from the facts it would appear that shri panicker is right in contending that both parties were mistaken ..... not verifying it. in the circumstances neither law nor equity comes to his aid,9. shri panicker has placed much stress on the principle embodied in section 70 of the contract act. the wording of the section and the illustrations mentioned thereunder militate against counsel's argument. the section has no application where the parties have ..... is no principle of law or equity which warrants intervention of the court on the facts of this case to rectify the terms upon which the parties acted. when the parties entered into the contract it was known to them that different rates applied to different zones and that the zones were determined on the basis of distance as provided under the ..... acted upon stipulated terms of contract. the section embodies the equitable principle of restitution and prevention of unjust enrichment. the object of this provision is to enable the courts to do substantial justice where the relation .....Tag this Judgment!
Court : Kerala
Reported in : AIR1980Ker151
..... bill of lading that the claim if not brought within one year of delivery will be barred, will be hit by section 28 of the indian contract act, 1872. the suit in that case was brought after the one year period specified in the condition. the court held:'...... the effect of the incorporationof article ..... pending action or arbitration, came up for consideration. repelling the contention that the clause was rendered void by section 28 of the indian contract act, 1872, the full bench said:'as the clause does not limit the time within which the insured could enforce his rights and only limits the time ..... filed within 6 months from the date of expiry of the guarantee is hit by section 28 of the indian contract act, 1872.3. section 28 of the indian contract act, 1872 reads:'28. every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of ..... any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce ..... further said:'..... .such a clause did not defeat anyprovision of law, it was not opposed topublic policy and it neither contravened section 28, contract act, nor article 86, limitation act.'in pearl insurance co. v. atma ram, (air 1960 punj 236 (fb)) a clause in an insurance policy which said that in .....Tag this Judgment!
Court : Kerala
Reported in : AIR1982Ker281
..... is named in the contract as the amount to be paid in case ..... resulting from the breach of the contract, claim for compensation will lie in the light of section 74 of the contract act, 1872 (for short the 'act'). 5. the main part of section 74 of the act reads thus : '74. compensation for breach of contract where penalty stipulated for.-- when a contract has been broken, if a sum ..... applying the rules of english common law to the cases before the courts. it was in this background that the indian contract act was enacted in 1872. it represents in effect and substance the code of english law. 11. 'damages' is a common law remedy for breach of ..... ): (at p. 1411 of air): 'section 74 of the indian contract act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. we are in the ..... 'compensation' signifies restoration of position or making things equivalent or recompense. necessarily something must have happened as a result of the breach of the contract which requires an act of recompense or restoration. if the breach has not resulted in any harm, loss or damage to the other party, the question of recompensing .....Tag this Judgment!
Court : Kerala
Reported in : 235ITR594(Ker)
..... agreement being genuine does not arise. therefore, the argument of learned counsel for the assessee that there is no legal bar under section 23 of the contract act, cannot be sustained. section 23 of the indian contract act, 1872, states that the consideration or object of an agreement is lawful, unless it is forbidden by law ; or is of such a nature that, if permitted ..... such a nature that if permitted it would defeat the provisions of the excise law within the meaning of section 23 of the contract act. such an agreement is declared to be unlawful and void by section 23 of the contract act. when the law prohibits the entering into a particular partnership agreement, there can be in law no partnership agreement of that nature ..... hit by the provision under rule 6(22) of the abkari shops (disposal in auction) rules. such a contract of partnership is void under section 23 of the contract act. such a void contract of partnership cannot be recognised as a genuine partnership under the income-tax act, 1961.13. learned counsel for the assessee referred to the decision in jer and co. v. cit ..... of liquor trade and the transfer of the licence are held to be opposed to public policy and defeat the object of the act. therefore, the courts cannot come to the rescue of an assessee to sustain a contract which is opposed to the public policy.18. it is not the case of the assessee that he would stop the liquor business .....Tag this Judgment!
Court : Kerala
Reported in : I(2002)ACC217; II(2002)ACC552; 2002ACJ217
..... the high court dismissed the appellant's appeals. before the supreme court, placing reliance on various provisions of the contract act, 1872, the appellant contended that on account of bouncing of the cheque there was a failure of consideration and as such no contract of insurance came into existence as between the insurer and the insured. further. under s. 64vb of the insurance ..... of the driver of the vehicle who had caused the injuries. thus, any contract of insurance under chap.xi of the motor vehicles act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. therefore, the third party is not concerned and does not come into the ..... , a liability under the contract of insurance would arise only on payment of premium if such payment ..... act, no risk would be assumed unless premium was received in advance. rejecting this contention, the supreme court held that a contract of insurance, like any other contract, is concluded by offer and acceptance. normally .....Tag this Judgment!
Court : Kerala
Reported in : 58CompCas543(Ker)
..... v. lal chand ganeshi lall, air 1958 punj 222. after observing that there was some force in the contention based on section 176 of the indian contract act, 1872, the high court observed (at p. 227):'...............but it is no use pursuing the matter any further in thepresent case. the defendants have not been ..... courses. the right to redeem remains until there is a lawful sale. as far as india is concerned, the indian contract act, 1872, contains specific provisions in this behalf. section 176 of the indian contract act provides for the rights of a pawnee when the pawner makes default in the payment of debt. under that section, ..... irregularity or invalidity in the proceedings in reference to the sale.'48. for yet another reason, section 176 of the indian contract act, 1872, may have no application to the facts of the case. section 176 applies to a pawn or pledge. that term is denned in the indian ..... contract act, 1872, in the following terms :' the bailment of goods as security for payment of debt or performance of a promise is called ' pledge '. ' ..... facts in the present case are different from those in the bombay decision on material aspects. section 176 of the indian contract act, 1872, is a general provision. it applies to the generality of goods. the companies act, 1956, is a special enactment. the shares of a company, though would answer the term ' goods ' coming .....Tag this Judgment!
Court : Kerala
Reported in : AIR1971Ker239
..... sufficient answer to the calcutta decision in (air 1948 cal 269). it therefore follows that the agreement executed by defendant is one which comes under section 65 of the indian contract act, 1872 and if the agreement was 'discovered' to be void later by parties coming to know that it was impossible of performance, then defendant may be liable to disgorge the advantage ..... ' no reason to agree with the view taken by the calcutta high court. i do not see any justification for reading such an exception to section 65 of the indian contract act. 1872.8. the decision of the privy council in ((1903) 30 ind app 114) (pc), was referred to by the pafna high court in abhi singh v. daso bhogta. (air 1952 ..... to was impossible on the date of ext. a-1, but could have discovered the fact later. that would be sufficient to attract section 65 of the indian contract act, 1872 and if it is so attracted, then this is a case where plaintiffs will be entitled to call upon the defendant to pay back the amount received by him under ..... very nature, was incapable of being performed and if so section 56 of the indian contract act. 1872 operated to render such a contract void. section 56 of the act runs as follows :--'56. an agreement to do an act impossible in itself is void.a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could .....Tag this Judgment!