Court : Orissa
Reported in : 1994(I)OLR554
..... will be apt and proper to extract some of the observations made in the afore-mentioned decision :'while the contract act, 1872, does not profess to be a complete code dealing with the law relating to contracts, we emphasize that to the extent the act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import principles ..... other reasons to engage in any business similar to or compete with the employer is in restraint of trade and is, therefore, void under section 29 of the contract act,9. section 27 of the contract act reads as follows :'27. agreement in restraint of trade, void-every agreement by which one is restrained from exercising a lawful profession, trade or business of ..... after the termination of his services. the restriction contained in clause 10 of agreement is obviously in restraint of trade and, therefore, illegal and unenforceable under section 27 of the contract act. 1 (see paragraph-23) earlier in the judgment, the learned judge quoting from niranjan shankar goiikari's case (supra') had sought to draw a distinction between restrictions applicable during ..... recorded the following findings :''neither the test of reasonableness nor the principle that the restraint being partial was reasonable is applicable to a case governed by section 27 of the contract act, unless it falls within exception 1. we, therefore, feel that no useful purpose will be served in discussing the several english decisions cited at the bar.'(see paragraph 52 .....Tag this Judgment!
Court : Orissa
Reported in : AIR2007Ori56; 2006(II)OLR557
..... entered into between the parties became impossible to perform as well as unlawful and, thus, amounted to frustration of the same. no doubt provisions of section 56 of the contract act, 1872, as quoted above, does not cover every case of frustration but it applies to a subsequent unforeseen event or contingency for which, neither of the parties is responsible. giving ..... must have intended.11. section 56 of the contract act, 1872 is relevant for the purpose and the relevant portion thereof is quoted hereunder:56. agreement to do impossible act - an agreement to do an act impossible in itself is void.contract to do act afterwards becoming impossible or unlawful.a contract to do an act which, after the contract is made, becomes impossible, or, by reason ..... regard to the nature and circumstances of the transaction and implied terms, no doubt is cast in the present case that the performance of the contract on the part of the petitioner became an impossibility and such impossibility can be brought within the fold of 'force majeure'.13. in the aforesaid circumstances, we find no ..... of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. xxx xxx .....Tag this Judgment!
Court : Orissa
Reported in : 1995(II)OLR66
..... requirements cannot be construed to be condition subsequent, and not condition precedent to the contract. in jawharlal's case (supra) in paragraph 16 it has been held by the apex court that section 7 of the indian contract act 1872 requires that the acceptance of the offer must be absolute and unqualified, and ..... it cannot be conditional. on the facts of that case, in view of specific mention in the offer letter that there was a final contract, the apex court held that the contract was a ..... on the registered letter being that it was refused on 5-7-1978, a presumption under section 114 of the indian evidence act, 1872 (in short, the 'evidence act') was available to be drawn and view of unchallenged evidence that plaintiff no. 2 was present in the office of the executive ..... ) for execution of the same as the executive officer did not take any steps. the plaintiffs have satisfied their part of the obligation and contract, as evident from the order of allotment and the same being a completed one was enforceable. when the plaintiffs learnt that the room was ..... officer on 4-7-1978. courts below have rightly held that the plaintiffs are to succeed. relying on the observations made by the apex court in jawharlal's case (supra), it is submitted that the contract .....Tag this Judgment!
Court : Orissa
Reported in : AIR1995Ori186; 1995(I)OLR96
..... scheme. the answer to the question depends on the interpretation and inter play of relevant provisions of the indian contract act, 1872 (for short, 'the act'). under section 21 of the act it is laid down that a contract is not voidable because it was caused by a mistake as to any law in force in india; but ..... to the corporastion. further, in the facts and circumstances, it was not possible to restore the party to its former position. therefore, section 72 of the contract act cannot be applied in the case. 7. the resultant position is that the writ applications are devoid of merit. they are accordingly dismissed, but in the ..... dhanyalakshmi rice mills etc. v. the commr. of civil supplies,reported in air 1976 sc 2243 in which it was held that sectionn 72 of the contract act states that person to whom money has been paid or any thing delivered by mistake or under coercion, must repay or return it; that the mistake ..... as has been used therein; that there is no conflict between the provisions of section 72 on the one hand and sections 21 and 22 of the contract act on the other; that the true principle is that if one party under a mistake, whether of fact or law, pays jo another party money which ..... v. kanhaiya lal mukund lal saraf, reported in air 1959 sc 135 in which the court ruled that the term 'mistake' used in section 72, contract act, has been used without any qualification or limitation whatever and comprises within its scope a mistake of law as well as mistake of fact; that there is .....Tag this Judgment!
Court : Orissa
Reported in : AIR2005Ori92
..... as a trustee of the owner of the industrial concern in terms of section 29(4) of the act. mr. mohanty also' referred to the provisions of sections 172 to 177 of the indian contract act, 1872 to show' that there are similar provisions therein and in particular, section 176, casting an obligation on ..... the pawnee to pay over the surplus of the sale proceeds to the owner after realizing his dues therefrom. he also referred to the indian trust act, 1982 and in particular ..... pledged, mortgaged, hypothecated or assigned to the financial corporation that the money which is received by the financial corporation shall, in the absence of any contract to the contrary be held by it in trust to be applied firstly in payment of costs, charges and expenses incurred by the financial corporation and, ..... by it as incidental thereto shall be recoverable from the industrial concern and the money which is received by it shall, in the absence of any contract to the contrary, be held by it in trust to be applied firstly in payment of such costs* charges and expenses and, secondly, in discharge ..... . similarly a reading of section 69(4) of the transfer of property act, 1882 quoted above would show that it is 'the money which is received' by the mortgagee from the sale that in the absence of any contract to the contrary is held by the mortgagee in trust to be applied by .....Tag this Judgment!
Court : Orissa
Reported in : AIR1992Ori161; 80CompCas57(Orissa)
..... the parties is that of pawner and pawnee. the rights and liability of the parties are governed by the provisions in sections 172 to 179 of the indian contract act, 1872. section 172 defines the terms 'pledge', 'pawner' and 'pawnee'. section 173 lays down that the pawnee may retain the goods pledged, not only for ..... of pledged articles imposed, preventing the plaintiff from recovering the amounts due to it is against the rights of the pawnee recognised under section 176 of contract act and this is an aspect which is foreign to the nature of the suits, and it is left to be considered in appropriate proceedings which would ..... ): 'there is no difference between the common law of england and the law with regard to pledge as codified in ss. 172 to 176 of the contract act. under s. 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. section 173 entitles ..... goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contract of pledge. the pawnee, therefore, can sue on the debt retaining the pledged goods as collateral security. if the debt is paid he has to ..... right in the pawnee to receive from the pawner extraordinary expenses incurred by him for the preservation of the goods pledged. sections 176 and 177 of the act which, in my view, are of particularly significant in this case are quoted hereunder ; '176. pawnee's right where pawner makes default:-- if the .....Tag this Judgment!
Court : Orissa
Reported in : AIR2000Ori32
..... duly credited.6. the only question that needs to be decided in a case of this nature is whether the transactions are covered under section 23 of the indian contract act, 1872 (in short, the 'contract act'). said provision reads as follows :'23. what considerations and objects are lawful and what not.--- the consideration or object of an agreement is lawful, unless- it is forbidden ..... of the indian contract act, and therefore, the direction for recovery is not sustainable.the writ application is allowed, but in the peculiar circumstances without any order as to costs.b.p. das, j.13 ..... apply 'notwithstanding any agreement to the contrary', and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of contract (law of property act, 1925).12. in view of the position in law, in the peculiar circumstances, we are of the view that it is not a case covered by section 23 ..... as follows in paragraph 248 at page 143 :'as a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an act of parliament,or, as it is said, can contract himself out of the act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public .....Tag this Judgment!
Court : Orissa
Reported in : AIR1997Ori77
..... it may be relevant to find out as to what is the nature of his claim. in my view,' the provisions of section 72 of the indian contract act, 1872 provide the answer. this provision reads thus :'72. liability of person to whom money is paid or thing delivered by mistake or under coercion.-- a person ..... 26, that where tax could not be levied at a rate higher than that provided in the schedule of taxation act, a suit for recovery of excess money brought under section 72 of the contract act on the ground that it was paid under a mistake, was maintainable. similar would be the case if the amount ..... of freight what was payable and what was actually paid would, i feel, be a claim falling under section 72 of the contract act, for it has been held in union of india v. steel stock holders syndicate, poona, air 1976 sc 879, that the indian railways ..... act does not supersede the provisions of the contract act.19. the question which now arises for consideration is, whether the railway administration can resist; the claim by taking recourse to the provisions of section 76a of the act (section 69 of the new act), which reads thus :'76-a. responsibility ..... freight had been recovered.23. when the respondent booked the coal on a particular route and paid freight for carriage thereof, there came into existence a contract of carriage between the respondent and the appellants. in view of this, it was, unless conditions laid down in section 76-b existed, obligatory for .....Tag this Judgment!
Court : Orissa
Reported in : AIR2008Ori119; [2008(4)JCR183]; 2008(I)OLR796; 2008(5)AIRKarR55(FB).
..... between the o.s.f.c. and the loanee is a pure and simple contract governed by the provisions of the indian contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by ..... virtue of the provision in section 56 read with section 64(2) of the act, 1972, the ..... .(underlined by us to put emphasis)7. the aforesaid position of law, which emerge from section 64, if read with provision in section 56 of the act, then the concept of parting with the confiscation amount to the lender of the money is a misconceived one. therefore, we are of the opinion that ..... that the provision in section 64 was not brought to the notice of their lordships when the provision in section 56 was placed. section 64 of the act, 1972 reads as hereunder:64. property when to vest in government -(1) when an order for the confiscation of any property has been passed under ..... , even if a public sector undertaking, cannot ask for such a relief in view of the provision of law in section 56 and 64 of the act.5. the aforesaid concept of the petitioner itself is incorrect, in as much as the concept of first charge or second charge has no applicability when .....Tag this Judgment!
Court : Orissa
Reported in : 84ITR351(Orissa)
..... contract act. when, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from ..... not been defined either in the sales tax act or in the sale of goods act. in section 2(10) of the sale of goods act 'price' means the money consideration for a sale of goods. section 2(15) of that act says that expressions used but not defined in that act and defined in the indian contract act, 1872, have the meanings assigned to them in the ..... doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is ..... called a consideration for the promise (section 2(d) of the contract act .....Tag this Judgment!