Court : Kerala
Reported in : AIR1957Ker3
..... due. the money was paid under the belief that it was legally due. that belief waa mistaken and that was sufficient to bring the case within section 72 of the contract act.9. it follows therefore that the decree of the court below granting the plaintiff's claim to refund of the salaries which had been paid to the defendant under mistake ..... be available only when the payment was under mistake of fact and not of law, that view was no doubt adopted in some cases. now section 72 of the indian contract act says:--'a person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay jt or return it'.the argument was that section 72 contemplated ..... course of legal proceedings, he may be ordered to pay it with interest. 11. the question of recovery of interest as damages under section 73, contract act, where if it is not recoverable under the interest act, had given rise to considerable divergence of judicial opinion but it may now be deemed to be settled by the decision of the privy council in ..... only a mistake of fact and not one of law. it was said that if a sum paid under mistake of law be recoverable then section 21 of the contract act would be rendered nugatory. section 21 was to the effect that a contract is not voidable because it was caused by a mistake of law. the argument therefore ran thus that a .....Tag this Judgment!
Court : Kerala
Reported in : AIR1957Ker19
..... was no patty to ext. a, his obligation can be treated only asthe obligation of a person enjoying the benefit of a non-gratuitous act, i.e., an obligation coming withinthe ambit of section 70 of the indian contract act, 1872; 'where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and such other ..... character and as already indicated the claim in this case has to be considered not as one based on a contract but as one based on a relation resembling those created by contract and as coming under section 70 of the indian contract act, 1872. in other words, what we are dealing with is a statutory liability for the breach of which the only article ..... available is article 120 of the limitation act, 1908. 11. such a conclusion no doubt leads to the anomaly of suits on ..... contract having a period of limitation of three years and of quasi .....Tag this Judgment!
Court : Kerala
Reported in : AIR1959Ker176
..... of the contract, the instrument itself must be consulted in ascertaining the intention; but if the language is ambiguous the situation of the parties and the circumstances surrounding the transaction may be looked ..... ascertained by a fair and reasonable interpretation of the terms used and the language employed in the contract of guaranty as read, when necessary, in the light of the attendant circumstances and the purposes for which the guaranty was made. where there is no ambiguity in the language ..... effect of the written engagement that he has entered into.'the principle involved is simple. the principle is that 'the surety like any other contracting party, cannot be held bound to something for which he has not contracted'. pratap singh mohanlalbhai v. keshavlal harilal setalwad, air 1935 pc 21.9. in corpus juris secundum, (vol 38 page 1177) the rules of construction ..... applicable are summarised as follows :'in ascertaining the meaning of the language of a contract of guaranty the same rules of construction control as apply in the case of other contracts. in accordance with such rules the important question is, if possible, to determine and give effect to the intention of the parties as .....Tag this Judgment!
Court : Kerala
Reported in : AIR1957Ker155
..... that the terms 'movable property' in the first column of article 89 would include money also, these cases havebeen collected & mentioned at page 468 of mitra's limitation act, 13th edition. they arc shib chandra roy v. narain mukherjee, ilr 32 cal 719 (b); pran ram v. jagadish nath, ilr 49 gal 250: (air ..... position and retained the money, the suit for recovery of the sums which he wrongfully retained in his hands was clearly covered by article 90, lim. act, it being a suit by the principal against an agent for neglect or misconduct.'3. article 89 also would apply to this case. the agency which ..... for it would be either neglect or misconduct on the part of the agent. therefore, this is clearly a case coming under article 90 of the limitation act. i am fortified in this view by the decision of the allahabad high court in jaganji v. bandan, air 1930 all 397 (a), wherein it ..... for a specific purpose in connection with the work of the agency the defendant had undertaken on behalf of the plaintiffs. article 62 of the limitation act reads:'62.for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use.threeyears.when themoney is ..... as alleged by them. on the question of limitation, the findings were divergent. according to the defendant, the suit is governed by article 62 of the limitation act, and the plaintiffs' cause of action arose on the date of the entrustment, namely, 5-3-1122. the first court repelled this contention and, holding that .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker380
..... (if not arising from the fault of the hirer or from some risk which he has taken upon himself) excuses him'. section 160 of the indian contract act says: 'it is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon ..... that the weight of authority seems to favour the last view. as regards the law in india pollock and mulla in their commentaries on the indian contract act, 7th edn., p. 489 no doubt observe that the english decisions upon the hiring of particular kinds of property turn rather on questions of implied ..... warranty, or unexpressed terms of the contract, and must be used with great caution for the establishment of any general rules particularly in view to' the quite positive language of the second paragraph ..... , in my opinion, be considered as having agreed to take the risk of a greater or a less efficiency of the chattel about which ho contracts.' the real conflict that has arisen since these two decisions is as to the precise terms in which this warranty is to be described. paton ..... the engine for the particular purpose of bailing water and consequent breach of warranty of fitness became important. and the question became difficult when the contract as here did not contain in express terms any warranty but on the other hand contained an express obligation.8. the question how far there .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker322
..... exclusive title during the partition litigation but these, to our mind, can hardly suffice the test as regards their bona fides. section 18 of the indian contract act defined misrepresentation so as to mean and include:'the positive assertion, in a manner not warranted by the information of the person making it, of that ..... to shorten litigation or to do complete justice between the parties.'we therefore hold that the suit viewed as one for damages in enforcement of the contract of indemnity contained in the sale deed is not in any way barred.9. as the court below did not fix the quantum of damages ..... third parties and possession is taken by the vendee under the voidable sale, and (3) where though the title is known to be imperfect the contract is in part carried out by giving possession of the property to the vendee', and said this case came within the second of the categories above ..... (j), where it was held after full discussion :'in a suit for damages for breach of contract of indemnity, express or implied, in writing registered, the period of limitation is governed by article 83 of the limitation act read with article 116, or in other words, the plaintiff will have a period of six ..... with article 83.8. in our judgment it is unnecessary to decide what among the three categories will be appropriate if article 116 of the limitation act alone applies. for as contended by learned counsel for the appellants, the article applicable is article 116 read with article 83 in the light of the .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker31
..... to depart from the view expressed on this point in air 1942 nag 92 (c).'8. section 26 of the travancore contract act (act x of 1115) corresponds to section 25 of the indian contract act, 1872. that section provides -- subject to strictly limited exceptions -- that an agreement made without consideration is void. one of the ..... suits.'pollock and mulla deal with the difference between section 25(3) of the indian contract act, 1872, and section 19 of the indian limitation act, 1908, as follows:'the distinction between an acknowledgment under section 19 of the limitation act and a 'promise' within the meaning of this section is of great importance. both ..... a case there is no consideration at all and the agreement will be void unless it is saved by section 26(3) of the travancore contract act.11. in the light of what is stated above the appeal fails and it is hereby dismissed. the lower court directed the parties to bear ..... the period of limitation expires, nothing short of an express promise will provide a fresh period of limitation; an implied promise is not sufficient.'(the indian contract act, eighth edition, p. 216)it is agreed that ex. a-1 will not amount to an express promise and that the suit cannot be saved ..... bai, air 1942 nag 92 (c). grille, j., said:'if the whole account is time-barred, then the ban imposed by section 25(3), contract act, would apply.'this decision was followed in tulsiram shrikisan v. zaboo bhima, air 1949 nag 229 (d):'in an account stated it does not matter if .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker257
..... of the firm and the other partnersalso are liable for the amount so borrowed byhim.this rule of law based on section 251 of the contract act is so well recognised that we do not think it necessary to refer to the numerous authorities cited before us. in the light of exts ..... .therefore defendant 1 had authority and was competent under section 251 of the contract act to incur debts binding on defendant 2. the law on the subject is stated in saremal punamchand v. punamchand, air 1924 bom 260 (a), ..... pledge or sell the partnership property; he may buy goods on account of the partnership; he may borrow money, contract debts, and pay debts on account of transfer, negotiate and procure to be discounted promissory notes bills of exchange, cheques, and other negotiable paper in ..... shop. buying and selling was therefore the main business of the firm, and borrowing money for the purpose of buying or for discharging earlier debts contracted for the business is a thing usually done in carrying on such a business. very frequently borrowing is necessary for carrying on such a business ..... part-nership, or, as it is sometimes expressed, each partner is prepositus negotiis societatis, and may, consequently, bind all the other partners by his acts, in all matters which are within the scope and objects of the partnership. hence, if the partnership be of a general commercial nature. he may .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker126
..... of even the madras agriculturists' relief act, unless that act governed the transaction in suit in ext. al case. on this matter, the principle of private international ..... at all be invoked by the defendant. for one thing, the contract under the promissory note for simple interest at 18 per cent sustained by ext. al judgment did not contravene any statutory provision in any all-india enactment e.g., the usurious loans act, v. of 1918' or the contract act ix of 1872. secondly, there could not be said to be a breach ..... sought to be enforced was being questioned as regards its conclusiveness, by the defendant.the argument is that to the extent section 13 of the act was ignored by the colombo district court in granting the contract rate of 18 per cent interest under ext. al decree, it was sustaining 'a claim founded upon a breach of any law in force in ..... the creditor, held (reversing the order) that the act will not apply to the foreign decree sought to be executed. and krishnaswamy iyer c. j. observed :'the debt evidenced by the decree in question is one which is the result of a contract entered into a foreign place. the substantive law relating to the contract between the parties is the british indinn law .....Tag this Judgment!
Court : Kerala
Reported in : AIR1958Ker246
..... the undertaking in ext. a is sufficient consideration for the agreement within the meaning of that term as defined in section 2(d) of the indian contract act.6. the contention that the defendants have been discharged from the obligation under ext. a is also without any substance. no decrees have actually been assigned ..... the cause of action on it became barred by limits tion on 29-11-1942 under art. 55 of the travan-core limitation act (article 67 of the indian limitation act) and that the acknowledgment made on 27-11-1943, after the original cause of action had become barred by limitation was of no ..... last day of the period is impliedly specified by the agreement as the day for payment. article 66 of the indian limitation act (article 54 of the tra-vancore limitation act) does not say that the day for payment should be specified expressly in the bond.when the day is clearly specified by ..... contention the plaintiffs' learned counsel contended that the article which would apply to ext. a was article 54 of the travancore limitation act corresponding to art. 66 of the indian limitation act which provides for a suit on a simple bond, where a day is specified for payment, a period of three years from ..... and that therefore the article which applies to a suit brought on ext. a is article 65 of the travan-core limitation act, corresponding to article 67 of the indian limitation act, which provides for a suit on a single bond, where no day is specified for payment, a period of three years .....Tag this Judgment!