Court : Mumbai
Decided on : May-21-1928
Reported in : (1928)30BOMLR1242
..... damages against her ?11. the answer to this question depends upon the true construction and effect of the specific relief act, 1877, and, in particular, of its part ii, oh. 2, which deals with the specific performance of contracts. the act, like the indian contract act, 1872, is a code. the chapter in question is a codification, with modifications deemed to be called for by indian ..... the dismissal of a suit for specific performance of a con tract...'shall bar the plaintiff's right to sue for compensation for the breach of such contract,'23. although so far as the act is concerned, there is no express statement that the averment of readiness and willingness is in an indian suit for specific performance as necessary as it always ..... same. see, e.g., karsandas v. chhotalal : air1924bom119 , 1050. and, with this fact in view, section 19 of the act becomes in the present investigation all important. the section is as follows:-any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition t:, or in substitution for, such performance.if in ..... the close correspondence of the terms of this section with those of section 2 of lord cairns' act, coupled with the presence in the act of section 24(c) and section 29 already noted, indicating that the old distinction in case of breach of contract between the equitable and the legal form of remedy is still maintained and that the old conditions under .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-16-1928
Reported in : AIR1928Bom201; (1928)30BOMLR570
..... saying that the subsequent revocation was in law ineffectual. and even supposing that the district judge was right in applying sections 4 and 5 of the indian contract act, still it is not shown that in fact the collector had knowledge of the acceptances of november 21 and december 5, before he had knowledge of ..... when it came to the knowledge of the prior consent. in this he of course refers to the provisions of sections 4 and 5 of the indian contract act, which lay down that proposition. i am not prepared to go as far an the district judge, and to hold that the consent given on november ..... rate, up to the time when the matter was before the collector for his decision under section 15 of the act. no doubt there is authority for applying the provisions of the indian contract act to a case of this kind, just as they were applied to the case of summary settlements in the secretary of ..... the case of any statute passed after the date of the indian contract act, such as section 15 of the watan act, 1874, if its provisions are inconsistent with any provisions contained in the indian contract act. the general pro-of state visions of the indian contract act cannot supersede the provisions of a special later enactment. therefore, even ..... was not in existence that would affect the validity of the order. to this extent, 1 think, that the provisions of the indian contract act, so far as they may be in any way inconsistent with the provisions of this clause (1), cannot come into operation. the indian .....Tag this Judgment!
Court : Mumbai
Decided on : Aug-07-1928
Reported in : (1928)30BOMLR1560; 113Ind.Cas.341
..... as well as when it was derived from the mouth of the agent. but that decision was made without any reference to the terms of section 230 of the indian contract act. it is not referred to by west j., and the authority of that decision has been considerably weakened by the subsequent case of lahshmandas v. anna i.l.r (1904 ..... entered into on behalf of his principal is entitled to sue in his own name. the cases that establish that proposition will be found in pollock and mulla's indian contract act, 5th ed,, p. 722; and among other cases where it has been recognised may be cited, subrahmania fattar v. narayanan nayar i.l.r(1900) mad. 130 and coorla mills ..... contract by which he can personally enforce the contract entered into by him on behalf of the principal. there is no reliable evidence that defendant no. 4 ..... opinion, therefore, the case is one which falls under the rule that an agent having an interest in the contract can sue in his own name. the case also, in my opinion, falls under the rule laid down in section 230 of the indian contract act that, where the agent does not disclose the name of his principal, there shall be presumed a .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-13-1928
Reported in : (1928)30BOMLR837
..... ease, it is unnecessary to deal with this point at length or to express any definite opinion upon it.20. section 39 of the indian contract act runs thus :-when a party to an agreement enforceable by law lifts refused to perform or disabled himself from performing us accepted proposal in its entirety ..... said that, if they had been wrong in refusing in advance to accept bales, this repudiation had not been accepted by the respondents, and therefore the contract remained alive and ought to have been performed. it will be observed that their lordships, in setting out these two sections (section 39 and 63), ..... bales and in refusing to be bound by or to perform it. if delivery of the shirting, packed in bales, was hi conformity with the contract, the appellants clearly deckled that they would not accept them, and this was acquiesced in by the respondents.19. no evidence was given establishing that ..... second time an application to be at liberty to add a plea that the plaintiffs were not ready or willing to perform their part of the contract entered into between the parties, and apropos of this application the court said :-the real question in dispute is whether, in face of the correspondence ..... was communicated as alleged, still inasmuch as a dispensation or remission under section 63 requires an agreement or contract wt, the resolution was of no legal effect since the provisions of section 30 of bombay act ii of 1884 have not been observed.24. with this their lordships are unable to agree. the .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-23-1928
Reported in : (1928)30BOMLR834
..... a payment so made.8. it is of no use reciting the law to this effect: the law is plain. under section 69 of the indian contract act it is clear this was payment of money which another was bound to pay by law and, therefore, the person who paid it is entitled to be ..... a thing suggested by the parties to cover contingencies which were not yet wholly foreseen, but that it contradicts or restricts the wider language of the contract of sale or that it either narrows or wipes out the obligations under the statute can not be maintained.10. on those grounds their lordships see no ..... the property. it is said, however, that this statutory obligation was negatived in the particular circumstances of this case by reason of the terms of the contract of sale.4. the fact is that there had been more than one mortgage existing on the property prior to the transaction of sale. but the ..... expressed in terms of a very absolute and clear character. it provides, the irrelevant parts of the section baing omitted, that in the absence of 'a contract to the contrary,' the buyer and the sailer of iinmoveable property are subject to liabilities and have rights, in the enumeration of the elementary proposition that the ..... 2. the question is a short and simple one. it arises under section 55 of the transfer of property act, clause 1, sub-section (g), and the bearing thereon of the terms of a particular contract of sale.3. the parties were vendor and vendee of a certain piece of immoveable property. section 55 is .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-24-1928
Reported in : AIR1928Bom539; (1928)30BOMLR1407
..... done, and there is no promise made for the benefit of the principal debtor. it is not always easy to construe the provisions of the indian contract act with accuracy, but if it be true that the exceptional cases set out in section 25 are cases of agreements wherein there is no consideration, then, ..... gives a promissory note in consideration of a time-barred debt is precisely within the terms of the 3rd exception to section 25 of the indian contract act, for he is a person against whom but for the statute of limitation the creditor might have enforced payment, to the extent of course of ..... , in her personal capacity defendant no. 1, by executing this promissory note, incurred no liability by virtue of anything contained in section 25 of the indian contract act.16. but it is further urged that there was consideration for the promissory note of another kind. it is said that there was a compromise, viz.. ..... those debts. and if she undertook to pay those time-barred debts, she can only be held liable by virtue of section 25 of the indian contract act. section 25 begins by reciting that an agreement made without consideration is void. that is the general rule laid down, and there follow three cases in ..... case anything done or any promise made for the benefit of the principal debtor, and, therefore, under section 127 of the indian contract act there is no consideration for a contract of guarantee. it seems to me that the same result is arrived at from a consideration of section 25 of the indian .....Tag this Judgment!
Court : Mumbai
Decided on : Jan-06-1928
Reported in : AIR1928Bom225; (1928)30BOMLR470
..... property. his possession was merely the possession of a servant, and could not be said to be juridical possession within the meaning of section 178 of the indian contract act. the pledge, therefore, effected by baburao in favour of the father of defendants nos. 2 to 4 was not binding on the plaintiff'.5. we think, ..... of bombay : (1910)12bomlr316 , but their lordships of the privy council declined to express any opinion on the proper construction of section 178 of the indian contract act, and held that the bank of bombay having returned the goods to the warehouseman by whom they were deposited without any notice of any claim by any other ..... custody of goods during his absence was not in juridical possession of the goods which would enable him to make a valid pledge under section 178 of the indian contract act. in seager v. hukma kessa i.l.r. (1900) bom. 458& 2 bom. l.r. 403 the wife in charge of her husband's ..... that the plaint pawn did not bind the plaintiff as baburao was not in juridical possession of the ornaments within the meaning of section 178 of the indian contract act, and ordered defendants nos. 2 to 4 to restore the articles pawned with them or their value rs. 1,500. on appeal, the learned district ..... next question is whether the defendants nos. 2 to 4 can claim a valid pledge of such ornaments under section 178 of the indian contract act. three conditions are necessary under section 178: firstly, that the pawner must be in possession of the goods; secondly, that the pawnee .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-30-1928
Reported in : AIR1928Bom305; (1928)30BOMLR885
..... the criminal court and is not impugned now. that single fact cannot cause such a consideration to be forbidden by law within the meaning of section 23 of the indian contract act, and the agreement to be void. the opposite view amounts in effect to this. at the time of the complaint and the agreement to compound, the father, sister-in-law ..... son, was an agreement to com pound the complaint of a grievous hurt to his wife. the question is, whether, the agreement is void under section 23 of the indian contract act as being made by the husband and not by the injured wife. it is argued for the appellant-son that no question was raised in the criminal court as to ..... and the criminal court assumed the consent of the wife and acted upon it, and as far as the present appellant was concerned the agreement was carried out and an acquittal recorded. having obtained such performance the very parties who. were benefited .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-07-1928
Reported in : AIR1928Bom507; (1928)30BOMLR1310
..... may now refer to section 174 of the indian contract act which runs:-the pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise other than the debt or promise for which they are pledged; but such contract, in the absence of anything to the contrary, ..... was intended in this case.14. a further question, however, has arisen, viz., whether the subsequent conduct of the parties may not evidence a new contract that this silk hanging should form part of the security thereafter to be retained by cowasji in respect of the previous advances. by their solicitors' letter of ..... was made upon the credit of the pledge, and was so understood by the parties. the rule, in all these cases, strictly applies, that the particular contract is to govern the right of the parties.8. then there is a passage in halsbury, vol. xxii, p. 242, viz., that 'the principle of ..... that then there was a further payment or a further advance, then you may presume, in the absence of anything to the contrary, that the real contract between the parties was that the pledge should! cover this subsequent advance. but i draw attention to the qualifying words 'in the absence of anything to ..... happily drafted, because it seems to me to involve rather inconsistent notions. but i think it amounts in effect to this: you must find a contract allowing you to hold articles for subsequent advances as well as the original advance. then if you know nothing more than this that there was a .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-28-1928
Reported in : AIR1928Bom260; (1928)30BOMLR745
..... only when the premium was paid and accepted. la order to convert a proposal into a promise, the acceptance must be absolute and unqualified under section 7 of the indian contract act. i may refer in this connection to the casa of allis chalmers co. v. fidelity and deposit company of mary-land (1916) 114 l.t. 433. the case would have ..... policy without having paid the premium, i have no doubt that they would have denied their liability.18. i agree with the view expressed by the acting chief judge that there can be no contract until there is actual payment of the premium as provided by the policy.19. in these circumstances i am of opinion that both the questions referred by ..... made by the small causes court, bombay, under section 69 of the presidency small causes courts act. the defendant intended to insure his motor car and supplied the particulars in a printed form, exhibit c, which was agreed to be the sole basis of the contract, the plaintiff insurance company issued a policy exhibit a containing a proviso as follows :-no insurance ..... . the case was originally argued before the 2nd judge who decided that no contract had come into existence and dismissed the suit. against this decision the plaintiffs applied to the full court and obtained a rule. when the rule was argued before the full court consisting of the acting chief judge, who was the same judge who had previously decided the suit .....Tag this Judgment!