Court : Mumbai
Decided on : Feb-11-1999
Reported in : 1999(2)ALLMR608; 1999(3)BomCR45; 1999(2)MhLj821
..... paid to the defendant sum of rs. 72,000/- towards the temporary total disability.13. the term undue influence has been defined under section 16 of theindian contract act, 1872 as under:'undue influence' -(1) a contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to ..... and therefore the objection of the defendant that the indemnity bond is an agreement without consideration has got to be accepted. in order that agreement becomes legally enforceable under the contract act there has to be a consideration. counsel for the plaintiff, in support of his contention and in repelling the argument of the defendant tried to rely upon the words in ..... aspect to this case and that is as rightly argued by the counsel for the defendant, there is no consideration to the agreement i.e indemnity bond. as per the contract act, consideration is an indispensable part of any legally enforceablecontract. it is an admitted fact that payment of rs. 3,00,000/- under the insurance policy by the plaintiffs to the ..... convert their legal liability as consideration for further fresh agreement i.e. indemnity bond.18. counsel for the plaintiff relied upon certain provisions of the contract act in support of his contention regarding free consent to the contract, agreement and has also relied upon certain letters written by the defendant. all of them become irrelevant for the aforesaid reasons and findings. therefore, for .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-09-1999
Reported in : 1999(1)ALLMR389; 1999(1)BomCR393
..... , 23 and 24 deal with who can be a member having regard to the principles of open membership. broadly speaking, an individual who is competent to enter into a contract under the indian contract act, 1872, is eligible to become a member; subject of course, to certain exceptions carved out in section 22 itself. under section 23 refusal to admit a person who is ..... of a member belonging to the kanara saraswat community. under the amendment, as directed, it has been provided that: (a) a person who is competent to enter into contract under the indian contract act, 1872 would be eligible to become a member subject to his fulfilling certain requirements; (b) a minor or a person of unsound mind, inheriting share or interest of the society ..... to the provisions of section 24, no person shall be admitted as a member of society except the following, that is to say: (a) an individual, who is competent to contract under the indian contract act, 1872, (b) a firm, company or any other body corporate constituted under any law for the time being in force, or a society registered under the societies registration ..... in particular to sections 4, 9, 22 and 23. admittedly, the third respondent or her husband was a person competent to enter into contract under the indian contract act, 1872 and fulfilled all the requirements of sub-section (1) of section 22 to be eligible to become a member. the society could not refuse admission to the third respondent or .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Feb-10-1999
Reported in : AIR1999SC1036; 1999(2)ALLMR(SC)434; 96CompCas1(SC); JT1999(1)SC430; (1999)IIMLJ114(SC); 1999(1)SCALE393; (1999)3SCC80; 1SCR555
..... to overcome the legal obstacles in their way, the judgment debtors have sought refuge under the cloak of alleged protection provided , by section 60 of the contract act, 1872. it is further submitted that in view of the later judgments of this court in mathunni mathai v. hindustan organic chemicals ltd. and ors. : [ ..... the lahore high court in jia ram v. sulakhan mal. dealt with the scope of section 59 to sections 61 of the contract act and held:'sections 59 to 61, contract act, embody the general rules as to appropriation of payments in cases where a debtor owes several instinct debts to one person and ..... but the law or even the agreement entered between the parties may provide for adjustment of payment in a particular manner. section 60 of the contract act provides that: where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied, ..... in accordance with the agreement arrived at between the parties though on the general principles as mentioned in sections 59 and 60 of the contract act. as and when such an agreement either express or implied is relied upon, the burden of proving it would always be upon its propounder. ..... omits to intimate the discharge of the debt in the manner envisaged under section 59. we are of the opinion that sections 59 and 60, contract act, would be applicable only in pre decretal stage and not thereafter. post-decretal payments have to be made either in terms of the decree or .....Tag this Judgment!
Court : Kerala
Decided on : Jan-27-1999
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 : Allahabad
Decided on : Dec-09-1999
Reported in : 2000(1)AWC493
..... be invoked. in union of india v. kishori lal, air 1959 sc 1362, the supreme court was confronted with a question as to whether the arbitration clause falls within a contract which becomes impossible of performance under section 56 of the contract act, 1872. the principles laid down therein per majority are these-'(1) an arbitration clause is a collateral term of a ..... contract as the definition from its substantive terms ; butnevertheless it is an integral part of it : (2) however comprehensive the terms of arbitration clause may be the existence of the contract is a necessary condition for its ..... law and did not leave the matter to be determined according to the intention of the parties. since under the contract act, the terms may be expressed or implied in cases where the course covers as a matter of construction that the contract itself contains impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances ..... we are of the view that consequence that ensues as a result of substitution, rescission or alteration of the original contract as visualised by section 62 of the contract act may follow also by operation of some law. the scheme of rehabilitation of the sick company (fpl) by its amalgamation/merger with the transferee company (s.r.f. ltd.) as .....Tag this Judgment!
Court : Chennai
Decided on : Jan-30-1999
Reported in : 99CompCas87(Mad)
..... continuous transactions spread over for a number of years and the guarantee given by defendants nos. 2 to 4 constitutes a continuing guarantee, as defined under section 129 of the contract act, 1872.13. with regard to the point of limitation, the first defendant has acknowledged its liability to pay the amount due as on march 15, 1976, as seen from exhibit a ..... barred by limitation. i find no force in the argument of counsel for the appellant in this aspect.16. according to the appellant, notice contemplated under section 176 of the contract act was not given and so, the sale of the pledged goods is void and illegal. section 176 contemplates that if the pawnor makes default in payment of the debt, or ..... the principal debtor which is also beneficial to the guarantor. so, the non-issuance of notice, before the sale of goods, to the guarantor does not amount to variation of contract. section 113 of the contract act is not attracted. the liability of the guarantor is co-extensive with the liability of the principal debtor as per section 128 of the ..... before sale and as the appellant was not given notice about the sale, it amounts to variation of contract under section 133 of the contract act and so, the appellant, the guarantor gets discharged from his liability because of the variation of the contract.19. section 133 of the contract act provides that any variance made without the surety's consent in the terms of the .....Tag this Judgment!
Court : Mumbai
Decided on : Dec-01-1999
Reported in : 2000(2)ALLMR317; 109CompCas873(Bom)
..... would not be entitled to claim any rights conferred on the defendant by virtue of sections 133, 134, 135, 139 and 141 of the indian contract act, 1872. the said deed further provided that liability of the defendant would extend to all accounts of the company.4. pursuant to the arrangement, the plaintiffs ..... consequently must be rejected.36. for the purpose of contending that the surety is entitled to all the benefits of section 141 of the indian contract act and that he could not opt out of the provisions pertaining to guarantee, reliance is placed on the judgment of two division benches of this court ..... disposing of the securities, the surety cannot claim any right in law as it was always open to the surety under section 140 of the indian contract act to pay the amount outstanding and thereby get the securities. for all these reasons, it is contended that the plea raised by the defendant has ..... can be maintained only after securities covered by the deed of hypothecation are enforced. even otherwise, this would be contrary to section 140 of the contract act which requires that the securities must be made available to the guarantor if he pays the debt. to my mind, the deed of hypothecation was ..... shall not be entitled to any of the rights conferred on sureties by sections 133, 134, 135, 139 and 141 of the contract act.' 38. by a term of the contract in this case the parties have agreed that the said sections would not be applicable between themselves. the said sections are to applicable .....Tag this Judgment!
Court : Allahabad
Decided on : May-28-1999
Reported in : 1999(3)AWC2385
..... never applied for it. (c) decree not being indivisible, entire decree could not be set aside. (d) each defendant is liable to satisfy the entire decree, as under section 128. contract act, liability of the principal-debtor and surety is coextensive. decree passed on merits against guarantor could not be set aside. 9. in the facts of the present case, grounds (a ..... learned counsel for the petitioner.5. before dealing with the contention raised on behalf of the petitioner, provisions of order ix rule 13 code of civil procedure and section 128 contract act may be noted which are reproduced below :'order ix rule 13. setting asidedecree ex parte againstdefendants.--in any case in which adecree is passed ex parte against adefendant, he may ..... of onany ground other than the ground that the appe11ant has withdrawn the appeal, no application sha11 lie under this rule for setting aside the ex parte decree.' (the indian) contract act, 1872section 128. surety's liability.--the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the ..... check possibility of coming into existence of conflicting decrees, which may cause embarrassment to the court.7. section 128 of the contract act, provides that the liability of surety is co-extensive with that of principal debtor, unless otherwise provided by the contract. ii. therefore, makes abundantly clear that the liability of a surety is dependent upon the liability of the principal. in .....Tag this Judgment!
Court : Chennai
Decided on : Jul-27-1999
Reported in : 1999(3)CTC109
..... , negligence or default of the forest contractor. the surety kaluram contends that because the state lost or parted with the security he stood discharged. by s. 10 of the indian contract act, 1872, where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that ..... to realise his debt from the principal debtor had in the properties that were offered as securities. unless such transfer of security is also read in s. 140 of the contract act, there shall be always a chance of a creditor suing the surety and in the meanwhile, the principal debtor approaching or removing every security, so that in the event of ..... these salutary principles and statements of law on the subject only to assure ourselves that it is not in the language of s. 140 or s. 141 of the indian contract act that the court will always endeavour to find out whether the creditor was in actual custody of the security or not and that it was only on account of the ..... plaintiff cannot now file any petition for final decree and thereby the plaintiff has lost his right over the mortgage security.9 under section 139 of the contract act, if the creditor omits to do any act which is his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor is thereby impaired .....Tag this Judgment!
Court : Chennai
Decided on : Sep-09-1999
Reported in : 2000(1)CTC156
..... george, 1953 tr. co.163. 10. order 30, rule 4 of the code reads as follows:- ' notwithstanding anything contained in section 45 of the indian contract act, 1872, where two or more person may sue or be sued in the name of a firm under the foregoing provisions and any of such person dies, whether before ..... mutual agency between the agreement that it must be carried on by all or any of the partners acting for all. a partner is an agent of the other partners. further, it is a creature of contract between the parties. the rights and liabilities of the parties to a partnership are enforceable by and ..... made applicable, there is no harm in applying the general law to give effect to the rights of the parties and bring about justice. otherwise, the entire act would become illusory. hence, the order passed by the courts below cannot be sustained. 18. in the result, this civil revision petition is allowed, but ..... the place of the person, during whose management as managing partner, the proceeding was initiated. 12. the courts below have held that it being a self contained act, the provisions of cpc is not applicable. there is also no parallel provision like order 6, rule 17. in abdul khader v. a.k.murthy : ( ..... against them individually. 5. each partner is the agent of the firm and binds the firm by all his acts done on behalf of within the scope of .....Tag this Judgment!