Court : Kolkata
Decided on : Feb-23-1951
Reported in : AIR1951Cal519
..... , where lord ellenborough gave the reason thus :'he thought there was no foundation for the set-off claimed, as the sum claimed was unliquidated damages: that a guarantee was a contract of indemnity; it was to make good the default of another party, for whom the guarantee was given: that was not an absolute debt by the pltf. to the deft. but ..... & b sue c for the recovery of a debt due from c to a & b, c cannot set off a debt due to him from a alone. under section 45, contract act, the claim of a & b is joint & to allow c to plead set off in such a case will be to enable c to obtain payment from b who ..... for the default of a third party. in such a case the liability of the guarantor is neither joint nor several. his is a contract to perform the promise of another on his default: section 126, contract act. the question whether a debt due to the surety may be set off against his liability on the guarantee in an ordinary action must ..... . (n. s.) 526. a joint & several debt is a separate debt of both the debtor?.6. in india, in the absence of a contract to the contrary, a joint promise creates a joint & several obligation : section 43, contract act. if a sues b & c who are jointly & severally liable, b can set off a debt due to him separately from a. on .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-23-1951
Reported in : AIR1952Cal769,56CWN492
..... that he has been appointed by the provincial government. bub sufficient materials have not been placed before me to enable me to come to any definite conclusion. the bond of indemnity, the relevant portion whereof has been set out in the petition shows that the petitioner undertakes to indemnify the governor and/or the rent controller. the respondent's counsel placed ..... must be express, and if in exercise of such an express power a servant is suspended by his master the effect of the order of suspension is to suspend the contract of service as a whole and the servant can neither insist on working nor claim his pay during the period of suspension: secy, of state v. surendra nath, i. l .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-13-1951
Reported in : AIR1951Cal55
..... & making it payable at allahabad. the note would be payable at allahabad & there would be no conflict as the address formed no part of the contract.65. that being so i hold that the learned judge was wrong in holding that this note was payable at a specified place & as presentment was ..... expressed his opinion that the proper meaning of proviso 3 was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to be of no force at all & was to constitute no obligation until the happening of a certain event. this description in their lordships' ..... not to make demand until certain specified condition was fulfilled had the intention & effect of suspending the coming into force of that obligation which was the contract contained in the promissory note. such an oral agreement constituted a condition precedent to the attaching of the obligation & was within the terms of proviso 3 ..... later the learned judge observed :'i do not think that it was intended by proviso 3 (section 92, evidence act) to permit the terms of a written contract to be varied by a contemporaneous oral agreement, but having regard to the illustrations (b) & (j), i think the proper meaning of proviso 3 is ..... of a certain event. in whichever sense the words are read the agreement appears to me to have the effect of varying the terms of the contract as contained in the promissory note & i think the result is the same whether the section be read in the light of the english cases which .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-10-1951
Reported in : AIR1952Cal93,55CWN765
..... earnest money. the purchaser in the case before the judicial committee was found guilty of breach of contract and the vendor was held entitled to damages but the judicial committee, although they referred several times to the forfeited earnest money, nowhere expressed themselves against the legality of ..... v. tulsiram jankiram', : air1942cal382 that, in the above case before the judicial committee, 'no sum was payable as earnest money or as security or guarantee for performance of the contract'. apparently, gentle j. had in mind only the clause, referred to above, providing for damages against the defaulting party and his attention was not drawn to the clause about the ..... there be something, in any statute or in any authoritative judicial pronouncement which clearly points to the contrary.11. the statute requiring consideration is. the indian contract act and the judicial decision which has been relied upon by the learned advocate for the petitioner is the privy council case of 'bhai panna singh v. firm bhai abjan ..... to above can be deduced even by applying the test of 'unreasonableness of the amount in question'. in such circumstances, there being no contrary intention, express or implied, in the contract in question, the earnest money is, in my opinion, liable to forfeiture in accordance with the principles, discussed above, and the petitioner's second contention must, therefore, fail, unless .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-05-1951
Reported in : AIR1953Cal536
..... premises'. that seems to me that the lessor should be given free access to the seats in these two demised premises during performance. in such a contract i do not see anything unreasonable in the construction that these seats in the demised premises are part of the demised premises themselves and if any tax ..... indicated by my analysis of the various provisions of the statute. that is how in this case the demands of the statute and the demands of the contract can best be reconciled.32. the next consideration which appears to me to be relevant' in this context is the well-settled principle that the law ..... to reconcile them and in doing so the court will have to be satisfied, before the statute is allowed to override the contract, that the statute is such, that to contract out of it is not permissible or against public policy,i am satisfied on the analysis i have made that the present statute ..... of either. the court does not make a competitive preference between a breach of a statute and a breach of contract. the statute however may make the contract illegal in which event no court can require its performance. the law will not presume that the demands of a statute and the ..... . to this court there are no degrees of higher or lower efficacy or higher or lower order of sacredness as between a contract and a statute. the court will hold both contract and statute equally good and sacred obligations to be discharged and apply such remedies as the law provides in the case of breach .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-01-1951
Reported in : AIR1951Cal147
..... will apply in such cases to contracts which do not contain an arbitration clause? we cannot take the view either that section 39, specific relief act, has been partially repealed, that is to say, repealed so far ..... would have said so in appropriate words. in my view, sections 32 & 33 have a very limited application, namely, where the existence or validity of an 'arbitration agreement' (& not the contract containing the 'arbitration agreement'), is challenged. assume for a moment that sections 32 & 33, arbitration act, have repealed section 39, specific relief act. which section of the specific relief act ..... party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution. moreover, there is this very material difference that, whereas in any ordinary contract the obligations of the parties to each other cannot in general be specifically enforced and breach of them results only in damages, the arbitration clause can be specifically enforced by ..... at p. 347, lord macmillan observes as follows:'i venture to think that not enough attention has been directed to the true nature & function of an arbitration clause in a contract. it is quite distinct from the other clauses. the other clauses set out the obligations which the parties undertake towards each other 'hinc inde;' but the arbitration clause does not .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-11-1951
Reported in : AIR1951Cal529
..... v. carters (merchants) ltd., 1944 k. b. 566 the award was'freight space was not obtainable without the period defined in the contract & i award that the contract be forthwith dissolved without penalty or allowance to either party.' tucker j. observed as follows:'i think mr. devlin is right when he contends ..... the date of breach is a date when the jute price control order was in operation the ordinary measure of damages is the difference between the contract price & the maximum price fixed by the control order. any claim in excess of such difference is illegal & in contravention of the control order ..... . w. n. 63, the firm against which the claim was made contended that it was differently constituted from the firm which had entered into the contract. the bengal chamber took legal advice & refused to entertain this objection. fletcher j. held that the bengal chamber inspite of such rules could not decide ..... would amount to misconduct.to the honest trader his loss on due dates during the control would be the difference between the controlled rate & the contract rate, because the honest trader could not possibly allege that the goods were worth more to him than the controlled rate, because he could ..... kissen beriwalla, ltd. v. hari krishna sudani, case no. 82 of 1948, decided by sinha j. on 24-9-1948. in this case, the contract was delivery july to september 1946. in august & september 1946 the buyers wrote to the sellers extending the time, but the sellers promptly replied refusing the .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-29-1951
Reported in : AIR1952Cal32,55CWN557
..... which had been made by the agreement some years before. intimation that the plaintiff was exercising the right which was created in his favour by the contract was conveyed by the pleader's letter dated the 9th april, 1942, and on the authorities above-mentioned it must be held that exercise of ..... an implied authority to send the acceptance by post must be proved before the court can accept the contention that on posting of the acceptance the contract was completed. there is a fundamental difference between the circumstances where the date from which an offer is effective and when a withdrawal of an ..... the posting of the letter of acceptance was not effectual. we shall consider later on as to the legal implication of the other alternative provided in the contract when payment is not received by the defendant within the due date. the observations by lord herschell, referred to above, were considered by parwell, j ..... learned subordinate judge held that the receipt of the letter on the 18th april, 1942, was not a sufficient compliance with the terms of the contract as the date on which it was received was after the expiry of the month of chaitra.13. mr. mukherjee on behalf of the defendant ..... a mortgage.12. the next question which arises for consideration is whether the plaintiff had within the time stipulated exercised his rights as required under the contract. it has been found by the court of appeal below that the alleged offer in falgoon 1348 b.s., having been made by the plaintiff .....Tag this Judgment!
Court : Kolkata
Decided on : Nov-28-1951
Reported in : AIR1953Cal59,21ITR404(Cal)
chakrayartti, j.1. there are two references before us relating to the assessment of the same assessee for the same assessment year and both at the instance of the assessee, the calcutta insurance ltd. reference no. 2 of 1946 was made by the tribunal under section 66 (l), income-tax act, and comprises two questions of law. the application on which the reference was made formulated nine questions, but with regard to seven of them, the tribunal refused to state a case on the ground either that no question of law arose or that the question was based on an incorrect statement of facts. thereupon, the company moved this court under section 66 (2) of the act and obtained a direction to the tribunal to state a case on six of the seven questions, one of which was slightly re-cast. reference no. 4 of 1947 was made in accordance with that direction. in making that reference, the tribunal did not submit a fresh 'statement of the ease'., as the facts relating to the further questions directed to be referred were all to be found in the original statement. 2. i have had occasion to comment in the past and find it necessary to comment again on the form in which the tribunal is often found to draw up the statement of the case. it seems to think that the statement of the case means the judgment on the application for a reference. in the present ease, for example, the original reference was limited only to two questions of law and yet what was sent up ag the statement of the case was the order .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-16-1951
Reported in : AIR1952Cal103,55CWN528
..... under the general law. see 'rex v. wads-worth', (1942) 1 kb 281.32. it was contended that this court has no jurisdiction to prevent enforcement of the bond or contract executed by the petitioner by writs of mandamus or certiorari. i do not accept this contention. there can be no doubt that the decision whether a liability has arisen to .....Tag this Judgment!