Court : Kolkata
Decided on : Apr-22-1958
Reported in : AIR1959Cal558,33CompCas370(Cal),63CWN367
..... allowance is to be made for the loss of prospective profit or other consequential loss. at p. 297 the learned authors observe 'the contract of fire insurance is a contract of indemnity and the assured is not adequately indemnified against the loss of this property unless, so far as money can do so, he is restored ..... entitled to recover the said amounts as soon as it is proved that the properties were lost. it is well known that a contract of insurance, specially, fire insurance, is a contract of indemnity and when loss occurs it is for the assured to prove the actual amount of his loss. the sums mentioned in the policy ..... ground that was available regardless. of reasons which they had previously given. as lord sumner pointed out in 1923 ac 48, if a party repudiated a contract giving no reasons at all, all reasons and all defences in the action partial or complete would be open to him.' at the time when the ..... part) of the condition referred to, with which we have to deal in the present case, is to enable the insurers to release themselves from their contract during its currency, leaving it in full vigour down to the time of notice. the words in which the power of determination is expressed, taken by ..... declare that the foregoing statements are to the best of our knowledge and belief true and we agree that these are to be the basis of the contract and will be considered as incorporated in the policy to be issued.'no signature of anybody appears at the place meant for the agent's signature. .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-04-1958
Reported in : AIR1959Cal669
..... to those in the instant case and clause 27 of the bill of lading in that case was in the following terms :-- 'all applications for indemnity of damage, shortage, deterioration, loss of goods shipped shall be submitted for amicable settlement to the agency of the company at the port of discharge. ..... may be somewhat hard on the plaintiff to have his suit stayed after a year of its institution but a party who entered into a contract ofthis type providing that the legal proceedings shouldbe confined to the courts as trieste or genoa andrenouncing the competence of other judicial authorities cannot normally ..... and english, and came to the conclusion that a covenant of this nature did not contravene the provisions of section 28 of the india. contract act if the chosen court had jurisdiction to try the suit under the ordinary law because the restriction was only partial and the plaintiff was not ..... no. 1 necessary for the purpose of this case are also lying in italy. it is further stated that the italian courts mentioned in the contracts of carriage have jurisdiction to entertain and try the suit and the said courts are also courts of convenience and, in the premises, this suit ..... (defendant) by reason of connection or contingency of the law suits. 32. for anything which has not been provided for or foreseen in the present contract of carriage, the provisions of italian code of navigation shall apply.' the defendant denies the validity and the correctness of the short landing certificates. it .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-02-1958
Reported in : AIR1958Cal551,62CWN622,(1959)ILLJ128Cal
..... in a narrow or pedantic sense. it appears to me that section 175(3) or article 299(1) applies to all contracts including contracts of employment and unless the contracts of service are in the prescribed form, the so-called employee acquires no rights in respect of the employment which can be ..... . hence the claim of the plaintiff, if any, is time barred. the article only applies if the instant suit is for compensation for breach of contract. the present suit is, however, a declaratory suit - declaration sought being that the plaintiff is- still a government servant. all other reliefs in the ..... the said article. and, lastly, the fact that article 299 forms part of part xii of the constitution, which deals with 'finance, property, contract and suit', whereas article 311 forms part of part xiv of the constitution which deals with the 'services under the union or states', has an ..... other employee. he did not notice this important fact that whereas in the ordinary case of master and servant, the relationship is wholly governed by contract, in the case of government servant the relationship is wholly determined by rules to be varied and altered unilaterally by the government without the consent ..... of the constitution, should not be allowed to be raised, unless this point is specifically taken in the writtenstatement. this point of invalidity of contract under article 299 of the constitution has not been specifically taken in the instant case and hence the defendant should not be allowed to take .....Tag this Judgment!
Court : Kolkata
Decided on : May-16-1958
Reported in : AIR1958Cal713,63CWN258
..... scope of the rule of public policy which denies relief to particeps criminis and to understand how in practice the rule is applied to transfers and contracts made for some unlawful (including immoral) object or consideration. the rule originated in england. it is necessary and desirable to state the english law ..... so untouchable in law and procedure even in a puritan court of law.39. it appears to me that chitty's treatise on law of contracts 20th edition edited by dr. harold notices this distinction between void and voidable transaction and special transactions prohibited or made illegal by a statute or ..... lokur, j. says at page 203 of the report :'but in india a transfer for an unlawful object or consideration within the meaning of section 23, contract act, is expressly prohibited by section 6(h), t. p. act. if the doctrine is extended to such transfers, the prohibition would be meaningless. ..... parties were admittedly primarily in pari delicto and no question of trustees or executors arose in that case, thirdly, this was a case again of contract and not of transfer of immovable property such as is prohibited under section 6(h)(2) of the transfer of property act.34. the only ..... emphasised and appreciated in many of the indian decisions in the past. lord selborne in ayerst v. jenkins (a), mentions another distinction between executed and executory contracts, referring to the well-known decision of the master of rolls in whalev v. norton, 1687) 1 vern 483 (g), which his lordship quotes .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-03-1958
Reported in : AIR1959Cal715,30CompCas582(Cal)
..... consisting of a series of mutual covenants entered into by all the share-holders inter se ...... and made up of various rights and liabilities contained in 'the contract, including the right to a certain sum of money.' (see borlands trustee v. steel brothers and co. ltd., (1901) 1 ch. 279). shares ..... a director of the defendant company and interest of the defendant in the three above companies. the court of equity in such cases strikes down a contract and refuses to enforce it. in the instant case, the plaintiff as managing director of the defendant company did deal with great britain, pakistan and ..... plaintiff as managing director of the defendant company or director of the private company may have nothing to do with it. if in fact the contracts were entered into by the plaintiff, i believe the other directors had full knowledge and consent in the plaintiff trying to sell goods to the ..... there is no evidence as to when the plaintiff became interested, so as to enable the court to ascertain whether at the time of each contract for sale or purchase the plaintiff was interested as such. there is no evidence that pakistan company and great britain company are private companies, ..... must be proved that the plaintiff is a member or director of great britain, ceylon or pakistan companies that these companies are private companies, that contracts for sale, purchase or supply of goods between the defendant company and the other companies were effected by the plaintiff without the consent of the .....Tag this Judgment!
Court : Kolkata
Decided on : Apr-02-1958
Reported in : AIR1958Cal644
..... case of the co-operative hindus-than bank ltd. v. surendra nath de : air1932cal524 . the language of sections 176 and 177 of the indian contract act seems to suggest that those two sections apply in terms only to cases where a time is stipulated in the agreement of hypothecation for the ..... ex. 7 (iii)). it is contended on behalf of the appellant that such a notice does not comply with the requirements of s, 176, indian contract act because it is merely a reiteration of the rights which the pledgee has under the law and under the instrument of hypothecation and is not ' ..... implied agreement to pay the higher rate of interest. this conclusion was based upon a consideration of sections 7, 8 and 9 of the indian contract act relating to implied agreement. we respectfully agree with the principles laid down in that case and hold that upon those principles an implied promise may ..... case in support of implied agreement. there the only question was whether the bank was entitled to charge compound interest with monthly rests though the written contract between the parties provided only for yearly interest on the daily balance in respect of the overdraft. the bank disclosed the pass books which showed that ..... the terms contained in the notice, ex. 9. in ether words, this implied proposal invited from the plaintiff in the words of section 8 (indian contract act) a 'reciprocal promise' to pay interest at the higher rate and as a consideration for that reciprocal promise the bank offered to desist from .....Tag this Judgment!
Court : Kolkata
Decided on : May-29-1958
Reported in : AIR1960Cal25,9STC553(Cal)
..... s siding is not enough in the case of manufacture and supply of railway rolling stock, to constitute an infra-state sale. in short, the contract, in my opinion, contemplated that rolling stock would be manufactured and moved to various parts of india beyond the boundaries of the state, and therefore ..... of wagons for the railways, have been in the habit of supplying rolling stocks to the railways for a large number of years. the contracts for the sale of such goods were effected in various ways. at one point of time the manufacturer submitted tenders which were either accepted by ..... wherein a sale in the course of inter-state commerce is thus defined : 'the activity of buying and selling constitutes inter-state commerce if the contracts therefor contemplate or necessarily involve movement of goods in inter-state commerce.' it will be noticed that while aiyar j. relies on the definition of inter ..... relevant time it meant any transfer of property in goods for money consideration and included a transfer of property in goods supplied in the execution of a contract but did not include a mortgage, hypothecation, charge or pledge.17. under the government of india act, 1935 which was in operation when the bengal ..... in that state and delivery was made inside the state, where also payment was or ought to have been received. it is argued that the contract is for delivery at the work siding of the manufacturing company, which is at burnpur within the state of west bengal. after delivery, the company .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-06-1958
Reported in : AIR1959Cal603,63CWN128
..... follows:--'arbitration of disputes whatsoever arising on or out of this contract shall be referred to the arbitration under the rules of tribunal of arbitration bengal chamber of commerce or indian chamber of commerce applicable for the time for decision and such ..... reported in ganpatrai gupta v. moody bros. ltd. 85 cal l j 136. in that case the arbitration agreement was contained in the following printed clause 'all disputes regarding this contract to be settled by two arbitrators, one nominated by buyers and sellers respectively in accordance with the indian arbitration act.' after the printed portion there was a typewritten clause as ..... second contention whether the arbitration agreement is vague, i am of opinion that the arbitration agreement is not vague. the agreement is that any dispute arising out of a contract is to be settled by arbitration in new york according to the rules of the american arbitration association, counsel for the respondent relied on the decision of sinha j. ..... the american arbitration association'.2. disputes and differences arose between the parties and on or about 15-1-1958 the petitioners referred such disputes and differences in terms of the contract to the arbitration of the american arbitration association in accordance with the rules thereof.3. the petitioner states in paragraph 7 of the petition that the arbitrators entered on .....Tag this Judgment!
Court : Kolkata
Decided on : May-21-1958
Reported in : AIR1959Cal328
..... observed that he could not agree with scrutton, j., in the view taken by him, but would himself prefer to look upon c.i.f. contracts as contracts for the sale of goods to be performed by the delivery of documents. it may be said that even that observation does not meet the appellants' ..... his bailee ever since he became entitled to the bill of lading.'16. it has sometimes undoubtedly been said that a c.i.f. contract is a contract for the sale of documents rather than a sale of goods. that view owes its origin to the observations which scrutton, j., as ..... conferred by the clause, the central government did issue a notification by which it excluded from the operation of the order the following class of contracts :'forward contracts for specific qualities or types of any article to which the said order applies and for specific delivery at a specified price, delivery orders, ..... the circle. i have omitted to mention that the clause describes .the parties in such subsequent purchases or repurchases as constituting a circle. the contract, therefore, itself contemplates that before the goods are delivered and they find a buyer who will keep them, there may be innumerable further sales ..... arbitrator to fill the vacancy.3. the respondents did not ship any groundnut oil. the appellants thereupon charged the respondents with breach of the contract and claimed damages by a letter to which they got no response and soon thereafter referred tha dispute to arbitration. they appointed their own arbitrator .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-22-1958
Reported in : AIR1959Cal302
..... for land. in the instant case, there is no written agreement in which the obligation to deliver possession is made an integral part of the contract. the contract as pleaded in paragraph 2 of the plaint imposes an obligation on the vendor only to execute a conveyance. in the receipt no doubt there is ..... agreement for sale under such circumstances,that the court of equity should not compel him toperform such agreement. consideration of equityprompts me not to enforce this contract. on theother hand the plaintiff has paid the sum ofrs. 20,000/: to the defendant and for all these yearsthe plaintiff is deprived of the ..... statement, and in the present state of evidence, it is impossible for me to record a findingthat making over possession was an integral part of the contract for sale in the present case and on such finding divest the jurisdiction of the court to hear the suit. as indicated before, the case of ..... the case reported in : air1955cal402 . in the instant case, no plea was raised that the obligation to deliver possession was an integral part of the contract. there is no evidence to that effect, except the receipt. the plaintiff was not asked a single question on this point. in my view, it ..... evidence 'that there was a further obligation to make over possession. but whether such an obligation is an integral part of the contract or a collateral obligation is a question which has to be pleaded and an issue raised and proved before the defendant can bring the suit within .....Tag this Judgment!