Court : Kolkata
Decided on : Jun-17-1960
Reported in : AIR1963Cal163
..... shipped should afterwards be injured by a tempest, or should be lost by capture or other peril, the shipper would be entitled to a full indemnity from the ship master and ship-owner. in these cases, although the misconduct or negligence of the agent is not the direct and immediate cause ..... exclusive right tocatch elephants within defined tracts and for a specified period. the learned judge observed that though every breach of duty arising out of contract gives rise to an action for damages without proof of actual damage, the amount of damages recoverable was, as a general rule, governed by ..... a proper export licence or by enemy action or by orders for evacuation from burma. it should be remembered that the parties entered into the contract in the unsettled conditions created by the second world war. in view of the international situation the agent of the defendant no. 2 should ..... registered office in england but carrying on business in india will be deemed to be resident in england for the purposes of section 230. where a contract, therefore, is entered into by the 'managing agents' of such a company in india, it can be enforced against the agents personally, unless the ..... defendant bank became an agent of the plaintiff for handing over the documents only and through the conduit pipe of the defendant bank a privity of contract was established between the plaintiff and the defendant no. 2 as substituted agent for purposes of arranging reshipment.33. mr. ginwalla, learned counsel for .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-29-1960
Reported in : AIR1960Cal524,64CWN798
..... it is only the counsel for the appellant who forfeited the money at the trial.' thirdly, having regard to the numerous details on which the contract speaks it is almost an irresistible inference that this was not intended to be forfeited.31. i agree with my learned brother that theappeal should ..... was not a deposit but really an advance towards the price and not a deposit in the sense of a guarantee for the performance of the contract. secondly, throughout the correspondence even when there was acknowledged refusal by the buyer in spite of repeated requests of the appellant, the appellant never ..... merchant. therefore, the exigencies of every situation, the peculiar requirements of individual buyers and sellers are always making new types and clauses in the contract suited to the needs and demands in each case. so long as these new types or clauses introduced in individual cases do not infringe on ..... deliver them until the buyer applies for delivery.'in the case of sivayya v. ranga nayakulu the judicial committed in construing section 93 of the contract act observed:'it is important to observe that section 93 applies unless there is a special promise which in their lordships' opinion indicates an ..... while the balance we undertake to pay immediately on presentation of shipping documents.' it may be pointed out in this connection that in the other contract the following words appear against this item 'payment.''payment--an advance deposit of 25 per cent, of the c.i.f. value plus customs .....Tag this Judgment!
Court : Kolkata
Decided on : May-12-1960
Reported in : AIR1960Cal752
..... agreement. they brought an action to recover possession and the defendants counterclaimed, for specific performance. it was held that upon the proper construction of the offer there was no binding contract until a formal agreement had been executed. since this had not been done, the defendants were not entitled to specific performance. 75. in a decision of this court reported ..... to forward 'the agreement for purchase'. it has been said that until the execution of that agreement the transaction was inchoate and not complete. and, undoubtedly, if any prospective contract involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and ..... of lord chancellor earl cairns at p. 317 of that report on three certainties of price, property and purchaser have been relied upon as indispensable requisites for a concluded contract of which the court will enforce specific performance. the whole question is whether there is any vagueness or uncertainty about a purchaser it his name is not disclosed by his ..... first the argument about nondisclosure of the purchaser by name. the learned trial judge came to the conclusion that because the intending purchaser was not disclosed, therefore, the contract was not a concluded contract and therefore, when it was disclosed, the vendor could refuse on the ground that the purchaser was not acceptable to the vendor. in support of this proposition reliance .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-02-1960
Reported in : AIR1961Cal321,65CWN113
..... in was one in which money was borrowed by a resident in a native state from a resident in the british cantonment of secunderabad, the contract providing for repayment in the native state by instalments. the borrower having made default in paying the instalments, the lender sued for the balance in ..... 1908. the observations of sir lawrence jenkins, c. j., in a later case which came up in bombay, however, tend to show that section 49, contract act is exhaustive and has modified the aforesaid rule of english common law , lord sumner, however, threw great doubts on the observations of sir lawrence jenkins, ..... discharged by the debtor going to his creditor and repaying the amount and the common law rule imposes this obligation only when there is no express contract to the contrary.'21-a. the above decision, although not one touching on promissory notes, accepts the common law rule that the 'debtor must ..... have taken care to indicate at the end of the judgment that their decision was based upon the inference drawn from the terms of the contract itself or from the necessities of the case. in an earlier part of the judgment, they referred to the fact that the business transactions out ..... the instance of the defendant.9. mr. pankaj coomar ghosh, learned advocate for the defendant petitioner, contended before us that section 49 of the indian contract act did not apply to negotiable instruments. therefore, that court only has jurisdiction to entertain a suit on promissory note where the maker of the .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-18-1960
Reported in : AIR1960Cal609
..... the plaintiff and containing the aforesaid missing terms. for those terms, one has to travel outside ext. a-6, which alone, for this purpose, is the contract in writing, signed by the plaintiff. from no point of view, then, would section 53a be available to the defendants in the present case and mr. ..... , as it has actually been assumed. we will assume further that defendant no. 3 is in possession under, or in pursuance of the above contract. it will, however, still be necessary for the defence to establish that, from the writing (ext. a-7), the necessary or essential terms of the intended ..... three documents, in particular, and the other evidence, relevant on the point.34. that ext. a-7 professes or purports to represent or embody the contract in writing for the proposed or intended lease need not be disputed. that it was signed by the intended lessor, namely, the plaintiff, may also be ..... title ultimately and that transfer was held to be invalid and ineffective as a transfer qua transfer and as having effect only as an agreement or contract to transfer, of which specific performance could have been obtained by the so-called purchaser, if he had done all that was required of him, ..... only without consent, would involve breach of the aforesaid covenant or condition and would support forfeiture. true, no doubt, that, in the absence of a contract to the contrary, an alienation or assignment, to come within the mischief of the above rule of forfeiture would have to be of the whole of .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-05-1960
Reported in : AIR1962Cal61
..... employ a servant who had been employed by the other during the previous five years. the principle laid down in that case applies equally, in my opinion, in contracts between masters and servants if the agreement is designed merely to prevent the servant from entering the employment of another person. a restraint against competition is a restraint in ..... by eliminating objectionable phrases, though without adding or altering any words, there remains a covenant which is reasonable this will be enforced. 24. the doctrine of severance in contracts between master and servant will be permitted if there is really a combination of several distinct covenants and the elimination of objectionable phrases does not alter the entire scope ..... as alleged. the defendant denies that he has been imparted any trade secret or special knowledge or information by the plaintiff. the defendant states that after terminating his contract with the plaintiff the defendant has sought employment in a pharmaceutical firm having no concern with manufacture of paper. the defendant denies that he threatens or intends to continue ..... plaintiff might retain his services. in these circumstances the defendant states that in respect of the period of 17 years after the said apprenticeship period there was no concluded contract of service between the plaintiff and the defendant. the defendant further states that the agreement imposes unreasonable restraint on the defendant from exercising lawful profession, trade and business .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-29-1960
Reported in : AIR1961Cal383
..... 498: (air 1947 pc 151) it was decided that a common carrier of goods was at common law free to limit his stringent obligations by special contract and could insist on making his own terms and refuse to carry except on those terms provided that there was no statutory condition limiting his rights. ..... . india general navigation and rly co. ltd., ilr 38 cal 28 decided that the rights and liabilities of the common carrier in india were outside contract act and were governed by the principles of the english common law as modified by the carriers act 1865. the chief justice sir lawrence jenkins who ..... the mercantile community and not in interest of the common carrier. in short the learned judge was of the opinion that section 148 of the contract act included bailment for carriage and as such sections 151 and 152 of the act applied to common carriers which very point was decided differently by ..... the courts in india is only applicable to this case and neither the carriers act 1865 nor the indian contract act 1872 can be applied. he further contended that so far as carriage of goods by air inland is concerned, the defendant indian airlines corporation ..... is no statute for internal air carriage in india.7. mr. dey for the plaintiff contended that the carriers act (iii of 1865) and the indian contract act, 1872 should govern this case. mr. gouri mitter, the counsel for the defendant, however, contended that the common law of england as administered by .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-26-1960
Reported in : AIR1960Cal626,64CWN439
..... land as such and the fact that such will ormay be the consequence is immaterial for the purpose; the cause of action for specific performance of a contract and not the cause of action for a titular or possessory claim for land; and thirdly, the context of clause 12 of the letters patent in providing ..... claim which the plaintiff is entitled to make in respect of his cause of action. the cause of action in a suit for specific performance of a contract to execute a document of transfer is not a cause of action for possession of land. possession only is consequential and the right to the same ..... of! the deed of conveyance. possession is not merely an incident or subsidiary to the sale deed. in a suit for specific performance the parties to the contract alone need be parties. in a suit for possession all persons in possession are proper parties.'tyabji j. in delivering a separate judgment in the same case ..... true meaning covered only a suit for recovery of land and a suit whether by the purchaser or by the vendor for specific performance simpliciter of a contract made within the original jurisdiction of the court for sale of land outside the jurisdiction, was not a suit for land so understood. it was held ..... the court can enforce its decree. in that case the learned judge held that a claim by a purchaser against a vendor for specific performance of a contract for the sale of land was not a suit for land within the meaning of clause 12 of the letters patent and this court had jurisdiction to .....Tag this Judgment!
Court : Kolkata
Decided on : Nov-16-1960
Reported in : AIR1961Cal328,65CWN770,12STC535(Cal)
..... grain from their go downs and mixed it with it with other stock which is being retailed in their shops; nor would the principals care who these purchasers are. their contracts are with the commission agents and ordinarily no privity is established between the principals and the ultimate purchasers. in general there is nothing to prevent these commission agents from purchasing ..... the circumstances are such as to rebut the presumption. where the agency is to buy goods, whether ascertained or not, so that the liability imposed on the principal by the contract is a liability to accept and pay, there is nothing in the circumstances inconsistent with a presumption that the seller requires that the agent shall make himself personally liable to ..... have also been summarised in 'bowstead on agency, 3rd edn. page 238. according to the learned author, where an auctioneer sells property by auction, the nature and extent of his contract with the purchaser depend upon the conditions of sale, the nature or the subject matter, and the other surrounding circumstances. where an auctioneer sells a specific chattel by auction, he ..... construction of buildings, roads, etc. was assessed to sales tax by the sales tax authorities who sought to include the value of, the materials used in the execution of building contracts, within the taxable turnover of the respondent. the validity of the assessment was challenged by the respondent, who contended that the power of the madras legislature to impose a tax .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-30-1960
Reported in : AIR1960Cal590
..... arbitrators could well find that there were an available market and a market price in excess of tbe ceiling price on the date of the breach of the contract. assuming that there was no available market for the jute goods in calcutta the arbitrators could take into account the market price of the goods prevailing in ..... price fixed by the control order. i am unable to accept this argument. the jute goods (export control) order does not prohibit or render unlawful a contract for the sale and purchase of jute goods for export to a place outside india at a price in excess of the ceiling price. neither the consideration nor ..... and sold on any other terms or conditions. he argued that in. view of the jute goods (export control) order rand with section 23 of the indian contract act, it would be illegal to buy and self jute goods f. o. b. calcutta for export to nigeria at a price in excess of the ceiling ..... on the date of the breach by way of damages and that it would be wholly erroneous to award damages on the basis of the difference between the contract price and the repurchase price as claimed by the respondent. there is no merit in this argument. mere error of law is not misconduct. the arbitrator ..... the official ceiling price was 270 shillings, it was impossible to buy any goods at that, price. it may be mentioned that it the time when the contracts were made and also at the time when they were broken the jute goods (expert central) order, 1949, was in force. the control order fixed ceiling .....Tag this Judgment!