Court : Kolkata
Decided on : May-12-1978
Reported in : AIR1979Cal44,(1981)1CompLJ356(Cal)
..... conduct of the promisor himself or by the conduct of any other person, is called a contract of indemnity.' the section, in its terms is dependent upon the obligation which arises on the loss caused to the party to be indemnified. the loss ..... the state bank of india to the bank of alexandria. the scope and effect of an indemnity is dealt with under the provisions of s. 124 of the indian contract act which provides as follows : 'a contract by which one party promises to save the other from the loss caused to him by the ..... june, 1974 it has been stipulated that 'notwithstanding the foregoing' stc maintains 'texmaco failed to perform in an orderly manner its obligations under the aforesaid contract. in the view of the foregoing, stc hereby asks you to make full payment'. whether stc has acted logically or illogically, rationally or irrationally is ..... . except possibly in clear cases of fraud of which the banks have notice, the courts will leave the merchants to settle their disputes under the contracts by litigation or arbitration...... the courts are not concerned with their difficulties to enforce such claims : these are risks which the merchants take. in ..... ltd. braithwaite and co. (india) ltd. and state trading corporation of india ltd. on the 20th jan. 1973 (hereinafter referred to as back to back contract) texmaco have agreed to- (a) manufacture and supply 867 gas wagons (hereinafter referred to as wagons) at the total price of rs. 9,90,11,400 .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-29-1978
Reported in : AIR1979Cal56,83CWN162
..... the plaintiff submitted to the defendant company a claim for the loss of money for rs. 30,000/- which was the limit of indemnity for loss under the said contract of insurance, although actual loss was more. the defendant company, thereafter, arranged to inspect the loss by its surveyor at the premises ..... such key has been obtained by violence or the threat of violence to the insured or to a member of his staff.' 11. the indemnity, in the first instance, relates to the circumstance when the property is stolen or damaged or the premises is damaged after an actual forcible ..... may set out below the relevant portion of the policy: 'burglary and house breaking policy (as defined)(business premises) ............if during any period of indemnity the property or any pan thereof whilst within the premises shall after actual forcible and violent entry of the premises be stolen or damaged by thieves ..... a clause commonly called scott v. avery clause was considered in heyman v. darwins ltd. (1942) ac 356, and lord wright observed: 'the contract, either instead of or along with a clause submitting difference and disputes to arbitration, may provide that there is no right of action save upon the ..... an insurance policy. 2. the case of the plaintiff, a partnership firm, was that the defendant, commercial union assurance company limited, entered into a contract of insurance with the plaintiff by issuing a burglary and house breaking policy dated sept. 17, 1966, indemnifying loss of money to the limit of rs .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-14-1978
Reported in : 117ITR741(Cal)
..... . the money was initially earmarked for purchase of jute goods, which were stock-in-trade of the assessee and, therefore, this money had the character of circulating capital. when the contract was frustrated the fund was not earmarked for any other purpose and it retained its initial character of circulating capital.12. in support of his contentions mr. sen relied on ..... was in the nature of a windfall unconnected with the business of the assessee.10. drawing inspiration from the above authorities mr. banerjee contended that in the instant case the contract being frustrated, the money left unutilized represented frozen or capital assets in the hands of the assessee and, therefore, any accretion thereto was not a trading receipt but a capital ..... terms of dollars, though payment was received ultimately in rupees. indian currency was devalued on the 6th june, 1966. for exports made immediately before that date, and also for forward contracts entered into before the devaluation, the assessee had become entitled to receive the price in terms of dollars. by reason of the devaluation the rupee equivalent received by the assessee ..... 1965, and opened a letter of credit there covering the price of the said jute in favour of the intending seller. thereafter, hostilities broke out between india and pakistan, the contract could not be performed and the letter of credit remained unoperated. there was devaluation of the indian rupee in june, 1966, and by reason of the unoperated letter of credit .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-31-1978
Reported in : AIR1979Cal20,82CWN864
..... the period you require and we will see the buyers and do what we can for you.'in the memo to this letter the very first contract is contract no. b/713 dated the 31st may, 1951 tor 8,000 maunds of jute and the name of the buyer namely, howrah jute mills ..... purported award be set aside.' the application it is stated has been made under sections 33 and 30 of the arbitration act, 1940.2. when the contract, being contract n. b/713 dated the 31st may 1951, was entered into it is common case that the raw jute (central jute board and miscellaneous provisions) act ..... respondent tried to make out the case that the appellant was not an agent for an undisclosed principal but the principal itself and it was a contract between principal and principal. these inconsistent positions taken by the respondent as and when occasion arose cannot be overlooked in the instant case. the conduct ..... of jute mills, balers and dealers. sellers were, however, given time up to and including the 29th dec., 1950 for the performance of their existing contracts with the jute mills. the central jute board commenced functioning from the 30th dec. 1950, whereafter no mill canpurchase or take delivery of raw jute direct ..... the arbitration agreement contained therein be declared null and void and/or the validity and/or the existence and/or the effect of the said purported contract and the arbitration agreement contained therein be determined by this hon'ble court; (b) that the purported reference and the said pretended award of .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-18-1978
Reported in : AIR1979Cal246
..... she wanted to succeed.22. in my opinion, since the plaint does not contain any pleading to the effect that the parties agreed that the contract would be performed within a particular point of time, there could be no question of any default or abandonment or rescission thereof. under such circumstances, ..... in that paragraph and had been putting the blame on the court liquidator in not completing the transaction. the appellant had repeatedly adopted the said contract and/or the consent decree and had proceeded on that basis.13. i have gone through the correspondence in this case and i am entirely ..... title of the said properties and rejected and/or must be deemed to have rejected the same. the defendant no. 1 thereby repudiated the said contract. the plaintiff accepted the said rejection and/or repudiation. the defendant no. 1 in spite of demands and direction of this hon'ble court failed ..... the other defendants did not.8. in the written statement filed herein the bank denied the allegation that it had rejected the title or repudiated the contract. it was stated that the bank duly tendered the draft conveyance and offered money and never abandoned any claim or right. it was also stated ..... by the said consent decree. it is further alleged that the said official liquidator rejected the title to the suit property and thus repudiated the contract contained in the said consent decree. it is further alleged that the circumstances have totally changed and if the said consent decree was not rescinded .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-06-1978
Reported in : AIR1979Cal39,82CWN1018
..... question of finding out the intention of the parties, so far as the payment of sales tax is concerned, in the light of the written contract between the parties, does not involve such a complex question of construction as to compel the court to revoke the authority of the chosen arbitrator. in ..... had observed, relying on the aforesaid observations in the case of bonnin v. neame (supra) that if matters on construction of clauses of certain contract were involved that was a factor which should be taken into consideration in exercising discretion of the court against grant of stay of the suit in ..... accept the version of the petitioner that the order of acknowledgement was sent containing the terms of the arbitration. quite apart from this, if the contract was concluded by the purchase order dated 24th june, 1975, then there was no occasion to send an order of acknowledgement containing terms different from ..... sent by the petitioner. he further stated that the petitioner company was not aware of the terms and conditions mentioned in the general conditions of contract as contended by the respondent. in answer to q. 15 in examination-in-chief he stated that the document of 8th july 1975 was the ..... varieties and sizes at agreed rate of rupees 1,500/- per metric ton under the terms and conditions set out in the general conditions of contract for purchase, according to the respondent. the said purchase order which is dated 24th june, 1975 reads as follows:--'your offer under reference for .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-07-1978
Reported in : AIR1979Cal109
..... the case referred to hereinbefore. similar is the position with the case of johurmull parasram v. louis dreyfus co. ltd., air 1949 cal 179. here the contract which contained the arbitration clause has no! been challenged in the plaint as being void,4. it is, then, contended that the was delay. it is ..... of mine in the case of arbitration general enterprises v. jardine handerson reported in : air1978cal407 wherein i had held that where the very formation of the contract which contained the arbitration clause, was under challenge in a suit that could not be the subject-matter of arbitration. i had also held that it ..... the disputes to arbitration.' 3. the basis upon which the plaintiff resists the stay is that there is allegation of fraud and the formation of the contract dated sept. 1974 has been challenged as being not an arbitrable subject and therefore there should not be any stay. reliance in this connection was placed ..... mukharji, j. 1. this is an application for stay of suit no, 130 of 1978. there was an arbitration clause in the contract dated the 22nd sept. 1972. the said arbitration clause was as follows:--'10. in the event of any dispute or differences arising between ..... clause has not been challenged as having been entered on fraudulent basis and a rescission of that contract has not been asked for. on the other hand, the claims of the plaintiff have been based on the contract dated the 9th september, 1972, which contained the arbitration clause. therefore, the facts of this .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-02-1978
Reported in : AIR1978Cal206,82CWN634
..... by it tantamounts to saying that it has no obligation any longer due to the fact that the contract was entered into by misrepresentation.6. learned advocate for the appellant contended that in view of the condition no. 8 of the policy which is gene ..... the policy, as the same was obtained by misrepresentation. so the question is, is there any difference between such a contention and the repudiation of the contract by the party concerned? to us, it does not seem that there is any. the repudiation of liability by the insurance company on the ground mentioned ..... perishes its part must also perish 'ex nihilo nihil fit'. in the present case the arbitration clause is contained in the same document i.e. the contract itself and not in any separate or independent document. it is seen from the letters dated october 5, 1971 and may 12, 1972 that the defendant ..... . the proposal contained a declaration by the applicant that the statements made by him were true and the declaration was to form the basis of the contract. there was a clause to the effect that compliance with the condition indorsed upon the policy should be the condition precedent to any liability on the ..... false statements in the proposal form, the entice basis of the policy is knocked out. if wrong answers were given in the proposal form, there was no contract at all.5. in toller v. law accident insurance society ltd. (1936) 2 all er 952, it was pointed out that the classes of cases .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-01-1978
Reported in : AIR1978Cal559
..... was held in that case unless the appellants had pleaded and established that there was unreasonableness attached to the amountrequired to be deposited under the contract or that the clause regarding forfeiture amounted to a stipulation by way of a penalty the respondents had no opportunity to satisfy the court that ..... unconditionally by the company on default by the purchaser in payment of the price, without prejudice to the rights of the company under law and the contract, and the purchaser deposits the 25 p. c. of the price, the amount deposited is a deposit 'as earnest money,' which the company has ..... thereof would not necessarily induce the court to overrule the claim and dismiss the suit.15. one party cannot subsequently unilaterally make time an essence of the contract. in a case reported in : air1960mad452 (v. r. mohanakrishnan v. chimanlal desai) it was held that 'if due to causes beyond the ..... approved by the defendants. probate mainly gives an adequate protection and nothing further.9. the only condition under which the purchaser could cancel the contract and demand refund of the earnest money has been provided under clauses 10 and 11 of the agreement which provides that.'where the vendors fail ..... was no other alternative but to extend the time for completion of the transaction and also expressed his desire that the time factor in the contract would be presumed to be waived by the defendants if no reply was received to that letter. the defendants' definite case is that they .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-09-1978
Reported in : 50CompCas219(Cal)
..... the defendants can tender three months' salary in lieu of notice and avoid such action by the plaintiff. the plaintiff cannot, in this suit, ask for specific performance of a contract of personal nature. he is also not entitled to get a permanent injunction restraining the defendants from interfering with his services as a branch manager. the law in this respect ..... of injunction restraining the company from interfering with or dispensing with his services as a branch manager of the company at bombay as the court will not specifically perform a contract of personal service by giving an order of injunction ; secondly, mr. ghosh submitted that mr. malkani by not taking the qualification share within two months' time has disqualified himself ..... and of personal nature should be distinguished from professional management of impersonal nature and in such cases there is no reason why specific performance should not be granted of any contract of employment which does not involve relationship of personal character. he further referred to cases reported in air 1914 cal 362 and  ilr 33 cal 351, air 1925 ..... a. parsons & co. ltd). mr roy further referred to a case reported in : (1976)iillj163sc (executive committee of vaish degree college, shamli v. lakshmi narain) and submitted that although a contract of personal service cannot ordinarily be specifically enforced but an order of injunction can be granted, and he submitted that this case of the petitioner falls within the special exceptional .....Tag this Judgment!