Court : Kolkata
Decided on : Feb-04-1982
Reported in : AIR1983Cal148,58CompCas695(Cal)
..... the true ground, on which the clause limiting the time of claim rested and was maintainable, was that, by the contract of the parties, the right to indemnity in case of loss and the liability of the company therefor did not become absolute unless the remedy was sought within the ..... 516, though it must be admitted that that decision is of no direct assistance, since the question of the effect of section 28 of the contract act on such agreements was not expressly considered.' but, in this decision, none of the learned judges has really doubted that there can be ..... defendants' contention here that the particular clause upon which he relies is not void by reason of anything contained in section 28 of the contract act. the language of the clause in this case is far more favourable to the defendants having regard to the reasoning which seems to ..... star and british dominions insurance co. ltd., air 1924 cal 186.6. we may incidentally refer to the observation of pollack and mulla on indian contract and specific relief acts, ninth edition. after discussing several decisions, the learned editor of that book has observed at page 296 as follows :--'in ..... time fixed by the condition in the policy. the true principle seems to be that yon cannot keep the right alive and prescribe a shorter period of limitation. that would be bad. but parties would certainly contract .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-10-1982
Reported in : AIR1983Cal51,87CWN54
..... protective clause in the proposed conveyance. we, therefore, sustain this objection raised by mr. dasgupta on behalf of the judgment-debtor and direct the executing court to delete the indemnity clause from the proposed conveyance and the proposed conveyance be revised accordingly. 8. next we proceed to consider the first point raised by mr. dasgupta. the decision on the ..... . it may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract for sale.' 11. in this view, we are unable to accept the contention of mr. dasgupta which proposes to ascribe wider connotation, to the bar, incorporated under sub- ..... possession, partition, refund of earnest money, etc. (1) notwithstanding anything to the contrary contained in the code of civil procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for -- (a) possession, or partition and separate possession, of the property, in addition to such performance; or ..... the prayer for possession had neither been expressly overruled nor expressly allowed. but the fact remains that the court allowed the plaintiff's prayer for specific performance of the contract which itself incorporates a clause for delivery of possession. when the decree contains a direction upon the judgment-debtor to sell the suit property to the plaintiff in terms .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-14-1982
Reported in : AIR1983Cal376
..... proceedings being the plaint hereof cannot be cover-ed by the said arbitration clause contained in the said contract.14. there is another point, as indicated hereinabove, which was urged before the learned judge regarding the readiness and willingness of the respondent-corporation to go to arbitration. mr. ..... the expression 'and many article of conditions thereto', even then the rest of the arbitration clause must be read as limited to the interpretation of the clauses contained in the contract and. accordingly, the expression 'such disputes and differences of opinion' has; been used in connection therewith. in our opinion, the disputes, which are the subject-matter of the legal ..... presents', which must necessarily refer to the various conditions of the contract only and not to any factual aspect of the dispute which might arise between the parties. the expression 'such dispute and differences of opinion shall be refferred to the sole ..... ignored. the expression 'in respect of rights and obligations of the parties as to the true intent and meaning of these presents' must undoubtedly refer to the conditions of the contract and the true intent and meaning thereof if they are to be declared, could he so referred to before the arbitrator. i should particularly mention about the expression 'these .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-03-1982
Reported in : AIR1982Cal440
..... affected the assent of the parties. if that is so, then it could not be said that even if these defects were there, these defects would not make the contract a contract for a thing for which the parties did not bargain. as there is no case of fraudulent misrepresentation there is no scope of any allegation oi mutual mistake or mistake ..... be exercised against mm. the court also expressed the view that the court was not obliged to grant stay merely because the parties agreed to submit their disputes under a contract to arbitration. equitable consideration such as the possibility of claim being barred by limitation might certainly weigh with the court in exercising the discretion. grant of stay was entirely a ..... instance an agreement was entered into between the company and general enterprises under which the latter agreed to work as agent on commission. there was an arbitration clause in the contract for reference of dispute if any, to the bengal chamber of commerce and industry. subsequently the agreement was terminated. there was some dispute about payment of commission. the company ..... as to the essential conditions that is, the refrigeration system being defective was a patent defect and also illegality, modification, frustration, lack of consideration and impossibility of performance of the contract were all afterthoughts. the learned judge observed several authorities that was cited before him. a submission was made that these questions could not be gone into in an application under .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-15-1982
Reported in : AIR1983Cal216,86CWN727
..... time of the execution of the agreement for sale, the plaintiff had pleaded andalso tried to unsuccessfully prove that he wasentitled to obtain specific performance of thesaid contract by paying rs. 16,499/-. onlyby averring and praying his readiness andwillingness to pay the balance sum of rupees20,001/- (rs. 30,000/- - ..... of expln. (ii) to section 16 of the specific relief act, 1963 never averred or proved his readiness and willingness to perform the contract according to its true construction.9. we have already observed that the conduct of the plaintiff proved in the instantcase was at variance with the ..... to execute the conveyance. the defendant denied the alleged payment of rs. 104/-. the plaintiff brought a suit for specific performance of the said contract. both the trial court and the lower appellate court concurrently found in defendant's favour that rs. 104/- was not paid by the plaintiff ..... defendant had allegedly approached the plaintiff to take refund of rs. 16,499/- and to give up his claim for specific performance of the contract.6. the defendant in his written statement had claimed that the transaction between the parties was a loan transaction. she had denied that the ..... is proved according to expln. (i) of section 10 of the specific relief act, 1963, the court shall presume that the breach of a contract to transfer immovable property cannot he adequately relieved by compensation in money. the plaintiff in a suit for specific performance of an agreement to sell an .....Tag this Judgment!
Court : Kolkata
Decided on : May-06-1982
Reported in : 51STC151(Cal)
..... was dispute regarding the nature of the transaction and the admitted fact that the petitioner was not the licence-holder and furthermore, as the steps were taken or the contracts were exempted or they were implemented by the petitioners as agents, the assessments as made by the authorities concerned were neither proper nor regular nor with jurisdiction. he also ..... also included the agreed commission.6. it has been stated that in due course and in keeping with the procedure as indicated hereinbefore, the petitioners had entered into diverse contracts with various customers/purchasers and as mentioned above, they have imported diverse electrical goods and mining and engineering goods from abroad on behalf of the ultimate customers against the actual ..... actual users and the contracts in question, besides giving the specifications and relevant particulars of the concerned goods, also mentioned f. o. b. price of the imported materials and such price as mentioned, ..... where comprehensive prayers have been made to set aside the relevant and concerned assessments, are still pending.3. in these proceedings, the petitioners have stated that they entered into contracts with the relevant purchasers/customers for importation of the goods as ordered to them by the actual users against their licences and the letters of authority as obtained by those .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-08-1982
Reported in : AIR1983Cal6,(1982)2CompLJ291(Cal),87CWN61
..... apparent on the face of the award. according to the petitioner's counsel defective galvanized corrugated sheets are ordinary articles of commerce available in open market. a breach of contract to transfer such movables can be adequately compensated by allowing damage. he invited my attention to the statement of claim of the respondent where difference between the agreed rate and ..... for consideration is whether the tribunal of arbitrators misconducted the proceeding or not. in the original statement of claim the respondent's case was that due to the breach of contract committed by the petitioner the respondent had suffered damages to the extent of rs. 43,400/-being the difference between the agreed rate and the market price of the ..... award on the allegation that the goods were readily available in open market and damage was adequate compensation. the learned arbitrators erred in law by directing specific performance of the contract. in grounds (c). (d) and (k) the petitioner alleged that the arbitrators misconducted the proceeding by allowing amendment and introducing a claim for specific performance without hearing the petitioner. ..... letter is annex. 'b' to the petition. on 12-5-81, the respondent submitted before the arbitrators an amended statement of claim introducing a claim for specific performance of the contract no. a 10685 dated 29-12-76 by specific delivery of 2 wagons of defective g. c. sheets. according to the petitioner, the tribunal of arbitrators without any notice .....Tag this Judgment!
Court : Kolkata
Decided on : May-14-1982
Reported in : AIR1983Cal209
..... said para 7 (e) of the written statement and the defendants legitimately can contend that their case in the said paragraph was that the said deed which constituted a mortgage contract was inadmissible in the absence of registration. 8. the trial court which had the advantage of looking at the demeanour of the witnesses has believed the defendant's case relating ..... . shyamlal khetry, reported in (1873) 11 beng lr 405, and the later decisions which follow the same, we hold that the deed (ext. 3) ought to be treated as the contract for the mortgage because there was sufficient averments to indicate the parties themselves intended the said deed, ext. 3, (to) be the repository and appropriate evidence of their agreement relating ..... we are not concerned with the question whether oral evidence is admissible to explain the deposit of title deeds because in our view the deed, ext. 3, itself constituted the contract between the parties relating to the repayment of the mortgage dues and also regarding payment of interest at the rate of 8% simple. in the light of the decision of .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-13-1982
Reported in : (1983)IILLJ200Cal
..... the case. mr. chakraborty has contended that state bank of india may be a 'state' within the meaning of article 12 of the constitution but for breach of terms of contract governing the service conditions of employees, a writ petition is not maintainable. he also contends that no condition of service has been changed and irregular attendance is a misconduct under ..... of india v. d.j. bahadur and ors. reported in 1981-i l.l.j. 1. it has been held in the said decision that unilateral modification or variation of contract will be an exercise in futility. dr. pal has also reliecl on a decision of this court made in the case of reserve bank of india employees association v. union ..... of india are governed by any statutory provisions or whether or not the service conditions still remain in the realm of contract. even assuming that the conditions of service of the employees of the state bank india are matters of contract between the state bank and its employees, a writ petition is certainly maintainable if any condition of service as referred to .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-28-1982
Reported in : AIR1983Cal199
..... on the ground of fraudulent misrepresentation and a subsequent suit is filed claiming damages on the basis of fraudulent misrepresentation with regard to the same contract the issues nevertheless in the two suits would be substantially the same, even though the basis of the claim in the two suits are altogether ..... in the subsequent suit was whe-ther there was wrongful repudiation of contract by the defendant-appellant and, if so, whether the plaintiff-respondent was entitled to any damages. it was held therein that those two ..... s. mukharji, j. considered a case in which the question in the previously instituted suit was whether there was a proper performance of the contract by the defendant-respondent to the application for stay of suit and if not to what damages the plaintiff-applicant was entitled. the question involved ..... air1953bom117 and the earlier calcutta decision in shorab modi's case (supra) held the viewthat even though the jabbalpur suit therein was based on a contract for recovery of the balance of consideration and the defendant in that suit had raised as their defence in that suit the plea of fraud ..... appears from the said written statement that the defendant swadeshi sugar supply pvt. ltd. therein admitted that the transactions arose out of the same contract in respect whereof the cause of action of the plaintiff in the andhra suit was on account of price of goods sold and the defendant .....Tag this Judgment!