Court : Kolkata
Decided on : Feb-03-1986
Reported in : AIR1986Cal356
..... court judgment in the case of united commercial bank v. bank of india (supra). in our opinion whether it is a bank guarantee or a letter of credit or contract of indemnity, the enforceability of such an instrument against the bank depends on the terms and conditions of the same. the question before the court in such a case is whether the ..... are merely instruments to reimburse. it is not even a contract of indemnity. he has submitted that irrespective of the expressions 'guarantee' or 'indemnity' used from time to time on behalf of the appellant-petitioner, it is the substance and not the form which is to be looked into ..... sometimes as bank guarantees, sometimes as indemnities and sometimes as both. mr. mitra has submitted that these are not bank guarantees at all. these ..... which provides as follows :'24. contract of idemnity defined -- a contract by which one party promises to save the other from loss caused to him by theconduct of the promisor himself, or by the conduct of any other person, is called a 'contract of indemnity'.'in the plaint and various petitions and affidavits filed on behalf of his clients, these instruments have been described .....Tag this Judgment!
Court : Kolkata
Decided on : Nov-06-1986
Reported in : 167ITR859(Cal)
..... conclusion that any activity carried on by a company permitted by its memorandum would constitute business. the tribunal noted that the assessee had furnished guarantees and indemnities earlier without any consideration to other parties. it was found that in the instant case, there was no evidence that the principal debtor had agreed to ..... association of the assessee. the said clause, which has been noted earlier, clearly permitted the assessee to lend money or to guarantee the performance of contracts or payment of money by any person or company irrespective of whether the latter were customers of and had transactions with the assessee or not and the ..... was granted by the collector of land customs. in december, 1967, the assessee furnished counter-indemnity in respect of a loan of over rs. 3,00,000 in favour of bokaro steel ltd. at the request of one asian refractories ltd. ..... may seem expeditious, and in particular to customers and others having dealings with the company and to guarantee the performance of the contracts or payment of money to any such persons or companies.'2. in the year 1963-64, the assessee furnished a guarantee in respect of certain ..... contracts of carriage by one great india boat company from one part of india to another through the territories of pakistan for which sanction .....Tag this Judgment!
Court : Kolkata
Decided on : Apr-29-1986
Reported in : 164ITR48(Cal)
..... to obey the directions of the author of the trust given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.'27. the learned advocate for the revenue contended that rangalal, the deceased, was a party to the deed of endowment dated september 19, 1940, and to the charge or encumbrance ..... not be enforced by a suit. the beneficiary was not in the picture at all and the promise to pay money in the shape of gift did not create a contract in law. in any event, there was no consideration in money or money's worth for the same.12. a contention made that the consideration for the said debt in .....Tag this Judgment!
Court : Kolkata
Decided on : May-23-1986
Reported in : 61CompCas628(Cal),91CWN596
..... with an argument regarding the legislative competence and it was held that the field of legislation was not lottery by itself but the wider field of contract with sinister features associated with money circulation and prize chit schemes including the feature of giving of prizes. those observations, in our view, cannot ..... prize or a gift or not, (ii) the pith and substance of the said act is banning of each of the different species of contracts with sinister effect, and gambling or the chance element is not the core or substance or the true nature of the prohibited activities under section ..... to take cognizance of. according to mr. gupta, the learned trial judge went wrong in thinking that what the act prohibits is not only contracts involving schemes having the sinister features of gambling and/or lottery but having any other kind of sinister feature though not specified by the statute. ..... judge has misconstrued the definition clause in reading the two sub-clauses as alternative to each other and also in thinking that the act bans contracts with sinister element not limited to awarding prizes or gifts based on any lot, draw or the like but also other and different types of ..... money circulation as contemplated by section 2(c) of the said act. it was urged that though promoted as schemes, the appellants entered into individual contracts with each certificate holder or subscriber on the terms and conditions set out in the respective certificate. secondly, it was contended that when no ban .....Tag this Judgment!
Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided on : Nov-26-1986
Reported in : (1987)(13)LC717Tri(Kol.)kata
..... (control) fifteenth amendment order, 1979 came into force which imposed a complete ban on export of silver including plebian contracts. the agreement between the dealer and the state trading corporation contained an indemnity clause according to which in case the contract with foreign buyer could not be performed the dealer undertook to indemnify the state trading corporation. it was held that ..... not by the high court. the learned advocate for the respondent cannot, therefore, question the propriety of the high court's proceeding on the basis of assumption regarding the contract.the high court is also not precluded from discussing the issues and recording its findings although the writ petition may be premature.45. amongst the other reasons which shri ..... .1 of the adjudication order in appeal no. c- 24/85-cal, to the effect that the importers should have sought clarifications from the concerned authorities before entering into any contract with the foreign suppliers and said that because of those observations he would like to submit the following documents as additional evidence: - (i) copy of letter in (p) ..... even though the contract to export silver related to pre-ban period, the court would not interfere with the government order .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-10-1986
Reported in : (1987)0CALLT179(HC)
..... the court.48. the supreme court has further observed that the doctrine of distributive justice is another jurisprudential concept which has affected the law of contracts. according to this doctrine, distributive fairness had justice in the pocession of wealth and property can be achieved not only by taxation but also ..... notice. such a condition or provision is unconscionable, unfair, unreasonable and opposed to public policy, apart from holding that an unconscionable bargain or contract is one which is irreconcilable with what is right or reasonable or the terms of which are so unfair and unreasonable that they shock the ..... to divest it of its character of an instrumentality or agency of the state.47. dealing with the other question of the effect of unconscionable contract of employment, clause 9(1) of the service discipline and apple rules, 1979 of the central inland water transport corporation limited has been ..... is governed by the principles of master and servant. according to him this case was really governed by such principles and not by any statutory contract or authority. he also contended that a resignation after acceptance as in his case, would not be open for withdrawal. it was mr. banerjee ..... findings the learned trial judge has further observed that therefore, even if there is a wrongful termination of the service or a wrongful termination of contract of employment, for that the employees' remedy would be by way of damages in a evil action and not by a petition before this .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-03-1986
Reported in : AIR1987Cal289
..... he has referred to section 14 of the partnership act, which is as follows :'s. 14. the property of the firm. -- subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or ..... west bengal premises tenancy act. nonetheless these decisions are of some assistance because they indicate in what manner the applicability of section 23 of the contract act ought to be considered. in deciding the effect of section 14 of the west bengal premises tenancy act, the court ought to examine ..... west bengal premises tenancy act. nonetheless these decisions are of some assistance because they indicate in what manner the applicability of section 23 of the contract act ought to be considered. in deciding the effect of section 14 of the west bengal premises tenancy act, the court ought to examine ..... benefits of the rent control legislation appears to be the same as that under the general law. in the absence of a privity of contract, the unauthorised sub-tenancies are not binding upon the superior landlord who can evict such sub-tenants in execution of eviction decrees obtained against ..... creating of unauthorised subletting would not defeat provisions of any law. subletting under the general law was not unlawful and in the absence of a contract to the contrary a tenant could sublet. under the rent control legislation some classes of subtenants have been given protection from eviction. the legal .....Tag this Judgment!
Court : Kolkata
Decided on : May-08-1986
Reported in : AIR1986Cal374,68CompCas344(Cal)
..... of loss, damage, costs, charges etc. suffered or to be suffered by the beneficiary. 26. therefore, in the demand letter, the beneficiary must allege that the contractor committed breach of contract and the quantum of damage or loss suffered by it on account of the breach.27. similarly in respect of the five guarantees against mobilisation advances which were also conditional ..... parties discovered from the actual terms agreed by the parties and employed by them in the written instrument as expressing what they intend to agree...... the terms employed in the contract, defining the surety's undertaking and expression the terms on which he is to be freed from his undertaking, ought to be strictly construed....... neither equity 'or law will ..... argued relying on : 1scr561 (mseb bombay v. official liquidator) that the bank guarantee was an independent transaction irrespective of other claims and disputes between the parties to the main contract pursuant to which the bank guarantee was given. the counsel for the beneficiary further submitted that the learned trial judge had exercised jurisdiction not vested in him by law in ..... the market will be greatly eroded if it is prevented from honouring its obligations under the bank guarantee which the parties furnish as security at the time ,of entering into contracts. the respondent's counsel relies on (1977) 3 wlr 752 (mercantile ltd. v. national west minster bank ltd.) where concerning enforcement of bank guarantees. mr. justice kerr held at .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-22-1986
Reported in : 166ITR341(Cal)
..... transaction and the method of operation of the assessee and not the individual transaction.had to be considered. on the question, whether the local purchase transactions were hedging contracts or speculative transactions, he submitted that it has been found as a fact that by making firm offers, the assessee bound itself to export goods to its foreign purchasers ..... future price fluctuations in respect of any contract for actual delivery of goods. therefore, the said local purchase transactions were speculative transactions and the loss suffered by the assessee in respect thereof was speculative loss.18. ..... or merchandise sold by it. the learned advocate submitted that in the instant case, where the firm offers of the assessee were not accepted by the foreign purchasers, no contract for actual delivery of goods came into existence, and, therefore, the assessee could not claim that the local transactions for purchases were transactions for guarding against loss through ..... raw materials or merchandise entered into by a person in the course of his manufacturing or merchanting business to guard against loss through future price fluctuations in respect of his contracts for actual delivery of goods manufactured by him or merchandise sold by him ;...... shall not be deemed to be a speculative transaction. ' 17. construing the said section, .....Tag this Judgment!
Court : Kolkata
Decided on : May-02-1986
Reported in : AIR1987Cal181,1986(10)ECC220,1987(11)LC193(Calcutta),1986(25)ELT516(Cal)
..... government of india notification of the 5th aug. 1914 which was published on the 7th aug. 1914 and as such, performance of the contract became impossible. the notification which was relied on by the defendant was found to have prohibited export of ammunition and explosives and all materials used in the manufacture thereof. construing ..... shipped from bombay to antwerp, the shipment being in september. on the 7th sept. 1914, the defendant telegraphed to the plaintiff that owing to force majeure the contract was cancelled. the plaintiff refused to accept the cancellation and sued the defendant for damages. the defendant contended inter alia, that export of manganese from india was prohibited by the ..... the decree. (g) karl ettlinger & co. v. chagandas & co., reported in air 1915 bom 232. in this case, the plaintiff, a german firm doing business in london entered into a contract on the 24th july 1914 with the defendant firm in india through their london agents under which the defendant agreed to supply the plaintiff 1000 tons of manganese to be ..... sample drawn from the consignment of jute twine, correspondence between buyers and sellers were called for by the authorities. on scrutiny of the said correspondence it was found that the contract in respect of the goods intended for export had been entered into by the respondent and one m/s. union agencies (distributors) private ltd. of rhodesia. the name of m .....Tag this Judgment!