Court : Kolkata
Decided on : Feb-10-2004
Reported in : (2004)2CALLT433(HC),2004(2)CHN606
..... seeking to invoke the right flowing from an utter irregularity specially when the company had been made publically accountable especially when the company does not act unless through a written contract as also when only authorised'.17. from the analysis of the facts as discussed by the apex court and reproduced hereinbefore it would appear that the oil companies were selling ..... any reason'. it further provided that 'i.o.c. took no responsibility of despatches/releases of stocks shall be on the basis of availability of stocks'. there was no other contract in the facts and circumstances of the case, it was urged. the letters making the requisitions, the product indent-cum-delivery orders, the delivery challans as also the payment are .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-29-2004
Reported in : (2004)3CALLT114(HC)
..... hon'ble court. the learned judges of the hon'ble division bench observed that in the facts and circumstances of the said case the contention that the contract was made in calcutta couldn't be prima facie be brushed aside.43. the next case cited was reported in air 1949 madras 145 (battepati v. ..... terms and conditions of the agreement. we have already held that from various terms of the contract pleaded in the plaint it can be very reasonably inferred that goods were actually required to be despatched to the appellant at calcutta.40. the appellant ..... the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case of the contract express or implied between the parties. therefore, even in the absence of any express terms the intention of the parties can be inferred from various ..... its case as made out in the plaint that the appellant was entitled to refund of the amount lying with the defendant after repudiation of the contract, the appellant will have to prove the averments made in the plaint that despatch instructions were given from calcutta within the jurisdiction of this hon'ble ..... outside the ordinary original civil jurisdiction of this court.20. the learned judge had also accepted the contention of the respondent that in absence of any contract to the contrary, under section 36 of the sale of goods act, goods sold are to be delivered at the place at which they are at .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-30-2004
Reported in : AIR2004Cal191,(2004)3CALLT32(HC),2004(4)CHN460
..... three days on payment of the balance amount. in the said letter, it is also indicated that as the time was the essence of the contract, the contract would come to art end after the expiry of the stipulated period.11. in reply, mr. golam kibria, advocate of the judges' court ..... letter dated 15-3-1973 the plaintiff claimed refund of the earnest money from the defendant does he have any right for specific performance of contract or the contract should be held to have been rescinded ?(iv) in the facts and circumstances of the case is the finding that defendant no. 2 is ..... reliance on ext. 5(a) and without considering all other 'legal aspects came to a decision that the plaintiffs were entitled to enforce the contract specifically. such a decision is excepted under the provision of section 19(b) of the specific relief act. moreover specific relief being a discretionary ..... ext. a was waived. accordingly, placing reliance on the provision of section 19(b) of the specific reliefact, 1963, a decree for specific performance of contract was passed against the defendants.14. the learned counsel appearing on behalf of the 'present appellant (defendant no. 2 -- sahida khatoon. bibi) contended that the ..... no. 2 (ext. b) having been lawfully done, there is no reason to exercise the discretion as regards decreeing the suit for specific performance of contract in favour of the plaintiffs. so the suit was dismissed. but keeping in view the circumstances, no cost was awarded against the plaintiffs.13. the .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-01-2004
Reported in : AIR2005Cal108,2005(4)CHN694
..... convey title to the property and the formalities relating to the execution and registration of the conveyance, a service obligation remains to be performed. in such a case where the contract is almost performed in other respects and only the formalities for legally conveying title remains to be performed pursuant to the scheme formulated, as involved in the present case, ..... (ii) includes person who hires any services for a consideration paid or promised or partly paid and partly promised or under any system of deferred payment. as soon the contract includes certain services a consumer entitled to receive the benefit of such services would definitely come within the definition of consumer and can very well maintain an application before the ..... the arbitrator principally on the ratio decided in those decisions. the question is whether any forum other than civil courts can exercise discretion with regard to specific performance of contract for sale of an immovable property in terms of the specific relief act or whether the jurisdiction of the consumer forum is excluded by reason of any provisions contained in ..... in regular courts, to refer the issues relating to specific performance to arbitration. there is no prohibition in the specific relief act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. the apex court had occasion to deal with the decision in lakshmi narain v. raghubir singh, by punjab high court .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-16-2004
Reported in : AIR2005Cal97
..... been drawn on account of non production of the books of accounts; and (5) that the warehouse-to-warehouse clause does not mean an absolute indemnity, it only denotes duration, it does not enhance the heads of risk.1.3. the learned single judge had decreed the suit, against which the ..... own admission the plaintiff's claim fails as the alleged loss was due to this excluding clause.5.7 under clause 9 of the policy, the contract carriage was terminated (because the ship became unseaworthy) at port other than its destination. hence, the policy of insurance also automatically stood terminated. ..... how far the claim can be admissible.5.2 loss and damages due to delay was excluded under exclusion clause. in the instant case, the contract of carriage came to an end by june, if not in may, 1988. cargo safety construction certificate and load line certificate expired in 15th july ..... or any attempt thereat;'*** *** *** *** *** ***termination of policy of insurance'9. if owning to circumstances beyond the control of the assured either the contract of carriage is terminated at a port or place other than the destination named therein of the transit is otherwise terminated before delivery of the goods as provided ..... be dismissed.2.6 moreso on account of the reasons enumerated in paragraph 5.7 hereafter viz., that under clause 9 of the policy, the contract of carriage stood terminated on account of the unseaworthiness of the ship at port other than its destination, due to which the insurance policy stood .....Tag this Judgment!
Court : Kolkata
Decided on : Apr-22-2004
Reported in : 2004(3)CHN491
..... importance. in the said decision, the hon'ble supreme court has decided that the permission for alienation is not a condition precedent to file the suit for specific performance of contract as the decree for specific performance is always subject to the condition to the grant of the permission by the competent authority. holding as such, the claim for specific performance ..... find that those are not the authorities on the point of limitation. however, by referring to those decisions, mr. dasgupta tried to impress upon me that since performance of the contract within the date fixed is impossible here as the defendant petitioner failed to procure the permission for transfer from the government, limitation cannot begin to run from the date so ..... of the instant case as it appears from the facts recorded in the said decision that amendment for converting the suit for injunction into a suit for specific performance of contract was refused on the ground that subsequent modification of the original agreement was disbelieved by this court. since the modification was disbelieved, limitation intervened and as a result of which ..... subsequent cancellation of the agreement by the advocate's letter dated 5th september, 1997 cannot be the starting point of limitation in filing the said suit for specific performance of contract in view of the provision of article 54 of the limitation act.6. mr. roychowdhury further contends that in the instant case there is no pleading of acknowledgement of liability .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-28-2004
Reported in : AIR2005Cal133,2006(1)ARBLR414(Cal),2005(1)CHN448
..... we are of the opinion that in the very small handful of cases where parties might choose and agree to apply indian law to their contract and nonetheless confer jurisdiction on a foreign court, say the english courts, for retaining supervisory jurisdiction over the award in matters like setting aside ..... award. in paragraph 26 their lordships said that the proper law of the arbitration agreement is normally the same as the proper law of the contract. in paragraph 26 it was opined that in respect of procedural matters concerning the conduct of arbitration, the english courts would have jurisdiction, ..... resolving this issue, one has to look at the arbitration clause and construe it according to the well-settled principles which govern the construction of contracts of agreeing parties. the principle is that words have to be given their plain meaning; if possible each word has to be ascribed some ..... of this second arbitration will be binding on the both parties, judgment upon the award may be entered in any court in jurisdiction.'4. the contract between the parties was for supply of dry copper by the respondent, an american company to the appellant, which is a government company. the ..... .- all disputes or differences whatsoever arising between the parties out of, or relating to, the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in india through the arbitration panel of the indian council of arbitration in accordance with the .....Tag this Judgment!
Court : Kolkata
Decided on : May-12-2004
Reported in : 2004(3)CHN272
..... decisions cited by the parties in my opinion the following proposition of law, relevant herein, would reveal --(i) when any claim arises out of a contract for carriage of goods by sea and when the goods on board are to be discharged at the discharging port and to be delivered to the consignee, ..... can attract admiralty jurisdiction. the apex court relying on an english decision also observed that the jurisdiction is wide enough to cover all claim in tort or contract arising out of any claim for carriage of goods by sea. paragraphs 47, 49, 51, 53 and 55 being relevant herein are quoted below: '47 ..... of goods to taiwan. the suit was filed by the exporter in admiralty jurisdiction seeking arrest of the ship on account of damages for breach of contract. the apex court on examination of facts came to conclusion that the goods were not at all loaded in the ship and as such, this ..... released upon furnishing of security by the ship-owner being the applicant before me.2. according to the applicants, they were not having any privity of contract with the plaintiff. under a charter party agreement the ship was given to the charterer namely m/s. liberty carriers sk. under the said charter party ..... paragraph as referred to by the learned counsel for the parties are quoted below : '67. whether the shipowners are liable in contract depends upon whether they were parties to the contract of carriage made with the shippers and evidence by the bills of lading. the time charter provided in clauses 8 and 33 that .....Tag this Judgment!
Court : Kolkata
Decided on : Apr-30-2004
Reported in : AIR2004Cal276,(2006)1CALLT403(HC)
..... above mentioned definition of fraud that the persons alleging fraud is to prove beyond all doubts that the fraud has been committed that is consent to contract has been procured by the party.43. in the perspective of evidence or in the perspective of judgment and decree passed by the appellate court- ..... . these cases accordingly belong to the head of undue influence.'39. in contract act in section 15 coercion has been defined which is inter alia as follows :-'15. 'coercion' is the committing, or threatening to commit, any ..... on a presumption of imperfect knowledge of the world and exposure to undue influence, making it the duty of a person taking a beneficial grant or contract from a pardanashin woman to show that the deed was explained to her and understood by her, so that the ordinary burden of proof is reversed ..... case may be.gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract it might be rescinded.save as aforesaid, a gift cannot be revoked.nothing contained in this section shall be deemed to effect the rights of transferees ..... and accordingly cannot prevail. in paragraph 9, the supreme court observed :-the proposition that reciprocal promises are sufficient to bring about the formation of a contract is well settled, and indeed elementary. but, the high court does not appear to have been invited to examine the question whether this proposition in .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-14-2004
Reported in : AIR2005Cal28,125CompCas708(Cal)
..... go to show that the parties failed to arrive at a consensus even' on what were the terms of the mou. thus, it is clear that there was no concluded contract nor was there any novation.'33. the word 'consensus' has been used by the supreme court as a general terminology for not giving effect of the memorandum of understanding (mou ..... institution of the suit arose on 19th october, 1984 when the plaintiff served notice of demand through its advocate. hence, the contract was said to be terminated on that date. subsequent demand and proposals are continuation of such demand. no new contract was entered into. interest, if any, may be capitalized with the principal sum as on the date of the suit .....Tag this Judgment!