Court : Kolkata
Decided on : Apr-22-1958
Reported in : AIR1959Cal558,33CompCas370(Cal),63CWN367
..... allowance is to be made for the loss of prospective profit or other consequential loss. at p. 297 the learned authors observe 'the contract of fire insurance is a contract of indemnity and the assured is not adequately indemnified against the loss of this property unless, so far as money can do so, he is restored ..... entitled to recover the said amounts as soon as it is proved that the properties were lost. it is well known that a contract of insurance, specially, fire insurance, is a contract of indemnity and when loss occurs it is for the assured to prove the actual amount of his loss. the sums mentioned in the policy ..... ground that was available regardless. of reasons which they had previously given. as lord sumner pointed out in 1923 ac 48, if a party repudiated a contract giving no reasons at all, all reasons and all defences in the action partial or complete would be open to him.' at the time when the ..... part) of the condition referred to, with which we have to deal in the present case, is to enable the insurers to release themselves from their contract during its currency, leaving it in full vigour down to the time of notice. the words in which the power of determination is expressed, taken by ..... declare that the foregoing statements are to the best of our knowledge and belief true and we agree that these are to be the basis of the contract and will be considered as incorporated in the policy to be issued.'no signature of anybody appears at the place meant for the agent's signature. .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-04-1958
Reported in : AIR1959Cal669
..... to those in the instant case and clause 27 of the bill of lading in that case was in the following terms :-- 'all applications for indemnity of damage, shortage, deterioration, loss of goods shipped shall be submitted for amicable settlement to the agency of the company at the port of discharge. ..... may be somewhat hard on the plaintiff to have his suit stayed after a year of its institution but a party who entered into a contract ofthis type providing that the legal proceedings shouldbe confined to the courts as trieste or genoa andrenouncing the competence of other judicial authorities cannot normally ..... and english, and came to the conclusion that a covenant of this nature did not contravene the provisions of section 28 of the india. contract act if the chosen court had jurisdiction to try the suit under the ordinary law because the restriction was only partial and the plaintiff was not ..... no. 1 necessary for the purpose of this case are also lying in italy. it is further stated that the italian courts mentioned in the contracts of carriage have jurisdiction to entertain and try the suit and the said courts are also courts of convenience and, in the premises, this suit ..... (defendant) by reason of connection or contingency of the law suits. 32. for anything which has not been provided for or foreseen in the present contract of carriage, the provisions of italian code of navigation shall apply.' the defendant denies the validity and the correctness of the short landing certificates. it .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-18-1958
Reported in : AIR1960Cal15
..... ., and on appeal that decision was affirmed by the appeal court, who held that the belgian economic mission were merely the agents through which the belgian state was making the contract and that the signatories were signing on behalf of the belgian state and, consequently, there could not be any doubt that when they issued the writ the plaintiffs' solicitors thought ..... firm name of manilal and sons is the collective trade name of the several individuals carrying on business in co-partnership under that name. those individuals trade and enter into contracts and dealings in the firm name of manilal and sons. but it so happens that a firm is not a separate juristic entity and order xxx of the code of .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-16-1958
Reported in : AIR1962Cal485,66CWN645
..... provided that 'in the same case, the court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require'. it seems to me that when the court ..... him to pay. the argument is that the mere fact that the purchaser had made default in the payment of the purchase money does not result in the contract coming to an end. it is not necessary for our present purpose to consider this question. it is to fee noticed, however, that in the very same ..... the court had jurisdiction under section 148 c. p. c. to extend the time. i cannot see, however, how this deposit of money for the performance of the contract can be considered to be an act either prescribed or allowed by the code. i have no hesitation, therefore, in holding that section 148 c. p. c. has ..... 1. this case raises a question of considerable importance and of some difficulty. the question is whether a trial court after it has ordered specific performance of a contract, on a sum or money being put in within a specified time and also ordered that if the money is not put in within that date, the suit ..... sue to have it rescinded, and such rescission may be adjudged by the court in any case where the decree for specific performance of the contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase money or other sums which the .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-22-1958
Reported in : AIR1959Cal302
..... for land. in the instant case, there is no written agreement in which the obligation to deliver possession is made an integral part of the contract. the contract as pleaded in paragraph 2 of the plaint imposes an obligation on the vendor only to execute a conveyance. in the receipt no doubt there is ..... agreement for sale under such circumstances,that the court of equity should not compel him toperform such agreement. consideration of equityprompts me not to enforce this contract. on theother hand the plaintiff has paid the sum ofrs. 20,000/: to the defendant and for all these yearsthe plaintiff is deprived of the ..... statement, and in the present state of evidence, it is impossible for me to record a findingthat making over possession was an integral part of the contract for sale in the present case and on such finding divest the jurisdiction of the court to hear the suit. as indicated before, the case of ..... the case reported in : air1955cal402 . in the instant case, no plea was raised that the obligation to deliver possession was an integral part of the contract. there is no evidence to that effect, except the receipt. the plaintiff was not asked a single question on this point. in my view, it ..... evidence 'that there was a further obligation to make over possession. but whether such an obligation is an integral part of the contract or a collateral obligation is a question which has to be pleaded and an issue raised and proved before the defendant can bring the suit within .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-06-1958
Reported in : AIR1959Cal603,63CWN128
..... follows:--'arbitration of disputes whatsoever arising on or out of this contract shall be referred to the arbitration under the rules of tribunal of arbitration bengal chamber of commerce or indian chamber of commerce applicable for the time for decision and such ..... reported in ganpatrai gupta v. moody bros. ltd. 85 cal l j 136. in that case the arbitration agreement was contained in the following printed clause 'all disputes regarding this contract to be settled by two arbitrators, one nominated by buyers and sellers respectively in accordance with the indian arbitration act.' after the printed portion there was a typewritten clause as ..... second contention whether the arbitration agreement is vague, i am of opinion that the arbitration agreement is not vague. the agreement is that any dispute arising out of a contract is to be settled by arbitration in new york according to the rules of the american arbitration association, counsel for the respondent relied on the decision of sinha j. ..... the american arbitration association'.2. disputes and differences arose between the parties and on or about 15-1-1958 the petitioners referred such disputes and differences in terms of the contract to the arbitration of the american arbitration association in accordance with the rules thereof.3. the petitioner states in paragraph 7 of the petition that the arbitrators entered on .....Tag this Judgment!
Court : Kolkata
Decided on : Jul-21-1958
Reported in : AIR1959Cal213
..... been created by the deposit of title deeds on receipt of the money. i agree that if the letter of deposit itself can be treated as the bargain or the contract of mortgage, then the document, be it in the form of a letter of deposit, memorandum or an agreement, must be registered, in order that a valid mortgage may be .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-26-1958
Reported in : AIR1958Cal559
..... service rules, the motive operating on the mind of government will be irrelevant. but the learned chief justice says also that even if the government has a right under the contract or the service rules to terminate the employment without going through the procedure prescribed for inflicting the punishments of dismissal, removal and reduction in rank, the government may nevertheless choose ..... that although in form the government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the government has terminated the employment as and by way of penalty.'it will be noticed that in the sentence ..... substantive lower rank will not ordinarily be a punishment. but the mere fact that the servant has no title to the post or the rank and the government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post, does not mean that an order of reduction of a servant to a lower ..... at the bar, had taken the view that where termination of service was brought about otherwise than by way of punishment and only in accordance with the terms of the contract or conditions of service article 311(2) would not apply, they had been rightly decided. but the court pointed out that such decision did not solve the entire problem, because .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-03-1958
Reported in : AIR1960Cal261,63CWN745
..... . the broker was not examined in the case. in his re-examination, however, lalchand stated that he was present at the time of contract. the contract in this case was effected by the exchange of bought note and sold note through the broker. what exactly lalchand meant by saying that ' ..... law. that being so, to admit oral evidence of any agreement to wager for the purpose of contradicting or varying the terms of the written contract will not be admissible in evidence, tinder section 92 of the indian evidence act, unless, of course, it comes within the language or the ..... where, as in the present case, the defendant receives and accepts payments when the dealings are successful, but has recourse to the plea of wagering contract when the transactions end in loss'.11. bearing in mind the principle of law referred to above, i have examined the pleadings and also the ..... (air 1917 pc 101). whether the transaction is speculation or wagering, must be determined by the court; we have to look behind the form of the contract to the real intention of the parties, which may be gathered from the oral evidence and the actual transactions between them. universal stock exchange v. strachan, ..... . the learned trial judge has placed reliance upon this witness. as against this the plaintiffs examined only a karmachari, who has admitted that the contract was effected between the maliks. the learned trial judge therefore has rightly observed that he could not place much reliance upon the evidence of this witness .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-02-1958
Reported in : AIR1958Cal551,62CWN622,(1959)ILLJ128Cal
..... in a narrow or pedantic sense. it appears to me that section 175(3) or article 299(1) applies to all contracts including contracts of employment and unless the contracts of service are in the prescribed form, the so-called employee acquires no rights in respect of the employment which can be ..... . hence the claim of the plaintiff, if any, is time barred. the article only applies if the instant suit is for compensation for breach of contract. the present suit is, however, a declaratory suit - declaration sought being that the plaintiff is- still a government servant. all other reliefs in the ..... the said article. and, lastly, the fact that article 299 forms part of part xii of the constitution, which deals with 'finance, property, contract and suit', whereas article 311 forms part of part xiv of the constitution which deals with the 'services under the union or states', has an ..... other employee. he did not notice this important fact that whereas in the ordinary case of master and servant, the relationship is wholly governed by contract, in the case of government servant the relationship is wholly determined by rules to be varied and altered unilaterally by the government without the consent ..... of the constitution, should not be allowed to be raised, unless this point is specifically taken in the writtenstatement. this point of invalidity of contract under article 299 of the constitution has not been specifically taken in the instant case and hence the defendant should not be allowed to take .....Tag this Judgment!