Court : Chennai
Decided on : Dec-13-1934
Reported in : AIR1935Mad193; 157Ind.Cas.1104; (1935)68MLJ67
..... the obligation arising previous to the attachment. in that case it was held that a conveyance of a property executed after its attachment in pursuance of a contract dated before the attachment, should prevail. there, no doubt, the conveyance was not a private transfer but was obtained under a decree for specific performance, ..... annexed, in the words of section 40, to the ownership of such property. section 54 of the transfer of property act says no doubt that a contract of sale does not create an interest in land, but in virtue of the provisions i have referred to, it creates an obligation of a fiduciary ..... the person who had purchased the property at an execution sale and ask that he should perform the contract for sale.7. in other words, to take a concrete case, if the purchaser under the contract of sale had before the attachment paid half the purchase-money, he could compel the person, who ..... his own account but in trust for some other person (order 21, rule 60). a party in whose favour there is a contract of sale, can enforce specific performance of that contract as stated above against a transferee with notice. the illustration to section 40 of the transfer of property act runs thus:a ..... section 40 of the transfer of property act (as amended by act of 1929) a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it provides that that obligation may be enforced inter alia against a transferee with notice. section 91 .....Tag this Judgment!
Court : Chennai
Decided on : Mar-29-1934
Reported in : AIR1934Mad658
..... the appellant, to pay rs. 276-4-0 to appanna rain, the other mortgagee. but this does not amount, on a proper construction, to any contract limiting the appellant's liability to bear the burden of a covenant for quiet enjoyment. it only mentions the amount which the parties them thought sufficient to ..... held entitled to recover. this was clearly a case under clause (g), section 108, but the decision was based upon the general provisions of section 69, contract act.8. the case in yogambal boyee ammani ammal v. naina pillai (1909) 33 mad. 15, was not one of lessor and lessee and was ..... defendant. this was clearly a case not governed by clause (g), section 108, t.p. act, but by the general provisions of sections 69 and 70, contract act. the case in mt. faiyazunnissa v. bajrang bahadur singh 1927 oudh. 609, was one of land revenue payable by the lessors under a permanent lease. ..... and defendant 1 had in fact the benefit of the payment by the appellant and he thought that the conditions required by sections 69 and 70, contract act, were satisfied. having so held against the theory of voluntary payment, the learned subordinate judge also rejected the theory of the plaintiff's right being ..... that the plaintiff was a mere volunteer and that he was not entitled to recover anything as he did not satisfy the conditions of section 69, contract act, and although he worked out the figures which the plaintiff and defendant 1 would have to contribute in case the plaintiff was entitled to contribution, .....Tag this Judgment!
Court : Chennai
Decided on : Aug-07-1934
Reported in : AIR1934Mad695; 152Ind.Cas.617
..... paid on the due dates. this argument therefore fails.3. the other argument on behalf of the appellants was put as follows : under the explanation to section 74, contract act, the stipulation for increased interest from the date of default may be a stipulation by way of 'penalty' and the lower court has in this case in exercise ..... cannot be enforced by way of charge on the property. but that is not the position here. the interest upon interest is clearly part of the contract; the fact that under section 74, contract act, the court is given power to reduce that rate under certain contingencies does not make the interest at the reduced rate any the less a ..... case in motan mal v. mahomed bakhsh 1922 lah. 254. the full bench there took care to point out that neither by the most liberal interpretation of the contract nor even by any kind of implication therefrom, would it be possible to say in that case that interest was payable under the ..... . therefore the mere use of the expression penalty or damages ought not to be understood as amounting to a claim outside the contract.4. another point was suggested by mr. lakshmanna, relating to the claim for interest upon interest after 1912. that point was not raised either in the court ..... contract. therefore they treated it as a claim for damages pure and simple. in that sense, it would not really form part of what is spoken of in .....Tag this Judgment!
Court : Chennai
Decided on : Oct-16-1934
Reported in : AIR1935Mad468; 157Ind.Cas.232
..... between him and defendant l's mother, the interest was at the same' rate and both of them were unsecured pro-note loans. in the mortgage loan contracted by defendant 1's mother during his minority from defendant 2, the rate of interest was only 9 per cent. the plaintiff has not suggested that he ..... question of risk being a material matter for consideration. when excessive interest is apparently established, any facts that tend to show that such excess does not render the contract 'harsh and unconscionable' should be proved in evidence by the lender. this burden is on him.at p. 475 the same learned lord adds:the word ' ..... powers in dealing with matters of this kind. in certain cases prior to 1918, the privy council had held that in the application of section 16, contract act, courts in india-ought not to be guided by the rules adopted by the court of equity in england, so that the jurisdiction of indian courts ..... an unusual high rate of interest and a debtor accepts the loan on these terms, that is a transaction in the ordinary course of business and the contract cannot be said to be induced by undue influence. the question is whether under the terms of the usurious loans act (10 of 1918), the position ..... considerations, there is no doubt that there is no basis for any suggestion of overreaching by the creditor.6. if the matter rested only upon section 16, contract act, there can be no doubt as to the answer. the case is clearly covered by illus. (d) to section 16 which provides that if a .....Tag this Judgment!
Court : Chennai
Decided on : Jan-10-1934
Reported in : 153Ind.Cas.1005
..... thulji boyee got the suit house belonging to the deceased. a creditor of the widows filed 0. section no. 275 of 1872 against them for the recovery of a debt contracted by them after their husband's death. a decree was obtained and in court auction in execution of the decree the house was sold and purchased by the decree-holder .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-05-1934
Reported in : AIR1934Cal862,153Ind.Cas.972
..... due.' it is true that the logical result of this construction of section 67-a is that section 67 also, which contains the same words 'in the absence of a contract to the contrary,' does not apply to securities created by operation of law, and thus the owners of such cannot avail themselves of the benefit of the provisions therein contained ..... 100 applies be the other provisions of the act to charges only 'so far as may be' yet the power, of contracting out is clearly an essential part of the section and could not be given effect to in a statutory charge, unless the particular statute so provided which is not so ..... securities which are created by act of parties. thus it applies to 'mortgages executed by the same mortgagor,' and provides that certain obligations shall arise 'in the absence of a contract to the contrary.' both terms are inappropriate to a statutory charge. and even if it were arguable that the first refers only to mortgages, and may be ignored because section ..... right to obtain the same kind of decree under section 67 and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all mortgages in respect of which the mortgage money has become due.3. section 100, transfer of properly act, provides:where immovable .....Tag this Judgment!
Court : Privy Council
Decided on : Nov-27-1934
..... is referred to in the body of the document. having arrived at this conclusion, it becomes unnecessary to consider the effect of s. 133, contract act. whether that much discussed section relates only to continuing guarantees or is intended to affect a guarantee of one obligation, and if so what ..... of the security lost. its value for the present purpose is that without any agreement between the creditor and the surety to vary the contract, the fact that the creditor stood by and permitted something to be done which made the original performance impossible discharged the other sureties whose ..... bread that he supplied for army requirements. the flour was to be of specified quality. the merchant delivered flour which was not of the contract description. the surety commenced a suit in chancery to have it declared that the surety bond was void in equity by reason of misrepresentations ..... cases a different performance of the original contract is due to an express variation of the terms between the parties ; and it is natural that the reported cases should mainly deal with ..... the final obligation of the principal debtor will be something different from the obligation which the surety guaranteed. presumably he is discharged forthwith on the contract being altered without his consent, for the parties have made, it impossible for the guaranteed performance to take place. in the vast majority of .....Tag this Judgment!
Court : US Supreme Court
Decided on : May-28-1934
..... van devanter, mr. justice mcreynolds, mr. justice butler and i concur unreservedly in the judgment of the court holding the arkansas statute void as in contravention of the contract impairment clause of the federal constitution. we concur thus specially because we are unable to agree with the view set forth in the opinion that the differences between the ..... when the exercise of the reserved power of the state, in order to meet public need because of a pressing public disaster, relates to the enforcement of existing contracts, that action must be limited by reasonable conditions appropriate to the emergency. this is but the application of the familiar principle that the relief afforded must have reasonable ..... only to legislation to safeguard the public health, public safety, and public morals, and to prevent injurious practices in business subject to legislative regulation, despite interference with existing contracts -- an exercise of the state's necessary authority which has had frequent illustration -- but also to those extraordinary conditions in which a public disaster calls for temporary relief. ..... obligation does not extend to future acquisitions. industry, talents, and integrity, constitute a fund which is as confidently trusted as property itself. future acquisitions are therefore liable for contracts, and to release them from this liability impairs their obligation." this principle was applied to an exemption of insurance moneys, in relation to antecedent debts, in bank of .....Tag this Judgment!
Court : US Supreme Court
Decided on : Mar-19-1934
..... is manifest that the ordinance treats both businesses alike, and therefore that there is no discrimination. if the pledge be of the entire gross revenues and, by reason of the contract clause of the constitution, prevents the application of part of the revenues to the payment of the tax, it is very plain that such discrimination as results is neither arbitrary ..... has been constitutionally reserved to it from the beginning. such was the decision in madera waterworks v. madera, supra, where this court pointed out that, in the absence of any contract restriction, the fourteenth amendment does not prevent a city from conducting a public waterworks in competition with private business or preclude taxation of the private business to help its rival ..... aid its light fund by taxation, without disposing of the constitutional question decided by the state court, would entail the decision of other questions, arising under the equal protection and contract clauses, not raised or considered in the case. moreover, the appellant insists that, in any case, payment of the tax would neither relieve appellant of its burden nor impose ..... assailed because the measure of it is vague and uncertain and because, by imposing a license tax upon the privilege of doing the business, the ordinance impairs appellant's franchise contract which gave it the right to conduct the business. in sustaining the constitutionality of the tax, the state court found it unnecessary to ascertain whether, under the city charter and .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-28-1934
Reported in : (1935)37BOMLR102
..... b. b. & c. i. railway company over the river narbada, the bridge being just, outside the limits of the broach municipality. certain goods to be used in connection with the contract were consigned to the applicant at broach railway station which is alleged by the-prosecution to be within the terminal tax limits, and then those goods were sent on by ..... siding. his further contention is that if any tax is payable on the goods, the party liable is the railway company and not himself, because he alleges that under his contract with the railway company the goods become the property of the railway company. these questions are questions which may require the attention of a civil court. but i can see .....Tag this Judgment!