Thursday, 30 July 2015

Whether a party can avoid contractual obligation on ground of violation of fundamental right?

It is a fundamental principle of general application
that if  a person  of his  own accord, accepts a contract on
certain terms  and works  out the  contract,  he  cannot  be
allowed to  adhere to  and abide by some of the terms of the
contract which proved advantageous to him and repudiate the
other  terms   of  the  same  contract   which   might   be
disadvantageous to  him. The  maxim,  is  qui  approbat  non
reprobat. A  party to  an instrument  or transaction  cannot
take advantage of one part of a document or transaction and
reject the rest. [441E-H]
     Verschures  Creameries   Ltd.  v. Hull  &  Netherlands
Steamship Co.  [1921] 2  K  B.608  and Douglas  Menzies  v.
Umphelby [1908] A.C. 224 at p. 232 referred to.
     In the  instant case  the petitioners  had by  offering
highest bids  at public auctions or by Tenders, accepted and
worked out  the contracts  in the past but are now resisting
the demands  or other  action, arising out of the impugned
condition 13  on the ground that this condition is violative
of Article 19(1)(g) and 14 of the Constitution. The impugned
conditions though  bearing a  statutory  complexion,  retain
their basic contractual character. Though a person cannot be
debarred from enforcing his fundamental rights on the ground
of estoppel or waiver, the principle which prohibits a party
to a  transaction from approbating a part of its conditions
and reprobating  the rest, is different from the doctrine of
estoppel or waiver.
Supreme Court of India
New Bihar Biri Leaves Co. & Ors vs State Of Bihar & Ors on 6 January, 1981
Equivalent citations: 1981 AIR 679, 1981 SCR (2) 417
Bench: Sarkaria, Ranjit Singh
         Read full judgment here;click here

Print Page

Whether family court can pass residence order at interim stage?

There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings.Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order.
Bombay High Court
Mr. Amit Satish Shah vs Mrs. Archana Amit Shah And Anr on 14 October, 2014
Bench: M.S. Sonak
Citation; 2015(4) ALLMR11
Print Page

Whether subsequent purchaser is necessary party in suit for specific performance of contract?

 In the case of Dwarka Prasad Singh v. Harikant Prasad
Singh – (1973) 1 SCC 179, the Supreme Court observed thus:
“There appears to be some divergence between the
High Courts on the question whether in a suit for
specific performance against a purchaser with notice
of a prior agreement of sale the vendor is a necessary
party or not. In other words the conflict has arisen
on the question whether the decree in a suit for
specific performance when the property in dispute has
been sold to a third party should be to only direct the
subsequent purchaser to execute a conveyance or
whether the subsequent purchaser and the vendor
should both execute a conveyance in favour of the
plaintiff : See Gourishankar & Others v. Ibrahim Ali

and Kafiladdin & Others v. Samiraddin & Others.
This Court has, however, held in Lala Durga Prasad
& Another v. Lala Deep Chand & Others that in a suit
instituted by a purchaser against the vendor and a
subsequent purchaser for specific performance of the
contract of sale the proper form of the decree is to
direct specific performance of the contract between
the vendor and the plaintiff and further direct the
subsequent transferee to join in the conveyance so as
to pass on the title which resides in him to the
plaintiff. This was the course followed by the Calcutta
High Court in the above case and it appears that the
English practice was the same. Thus according to this
decision, the conveyance has to be executed by the
vendor in favour of' the plaintiff who seeks specific
performance of the contract in his favour and the
subsequent transferee has to join in the conveyance
only to pass his title which resides in him. It has been
made quite clear that he does not join in any special
covenants made between the plaintiff and his vendor.
All that he does is to pass on his title to the plaintiff.
In a recent decision of this Court in R. C. Chandiok &
Another v. Chunni Lal Sabharwal & Others while
passing a decree for specific performance of a
contract a direction was made that the decree should
be in the same form as in Lala Durga Prasad's case
(supra). It is thus difficult to sustain the
argument that the vendor is not a necessary
party when, according to the view accepted by
this Court, the conveyance has to be executed by
him although the subsequent purchaser has also
to join so as to pass on the title which resides in
him to the plaintiff.”
(emphasis supplied)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.42 OF 2014
IN
CHAMBER SUMMONS NO.2087 OF 2011
IN
SUIT NO.1241 OF 2007
Nitin Gandhi & anr. ..Appellants
vs.
Dinyar Pheroz Dubash & ors. .. Defendants.




CORAM: MOHIT S. SHAH, C.J. &
M.S.SONAK, J.

JUDGMENT PRONOUNCED ON : 09 Oct. 2014

Print Page

Whether tenant continuing in occupation of tenancy premises after termination of tenancy is liable to pay damages or mesne profits?

In Shyam Sharan Vs. Sheoji Bhai & Anr., (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. With advantage and approval, we may refer to a decision of the Nagpur High Court. In Bhagwandas Vs. Mst. Kokabai, AIR 1953 Nagpur 186, the learned Chief Justice of Nagpur High Court held that the rent control order, governing the relationship of landlord and tenant, has no relevance for determining the question of what should be the measure of damages which a successful landlord should get from the tenant for being kept out of the possession and enjoyment of the property. After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the rent control order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value. We find ourselves in agreement with the view taken by the Nagpur High Court.
Supreme Court of India
M/S. Atma Ram Properties (P) Ltd vs M/S. Federal Motors Pvt. Ltd on 10 December, 2004

Bench: Cji R.C. Lahoti, G.P. Mathur
Citation; 2005 SAR(CIVIL)93 SC
Print Page