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.  2 K B.608 and Douglas Menzies v. Umphelby  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 IndiaNew Bihar Biri Leaves Co. & Ors vs State Of Bihar & Ors on 6 January, 1981Equivalent citations: 1981 AIR 679, 1981 SCR (2) 417Bench: Sarkaria, Ranjit SinghRead full judgment here;click here