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

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