At this juncture, it is important to understand what exactly is
meant by waiver. In Jagad Bandhu Chatterjee v. Nilima Rani,
(1969) 3 SCC 445, this Court held:
“In India the general principle with regard to waiver
of contractual obligation is to be found in Section 63
of the Indian Contract Act. Under that section it is
open to a promisee to dispense with or remit, wholly
or in part, the performance of the promise made to
him or he can accept instead of it any satisfaction
which he thinks fit. Under the Indian law neither
consideration nor an agreement would be
necessary to constitute waiver. This Court has
already laid down in Waman Shriniwas
Kini v. Ratilal Bhagwandas & Co.[1959 Supp 2 SCR
217, 226] that waiver is the abandonment of a right
which normally everybody is at liberty to waive. “A
waiver is nothing unless it amounts to a release. It
signifies nothing more than an intention not to insist
upon the right”. It is well-known that in the law of
pre-emption the general principle which can be said
to have been uniformly adopted by the Indian courts
is that acquiescence in the sale by any positive act
amounting to relinquishment of a pre-emptive right
has the effect of the forfeiture of such a right. So far
as the law of pre-emption is concerned the principle
of waiver is based mainly on Mohammedan
Jurisprudence. The contention that the waiver of the
appellant's right under Section 26-F of the Bengal
Tenancy Act must be founded on contract or
agreement cannot be acceded to and must be
rejected.” [para 5]
19. In P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725,
this Court held:
“Waiver is an intentional relinquishment of a known
right or advantage, benefit, claim or privilege which
except for such waiver the party would have
enjoyed. Waiver can also be a voluntary surrender
of a right. The doctrine of waiver has been applied
in cases where landlords claimed forfeiture of lease
or tenancy because of breach of some condition in
the contract of tenancy. The doctrine which the
courts of law will recognise is a rule of judicial policy
that a person will not be allowed to take inconsistent
position to gain advantage through the aid of courts.
Waiver sometimes partakes of the nature of an
election. Waiver is consensual in nature. It implies a
meeting of the minds. It is a matter of mutual
intention. The doctrine does not depend on
misrepresentation. Waiver actually requires two
parties, one party waiving and another receiving the
benefit of waiver. There can be waiver so intended
by one party and so understood by the other. The
essential element of waiver is that there must be a
voluntary and intentional relinquishment of a right.
The voluntary choice is the essence of waiver.
There should exist an opportunity for choice
between the relinquishment and an enforcement of
the right in question. It cannot be held that there has
been a waiver of valuable rights where the
circumstances show that what was done was
involuntary. There can be no waiver of a
non-existent right. Similarly, one cannot waive that
which is not one's as a right at the time of waiver.
Some mistake or misapprehension as to some facts
which constitute the underlying assumption without
which parties would not have made the contract
may be sufficient to justify the court in saying that
there was no consent.” [para 13]
20. Regard being had to the aforesaid decisions, it is clear that
when waiver is spoken of in the realm of contract, Section 63 of the
Indian Contract Act governs. But it is important to note that waiver is
an intentional relinquishment of a known right, and that, therefore,
unless there is a clear intention to relinquish a right that is fully known
to a party, a party cannot be said to waive it. But the matter does not
end here. It is also clear that if any element of public interest is
involved and a waiver takes place by one of the parties to an
agreement, such waiver will not be given effect to if it is contrary to
such public interest. This is clear from a reading of the following
authorities.
21. In Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619, it was
held:-
“The general principle is that everyone has a right to
waive and to agree to waive the advantage of a law or
rule made solely for the benefit and protection of the
individual in his private capacity which may be dispensed
with without infringing any public right or public policy.
Thus the maxim which sanctions the non-observance of
the statutory provision is cuilibet licet renuntiare juri pro
se introducto. (See Maxwell on Interpretation of Statutes,
Eleventh Edn., pp. 375 and 376). If there is any express
prohibition against contracting out of a statute in it then no
question can arise of anyone entering into a contract
which is so prohibited but where there is no such
prohibition it will have to be seen whether an Act is
intended to have a more extensive operation as a matter
of public policy.” [para 6]
22. In Indira Bai v. Nand Kishore, (1990) 4 SCC 668, it was held:-
“The test to determine the nature of interest,
namely, private or public is whether the right which
is renunciated is the right of party alone or of the
public also in the sense that the general welfare of
the society is involved. If the answer is latter then it
may be difficult to put estoppel as a defence. But if it
is right of party alone then it is capable of being
abnegated either in writing or by conduct.” [para 5]
23. In Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229, it
was held:
“The principle of waiver although is akin to the
principle of estoppel; the difference between the
two, however, is that whereas estoppel is not a
cause of action; it is a rule of evidence; waiver is
contractual and may constitute a cause of action; it
is an agreement between the parties and a party
fully knowing of its rights has agreed not to assert a
right for a consideration.
A right can be waived by the party for whose benefit
certain requirements or conditions had been
provided for by a statute subject to the condition
that no public interest is involved therein. Whenever
waiver is pleaded it is for the party pleading the
same to show that an agreement waiving the right in
consideration of some compromise came into being.
Statutory right, however, may also be waived by his
conduct.” [para 9]
24. It is thus clear that if there is any element of public interest
involved, the court steps in to thwart any waiver which may be
contrary to such public interest.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5881-5882 OF 2016
ALL INDIA POWER ENGINEER
FEDERATION & ORS.
V
SASAN POWER LTD. & ORS. ETC.
DATED: December 08, 2016.
Citation:(2017) 1 SCC 487
Print Page
