CONTRACT ACT, 1872
(IX of 1872)
Banking—Bank
guaranteeing satisfactory performance of contract by Seller—seller defaulted in
delivering goods within stipulated time–Purchaser called upon the bank to
credit the guaranteed amount to its account—Bank refusing to comply contending
that the contract till due to circumstances beyond the seller’s control—Whether
Bank liable to en- cash the guarantee.
Pubali Bank Vs. Bangladesh Agriculture Development corporation; 2BLD
(HCD)I7
Ref: IBLD(AD)230; l978L.I.L. Rep.l66; 1978)Q.B. 159.
Section— 10
Contract—Oral
contract is as valid as written contract—But in the matter of oral contract,
once it is denied by one of the par— tics, a very heavy onus of proof lies on
the other party in proving the contract.
Rezanur Rahman and others Vs. Al-h A hmed Hossain Khan; 6BLD (HCD) 14
Ref: A.i.R.1946(PC)97; AIR. 1957(Cal) 479.
Section—16
Undue influence—Whether
relationship daughter to mother leads to a presumption of undue influence or
control by the daughter upon the mother—Whether in a transaction between the
daughter and the mother the daughter is to discharge the onus of proving the bonafide
of the transaction—rvlere relationship of daughter to mother by itself does
r’-i lead to a presumption of undue influence control by the daughter upon the
mother—I the absence of any pleading of undue in& ence in obtaining the
kabala from the exec tant that the daughter was in active confide of the
mother. Both the Courts below did rcommit any error of law in not considen
these questions—The ground of undue int1u ence in challenging the kabala ought
to ha been pleaded so that the other side was ali to the question and could
meet the same at trial—Evidence Act (I of 1872) S_I.
Noab Chand Vs. Mst.
Hossain Bam others; Noah Chand Vs. Fulinati Bewa others; 6BLD(HCD)l73
Rf. 33 l.A. 86: A.1.R. 1920(P.C.)65
Section—23
Agreement to compromise
a criminal ease whether valid—Compromise of an of— fence which is not
compoundable is against public policy—Such agreement is void—W validity of an
agreement is impeached on r ground that it is opposed to public policy the
party taking the plea must prove the same— party after securing his discharge
in pursuance of a salishnama agreed by both the parties cannot disown the
salishnama—Law does not encourage age a person to take advantage of his o
wrong—The trial Court rightly dismissed t suit—Code of Criminal Procedure (V
1898)s. 345.Md. Joynal and others Vs. Rustani Ali Mia and others; 4BLD (AD) 86
Ref: 21 DLR 918: A.I.R. 1965(SC) l66: 10 Cr1. U. 228; 5DLR 114
and 338: 1968 S.C.M.R, 1313: A.I.R. 1947 (All) 317: A.LR. 1923(AlJ)474; A.I.R.
l950(All)86: 20 C.W.N. 948.
Section—23
Contract—Whether a
contract to transfer the C.D.A. plot in violation of the prohibition of
transfer of such plot in the deed of lease is enforceable—Such a contract is
not void as it is not in contravention of any law.
S.M. Anwar Hossain Vs. Haji Abdul Malek and others: 5BLD (HCD)29O
Ref: 17 DLR(SC)369: PLD 1965(S.C.) 425: 28 D.L.R. 238.
Section—23
Payment of Municipal
Tax—Whether the agreement that such tax for the premises would be payable
by the tenant is void—By mutual agreement payment of municipal tax is payable
either by the tenant or the landlord— Whatsoever is agreed to between the
parties can be a term of the tenancy as no prohibition exists in the matter of
payment of such tax— Premises Rent Control Ordinance (XX of 1963)Ss.9 and 10.
Meherunnessa Khatun Vs. Abdul Lcstif and another; 6BLD(AD)279
Ref: 31 DLR(AD)l55; 38 DLR(AD)I.
Section—25(3)
Time-barred debt—Agreement
to pay such debt—Whether is an enforceable contract—The suit is based on a
promise to pay time barred debt made in writing—It is not only an unconditional
acknowledgment of the debt but also unconditional promise to pay the time
barred debt in writing under the signature of the defendant—There is no
question of its being merely an acknowledgment of the debt as no acknowledgment
of the liability to pay the amount due was made before the expiration of the
period of limitation—Such a promise to pay time barred debt in writing signed
by the debtor is an enforceable contract—Limitation Act(TX of 1908) S. 19.
M/s. Daulat Ltd. Vs. Pubali Bank Ltd; 7BLD (HD)263
Ref: PLD 1968 (Dacca) 260; 33 l.A. 165; 18 DLR 498.
Section—28
Jurisdiction clause—Exclusive
jurisdiction clause in bill of lading ousting jurisdiction of Bangladesh
Court’s is void.
Norway and Asia Lines
Vs. Adamjee Jute Mills Ltd; 1BLD (HD) 152
Ref: 22 DLR(SC)334.
Section—55
Time for specific
performance of contract—Whether time was the essence of the contract.—The
parties by their conduct having extended the time it could not be said that
time was the essence of the contract.
Osnianuddin Vs. 5ubal Chaiidra Mondal and others; 3 BLD (HCD) 226
Section—55
Contract for sale—When
time is the essence of—In a contract for sale of immovable property time is not
generally considered to be essence of the contract, unless the contract itself
by clear and unambiguous terms expressly indicates that time is intended to be
essence of the contract.
Imperial Chemical Industries (Bangladesli) Ltd. Vs. M/s. G.K. Brothers;
4BLD (HCD) 207
Section—55
Specific performance of
contract—When time is the essence of the contract—Where time is intended to
be of the essence of the contract, it is not sufficient to find whether here
was such intention or not, hut it is necessary to find whose unwillingness to
perform his part of the obligation eventually led to the non-performance of the
contract—The plaintiff must succeed if his readiness and willingness to perform
the obligation undertaken by him are proved even if time is made essence of the
contract.
Rain Chandra Das and
others Vs. Md. Khalilur Rahman and another; 5BLD (AD) 41
Ref: AIR. l967(SC)868.Section—56
Doctrine of frustration—Whether
it applies to contract only or to leases also— Whether provision of section
108(e) of the Transfer of Property Act or doctrine of frustration as contained
in section 56 of the Contract Act will apply in case where the entire
structures of the tenancy was destroyed—Where only a material part of the
tenancy is destroyed or otherwise rendered substantially and permanently unfit
for the purpose for which it was let at the option of the tenant the lease will
come to an end—But where the entire subject matter of the tenancy is destroyed
the provision of section 108(e) of Transfer of Property Act will not be
applicable—The doctrine of frustration as embodied in section 56 of the
Contract Act will apply in case of destruction of the entire subject matter of
the tenancy—Transfer of Property Act (IV of 1882) S. lO8(c.
Azizur Rahman and others Vs. Abdus Sakur and others; 4BLD (AD) 287
Ref: 22 DLRI26; AIR. 1968 (SC)1024; A.I.R. 196 l(Cal)70:
A.I.R. I 950(Cal)44 1; 64 C.W.N. 932; PLD l970(SC)185; (1981) 2 W.L.R. 45.
Section—56
Contract for sale
entered into before 25.3.1971—Impossibility of performing such contract on
the property of a party becoming abandoned property—On the coming into force of
P.O. 16 of 1972 the agreement entered into before 25th March, 1971 is binding
upon the Government in the same way as upon the original owner—Government
merely stepped into the shoes of the original owner—Bangladesh Abandoned
Property Order (P.O. 16 of 1972), Articles A and 10.
Imperial Chemical Industries (Bangladesh) Ltd. Vs. M/s. G.K. Brothers;
4BLD (HD)2O7
Ref: 1978 BSCR 260.
Sections—62 and 70
Novation of contract and corn pensation—Assurance to
contractor for enhanced rate of remuneration—Assurance amounted to novation of
contract or caused entitlement to fair compensation—After the contractor’s work
as clearing and forwarding agent was finished and benefit there from was
derived, the defendant T & T Board cannot get away without paying some
remuneration on the basis of -as surance—The case would have been other had the
contractor’s claim been rejected other wise—it is true, some meeting of minds
the parties to a contract is necessary for novation of contract—But consent may
also be-applied by conduct of the parties—In this ca conduct of the defendants
although shows the. they recognised the difficulties the appellant was put into
difficulties because of their o laches—Prolonged dialogues clearly indicate
that the appellants claim for enhancement the rate got same merits—He is
entitled to remuneration on the basis fair and reasonable rate.Baziur
Rahinan Vs. People’s Republic 4’ Bangladesh and others; 10 BLD(AD)66
Ref: AIR. l938(PC)67.
Section—70
Compensation for
non-gratuitous acts done for others who derived benefit— Whether payable to
an auction purchaser ho under order of the Court allowed a Company under
liquidation to use his go down after auction purchase—Since the Company h
derived benefit from the storage of the bonded articles in the go down of the
responder justice demands that the respondent should be I indemnified by way of
compensation for the use and occupation of the go down of the auction purcahser
by the Company in liquidation.
Tofazzal Ali, former C. airmaii of Roxana Industries Ltd. (In
liquidation) Vs. Johurul Huq Khan, Official Liquidation: and M/s. Md. Idris and
Co. Ltd. Vs. Official liquidator, Roxana Industries Ltd: (In liquidation) and
others; 4 BLD(HCD) 196
Section—70
Novation of contract—A
contract with the Government must be in writing. A contract or modification of
the terms of contract or novation of contract can only be made on behalf of the
Government by the person duly authorised by the Government to enter into the
contract or to make modification of the terms of thecontract or to make
novation of the contract the Government—a contract entered into an unauthorised
person is not binding upon the Government—An oral agreement is not enforceable
against the Government.
The Chairman. B. T & T. Board and
others Vs. Bazlur Rahman and another; 6BLD HCD)336
.R.1925(PC)232;1.L.R.62(Cal)17:
A.1.R I 938(P.C.)67.
Section—73
Breach of contract—Damages—All
sorts of damages are not entertainable—In assessing damages only the
circumstances resulting from the breach of contract are to he taken into
consideration.
Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. &
others; and Delta international Traders Ltd. Vs. M. V. Kuan Hal renamed M. V.
Al-Sayer; 2 BLD(AD)69
Ref: (l933)AC. 449.
Section—73
Shipping Law—Delay
in carriage—Remoteness of damage—Loss of profit—Loss of profit recoverable as
damages for breach of lie contract of carriage by deviation involving
delay—Loss of market will be found to be within the contemplation of the
parties in car— ‘age of goods by sea—When ship was incapable of performing the
voyage within the pulated period due to any fault in the ship, the carrier must
face the consequence—Carriers ‘here apprised of the salt crisis and urgency mediate shipment—Carrier must be saddled with
liability.
Al-Sayer Navigation Co. Vs. Delta Internationl Traders Ltd. & others;
and Delta international Traders Ltd. Vs. M. V. Kuan Hai renamed M.D. Al-Sayer;
2BLD(AD)69
Ref: L.R. Vol. 11. 118; Heron II, (1967) 3 H.E.R. 686: (1902)2
K.B. 614; (1854)9 Ex. 3l: 1924 F. 2 d. 384; 1929—32 F. 2d 929; i)39 I All. E.R.
I: All E.R. Rep 1900—03 P. I S I.
Section—73
Breach of
contract—Relief’s available— When a contract is broken it gives rise to two
reliefs namely, compensation or specific performance —Where the contract cannot
be specifically enforced the relief available is compensation—Specific Relief
Act (I of 1872). S. 21
Burinah Eastern Ltd. Vs. MIs. Hazi Mohainmd Ali and others; and Idris
Alani Vs. MIS. Haji Mohammad Ali and others; 5BLD(HCI))159
Ref: I 3DLR(SC)228:P.L.D. 196 l(SC)53 1; PLD 195 8( WP)63: 1
7DLR(SC) II PU) I 965( S C) 83: AJ.R.l944(Oudh)l39: PLI)l964(SC) 106:
35DLR(AD)127; 14DLR307: I6DLR (SC)l98.
Revocable Contract
A revocable contract, or for that matter, a license which is
by nature revocable, cannot be specifically enforced under the law and under
the law for a contract which cannot he specifically enforced, no injunction
could be allowed.
Ministry of communication,
Railway Division, Government of the People’s Republic of Bangladesh and others
Vs. Md. Firozur Rahmnan and others; 12BLD (HCD)267
Ref: AIR. l950(East Punjab)40: 17 DLR (SC) II.
Section—76
Realization of debt or
pawn—For the realisation of payment of any debt or pawn from the defaulter
pawner, there is no bar in the institution of a proper suit by the pawner and
at the same time to retain the pledged goods, if any, in his custody as’
collateral security—The two reliefs, though concurrent, are yet alternative and
both cannot he resorted to at a time.
Mere institution of a suit by the pawner for of realisation of
his debt money against the pawner cannot destroy the other alternative remedy
for the plaintiff-pawner to sell the pledged goods with reasonable notice to
the pawner defendants with the leave of the Court.M/s. Bengal Metro Engineering Co.
& others Vs. Agrani Bank; 12 BLD(HCD)484
Ref: 27DLR523: AIR. 1963(Cal) 132.
Section—126
Bank guarantee—Bank
under-taking to pay on the failure of performance of contract— No temporary
injunction restraining the enforcement of the guarantee—Code of Civil Procedure
(V of 1908) Or. 39 R.1
Uttara Bank Vs. Macneil! & Kilburn Ltd. and others; 1BLD(AD)230
Ref: (I 978)2L.I.L.Rep 166; (1978)1 L.I.L. Rep. l61:( I 975)A.C.396;
A.I.R. 1970 (SC)89 I.
Section—128
Guarantor’s liability
as regards repayment of loan—The guarantor is not only responsible for
repayment of the loan, his liability to repay need not even be postponed till
the principal debtor fails to repay the loan—The choice lies with the creditor.
M/s. M.M. Ispahani Ltd. Vs. Sonali Bank and others; 4 BLD(AD)242
Ref:AIR. I 969(SC)297;A.I.R. I 939(PC)J I
Section—141
Repayment of loan—Denying
the liability on the ground that the security has been taken away—When a person
contracts a loan from a banking institution by offering valuable security but
retaining its possession with itself, if cannot possibly lie in its mouth to
deny the liability on the ground that the security has been lost or it had
parted with its possession under compulsion—For such loss or taking away of the
security persons or bodies who are responsible for it may be liable but such a
plea is not sufficient to absolve the person or its obligation to repay the
loan.
M/s. M.M. Ispahani Ltd. Vs. Sonali Bank and others; 4BLD (AD) 242
Sections—151 and 161
Liability of the Port
Authority to pay compensation for non-delivery of goods— When the Shipping
Company had delivered the goods the Port Authority must be deemed to be the
agent for the consignee—The liability of the Port Authority is that of a
bailee—They
would be liable in the absence of proof that they took as much
care of the goods as a man of ordinary prudence would in similar circumstances
take—A suit based on non-delivery is really based on a breach of the duty—The
Chittagong Port Act (V of 1914), Ss. 50, 50A and 63.
The Chittagong Port Authority Vs. Md. Ishaque and others: 3BLD(AD)338
Ref AiR, 1959 (Mad) 367; A.LR.1928 (Lah) 774; 1895A.C.632;
(1911)2 K.B.(C.A.) 29 1; ( 19 19)1KB .(C.A.)443.
Sections—151, 152 and
161
Onus of proof—Bailee’s
onus under the Chittagong Port Ordinance—It is well settled that onus is on
the bailee to show that missing, loss etc. happened because of factors beyond
the control of the Bailee—The statutory bailee having failed to take proper
measure for protection of the goods cannot avoid Iiability for the loss—Here it
is not the case that the consignee having failed to clear the goods after
notice the Port Authority is absolved of the liability—It is a clear case of non-delivery—
Chittagong Port Act (V of 1914). s. 50A.
The Trustees of the Port of’ Chittagong Vs. Khandkar
Mahbub Hossain and others; 5BLD(HD)1 15
Ref: AiR. 1957 Myssore 55: 17 DLR 582; 35 DLR(AD)364.
Section—230
Loss of goods—Loss
of goods while in possession of agent of the carrier after off- loading—Both
the carrier and its agcnt are liable.
Bangladesh Biman Vs. Roxana Tradersand others; and Air India
International Vs. Roxaita Traders and others; 1BLD(HCD) 352
Ref: I9DLR 75; 21 DLR(SC)245.
Section—230
Liability of agent—Liability
for acts done on behalf of disclosed principals—The agent cannot personaly be
liable for the work done by him on behalf of his principal in the absence of a
contract that the agent would be liable—Defendant Nos. 2, 3 and 4 being agentsof
disclosed principals they are not liable to answer the claims arising out of
wrong done by their principals.
Bangladesh Chemical Industries Corporation and another Vs. M. V. Kayo
Alkyon and others; 7BLD (HCD) 1
Ref: 8 DLR 349.
Contract Act
Specific performance of contract, suit for whether the
plaintiffs are to prove the contract by cogent and re1iable
evidence—interference by Court. when may be called for?
To establish any claim in a suit for specific performance of
contract on the basis of oral agreement, the plaintiffs are to prove the
contract by cogent and reliable evidence to avoid false and got up claims.
Interference by the revisional Courts may be called for, if
the judgment of the Court of appeal below is found to he not based on due consideration
of evidence on record and is the product of surmises and conjectures.
Md. Jonab All Vs. Md. Moslernuddin and another; 11BLD (HCD) 516
Ref: PLD l962(Baghdad-ul-Jadid)17; 42 DLR(AD)225:
3ODLR(SC)244; 29DLR(SC) 268; 2D.L.R.(PC)83.
Section—170
Bailee’s Lien—Question
of bailee’s right to retain goods and have order of attachment— The plaintiff
(bailee) could have exercised the right of lien under the Contract Act if he
had possession over the scheduled materials—The High Court Division’s findings
that the Bank had been in possession of the attached goods will preclude him
from relying on the cited decisions in support of his claim to retain the
scheduled properties as a bailee—His application for attachment itself
indicates that he was not in possession of the goods—Had he been in possession.
he would have asked for an order of injunction, and not for attachment—Code of
Civil Procedure (V of 1908) Or. 38 Rules 5 and 8.
Mohaminad Meah Vs. Pubali Bank and others; 9 BLD(AD) 57.
Ref: 28DLR(AD)43; (1915)lCh.D.621; A.l.R. I 926(C)464(
1946)2All.E.R. I 54:( 1963) 3 All. ER. 213.
Section—176
Bailee’s pica of equity
and pawnee’s right—Whether the Court could uphold the order of attachment
in favour of the bailee as otherwise he will be left without any remedy- In
this case equity is not in favour of the plaintiff (bai lee )—From the facts
and circumstances of the case it is to be held that plaintiff knew about the
defendant’s transaction that the vessel with all its materials was pledged with
the Bank—Under the Contract Act and the terms of transaction the Bank is free
to follow any of the ways legally available for realisation of its dues and the
plea that the Bank ought to have proceeded against other securities has got no
substance—The Court will refrain from making any officious direction to follow
a particular secuirty.
Mohaininad Meah Vs. Pubali Bank and others; 9BLD (AD)57.