Contract
Act, 1872
(IX OF 1872)
Sections—3
and 4
The
tender floated by the House Building Finance Corporation for the sale of a
mortgaged property has to be accepted for the purpose of concluding a contract.
The alleged information by a nominated officer cannot be a proper communication
of acceptance by the Corporation. The tenderer acquired no vested right on the
property merely because his tender for that property had not been rejected and
his earnest money had not been refunded by the Corporation. As there was no
definite communication of acceptance of tender by the Corporation no vested
right was acquired by the plaintiff.
Sahana
Chowdhury (widow) and others Vs Md Ibrahim Khan and another, 21 BLD (AD) 79.
Section—7
An
acceptance must be expressed in some usual and reasonable manner, unless the
proposal prescribes a particular manner in which it is to be accepted.
Acceptance means, in general, communicated acceptance. In the instant case the
manner of acceptance has been clearly indicated by the plaintiffs in Exhibit-8
signifying offer. [Per A.T.M. Afzal, C.J; (Majority)]
Bangladesh
Muktijoddah Kalyan Trust, represented by the Managing Director Vs Kamal Trading
Agency and others, 18 BLD(AD)99
Section—16
Defendant
No. 1 was undoubtedly in a dominant position on account of his high official
position and close association with the Martial Law Authority at the relevant
time and the plaintiff had a helpless role to play in the face of pressure from
the Martial Law Authority. The bargain obtained by defendant No. 1 in the
compromise petition was clearly unconscionable because the plaintiff had to
give up his rightful claim in the contractual land. The burden of proof that
the compromise was not attained by undue influence, therefore, lay squarely
upon defendant No.1 which he has miserably failed to discharge.
Abul Hossain
Vs Farooq Sobhan and others, 19 BLD(AD)291
Ref:
51 md. App. 101(AIR 1924 PC 60); AIR 1963 SC 1279; AIR 1967 SC 878 and PLD 1956
Dhaka 153—Cited.
Section—24
An
agreement which is void ab-initio cannot be validated by ratification. Au
agreement for sale of the suit land not being enforceable against a minor it
cannot been forced against the promisor as well for lack of mutuality. The
submission that a contract entered into with a minor is not always void and a
minor can ask for its enforcement if it is for his benefit is not applicable to
the facts of the present case.
Md. Julhash
Mollah and another Vs. Ramani Kanta Malo and another, 14 BLD (AD) 263
Ref:
1. L.R. 39 (Cal) 232(PC); 11 DLR 185; AIR 1960 (Cal) 65; 1. L.R. 40 (Mad) 308
(F. B)—Cited.
Section—28
Foreign
Arbitration Clause is an integral part of International Trade and Commerce
Section
28 makes void to that extent every agreement by which any party thereto is
restricted absolutely from enforcing his rights under or in respect of any
contract by the usual legal proceedings in ordinary tribunals but Exception 1
to section 28 provides that section 28 shall not render illegal a contract if
disputes are referred to arbitration, that is, for determination by a person or
persons other than a Court of competent jurisdiction. Exception 1 itself
relaxes the rigours of section 28. The plea of sovereignty and interest of the
country and its. citizens, if accepted, will render foreign arbitral
jurisdiction absolutely nugatory. Such a consequence will itself be op. posed
to public policy, for no country lives in an isolated island these days.
Foreign arbitration clause is an integral part of international trade and
commerce today. [Per Mustafa Kamal,J]
Bangladesh
Air Service (Pv.) Ltd. Vs. British Airways PLC, J7BLD(AD)249
Section—28,
Exception 1
There
is nothing in Exception 1 to section 28 of the Contract Act that prohibits the
parties to a contract from choosing a foreign forum under the supervision of a
foreign Court for arbitrating their disputes. Such contract does not offend the
main provision of section 28 of the Act because the local Courts still retain
the jurisdiction to decide the us between the parties. [Per Mustafa kamal, J.]
Bangladesh
Air Service (Pv.) Ltd. Vs. British Airways PLC, 17 BLD (AD) 249.
Section—28,
Exception 1
Section
28 of the Contract Act deals with making those contracts void which restrict
the right of a contracting party from taking legal actions in the ordinary
tribunals through usual process of law. Exception (1) to Section 28 of the
Contract Act, however, enacts a saving clause in favour of the contracts to
refer to arbitration any dispute that may arise between the parties. Hence
arbitration clause is protected by Exception (1) to Section 28 of the Contract
Act. [Per Latifur Rahman, J.]
Bangladesh
Air Service (Pv.) Ltd. Vs. British Airways PLC, 17 BLD (AD) 249.
Sections—42
and 45
The
suit was filed during the life time of all the partners of the firm, but
defendant- respondent Nos. 2 to 4 and 6 died during the pendency of the suit.
Provisions of sections 42 and 45 of the Act clearly indicate that when a person
or two or more persons made a joint promise to two or more persons they are
jointly liable for the performance of the same and the right to claim
performance of the same rests as between him and them during their life time
and if any of them died their representative must be brought on record to
enable them to perform the contract. But in the instant case admittedly
defendant Nos. 2 to 4 and 6, partners of firm, died during pendency of the suit
before the trial court and no step was taken for their substitution in the
suit. Therefore, the suit must fail as it cannot be proceed against dead
persons.
Pubali Bank
Ltd Vs M/s. Sultana Oil Mills and Soap Factory and others, 19 BLD (HCD) 249
Section—56
The Doctrine
of Frustration of a Contract
To
attract the doctrine of the frustration of a contract the performance of the
contract must become impossible due to the happening of certain events. Where
inspite of the intervention of events subsequent to the making of the
agreement, which were not in the contemplation of the parties and which could not
be foreseen with reasonable diligence, the contract could still be performed in
substance, then it cannot be said that the contract has become impossible of
performance within the meaning of section 56 of the Act.
Md. Mokbul
Hossain Khondker Vs. Mosammat Jaheda Khatoon, 14 BLD (HCD) 549.
Section—56
Doctrine of
Frustration
Doctrine
of frustration as embodied in Section 56 of the Contract Act is applicable to
leases of immovable property. The plea of frustration of the contract of lease
having not specifically taken in the written statement and the defence being
one of denial of the plaintiff’s title, then one of permissive possession, then
extinction of permissive possession by fire and thereafter possession of
structures in his own right and title and the defendant successfully resisting
the plaintiff’s attempt for taking the suit out of the S.C.C. Court for trial
as a regular suit, the defendant’s plea for a regular suit for declaration of
title and recovery of possession cannot be entertained as it will tantamount to
putting a premium on the defendants desperate and contradictory stands.
Md. Mokbul
Hossain Khandker Vs. Mst. Jaheda Khatun, 15 BLD (AD) 185.
Ref:
Azizur Rahman Vs. Abdus Sakur, 36 DLR (AD) 195; National Carriers Ltd. Vs.
Panalpina (1981) 2 W.L.R. 45; Golam Rahman V Mrsimratunnessa,22 DLR 1 26—Cited.
Section—70
The
plaintiff had no right and interest whatsoever in the bridges in question for
claiming free collection of tolls on the expiry of the grace period on 9.6.99.
The filing of the suit on 7.7.99 based on a non-existing right is
ill-conceived, aimed at prolonging enjoyment of the said bridges under the
cover of litigations for making illegal gains. It is evident from the admission
of the PW 1 that the plaintiff defaulted in payment of the scheduled
installments when trial Court found that at least two installments for the
lease money had remained unpaid along with other dues of a huge amount money
which is clear violation of the clauses of the lease agreement. Since the
plaintiff continued to enjoy the privilege of collecting of tolls even after
9.6.99, defendant No. 1 committed no illegality in claiming government dues
from the plaintiff by the impugned notice.
In
a democratic society the government functionaries are under constitutional and
moral obligations to mete out equal treatment to all citizens irrespective of
social standing and political affiliations. Granting of revenue holiday to the
plaintiff involving crore of taka without any justifiable reason is a classic
example of wanton discrimination and miss use of discretion in managing the
affairs of the State. The public
functionaries must be cautious in doling out charities by way of grant.
ing revenue holiday to individuals or establishments against public interest.
M/s. ST
International Vs Executive Engineer, Roads and High Ways, Road Division &
ors., 21 BLD (HCD) 395.
Section—73
When
there are materials for ascertaining damages the trial Court illegally refused
to award damages in terms of the agreement for selling medicine and earn
profit.
Islami Bank
Bangladesh Ltd. Vs. Messes Shohag Medicine Supply and ors., 21 BLD (HCD) 1.
Ref:
Amin Jute Mills Ltd. Vs. Arag Ltd, 28 DLR (AD)76—cited.
Section—128
Guarantor’s
or Surety’s liability
The
liability of the principal debtor is co extensive with that of the guarantor. A
creditor is at liberty to pursue either the principal debtor or the guarantor
according to his sweet will for realisation of his dues or he can proceed
against both of them simultaneously.
Sonali Bank
Vs. Mr. Hare Krishna Das and other, 16 BLD (HCD) 159.
Sections—151,
152 and 161
Code of
Civil Procedure, Order 7 Rule 11
Essential
facts constituting cause of action for the plaintiff must be mentioned in the
plaint. The absence of such statement of facts in the plant will mean the
plaint did not disclose any specific cause of action. Non disclosure of a
specific cause of action is a good ground for rejecting the plaint.
Md. Ayub Vs.
Sonali Bank & ors.,14 BLD (HCD) 236
Section—171
The
money deposited with bank is not in the nature of any goods bailed to the bank
and as such cannot be retained by the bank for the simple reason that by the
said deposit a relationship of debtor and creditor is established between the
bank and its customer and the bank can use the money in any manner it likes as
the ownership in such deposit vests with the bank and there is no question of
exercising lien on the money over, which the bank has absolute right of
ownership and possession.
Rupali Bank
Vs. Haji Ahmed Sabur and another, 13 BLD (HCD) 35.
Sections—176
and 177
In
view of the provisions of section 176 and 177 of the Act it appears that where
the Pawnee is not in possession of the property pledged to him as security for
the payment of the loan nor did he prove that it had been damaged or destroyed
at the risk of the defendant (Pawnee), the Pawnee is not entitled to recover
the debt because the pawnor had the right conferred by section 177 to redeem
his property at any time before the actual sale prior to filing of the suit.
Pubali Bank
Ltd Vs MIs. Sultana Oil Mills and Soap Factory and others, 19 BLD (HCD)249
Section—201
Termination
of Agency-Power of Attorney
The
settled law is that on the demise of either parties to a power of attorney the
relationship between the principal and the attorney ceases in terms of section
201 of the Contract Act. Defendant No. 8 represented defendant Nos. 1-7 both
for the purpose of the suit land and for execution of the Kabala as their
attorney. On the death of defendant No. 8 nothing devolved upon his heirs and
as such there was no necessity for impleading his heirs in the execution case.
Md. Abdur
Rahman Vs Md. lqbal Ahmed and others, 17 BLD (AD) 175
Section—217
An
agent is paid by his principal only, to whom he owes his contractual duty. An
agent will be in a situation of conflict of interest and dishonesty, and it
will tantamount to an underhand dealing, if he receives any remuneration from a
third party, unless it is stipulated between the principal and other party that
the responsibility of making payment of commission to the agent shall lie on
the other party.
S.M. Faziul
Haque v. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
Ref:
Anglo African Merchants Ltd. v. Bayley (1970) 1 QB 311; Cook v. Deeks (1916) 1
AC 554
Section—226
An
agent is not himself a party to any contract entered into by his principal
through him with the third party if he posed as a disclosed, agent. As such no
question of his liability to such third party for any breach can arise, and the
only person who can be sued is the principal. There are a few exceptions where
an agent can be liable.
S.M. Faziul
Haque v. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
Ref:
Montgomerie v. United Kingdom Mutual SS Association (1891) 1 QB 370; Pacquin v.
Beanclerk (1906) AC 148; Elbinger AG Fur Fabrication von Eisonbahn Material v.
Clay (1873) LR, 8 QB 313; Teheran Euro Ltd. v. S.T. Bolton Tractor Ltd. (1986)
2 All ER 886.