Contract
Act, 1872 (IX of 1872)
Section —2(h)
A
contract is the creation of an agreement between the parties. Where the parties
under the terms and conditions of the contract agree to incorporate an
arbitration clause, that clause stands apart from the rights and obligations
under the contract, since it was incorporated as a machinery for the settlement
of any dispute that may arise out of or in relation to or consequent to or
concerning the contract.
Bangladesh Jute
Mills Corporation Vs. Maico Jute and Bag Corp. and Ors. 10BLT (HCD)223
Section-23
(a) The
plaintiff stated in the plaint that the two kabalas executed and registered in
favour of defendant No. 1 were illegal and void as no consideration passed— the
impugned kabalas were executed during the pendency of a non- compoundable
criminal offence—High Court Division observe. In the absence of an evidence of
force, coercion or intimidation, the provisions of section 23 of the Contract
Act cannot be attracted in a case—Held This approach of the learned Single
Judge is not correct, because if for withdrawing and compromising a
non-compoundable case an agreement is entered into between the parties then the
same is against public policy and the bar of section 23 of the Contract Act is
attracted.
Moti Mia Vs. Ayesha
Khatun & Anr. 4BLT (AD)-6
(b) The
criminal proceeding was pending while kabalas executed and registered — the
kabalas are not hit by section 23 of the Contract Act as the plaintiff failed
to make out a specific case on the pleadings and on the evidence on record that
the kabalas were executed in pursuance of an agreement to compromise a non-com-poundable offence.
Moti Mia Vs. Ayesha
Khatun & Anr. 4BLT (AD)-6
Section-23
The suit
land being the property of the Government the Railway Administration could not
make any contract with respect to the same as this will plainly offend Section
23 of the Contract Act.
Bangladesh Railway
& Ors. Vs. P. K, Chakraborty 5BLT (AD)-153
Section-28
Section
28 of the Contract Act makes void only those agreements which absolutely
restrict a party to a contract from enforcing the rights under that contract in
ordinary tribunals. But this section has no application when a party agrees not
to restrict his right of enforcing his rights in the ordinary tribunals but
only agrees to a selection of one of those ordinary tribunals in which
ordinarily a suit would be tried.
Bangladesh Air
Service (Pvt) Ltd. Vs. British Airways PLC. 5BLT (AD)-242
Section-31
Plaintiff
tenants under defendant No. 1 landlord having paid two installments one of
three installments as advance as per a tenancy agreement for shop rooms of a
multi-storied building under construction and tender of 3rd installment being
disputed, the plaintiff instituted the suit seeking various reliefs. 50% of the
advance being paid the landlord cannot do injustice to the existing tenant
contract for construction though contingent the suit decreed justifiably.
Since
the plaintiffs were the existing tenants having payment of regular rents and
since 50% of the advance was paid in due time as per agreement, equity demands
that the landlord-defendant No. 1 cannot do injustice to his existing tenants
who were craning their livelihood from respective shops. Though the contract
for construction was a contingent and this plaintiffs suit was rightfully
decreed specially when the multi- storied building was factually completed.
Shamsuddin Ahmed Vs.
S. M. Harun-Or-Rashid 1BLT(AD)-48
Section—46
On
perusal of the materials on record as well as from the reading of the judgment
of the High Court Division it is seen that because of the conduct of the
petitioner and that of other agencies of the Government and that non-disclosure
of the amount as claimed by the Agrani Bank against the enterprise the contract
to sell the enterprise to the petitioner ultimately could not be materialized.
It is also seen from the materials on record there was no latches or lapses on
the part of the Respondent No.1 in the materialization of the contract but
because of the default of the petitioner and other Government agencies in
several respects the contract ultimately did not reach finality. Since there
was no latches on the part of the Respondent No. I in the materialization of
the contract as such High Court Division has committed no error in making the
direction for the payment of Tk. 4,00,02,499.75 upon making declaration that
the contract contained in the letter of intent dated 11th February, 1999 with
the respondent No.1 issued by the petitioner has been breached.
Privatization Board
Vs. A.K. Faziul Huq & Anr. 10 BLT (AD)95
Section-67
In an
agreement for sale of land, the land, price and promisee are all integral parts
of the contract besides the time. When the land sold and the price at which the
land was sold as quoted in the sale deed do not represent the land and price as
agreed in the agreement, such deeds cannot be accepted in law as executed as
part performance of the contract. In the circumstances, only possible
conclusion could be arrived at that the parties made transactions, if any,
independent of the contract on the basis of agreement, deed to deed. Therefore,
both the parties must he held to have neglected the contract.
Saroj Kanta Sarker
& Ors. Vs. Seraj-ud-Dowla & Ors 12 BLT (HCD)-28
Section-70
It must
be remembered where a claim for compensation is made by one person against
another under section 70, it is not on the basis of any subsisting contract
between the parties, rather it is on the basis of the fact that something was
done by the party for another and the said work so done has been voluntarily
accepted by the other party. Reason is not far away to see, section 70 prevents
unjust enrichment and the principle applies as much to an individual as to
corporations and the Government.
A.K.M Shahidul Haque
Vs. Deputy Commissioner& Ors 12 BLT (HCD) 236
Section- 73
In the
absence of any evidence for breach of contract, the claim of. the plaintiffs
for compensation or damages under section 73 of the Contract Act would also
fail
Eastern Bank &
Anr. Vs Sufia Re-Rolling Mills & Ors. 13 BLT (HCD)221
Section-73
Section-
73 provides for compensation for loss or damage caused by breach of contract.
It provides further that such compensation is not to be given for any remote
and indirect loss or damage sustained by reason of the breach.
Sonali Bank Vs. M/s,
Karnaphuli Works Ltd. 2BLT(AD)-78
In
consideration of both Section-6 1(2) of sale of goods Act and Section-73 of
contract, it is held that the principal sum due to the plaintiff having been a
definite one and payable within a definite time as provided in the agreement,
the order for its payment along with interest thereon is quite lawful.
Sonali Bank Vs. M/s
Karnaphuli Works Ltd. BLT(AD)-78
Section- 133
Liability of guarantor arises only when one is
proved to be guarantor.
Moqbul Brothers and
Another Vs. Rupali Bank & Ors. 8BLT (HCD)-14
Section – 172
In case
of pledge, goods are kept in the godown under lock and key of the bank under
its direct. supervision and the goods are undoubtedly. in the possession,
physical and otherwise, of the bank and removal, or addition of the stock are
not permissible without permission of the bank. The position with regard to
hypothecation is different because the goods are not under lock and key of the
bank but are allowed to be kept at the factory or the premises of the borrower
without any lock and key of the bank as such. Such possession is no doubt
constructive possession of the bank by – virtue of the contract of
hypothecation. which obliges the borrower to submit a regular return to the
bank showing the increase and. I or decrease of said goods to enable the bank
from time to time to verify the drawing of the borrower. In hypothecation, the
borrower has got actual physical possession of the goods as an agent, as it
were, of the bank.
Eastern Bank &
Anr. Vs Sufia Re-Rolling Mills & Ors. 13 BLT (HCD)221