Section-23

(a) The plaintiff stated in the plaint that the two kabalas executed and registered in favour of defendant No. 1 were file- gal 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 any 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. [Para- 10]

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-compoundable offence. (Para- 151 Mod 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. [Para- 12]

Bangladesh Railway & Ors. Vs. P. K. Chakraborty 5 BLT (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. [Para-53]

Bangladesh Air Service (Put.) Ltd. Vs. British Airways PLC. 5 BLT (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. [Paras- 5 & 6]

Shamsuddin Ahmed Vs. S. M. Harun-Or-Rashid 1 BLT (AD)-48

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. [Para- 12]

Sonali Bank Vs. M/S Kamaphuli Works Ltd. 2BLT (AD)-78

In consideration of both Section-61(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. [Para- 13]

Sonali Bank Vs. M/S Kamaphuli Works Ltd. 2 BLT (AD)-78

 

Contract Act,
1872

[IX of 1872]

 

Section 2(c)–

When the
land sold and the price quoted in the sale deed do not represent the land and
price as agreed in the agreement, the deed cannot be accepted in law as
executed as part performance of the contract.

Saroj Kanta
Sarker and others vs Seraj–ud–Dowla 56 DLR 39

 

Section 2(h)–

Earnest
money to bind a contract must follow and not precede the same. If there is no
meeting of minds of the parties, consensus ad idem, there cannot be any
question of earnest money.

Bangladesh
Moktijoddah Kalyan Trust represented by the Managing Director vs Kamal Trading
Agency and others 50 DLR (AD) 171.

 

Section 10–

Alteration
in an agreement does not necessarily amount to forgery–if an alteration changes
the character of a document and alters the rights, liabilities and legal
position of the parties in that case only it can be said that such an
alteration is a material alteration which amounts to forgery and for such
forgery the document may be treated as void.

Mohiuddin Ahmed
vs Lutfur Rahman 44 DLR 48.

 

Section 10–

A stranger
to a contract cannot sue the other party. Terms of the contract can be enforced
only by the contracting parties and not by third party.

Trang Jee
and Cold Storage Company Limited vs Amin Fish Farm 46 DLR 39.

 

Section 10–

Since it is
a sale through tender notice, the contract for sale cannot be a concluded one
unless and until all the terms and conditions of the tender notice are
fulfilled.

United
Commercial Bank Ltd vs Rahimafrooz Batteries Ltd and others 52 DLR 625.

 

Section 23–

Admittedly
the Government was not a party to the alleged contract and, as such, the same
could not be enforced against the Government whether it came to contest the
suit or not.

Bangladesh
Railway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

 

Section 23–

The suit
land being the property of the Government the Railway Administration could not
make any contract with respect to the same.

Bangladesh
Railway and others vs Pranab Kumur Chakraborty and others 50 DLR (AD) 150.

 

Section 23–

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 and another 48 DLR (AD) 64.

 

Section 23–

By an
oblique and indirect reference the object of the agreement cannot be brought
within the mischief of section 23 of the Contract Act.

Moti Mia vs
Ayesha Khatun and another 48 DLR (AD) 64.

 

Section 23–

If
consideration is for compromising a non–compoundable offence then it is hit by
section 23 of the Contract Act as opposed to public policy.

Moti Mia vs
Ayesha Khatun and another 48 DLR (AD) 64.

 

Section 23–

Contract
entered into between estranged husband and wife giving the visiting right to
the plaintiff–husband by sending their minor son to him is, by no stretch of
imagination, void.

Irfan Sayed
(Md) vs Mrs Rukshana Matin and others 48 DLR (AD) 134.

 

Section 24–

Minor’s
contract– want of mutuality– An agreement which is void ab initio cannot be
validated by ratification.

Julhash
Mollah (Md) and another vs Ramani Kanta Malo and another 47 DLR (AD) 35.

 

Section 25(3)–

An
unconditional promise in writing and signed by the party to pay on demand a
time–barred debt though not a fresh transaction comes under Article 49 of
Schedule 1 of the Stamp Act and hence will require requisite stamp.

Daulat Ltd
vs Pubali Bank 39 DLR 243.

 

Section 25(3)–

An
unconditional promise to pay a time–barred debt in writing duly signed does not
come under section 19 of Limitation Act, it being not made before the
expiration of the period of limitation–It directly comes under section 25(3) of
the Contract Act.

Daulat Ltd
vs Pubali Bank 39 DLR 243.

 

Section 25(3)–

All that
section 25(3) does is the knitting of an independent contractual nexus between
the time barred creditor and the debtor as a corollary of which a fresh and
independent, not a re–charged, limitation period makes a maiden debut alongside
the new contract.

Agrani Bank
vs MA Kahhar 55 DLR 285

 

Section 25(3)–

Promise
connotes accepted offer–When sub–section (3) speaks of a “promise,”
it necessarily connotes an accepted offer, not a strayed promise.

Agrani Bank
vs MA Kahhar 55 DLR 285

 

Section 28–

It is quite
clear that cause of action to recover the loss finally accrues only when the
arbitrator, arbitrators or umpire have finally settled the award as to the
quantum of loss or damage, but not before that. This principle of common law
has now found statutory recognition in section 28 of the Contract Act. So,
condition No. 18 of the policies has the full backing of explanation (1) of
section 28 of the Contract Act. It would be a clear violation of the law of
contract and terms and conditions of the policy to saddle the insurers with the
liability to pay the loss though they never acknowledged the liability and had
a right to postpone a decision on liability until arbitrator had fixed the
amount of loss or damage.

Daulatpur
Traders & Co Ltd vs Eastern Federal Union Insurance Co Ltd 42 DLR 125.

 

Section 28–

Limitation–Waiver–Special
period of limitation referred to in insurance policy agreement will not be hit
by section 28 of the Contract Act inasmuch as this limitation was created by
consent of parties and that will amount to waiver of the right given under
Limitation Act.

Sadharan
Bima Corporation vs Sanjib Kumar Das 46 DLR 566.

 

Section 28–

Forfeiture
of insurance claim– ­The arbitration agreement contained in the insurance
policy in question provided that if a claim be made and rejected and an action
be not commenced within 3 months after such rejection all benefits under the
policy shall be forfeited. The Insurance company having informed the plaintiff
that their claims under the policy were not payable and as such rejected the
same as per condition No.13 of the policy and the plaintiff having not
commenced any action within 3 months, have forfeited all their rights under the
policy.

Sadharan
Bima Corporation vs Dhaka Dyeing and Manufacturing Co. Ltd 43 DLR 286.

 

Section 28–

Under
section 28 of the Contract Act, save as otherwise provided in the contract
in0self, the liability of the surety is co­extensive with that of the principal
debtor. In fact, the liability of the guarantor of surety is immediate and this
need not be deferred until creditor exhausts his remedies against the principal
debtor.

IFIC Bank
Ltd vs Chittagong Steel Mills Limited and another 55 DLR 417

 

Section 28 Exception I –

There is
nothing in Exception 1 to section 28 of the Contract Act prohibiting the
parties to a contract from choosing a foreign forum under the supervision of a
foreign court for arbitrating its disputes. Such contract does not offend the
main provision of section 28, because the local Courts still retain the
jurisdiction to decide the /is between the parties.

Bangladesh
Air Service (Pvt) Ltd vs British Airways BLC 49 DLR (AD) 187.

 

Section 28 Exception I–

The plea of
sovereignty and interest of the country and its citizens, if accepted, will
render foreign arbitral jurisdiction absolutely nugatory.

Bangladesh
Air Service (Pvt) Ltd vs British Airways BLC 49 DLR (AD) 187.

 

Section 30–

Speculative
damage can be treated as remote damage for which a court cannot pass any
decree.

Trang Ice
and Cold Storage Company Ltd vs Amin Fish Farm 46 DLR 39

 

Sections 42 & 45–

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 rests as between him and them during their lifetime and if any of
them died their representative must be brought on record to enable them to
perform the contract. Admittedly defendant Nos. 2 to 4 and 6, partners of firm,
died during pendency of the suit and no step was taken for their substitution.
Therefore, the suit must fail as it cannot proceed against dead persons.

Pubali Bank
Ltd vs Sultana Oil Mills and Soap Factory and others 51 DLR 323

 

Section 46–

Since there
was no laches on the part of the respondent in the materialisation of the
contract the Court has committed no error in making the direction for the
payment upon making declaration that the contract contained in the letter of
intent with the respondent issued by the petitioner has been breached.

Privatisation
Board vs AK Fazlul Huq 55 DLR (AD) 11

 

Section 55–

Where in a
deed of agreement no time is mentioned for registration of sale deed and the
plaintiff is already put in possession of the suit land in pursuance of the
agreement duly executed by the defendant upon receipt of the bulk of the
consideration money, time is not an essence of the contract. It is true that a
contract implies two parties, but a contract, in writing in this country does
not necessarily imply that the document must be signed by both the parties
thereto.

Abdul Samad
Gazi vs Abdul Khalil Gazi and others 53 DLR 262

 

Section 56–

To attract
the doctrine of frustration of contract the performance of the contract must
become absolutely impossible due to the happening of some unforeseen event.

Mokbul
Hossain Khondker vs Jaheda Khatoon 47 DLR 430.

 

Section 62–

When the
parties to a contract agree on substituting a new contract for it, it is known
as novatio or novation.

Abul Hashem
Khan vs Md Shamsuddin Khan 41 DLR 415.

 

Section 62–

Specific
performance of contract– The plaintiffs not having disclosed the material facts
such as time, place and names of witnesses are guilty of laches.

Abul Hashem
Khan vs Md Shamsuddin Khan 41 DLR 415.

 

Section 62–

Substitution
of a new contract for the original contract, such as the reconstitution of the
firm between the defendant Nos.1 and 2, is not a novation within the meaning of
section 62 of the Contract Act.

Abul Hashem
Khan vs Md Shamsuddin Khan 41 DLR 415.

 

Section 62–

Once a
bank’s borrower has become a defaulter, his stigma cannot be removed by invoking
the provision of section 62 which only contemplates novation of contract or
modification of the term of contract. It has little to do as to the elevation
of the status of person who has already defaulted in making payment of any dues
to the bank.

Abdul Momen
Bhuiyan vs Hazi Payer Ali Mia 43 DLR 97.

 

Section 70–

When a thing
is done or delivered by one person it must be open to the other person to
reject it. The acceptance and enjoyment of the benefit of the work done or the
goods delivered which is the basis for the claim for compensation under section
70 must be voluntary.

AKM Shahidul
Hoque vs Deputy Commissioner and others 56 DLR 538.

 

Section 73–

A
share–holder in a company cannot sue the company for wrong or damage or for any
loss suffered by the company. If any wrong is done or damage is done to a
company, the company is the only person who can claim for damages against the
person who has caused such damages.

Trang Ice
and Cold Storage Company Ltd vs Amin Fish Farm 46 DLR 39.

 

Section 73–

In an appropriate
case a Court of Law can apply and imply warranty, as distinguished from an
express contract or express warranty, on the presumed intention of the parties
and upon reason.

Hutchison
Telecom Bangladesh Ltd vs Bangladesh Telegraph and Telephone Board and others
48 DLR (AD) 30.

 

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 profits.

Islami Bank
Bangladesh Ltd vs Shohag Medicine Supply and others 52 DLR 571.

 

Sections 73 & 124 –

The remedy
under these provisions of the Contract Act lies in the Civil Court, if at all,
not under the Admiralty Jurisdiction on a Marine Hull Policy.

Sadharan
Bima Corporation vs Bengal Liner Ltd and another 48 DLR (AD) 143.

 

Section 74–

Since the
agreement between the parties for sale of the suit property was enforceable in
law and the term of the agreement for depositing 25% of the total consideration
money was violated, the defendant legally forfeited the earnest money given by
the tenderer.

James Fialay
PLC vs Meshbahuddin Ahmed 46 DLR 624.

 

 

Section 92(b)–

An
acceptance must be expressed in some usual and reasonable manner, unless the
proposal prescribes the manner in which it is to be accepted.

Bangladesh
Moktijoddah Kalyan Trust represented by the Managing Director vs Kamal Trading
Agency and others 50 DLR (AD) 171.

 

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 Hare Krishna Das and others 49 DLR 282.

 

Sections 151, 152 and 161–

Port
Authority is not liable for any loss in this case as they informed the owner of
goods to locate the same.

In this case
as the owner of the drums did not remove the same from the Jetty premises,
without any fault on the part of the Jetty Administration, within clear 7
working days from the time of landing of the drums in question the Jetty
Administration is not liable for any loss as in this case the Port Authority
informed the owners of the drums to find out the same and there was no fault on
the part of the Port Authority to locate the goods.

Chittagong
Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

 

Sections 151, 152 and 161–

Chittagong
Port Authority acts as a bailee so long the goods remain in their possession.
Section 50A of the Port Act will not operate if the necessary procedure is not
followed.

It is true
that under section 50A of the Chittagong Port Act the Port Authority is
responsible for the loss of goods landed and remained in its possession or
control as a bailee in view of the provisions of sections 151, 152 and 161 of
the Contract Act, 1872. But section 50A will not operate in a case where the
goods landed under nil mark and the consignee fails to follow the nil mark
procedure to locate the goods by reason of sub­-rules (f) and (g) of Rule 64,
of General Rules and the Schedules for Working of the Chittagong Port (Railway)
Jetties.

Chittagong
Port Authority vs Hong Kong Shipping Lines 41 DLR 332.

 

Sections 151, 152 & 161–

The Railway
carries a goods delivered to it as a bailee and is bound to take such care of
the goods as that of a man of ordinary prudence. It is only when it wants to
limit its liability that it can enter into special contract with the parties
concerned.

It appears
from the records that the booking clerk, one Mr Ismail Howlader, was in the
employment of the appellant and while discharging his official duties in the
capacity of booking clerk delivered the goods in question to a third party. In
view of the facts, circumstance, evidence and decision referred to above we are
of the opinion that the defendant–appellant is absolutely liable for the act
done by the booking clerk under his employment.

Chairman Rly
Board vs Commerce Bank Ltd 46 DLR 254 .

 

Section 170–

The
plaintiff did not make out any case under section 170 of the Act to retain the
goods as a bailee.

In this case
the plaintiff could have exercised his right under section 170 of the Contract
Act if he had possession over the scheduled materials. The High Court
Division’s finding on the basis of the documents on record and the evidence
adduced in the matter that the Bank had although been in possession of the
attached goods does not suffer from any infirmity. In fact, the plaintiff did
not make out any case that he was entitled under section 170 of the Contract
Act to retain the scraps as a bailee till he received due remuneration for the
services rendered by him. In the application for attachment; the plaintiff did
not mention the word ‘lien’ nor did he do so in his written objection to the
application for vacating that order.

Muhammad
Meah vs Pubali Bank 41 DLR (AD) 14.

 

Section 170 –

(Minority
view) Per BH Chowdhury– Section 170 says lien exists in the absence of a
contract to the contrary. This question has agitated the minds of the English
Judges and the law was surveyed in Tappenden vs Antus (1964) 2 QBD 185=1963 All
ER 213.

Muhammad Meah
vs Pubali Bank 41 DLR (AD) 14.

 

Section 170–

Lien cannot
be a ground for action, it can be taken as defence. Lien cannot be a ground for
action, it can be taken as defence. Prcisely that was done here in
Miscellaneous Judicial Case No.1 which was brought to the Bank . Here the
plaintiff can raise the point of lien in the face of the application for
releasing the attached properties. And that has happened in this case.

Muhammad Meah
vs Pubali Bank 41 DLR (AD) 14.

 

Section 170–

Under
section 170 of the Contract Act a ship breaker can retain goods for his
remuneration. (Minority view) The bank granted the loan for buying the ship and
the ship is to be scrapped and the scrap is to be sold in the market and the
sale proceeds is to be deposited into cash credit account for liquidating the
debt. Unless the ship is broken how the debt is to be liquidated? Therefore,
the question comes what about the remuneration of the ship breaker and the law
says in section 170 of the Contract Act that he can retain such goods.

Muhammad Meah
vs Pubali Bank 41 DLR (AD) 14.

 

Section 170 –

(Minority
Judgment) Per BH Chowdhury J–Execution of decree when all the properties are
mortgaged to the Bank–Applica­tion of section 170 of the Contract
Act–Plaintiffs claim on lien–Remuneration of the breaker – ­Omission to mention
the word “lien” by the plaintiff–Effect of–Rule of pleading does not
warrant it.

The crux of
the problem as to how he could execute the decree when all the properties of
Janapad Enterprise are mortgaged to the Bank. The only available property was
the scheduled property which was valued for only eight lac. The question was,
whether the plaintiff could retain this property. Plaintiffs claim for his
remuneration is grounded on lien and section 170 says that he has a right to
retain such goods until he receives due remuneration for the services in the
absence of the contract to the contrary. ls there any contract to the contrary
in this case between the Bank and the borrower that the remuneration of the
breaker must not be given out of the sale proceeds of the ships? The answer is
in the negative. If so, then why the ship breaker will be deprived of his
remuneration. It was contended by the learned Counsel appearing for the
respondent that in the application for attachment the plaintiff did not mention
the word ‘lien’ nor did he do so in his written objection to the application
filed by the Bank for vacating that order. To say the least rule of pleading
does not warrant it.

Muhammad Meah
vs Pubali Bank 41 DLR (AD) 14.

 

Section 171–

Claim and
counter–claim between the petitioner and the Agrani Bank– Petitioner
(appellant) claimed a sum of Taka 75,55,020.28 paisa after adjustment in the
suit­Trial Court allowed prayer for mandatory injunction–Appellant contended
that the import passbook issued by the CCIE could not be a security for the
purpose of Banker’s general lien within the meaning of section 171 of the
Contract Act–High Court Division issued order directing the petitioner to
furnish security to the extent of the claim of the bank whereupon the defendant
Bank is to return the import passbook either to the CCIE or to the nominated
bank of the petitioner and set aside the order of mandatory injunction.

Held: The Court will not decide a point, especially in the
interlocutory matter which will not advance the cause of justice. It will
merely delay the process of coming to a conclusion as to claim and
counter–claim which can only be thrashed out in the pending suit.

The Dhaka
Dyeing and Manufacturing Co vs Agrani Bank 42 DLR(AD) 60,

 

Section 171 –

In the
present case concerning adjustment of loan by share certificates, the
provisions of Banking Companies Ordinance shall be read and construed in
addition to section 171 of the ContractAct. From the provision of the Sale of
Goods Act it appears that the shares of a company are also goods and as such
moveable property. Money is a species of goods over which lien may be
exercised. Where a banker has advanced money to another, he has a lien on all
securities which come within his hand for the amount of his general balance
unless there is an express contract to the contrary.

Sonali Bank
vs Bengal Liner Ltd 42 DLR 487.

 

 

Section 171–

Banker’s
right of lien– ­Whether a bank can retain depositor’s money in exercise of its
right of general lien– Depositor’s money with the bank is not in the nature of
any goods bailed to the bank–Money deposited by the plaintiff in his account
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 in the bank and there is no question of exercising lien
on the money over which the bank has absolute right of ownership and
possession–The bank could not withhold the money deposited by the plaintiff
with the defendant No. I in exercise of its right of general lien.

Rupali Bank
vs Haji Ahmed Sabur 43 DLR 464.

 

Section 172–

In
hypothecation, the borrower has got actual physical possession of the goods as
an agent, as it were, of the bank.

Eastern Bank
Ltd and another vs Sufia Re–Rolling Mills and Steel Ltd and others 56 DLR 530

 

Section 176–

For realisation
of payment of debt or pawn there is no bar to institute a proper suit by the
pawnee and at the same time to retain the pledged goods, if any, in his custody
as a collateral security. But the two reliefs, though concurrent, are yet
alternative and both cannot be resorted to at a time.

Bengal Metro
Engineering Co. vs Agrani Bank 46 DLR 168.

 

Section 176–

Law relating
to the right of the pawnee does not require him to sell the pawned goods first
and thereafter, if any amount remains due from the pawnor then to file the suit
for the realisation thereof.

Islami Bank
Bangladesh Ltd vs Sub–Judge and Additional Artha Rin Adalat and others 55 DLR
(AD) 121

 

Sections 176 & 177–

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 Sultana Oil Mills and Soap Factory and others 51 DLR.323

 

Section 201–

On demise of
either party to the power of attorney the relationship between the principal
and the attorney ceases.

Abdur Rahman
(Md) vs Md Iqbal Ahmed and others 49 DLR (AD) 142.

 

Sections 202 and 203–

A power of
attorney becomes irrevocable when if the power were revoked the attorney would
be deprived of a substantial right.

Begum
Shamsunnahar Chowdhury vs Md Masud Jamal and others 48 DLR 267.

 

Section 217–

Under the
law of agency the agent is paid by his principal only. An agent owes his
contractual duty to his principal only and the agent will be in a situation of
conflict of interest and dishonesty if he receives any remuneration from the
third party.

SM Fazlul
Haque vs Salahuddin Ahmed and another 54 DLR 612

 

Section 226–

No question
of agent’s liability to a third party for any breach can arise. General
principle dictates that the contract is the contract of the principal, not that
of the agent, and prima facie in law the only person who can be sued is the
principal.

SM Fazlul
Haque vs Salahuddin Ahmed and another 54 DLR 612.

 

Section 238–

It could not
be said that the then manger of the Bank received the cheques in course of his
employment under the Bank but it seems that he was carrying on a parallel
business–one as the agent of the Bank and the other as the agent of the
plaintiff.

Sonali Bank
vs MA Hakim 39 DLR 367.

 

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.

 

 

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.

 

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