1. Contract Act, 1872 (9 of 1872) S.   2(d) - Stranger to the consideration can well be sued while a stranger to the contract cannot be - Though the money had not been advanced to the Haryana Roadways, it had given an undertaking which was irrevocable, prefacing the undertaking to be in consideration of the loan granted to the employee - Such undertaking was perfectly enforceable as the liability incurred by the employer for a loan available by the employee. (180) PLR
  2.         Contract Act, 1872 (9 of 1872) S.   3, 4 - Proposal was that of the allottee to surrender the plot on account of her not having paid the entire consideration, the communication of which was received by the Estate Officer and accepted by him on file - Though the proposal was accepted on file, by the Estate Officer, such acceptance was not put into communication to the proposer, i.e. the allottee and remained with the acceptor, i.e. the Estate Office - Acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal - It is equally obvious that it is only when they were in a position to make such payment and when prices of properties had sky-rocketed, that they chose to apply for sanction of building plans - However, fraud or even dishonest intent, vitiates any statutory benefit as is sought to be taken shelter of, to try and cover up for such dishonest intent, which we, obviously, cannot allow - Haryana Urban Development Authority Act, 1977 (13 of 1977). (173) PLR
  3.         Contract Act, 1872 (9 of 1872) S.  10, 25 - Although no written agreement was executed, in the normal course of nature the Court has to consider the probabilities while analyzing the evidence led by the parties and in the present case the execution of the written agreement would not debar the plaintiffs from claiming their rightful money on the basis of oral agreement. (178) PLR
  4. Contract Act,  Section 16(1) – Undue influence -  “4. Under Section 16(1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor? “Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and Others AIR 1967 SC 878 referred in (2018)2 SCeJ 1903
  5. Contract Act,  Section 16(1) – Undue influence - Three stages for consideration of a case of undue influence -  “In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached — namely, the issue whether the contract has been induced by undue influence. Upon the  determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?” Raghunath Prasad v. Sarju Prasad and Others (AIR 1924 PC 60)  referred in (2018)2 SCeJ 1903
  6.        Contract Act, 1872 (9 of 1872) S.  23 - Damage - Appellant/plaintiffs are required to lead direct and cogent evidence - Court ordering the refund of security amount but the element of interest has not been taken care of - Accordingly, the judgment and decree of the trial Court is modified - The amount ordered to be refunded shall entail the interest @ 9% per annum from the date which has been ordered to be paid. (183) PLR
  7.         Contract Act, 1872 (9 of 1872) S.  25(3) - Amount was handed over in 2001 - In acknowledgement of debt issued a cheque in 2007 - Time barred debts also can be enforceable in the light of the subsequent acceptance/acknowledgment of liability - Signing and issuing cheque in favour of the respondent-plaintiff would amount to owing and acknowledging the liability by the appellant-defendant - All these go to prove beyond doubt that the appellant-defendant had acknowledged and accepted his debt. (180) PLR
  8.         Contract Act, 1872 (9 of 1872) S.  27 - Words `Profession' trade or `Business' - Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extend void - It is the exception which protects from being void such an agreement provided the conditions envisaged by the exceptions are satisfied - The condition for the exception is that if the goodwill of a business has been sold, an agreement to refrain from carrying on similar business, if it appears to the Court to be reasonable, would be protected and would be enforced - Sold the goodwill - A case where the phrase `Sells the goodwill of a business' would be met - Business refers to those economic activities which are connected with production or purchase and sale of goods or supply or services with main object of earning profits, profession on the other hand includes those economic activities which require special knowledge and skill to be applied by individuals in their occupation - Words `profession', `trade' and `business' used in Section 27 are specific words and we see no scope to give meaning to the word profession applying the rule of noscitur a sociis - Appellants to carry on professional activities as a Pathologist and Radiologist respectively - But not in a nanner which would amount to carrying on business by corporating themselves.  (178) PLR (Del.)
  9.         Contract Act, 1872 (9 of 1872) S.  72 - Where any party quantifies a damage or penalty for the breach of the contract, the Court would have to see whether such compensation is reasonable regarding the facts and circumstances of the case - Surety bond executed - Relinquished charge and opted to deposit two months salary in lieu of remaining notice period - Punjab State Transmission Corporation Ltd. demanded whole salary in lieu of the service rendered - It is open for the parties to approach the Civil Courts for their remedies - As per the order of the Division Bench whereby the petitioners have submitted the indemnity bond the same shall be valid during the pendency of the proceedings, if initiated by the Corporation - In cases where the NOC has not been issued, the Corporation shall issue necessary NOCs on the furnishing of the indemnity bonds - Constitution of India, Article 226. (182) PLR
  10.         Contract Act, 1872 (9 of 1872) S.  73 - It may be true that a lock in period clause in a lease deed, being in the nature of a penalty, requiring the tenant to pay the rent for the lock in period cannot be enforced without proof of loss of damages; and additionally for the reason under the law of contract a party wronged by a breach of contract is obliged to mitigate the loss occasioned by the wrong act of the promiser or the promisee (because of the explanation to Section 73 of the Indian Contract Act, 1872, but that would only require the owner of the premises to prove the loss which is occasioned due to breach of the agreement that possession would be retained for the lock in period. (177) PLR (Del.)
  11. Contract Act, 1872 (1 of 1872) S.  74 - Arbitration Act, 1940 (10 of 1940) S. 30, 33 - Awarding of liquidated damages - Surely losses which are caused to an Airline on account of a Pilot leaving before the contractual period has various ramifications of which the cost of the training is only but one aspect - Therefore, in such cases, once the actual damages which are caused to the Airline, cannot be exactly calculated and proved, then, there is no illegality in awarding fixed/liquidated damages as specified in the contract and which in the facts of the present case thus would not be in the nature of penalty as specified in Section 74 of the Indian Contract Act, 1872 (1 of 1872). (174) P.L.R.  (Del.)
  12.         Contract Act, 1872 (9 of 1872) S. 127, 128 - Guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor - In the loan agreement, which is the contract, there is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor - Therefore Section 128 of the Indian Contract Act will apply here without any exception - See no reason why the Joint Memo, which states compromise arrived at between the Central Bank of India and the principal debtors, would not bind the guarantor. (S.C.)(182) PLR
  13. Contract Act, 1872, Section 128 -  Guarantor - Liability of -  The legislature has succinctly stated that the liability of the guarantor is co-extensive with that of the principal debtor unless it is otherwise provided by the contract - The only exception to the nature of the liability of the guarantor is provided in the Section itself, which is only if it stated explicitly to be otherwise in the Contract - It is the prerogative of the Creditor alone whether he would move against the principal debtor first or the surety, to realize the loan amount - The guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor - Loan agreement,- There is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor -  Banking. (2016)3 P.L.R. SC 542
  14.         Contract Act, 1872 (9 of 1872) S. 133 - Liability of Surety - Compounding of the loan by allowing a principal debtor some time to pay in installments ought not to be taken to avail to creditor the benefit of either Section 133 that refers to variance in terms of contract or Section 135 by discharge on the ground of discharge of release of the principal debtor - Cannot include a post decretal situation where the judgment debtor is granted time for making payment in installments - It cannot amount to compounding of debt as contemplated under Section 135 - Nor can this mean a variance of a contract, for, after the decree, what is enforced, is not the contract, but it is the decree that obtains fulfilment. (175) PLR
  15.         Contract Act, 1872 (9 of 1872) S. 202 - Power of Attorney - Once the power of attorney is a registered power of attorney, this document can surely be looked into in terms of Section 202 of the Contract Act, and which provides for irrevocability of a power of attorney given for consideration and such a GPA cannot be cancelled - Appellants/plaintiffs therefore may not in the strict sense be owners of the property, but, in a suit for possession or for injunction, a plaintiff has only to prove an entitlement to the suit property which is better than the respondent/defendant - Once the appellants/plaintiffs prove an entitlement better than the respondents/defendants, it is upon the respondents/defendants to discharge the onus that they have a better entitlement to the suit property than as is pleaded by the appellants/plaintiffs. (175) PLR (Del.)
  16.         Contract Act, 1872 (9 of 1872) S. 206 - Power of attorney - Revocation of burden of establishing service shall be cast on the person, who states that a particular registered post had been sent - The mere fact that the document is sent by registered post cannot prove anything, if there is a denial and the plaintiffs, who sought to rely on the lack of authority for an agent to sell, had failed to discharge the onus on him to show that the agent had been informed about the revocation of agency. (180) PLR 

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