Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Prem Narain, Presiding Member, has directed the developers of “Greenopolis” to refund homebuyers their amount deposited at the interest rate of 9% p.a. and in a few complaints the bench has asked for the possession to be handed over by 30-09-2020 with the occupancy certificate and with a delayed penalty of 6% p.a. on the deposited amount.

Consumer Complaints

Allottees of the project “Greenopolis” situated in Gurgaon alleged deficiency in service on the part of Opposite parties — Three C Shelters (P) Ltd.

Original allottee booked an apartment in OP’s project for a consideration of Rs 87,16, 800/-, apartment was allotted and later the same was endorsed in favour of complainant.

OP’s failed to deliver the possession in 42 months inclusive of 6 months grace period. Till date, complainant has paid Rs 75,96,776/- to OP’s.

Several complaints have been filed by homebuyers with regard to no delivery and possession of the apartments for which they have paid installments of a very huge amount.

Analysis and Decision

No breach of agreement by complainants | Entitled to relief under Sections 54 and 55 of the Indian Contract Act, 1872

Argument with regard to Sections 54 and 55 of the Indian Contract Act, 1872, OPs relied on the Commission’s decision in DLF Southern Town (P) Ltd. v. Dipu C. Seminal, wherein the complainant had deposited only the booking amount and no instalments were paid whereas in the present complaints instalment have been paid upto reasonable limit and on no progress in construction, the payment was stopped later.

Force Majeure

Defence of force majeure by OPs cannot be taken as there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside to complete the construction in time.

Joint Project

Three C Shelters (P) Ltd. pleaded for force majeure conditions for delay and on the other hand Orris Infrastructure (P) Ltd. pleaded that Three C Shelters was responsible for delay in construction. Both of them had signed on the “Apartment buyer Agreement” and hence Commission stated that both of them were responsible for delay.

Apartment Buyer Agreement

Bench observed that the OP’s clearly have failed to complete the project and give the possession in time to the homebuyers as per the Apartment Buyer Agreement.

Hence allottees have right to ask for refund due to the inordinate delay which has been beyond 1 year, the possession was to be given in the year 2016.

No Forfeiture of earnest money

So far as the question of forfeiture of earnest money is concerned, it is seen that the complainants are seeking refund as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and Three C Shelters (P) Ltd. has agreed to complete the project in phases.

Commission noted that OPs have not paid EDC and IDC to the Government and it seems that the OPs were not serious in timely completing the project. Thus, in these circumstances, there can be no question of forfeiture of earnest money.

Supreme Court in Haryana Urban Development Authority v. Diwan Singh, (2010) 14 SCC 770 , observed that subsequent buyers are entitled to receive interest only after the date of endorsement in their favour.

In view of the above, Commission directed Three C Shelters to refund the amount at 9% interest per annum.

In one of the cases, Orris Infrastructure (P) Ltd. is directed to complete the construction work and handover the possession till 30-09-2020 after obtaining occupancy certificate, and it shall pay interest of 6% p.a. on the deposited amount.

If the possession is not delivered till 30-09-2020, the complainant shall be at liberty to take refund of the total deposited amount Rs 77,58,581/- along with interest @ 9% p.a. from the date of respective deposits till actual payment. [Sanjay Gupta v. Three C Shelter (P) Ltd., Consumer Case no. 3814 of 2017, decided on 20-07-2020]

COVID 19Op EdsOP. ED.

I. Introduction

The spread of dreaded coronavirus has led to serious disruptions across the globe, India being no different. The virus has caused an unprecedented and incalculable damage to the economies worldwide, a situation equated to the Great Depression 1921, and caused deaths of millions of people across the globe. It has led to such a situation that even day to day activity such as access to print media is difficult.

The lack of demand and consequent lesser production has resulted in loss of millions of jobs worldwide apart from causing insurmountable damage to the social and economic conditions of the world. Among all these pertinent issues which are being faced by people, one of them is the effect of COVID-19 on businesses.

Even as the economy has virtually come to a standstill and people are being directed to remain quarantined in their respective homes, several tenants are being evicted by their landlords due to their inability to rental amount.

II. Intersection between landlord — Tenant Disputes due to COVID19 

As most of these tenants, belonged to the lower stature of the society and were primarily migrants working in the unorganised sectors, were left stranded on the streets high and dry and thus resultantly the Government had to step in to provide them basic facilities through shelter home and hunger relief camps. Further, as majority of these tenants were living in the tenanted premises on the bases of oral agreement and with the understanding that rental dues would have to be paid on month to month basis were also deprived of many essential safeguards provided under the law.

Insofar as commercial leases are concerned such as those of shops in shopping complex, office spaces, etc. are concerned, it is bit unclear whether the tenant can take recourse to the force majeure clause, assuming that such a clause is present in the lease deed in the first place, to avoid paying the rental amount till the lockdown persists. There is lack of clarity on this issue due to lack of authoritative judicial precedent and even after the lockdown is lifted, the businesses as such may find it difficult to pay the rent as it will take considerable time for the economy to bounce back to the same level as it was prior to the lockdown, further it is also to natural to expect that there would be significant reduction in consumer spending post the lockdown due to reduced purchasing power of the consumer.

III. Statutory framework and force majeure clause 

In India, the relationship between the landlord and the tenant is governed by various statues viz. the Contract Act, 1872[1] (hereafter, ‘the Contract Act), the Transfer of Property Act, 1881[2] (hereafter, ‘the Property Act), the Delhi Rent Control Act, 1958[3] (hereafter, ‘the Rent Control Act) etc.

Section 56 of the Contract Act stipulates when a contractual obligations may be excused, an extract whereof is reproduced herein below –

S.56. Agreement to do impossible act.— An agreement to do an act impossible in itself is void.

Contract to do an act afterwards becoming impossible or unlawful.— A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.’

However, it may be a bone of contention if one take resource of the aforestated provision in order to wriggle out of its liability to contractual rent amount especially when the relationship between the parties should be governed by the Property Act or the Rent Control Act, as the case may be, as both these two statues are special statues and it is well-settled law the special law prevails over the general law[4]. Further, as the relationship of landlord and tenant are based upon the lease deed/lease agreement which is primarily a contractual agreement and the disputes, including non-payment of rent, if any, shall be governed strictly under the terms and conditions provided thereof.

In addition to the definition of force majeure clause provided under the respective lease deed, to understood its true import, one may refer to their definition in general sense –

Black’s Law Dictionary, 8th Edition, defines force majeure as ‘A contractual provision allocating the risk if performance becomes impossible or impracticable, esp. as a result of an event or effect that the parties could not have anticipated or controlled.’

Similarly, Oxford Dictionary defines force majeure as ‘unexpected circumstances, such as war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract.

It is to be noted that that term ‘force majeure’ is not to be equated as an ‘act of God’ as the former is of wider import than the latter. However, it has to borne in mind that since the former is an exception to the general rule of performance of contract, the same has to be construed narrowly.[5]

However, it is not the first time that the contracting parties have resorted to force majeure clause citing impossibility/frustration of performance, some of these cases wherein it has invoked earlier are –

In Bikram Chatterji  v. Union of India[6], it has been opined by the Supreme  Court that: (SCC Online para 129)

‘129. A blatant violation of the provisions of RERA has been done by the Amrapali Group. Since RERA contemplates timely completion of projects once registration has been granted Under Section 5 and extension of registration. Under Section 6, it is only in the event of force majeure in case there is no default on the part of the promoter, registration can be extended in aggregate for the period not exceeding one year. Force majeure shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature…..’                                                                                           

(emphasis supplied)

Similarly, in another case Dhanrajamal Gobindram v. Shamji Kalidas and Co.[7], the Supreme Court has opined as under –

‘19. McCardie, J. in Lebeaupin v. Crispin[8], has given an account of what is meant by “force majeure” with reference to its history. The expression “force majeure” is not a mere French version of the Latin expression “vis major”. It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in “force majeure”. Judges have agreed that strikes, breakdown of machinery, which, though normally not included in “vis major” are included in “force majeure”. An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to “force majeure”, and even if this be the meaning, it is obvious that the condition about “force majeure” in the agreement was not vague. The use of the word “usual” makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was in contemplation of parties…’

In a very recent judgment rendered by the Bombay High Court in ‘Standard Retail Pvt. Ltd. v. G.S. Global Corp.[9]’, the  High Court has refused to accept the contention that COVID-19 pandemic and the lockdown declared by the Central/State Government would either tantamount to frustration, impossibility and impracticability of the contract or the same can be termed as a ‘force majeure clause’, and thus has declined to restrain the respondent therein from encashing the Letters of Credit opining inter alia that production of steel comes within the ambit of essential commodity and there was no restriction of movement of the same, an extract of the judgment is reproduced herein below –

2. It is the case of the petitioners that in view of the COVID-19 pandemic and the lockdown declared by the Central/State Government, its contracts with Respondent1 were terminated as unenforceable on account of frustration, impossibility and impracticability. The petitioners have relied upon Section 56 of the Contract Act, 1872.

** *

4. Having heard learned counsel for the petitioners and learned Senior Counsel forRespondent1 (in the first 3 petitions), learned counsel forRespondent1 (in the last 2 petitions), the learned counsel forRespondent3, Bank (the first 3 petitions), in my view the petitioners are not entitled to any ad interim reliefs for the reasons stated herein-below:***

e. In any event, the lockdown would be for a limited period and the lockdown cannot come to the rescue of the petitioners so as to resile from its contractual obligations with Respondent 1 of making payments.

f. The judgments relied upon by the learned counsel for the petitioner in Energy Watchdog v. CERC[10]and Satyabrata Ghose v. Mugneeram Bangure & Co.[11] do not assist the case of the petitioners and are distinguishable on facts.”

However, the Delhi High Court in ‘Halliburton Offshore Services Inc. v. Vedanta Limited[12] has opined  in para 20 that ‘The countrywide lockdown, which came into place on 24th March, 2020 was, in my opinion, prima facie in the nature of force majeure’, and thus thereby granted an ad interim stay on invocation and encashment of the bank guarantees.

Pertinently, both the aforestated two cases where instituted under Section 9 petition of the Arbitration and Conciliation Act, 1996[13], seeking the relief of injunction against the respondent.

Although, these aforementioned cases can be distinguished on the basis of the facts and were not pertaining to landlord – tenant dispute but nevertheless do aid in interpreting the term ‘Force Majeure Clause’, as perhaps it has been the first time, since the Spanish Flu in 1919, that a disease has spread to such an unimaginable extent that it was termed as global pandemic by  WHO, which further adds to the ambiguities due to lack of authoritative judicial precedent on the issue in hand i.e. if the spread of COVID-19 amounts to force majeure.

Also, one may argue that even if the lockdown is in continuance, the tenants have continued to enjoy the possession of the tenanted premise and thus have unjustly enriched themselves at the cost of the landlord, thus the tenant ought to have paid the rent and lack of business thereof shall not be a ground for non-payment of rent. In this regard the judgement rendered by the Andhra Pradesh High Court in ‘Gandavalla Munuswamy v. Marugu Muniramiah[14], is quite apt, the relevant extract thereof is reproduced herein below –

9…In my opinion, such an indirect and, what is more ambiguous course of action on the part of a lessee cannot be regarded as sufficient for conveying to the lessor his intention to treat the lease as void under section 108(e). The lessee must directly and categorically express to the lessor his intention to treat the lease as void. Otherwise, it will be legitimate for the lessor to regard the lease as subsisting. There is nothing in Section 108(e) of the Transfer of Property Act which compels a lessee to treat a lease as void. It is optional with him to do so or to refrain from doing so. This aspect of the matter makes it all the more necessary that an unambiguous declaration of the lessee’s intention to treat the lease as void must be communicated to the lessor. The lessor would not otherwise be able to take appropriate steps on the footing that the lease has come to an end and he is therefore at liberty to deal with the property as he chooses. What is even more important is that a mere declaration of intention to treat the lease as void is not sufficient. The lessee must also yield up possession of the property to the lessor as required by the provision of the section 108(q) of the Transfer of Property Act. He cannot continue in possession and yet declare that he has treated the lease as void. That would obviously be an inconsistent and impermissible position to adopt. So long as a lessee has not surrendered to his lessor the possession which he obtained from the latter at the time of the lease, he cannot rid himself of his obligations under the lease. His holding to the possession into which he was inducted by his lessor will estop him from disputing the right of his lessor to evict him and to recover possession from him...”

Recently, the Delhi High Court in Ramanand v. Dr. Girish Soni[15], has held in relation to a landlord–tenant dispute governed by the Rent Control Act, that suspension of payment of rent by tenants owing to  COVID-19 lockdown crisis would not be justified though some relaxation may be given in the schedule of payment, the relevant extract is reproduced herein below:

“3. The urgent application under consideration, raises various issues relating to suspension of payment of rent by tenants owing to the COVID-19 lockdown crisis and the legal questions surrounding the same….

* * *

31. Finally, in the absence of a contract or a contractual stipulation, as in the present case, the tenant may generally seek suspension of rent by invoking the equitable jurisdiction of the Court due to temporary non-use of the premises. The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case as held by the Supreme Court in Surendra Nath Bibran v. Stephen Court[16]. In the said case, the Court directed payment of proportionate part of the rent as the tenant was not given possession of a part of the property…

The aforesaid case throws some light if one can rely upon the force majeure clause to justify non-payment of rental amount, however, the said case can be distinguished on the basis of the facts, as in that case the Court had already directed eviction of the tenant much prior to the coronavirus pandemic and the said judgment came to be delivered upon an application seeking suspension of rent. Moreover, the Court has itself noted in para 26 that ‘The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case as held by the Supreme Court in Surendra Nath Bibran v. Stephen Court[17], further the entire contract, if any, executed between the landlord and the tenant has to be kept in mind while deciding if non-payment of rent was justified or not.

IV. Government and Judicial Intervention

In the United Kingdom, the Government has passed the Coronavirus Act, 2020[18] w.e.f. 20th March, 2020, in view of the plight of tenants, with the objectives of protecting the tenant’s interest and thereby suspends the landlord’s right to evict business tenancies in England and Wales till normalcy is restored.

Similarly, even in India, the Ministry of Home Affairs (MHA) vide order dated 29th March, 2020 has inter alia directed the landlords of rented accommodation not to demand rent for a period of one month from workers including migrants.  Further it also has been directed that the  landlord shall not force labourers and students to vacate their premises and any violation thereof shall foist criminal action on them including but not limited to the Disaster Management Act, enforcement whereof is the responsibility of the respective State Government and Union Territory.

In addition to this, several PILs also have been filed before the Supreme Court and High Courts seeking exemption from paying rent during the lockdown, non-deduction of wages during the lockdown period, non-termination of workers/employees by the employers, waiver of Interest on EMIs during COVID lockdown, etc. Needless to say that the higher judiciary, which is already functioning in a limited capacity and conducting its proceedings through video conferencing, has become the hub of PILs. 

V. Conclusion 

In  view of the aforesaid, it is difficult to say with certitude as whether the tenants can avoid paying rental amount for the period of lockdown citing force majeure clause, primarily due to lack of judicial precedent coupled with the factum that the interest of tenants are being protected by executive direction rather than legislative command. All in all, it is quite certain that once the lockdown is lifted and normalcy of courts is restored, several cases are going to be instituted either seeking eviction and/or arrears of rental amount from the tenants.


*Author is advocate by profession, practising and appearing before the High Court of Delhi and other tribunals and courts situated in Delhi. Author can be reached at advananthkini@gmail.com for any suggestions/comments.

[1] Act No. 9 of 1872

[2] Act No. 4 of 1882 

[3] Act No. 59 of 1958 

[4] In Kidar Lall Seal  v. Hari Lall Seal,1952 SCR 179, the  Court had opined that “It is an established principle that where there is a general law and a special law dealing with a particular matter, the special excludes the general.” See also Dhruv Dev Chand v. Harmohinder Singh , (1968) 3 SCR 339

[5] See Energy Watchdog v. CERC, (2017) 14 SCC 80

[6] 2019 SCC OnLine SC 901 

[7] (1961) 3 SCR 1020 

[8] [1920] 2 KB 714

[9] 2020 SCC OnLine Bom 704  

[10] (2017) 14 SCC 80

[11] 1954 SCR 310

[12] 2020 SCC OnLine Del 542 

[13] Act No. 26 of 1996  

[14] 1964 SCC OnLine AP 20 

[15] 2020 SCC OnLine Del 635  

[16] (1966) 3 SCR 458  

[17] Ibid.

[18]Available at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted , last visited on 1st May, 2020.

[19] Noti. No. 40-3/2020-DM-I(A), dated March 29, 2020

[20] Many PILs have been filed on this subject such as Supreme Court Bar Association’s PIL on Government scheme for payment of office rent during lockdown; PIL to restrain landlords from evicting student and labourers; PIL on welfare schemes for migrant workers, etc.

Case BriefsSupreme Court

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ, while deciding the question whether a vendee who does not perform one of his promises in a contract can obtain the discretionary relief of specific performance of that very contract, has held,

“A party cannot claim that though he may not perform his part of the contract he is entitled to specific performance of the same.”

Stating that the relief of specific performance is discretionary, the Court said merely because the plaintiff is legally right, the Court is not bound to grant him the relief. The Court explained that Section 16(c) of the Specific Relief Act, 1963 clearly lays down that

“the specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him.”

Further, the Court noticed that Explanation (ii) to Section 16(c) of the Specific Relief Act lays down   that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract.

Considering that the relief of specific performance under Section 20 is discretionary, the Court said,

“Sub clause(c) of sub­section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the Court can refuse to grant such discretionary relief. Explanation (2) to the Section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff.”

[Surinder Kaur v. Bahadur Singh, 2019 SCC OnLine SC 1167, decided on 11.09.2019]

Op EdsOP. ED.

Introduction

Section 4 of the Contract Act, 1872 deals with the completion of a proposal, acceptance and revocation and states:

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete,— as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete,— as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge.[1]

The illustrations in this section mentions about the communication through the postal services and stays silent regarding the contracts through the modern means (instantaneous) of communication. Fax and e-mail fall into an intermediate position with respect to postal services in which the messages are transmitted immediately, have not been mentioned. Talking about the completion of offer, then it is different for postal and electronic modes. In the case of postal service the communication becomes complete when the letter is posted from the offeror and the offeree is bounded by it. But if electronic modes are taken into account then fax communications like telephonic communication, becomes complete when the acceptance is received by the offeror.[2]

In Entores Ltd. v. Miles Far East Corpn.[3], Denning L.J., said that the postal rule cannot be applied to instantaneous mode of communications, such as telephone and telex. If a phone line “went dead” just before the offeree said “yes”, it would be absurd to assume that the contract was formed and the parties would not have to call each other back. The same applied to telex. Since the contract was therefore only formed when and where the telex was received, the place of formation was London.

In N.M. Superannuation Pty. Ltd. v. Hughes[4], a decision of the New South Wales Supreme Court, Cohen, J. held that if a fax is left switched on its owner is indicating their preparedness to receive messages on it and in such circumstances it was sufficient for a notice to be communicated by fax, even though the document might arrive outside normal business hours. The same principles probably apply to other electronic means of communications, such as e-mail but these have so far not been tested in a court.

Major issues in Section 4

(i) Lack of information regarding the modes of communication in this section.

Dealing with the modern instantaneous mode of communication is major issue currently. The problem becomes more complicated when the communication is done by specific modern media like e-mails, telephone calls, fax and especially social media platforms on the internet. The communication of electronic messages have been described in the Information Technology Act, 2000 but it does not deal with the contracts made through these messages.

(ii) Modern communication modes can act both as instantaneously as well as non-instantaneously

Section 4 signifies that “the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor and as against the acceptor, when it comes to the knowledge of the proposer”. Here it is said to put in a course of transmission but no specific transmission is mentioned; so it includes all kinds of transmissions even e-mail and Facebook. Though e-mail or Facebook communication is within the purview of Section 4, no specific rule is constituted whether postal rule or rule of instantaneous communication will be considered same as e-mail and Facebook contract. If someone sends a message through Facebook or e-mail and opposite party replies instantly it seems to be instantaneous communication. In contrast, if a person sends a message through e-mail or Facebook Chat Messenger but opposite party does not reply instantly; then it seems to be non-instantaneous communication in nature. Analysing the nature of e-mail and Facebook communication, it deems to be instantaneous as well as non-instantaneous communication.

(iii) What rule of communication should be applied

Justice Hidayatullah had said, “the law was framed at a time when telephones, wireless, Telstar and Early Bird were not contemplated”[5]. The Information Technology Act, 2000, follows no rule of instantaneous communication or postal rule. Pursuant to Section 13 of the Information Technology Act, 2000, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator and the receipt would occur in the case of e-mail when the message enters the addressee’s electronic mailbox; so contract is complete when the message enters into the addressee’s mailbox. In pursuance of Entores Ltd. v. Miles Far East Corpn.[6], if we categorise e-mail or Facebook communication as instantaneous communication i.e. telex, telephone, fax; the contract is complete when it comes to the knowledge of the proposer. If the proposer does not hear the acceptance for chaos or noise the contract is not completed. Alternatively, if we follow postal rule in e-mail or Facebook contract the contract is complete as soon as the e-mail or message is sent.

Solving the issues

Keeping in mind the main elements which are essential for formation of a contract, some additions are required in Section 4 of the Contract Act, 1872. There should be information regarding the various modes of communication and which modes are instantaneous or non-instantaneous. Not only this, proper rules should be provided for these modes of communication.

Considering the nature of Facebook and e-mail communication we should apply rule of instantaneous communication as well as postal rule as it is mentioned earlier that nature of instantaneous communication and postal rule existed in these modern modes of communications. When the nature of initiation of negotiation is instant, the instantaneous communication should be applied whatever the nature of completion of the negotiation and contract is complete when acceptance comes to the knowledge of the proposer. But when the nature of negotiation is not instant, the postal rule should be applied and the contract is complete when the acceptance is sent and gone beyond the control of the acceptor. If it is instant nature the offeror has option to revoke the contract before the acceptance coming to his knowledge and in non-instant contract, the offeror has enough time to revoke the proposal before the acceptance is sent. In the case of fax and e-mail, the sender is unable to know at once about the success or failure of the communication. It is therefore submitted that the rules of postal communication must be applicable to communication by fax or e-mail, or messages sent by similar electronic means except where the sender can verify the proper communication of the message immediately.

Conclusion

Currently Section 4 of the Contract Act, 1872 lacks to keep pace with the modern world. Amendments/reforms are needed to include and rectify the section that will enable to form contracts without any difficulty. As it can be observed from the cases and judgments of the cases mentioned. The Supreme Court in Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co.[7], following the English decision in Entores Ltd. v. Miles Far East Corpn.[8] has held that Section 4 of the Contract Act is only applicable in cases of non-instantaneous forms of communication and would not apply when instantaneous forms of communication are used. The Court observed that the draftsman of the Contract Act did not contemplate the use of instantaneous means of communications. Hence, where proposal and acceptance are made by instantaneous means of communications like telephone, telex, etc., and the postal rule does not apply and the contract is made where the acceptance is received. Therefore, the default rules elucidated above may have a relevance only in non-instantaneous forms of contract formation. “Though e-mail communication has some of the trappings of instantaneous communication, nevertheless, it is a fragmented process involving many stages. The e-mail message is split into various packets and sent via different routes. Further, unlike in instantaneous forms of communication, the sender does not know if the transmission of the e-mail is successful, for even though he gets a delivery receipt, it only signals delivery to the mailbox and does not indicate that the other party has the knowledge of the receipt. Thus, e-mail messages would come under the category of non-instantaneous form of communication. The default rules enunciated above would apply to e-mail contracts.”[9]

 

* Ayush Pandia, 1st year student, NUSRL, Ranchi

[1]  Avtar Singh, Contract and Specific Relief, (Eastern Book Company, Lucknow, 12th Edn., 2017).

[2]  Quadricon (P) Ltd. v. Shri Bajrang Alloys Ltd., 2007 SCC OnLine Bom 1091 : (2008) 3 Mah LJ 407.

[3]  (1955) 2 QB 327 : (1955) 3 WLR 48 : 1955 EWA Civ 3.

[4]  (1992) 10 ACLC 477.

[5]  Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co., AIR 1966 SC 543 : (1966) 1  SCR 656.

[6]  (1955) 2 QB 327 : (1955) 3 WLR 48 : 1955 EWCA Civ 3.

[7]  AIR 1966 SC 543 : (1966) 1  SCR 656.

[8]  (1955) 2 QB 327 : (1955) 3 WLR 48 : 1955 EWCA Civ 3.

[9]  E-mails and contracts—communication and validity.

 

 

Case BriefsSupreme Court

Supreme Court: Dealing with an interesting question as to the retrospective applicability of the 1997 Amendment to Section 28 of the Contract Act, 1872, the Bench of C. Nagappan and R.F. Nariman, JJ, answered in the negative and said that Section 28 of the Contract Act, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language as the Amendment does not purport to be either declaratory or clarificatory.

In the present case, the bank guarantees dated 31.1.1996 which restricted the period within which they could be invoked were in question and it was contended by the Union of India that such Bank Guarantees would not be affected by an amendment made one year later i.e. on 8.1.1997 and the relevant date and the relevant law applicable would be as on 31.1.1996, which would be the unamended Section 28. Accepting the aforementioned contention, the Court said that the unamended Section 28 would be the law applicable as on 31.1.1996, which is the date of the agreement of bank guarantee.

The Court considered the Statements of Object and Reasons of the Amendment as stated in the 97th Law Commission Report where it was stated that the Amendment seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent. The Amendment therefore seeks to set aside the distinction made in the case law up to date between agreements which limit the time within which remedies can be availed and agreements which do away with the right altogether in so limiting the time. The Court, hence, noticed that these are obviously substantive changes in the law which are remedial in nature and cannot have retrospective effect. [Union of India v. Indusind Bank Ltd.2016 SCC OnLine SC 944, decided on 15.09.2016]