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Article Published in the Express Magazine Dated
February 17, 2002
General Attorney : Rajiv K. Luthra
After a fairly long period of litigation, due
to delay caused by the opposite party on one
pretext or the other, the court finally passed an
exparte decree in my favour. Now, I have received
a copy of an application filed in court by the
other side, praying for setting aside the decree
on the ground that they suffered due to the lapses
and negligence of their lawyer. Will the court
accept such a plea?
B.K. Roy, Chennai
There is no definite rule prescribed for such a
situation, where a party seeks to disown the acts
of its advocate, to seek relief. This would have
to be looked into by the court in the light of
circumstances, peculiar to each situation. The
Hon'ble Apex Court while dealing on a similar
issue held that an advocate is the agent of the
party. His acts and statements, made within the
limits of authority given to him, are the acts and
statement of the principal i.e. the party who
engaged him. In certain situations the court may,
in the interest of justice, set aside a dismissal
order or an exparte decree notwithstanding the
negligence and/or misdemeanour of the advocate,
where it finds that the client is an innocent
illiterate litigant. However, the Hon'ble Court
also stated that "no such absolute immunity can be
recognised. Such an absolute rule would make the
working of the system extremely difficult."
Amongst other issues the Apex Court examined the
tenure of the litigation and the party's
co-operation with the court throughout its
pendency i.e. the intention of the defaulting
party, whether there were any deliberate efforts
to delay the proceedings. It took into account,
the defaulting party's background and its
competency to follow the court proceeding in order
to protect their interests.Likewise, it may be
expected that similar issues may be looked into by
the concerned court while dealing with your case.
I had entered into a contract with a supplier
for purchase of certain goods. The delivery was to
be made fifteen days later. However, in between
the prices of those goods escalated in the market.
The supplier has refused to supply the goods
saying that under the contract it was impossible
for him to supply them. Is this not a breach on
his part? What is my legal position?
Kabir Raina, Delhi
According to the Latin maxim "Pacta sunt servanda”,
a contract has to be performed in the way it has
been agreed upon between the parties. Hence, under
the Indian Contract Act, 1872, ("Act"), unless a
stipulation has been expressly agreed in the
contract, failure on the part of the supplier due
to enhanced costs maybe treated as a breach of the
contract. The courts would not absolve a party
from the liability to perform the contract merely
because the performance has become onerous. This
situation will not even be treated as a condition
for frustration of contract as stipulated under
Section 56 of the Act. Frustration of contract,
making the same void, is said to occur when the
acts under the contract become impossible or
unlawful to be performed.
The parties to an executory contract are often
faced, in the course of carrying it out, with a
turn of events, not anticipated by them. An
increase in expense/costs is not a ground of
frustration and this does not in itself affect the
bargain between the parties. The Hon'ble Supreme
Court in a relevant case on the point has held
that the Act does not enable a party to a contract
to ignore the express covenants thereof, and to
claim payment of consideration for performance of
the contract at rates different from the
stipulated rates, on some plea of equity.
If there is no specific stipulation in your
contract for this situation, you may consider
either filing a suit for specific performance of
contract asking the seller to deliver the goods or
in the alternative, claim damages as a remedy
available under the Act.
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