Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or stoppage in transit. The buyer s hall deposit with the Company 25% of the total value of the stores at the time of placing the order. The deposit shall remain with the Company as earnest money and shall be adjusted in the final bills, no interest shall be payable to the buyer by the Company on such amounts held as earnest money. 10. Time and method of payment. If the buyer shall make default in making payment for the stores in accordance with the provisions of this contract the. Company thinks best and recover from the buyer any loss incurred on such resale. The Company shall, in addition be entitled to recover from the buyer any cost of storage, warehousing or removal of the stores, from one place to another and any expenses in connection with such a resale or attempted resale thereof. The first question that arises for consideration is whether the payment of Rs.
2,50,000 by the appellants was by way of deposit or earnest money. But this does not affect the seller’s right to recover damages for breach of contract unless it as by way of deposit or guarantee in which case it is forfeited. It is further stated that an earnest does not lose its character because the same thing might also avail as a part payment. Regarding “deposit”, the author states at p. In Howe v. Smith(1) Fry, L.J., discussed the history of “earnest”, which is identical with a deposit. What is the deposit ? The deposit, as I understand it, and using the words of Lord Justice James (in L. R. 10 Ch. We have therefore to consider what in ordinary parlance, and as used in an ordinary contract of sale, is the meaning which business persons would ‘attach to the term ‘deposit’. Money paid as a deposit must, I conceive, be paid on some terms implied or expressed. In this case no terms are expressed, and we must therefore inquire what terms are to be implied.
Certain characteristics, however, seem to be clear, An earnest must be a tangible thing, in which definition it may be that a deposit is included, but in the old cases it was always some tangible thing. Earnest’. . . meant something given for the purpose of binding a contract, something to be used to put pressure on the defaulter if he failed to carry out his part. If the contract went through, the thing given in earnest was returned to the giver, or, if money, was de- ducted from the price. Willing on old terms namely earnest twenty thousand balance in two moieties. ] 1 S. C.R. S. 74 (of the Indian Contract Act). That has been decided in several cases. Kunwar Chiranjit Singh v. Har Swarup (AIR 1926 P.C. Roshan Lal v. The Delhi Cloth and General Mills Co. Ltd. Delhi (ILR 33 All. Muhammad Habibullah v. Muhammad Shafi (ILR 41 All. Bishan Chand v. Radha Kishan Das (ILR 19 All. These cases are easily explained, for forfeiture of reasonable amount paid -as earnest money does not amount to imposing a penalty.
But if forfeiture is of the nature of penalty, S. 74 applies. Section 74 declares the law as to liability upon breach of contract where compensation is by agreement of the parties predetermined, or where there is a stipulation by way of penalty. But the application of the enactment is not restricted to cases where the aggrieved party claims relief as a plaintiff. This Court applied s. 74 of the Contract Act, and ultimately fixed a particular amount which the plaintiff would be entitled to as reasonable compensation in the circumstances. Mr. Maheshwari placed considerable reliance on the above extracts in support of his contention and urged that the recitals regarding forfeiture of the amount of Rs. 2,50,000 shows that the contract contains a stipulation by way of penalty and therefore s.74 is attracted. It is not possible to accept this contention. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does not apply.
Mr. Maheshwari finally urged that s.64 of the Contract Act may apply and he also relied on the decision of the Judicial Committee in Murlidhar Chatterjee v. International Film Co.(1). On the basis of that ruling he urged that the respondents are bound to restore the benefit that they have obtained under the contract. In our opinion there is no scope for applying s.64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with s.64 has no relevance. We have already pointed out that the appellants raised a contention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the. appellants had proceeded on that basis, then the contract would have been voidable at their instance under s.19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of contract was committed by them. Hence s. 64 cannot be invoked by the appellants. In this view, the second contention also fails. In the result’, the appeal fails and is dismissed with costs.
Very tittle is happening in the world of PERS these days. The election is just two weeks away and many elements of the PERS agenda will be established after we know who will control the Oregon House and the Oregon Senate. If the Democrats take both houses, the PERS bills are likely to be less draconian than if the Republicans control the Legislature. Dr. No is still Governor and so a veto of any anti-PERS bill is still possible. On balance I expect a number of major PERS bills to be introduced into the Legislature but have no idea which will pass and which will not see the light of day. I’m hard at work gathering information, but I am not in a position to report anything because the election will determine many things about the likelihood of major PERS reform. There WILL be a change to the assumed rate decided during 2013 for implementation on January 1, 2014. Both employers and PERS members are likely to oppose this change since it will mean higher employer rates and lower employee benefits.
However, PERS has some latitude to reduce the employer impact, while still socking it to members on the verge of retirement. The Legislature convenes in late January, with the first bills likely to be passed in late March or early April. The courts have consistently ruled that the Legislature cannot change PERS retroactively, but the definition of retroactivity has not be firmly defined. Right now, I am far away from Portland and do not expect to be back until the early part of November, before the elections. Although I continue to get information, I’m not in a place where it is simple for me to just pick up the phone and gab with people about the perceived impact any particular action might have. Please stay tuned as once the election is over, the serious business of figuring out what the Legislature might have planned for PERS will become clearer. The 2013 session is likely to be as volatile as 2003, but the courts have made the boundaries of legislative action more marked.
In actuality, there aren’t many bad things that can happen to people on the contingent edge of retiring. This is where the definition of “retroactive” becomes crucial and will be, most likely, up to the courts to determine. The Legislature has an unfortunatete habit of shooting first and worrying about the consequences later. Happily, if this occurs, every legislative bill on PErS has a clause that directs resolution immediately to the Oregon Supreme Court. This means that the time between a law passing and the law’s legality being determined is typically two years or less. There are no civil actions extant, and so any litigation that arises to PERS will be of the sort that goes directly to the OSC for immediate resolution. My advice to those anxious about this is to hang loose until after the election. You can help the situation out by voting against any candidate twho has expressed any negative opinion of PERS. If you don’t know about your own legislator, write the candidates and ask them their position on PERS. Most will answer honestly, or at least in a way that clues you in to how they might vote on prospective PERS legislation. Support those candidates with established records on PERS issues or those who have taken a stand that indicates that they would be inclined to give some leeway to PERS members. If not, then any negative results are on you, not me. Keep your eyes and ears open, and seek information wherever you can. The vote you use may be to your benefit if exercised properly. I’ll be back after the election to handicap the outcome of certain likely PERS bills to appear before the Legislature.
Our constitution doesn’t give rights to people; it’s supposed to prevent government from interfering with their unalienable rights. The Bill of Rights and the further amendments declare some of our rights. Supreme Court case law clarifies others and carries the weight of an amendment and supersedes all state laws. One of these rights is your right to parent your child. Be prepared to defend it for you and your child. The Supreme Court has recognized the fundamental importance of the parent-child relationship and has ruled time and again that this right is not to be deprived without the highest due process required. At the state level special interest groups who derive much money from divorce-related laws and procedures have grown enormously powerful over the last 40 years. They have tried to degrade the rights of fathers by perverting divorce and paternity laws as well as the procedures by which these laws are carried out in family court. Fathers know – in consonance with Supreme Court rulings – how precious is maintaining their parenting rights for both their children’s wellbeing and their own.
To stand up to a state family court system that is hell-bent on divorcing a father from his children, his assets, and his income, there are things that fathers need to know. A father must be sufficiently aware of legal procedures to know how not to inadvertently give away his rights to his children. In addition he must maintain a legal stance in his pleadings, motions, and arguments that can justify his redress in an appeal against any unjust deprivations the court will most likely impose on him. I strongly suggest that a father guarantee his chance to preserve his right to directly parent his child – as everyone understands what parenting means – by getting his position against any infringement of it verbally on the record. Judges and lawyers feel they may do as they wish because of the power and influence of the special interest groups that support and profit from unjust denial of a father’s right to parent his children. But a father can hold a judge accountable to his denial of his rights and the due process such rights require by exposing the unconstitutional behavior of the judge and anyone else who has participated in denying him his rights. Unfortunately, you can’t trust lawyers to defend you and inform you of your constitutional options. They’re too embedded in perversions of family court processes and afraid of harming their future status by upsetting judges. Fathers serve their children and themselves best by being aware of their rights and the judicial process they will face – as well as the strategies they must consider – before the divorce or paternity action begins. Shane Flait gives you the capability you need to fight for your rights.
Divorce on Ground of Desertion. Divorce on Ground of Desertion under Hindu Marriage Act. ] In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions are required: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). In actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. Suppose, a spouse every day, while he goes to bed resolves to abandon the matrimonial home the next day but continues to stay there, he had formed the intention but that intention has not been translated to action. Similarly, two elements are essential so far as the deserted spouse in concerned: (1) the absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention .
If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s consent is present. ] The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that both should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter.
] It is also necessary that there must be a determination to an end to marital relation and cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty. The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct amounted to desertion. The wife left the matrimonial home for paucity of accommodation and the husband refused to live separately from the members of his family due to meager income. Case Laws or Citation for Divorce on Desertion . No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.
There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. In the instant case the appellant herself pleaded that there had not been cohabitation between the parties after the marriage. She neither assigned any reason nor attributed the non-resumption of cohabitation to the respondent. From the pleadings and evidence led in the case, it is apparent that the appellant did not permit the respondent to have cohabitation for consummating the marriage. In the absence of cohabitation between the parties, a particular state of matrimonial position was never permitted by the appellant to come into existence. In the present case, in the absence of cohabitation and consummation of marriage, the appellant was disentitled to claim divorce on the ground of desertion. Bench: R.P. Sethi, Y.K. R.P. Sethi & Y.K. “1. Whether the defendant has treated the petitioner with cruelty? If so, its effect? 1. Whether the petitioner is entitled to relief under Sec.27 of the Hindu Marriage Act?
If so, its effect? 2. Whether the defendant is entitled to any relief? If so, its effect? 3. To what relief, parties are entitled? It may be noticed that no issue with regard to alleged desertion was insisted to be framed. With respect to the issue of cruelty, the Family Court concluded that no evidence had been led to prove the allegations. The Court, however, held: “but it is proved that the respondent had deserted the petitioner, hence the petitioner will get or is entitled to for a decree of divorce”. On appreciation of evidence led in the case, the Division Bench of the High Court held: “We also do not find any evidence that the wife has been treated with cruelty by the husband. We have heard the learned counsel for the parties and perused the record. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act.
Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage.