 Under 75 ICA, it has been provided that person who has rightfully rescinded the contract is

entitled to compensation for loss occasioned by the non- fulfillment of contract. There are two
types of voidable contract- 1) initial voidable- those contract which are voidable since the
beginning; 2) subsequent voidable- they become voidable afterwards but initially they were
contract- 53,55 and 39. There is a special reason why 75 clearly uses the words “non-
fulfillment” as opposed to rescission or breach of contract. This was sone so as to bring the
Indian law in conformity with the English rule. 75 is applicable only on subsequent voidable
contract and since situations covered under 19 and 19A are voidable initially itself, they don’t
come within the ambit of 75 as has been observed in the case of Haji Ahmad Khan v Abdul
Gham Khan (Vivian Bose J).
 Law prohibits UI and not influence. It is not the influence which vitiates the contract, rather UI
vitiates the consent. This was observed in the case Poosathurai v K chettiar (PC, 1919).
 Subhas Chandra Das v Ganga Prosad Das, 1967 SC; in this case father is financially and
physically dependent on son and in such case son will have the apparent authority over father
and will be able to dominate the will.
 Raj HC in Mehboob Khan v Hakim Abdul Khan: 1) prevents the person from expressing his
true mind; 2) overcomes the resistance power; 3) brings about the submission of the other. UI
is a subtle specie of fraud. UI is a subtle specie of fraud- Mehboob Khan v Hakim Abdul Rahim
(Raj HC)- points- 1) fraud
 any gift by Pardanashin lady will be considered to fall under the ambit of mental incapacity
because she does not mix with the society and therefore, her mind is weak and gullible and
her case will be covered by 16(1)- Chand Singh V Raj Kaur(Punjab), 2) any property executed
by the debtor to the creditor to repay the loan which is thrice the value of the loan was held to
be done under UI- Bhimbat v Yashwant Rao (Bom); 3) A woman having no source of
maintenance seeks loan at 100% interest rate- Annapurni v Swaminathan (Mad); Ailing
person gave the whole of property while in nursing home, held UI- Luxmi Amma v T Narayanan
SC; sale on low price by an illiterate and ignorant villager to shrewd businessman, held UI-
Nathu lakhu v Anandilal MP HC; threat to cause economic loss is also exercise of UI- Dai Ichi
Karkaria Pvt Ltd v ONGC (Bom); Employer imposing unreasonable terms of contract- Central
Inland Water Transport Corporation v Brojo Nath Ganguly (SC)

 The court will jealously watch all the transaction between the partie placed in fiduciary
relationship- Ghulam Ali v Naziruddin (Gauhati HC);
 Anticipatory breach of contract developed for the first time in the case of Hochester v De La
tour. In this case there was a contract to join services. 15 days before the date of the joining,
the employer asked the employee not to join the services, this is anticipatory breach of
contract. In such cases the promisor refuses to perform his contract or disables himself from
performing the contract before the date of the performance of the contract.
 Put an end to contract denotes that it is a subsequent voidable contract because if it was
initially itself a voidable contract, the legislature would have stated put an end to the voidable
contract.
 In India also this concept has been recognized in various cases like- Nannier v Rayalu Iyer
(1925) Mad and Jawahar Singh v State of Punjab (1926) PC
 Shiv Singh Chouhan v UOI (2013) HP HC; there was a govt contract and before the date of
performance, the contractor had to deposit money but he failed to do so. Govt terminated the
contract and this was valid as the contract was voidable at the option of the Government
under 39.
 Harprasad Choubey v UOI (SC): there was contract for supply of coal by the contractor to the
Govt but the contractor could not carry the coal due to Govt policy wherein carrying coal to UP
was prohibited. Therefore, contractor was prevented from performing his contract and he can
terminate the contract and claim compensation under 53
 Test of the essence of the contract has been given by R K Prasad J in Orissa Textile Mills v
Ganesh Das; 3 tests have been laid down- 1) expressly agreed by the parties; 2) delay operates
as injury; 3) nature and necessity of contract. This applies when the contract is not clear as to
whether the time is the essence of the contract. For ex: in a shipping contract, it is presumed
that time is the essence of the contract- China Cotton Exporters v Bihari Lal (SC). Where the
contract provides for the immediate destruction of the goods, then in such case also time is
the essence of the contract. In Contract for I. Property time is not the essence of the contract-
M sreenivas v MS Kuttukaran Ltd (2009) SC.
 Section 26 provides that agreement in restraint of marriage except in cases of minor is void.
This section applicable only in case of major and not in case of minor. Same rule exists in
English law in the case of Lowe v Peers.
 Agreement in restraint of marriage, whether absolute or partial, is void. This is so because if
there was any qualifying condition, the Legislature would have added that in the section itself.
This becomes even more unambiguous by reading Section 28 which explicitly uses the term
‘absolute restraint’. Therefore, on reading Section 26 and 27 in conjunction with 28 one can
draw the conclusion that in 26 and 27 both partial and absolute restraint is included. This
interpretation has been given by Couch J in Madhub Chander v Raj Coomar (1874) (this is the
first case of ICA).
 Sometimes a penalty or condition may be added to the agreement to marry. In Mohd Hussain
v Navi Jahan (All HC), co- widows agreed that if anyone of the remarries, they would forfeit
the right in dead husband’s property. One of them got married and brought a suit claiming
that the agreement was in restraint of marriage. The court held that since the agreement is of
marrying and not of not marrying, then in such cases 26 will not apply
 Madhub Chander v Raj Coomar- two shopkeepers A and B made a contract that if A closed his
shop, B will give money to him. There was some competition between them and later on A
closed his shop and sought money from B but B refused. In this case the Court held that this
was an agreement in restraint of lawful trade.
 Pool agreement: pool agreement means when two or more persons enter into an agreement
to merge all their commodities or goods and carry on the business like partnership but all
partnership agreement are pooling agreement as other essential conditions also required to
be fulfilled. This sort of agreement is not contrary to Section 27. This is merely putting a
restraint on the way the business is carried on and not restraining the business as a whole-
Carew and Co Ltd v North Bengal Sugar Mills Ltd (1951) Cal HC.
 Price fixation agreement- under this businessmen gather together and agree to sell the goods
at a particular price but this is subject to the Competition Act. This is not restraining the TPB
and is valid- Bombay Ice Company v SB Fraser and Co (1904) Bom
 Carliles Nephews and Co v Ricknauth Bucktermull (1882) Cal- solus agreement is not void.
 Agreement to serve any other while employed- this is valid and is not a restraint under 27 and
it even increases the efficiency of the workers. Charlesworth v McDonald (1898) Bom,
 Niranjan Shanker Golikari v Century Spinning and Manufacturing Co Ltd (1967) SC- the court
observed that agreement not to serve others after the termination of employment is void to
that extent as it is in restraint of trade. Longdale had said that SP will not be granted in cases
of doing something but if it is a contract to give something, then it will be granted.
 M/S Gujarat Bottling Co v Coca Cola Ltd, Coca cola had made an agreement with the company
that they will make bottles only for them and not for anyone else while this agreement was in
operation. The court held that this term was not in restraint of TPB and hence was valid.
 Rajasthan Electricity Board v Universal Petrol Chemicals Ltd (2009) SC; in this case both Cal
and Raj HC had juris. to try the case. Agreement made between the parties that agreement to
be enforced only at Calcutta. Held this term was valid.
