9911796707
TMI Blog1888 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to repay it, namely, Magh 1289, then interest upon the original sum and upon the interest up to Magh 1289 was to run at the rate of twenty-four per cent, per annum. The money was not repaid on the date fixed for its repayment, namely, Magh 1289. The defendant not being able to pay went to the plaintiff, and said in effect this to him: "I am not able to pay you what is due to you under the bond; but I will pay you in cash Rs. 400, and I will execute a fresh kistibundi bond in your favour for Rs. 701." The plaintiff accepted these terms, but the defendant failed to carry them out. He did not pay the plaintiff the Rs. 400, nor did he, as he ought to have done, tender the kistibundi bond for Rs. 701 to the plaintiff. The plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bullen and Leake's Pleadings, 3rd edition, page 673. It is said there: "It is competent to the parties to a contract at any time before breach of it by a new contract to add to, subtract from, or vary the terms of it, or altogether to waive and rescind it. The substituted contract forms a good defence to an action on those terms of the previous contract which have been altered by it, and may be so pleaded without any performance or satisfaction which is required to constitute a good plea after breach." Then the form of the plea is given at page 675--"that after the alleged contract and before any breach thereof it was agreed by and between the plaintiff and the defendant that the said contract should be rescinded, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not tendered the bond. The question is, what were the rights of the parties under these circumstances? It seems to us perfectly clear that the parties were relegated to their rights and liabilities under the original contract, and that the plaintiff, upon breach by the defendant of the terms which he had made, and upon the non-performance by him of the satisfaction which he had promised to give, was relegated to his rights under the old contract, and was entitled to bring the suit on the basis of the old bond, and to recover the money which he claimed.
6. The appeal must therefore be allowed, the decision of the Additional Judge set aside, and that of the Second Subordinate Judge restored, with costs in all the Courts. X X X X Extracts X X X X X X X X Extracts X X X X
|
