Law: Contract, Act, 1872

Section: 62

Law: Civil Procedure Code (V of 1908)

Section: 10

Law: Specific Relief Act, 1877

Section: 12,42

(a) Contract Act (IX of 1872)--- ----S.62---Novation of contract----Principles----To establish novation of contract, it must be established that there existed a previous valid agreement, that there existed an agreement of parties to cancel previous valid agreement, that there existed agreement of parties that second agreement replaced first agreement and finally that the validity of second subsequent agreement must be established. (b) Contract--- ----Contract of correspondence---Place of contract, determination of---Contract of correspondence was deemed to be made at place where letter of acceptance was posted. The Firm Hira Nand Murti Dhari through Murti Dhar v. The Firm Gurmukh Rai Radhakishen through Radhakishen AIR 1923 Lah. 427; Firm Kanhaiwalal v. Dineshchandra AIR 1959 Madhya Pradesh 234 and Lahore Development Authority v. Sunbeam Corporation (Regd.) PLD 1984 Lah. 430 rel. (c) Civil Procedure Code (V of 1908)---- ----O.VII, R.10----Specific Relief Act (I of 1877), Ss.12 42 --- Suit for specific performance of (commercial) contract --- Return of plaint on ground of lack of territorial jurisdiction --- Adjudication upon question of territorial jurisdiction----Application of defendant under O.VII, R.10, C.P.C. seeking to return plaint on ground of lack of territorial jurisdiction was allowed by Trial Court---Contention of plaintiffs, inter alia, was that such order was made on basis of Agreement between parties which provided that jurisdiction would lie in a foreign country, however, per defendants, said Agreement was superseded by subsequent Agreement which did not have an exclusionary clause vis- -vis territorial jurisdiction----Validity----Burden existed upon plaintiffs to prove not only that the alleged second agreement validity existed but also the place where the same was accepted so as to establish territorial jurisdiction of Trial Court through clear satisfactory evidence---Question of territorial jurisdiction, in the present case, was a mixed question of facts and law, which could only be resolved upon appraisal of evidence to be led by parties, which was not done by Trial Court ---- High Court set aside impugned order of Trial Court and remanded…

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