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MERCANTILE LAW 315, intention may be more readily presumed in commercial matters 2. Absence of intent to create legal relations may be inferred where. a person who is asked to accept an offer intimates that he would. accept after the agreement is reduced to writing 3. Of course neither an offer nor an acceptance is required to be. express It can be implied as is clear from section 9 of the Act. Thus non repudiation of certain terms may be regarded as. acceptance thereof 4, The heart of the definition of proposal in section 2 a. Contract Act lies in the words willingness to do or to abstain. from doing something 5 Hence a mere invitation to another. person to indicate that person s terms is not a proposal or offer. Thus if in reply to an offer to purchase property for Rs 6 000. the agent of the offeree merely says won t accept less than. Rs 10 000 there is no offer by the agent 5,Acceptance of Offer. Section 2 b of the Act provides that a proposal when accepted. becomes a promise Section 2 e defines an agreement as a. promise or a set of promises forming the consideration for each. other Section 2 h defines a contract as an agreement enforce. able by law Thus the pyramid that forms a contract must have. at its base an accepted offer Section 5 of the Act provides that. an offer proposal may be revoked at any time before its. acceptance is complete as against offeror It is against the. background of these provisions in N Sesharatnam v Sub Collector. Land Acquisition Vijaywadaf the Supreme Court held that if a. person whose land is to be acquired shows his willingness. to accept the acquisition but withdraws the offer before it is. accepted by the Acquisition Officer then he can challenge the. acquisition proceedings if an adverse award is made after such. withdrawal, CWT v Abdul Hussain 1988 3 SCC 562 568 Cf Kle rort Benson v. Malaysia Mining Corporation 1988 1 All ER 714, Thawadas Pherumal v Union of India AIR 1955 SC 468.
Haji Mohd hhaq v Mohd labal 1978 2 SCC 493 500 Ramji. Dayawala Sons v Invest Import 1981 15 SCC 80,Mc Pherson v Appana AIR 1951 SC 184. AIR 1992 SC 13,316 FIFTY YEARS OF THE SUPREME COURT. According to section 2 b the acceptance of an offer requires. that the person to whom the proposal is made should signify his. assent The court has elaborated this requirement by pointing out. that mere intent to accept or mere resolve to accept an offer does. not give rise to a contract There must be some external. manifestation of that intent by speech writing or other act 7. Acceptance must of course be communicated to the person who. made the offer This is the reason why it has been held that the. mere filing of a suit does not constitute a formal acceptance 8 As. regards such communication of an acceptance section 4 of the. Act is relevant, a Acceptance is complete as against the proposer when it is put. in the course of transmission to him so as to be out of the. power of the acceptor, b It is complete as against the acceptor when it comes to the. knowledge of the proposer, Acceptance can be by phone But difficult questions arise as.
to the place where the contract is made in such cases In England. it has been held that in such cases of instantaneous. communication the contract is made at the place where the. acceptance is received 9, This is also the view taken by the Supreme Court by a. majority judgement in Bhagwandas Goverdbandas 10, Acceptance of course must be total N o contract arises if only. a part of the offer is accepted 11 Acceptance should be unequivocal. and not provisional 12 There can be a series of contracts between. the parties At each stage there is a distinct offer and a distinct. acceptance 13, Bhagwandas Goverdhandas v Girdhari Lai Parshottamdas Co AIR. 1966 SC 593, Vtswesardas Gokuldas v B K Narayan Singh 1969 1 SCC 547 549. Brinki Bon Ltd v Stahag Stabi 1982 1 All ER 293 HL. Supm note 7, General Assurance Society Ltd v LIC AIR 1964 SC 692.
Lakhanlal v State ofCrissa 1976 4 SCC 660, Chathirbhuj Vtthalets v Moreshwar Pamshran AIR 1954 SC 236. MERCANTILE LAW 317, A clause in a tender authorising the party inviting tenders to. terminate the contract at any time for the future does not destroy. the very basis of the contract and the clause is valid 14. Consideration for a Contract, What is good consideration in law is one question that has come. up before the courts again and again Following propositions. seem to emerge from the decisions of the Supreme Court. a Consideration can be executed or executory5 In the former. case it is present consideration In the latter case the. consideration is a promise for a promise 15, b Reciprocal promises are sufficient to constitute a contract 16. c Consideration must17 be something which the law can regard. as having some value This does not of course mean that it. must be quantitatively equal to the thing promised 18. d Where an agreement is arrived at between certain members of. a family that is designed to promise grace and goodwill. This by itself is a good consideration in order to support the. transaction 19, Under section 2 d consideration can proceed from a person.
other than the promisee However the question whether a third. party can sue on a contract is a different one and in general a. third party cannot sue 20, A contract may contain provisions for revision of its own. terms such as a by providing for extension of time limits for. various acts or b by providing for review of prices say by. escalation clauses Such escalation clauses have been upheld even. in public law 21,Union of Indi v Maddata Thattiah AIR 1966 SC 1724. Uniott of India v Chaman Lal Loma Co AIR 1957 SC 652. Pinka Bhargava v Mahiner Nath 1991 SCC 566,Chidambara v PS Renga AIR 1965 SC 193 197. A Lakshmana Swami Mundatiar v LIC AIR 1963 SC 1185. CWT v Her Highness Vtjayaba AIR 1979 SC 982, M C Chachar v State Bank of Tmvancore AIR 1970 SC 504 PR. Subramania Iyer v Lakshmi Ammal 1973 2 SCC 54, Delhi Cloth General Milk v Rajasthan State Electricity Board 1986.
318 FIFTY YEARS OF THE SUPREME COURT, While dealing with insurance policies the court has laid down. two very important propositions, a Once the policy is issued the contract is concluded and its. existence cannot be questioned by the insurer, b It is the duty of the insurer particularly if it is a state. instrumentality to produce the policy in litigation 22. Under section 5 of the Act inter alia acceptance of an offer. can be revoked before its communication is complete as against. the acceptor In the case of auction sales where confirmation of the. bid is prescribed by the conditions of revocation acceptance by. bid can be revoked before such confirmation 23, The contract is conciliated only when confirmation is done. and communicated 24 Non deposit of 25 per cent of the bid as. required by rules means that no contract arose even if the bid is. accepted 2,Competence to Contract, By reason of the combined operation of sections 10 11 of the.
Act a minor is incompetent to contract 26 This incompetence. extends to release of proprietory rights 27 obviously because release. has also to be based on valid consent, Where there are several trustees one of them unless. authorised by the trust deed cannot contract on behalf of the. Consent in relation to contract may be vitiated by mistake or. other flaws Section 13 of the Act states that two or more. persons are said to consent when they agree upon the same thing. National Insurance Co Ltd v Jugal Kuhore AIR 1988 SC 719 723. Union of India v Walaiti Ram 1969 3 SCC 146,Ha dwar Singh v Begum Sumbrui AIR 1972 SC 1242. State ofAiP v Gopardhandas AIR 1973 SC 1164, Padma Vithopa Cbakkaya v Mohammad Multatn AIR 1963 SC 73 74. WaU Singh v Sohan Singh AIR 1954 SC 263 265,Shanri Vtjay Co v Princess Fatima 1994 SCC 602. MERCANTILE LAW 319, in the same sense Mistake of identity would thus prevent.
Mistake deliberately induced by another as to the character of. a document stands on a similar footing 30 and in such a case the. transaction is void not merely voidable This does not mean that. a person who is not deceived can plead that he did not read a. particular document containing legal terms or that he was. ignorant of its precise legal effect 31 Mistake of law e g mistake. as to the effect of registration upon the validity of a document. does not nullify the contract 32, Questions of undue influence section 16 of the Act as. vitiating the quality of consent have often arisen in the context. of illiterate women In Sethan v Bhana33 the following facts. showed that the purchaser of land was in a position to dominate. the will of the seller, a The sale deed was by a tribal woman who was old illiterate. b N o apparent evidence of the passing of consideration existed. c The woman was living with the purchaser till her death and. was dependent on him, It was held that the purchaser carried the burden of proving. that the sale deed was not executed under undue influence. It is clear that mere statutory compulsion is not to be regarded. as undue influence 34 Difficult questions however arise when one. member of the family is preferred in a testament to the total. exclusion of all others In such cases courts usually require proof. that undue advantage was taken of the situation that created. dominance of will Mere preference is not a proof of undue. Central National Bank v United Industrial Bank AIR 1954 SC 18. Dularia Devi v Janmardan Singh AIR 1990 SC 1173, Bihar State Electricity Board v Green Rubber Industries AIR 1990. Rolyanpur Time Works v State of Bihar AIR 1954 SC 165. AIR 1993 SC 956,Andhra Sugars Ltd v State of AP AIR 1968 SC 599.
Afiar Sheikh v Soleman Bibi 1976 2 SCC 142 Subhash Chandra v. Ganga Prasad AIR 1967 SC 878,320 FIFTY YEARS OF THE SUPREME COURT. Of course the circumstances may be so outrageous that if one. may say so the thing speaks for itself For example where a. donor suffering from several ailments executed in the nursing. home a deed favouring one grandson and even almost totally. neglecting his wife and daughters the presumption of undue. influence would be justified 36 Further in the Indian context. transactions by pardanasheen women are very carefully scrutinised 37. Section 17 of the Act deals with fraud as vitiating consent The. classes of acts constituting fraud are enumerated in the five. clauses of the section but the mental element indicated by the. words with intent to deceive occurring in the opening part is. the most important Thus if a husband persuades his illiterate. wife to sign two documents telling her that her two lands were. being mortgaged to meet his debts when in fact four lands were. mortgaged deception was obvious 38, Negative or passive silence when there is no duty to speak or. disclose the facts is not fraud 39 Duty to speak may arise when. the contract is one of absolute good faith as for example. contracts for life insurance 40, Section 23 of the Act provides that every agreement of which. the object or consideration is unlawful is void The concept of. unlawful object or consideration is spelt out in five clauses of the. section The emphasis in some of these cases is on avoiding. agreements which are in conflict with the law or which are. immoral or opposed to public policy, Cases of conflict with the law do not present much difficulty. Sale of certain commodities without licence required by statute. is void 41 A condition in a contract of carriage which would be. against section 10 Carriers Act 1865 is similarly void 42. Statutory stage carriage permit granted to a State Road Transport. Corporation cannot be allotted to private operator 43 In all such. Lakshmi Ammo v T Narayana Bhalla AIR 1970 SC 1367,Kharbuja Kuer v Jang Bahadur AIR 1963 SC 1203.
Nyawwa v Byrappa AIR 1968 SC 956, Shn Krishnan v Kuruksbetra University AIR 1976 SC 376. Mithoo Lai Nayak v UC of India AIR 1962 SC 814,lKM Kamath v K Bsmgappa Baliga Co AIR 1959 SC 781. 2M G Brothers Lorry Service v Prasad Textiles AIR 1984 SC 15. 3Brij Mohan v Shiv Narayan AIR 1987 SC 291,MERCANTILE LAW 321. cases the court examines whether the language of the statute. yields a definite prohibition 44 Such a prohibition cannot be. changed by an agreement or compromise 45, The same approach is adopted where the agreement would. defeat the legal structure or policy of the law albeit indirectly. for example a benami transaction to evade taxes46 or to prevent. competitive bidding at court auctions 47, Where the attack on an agreement is based on morality or.
public policy the role of the court becomes a difficult one. because here the court takes leave of definite boundaries and has. to enter an area that is unbounded unaccepted and uncharted It. has thus been held that a wagering agreement is not immoral 48. Of course there are some situations where conflict with public. policy is writ large for example where the agreement is to. secure a favourable decision from the government by wielding. influence 49 It seems that prevailing social values would be the. criterion for the decision of the court in this regard 50. Section 23 of the Act last sentence provides that every. agreement of which the object or consideration is unlawful is. void The first sentence of the section provides that the. consideration or object of an agreement is unlawul inter alia if. it would defeat the provisions of any law or if the court regards. it as immoral or opposed to public policy Illustration h reads. A promise to drop a prosecution which he has instituted against A for. robbery and B promises to restore the value of the things stolen The. agreement is void, It is under the head of public policy that courts have held that. an agreement to stifle a prosecution is void 51 If the prosecution. is for a non compoundable offence l you cannot make a trade of. Mannalal Khetan v Kedar Nath Khetan 1977 2 SCC 424. 5Nagindas v Dalpatram AIR 1974 SC 471, Surasaibalini Debt v Phanindra Mohan AIR 1965 SC 1364. 7Kedar Nath Motani v Prahlad Rat AIR 1960 SC 213 216. zGherulal Parkb v Mahadeo Das AIR 1959 SC 781, 9Kaju Collieries v Jhakhand Mines AIR 1974 SC 1892. Ratan Cband Hira Chanda v Askar Nawaz Jung 1991 3 SCC 67. Bhawanipur Banking Corp v Durgesh Nandini AIR 1941 PC 95. 322 FIFTY YEARS OF THE SUPREME COURT, a felony One partner filed a criminal complaint against his co. partners for forgery and then the partners agreed to refer the. matter to arbitration in pursuance of which the complainant. partner offered no evidence and his complaint was rejected It was. held that the agreement was for an unlawful consideration and. However the court has made a distinction between motive. and consideration If the consideration is lawful then the. agreement is valid 53, Moreover a compromise made before a complaint is filed.
would not amount to stifling a prosecution even if its imple. mentation is delayed and actually takes place after the complaint. is filed 54, In Papaiah v State of Karnataka 55 the court held that where. land is assigned to a member of the depressed classes its. assignment to a third person is against public policy and the. purchaser does not get any right to such land Similarly a promise. to refund sales tax charged lawfully is unconstitutional and against. public policy and cannot be enforced in courts This is so even. if the circumstances constitute a prima facie case of promissory. estoppel 56,Forum Selection Clauses, In a number of rulings the Supreme Court has had the occasion. to deal with the validity of forum selection clauses i e. contractual clauses whereunder the parties seek to provide that. only a particular court shall have jurisdiction to decide disputes. under the contract 57,Narsimha Raju v Gummurthy Raju AIR 1963 SC 107. Union Carbide Corporation v Union of India AIR 1992 SC 248. Ouseph Poule v Catholic Union Bank AIR 1965 SC 166. AIR 1997 SC 2670, Amrit Banaspati Co Ltd v State of Punjab AIR 1992 SC 1075. Hakam Singh v Gammon 1971 1 SCC 286 A B C Laminan Private. Ltd v A P Agencies AIR 1989 SC 1239 Patel Roadways v Prasad Trading. Co AIR 1992 SC 1514,MERCANTILE LAW 323, The position in this regard can be summed up as under.
a Where two or more courts have jurisdiction under the. procedural law the parties can provide that only one of. those courts shall have jurisdiction to deal with disputes. arising under the agreement, b Such an agreement would not be violative of section 23 or. section 28 of the Act, c But an exclusion clause which seeks to confer jurisdiction on. an incompetent court would be void, d Such a clause nominating a particular court as having. exclusive jurisdiction will be valid only if it is brought to the. notice of and agreed to by both the parties, e Besides this the intention to exclude the jurisdiction of other. courts should be expressed clearly say by using words such as. only exclusive alone or other similar phraseology, While section 23 of the Act invalidates illegal agreements.
section 24 provides for severability If the unlawful portion can be. separated from the lawful portion then only the latter is void. This principle is applicable not only to contracts of service 58 but. also to certain other agreements Thus where a transaction. consisted of two portions i ready sale of securities which was. valid and ii forward transactions prohibited by a statutory. notification then only the latter part was held to be void. because the two parts could be separated from each other 59. Agreements in Restraint of Trade, The subject of agreements in restraint of trade is governed by. section 27 whereunder every agreement by which any one is. restrained from exercising a lawful profession trade or business of. any kind is void, Read literally this section would seem to prohibit every. restraint even a restraint limited geographically in point of. area or duration But pragmatic considerations seem to have. induced some high courts in India to dilute the rigour of the. section by upholding partial restraints if they are reasonable. Central Inland Water Transport Corporation v Brojo Nath Ganguly. AIR 1980 SC 1571,JB Q7 Finance Ltd v Custodian AIR 1997 SC 1952. 324 FIFTY YEARS OF THE SUPREME COURT, As for the Supreme Court it has been mainly concerned with. restraints imposed on employees whereunder the employee is. prohibited from carrying on a certain trade or from undertaking. a certain employment, In Nimnjan Sbankar Golikari v Century Spinning Co 60 the.
Supreme Court upheld the restraint which is operative during the. period of employment In that case an Indian company manu. facturing tyre cord yarn was offered collaboration by foreign. producers on certain conditions These conditions imposed the. duty of maintenance of secrecy of all technical information. including the obtaining of a corresponding undertaking from the. employees of the company Accordingly the company while. engaging the defendant as its employee secured an undertaking. from him that for five years he shall not serve anywhere else. even if he left the employment of the company This condition. was upheld as valid by the Supreme Court pointing out that the. agreement was only for five years and was not unconscionable. However the court has held that a restraint beyond the term. of service would be valid only if it falls within the exception to. section 27 which saves a restraint necessary for protecting the. employer s goodwill Even such a restraint would not be appli. cable if the employee is wrongfully dismissed earlier than his. agreed period 61,Restraint of Legal Proceedings, Section 28 main paragraph before its amendment by Act 1 of. 1997 provided as follows, Every agreement by which any party thereto is restricted absolutely. from enforcing his rights under or in respect of any contract by the. usual legal proceedings in the ordinary tribunals or which limits the. time within which he may thus enforce his rights is void to that. After the amendment section 28 main paragraph reads as. Every agreement, a by which any party thereto is restricted absolutely from enforcing his. rights under or in respect of any contract by the usual legal. AIR 1967 SC 1098, Superintendence Co of India v Krishna Murgai AIR 1980 SC 1717. MERCANTILE LAW 325, proceedings in the ordinary tribunals or which limits the time within.
which he may thus enforce his rights or, b which extinguishes the rights of any party thereto or discharges any. party thereto from any liability under or in respect of any contract. on the exipiry of the specific period so as to restrict any party from. enforcing his rights is void to that extent, This section overrides the maxim that custom and agreement. may override the law modus et conventio vincunt leggern. Interpreting section 28 of the Contract Act as it stood before. its 1997 amendment the Supreme Court has held that the. following clause in an insurance policy is valid, In no case whatever shall the company be liable for any loss damage. after the expiration of 12 months from the happening of loss damage. unless the claim is the subject of pending action or arbitration. The reason is that such a clause does not affect the period of. limitation but forfeits the right itself 62 This was previously valid. The question of a civil court s local jurisdiction figured before. the Supreme Court in Patel Roadways Ltd v Prasad Trading Co 63. It was held that where in a suit for damages for loss of goods. caused by fire in the godown of the carrier the defendant. corporation had its subordinate office at the respective place. where the goods were delivered to it for the purpose of transport. the court at the place of its principal office would have no. jurisdiction In another case the Court has held that a clause to. the effect that if no claim is made within 6 months dien no rights. shall accrue is valid 64, A clause limiting the guarantor s liability to a particular period. has been held to be valid 65 However it should be stated that. these decisions were rendered under section 28 Contract Act as. it stood before 1997, National Insurance Co Ltd v S Ganesh Naik Co AIR 1997 SC.
2049 See also Vulcan Insurance Co Ltd v Maharaj Singh AIR 1976 SC. AIR 1992 SC 1514, National Insurance Co v Ganesh Nayak Co AIR 1997 SC 2049. State of Maharashtra v M N Kaul AIR 1967 SC 1634 followed in. Kerala Electrical and Allied Engineering Co v Ca ara Bank AIR 1980 Ker. 326 FIFTY YEARS OF THE S FREME C O U R T,Arbitration Clauses. Some significant points have arisen in regard to arbitration. clauses particularly as to their validity vis vis the validity of the. main agreement It is possible that an arbitration clause may. survive the main contract or conversely the main contract may be. valid but not the arbitration clause 6, Of course an arbitration agreement like any other agreement. would be void if the constitutional formalities as to government. contracts are not observed 67 However subject to these special. principles it can be stated that if the main agreement is valid. then the arbitration clause is also valid, A clause providing that if arbitration is not demanded within. 28 days after the architect s certificate then no claim shall be. admissible under the agreement has been held to be valid 68. Uncertain Agreements, Agreements the meaning of which is not certain or capable of.
being made certain are void as provided by section 29 of the. Act A provision in a contract employing the phrase usual. condition of acceptance only is void if there is no evidence of. such usual conditions 70 In contrast a clause in an agreement. subject to the usual force majeure clause is valid 71 However an. agreement is not void force majeure clause is valid merely. because it does not mention the source from which funds would. be available 72, Section 30 of the Act with certain exceptions provides that. agreements by way of wager are void The section does not. Jawahar Lai Barman v Union of India AIR 1962 SC 378. Union of India v Rallia Ram AIR 1963 SC 1985,State of Maharashtra v M N Kaul Supra note 65. Keshavlal Lallubhai Patel v Lakhan Trikamdas Mitts Ltd AIR 1958 SC. Kolliapara Snramula v T Awastha Narayana AIR 1968 SC 1028. Dhanrajmal Gobindmm v Shamji Kalidas Co AIR 1961 SC 1285. Sobhat Dei v Dei Devi Phal AIR 1972 SC 2192,MERCANTILE LAW 327. define the expression wager However Anson defines it as a. promise to pay money or moneys worth upon the determination. or ascertainment of an uncertain event The Supreme Court. adopted this definition in Gherulal v Mahadev 73 It may be added. that wagering transactions though void are not unlawful. Hence connected agreements remain enforceable 74,Contingent Contracts. The Act has coined the expression contingent contracf and made. certain provisions sections 31 to 36 regarding their effect The. classical example of a contingent contract is the contract of. insurance 75 The heart of the concept of contingent contract lies. in the definition section 31 which states that a contingent. contract is a contract to do or not to do something if some. event collateral to such contract does or does not happen This. aspect is important inter alia for the purpose of limitation 76. How far a stipulation in a contract makes a contingent contract5. depends on construction of the contract 77 It is obvious that once. the contingency happens the obligation undertaken matures 78. Performance of Contracts, The parties to a contract must perform their contract unless.
excused by law This elementary principle section 37 carries. with it a heavy load of implications Thus until the exact date has. arrived performance cannot be demanded, As to the party bound to perform the contract again the. obligation to perform lies on the party himself section 41 7 9. But if a third party performs the contract and the performance. is accepted by the promisee then the promisee cannot demand. performance from the promisor 80,AIR 1959 SC 781,Kishanlal v Bhanwar AIR 1954 SC 500. Commissioner of Excess Profits Tax v Ruby Gen Ins Co AIR 1957. Rojasara Ramjibhai v Jani Marottandas AIR 1986 SC 1912. CfRammn v Hussain AIR 1990 SC 529, Bashir Ahmad v Government ofAndhra Pradesh AIR 1970 SC 1089. Vtdya Van v Devi Das 1977 1 SCC 293, Kapur Chand v Mir Nawah Himayat Alt Khan Azamjah AIR 1963. 328 FIFTY YEARS OF THE SUPREME COURT, Some complex issues arise where two or more persons make.
a joint promise Under section 43 of the Act the promisee has. the right to demand performance from any one of them and it. would be illegal to pass a decree directing that one of the. promisors should perform in the first instance 81, Contracts usually involve reciprocal promises 82 If they are to. be performed in a particular order either by express contract or. because of the nature of the transaction that order should then. be adhered to section 52 If the promisee himself or through his. officers obstructs performance of the promise then it need not. be performed 83, Sometimes as is envisaged by section 54 one party while. not obstructing performance by the other party fails to perform. his own part of the promise then he cannot sue for breach Thus. if the land agreed to be sold is agricultural land the seller should. ensure that his own name is recorded as the owner in. Government records and also where necessary that government s. permission is obtained for the sale 84,Time when of an Essence. Stipulations as to the time of performance of a contract often raise. questions as to whether the time so fixed is of the essence Under. section 55 if the agreement does not make any express provision. in this regard then the position has to be ascertained from the. various facts including the intention of the parties and the nature. of the contract However in practice courts act on certain broad. principles Thus in commercial contracts time is usually of the. essence Even where the contract is made subject to import licence. and provides that the shipment date is not guaranteed the date is. still of the essence the only qualification being that delay. atributable to licmnngfimnalitieswould be excused The time of. payment may also be of the essence where without such payment. various obligations of the other party cannot be performed 86. Rama Shankar Singh v Shyamlata Devi AIR 1970 SC 716 Mukund. Das v State Bank of Hyderabad AIR 1971 SC 449,R dhkrisbna S Rat v T Dawoodbhai AIR 1962 SC 538. Ubero Mohinder Singh v State of Haryana 1991 2 SCC 362. Nathulal v Phootchand AIR 1970 SC 646, China Cotton Exporters v B R C Cotton Milk AIR 1961 SC 1295.
Mahabir Prasad Rungta v Durga Datt AIR 1961 SC 1990.


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