LEGAL ASPECTS OF BUSINESS

ASSIGNMENT
PRESENTED BY:
ABHAY YADAV (79)
ABHISHEK TRIPATHI
(80)
AJAY PANDEY (81)
AMANPREET KOHLI (82)
ANAND VERMA (83)
ASTHA SHUKLA (84)
AYUSH GAUR (85)

MACKINNON MACKENZIE AND Co.

Vs.
STATE OF WEST BENGAL 1966

 APPELLANT
RESPONDENT
DATE

: Mackinnon Mackenzie and Co.

: State of West Bengal

OF JUDGEMENT: November;1966

FACTS

Mackinnon Mackenzie & Co. Pvt. Ltd was incorporated on 30th

March 1951, under the provisions of the Companies Act, 1913,
as a Public limited company.

It became a private limited Company on from 27th March 1956

The Registered office of the company is situated at 16, Strand

Road , Calcutta

The Company wanted to relocate its registered office from

Calcutta to Bombay to enhance business interest.

By passing the special resolution of the company in

accordance with section 189of companies act 1956 at the
general meeting held on November 1965. It was unanimously
resolved that the MOA has been altered and new regd. Office
will be at Bombay.

The Govt. of West Bengal objected on the grounds of losing

revenue for the state

Factors Presented by Mackinnon Mackenzie

and Co.
The Head office is at Bombay from 1964

The company lost India coastal trade in Calcutta because immigration

restrictions in Burma & Malaya. In lieu Bombay became more important port

Most of the Senior staff were posted to Bombay

Strength of Employees were high at Bombay

The Volumes of Business is larger at Bombay because of coastal restrictions

and difficulties of trade with Burma & Malaya

Factors Presented by State of Bengal & ROC

There will be a loss of Revenue to the state

The Petition does not show that any economy will be made by the
proposed transfer of Registered office to Bombay

The Resolution is not validly passed

JUDGEMENT
Appeal upheld; Govt. claim dismissed
REASON :

Under section 17 of the companies act 1956 , a

company may, by special resolution , alter the provisions
of the memorandum so as to change the place of its
registered office from one state to another.

Dominant factors in favor of the change of office were

resolution of the company and the interest of creditors
and shareholders.

M/S RICKMERS VERWALTUNG GMB H

VS
THE INDIAN OIL CORPORATION LTD

 APELLANT
RESPONDENT

Rickmers Verwaltung Gmb H

:

The Indian Oil Corporation Ltd.

DATE OF JUDGEMENT: 19th November 1998

FACTS
The respondent, Indian Oil Corporation Ltd., entered into an
agreement with M/s Tubacero of Mexico for purchase of pipes for its
Kandla-Bhatinda Pipeline project on September 16, 1993.
M/s Tubacero were to deliver the pipes to the respondent at Tampico
Port in Mexico. In order to bring the pipes to India, the respondent, a
Government Corporation, was required to go through M/s Transchart, a
department of the Ministry of Surface Transport, which brokers charter
party arrangements with various vessel owners, for the purposes of
shipping of pipes from Tampico Port.

In order to execute a contract between the parties, respondent No.

1 was to establish a standby letter of credit as per the format to be
mutually agreed upon by the parties while the appellant was to furnish
a performance bond also in a format to be mutually agreed upon by
both the parties.

 The appellant, however, did not proceed in the matter because the format
and the language of the standby letter of credit in the form issued by its
bankers was not approved by the first respondent. The draft letter of credit
proposed by the first respondent was also not approved by the appellant and
fresh proposals were exchanged between the parties.
As a consequence, the appellant did not carry the pipes, as according to it.
the formats of standby letter of credit and performance guarantee were not
settled between the parties. The first respondent was, therefore, compelled
to arrange for the carriage of first consignment of pipes received from M/s
Tubacero at Mexico.
Transchart by it telex dated December 24, 1993 apprised the appellant about
the failure to carry out its obligation, despite repeated requests which had
resulted in the Charterers to finalise alternative shipping arrangements.

 The appellant filed a request for arbitration with the Indian Council of Arbitration
on 11.6.1994. On June 28, 1994 the first respondent received a notice from the
Indian council of Arbitration intimating it that the appellant had filed an
application dated June 16, 1994 invoking Clause 53 of the Agreement of
Affreightment (AOA) relating to arbitration and that it had laid a claim of
1,031,668.77 US dollars. The first respondent was directed to deposit a sum of Rs.
83,200/- towards costs of the arbitration on or before July 28, 1994.
The first respondent informed the Indian council of Arbitration (second
respondent) that there did not exist any binding contract between the first
respondent and the appellant.
The contract between the parties had not been signed by the first respondent and
the document was nothing more than a mere proposal made by the appellant,
which was subject to the parties agreeing on the format and language of the
standby letter of credit.
The Indian Council of Arbitration on January 3, 1995, intimated to the parties that
it had appointed Mr. M.K.Chawla a retired Judge of the Delhi High Court as an

Factors presented by Rickmers Velwatung

Even though the agreement dated November 11, 1993 had not been
signed by the parties but the parties had acted upon it treating it to be
a binding contract.

Transchart had faxed a fresh draft of standby letter of credit to the

appellant and in the communication attached thereto, it was indicated
that the draft letter of credit would be acted upon by respondent .

Factors presented by Indian Oil Corporation Ltd.

Perusal of the correspondence exchanged between the parties
established that there was no meeting of mind between the parties and
no agreement could also be spelt out from the correspondence
exchanged between the parties.
The "draft" Charter Party agreement dated November 11,1993 even if it
had in fact been executed between the parties, could not become
enforceable because the terms of letter of credit and performance
guarantee had not been agreed to between the parties.

JUDGEMENT
Decided in favour of Indian Oil Corporation Ltd.
REASON
No concluded bargain had been reached between the parties as the
terms of the standby letter of credit and performance guarantee were
not accepted by the respective parties.
There is nothing expressly agreed between them and no concluded
enforceable and binding agreement come into existence between
them.
The fax messages exchanged between the parties, referred to above
go to show that the parties were only negotiating and had not arrived
at any agreement.

THANK
YOU