Report No. 97

3.13. Proper approach.-

For reasons earlier stated, the proper approach, so far as India is concerned, should be one that ensures that one party to a contract is not left at the mercy of the other on the matter, under consideration, which is basic to the very survival of contractual rights. In fact, a commentary on the Indian Contract Act published in 1915,1 before the cluster of case law on the section arose, reflects the true approach. Dealing in the Introduction, with section 28 (Agreement in restraint of legal proceedings) the commentary says:---

"Another class of void agreements consists of these by which a man is restricted from enforcing his rights by recourse to the ordinary legal tribunals. Such agreements have been discountenanced by the English Courts on the ground that the law will not allow a man to shut himself absolutely off from the benefits of its protection, and lay himself practically at the mercy of the person with whom he has contracted."

1. Cunningham and Shepherd Contract Act, (1915) p. xvii, para. 40, (Introduction).