Page 78 - GSTL_23rd July 2020_Vol 38_Part 4

444 GST LAW TIMES [ Vol. 38
parties as a remaking of the contract; nor do the courts so regard it. Instead,
it is merely a further expression by the parties of the meaning that they give
and have given to the terms of their contract previously made. There is no
good reason why the courts should not give great weight to these further
expressions by the parties, in view of the fact that they still have the same
freedom of contract that they had originally. The American Courts receive
subsequent actings as admissible guides in interpretation. It is true that one
party cannot build up his case by making an interpretation in his own fa-
vour. It is the concurrence therein that such a party can use against the oth-
er party. This concurrence may be evidence by the other party’s express as-
sent thereto, by his acting in accordance with it, by his receipt without ob-
jection of performances that indicate it, or by saying nothing when he
knows that the first party is acting on reliance upon the interpretation (see
Corbin on Contracts, Vol. 3, pp. 249 & 254-56).
…………
15. In Deo v. Rias [(1832) 8 Bing 178, 186] Tindal, C.J. said :
“We are to look at the words of the instrument and to the acts of the
parties to ascertain what their intention was; if the words of the in-
strument be ambiguous, we may call in the aid of the act done under
it as a clue to the intention of the parties.”
And in Chapman v. Bluck [(1838) 4 Bing NC 187, 195] Park, J. said :
“The intention of the parties may be collected from the language of
the instrument and may be elucidated by the conduct they have pur-
sued.”
Odgers observes [See Odgers’ Constrcution of Deeds and Statutes, 5th Edn.
By Dworkin, p. 83] :
“In the case of an ambiguity, judicial notice will be taken of the way
in which the parties themselves have interpreted their rights and du-
ties under the document.”
22. Reference may also be had to the judgment of the Supreme Court in
the case of Transmission Corporation of Andhra Pradesh Ltd. & Ors. v. GMR Vemagiri
Power Generation Limited & Anr., (2018) 3 SCC 716 where it was held as follows :
21. “In the event of any ambiguity arising, the terms of the contract will
have to be interpreted by taking into consideration all surrounding facts
and circumstances, including correspondence exchanged, to arrive at the
real intendment of the parties, and not what one of the parties may contend
subsequently to have been the intendment or to say as included afterwards,
as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas,
(2009) 5 SCC 313]
“28. The true construction of a contract must depend upon the im-
port of the words used and not upon what the parties choose to say
afterwards. Nor does subsequent conduct of the parties in the per-
formance of the contract affect the true effect of the clear and unam-
biguous words used in the contract. The intention of the parties must
be ascertained from the language they have used, considered in the
light of the surrounding circumstances and the object of the contract.
The nature and purpose of the contract is an important guide in as-
certaining the intention of the parties.”
23. Keeping in view the conduct of the parties, it is clear that the parties
did not envisage deduction in the agreed rate from alleged service tax payment.
The agreed rate was understood by the parties to be all inclusive and the same
would bind the parties.
24. I may deal with the two other submissions of the petitioner. It was
firstly urged that the parties had on 22-3-2016 entered into a fresh contract where
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