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Section 28, Contract Act 1872: Agreements In Restraint Of Legal Proceedings, Void

Section 28 under Chapter II (of contracts, voidable contracts and void agreements) of the Contract Act, 1872 of India - 'Agreements in restraint of legal proceedings, void', is reproduced hereunder:—

“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 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 expiry of a specified period so as to restrict any party from enforcing his rights,

is void to that extent.

Exception 1 : Saving of contract to refer to arbitration dispute that may arise : This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.

Exception 2 : Saving of contract to refer questions that have already arisen : Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.

Exception 3 : Saving of a guarantee agreement of a bank or a financial institution : This section shall not render illegal a contract in writing by which any bank or financial institution stipulate a term in a guarantee or any agreement making a provision for guarantee for extinguishment of the rights or discharge of any party thereto from any liability under or in respect of such guarantee or agreement on the expiry of a specified period which is not less than one year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of such party from the said liability.

Explanation :—

(i) In Exception 3, the expression "bank" means—
  (a) a "banking company" as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
  (b) "a corresponding new bank" as defined in clause (da) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
  (c) "State Bank of India" constituted under section 3 of the State Bank of India Act, 1955 (23 of 1955);
  (d) "a subsidiary bank" as defined in clause (k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
  (e) "a Regional Rural Bank" established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976);
  (f) "a Co-operative Bank" as defined in clause (cci) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
  (g) "a multi-State co-operative bank" as defined in clause (cciiia) of section 5 of the Banking Regulation Act, 1949 (10 of 1949); and

(ii) In Exception 3, the expression "a financial institution" means any Public financial institution within the meaning of section 4A of the Companies Act, 1956 (1 of 1956).”





Extra Notes for Readers

(1) In Section 28, for the portion beginning with 'Every agreement' and ending with 'is void to that extent' was substituted by the Indian Contract (Amendment) Act, 1996 w.e.f. 8 Jan 1997.
(2) The 2nd clause of Exception 1 to Section 28 was repealed by Specific Relief Act, 1877 (Act 1 of 1877). Later on the Specific Relief Act, 1877 was repealed by Specific Relief Act, 1963, w.e.f. Mar 1, 1964
(3) The Exception 3 to Section 28 was inserted by the Banking Laws (Amendment) Act, 2012 (Act 4 of 2013), dated Jan 5, 2013.

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