The Doctrine of Waiver

Waiver is abandonment of a right which normally everybody is at liberty to waive [Pravesh Kumar Sachdeva v. State of Uttar Pradesh, (2018) 10 SCC 628].

Waiver of mandatory requirement of a statute was considered by this Court in depth in Commissioner of Customs, Mumbai v. Virgo Steels, Bombay, (2002) 4 SCC 316. Similarly, in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp SCC 53 observed, a privilege conferred or a right created by a statute, if it is solely for benefit of a party, said party can waive it. However, where a provision enacted is founded on ‘public policy’, Courts would be slow to apply Doctrine of Waiver.

Bank of India v. O.P. Swarnakar, (1998) 1 SCC 732 and in Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619 elucidated, everyone has a right to waive and to agree to renounce an advantage of law or rule made solely for benefit and protection of a person in private capacity. If a party gives up an advantage that could be taken of a particular position in law, it cannot later be permitted to change and turn around so as to avail of that advantage. However, this rule will not apply when there is a prohibition against contracting out of statute, which prohibition would have its consequences or in case waiver would be contrary to ‘public policy’. Further, a person cannot waive a right of a third person.

Hon’ble Justice Sanjiv Khanna, Arce Polymers Pvt. Ltd. v. M/s. Alphine Pharmaceuticals Pvt. Ltd., [Civil Appeal No. 7372 of 2021].