Court : Mumbai
Reported in : AIR1956Bom106; (1955)57BOMLR1122
..... opinion, with respect, coyajee j., was right in coming to the conclusion that the notice of motion based on the appellant's right under the contract of indemnity was premature. it is somewhat unfortunate that the present insolvency proceedings will have to continue though it is common ground that besides the res-pondent ..... with respect, we agree with the view thus expressed by chagla j. in our opinion, in dealing with the rights and obligations flowing from a contract of indemnity, the court must always ask itself whether the indemnified party has incurred a liability, and if it shown that liability has been incurred and is ..... the existence of a clear enforceable claim against him and is able to show that it is in respect of such a clear enforceable claim that a contract of indemnity has been executed. in this connection, we may refer to the decision of mr. justice chagla, as he then was, in -- 'gajanan moreshwar ..... not as specific and unambiguous as clause 5. but we have no hesitation in holding that, like clause 5, clause 7 also constitutes a contract of indemnity. i have already stated that in regard to a registered firm income-tax has to be paid, not by the registered firm as such, ..... arrears of land revenue. 4. the first point which we have to consider is whether the material clauses in the deed of dissolution constitute a contract of indemnity as alleged by the appellant or not. the appellant relies on two clauses in the deed of dissolution. clause 5 provides that the continuing .....Tag this Judgment!
Court : Mumbai
Reported in : (2007)109BOMLR483
..... any other person, is called a 'contract of indemnity.125. rights of indemnity holder when sued - the promisee in a contract of indemnity, acting within the scope of his authority is entitled to recover from the promisor-(1) all damages which he may be compelled to pay ..... proceeds on a misconception of the rights of the indemnifier. it is therefore necessary to consider the same.113. sections 124 and 125 of the indian contract act read as under:124. 'contract of indemnity defined' - a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of ..... essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity.123. admittedly in the present case, original plaintiff no. 1 did not make payment of the amounts debited by the chemical bank in respect of the defendants account. admittedly ..... .84. banks, like any other party, have their own difficulties against which they would understandably desire to safeguard themselves. they are entitled to do so. article 12 constitutes a contract of indemnity. there is nothing either in principle or in law which disentitles them from obtaining an indemnify inter-alia against the acts of the negotiating bank in consideration of their opening .....Tag this Judgment!
Court : Mumbai
Reported in : AIR2005Bom385; 2005(4)ALLMR875; 2005(6)BomCR55; 2006(2)CTLJ105(Bom); 2005(4)MhLj629
..... called the 'creditor'. a guarantee may be either oral or written.'10. a promise to be primarily and independently liable for another person's conduct may amount to a contract of indemnity. a contract of guarantee requires concurrence of three persons - the principal debtor, the surety and the creditor -the surety undertaking an obligation at the request express or implied of the principal ..... of the above reasoning, we are of the view that the principal debtor m/s. pentagon was not a necessary party. the document exhibit-46, is not an independent contract like a contract of indemnity. it is a tripartite agreement. as the appellant need not prove losses caused by the beneficiary, m/s. pentagon therefore, is not a necessary party even though the ..... april, 1985, to provide the bank guarantee of the said 10% amount. the preamble of the document in question creates an impression that the said document is a contract of indemnity and not a contract of guarantee. 14. it is well settled, and, as rightly observed by the learned judge, that the oral evidence cannot prevail over the written and agreed document. this ..... from loss caused to him by the conduct of the promise himself, or by the conduct of any other person, is called a 'contract of indemnity.' 126. 'contract of guarantee' 'surety' 'principal debtor' and 'creditor' - a 'contract of guarantee' is a contract to perform the promise, or discharge the liability, of a third person in case of his default. the person who gives the guarantee .....Tag this Judgment!
Court : Andhra Pradesh
Reported in : AIR1997AP347
..... company v. london. liverpool, and globe-insurance company. (1877) 5 ch. d. 569. it was jesset, m. r., who held that a fire policy was a contract of indemnity and indemnity only' - it was to indemnify against loss by fire; and the court of appeal affirmed that. this shows that policies under which things or goods are insured against loss ..... that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity.' 17. the doctrine of subrogation flowing from the contract of indemnity is accepted and applied by indian courts also. in maharana shrijasvaisingji fatesingji v. secretary of state for india ilr (1890) 14 bom 299, jardine j ..... , are contracts of indemnity because they indemnify against loss and the doctrine of subrogation is attracted when amounts are paid under them. this has been further exemplified by lord blackburn in the case of ..... the safely of the subject-matter insured by reason ofthe peril insured against.' it was also observed in that case that the question whether fire policies were contracts of indemnity like marine policies or were contracts to pay a certain sum of amount in a particular event like life policies was settled by the court of appeal in north british and mercantile insurance .....Tag this Judgment!
Court : Karnataka
Reported in : 68CompCas450(Kar)
..... are mostly used between the seller and the purchaser in order to see that the seller gets his money without much difficulty. 21. section 124 of the contract act defines the contract of indemnity as: 'a contract by which the one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of ..... warrant interference by an injunction. 32. therefore a reference to the said various paragraphs would clearly bring out that there is a marked distinction between letters of credit, contracts of guarantee and contracts of indemnity. the said supreme court case involved only a letter of credit. therefore, the reliance placed by learned counsel, shri sundaraswamy, on the said decision will not help him ..... any other person, is called a `contract of indemnity''. 22. section 125 of the contract act reads: 'the promisee in the contract of indemnity, acting within the scope of the his authority, is entitled to recover from the promisor - (1) all damages which he may be compelled ..... . 16. to appreciate the said rulings referred to by both the advocates, it is necessary to find out the meaning of the words: (i) letter of credit; (ii) contract of guarantee ; and (iii) contract of indemnity. 17. the learned author h.p. sheldon, in his practice and law of banking, 8th edition (revised), has stated: 'letter of credit. - there are various kinds of .....Tag this Judgment!
Court : Chennai
Reported in : AIR1977Mad44; (1977)1MLJ218
..... the conduct of the vendors themselves or by the conduct of any other person. this is clearly a contract of indemnity falling under section 124 of the indian contract act. a contract of indemnity contained in an instrument which is implied by law or is ancillary to the main purpose is not ..... it has to be taken to mean a binding and enforceable contract. here, apart from the contract of sale, there is no other contract to secure the performance of which the document had been executed. though the property given as indemnity in the document in question is of a specified property, and ..... saidapet, madras has been substituted by the document in question. the document merely substitutes another property for the property that was originally given as indemnity in the sale deed. the respondents have not engaged themselves earlier to the document to perform any particular act or service. neither under ..... an assurance to substitute another property as indemnity cannot be treated as an "engagement" entered into between the vendor and the vendee. the word 'engagement' is not defined in the stamp act or in the contract act, but it must mean 'a contract' as not defined in the stamp act ..... separately chargeable with duty as an indemnity bond. it is for this reason a convenient relating to a warranty of title included in a conveyance is not chargeable separately as an indemnity .....Tag this Judgment!
Court : Allahabad
Reported in : AIR1938All297
..... vendee to pay off a mortgage debt, as i consider the present sale deed implies, is or is there not an implied contract of indemnity, and if there is a contract of indemnity does the case therefore come for the purpose of limitation under article 83, limitation act, when the plaintiff is actually damnified by ..... 1909) 31 all. 583 at page 589;if the purchaser covenants with the vendor to pay the encumbrances, it is still nothing more than a contract of indemnity.18. in the present case as stated above, the vendee had covenanted with the vendor to pay the encumbrance on the property to the extent ..... i am of the opinion that under article 83 the plaintiffs, have three years from the time when they were damnified, and as such a contract of indemnity was contained in a sale deed in writing registered, the time is extended to six years.16. i have no doubt that several causes of ..... of the money that was left with him. the present contract therefore is one of indemnity and the appellants are liable to indemnify the vendor against the loss sustained by the vendor by their default. the cause of action ..... the appellants that there was no express clause of indemnity in the contract, so the contract could not be regarded as one of indemnity. in order to make a contract of indemnity, it is not necessary that there should always be an express clause of indemnity. a contract of indemnity may be express or implied. as observed by their .....Tag this Judgment!
Court : Chennai
Reported in : AIR1926Mad544
..... debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully.16. i think that the contract act draws a distinction between contracts of indemnity and contracts of suretyship, and that contracts of suretyship, unlike contracts of indemnity, require the concurrence of three persons, namely, the principal debtor, the creditor, and the surety. the surety undertakes his obligation at ..... in my opinion, that there should be three parties to it namely the surety, the principal-debtor and the creditor ; otherwise it will only be a contract of indemnity. section 145 which enacts that in every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety clearly shows that the debtor and the surety are both parties ..... as to the necessity of a request, actual or constructive, of the principal debtor to the surety in order that there may be an effective contract of suretyship.19. so far as the contract of indemnity is concerned by which a person agrees to indemnify another against loss caused by the conduct of a third person and which does not require the ..... the request express or implied of the principal debtor. beading sections 126 and 145 together, it seems to me that there can be no contract of guarantee as distinguished from a contract of indemnity unless there is privity between the principal debtor and the surety as it is difficult to speak of an implied promise between persons between whom there .....Tag this Judgment!
Court : Supreme Court of India
Reported in : AIR1967SC1315; 1967(0)BLJR483; 2SCR312
..... the covenant on the part of the purchaser to pay off the previous encumbrance on the property sold. under section 124 of the indian contract act 'a contract of indemnity' is a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the ..... and venkatanarayaniah v. subramania iyer. 74 i c 209. 6. it was then contended by mr. b. c. misra that even if there was a contract of indemnity the cause of action for the plaintiff arose on february 4, 1937, when the final mortgage decree was passed and not on february 25, 1943 when the plaintiff ..... purchase the vendor's property but also one to relieve the vendor from the liability of the mortgage, and in that sense there was an implied contract of indemnity in favour of the vendor. it follows therefore that article 83 of the limitation act applies to this case and as the sale deed is a ..... the purchaser ought to have paid off the mortgage. in the second place, it is also open to the vendor to bring a suit on the contract of indemnity if as a result of the failure of the purchaser to discharge the encumbrance the vendor incurs a loss. it was contended on behalf of the ..... c. misra put forward the argument that a provision in a conveyance whereby the purchaser agrees to pay off an encumbrancer does not give rise to any contract of indemnity and that the appropriate article of limitation act was article 116 and not article 83 and time began to run from the date from which the covenant .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1942Bom302; (1942)44BOMLR703
..... plaintiff can sue and in any event the suit is premature. mr. tendolkar relies for his arguments on sections 124 and 125 of the indian contract act, 1872. section 124 defines the contract of indemnity as a contract by which one party promises to safeguard the other from loss caused to him by the conduct of the promisor himself, or by the conduct of ..... have pointed out, mr. tendolkar contends that the law in this country is different. i have already held that sections 124 and 125 of the indian contract act are not exhaustive of the law of indemnity and that the courts here would apply the same equitable principles that the courts in england do. therefore, if the indemnified has incurred a liability and ..... of calcutta. in shankar nimbaji v. laxman supdu (1939) 42 bom. l.r. 175 an appellate bench of this court held that under a contract of indemnity the cause of action arises when the damage which the indemnity is intended to cover is suffered, and a suit brought before actual loss accrues is premature. the proposition of law stated in these wide terms ..... a suit against the plaintiff and obtains judgment which the plaintiff is compelled to satisfy the plaintiff is not entitled to sue the defendant.3. if the whole law of indemnity was embodied in sections 124 and 125 of the indian contract act, there would be considerable force in the contention of mr. tendolkar ; but that is obviously not so. the indian .....Tag this Judgment!