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 : 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 : 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 : AIR1940Bom315; (1940)42BOMLR550
..... the debts of those constituents.4. the first question argued and decided by the learned judge is whether the first document, exhibit a, is a contract of guarantee or a contract of indemnity. if it is a contract of guarantee, no doubt making a settlement with the principal debtor behind the back of the surety would discharge the surety. the learned judge held that ..... test there laid down is where the sub-broker is interested in the transaction to be effected, apart from the fact that he had agreed to be liable, the contract is one of indemnity. there is nothing to show that section s 124 and 126 give a go-by to this distinction which has been so well recognized in england.3. periamanma ..... is interested in the subject-matter of the contract, because his is getting substantial payments under the contract, and therefore the contract is one of indemnity and not of guarantee.5. apart from that, i think that the contract is a contract of indemnity within the meaning of the indian contract act. section 124 defines a contract of indemnity as being a contract by which one party promises to save the ..... the whole amount of rs. 16,176 therein referred to. exhibit b is, i should say, neither a contract of guarantee nor a contract of indemnity. it is a contract to pay an agreed sum ascertained, i will assume, as the amount due on a contract of guarantee. i can see no answer on the part of the plaintiff to a suit against him for .....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!
Court : Mumbai
Reported in : AIR1940Bom161; (1940)42BOMLR175
..... the appellants. hence the most favourable construction in favour of the plaintiffs which can be placed on the promissory notes is that they created a contract of indemnity whereby defendant no. 2 undertook to make good any loss that they might sustain. it was open to the plaintiffs to repudiate the mortgage transaction ..... all the three promissory notes (exhibits 98, 99 and 100) are similarly worded and if they are taken literally they do not purport to create a contract either of indemnity or of guarantee, but contain an unqualified promise by defendant no. 2 to pay on demand rs. 5,000 with future interest at nine per ..... and . the collateral security offered by the surety for its performance are to be deemed to constitute but one cause of action. whereas in a contract of indemnity the promisor engages to save the promisee from loss caused by the conduct of the promisor himself or by the conduct of any other person (s ..... have undertaken the liability under the mortgage deed. it is not clear from the judgment whether the undertaking was regarded as a guarantee or a contract of indemnity, but the decretal order shows that it was treated as an agreement to make good any loss that might be caused to the plaintiffs if ..... in consequence of that transaction, and in fact they have not claimed anything more from them in this suit.10. thus the contract being one of indemnity the plaintiffs' claim against defendant no. 2 must be held to be premature. it is clear from section s 124 and 125 of the .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1934Bom402; (1934)36BOMLR941; 153Ind.Cas.959
..... such a case is to recover moneys paid under a mistake, or for moneys had and received, or for failure of consideration, and not a contract of indemnity, either express or implied. the third party notice, therefore, was clearly misconceived.18. in the result, therefore, the cross-objections must be allowed ..... conceded by mr. setalvad. it is further admitted that the present case does not come within section 124 of the indian contract act, and there is no express contract of indemnity between the parties. but mr. setalvad contends that this being a shah jog hundi, having regard to the usages applicable ..... in the circumstances, defendants no. 1, in my judgment, had no option except to defend the suit, and if they are entitled to indemnity, such indemnity must cover the costs properly incurred in so doing.3. the cross-objections of defendants no. 2 involve a more difficult question. the learned ..... based either on the money having been paid under a mistake of fact, or without consideration, and does not arise upon any implied covenant for indemnity. in my opinion, therefore, the proceedings on the third party notice were misconceived. the cross-objections must be allowed with costs, and the third ..... of the hundis, and judgment was given against both the defendants. defendants no. 1 issued a third party notice against defendants no. 2 claiming indemnity against loss suffered by them through 'payment of the hundis, and upon that notice mr. justice kania gave judgment for defendants no. 1, but .....Tag this Judgment!
Court : Mumbai
Reported in : (1983)34CTR(Bom)41; 142ITR57(Bom); 13TAXMAN524(Bom)
..... death, would mean that what is expressly a personal accident insurance policy is to be equated with an employer's liability insurance policy on the footing that it was a contract of indemnity which, on the face of it, the present is not. we fail to see what other purpose the circular could have had than to bestow benefits as of right ..... of money in the event of the assured sustaining accidental injury. it resembles life insurance and differs from other types of insurance in that it is not a contract of indemnity; it is merely a contract to pay a sum of money on the happening of a specified event, namely the sustaining by the assured of personal injury by such accidental means as ..... insured in so far as it is not too remote.30. as already pointed out, the insurance in the present case is not an insurance in the nature of a contract of indemnity. it is plainly a personal accident insurance and all that is required to be considered is : merely because the employee has not paid the premium, does its nature change ..... . employers' liability insurance.'28. the learned author has under this head given two types of cases where contracts of insurance are according to the nature of insurance; (1) where the contract is not one of indemnity, and (2) where the contract is of indemnity. under the heading 'contracts of indemnity' the learned author has pointed out as follows (p. 8) :'in this class of insurance the amount .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1933Bom338; (1933)35BOMLR694
..... civil court of law. the contractor referred to in section 12 (2) is the contractor who contracts directly with the principal as defined in section 12 (1). if, therefore, there is any further sub-jetting of the contract, an indemnity cannot be obtained under the act and must be sought by recourse to the civil court. ..... relationship of principal to contractor ?3. the matter is not entirely free from doubt, as the words of section 12 (2) refer to 'any such' indemnity. a similar contention came up for decision in calcutta on a reference by the commissioner made to the high court of calcutta under section 27 of the act, ..... them, and on july 13, 1931, the commissioner served the plaintiff with a notice requiring him either to contest the widow's claim or the claim for the indemnity made against him by messrs. mackinnon, mackenzie & co. plaintiff appeared before the commissioner on july 22, 1931, to contest the widow's claim, and the commissioner ..... cannot lie. section 12 (i) of the act provides that where a principal in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or ..... had to supply 200 tons of coal to the ss. hatkhola then lying in the victoria dock, bombay. it is his case that he gave a sub-contract for the purpose to the defendants who are muccadums at the rate of re. 1 per ton, and that they in turn engaged several workmen on june .....Tag this Judgment!
Court : Mumbai Aurangabad
..... was appropriately proved, particularly in absence of payment of additional premium? d) the insurance-company straight-away cannot be held responsible for payment of compensation as the contract of insurance is always a contract of indemnity and primarily the insured is required to be held responsible and not the insurance company? 8. so far as the appeal at the behest of the owner ..... the liability of the insurance company to pay the compensation straight way holding it to be responsible is concerned, it is required to be noted that the contract of insurance is always a contract of indemnity. the order of the labour court appears to have held responsible both, i.e. the vehicle owner and the insurance company responsible for payment of the amount .....Tag this Judgment!