Court : Mumbai
Decided on : Apr-19-1934
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
Decided on : Oct-16-1934
Reported in : AIR1935Bom236; (1935)37BOMLR304
..... there is a stipulation as in the policies here, the mere execution of a policy and its delivery to the assured will not make the contract a concluded contract. the plaintiffs say that even when there is such a stipulation or condition in a policy, if the policy recites that the premium was ..... incorporated herein.then the policy recites that the insured has paid to the corporation a sum of rupees, figures being mentioned, as premium for the indemnities undertaken, and goes on to state the period during which the policy was to be in force, and then witnesseth that the corporation will keep ..... policy remained with the insurers and no premium was in fact paid. upon these facts the court of appeal held that the policy constituted a complete contract of insurance and that by the recital therein the defendants had waived the condition for pre-payment of the premium, and therefore the risk under ..... latter suggest that it is gupta who is fighting this litigation.16. the substantial question, however, in the case is whether there was a concluded contract between the plaintiffs and the defendant. mr. rodrigues on behalf of the defendant has addressed before me a very careful argument relying upon certain authorities, ..... gupta and the defendant and the plaintiffs are not bound by it. gupta admits that he had no authority from the plaintiffs to enter into any contract of insurance on any terms. the point, however, is not now material. as to the rebate or commission of thirty-five per cent., there .....Tag this Judgment!
Court : Mumbai
Decided on : Jun-20-1934
Reported in : AIR1934Bom420; 153Ind.Cas.1041
..... to make good to the defendants any loss or deficiency sustained through the default of the plaintiff in carrying out the terms of the contract, viz., the contract of purchase, and the defendants were also given a right to sue for the payment of the full amount of the bills and all ..... purchase, it is evident that the defendants acted as the agents of some undisclosed foreign principals in the transactions and, under the terms of the contracts, including the conditions on the reverse, undertook to carry out those transactions on behalf of their undisclosed foreign principals. in that light ex. 1 ..... sale and purchase mentioned on the face of the documents.21. the two indent reports (ex. 1) do not help the defendants. if the contract was of purchase merely by sending those two documents, the defendants could not alter the legal relations between the parties. by those documents the defendants have ..... plaintiff and the defendants in respect, of the purchase transaction of the goods mentioned on the face of the document. looking to the whole contract it appears to me clear that the relations between the parties were that of a principal and principal, and according to the clear and unambiguous ..... behalf of the defendants, offered to lead evidence to substantiate those allegations). that was opposed on behalf of the plaintiff as the terms of the contracts between the parties were in writing. it was contended that the court had to determine the two issues on a construction of the documents on record .....Tag this Judgment!
Court : Mumbai
Decided on : Oct-15-1934
Reported in : (1935)37BOMLR130
..... of allowing delivery without production of the receipt analogous to that often followed in the case of bills of lading, whereby delivery is made on an indemnity if bills of lading are not forthcoming. as in general the insolvents wanted loans against consignments their practice was to bring or send to the respondents ..... this board the point was argued as an alternative, and in view of the conclusions stated above as to the application of section 178 of the indian contract act, it may be regarded as not calling for decision. but this point by itself would be enough to decide the case against the appellant even ..... is the same in substance as that which is now reproduced in section 3 of the english act of 1889.12. but section 178 of the indian contract act, 1872, has omitted the word 'agent,' and has without express qualification made the section apply to 'a person who is in possession of any ..... or delivery orders to bills of lading for this purpose.11. it has been strenuously contended on behalf of the appellant that section 178 of the indian contract act of 1872 must be construed as embodying the same principles as those of english law, that is, as being limited to mercantile agents, or at ..... 43 i. a. 164, 18 bom. l.r. 670, this board held that a railway receipt was an 'instrument of title' within section 103 of the indian contract act; the board said in that case that no distinction could be drawn between the term 'document of title' and the term 'instrument of title' ; and accordingly .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-16-1934
Reported in : AIR1934Bom370; (1934)36BOMLR798; 152Ind.Cas.575
..... respondents. actually, payments were not made within the fixed time, but it has been argued on their behalf that time was not of the essence of the contract and that the intention of the parties was that the payments were to be made as soon as they could collect the money. this view commended itself ..... under the decrees was payable, and there is no evidence that the plaintiff ever represented in any way that the moneys he accepted were received by him under the contract, exh. 15, and not under the decrees. i think, therefore, that the claim of the respondents that there was waiver of the breach of the stipulation ..... to the intention of the parties.8. then the next point is, whether according to the intention of the parties time was of the essence of the contract. it is argued by the respondents that time was not intended to be of the essence, but i do not see any ground on which we can ..... themselves did not intend those stipulations to be acted upon strictly. those two matters are dealt with in this country by sections 55 and 74 of the indian contract act, and unless the present case can be brought under one of those heads, in my judgment, the court has no power to relieve the respondents from ..... which a court of equity can grant relief and award to the party seeking payment only such damage as he has suffered by the non-performance of the contract. but if, on the other hand, there is an agreement to pay a particular sum followed by a condition allowing to the debtor a concession, for .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-18-1934
Reported in : AIR1935Bom135; (1935)37BOMLR30; 155Ind.Cas.312
..... of the association. then comes section 5 which !n terms applies to persons who are not members of the association. it presupposes that a contract made between non-members would be valid unless it contravenes any bye-laws made by the board.this brief summary will show that, as far as the ..... be exercised against a member of the association. lastly, clause (m) gives power to the board to regulate the course of business between parties to the contracts in any capacity whether they be members of the association or not. this clearly gives the board power to make a bye law binding on non-members ..... sub-clause (a) the bye-laws to be made are for the purpose of providing for the establishment of a clearing house for the periodical settlement of contracts or differences thereunder. clause (e) gives power to the board to fix and declare market rates and to make them binding for all purposes 'upon every ..... us as to whether any transactions were .entered into after this act came into force. but as mr. lalji finally conceded that even as to any such contracts the argument would be the same, the point need not be pursued further.9. i think, therefore, the learned judge came to the right conclusion, and ..... it was then conceded that there was nothing in the language of the act nor in that of any of the bye-laws which expressly prohibited a contract of this nature between persons neither of whom was a member of the east india cotton association. this is also conceded by mr. lalji for the .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-20-1934
Reported in : AIR1935Bom5; (1934)36BOMLR1021
..... legalized in this way-that the widow became a mahomedan, that john thomas john became a mahomedan, and that having thus qualified himself for the enjoyment of polygamous privileges, he contracted in mahomedan form a valid mahomedan marriage with the widow, the appellant.the high court expressed doubts of the legality of this marriage; which their lordships think they were well ..... principles which he takes to be firmly established in the realm of private international law: (1) the forms necessary to constitute a valid marriage and the construction of the marrriage contract depend on the lex loci contractus; (2) on marriage the wife automatically acquires the domicile of her husband ; (3) the status of the spouses and their rights and obligations ..... the christian sense. in many of the cases importance has been attached to this question of intention (though usually, i think, for the purpose of determining whether a marriage not contracted in england was a christian marriage and therefore to be recognised in england). the learned chief justice has suggested that the present case can be distinguished in that respect, because ..... seriously disputed this position. according to him the court is not concerned with any question of monogamy or polygamy in this case. divorce has nothing to do with the marriage contract. the authorities clearly show that the dissolution of a marriage, and the determination of the manner in which a marriage may be dissolved, are matters for the lex. domicilii. .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-02-1934
Reported in : AIR1935Bom112; 156Ind.Cas.304
..... successful defendant, out of the estate of the minor. where the next friend is entitled to have recourse to the estate of the minor in exercise of his right of indemnity or under the liberty reserved to him to recover the same when paid out of the estate of the minor, such directions are usually given in the judgment itself. where ..... for money against a minor, as for instance, where a minor like an adult is liable for damages in respect of any wrong which he has committed independently of a contract. of course in certain cases the circumstances may justify the estate of the minor being charged with the payment of the costs, but generally speaking courts in this country as ..... the same time the next friend has a right to ask that he should have liberty to proceed against the estate of the minor in exercise of his right of indemnity, or to protect himself, as he is entitled to get not only these costs out of the estate of the minor but all costs, charges and expenses which have been ..... halsbury which says that the solicitor can recover his costs only from next friend, and that is so because the contract of employment can only be between the next friend and the solicitor, a minor being incapable of entering into the contract. that the next friend is a surety for the costs of the opponents of the infant is clear from the .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-20-1934
Reported in : AIR1934Bom361; (1934)36BOMLR786; 152Ind.Cas.580
..... profits and losses according to the shares mentioned in the above stated memo, namely:then comes the statement of the shares. then it says-this contract thus took place at gadag on 19th october 1918 in the presence of many merchants and others, and accordingly the plaintiff sold 1,500 bales ..... high court in the case already quoted of pannaji devichand v. senaji kapurchand.9. mr. murdeshwar's other point turns on the interpretation of the contract. his contention is that though the original arrangement was as contemplated in exh. a, and its counterpart exh. b, what really happened on october ..... case, includes sixteen persons and the three bellary firms eight, there were twenty four individuals at least concerned and forming an association which, in turn, contracted with the three separate bellary firms, which were also members of it.7. mr. murdeshwar for the appellants has sought to get out of the ..... the parties from october 24, one side demanding that the other should pay and take delivery, and the other charging the plaintiff firm with breach of contract. the bellary firms, thereupon, filed a suit for taking an account of the partnership profits on the sale of the 800 bales, on october 27 ..... firm of pannaji devichand and three bellary firms, and was come to on october 13, 1918. it is both a partnership agreement and a forward contract. the partnership is between the larger pannaji devichand firm, called the company by the learned subordinate judge, and the three bellary firms, and its .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-02-1934
Reported in : (1934)36BOMLR1201
..... successful defendant, out of the estate of the minor. where the next friend is entitled to have recourse to the estate of the minor in exercise of his right of indemnity or under the liberty reserved to him to recover the same when paid out of the estate of the minor, such directions are usually given in the judgment itself. where ..... for money against a minor, as for instance, where a minor like an adult is liable for damages in respect of any wrong which he has committed independently of a contract. of course in certain cases the circumstances may justify the estate of the minor being charged with the payment of the costs, but generally speaking courts in this country as ..... the same time the next friend has a right to ask that he should have liberty, to proceed against the estate of the minor in series of his right of indemnity, or to protect himself, as he is entitled to get not only these costs out of the estate of the minor but all costs, charges and expenses which have been ..... which says that the solicitor can recover his costs only from the next friend, and that is so because the contract of employment can only be between the next friend and the solicitor, a minor being incapable of entering into the contract. that the next friend is a surety for the costs of the opponents of the infant is clear from the .....Tag this Judgment!