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 : Privy Council
Decided on : May-08-1934
..... . the same distinction is developed by brett, lj., in 3 c. p. d. 467 (6): he points out that abandonment is part of every contract of indemnity, whereas notice of abandonment is peculiar to marine insurance, just as constructive total loss (as distinguished from actual total loss) is also peculiar. as an instance ..... that on general principles, mutual mistake will have the same effect in regard to the offer and acceptance of abandonment as in regard to any other contract. it is unnecessary to repeat what has been said earlier in this judgment as to the effect of mistake, but it seems to follow that just ..... mistake relied on should be of such a nature that it can be properly described as a mistake in respect of the underlying assumption of the contract or transaction or as being fundamental or basic. whether the mistake does satisfy this description may often be a matter of great difficulty. applying these ..... to contradict or overrule those established principles in 1932 ac 161 (4). it is true that in general the test of intention in the formation of contracts and the transfer of property is objective; that is intention is to be ascertained from what the parties said or did. but proof of mistake affirmatively ..... as vital as that in 2 h. l. 149 (3), in respect of which lord westbury at p. 170 used these words: "if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside as having .....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 : Kolkata
Decided on : Dec-20-1934
Reported in : 163Ind.Cas.331
..... he should do so. again, if an action were brought and judgment recovered against the agent, then the agent would have a right of action for indemnity against his principal, while if the principal was liable also to be sued he would be vexed with a double action. further, if actions could ..... remedy, or that it is in applicable where the plaintiff has another right of action, arising out of some other cause, such as one founded upon contract, expressor implied, still less where for some reason such contractual right cannot be enforced. on this point i regret to find that seem to be ..... in rem judicatum applies not only as between the plaintiff and the defendant or any persons who were joint contractors with the defendant in the contract sued on but applies also although the person ultimately sued had no relation to the person against whom the prior judgment was recovered and was not ..... against this decision, the second defendant has appealed, mainly upon the ground that section 70 does not apply, because the goods were supplied under an express contract. the plaintiffs have filed cross-objections, and seek to make the second defendant liable for the whole of the claim, but they have not served the ..... indian statute uninfluenced by considerations derived from the english law upon which it may be founded.10. under the terms of section 233 of the contract act read with section 230 of the act both the agent and the undisclosed principal are liable. the causes of action against them are clearly .....Tag this Judgment!
Court : Chennai
Decided on : Jan-30-1934
Reported in : AIR1934Mad595
..... , namely ramajogayya v. jagannadhan 1919 mad. 641 in which the majority of the full bench held that no decree can be passed against a minor or his estate on a contract entered into on his behalf by a guardian under which covenant no charge is created on the estate except in cases in which the minor's estate would have been ..... certain lands on lease in their own names, but as was alleged for the benefit of the minor, neither the minor nor his estate could be made liable on the contract. in view of these decisions it was held in sauka krishnamurthi v. bank of burma (1912) 35 mad. 692 that the rule which makes a minor member of a joint ..... with powers larger than are reasonably proper for carrying on the business, that the creditors can proceed against the minor's estate only where the guardian would be entitled to indemnity for the liabilities properly incurred out of the assets of the minor embarked in the business, and that where the guardian has no such right to ..... indemnity against the assets of the business or where he has acted improperly the creditors have no right against the assets of the minor's business. it was also held that .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-19-1934
Reported in : AIR1938Cal377
..... could not be assigned. it is true that sunderlal was not a partner in the real sense, because being a minor, he could not contract (section 11, contract act). but he had a right to benefit in the partnership under section 247. in sanyasi charan mandal v. krishnadhan banarji (1922) 9 air ..... if accounts were necessary to be taken, the infant sunderlal and the insolvents were necessary parties and they must render accounts before they could be entitled to indemnity; (6) that the suit was not competent, because it was a suit by some partners against other partners in the same firm and that the ..... confuses the issues which we have to decide to say that the firm of rekhabchand ghisulal has contracted with the firm of ghisulal ganeshilal, and that the first firm are independent commission agents acting for their principals, the firm ghisulal ganeshilal. what in ..... circumstances of this case, which must be decided according to the principles of english law as contained and codified to some extent in the indian contract act. according to those principles the firm as such has no existence in law, and the law regards only the individual partners. it only ..... obviously cannot be assigned [section 6 (e), transfer of property act]. it is a personal right. in commission agency, before an agent can claim an indemnity, he has a duty to account. if, as was pleaded, an account had been stated between the parties the position would have been different. such .....Tag this Judgment!
Court : Kolkata
Decided on : Nov-28-1934
Reported in : 163Ind.Cas.858
..... sum as to interest. the other promissory note for rs. 1,800, it was agreed was the equivalent of a fresh contract for the indebtedness over the hundi which was handed to the bank.3. it is contended on behalf of the plaintiff that these two promissory notes amounts to two fresh ..... which is dated august 20, for another rs. 2,800 in the year 1930; and it is said that the first promissory note for rs. 2,800 was a fresh contract between the plaintiff and the defendant for rs. 1,800 on the original handnote together with the new cash loans of rs. 500, balance being made up of a calculated ..... of security given by the plaintiff to the bank was not in the form with which we are all so familiar, namely an indemnity bond, and it was rather on the lines that it was indemnity bond (and in an indemnity bond there are certain legal vrights accruing both to the principal creditor and the guarantor), that most of the arguments on this .....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 : Privy Council
Decided on : Oct-15-1934
..... of allowing delivery without production of the receipt analogus 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 the consignments their practice was to bring or send to the ..... facts. before this board the point was argued as an alternative, and in view of the conclusions stated above as to the application of s. 178, 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 if ..... relate. the latter provision is the same in substance as that which is now reproduced in s. 3 of the english act of 1899. but s.178, 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 goods ..... , assimilated their warrants to delivery orders to bills of lading for this purpose. it has been strenuously contended on behalf of the appellant that s. 173, 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 ..... of opinion that it is. in 1916 p. c. 7 (1)this board held that a railway receipt was an instrument of title within s. 103, 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 : 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!