Court : Chennai
Reported in : AIR1957Mad164
..... for this addition. thus, it would be clear that the present editors of chitty on con-tracts recognise that in the case of contracts of guarantee as distinguished from contracts of indemnity the sine qua non of the liablity of the surety is the existence of the liability of the principal debtor.26. the decree of ..... he did not contravene the orders of the promisor and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorised him to bring or defend the suit;(3) all sums which he may have paid under the terms of any ..... by reason of his minority at the tune of the contract7. in this connection it is necessary to draw a distinction between a contract of indemnity thus:"section 124: 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 ..... guarantor or surety.10. turning now to the bond in suit ex. a.1 we are clearly of opinion that it embodies a contract of guarantee and not one of indemnity. the relevant clause by which the petitioner undertook his liability runs:"it has been settled that if the first executant" commits any default ..... indemnifier which is primary and in several cases it was the possibility of this non-liability that was the occasion for this contract of indemnity.9. every contract of guarantee however is not a contract of indemnity having this effect.. the nature of the obligation in this type of cases 13 set out in section 126 as " .....Tag this Judgment!
Court : Karnataka
Reported in : AIR1977Kant204; ILR1977KAR980
..... of some act or promise on the part of the creditor, promises, to discharge the debtor's liability, if the debtor failed to do so. in a contract of indemnity, however, the promisor makes himself primarily liable and undertaken to discharge the liability in any event. the liability may arise out of tort or as well as ..... of default 'by a debtor can be insured against as effectively as the debt can be guaranteed.in any view of the matter, whether the contract in the instant case is viewed as a contract of indemnity or as one of guarantee and whether, correspondingly, the liability is to pay a new debt arising under the ..... to pay the original debt; but undertakes to pay new debt which arises out of the contract of indemnity, and this debt may differ from the original debt both in amount and as regards other incidents, the fart that the contract is framed in the form of a policy is some and only a prima facie evidence ..... the appellant would arise only when it is shown that the debt was irrecoverable from the first defendant. exhibit p-6 is styled 'an indemnity policy'. a contract under which an insurer undertakes to make good losses -caused by the default of a debtor bears close resemblance to a ..... contract to indemnify or to pay the original debt, the claim, in our opinion, cannot be said to be premature. the liability on the part .....Tag this Judgment!
Court : Supreme Court of India
Reported in : 146CompCas373(SC); JT2008(12)SC244; (2009)2MLJ458(SC); 2008(13)SCALE261; (2009)1SCC38; 2009(1)SCC138
..... increased recovery while the exporter contended that the guarantor was only entitled to what it had paid out as indemnified. the court of appeal recognized the contract as one of indemnity and treated it like a policy of insurance. before the court of appeal, the exporter contended that if there is recovery in a subrogated claim ..... . in the present case we are concerned with the policy of insurance dated 27.1.87. by its very nature it was a contract of indemnity. in the present case, the nature of the contract is not in issue. it was in issue in the case of l. lucas ltd. (supra). in the circumstances, we do ..... the policy in its entirety, we find that there is a dichotomy in it. the subject-policy in this civil appeal is a contract. by nature it is an indemnity. the contract is in two major parts. the first part which commences from clause 1 to clause 13 contemplates an ..... the fortuitous profits to be given to the guarantor then the nature of the contract of guarantee in that case would have ceased to be one of indemnity against a percentage of loss and in that event it would become a profit sharing contract. this observation has been made by viscount dilhorne at page 898 of the ..... indemnity against a percentage of a loss whereas the second part of the contract commencing from clause 14 to clause 16 contains provisions enabling recoupment of that loss.14. in this case the invoice value as on .....Tag this Judgment!
Court : Chennai
Reported in : (1984)42CTR(Mad)297; 152ITR541(Mad)
..... made his election, he is bound by it and cannot change his mind thereafter and when the insurer so elects to reinstate the property damaged, the contract ceases to be a contract of indemnity and becomes a contract to reinstate, as if the insurer had originally agreed to reinstate. hardly ivamy on general principles of insurance law (third edition) at page 432, sets out ..... , in the event of there being an election by the insurer to reinstate, there is a cessation of the obligation to make good the loss by money payment and the contract, though initially one of indemnity for repayment of money with reference to the particular risk covered, by the process of the exercise of election or option, becomes really a ..... and vendor received an amount from the insurance company. the purchaser claimed that as the contract for the sale of the property had been concluded, he would be entitled to the benefit of the contract of indemnity and this claim was opposed on the footing that the contract of fire insurance effected was purely a personal one and the benefit thereunder would not, therefore ..... , pass in favour of the person who had entered into a contract for the purchase of the house. under those circumstances, brett l .....Tag this Judgment!
Court : Chennai
Reported in : AIR1963Mad413
..... surety as such, which has been held to be different from that of an in-demnifier. section 124 of the indian contract act defines a contract of indemnity, as a contract by which one party promises to save the other from loss, caused to him, by the conduct of the promiser ..... circumstances like fraudulent representation, or in the absence of other features from which a court can infer a contract to be one of indemnity, as defined under section 124 of the indian contract act the liability of the surety is only ancillary and rests only on a valid obligation on the ..... veiu padayachi's case, : air1950mad444 (fb) was sought before a full bench of this court. the learned advocate general apparently submitted that a contract could not be held to be necessarily illegal because it might be carried out unlawfully, and that so long as the parties can carry out ..... himself or by the conduct of any other person. it is, therefore, in the nature of compensation for a loss. but, section 126 defines surety as a person who gives a contract ..... of guarantee which is a contract .....Tag this Judgment!
Court : Delhi
..... consequential loss and/or in the alternative the said reasons are not in consonance with the fundamental policy of law of insurance which is that the insurance contract is always a contract of indemnity and the insured cannot benefit out of the payments made towards the indemnification. i find that merely because the value of sum to be recompensed to the ..... relies on the tariff advisory committee s (tac) general regulation 1 on consequential loss (fire) insurance section 1 which reads as under: policy to constitute contract of indemnity: every policy shall constitute a contract of indemnity only. the tariff advisory committee was formed under section 64u of the insurance act, 1938 to prescribe the terms/conditions/premium rates and wordings of insurance ..... 22 & 23. c) mr. kaul argued that the impugned award passed by the arbitral tribunal is also against the fundamental policy of law which is that the contract of insurance is contract of indemnity. the impugned award though states that the intent of the policy is to indemnify the respondent for the losses suffered it but proceeds to adopt an approach which ..... basis. further, the learned arbitral tribunal also rejects the submissions of the petitioner herein/ respondent therein in paragraph 69.5 that the business interruption insurance/ flop policy is a contract of indemnity by observing that it is not acceptable in law . likewise on the facts of the case, the claimant s surveyor/ mr. r. srivatsan/cw3 during his cross examination .....Tag this Judgment!
Court : Delhi
..... also placed on the tariff advisory committee's (tac) general regulation 1 on consequential loss (fire) insurance section 1 which reads as under: policy to constitute contract of indemnity: every policy shall constitute a contract of indemnity only." 28. the tac was formed under section 64u of the insurance act, 1938 ( the 1938 act ) to prescribe the terms and conditions and premium ..... consequential loss and/or in the alternative the said reasons are not in consonance with the fundamental policy of law of insurance which is that the insurance contract is always a contract of indemnity and the insured cannot benefit out of the payments made towards the indemnification. i find that merely because the value of sum to be recompensed to the ..... supra); castellain v. preston (1882) 11 qbd350and then proceeded to state as follows: interruption insurance the above analysis became necessary in order to show that the contract of business is a contract of indemnity. otherwise, there are several judgments passed by our own supreme court in the field of insurance law approving the same very principle which is fundamental to the insurance ..... was that the insurer had accepted their correctness; further that : when that is the factual position, the argument on behalf of the respondent that the policy is a contract of indemnity and if the alternative basis clause is applied, it would result in unjust enrichment by the claimant is not sustainable. 43. clearly, the tribunal, without any reasoning or .....Tag this Judgment!
Court : UK Supreme Court
..... is an unconvincing basis for a conclusion that the search is for the proximate cause. as i see it, the question in each case, whether under a contract of insurance or under a contract of indemnity, is whether an effective cause of the alleged loss or expense was a peril insured against or an indemnifying event. by reference to devlin j's citation ..... , if the owners were bound to third parties by bills of lading which charterers had required them to issue, the continuation of the voyage under those bill of lading contracts could engage the indemnity under clause 13. lord mance further recognises (to my mind correctly) that if owners were left with no practical option but to carry the cargo to its destination ..... owners were bound to third parties by bills of lading which charterers had required them to issue, the continuation of the voyage under those separate bill of lading contracts could engage the time charter indemnity, and could (despite lord denning mr's contrary dictum on appeal in the tropwind  1 lloyd's rep 232, 237) lead to charterers having to pay ..... not consider this last contention, for i think it is clear that clause 9 is concerned with the proximate cause. it is a contract of indemnity, and i can see no reason for treating it differently from any other contract of insurance. the observations of lord shaw in the ikaria  ac 350, 368 and the dicta he there cites are also in .....Tag this Judgment!
Court : Mumbai
..... 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 ..... rulings of the chancery courts. this has not wiped off the common law cause of action vested in a promisee under an indemnity contract for enforcement of obligation on the indemnity contract itself by seeking a direct decree against the promisee (promisor?). to such decree he was entitled at common law only upon ..... sheodeni singh and venkatanarayaniah v. subramania iyer. . 5. 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 ..... : air1940bom161 , which both cases are referred to in the judgment of the learned judge. in my view, on a true construction of the contracts of indemnity admitted between the parties, it was permissible for the plaintiff to call upon the defendants to pay the amounts claimed in the order dated february 28 ..... no dispute between the parties that in respect of the goods sold and delivered by the plaintiff to the defendants during the above period a contract of indemnity in the terms contained in the above letters existed. 4. in connection with the sales tax relating to the goods sold by the plaintiff .....Tag this Judgment!
Court : Mumbai
..... tax authorities on 5 march 2008. that was in the amount of rs. 107.08 crores. it was in respect of a clear enforceable claim that the contract of indemnity had been executed. the indemnity covered losses which may be incurred and losses were defined clearly to include taxes, claims and demands. after the consent terms were entered into between the parties, the ..... suffered a loss, he was not entitled to sue the indemnifier and in that connection, reliance was placed on sections 124 and 125 of the contract act. the plaintiff to the suit, had been furnished an indemnity by the defendant of discharging two mortgages. in that context, it was argued on behalf of the defendant that unless the mortgagee filed a suit ..... to the judgment in case of gajanan parelkar vs. moreshwar air 1942 bombay 302 has held that unless the liability of the indemnifier is absolute, indemnity clause cannot be enforced in view of section 124 of the contract act. i do not propose to take a different view in the matter. 19. i am not inclined to accept the submission of dr ..... damage is incurred by the indemnityholder, it would be open to him to sue for the specific performance of the contract of indemnity, provided of course it is shown that an absolute liability has been incurred by him and that the contract of indemnity covers the said liability.? the law on the subject has similarly been considered in a judgment of the calcutta high .....Tag this Judgment!