Court : Chennai
Decided on : Jan-28-1916
Reported in : 33Ind.Cas.508; (1916)30MLJ369
..... on it here. but the foregoing entails the conclusion that in this case the promise to be implied under section 145 does not amount to a contract of indemnity between plaintiff and defendant, either directly or with reference to section 69 or 70. and accordingly plaintiff must succeed, if at all, on his ..... no opportunity to adopt or refuse to adopt it. the question is of the nature of his liability to plaintiff in these circumstances. is there a contract of indemnity between them? or, as the lower appellate court held, is plaintiff's remedy only that open to the original creditor? and then is it subject ..... that it is so, because the section imposes no qualification on the debtor's liability under an implied contract of indemnity. but that is to misread its terms. for, in fact, it does not refer to a contract of indemnity at all, but only to a promise to indemnify; and a promise, as sections 2(d)(f ..... that every guarantor shall have a right to recover sums rightfully paid, only 1 but it seems to base that right on the implied promise of indemnity given by the principal debtor. if the section had contained the latter words only there would have been nothing in the act to require the ..... had not been given; and, as he obtained, no issue on the point, it is possible that he and the court overlooked section 140, indian contract act and section 59, negotiable instruments act, and assumed that plaintiff's payment discharged the hundi and concluded the matter. in the circumstances, i would remand .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-09-1916
Reported in : (1918)ILR42Bom159
..... subject them. it was held in phene v. gillan (1845) 5 hare 1 at p. 10 that there is not at law any such implied contract of indemnity: it is impossible to contemplate the mortgagors in such a case as the present attempting to redeem the specie bank shares and i doubt if a forced ..... and by deleting the declaration as to indemnity.29. defendants must pay the costs of the appeal up to and including the 20th of july. the plaintiffs must pay the subsequent costs of the appeal ..... did not, in my opinion, occupy the position of trustees for the mortgagors at the time of paying the calls and cannot therefore be, entitled to an indemnity as trustees.28. the decree of the lower court must, therefore, be varied by limiting the sum decreed to the amount of the advances, interest and costs ..... them in the name of the then registered owner, or if they wished to take a transfer, would have refrained from doing so except upon an express indemnity. it is not unreasonable to suppose having regard to the magnitude of the transactions that the plaintiffs, had they realised the risk attaching to such shares, would ..... is whether the plaintiffs can recover from the defendants as a debt the amount paid in respect of the call and whether they are entitled to an indemnity in respect of the 161 shares as declared by the decree.23. it is not now contended that there was any special agreement to indemnify the .....Tag this Judgment!
Court : Chennai
Decided on : Aug-11-1916
Reported in : 35Ind.Cas.789; (1916)31MLJ556
..... aiyar, j.6. i agree. there are, no doubt, several decisions which hold that before actual loss is incurred, a suit brought on a contract of indemnity for recovery of the damages which are likely to be incurred by the default of the guarantor would be premature. see pundi duraisami thevar v. lakshmana ..... chetty (1904) 14 m.l.j. 245. especially in the case of an indemnity given by a principal debtor to a surety would this doctrine apply. see puthi narayanamurthi v. marimuthu pillai. i.l.r. (1902) m. 322 but the ..... in 1893 took steps to transfer the management of the fund to 1st defendant by a power of attorney and obtained from him and his brothers an indemnity bond ex. b. with the plaint property as security for an amount not exceeding rs. 2,500 against any damage resulting to plaintiff and her ..... doctrine, however, is qualified very appreciably by the rulings in several decisions which hold that an action for specific performance of a contract to indemnify can be sustained before actual loss is incurred by the promisee. (see in re law guarantee trust and accident society, ltd. 3) and that ..... &. sec 53, on which defendants mainly rely as showing that the suit is premature, are irrelevant. for they relate to the right of action on contracts to discharge a promisee's debts and there is no analogy between the event, in which the promisor in them would become liable, the discharge by the .....Tag this Judgment!
Court : Chennai
Decided on : Nov-02-1916
Reported in : (1917)32MLJ259
..... particular fund. but even here there is a clear limitation to such a right expressed by a condition that a trustee himself should have a right of indemnity against the trust fund. if there was nothing due to the trustee, then as pointed out by the master of the rolls, the creditor can get nothing ..... stood on the same footing as the rights of a creditor lending money to the guardian of an infant. the question whether a debt which is contracted by a trustee on his own personal security although for purposes of the trust can be made a lien on the trust estate does not appear to ..... however a decision of this court srimat devasikamani pandara v. noor mahomad rowthan i.l.r. (1907) m. 47, where it was held that' for debts contracted by the head of the mutt for purposes binding on the mutt, a decree in respect of such debts may be passed against his successor charging the income of ..... the liability 'arose out of the money borrowed by the trustee on a promissory note. that stands exactly on the same footing as if the debt was contracted for goods supplied for the benefit of the trust. sir george jesse], mister of the rolls, also in the other case lays down the law practically in ..... appears to be not merely on the basis of the promissory note but also for debt and issues were framed raising the questions whether the debt was contracted for the benefit of the temple, whether the note was supported by consideration and whether the plaintiff was entitled to any relief against the trust property. .....Tag this Judgment!
Court : US Supreme Court
Decided on : Jun-12-1916
..... 3 of the new charter of a relation with the plaintiff that originally arose under a law of the old corporation was not the assumption of a contract for immutable assessments, and decide that the power to amend, given by 4, included the power to raise the rates to such point as was ..... the clause in the law of 1884, relied upon -- that the payments should continue the same so long as the membership continued -- was not a contract, but was a regulation subject to the possibility inherent in the case. more than ambiguous words in an amendable law would be needed to establish a departure ..... and politic hereby created; provided that nothing contained herein shall be construed to extend the operation of any law which provides for the extinguishing of claims or contracts by limitations of time." this is the main ground upon which the defendant is page 241 u. s. 578 sought to be charged with the ..... last-mentioned provision, and set forth a form of application by which the applicant agreed not only, as heretofore, that he, but also that "this contract, shall be controlled" by the laws then in force or that might be enacted thereafter. the power to alter was applied in 1888 to the payments ..... laws and regulations of the order then in force or that might thereafter be enacted, or submit to the penalties therein contained. the plaintiff contends that his contract took him out of these reiterated provisions for possible change, and his ground is that, by article v, 4, of the laws of 1884, creating the .....Tag this Judgment!
Court : Kolkata
Decided on : Dec-14-1916
Reported in : 41Ind.Cas.288
..... not merely as regards the deceased but also as regards the surviving principal. we have, in each case, to determine the true intention of the parties to the contract from the terms thereof and from the surrounding circumstances. this view is in accord with the decision in budh singh dudhuria v. denendra nath saneul 11 c. l ..... lived; the agreement of the parties had relation to the existing state of things which they presumed would continue for four years and in reference to which presumption alone they contracted friend v. friend in re: friend (1897) 2 ch. 421 : 66 l. j. ch. 737 : 77 l. t. 50 : 46 w. r. 139;. phillips v. ..... authority directly in favour of the respondents, for it merely decides that where there are two joint agents and one of them dies, upon his death the contract of agency terminates in so far as he is concerned but not as regards the surviving agent. the converse case of the death of one of two joint ..... petition of objection of the creditor dated the 8th april 1915.16. there is no room for controversy that as argued by the appellant, under section 201 of the indian contract act; as under the law of england [binders v. free (1829) 9 b. & c. 167 : 4 man. & ry. 282 : 7 l.j.k.b. (o. ..... date of the power-of-attorney and in respect of the undivided shares of the four brothers or the survivors of them.9. section 201 of the contract act of 1872 was relied upon by the appellant, but in my judgment that section would not apply to the above-mentioned circumstances of this case.10. .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-05-1916
Reported in : AIR1916Bom51; (1917)19BOMLR12
..... taken an active and effective part in the proceedings or negotiations, whatever they might be, which had induced defendant no. 1 to break off the contract with the plaintiff then it is a finding which properly supports the decree. but i find it very difficult to believe that the appellate court by its ..... defendant no. 2 married the daughter of defendant no. 1 who was at the time betrothed to the plaintiff and thereby rendered the fulfilment of the contract between the plaintiff and the defendant no. 1 impossible of fulfilment. he further appears to find upon a process of inference from materials given, that defendant ..... effect. non-lawyers are apt to think that everything is lawful which is not criminally punishable; but this is an entire misconception. a breach of contract would not be actionable if nothing legally wrong was involved in the breach'. this goes to the root of the matter and would need very careful ..... expressed in khimji's case that it' should not be extended anywhere, least of all in india where it is not a binding authority, to contracts of every kind irrespective of their own special features and character. i am still of opinion that a person who induces a girl betrothed to another ..... marriage customs of england and india, as a reductio ad absurdum of the contention that the principle of lumley v. gye should be extended to all contracts. whatever then is now to be said, merely from a theoretical point of view for or against the decision in lumley v. gye i adhere .....Tag this Judgment!
Court : Mumbai
Decided on : Jun-22-1916
Reported in : (1916)18BOMLR670
..... manner and sense as title is conferred by a bill of lading. they supported this argument by the following considerations : first, they contended that the indian contract act was primarily a consolidation act, and therefore ought, in default of a clear expression to the contrary, to be read as embodying the law as ..... the receipts in question are documents showing title to goods within sections 102 and 108 and documents of title to goods within section 178 of the indian contract act.4. returning to section 102, its effect may be stated as follows: first, so far as bills of lading are concerned, it enacts the ..... arises as to whether a particular document is a ' document showing title' or a ' document of title' to goods for the purposes of the indian contract act, the test is whether the document in question is used in the ordinary course of business as proof of the possession or control of goods, or ..... the form appearing on pp. 70 and 71 of the record is ' an instrument of title ' within the meaning of section 103 of the indian contract act.2. section 103 of this act is one of a group of sections relating to a seller's right to stop goods while they are in ..... of the english factors' act of 1877. their lordships cannot attach any weight to either consideration. the indian contract act recites the expediency of defining and amending certain parts of the law relating to contracts. it is therefore an amending as well as a consolidating act, and beyond the reasonable interpretation of its .....Tag this Judgment!
Court : Chennai
Decided on : Aug-30-1916
Reported in : 37Ind.Cas.799
..... than 10 per cent, interest, the stipulation will be penalty. but the observation of the learned judges is entitled to great weight in construing contracts like the present one where interest at 18 per cent, with a stipulation to pay compound interest at the same rate is provided in favour ..... mr. ramachandra aiyar, compound interest means interest payable on the amount of interest which has not been paid. that is the substance of such a contract. but i fail to see why the stipulation for payment of interest on interest in default of regular payments of interest, as contemplated by the ..... or secure the performance of the primary contract, that subsidiary stipulation will be regarded as a penalty.4. mr. t. r. ramachandrier, the learned vakil for the appellants, has argued with ..... muthukrishnier v. sankaralingam pillai 18 ind. cas. 417 : 24 m. l.j. 135. that in cases of this character there are generally two contracts, one primary and the other subsidiary, and wherever the intention of the parties appears to be that the object of the subsidiary stipulation was to enforce ..... properties of the executants of the promissory notes.2. mr. justice kumaraswami sastri who tried the suit has disallowed compound interest, holding that the contract in this respect was brought about by undue influence. as i am clearly of opinion that the stipulation contained in the agreement exhibits h and .....Tag this Judgment!
Court : Chennai
Decided on : Dec-12-1916
Reported in : (1917)32MLJ295
..... if the arguments put forward on behalf of the tenant were sound it would logically folow, if pushed to their full lengths that even an ordinary contract 'for the payment of rent is necessarily a limitation of the tenants' right to make improvements. such a payment as that referred in the question leaves ..... if the trees grew or were planted by the tenant after the grant of the lease there is nothing in the act debarring the landlord from contracting for payment of a certain sum for each tree which the tenant may cut for the purpose of making improvements, provided the payment demanded is not ..... would be an act in the nature of improvement within the meaning of the malabar compensation for tenants' improvements act it does not follow that a contract for the payment of 'some fee' to the landlord must necessarily limit the right of the tenant to make improvement and claim compensation. if the ..... no doubt intended to secure the tenant's right to make improvements as well as to claim compensation for them, and strikes at all attempts by contract to limit these rights either directly or indirectly. at the same time it must be construed strictly, and not extended to cases which cannot have been ..... compensation assessed upon them. the case contains no reference to section 19, and there was no occasion for the learned judges to consider whether a contract not to cut and remove trees without the landlord's permission and to pay a fee when such permission was granted was invalid under that section .....Tag this Judgment!