Court : Chennai
Decided on : Jan-17-1933
Reported in : AIR1934Mad1; (1934)66MLJ4
..... first take article 83. for the purpose of his argument the appellant's learned counsel is prepared to assume that the suit may be viewed as one to enforce a contract of indemnity as contended for by the respondent. his case is that if so treated, under article 83 the period of limitation would commence from the time when the plaintiff is ..... to a 'charge'. or, in other words, the argument is that as a 'charge' does not import an agreement to pay as in the case of a 'mortgage', a contract of indemnity cannot be implied in the present case. we will presently consider the force of this objection. in izzat-un-nissa begam v. pertab singh their lordships of the judicial committee ..... v. trollope (1889) 39 ch. 636) should also be held to be real and not merely personal. article 83 in our opinion applies only to personal contracts of indemnity and not to a case of indemnity arising under a charge. it therefore follows that this article is inapplicable. in this connection it was also argued that even if the case is to be ..... incumbrances the vendor gets the price of his interest, whatever it may be, whether the price be settled by private bargain or determined by public competition, together with an indemnity against the incumbrances affecting the land. the contract of indemnity may be express or implied. if the purchaser covenants with the vendor to pay the incumbrances, it is still nothing more than a .....Tag this Judgment!
Court : Allahabad
Decided on : Oct-12-1933
Reported in : AIR1934All461
..... opinion, however, it is not necessary to go further into this question as we prefer to base our decision upon another ground. there is no doubt that the contract of sale and the contract of indemnity were closely connected and, in our opinion, they can be considered to be party of one transaction. this was the view taken by the trial court and ..... to take the benefit of any covenant forming a part of the contract of sale. we hold, therefore, that the pre-emptor is entitled to sue upon the indemnity bond. we accordingly allow the appeal, set aside the decree of the court below and restore the decree of the trial court ..... they were executed was also the same. we have no doubt that substantially these two documents do form part of one transaction and that the execution of the indemnity bond by mt. fatma bibi was an important factor in the contract of sale. as found by the court below siddiq ahmad would never have purchased the property unless he had obtained the ..... indemnity bond from fatma bibi. on the view that these two documents evidence part of one and the same transaction the position is clear. the pre-emptor is certainly entitled .....Tag this Judgment!
Court : Allahabad
Decided on : Dec-19-1933
Reported in : AIR1934All406
..... interest whatever it may be, whether the price be settled by private bargain or determined by public competition together with an indemnity against the encumbrances affecting the land. the contract of indemnity may be express or implied. if the purchaser covenants with the vendor to pay the encumbrances it is still nothing ..... 3) it may be a mere promise to perform an act for consideration or a contract of indemnity in which case a suit for damages incurred on the breach of the contract would lie under section 125 of the contract act; but it must be proved that loss has been sustained. where the money ..... suit compelling the defendant to make the payment would lie. the plaintiff's remedy is not restricted to a claim for damages for breach of contract only after she has been actually damnified by the defendant's failure.50. mr. mukerji, counsel for the plaintiff has however consented that the ..... be invalid the vendor has nothing to complain of. he has got what he bargained for. his indemnity is complete he cannot pick up ..... more than a contract of indemnity. the purchaser takes the property subject to the burthen attached to it. if the encumbrances turn out to .....Tag this Judgment!
Court : Chennai
Decided on : Mar-24-1933
Reported in : AIR1933Mad704; 145Ind.Cas.476
..... action there only arose when those, who had been indemnified, suffered damage by being called upon to pay the debts. section 124, contract act, is the section which deals with an indemnity contract. without damage there is no cause of action under that section. it is clear however that the district board suffered damage as soon ..... itself.12. the learned advocate for the respondent attempted to get out of the difficulty by arguing that as regards re-sale the contract is one of indemnity by the promisee, that as such the cause of action only came into existence when there was the actual sale and that therefore ..... to pay a large sum of money for interest to his creditor. it was held that under article 83, lim. act, a suit to enforce the indemnity or for damages resulting from the delay, if filed within three years from the date of the actual injury, is within time. that suit was for ..... limitation starts from that date. in this connexion he quotes seetana v. narayanamurthy air 1920 mad 615. that was an obvious case of indemnity where a member of a joint hindu family undertook to bear all the debts alleged to have been incurred by him for family purposes and the other ..... of interest. here the legal principles contended for by the learned advocate for the appellant are not seriously challenged, namely, that in the absence of a contract interest cannot be granted on equitable principles, and there must be a sum certain, which cannot be in the present case as it depends upon an .....Tag this Judgment!
Court : Chennai
Decided on : Mar-31-1933
Reported in : AIR1933Mad817; (1933)65MLJ609
..... his father or grandfather due on account of a contract of suretyship for the payment of money, but not for money due on a contract of indemnity unless the transaction comes within the meaning of the term vyavaharika, i.e., lawful, useful or customary.8 ..... earlier in the judgment there is a remark which differentiates that case entirely from the present case. the learned judge says:in the present case the indemnity given by the father would undoubtedly be enforceable against the sons after his death provided it came within the list compiled by mookerjee, j. in the ..... its falsity the sons would not be bound. he says:i hold, therefore, that if the representation was intentionally false the liability created by the indemnity was immoral; if it was not intentionally false the liability was not usual or customary and therefore not enforceable against the sons as a pious obligation.11 ..... illegal or immoral. but if the text of the judgment is read it will be seen that the court found that the liability created by the indemnity was an immoral one, the representation being known to be false to both parties. at page 402 we find the following observations:if it was intentionally ..... the respondents. that is a very peculiar case and the head-note gives an inadequate idea of what was really held. the bond there was an indemnity bond. the head-note in one part runs as follows:a hindu son or grandson governed by the mitakshara law is liable for the debt of .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-09-1933
Reported in : AIR1933Cal759
..... was in the transactions in question an agent, and that as an agent ho is entitled to his commission and also to an indemnity on account of loss incurred in entering into other contracts upon the mandate of his employer, the plaintiff; 2. he contends, secondly, that the very possibility of 'common intention' to ..... law, an agent and not a principal. in the former case, the plaintiff, apart from any special statute, would be entitled to his indemnity whether the contract he procured was not of a wagering nature; 2. mr. b.c. ghose's second point may be illustrated by the following example. by ..... this question became of practicable importance during the inquiry as to damages ordered by page, j. the defendant contended that the plaintiffs were entitled to an indemnity only: cassaboglou v. gibb (1883)11 qbd 797. the view taken by the plaintiffs was that the case had travelled in a complete circle and ..... circumvent the defence, sought to amend by pleading in the alternative that they were agents and therefore notwithstanding any default by the shippers entitled to an indemnity. mr. pugh for the plaintiffs propounded the view for which mr. ghose is now contending and relied on observations of lord blackburn in the two ..... failure to take delivery. it was held that b had not created privity of contract between a and 0 the foreign supplier, yet it was held that b could not recover against a except on the basis of indemnity. this result appeals to me difficult to reconcile with the view taken by the .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-06-1933
Reported in : AIR1933Cal668
..... 31 and order 2, civil p. c, all the trustees should be joined; (c) the parties beneficially interested should be represented; (d) indemnity and subrogation to that right should be claimed.15. i am the first to agree that the court should, whenever possible, assist the plaintiff by adding ..... property without previous payment of such expenses and interest.13. it is more than doubtful therefore whether a court, in enforcing the right of indemnity against any trustee, will allow actual sale of the trust property in execution: see narayanan v. laksh manan (1916) 39 mad 456, where ..... judges differed. i prefer the view of kumaraswami sastri, j, to the effect that, provided the suit bo appropriately framed, the matter of subrogation and indemnity may be determined in the suit by the creditor against the trustee. this, i think, clearly appears from manindra chandra nandi v. sudhirkrishna banerji : ..... beneficiary being the family deity sree sree janardan jiu. on 29th august 1932, counsel appeared on the defendant's behalf and refused to claim an indemnity against the trust estate, implying that his client had been guilty of misconduct and was in default to the estate.4. mr. westmacott, who ..... mr. westmacott desired to refer me to the will, which contains the clause specifically providing for an indemnity to the trustees. he contended that he was right in suing the trustee who had made the contract, without joining the other trustees. he contended further that, having regard to the decision in bridge .....Tag this Judgment!
Court : Chennai
Decided on : Mar-15-1933
Reported in : AIR1933Mad736; 145Ind.Cas.1023; (1933)65MLJ491
..... the advance amount paid by the plaintiff with interest. this letter is ex. iii. they also obtained an indemnity bond from dr. mathuram (ex. k=ex. xi, dated 24th june). thus the contract in favour of the plaintiff was broken and the present suit was filed by the plaintiff on the 4th july ..... admitted that plaintiff got the property much below its value. but, as is observed in fry on specific performance, page 213,to make a contract for an insufficient consideration incapable of enforcement by the purchaser would be practically to prevent a man from selling his property at less than its value ..... is therefore section 22, which provides that:the court may properly exercise a discretion not to decree specific performance where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the ..... terms would go against the defendants. at least by the second arrangement if not from the beginning time was certainly of the essence of the contract. so this argument will not avail the defendants.11. i would therefore allow the appeal and give the plaintiff's suit a decree for specific ..... specific performance; (3) the agreement to sell in favour of the plaintiff was subject to the condition that if the 3rd defendant should perform his contract the plaintiff's agreement should stand cancelled; (4) the plaintiff did not pay the balance of the purchase money within the stipulated time; (5) .....Tag this Judgment!
Court : US Supreme Court
Decided on : Dec-04-1933
..... here complained of. we think, and so hold, that in the case of private carriers, or contract carriers, the provisions of 8511 extend no further than to require such carriers to execute an indemnity bond, as the commission may prescribe under the provisions of the act, for the protection of the ..... petition and also made return and answer. the petitioners filed reply. appellant contended that the statutory requirements, as applied to him as a private contract carrier, denied the equal protection of the laws and deprived him of due process of law in violation of the fourteenth amendment, and also, ..... appellants to conform to the state laws and regulations conditioning their right to use the state highways in the business of hauling freight under private contracts for carriage. mr. chief justice hughes delivered the opinion of the court. the railroad commission of south carolina brought this suit in the ..... questions, upon the showing made, are purely academic. id. page 290 u. s. 170 6. fees of reasonable amount, exacted by a private contract carriers using state highways in interstate commerce, for maintaining those highways and as compensation for their use, and which are segregated for that purpose, are ..... public receiving injury, either in person or in property, by reason of any act of negligence of such private or contract carriers. we do not think .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-10-1933
Reported in : AIR1933Cal735
..... that the defendant shall not be entitled to take other goods into the same boat. there is no restriction as to the liability save as regards the indemnity clause-c1. 8-where there is a restriction, for example, as regards accidental fire. the fact, that a person makes a special stipulation, does not ..... he will make himself liable to the person, who suffers damage-prima facie the owner of the goods-unless he has, at the time of the contract, restricted his obligation so as to give himself greater protection. in the result, the appeal is allowed and the appellants will recover from the defendant, ..... during the transit from the jetty to the ship does not, in my judgment, afford any answer to the common carrier. he was, under the contract, transporting goods, which he knew to belong to other people. the circumstance that mackinnon mackenzie and company did not purport to be themselves common carriers and ..... public employment, has committed a breach of the law by failing to carry safely. an action lies against him, not in any way dependent upon privity of contract between himself and the plaintiffs. this question was raised in the case of dekhari tea co., ltd. v. assam-bengal railway co., ltd. air 1920 ..... business, namely, that he must be holding himself out to do business with anybody, who requires his services, we should regard his work under the contract of march 1926, as making him a sub-contractor of the british india steam navigation company, in such a sense that, so far as regards the .....Tag this Judgment!