Court : Mumbai
Decided on : Mar-11-1940
Reported in : AIR1940Bom315; (1940)42BOMLR550
..... the debts of those constituents.4. the first question argued and decided by the learned judge is whether the first document, exhibit a, is a contract of guarantee or a contract of indemnity. if it is a contract of guarantee, no doubt making a settlement with the principal debtor behind the back of the surety would discharge the surety. the learned judge held that ..... test there laid down is where the sub-broker is interested in the transaction to be effected, apart from the fact that he had agreed to be liable, the contract is one of indemnity. there is nothing to show that section s 124 and 126 give a go-by to this distinction which has been so well recognized in england.3. periamanma ..... is interested in the subject-matter of the contract, because his is getting substantial payments under the contract, and therefore the contract is one of indemnity and not of guarantee.5. apart from that, i think that the contract is a contract of indemnity within the meaning of the indian contract act. section 124 defines a contract of indemnity as being a contract by which one party promises to save the ..... the whole amount of rs. 16,176 therein referred to. exhibit b is, i should say, neither a contract of guarantee nor a contract of indemnity. it is a contract to pay an agreed sum ascertained, i will assume, as the amount due on a contract of guarantee. i can see no answer on the part of the plaintiff to a suit against him for .....Tag this Judgment!
Court : Allahabad
Decided on : Jan-17-1940
Reported in : AIR1940All351
..... 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 more than ..... or(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, contract act, but it must be proved that loss has been sustained. but it is wrong to ..... a contract of indemnity. the purchaser takes the property subject to the burden attached to it.3. now the case mentioned by their lordships comes within ..... the equities of the situation, but we do not see any reason why the defendants should be allowed to retain this benefit. the defendants contracted to pay rs. 3000 for the property and if the benefit is not given to them, then the sum which they will pay is rs. ..... suppose that time for a suit for damages for such a breach of contract would have commenced to run from the original failure to perform the contract .....Tag this Judgment!
Court : Chennai
Decided on : Dec-20-1940
Reported in : (1941)1MLJ586
..... executors, or trustees.10. the doctrine that a creditor has only a right of indirect recourse to the estate through the right of indemnity of the person who contracted the liability for the purposes of such estate in the course of its management which, mr. krishna-swami aiyar concedes is well- ..... world as the person carrying on the business in the usual way, making himself personally liable on all contracts, except in cases where there might be a special stipulation to the contrary, and looking for indemnity to the assets or the persons for whose benefit ultimately the business was carried on. it would ..... s covenant to pay. wallis, c.j., inclined to the view that no basis for such a decree existed apart from the guardian's right of indemnity against the estate which could in an appropriate case be made available to a creditor. the majority (ayling and seshagiri aiyar, jj.), however, were of ..... irrespective of the first respondent's indemnity and the question is whether the claim is sustainable. 3. the promissory note which has been marked as ex. a is in the following terms: ..... decree against the first respondent personally and against the assets of the estate to the extent to which he (the first respondent) has a right of indemnity as receiver against that estate. not satisfied with a decree in this form, the appellant has brought this appeal claiming payment out of the estate .....Tag this Judgment!
Court : US Supreme Court
Decided on : Dec-16-1940
..... government is entitled to prove, if it can, any damage to it, or advantage to the company, which resulted from this breach of contract. p. 311 u. s. 368 . 20. the company's right to receive patents for indemnity lands outside of the reserves for which selections were filed with the department of the interior prior to june 5, 1924, cannot be ..... 1870 embodied an offer that, if the company would construct and operate the railroad, it should receive the granted lands; that this offer had ripened into a contract by the company's acceptance and performance; that the promise of indemnity for granted lands not available to the company was a vested right protected from destruction; that, though the lands in the ..... . paragraph xxviii of the complaint refers to the act of february 26, 1895, [ footnote 32 ] providing for the examination and classification, as mineral or non-mineral, of place and indemnity lands within four land districts in idaho and montana; recites the appointment and functioning of the commissions authorized by the act; alleges that the commissioners undertook to classify approximately 11 ..... lands available for selection only non-mineral surveyed vacant land. the company asserts that, in this, the court was right. the government insists that vacant unsurveyed lands were "available" as indemnity to the company notwithstanding the concession that, as lands selected must be identified, the company cannot select them until they have been so identified by survey. [ footnote 18 ] it .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-24-1940
Reported in : AIR1941Bom108; (1941)43BOMLR53
..... the disputes were in respect of what was realised, and whether the sale proceeds were properly accounted for. the wisdom of extending that principle to forward contracts may be disputed. the point is not here before us, in this appeal, and, therefore, i do not propose to discuss the question whether ..... the 1st defendant company itself. as i have pointed out, the allegation in the plaint is that the terms of employment are contained in the contract note sent to the 1st defendant company and in the correspondence which is on record. nowhere throughout those documents such a term is mentioned, nor ..... behalf of the 1st defendant company to effect forward transactions in american cotton for october, 1935 delivery, on the terms and conditions mentioned in the contract form, copy whereof is annexed and marked 'a', and in the correspondence. the last sentence in that paragraph deals with the guarantee and runs ..... . 2, it is, however, clear that there is no legal evidence of the transactions having taken place on the new york exchange. the actual contracts entered into on the new york exchange are not produced, and there is no evidence of the signature of harriss & vose. the 2nd defendant company ..... defendant company by defendant no. 3 and, therefore, entitled to the agent's indemnity. the terms of employment as between him and the 1st defendant company are, according to paragraph 4 of the plaint, stated in the contract note sent by him to the 1st defendant company and the correspondence which is .....Tag this Judgment!
Court : Kolkata
Decided on : May-21-1940
Reported in : AIR1941Cal125
..... defendant would be unable to meet the engagements which the plaintiff might enter into for him. the plaintiff accordingly entered into contracts on behalf of the defendant upon which the plaintiff became personally liable, and he sued the defendant for indemnity against the liability incurred by him and for his commission as broker.12. held, that the plaintiff was entitled to recover ..... consideration, i do not think that this is likely to have occurred because, in the absence of written orders and instructions, the plaintiff makes a practice of making the contracts with members of the association immediately after he has received instructions from his customer. with regard to the alleged settlement on 30th january, i am satisfied that the plaintiff's ..... the transactions were gambling transactions, and therefore illegal and inoperative. it will be observed at once that the defendant relies upon inconsistent allegations. he alleges on the one hand that contracts in respect of differences only, and therefore gambling transactions, were made between him and the plaintiff acting as a principal, yet, in the same breath he talks of asking ..... , for the employment of the plaintiff by the [defendant was not against public policy, and was not illegal at common law, and, further, was not in the nature of a gaming and wagering contract against the .....Tag this Judgment!
Court : Chennai
Decided on : Aug-16-1940
Reported in : (1942)2MLJ47
..... ' instance, lord macnaghten in delivering the judgment of their lordships of the privy council observed as follows:the so-called sale was of course inoperative. a man cannot contract with himself. a man cannot sell to himself, either in his own person or in the person of another. but such a transaction is not necessarily a fraud ..... sale who was not permitted to employ a trustee to carry out a fraud or breach of faith and do what he was not authorised to do by the contract, that is, to purchase the property himself and the trustee for sale (or for mortgage as chinnamma rao was) who has no business to place himself in ..... long as the transaction is not fraudulent or he does not take any undue advantage of his position. he cannot be said in a case like this to be contracting with himself. he has really a dual capacity. similarly, after his succession to the impartible estate, timma occupied two capacities and was in possession of two kinds of ..... indemnity over against the lessor may be disregarded. however that may be, there is no authority to show that the donee with a power of leasing call lease ..... a trustee; that must be because you get a perfectly that he can lease to a trustee; that must be because you get a perfectly good contract at law, with covenants at law which can be sued upon and recovered on; and it may be that the fact that the trustee has a right to .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-15-1940
Reported in : AIR1940Cal281
..... these personal covenants, their lordships held that the mortgage was only a usufructuary mortgage. it is obvious that the first of these two covenants was in the nature of an indemnity clause intended to come into operation only if the usufructuary mortgage failed by reason of the mortgagor exercising possession to the detriment of the mortgagee; and the second covenant was ..... . as to the first of these covenants, it should be noticed that by virtue of section 76(c), t.p. act, a usufructuary mortgagee must, 'in the absence of a contract to the contrary' pay the government revenue and all rents accruing due in respect of the mortgage property during his possession. it is thus clear that the statute itself permits ..... this order. sub-section (5) of section 26g, under which the application was made, runs thus:notwithstanding anything contained in this act or in any other law or in any contract, the consideration (with all interest thereon) for a complete usufructuary mortgage or for another form of usufructuary mortgage deemed under sub-section (1a) to have taken effect as a complete ..... a matter enumerated in entry 10 of the concurrent legislative list in schedule 7, government of india act, 1935. the entry in question reads:contracts, including partnership, agency, contracts of carriage, and other special forms of contract, but not including contracts relating to agricultural land.8. section 26g, ben. ten. act, was enacted by a provincial legislature in 1938 and was not assented to .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-17-1940
Reported in : (1941)43BOMLR346
..... of 1925, 15 geo. v, c. 19, of course does not apply in india. we are, therefore, not concerned with some of the radical extensions of the principles of trustees' indemnity effected by section 23(2) of that act. the law applicable in india is to be found in section 47 of the indian trusts act, 1882, which says that:-a ..... , obtained letters of administration to the estate of jaffer. the estate consisted of four immoveable properties, a business, certain shares and cash. in respect of a fifth immoveable property a contract to purchase was made during the lifetime of jaffer. that was completed by abdul rahim as his administrator. after obtaining letters of administration abdul rahim wound up the estate, collected ..... ) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.19. the explanation to the section says that-the appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-29-1940
Reported in : AIR1940Bom339; (1940)42BOMLR653
..... india. the other case on which mr. justice lokur relied, harkisandas v. bai dhanoo, may also have been justified as a decision on the particular contract there in suit, but i think that the reasoning, which followed that in vithoha madhav v. madhav damodar, cannot be supported. if parties desire that ..... intended to subsist only for the benefit of the members of that family.the actual decision may have been justified by the terms of the particular contract in question; but i must confess that i have great difficulty in following the reasoning on which it was based. the principle enunciated by the ..... of 1903 and the intention of the parties when the reservation clause was made, it follows that assignees outside the family could not enforce the contract specifically. this would then be a case of personal quality mentioned in section 23 of the specific relief act.mr. justice heaton also recognized that ..... subsequently.it seems to me in the first place that on the true construction of that document the option to repurchase was part of the original contract for sale. i mention that point, because in the trial court an issue was raised as to whether there was any consideration for the option ..... to the grantee and not assignable. under section 23 (b) of the specific relief act, 1877, it is provided that the specific performance of a contract may be obtained by the representative in interest, or the principal, of any party thereto: provided that, where the learning, skill, solvency or any personal .....Tag this Judgment!