Court : Mumbai
Decided on : Apr-01-1942
Reported in : AIR1942Bom302; (1942)44BOMLR703
..... plaintiff can sue and in any event the suit is premature. mr. tendolkar relies for his arguments on sections 124 and 125 of the indian contract act, 1872. section 124 defines the contract of indemnity as a contract by which one party promises to safeguard the other from loss caused to him by the conduct of the promisor himself, or by the conduct of ..... have pointed out, mr. tendolkar contends that the law in this country is different. i have already held that sections 124 and 125 of the indian contract act are not exhaustive of the law of indemnity and that the courts here would apply the same equitable principles that the courts in england do. therefore, if the indemnified has incurred a liability and ..... of calcutta. in shankar nimbaji v. laxman supdu (1939) 42 bom. l.r. 175 an appellate bench of this court held that under a contract of indemnity the cause of action arises when the damage which the indemnity is intended to cover is suffered, and a suit brought before actual loss accrues is premature. the proposition of law stated in these wide terms ..... a suit against the plaintiff and obtains judgment which the plaintiff is compelled to satisfy the plaintiff is not entitled to sue the defendant.3. if the whole law of indemnity was embodied in sections 124 and 125 of the indian contract act, there would be considerable force in the contention of mr. tendolkar ; but that is obviously not so. the indian .....Tag this Judgment!
Court : Chennai
Decided on : Jul-16-1942
Reported in : AIR1943Mad360; (1943)1MLJ131
..... and we are only making a provision in anticipation for any loss that may occur as a result of the defendants' default and breach of the contract of indemnity. further, we have to take into account the fact that the plaintiffs who are liable under the arrangement to pay the defendants certain amounts did not ..... are, what is the form of the decree to be made in the present case and what is the proper order as regards costs. under the contract of indemnity ex. p-3 the defendants undertook to discharge their liability within three months and to indemnify the plaintiffs against any claims or demands whatsoever for or ..... of affairs that the present suit came to be filed on 12th may, 1941, calling upon the defendants to make good their liability and the contract of indemnity by bringing their share of the amount due under the mortgage and thus save the plaintiffs from the harm of their properties being brought to sale by ..... it must be paid direct over to the creditor. if the creditor is not a party, i believe that it has been decided that the party seeking indemnity may be entitled to have the money paid over to him.the case of wolmirshausen v. gullick (1893) 2 ch. 514 was between two co-sureties ..... the allotment of properties and distributing the liabilities as per the agreement, and the other is ex.p-3 which is a deed of release and indemnity as between the several heirs inter se undertaking to pay and discharge the several liabilities imposed upon each within three months from the date of the .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-23-1942
Reported in : AIR1942Bom224; (1942)44BOMLR475
..... , although the terms of rule 46(a) have not been strictly complied with, omission to comply with the rule has not in any way affected the contract of indemnity on which the plaintiffs rely.14. i agree, therefore, that the appeal must be dismissed with costs, and cross-objections dismissed with costs.15. the ..... point is concerned namely the contention that the plaint does not disclose any cause of action, it is no doubt true that this is a claim for indemnity, and the plaintiffs must aver that they have suffered the loss for which they claim to be indemnified. but the plaint, as originally framed, contained ..... amount of purchase money for the securities which they had purchased. they could only aver that they had duly discharged their obligations in respect of the contracts through the stock exchange, and it seems to me that that averment, although it might have been prudent to make it in so many words, ..... of the native share and stock brokers' association. the most that the plaintiffs could aver is that they have duly discharged their obligations arising under the contracts which they had entered into on behalf of the defendant. as my learned brother has pointed out, a broker would not pay in cash for ..... who failed to comply with the provisions of ruler 46(a). it cannot be that non-compliance with the provisions of ruler 46(a) would render contract notes under rule 167 invalid, because the brokers failed or negligently omitted to mention the names of the partners or some of them or, as in .....Tag this Judgment!
Court : US Supreme Court
Decided on : Jan-12-1942
..... in the administration of the federal employers' liability act, we granted certiorari. section 3 of the first federal employers' liability act, * passed by congress in 1906, provided that "no contract of employment, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employee, nor the acceptance of any such insurance, relief benefit, or ..... indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employee. . . ." the court below, taking the position that the word "contract," as used in section 3, referred only to contracts entered into before the injury occurred, concluded that ..... . see hearings on s. 3080, february 20, 1908, p. 3, and compare senate report no. 460, 60th cong., 1st sess., p. 4. without more, the change from "contract" to "any contract, rule, page 315 u. s. 6 regulation, or device whatsoever" would seem to be an enlargement ample to include agreements made after the event of injury. but there is ..... more. under the state acts, there had been widespread attempts by employers to contract themselves out of the liabilities the acts were intended to impose. state legislatures had responded to this practice by adopting provisions which proscribed employer-employee agreements intended to deprive .....Tag this Judgment!
Court : House of Lords
Decided on : Jun-15-1942
..... the rule must apply; for i know no principle of english law which would enable either party to a contract which has been frustrated to receive from the other compensation for any expense, or indemnity from any liability, already incurred in performing the contract. nor could moneys paid before frustration be recovered if the person making the payment has received some part of ..... the price in advance. i am not aware of any justification for splitting up the consideration in this way, and assigning a consideration for each separate provision of a contract. under the contract here in question the consideration moving from the respondents was either the delivery of the machines at gdynia, or the promise to deliver the machines at gdynia. i think ..... the defendants to account of the price of certain plant which the defendants were to manufacture and deliver to them. owing to circumstances arising out of the present hostilities the contract has become impossible of fulfilment according to its terms. neither party is to blame. in return for their money the plaintiffs have received nothing whatever from the defendants by ..... to the main question involved in the appeal, i must mention another contention of the appellants which was based on clause 7 of the conditions of sale attached to the contract. this clause contained the provision that should despatch be hindered or delayed by ... any cause beyond our reasonable control including . . . war ... a reasonable extension of time shall be granted. .....Tag this Judgment!
Court : US Supreme Court
Decided on : Apr-27-1942
..... federal courts in liquidation proceedings under federal statutes that a solvent guarantor or surety of an insolvent's obligation will not be permitted, either by taking indemnity from his principal or by virtue of his right of subrogation, to compete with other creditors payment of whose claims he has undertaken to assure, ..... before the creditor is paid, he would, to that extent, diminish the creditor's dividends upon his claim, and thus defeat the purpose for which he had given the indemnity. united states v. national surety co., 254 u. s. 73 , 254 u. s. 76 ; jenkins v. national surety co., 277 u. s. 258 ; ..... litton, supra. but the question remains whether there is any equity arising from the prudence company's failure to perform page 316 u. s. 96 its contract of guaranty which a bankruptcy court should recognize as requiring the subordination of the company's interest in the mortgage to the claims of the other mortgage ..... v. united states, 308 u. s. 343 , 308 u. s. 349 -350; deitrick v. greaney, 309 u. s. 190 , 309 u. s. 200 ; royal indemnity co. v. united states, 313 u. s. 289 , 313 u. s. 296 . the court of bankruptcy is a court of equity to which the judicial administration of the ..... from or an incident to it. their assertion is in no way inconsistent with any duty or obligation it assumed by its contract of guaranty. by that page 316 u. s. 97 contract, the guarantor pledged only its personal obligation for the payment of the certificates. it gave to the certificate holders no lien .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-11-1942
Reported in : AIR1943Bom229; (1943)45BOMLR405
..... rights, consented to treat the defendant leniently, and waited, without binding himself to wait, and that it was a case of voluntary waiting, and not of alteration of the contract, the length of time making no difference. the case is particularly useful as regards the present case, because from the correspondence it appeared that the defendant, having repudiated liability on ..... this letter acknowledges that the three orders which had been placed by the plaintiff with the defendants were still alive. by the letter the defendants seek to avoid them as contracts which were still alive. the defendants made no attempt at this trial to substantiate the allegation that illegal gratification had been paid by the plaintiff to their representative keshavdev neither ..... address at ahmedabad.4. on november 10, 1940, the plaintiff wrote a letter addressed to the defendants in bombay enclosing a specification for fifteen tons kraft paper ' against our contract which please confirm per return and oblige'. the letter then against the word 'railment' requests the defendants out of the fifteen tons to make three equal lots and rail the ..... no such notification is received by the company the goods will be despatched and buyers must take delivery.4. the company will not be responsible for any non-fulfilment of contract provided however that if the goods or any portion thereof from any unavoidable cause such as, want of accommodation on railway, or steamer, strikes of operatives or carriers, accidents, .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-17-1942
Reported in : AIR1943Bom199; (1943)45BOMLR387
..... that the parties have, by an arbitration agreement, which i hold to be binding upon them, agreed to submit any dispute arising out of the contract to arbitration, i think i ought to give effect to that agreement. consequently, i stay this suit.10. the plaintiffs must pay the costs of ..... (1923) mad. 164, where the appeal court held that the mere fact that the defendant, who was threatened with legal proceedings for breach of a contract containing an arbitration clause, did not, before the institution of the suit, insist on the arbitration clause, but relied on it for the first time ..... filing of the suit to submit the disputes to arbitration. this is not a case in which the defendants had ever denied the factum of the contract. in the letter of december 16, 1941, from the defendants' attorneys, to which i have already referred, they expressly admitted that they had accepted ..... a binding agreement to refer. that depends upon the meaning to be attributed to the first part of condition 14 of the terms and conditions in the contract. the material words are as follows :-any complaint, claim, dispute, doubt or question (not otherwise settled by mutual consent) arising out of this ..... is alleged that the defendants accepted the offer and in paragraph 5 the plaintiffs alleged that on receipt of that letter there was a concluded contract.3. thereafter difficulties are alleged by the defendants to have arisen in connection with the shipment of the goods from america. the correspondence relating .....Tag this Judgment!
Court : Chennai
Decided on : Nov-05-1942
Reported in : (1943)1MLJ303
..... or deduction, from the drawings, specifications, bills of quantities, the value of all additions and deductions being ascertained by measurement and added or deducted from the amount of the contract price at the prices mentioned therein.learned counsel for the defendant company contends that according to this condition the works manager was authorised to make any deviation from the . drawings ..... contractor completed the works under this contract. although not very important by itself, this condition gives a fairly good clue, in our opinion, to the magnitude of the work that the contractor was called upon to ..... specifications, was to be binding op the parties. this was, as found before, given to the plaintiff in respect of raw meal silos. ...26. under the fourth condition of this contract, ' all temporary buildings, stagings, railways, tramways, machinery and plant provided by the contractor for the construction of the works ' were to become the property of the company until the ..... at the corporation depot, stroud road, gloucester, in guaranteed makers, drums or barrels sealed down.19. this tender was accepted. when the question arose whether this constituted a binding contract between the parties, it was held by the learned judges that there was an obligation on the municipal council to order from the respondent such of the goods included in .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-09-1942
Reported in : AIR1943Bom27; (1942)44BOMLR874
..... who may be parties to a suit for specific performance. that clause is as follows:--any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant.8. the general rule is obviously the sensible rule in practice. but the ..... fry (paras. 208 and 209):--. a stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it, as to render himself liable to be made a ..... interest arising under a prior contract; and in cases where it is desirable to avoid multiplicity of suits. that is exactly what order i, rule 1, of the civil procedure code, contemplates. according to ..... halsbury's laws of england, 2nd edn. vol. xxxi, para. 497, page 417, and the foot-notes thereunder. see also fry's specific performance of contracts, 6th edn., page 90, para. 205). for instance, strangers are made parties as an exception to the rule in cases of novatio; in cases of an ..... march 22, 1937, the plaintiff stated that such an attachment was not effective under section 64 of the civil procedure code to defeat his rights under a subsisting contract at the date of the attachment, and he consequently asked the court on that ground to implead the attaching creditor of his vendor as a party .....Tag this Judgment!