Court : Allahabad
Decided on : Feb-02-1951
Reported in : AIR1951All774
..... modified form. the decision can be supported on the general ground that there was no equity in 'favour of the plaintiff nor was there any contract of indemnity between him and his co-defendant in the original suit. with great respect, it may be pointed out that the view expressed by the bench ..... there is no implied contract, does equity require that a a party who has alone suffered a burden that was cast ..... between this case and that of a joint judgment against several defendants in an action of assumpsit: and that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right.' the editor of the revised reports ..... agreed to be committed, and cannot be separated from it, and, when the whole contract becomes unlawful the terms relating to contribution falls along with it and cannot be enforced.42. where there is no express contract for indemnity or contribution as between joint tort-feasors, does the law imply one? or, if ..... in that case that it lay upon the plaintiff (i. e. person seeking contribution) to show that there was either some contract between him and the .....Tag this Judgment!
Court : Punjab and Haryana
Decided on : Dec-05-1951
Reported in : AIR1953P& H110
..... encumbrances 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 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 a ..... , 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 second point appears to the to be covered by the words-'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 a contract of indemnity. the purchaser takes the property subject to the burthen attached to it. if the encumbrances turn out ..... contract of indemnity. the purchaser takes the property subject to the burthen attached to it. if the encumbrances turn out to be invalid, the vendor has nothing to complain of. he has got what he bargained for. his indemnity is complete. he cannot pick up the burthen of which the land .....Tag this Judgment!
Court : Mumbai
Decided on : Jun-29-1951
Reported in : AIR1952Bom95; (1951)53BOMLR870; ILR1952Bom213
..... broker has put forward a rather ingenious argument and what he has contended is that although the contract for the purchase or sale of securities may be void under section 6, bombay securities contracts control act, the contract to the extent that it is a contract of indemnity between the broker and its constituent is not void and the submission clause to the extent that ..... and between a member and a non member. therefore, if a broker wants to have the question of his indemnity referred to arbitration, he must enter into a contract in accordance with the form laid down under the rules. then alone ia hia contract valid; then alone is the clause with regard to submission valid and operative. but if he chooses to enter ..... upheld and we should hold that the arbitrator had jurisdiction to determine whether the broker was entitled to any amount for indemnity. ie the contract is not a ready delivery contract but is what may be described as a forward contract, then under the rules of the stock exchange such a contract has to be entered into in accordance with the rules framed for forward ..... offending against the provisions of section 6 of the act, a valid submission may still be founded upon this contract by reason of the fact that it is a contract of indemnity between the broker and his constituent. the result, therefore, is that we must bold that the contract relied upon by the respondent is void, that the submission clause contained in that .....Tag this Judgment!
Court : Allahabad
Decided on : Jan-25-1951
Reported in : AIR1951All589
..... the deed in favour of the defts.-mtgees. was executed by the pltf. in the circumstances it must be taken as a claim based on a contract of indemnity, for which the period of limitation has to be counted from the date when the pltf. is actually damnified under article 83 of the act. admittedly ..... . a. 203: 31 all. 583 (p.c.) that a covenant by the purchaser to pay a certain amount to the vendor's creditors was a contract of indemnity within the meaning of article 83, limitation act. but, while this may be true as a general proposition, it cannot destroy a cause of action which ..... air1938all297 by contending that the relevant words in the deed of 11-11 1934, quoted by us in the beginning of this judgment, amounted to an indemnity clause for the enforcement of which a suit could lie within three years from the date on which the pltf. was damnified under article 83 of the ..... & 116, limitation act, applied, the former prescribing a period of three & the latter prescribing a period of six years from : (l) the date when the contract is broken, (2) in case of successive breaches, the date of the breach in respect of which the suit is filed, or (3) in case the breach ..... for the pltf.-applt. sought to bring the claim on this alternative basis within article 83, limitation act, which governs a suit to 'indemnify' based on a contract, the period of limitation commencing from the date when the pltf is 'actually damnified.' if the expression 'actually damnified' means, as it must mean, 'actually .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-23-1951
Reported in : AIR1951Cal519
..... , where lord ellenborough gave the reason thus :'he thought there was no foundation for the set-off claimed, as the sum claimed was unliquidated damages: that a guarantee was a contract of indemnity; it was to make good the default of another party, for whom the guarantee was given: that was not an absolute debt by the pltf. to the deft. but ..... & b sue c for the recovery of a debt due from c to a & b, c cannot set off a debt due to him from a alone. under section 45, contract act, the claim of a & b is joint & to allow c to plead set off in such a case will be to enable c to obtain payment from b who ..... for the default of a third party. in such a case the liability of the guarantor is neither joint nor several. his is a contract to perform the promise of another on his default: section 126, contract act. the question whether a debt due to the surety may be set off against his liability on the guarantee in an ordinary action must ..... . (n. s.) 526. a joint & several debt is a separate debt of both the debtor?.6. in india, in the absence of a contract to the contrary, a joint promise creates a joint & several obligation : section 43, contract act. if a sues b & c who are jointly & severally liable, b can set off a debt due to him separately from a. on .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-20-1951
Reported in : AIR1953Bom98; (1952)54BOMLR786
..... question as to whether an agent is entitled to an indemnity or not depends upon whether the contract was merely void or whether it was unlawful. if the contract was unlawful, there can be no indemnity; but if the contract was merely void, then there is an indemnity. in an unreported judgment delivered by kama .t. (as he then was) in -- 'madhubhai ..... not open to the constituent to say that he had authorised the broker only to enter into a valid contract.(5) that brings me to the question as to whether an agent is entitled to an indemnity if he enters into a void contract on behalf of his principal with a third party. the position in law appears to be well-settled. the ..... contracts' which were made by the native share and stock brokers' association and came into force on october 4, 1946. at that date ..... suits which are on my board and which have been filed by brokers against their constituents) is whether, assuming that the contracts entered into by the brokers on behalf of their constituents were void, the brokers are entitled to an indemnity from their constituents.(3) now, the contracts in suit were effected under a set of rules entitled 'additional rules for heady delivery .....Tag this Judgment!
Court : Chennai
Decided on : Aug-17-1951
Reported in : AIR1952Mad389; (1952)1MLJ44
..... the damages claimed were excessive. the subordinate judge held that there was no agreement on 20-3-1943 that the plaintiff should execute an indemnity bond and that, therefore, the contract was broken not by the plaintiff but by the defendants; that there was no necessity to sell the joint family properties and therefore the ..... learned advocate for the respondents also sought to support the decree by contending that the plaintiff' had agreed on 20-3-1943 to execute a deed of indemnity and was in default in declining to do so. ex. p. 4 contains no such terra. the 1st defendant as d.w. 1 admitted that at ..... circumstances proved."in this case it may be mentioned that defendants sent a notice on 19-4-1943 expressing their willingness to execute the sale deed if an indemnity bond was executed by the plaintiff. it was only in 1946 in their reply notices, exs. p. 12, 12(a) and 12(b) dated 1 ..... p. 8 and notice, ex. p. 10, both dated 19-4-1943. they stated that the plaintiff had also agreed to execute a deed of indemnity in respect of any claim that might be made against them personally by the mortgagee under ex. p. 3 and that they were willing to execute the sale ..... agreement was inadequate, as at the time of the agreement, that the plaintiff had imposed upon the 1st defendant and duped him into entering into a contract on fraudulent representations and therefore, it was unenforceable. the defendants gave evidence in support of these allegations but the lower court disbelieved them. this is what .....Tag this Judgment!
Court : Karnataka
Decided on : Jul-05-1951
Reported in : AIR1951Kant113; AIR1951Mys113
..... which ordinarily forms the whole or part of the work of the principal, the case is not governed by section 12(1) and right to claim indemnity does not arise.'he went on to observe :'where compensation is claimed by a workman against the principal instead of against the contractor, his immediate employer ..... the work done by the contractor under the contract was work which ordinarily formed the whole or part of the principal's business and on establishing that fact, a right of indemnity would arise.'in that case the workman had offered no evidence at all as ..... , it is not for the contractor to prove that the work which he contracted to do was not ordinarily the kind of work performed by the principal. the onus rests in the first place upon the workman to prove that ..... constructing a transmission line to carry power to various sub-stations on the railway. they had entrusted the work of construction the transmission line on a contract to an independent firm. that firm had employed the deceased as a fitter. his duties were to assist in the erection of the steel towers ..... transport goods and commodities for hire; and as respondent 2 had taken the lorry from the appellant for the same purpose, more or less, on a contract basis, the appellant became the principal and respondent 2 a contractor within the meaning of section 12, workmen's compensation act, and that the appellant .....Tag this Judgment!
Court : Allahabad
Decided on : Mar-20-1951
Reported in : AIR1952All163
..... properties.'it is conceded that this right would be open to the vendees provided there is no contract to the contrary. it is contended for the mortgagees-respondents that such a contract is to be found in the indemnity clause in the sale deeds, exs. 12, 13 and 14. the provision referred to is ..... the encumbrance. the vendors never placed sufficient funds in the hands of the vendees to extinguish the mortgage under ex. 1 and, therefore, there was no contract to the contrary. we hold, therefore, that the vendees are entitled to marshalling under section 56, t. p. act.16. no other point was urged ..... section. 56 and that the purchaser was not entitled to marshalling.15. these cases are distinguishable on facts. in the present case there was no contract, express or implied that the object of the sale was to discharge the burden of mortgage and that as it was not carried out, the vendees ..... proved that the intention was to extinguish the entire mortgage and release the property from the mortgage, but if there was no such intention evidenced by any contract, the right is not defeated or lost.14. in pirthiraj singh v. bukmin kunwar : air1926all415 where the vendee of one of the mortgaged properties undertook ..... . there is no doubt that the burden of proving the agreement lay heavily upon the defendants who set it up in variation of the written contract of mortgage. it is clear that in discharging this burden they relied only upon the evidence of their munim and withheld the best evidence from the .....Tag this Judgment!
Court : Punjab and Haryana
Decided on : Nov-12-1951
Reported in : AIR1952P& H298
..... 's transfer of property act the words 'in the absence of a contract to the contrary' have been construed in the following words: 'the implied conditions enumerated in this section are supplemented or varied in actual practice by numerous particular conditions. such conditions ..... as well as azizud din, according to section 55 of the transfer of property act, the princi-pals of which apply to this state, 'the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same'. at page 339 in mulla ..... was misled by the fact that in the deed of sale particularly in that clause which dealt with indemnity the words were--'then we the vendors, i.e., i executant no. 1 will be answerable therefor'. the rule of construction in regard to these contracts is what i have quoted from mulla's transfer of property act, and therefore the plaintiff was .....Tag this Judgment!