Court : Kerala
Decided on : Dec-15-1961
Reported in : AIR1965Ker214
..... sub-section (4).10. the application of the doctrine of subrogation to policies of marine insurance is based upon the fundamental principle that the contract of insurance contained in a marine policy is a contract of indemnity, and of indemnity only. the assured in the case of a toss against which the policy was taken is entitled to be fully indemnified; but never to ..... '.12. the right of the insurer against the person responsible for the loss, however, does not rest upon any relation of contract or of privity between them. it arises out of the nature of the contract of marine insurance as a contract of indemnity, and is derived from the assured alone, and can be enforced in his right only.13. sub-section (1) of ..... in his own name.'14. as between the insurer and the assured, the insurer is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capableof being insisted on or already insisted. but as stated by the privy council in king v. victoria insurance co. ltd., 1896 ..... the beneficial interest therein, the assignee of the policy is entitled to sue thereon in his own name; and the defendant is entitledto make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by at on behalf of whom the policy was effected .....Tag this Judgment!
Court : Orissa
Decided on : Mar-17-1961
Reported in : AIR1962Ori54
..... bill for the amount of debt. on appeal from a decision of mathew, j. the court of appeal held that this promise was not a contract of indemnity but was a 'promise to answer for the debt of another' within section 4 of the statute of frauds and that as it was not ..... held that the defendant simson was discharged from liability under the bond. thus, there is no doubt that the principles underlying section 135 of the contract act apply to the cases of security-bonds though the section in terms does not apply. the equitable principles being applied, there is not much of ..... for payment or impairs the surety's remedies against the principal debtor which he could have been entitled to pursue on discharging ms obligations converts the contract between the creditor and debtor into, a different one from what the surety had stood a guarantee for, would entitle the surety to be relieved ..... on appeal the district judge discharged the surety from his obligation. before the high court it was contended that the principle underlying section 135 of the contract act is applicable. since the first defendant entered into a compromise with the plaintiff without the assent of the surely, the latter is discharged from ..... a composition; the former promising, to give the latter time for performance of the decree. thus, the surety stands discharged unless ha assents to such a contract. for this purpose,both the courts below as stated earlier, had relied upon a decision of this court in ilr (1957) cut ,152, to which .....Tag this Judgment!
Court : Chennai
Decided on : Apr-21-1961
Reported in : AIR1962Mad202
..... page 182,'a right to indemnity generally arises from contract express implied. but it is not confined to cases of contract. a right to indemnity exists where the relation between the parties is such that either in law or in equity there ..... , the learned counsel for the petitioners, referred in this connection to the decision in 1924 ac 177 and contended that an indemnity need not necessarily be as a result of contract, but can either be implied or arise by reason of other circumstances in the case cited above, lord wrenbury stated at ..... ward. (1802) 7 ves 332, a case of vendor and purchaser) in cases in which the court will independent of contract raise upon his (the purchaser's) conscience and obligation to indemnity the vcendor against the personal obligation of the vendor'.(9) reference was also made to subula sahib v. perianna pillai, 70 ..... promissory note itself.(5) the only question, therefore, to be decided at the present stage is whether the petitioners would be entitled to contribution of indemnity against the third paries, in the event of the court holding that the respondent is not a holder in due course. that question is a ..... mad lw 493: air 1957 mad 697 where it was held hat an application under order viii-a c.p.c. would lie, even if there had been no privity of contract .....Tag this Judgment!
Court : Chennai
Decided on : Apr-21-1961
Reported in : (1962)1MLJ246
..... 182:a right to indemnity generally arises from contract express or implied, but it is not confined to cases of contract. a right to indemnity exists where the relation between the parties is such that, either in law or in equity there ..... the decision in eastern shipping co. v. quah bang kee l.r. (1924) a.c. 177 and contended that an indemnity need not necessarily be as a result of a contract, but can either be implied or arise by reason of other circumstances. in the case cited above, lord wrenbury stated at page ..... note against his endorser alone, leaving out the maker. justice of the case may require that the endorser defendant, who has got a right of indemnity against the maker, should be allowed to adopt the third party procedure as against the maker. there is nothing in order 8-a, civil procedure code, which ..... dismissed the petition on the ground that there was no question to be tried as to the liability of the third party defendants to make contribution or indemnity.6. the procedure adopted by the learned district munsif can hardly be commended. the court was not concerned, at this stage, about the truth of ..... promissory note itself.5. the only question, therefore, to be decided at the present stage is whether the petitioners would be entitled to contribution or indemnity against the third parties, in the event of the court holding that the respondent is not a holder in due course. that question is a simple .....Tag this Judgment!
Court : House of Lords
Decided on : Dec-06-1961
..... of his contract with a, it may be that a can recover from b as damages the sum which ..... for effecting delivery did not in any way involve the plaintiffs. there were no circumstances out of which it could be implied that the plaintiffs made some contract with the stevedores. nor does any different result follow from the use of the word participation or by asserting that the stevedores were participating in the ..... be no certainty in defining what would be the obligations contractually undertaken by the stevedores towards the plaintiffs. furthermore, i see no rational basis for implying some contract between the plaintiffs and the stevedores. when the plaintiffs were ready to take delivery of the drum and when a landing order in respect of it had ..... . atkinson the stranger cannot take advantage from the contract. it may be that in a roundabout way the stranger could be protected. if a, wishing to protect x, gives to x an enforceable indemnity, and contracts with b that b will not sue x, informing b of the indemnity, and then b does sue x in breach ..... he has to pay x under the indemnity, x having had to pay it to b. but there .....Tag this Judgment!
Court : Mumbai
Decided on : Oct-24-1961
Reported in : 47ITR394(Bom)
..... assessee observing the conditions mentioned in clauses (4), (5) and (6) of the agreement. further, the parties themselves have chosen to term the unpaid amount of the instalments as outstanding indemnities and that indicates the character of the payment of instalments is payment of compensation and not payment of a debt. had it been the true position, that the entire amount ..... , notwithstanding the above, deliberate competition in this business with gsc (i) bombay-sgs continues, then the latter have the right to stop payment of all or part of the outstanding indemnities (provided) by clause (2) of the present agreement.' 7. clause (8) provides for arbitration in case of dispute and clause (9) provides that the agreement is subject to swiss law ..... . mr. palkhivala contends that though the use of the expression 'outstanding indemnities' in clause (7) indicates that the character of the instalments is payment of compensation, yet having regard to the other terms of the contract, it is nothing but repayment of a debt. according to mr. palkhivala, non-observance of the conditions in clauses (4), (5) and (6) only resulted in ..... forfeiture of accrued income, which had remained to be paid to the assessee. it is difficult to put such a construction on the clause. apart from the expression 'outstanding indemnities', in the .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Mar-14-1961
Reported in : AIR1961SC1353; 1SCR290
..... persons so interested, the advantage so gained, but subject to the repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.' illustration (c) to that section says, 'a mortgages land to b, who enters into possession. b allows the government revenue to fall ..... ' applies. therefore, when the defendant entered upon possession he was there as a mortgagee and being a mortgagee the plaintiffs have a right to redeem unless there is either a contract between the parties or a merger or a special statute to debar them.' 7. these observations must have been made on the assumption that it was the duty of the .....Tag this Judgment!
Court : Chennai
Decided on : Aug-11-1961
Reported in : AIR1962Mad243; (1962)1MLJ46
..... defendants, claiming that in case they were unable to prove that the payment made to those persons were binding on angammal they would be entitled to an indemnity from those persons. the learned district munsif rejected the application.(2) mr. ramamurthi, learned counsel for the petitioner, contends that, in substance, the claim ..... had authority to bind another. that will be a plain case of procuring money by false pretences. the claim is not therefore one on any indemnity express or implied and the provisions of order viii-a of the c.p.c., will not apply.(5) the civil revision petition fails and ..... a claim would be in the nature of damages for tort. i cannot see how it can be said that the claim is one by way of indemnity.(3) counsel, however, relies upon a passage in bowstead on agency, 12th edn page 273 and on a decision of the allahabad high court reported in ..... of the defendants against mariappa pillai and thangaraju was one on an indemnity and that, therefore, the third party notice should issue, i am unable to agree. the case of the defendants was that mariappa pillai and thangaraju had ..... on agency at page 273 it as stated that 'where the authority of the agent is disputed by a person on whose behalf the contract is made, the person who made the contract may be joined with him as a co-defendant and relief claimed against him alternatively.'(4) in kedarnath's case : air1926all605 , money .....Tag this Judgment!
Court : Kolkata
Decided on : May-31-1961
Reported in : AIR1962Cal290,65CWN949
..... also the law applicable in india'. mr. justice sankaran nair took the contrary view, holding that it was inconsistent with the provisions of the indian contract act and the manifest intention of the legislature in enacting such provisions. but we see no adequate reason here to adopt the view of the ..... , and notwithstanding the generality of some expressions in the chapter on bailments, they think that common carriers are not within the act.' 16. the contract act being thus of the way, of its own force, so far as common carriers are concerned, and there being no dispute that the petitioner ..... those terms, provided that there were no statutory conditions limiting his right' 15. the inapplicability of the indian contract act 1872 in determining liability of a common carrier was decided by the privy council, as far back as 1891, in the case of irrawaddy ..... sundry, subject to the obvious limiting conditions. the common carrier of goods was nevertheless at common law free to limit his stringent obligations by special contract. he still remained according to his profession, but he could all the same insist on making his own terms and refuse to carry except on ..... extreme contention, raised by mr. hoy, that his client can claim absolute exemption from all claims for damages under all circumstances in view of the contract between the parties and in view of the authorities, cited by him, namely, jellicoe v. the british indian steam navigation co., ilr 10 cal 489 .....Tag this Judgment!
Court : Allahabad
Decided on : Nov-23-1961
Reported in : AIR1962All422
..... law. broadly speaking, a stipulation, which gives the mortgagee an advantage which does not arise legitimately out of the mortgage contract is treated as a stipulation to clog the redemption.'they held that the mere fact that the period of redemption was large, was no ground for ..... rules have to be applied within well defined limits and what contract may be set aside in engand as a mere clog on redemption, need not, necessarily, be set aside having regard to the conditions of the indian ..... and cannot be interfered with except on well known lines. mere vague grounds of equity will not justify a court in interfering with the terms of the contract. in certain cases, the courts in, india have followed the english rule which sets aside what it calls 'clogs on equity of redemption'. those ..... parties may express their agreement that there shall be no redemption; the intent being contrary to the rules of equity, it cannot be carried into effect. such contracts violate public policy.'11. 4. davis v. symons, 1934 ch d 442. there, the facts were:'a mortgage of land, together with an endowment policy ..... is entitled to redeem. the question, as to when a mortgagor is entitled to redeem, must be answered with reference to the terms of the contract as a whole, other relevant circumstances and the rules of taw and equity, applicable to the particular case.'the case was sent back to the lower .....Tag this Judgment!