Court : Mumbai
Decided on : Aug-02-2005
Reported in : AIR2005Bom385; 2005(4)ALLMR875; 2005(6)BomCR55; 2006(2)CTLJ105(Bom); 2005(4)MhLj629
..... called the 'creditor'. a guarantee may be either oral or written.'10. a promise to be primarily and independently liable for another person's conduct may amount to a contract of indemnity. a contract of guarantee requires concurrence of three persons - the principal debtor, the surety and the creditor -the surety undertaking an obligation at the request express or implied of the principal ..... of the above reasoning, we are of the view that the principal debtor m/s. pentagon was not a necessary party. the document exhibit-46, is not an independent contract like a contract of indemnity. it is a tripartite agreement. as the appellant need not prove losses caused by the beneficiary, m/s. pentagon therefore, is not a necessary party even though the ..... april, 1985, to provide the bank guarantee of the said 10% amount. the preamble of the document in question creates an impression that the said document is a contract of indemnity and not a contract of guarantee. 14. it is well settled, and, as rightly observed by the learned judge, that the oral evidence cannot prevail over the written and agreed document. this ..... from loss caused to him by the conduct of the promise himself, or by the conduct of any other person, is called a 'contract of indemnity.' 126. 'contract of guarantee' 'surety' 'principal debtor' and 'creditor' - a 'contract of guarantee' is a contract to perform the promise, or discharge the liability, of a third person in case of his default. the person who gives the guarantee .....Tag this Judgment!
Court : Himachal Pradesh
Decided on : Feb-25-2005
Reported in : AIR2005HP39
..... . smt. pawna (civil appeal no. 1971 of 1998) with slp nos. 1760-1761 of 1998 decided on 18-12-2003. their lordships held :'the right to sue on the contract of indemnity arose only after the assets were sold off. it is only at that stage that the balance due became ascertained. it is at that stage only that a suit for ..... contract of indemnity, only when the sale proceeds were found to be insufficient.'21. in the present case, assets of the defendants-company were ..... recovery of the balance could have been filed. merely because the corporation acted under section 29 of the financial corporation act did not mean that the contract of indemnity came to an end. section 29 merely enabled the corporation to take possession and sell the assets for recovery of the dues under the main ..... contract. it may be that on the corporation taking action under section 29 and on their taking possession they became deemed owners. the mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. the right to claim for the balance arose, under the .....Tag this Judgment!
Court : DRAT Madras
Decided on : Jul-29-2005
Reported in : IV(2005)BC136
..... determine in such cases as to whether it is a contract of guarantee or indemnity.section 126 of the contract act deals with the contract of guarantee which states, "a "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default.... a ..... the third party namely, the principal debtor does not figure in by nomination, it cannot be said that it gives rise to the contract of indemnity as in fact, in substance and essence it is a contract of guarantee because primarily and essentially it is the substance that has got to be looked into and not the form in order to ..... mere failure to protest is not acquiescence. (3) the prevalence of banking practice legitimatises stipulations as to interest on periodical rests and their capitalisation being incorporated in contracts. such stipulations incorporated in contract voluntarily entered into and binding on the parties shall govern the substantive rights and obligations of the parties as to recovery and payment of interest.the learned advocate ..... that is, a debtor entering into a fresh agreement with creditor undertaking payment of previously borrowed principal amount coupled with interest by treating the sum total as principal, any contract express or implied and an express acknowledgement of accounts are best evidence of capitalisation. acquiescence in the method of accounting adopted by the creditor and brought to the knowledge of .....Tag this Judgment!
Court : Chennai
Decided on : Feb-28-2005
Reported in : III(2005)ACC640; 2007ACJ94
..... total loss basis as is the method adopted in settlement of all claims.21. the insured's estimated value is rs. 2,20,000/- being a contract of indemnity, the insurer is liable to pay only the market value not exceeding the sum insured. the fixation of market value will be done only with the ..... for insurance of a motor vehicle, the proposer is required to state his estimated value of the vehicle; that when the insured seeks insurance by an indemnity policy for the value which is estimated to be the value of the goods/property sought to be insured, the insurer has no say in the ..... unenforceable, invalid and ultra vires of the constitution cannot sustain and hence it is only desirable to conclude that the petitioner being a party to the contract application of the terms and conditions cannot be normally questioned and hence he is not entitled to the relief of declaration as sought for in the w ..... connection, a reference may be made to series of decisions of this court wherein it has been held that duty of the court to interpret the document of contract as was understood between the parties. in the case of general assurance society ltd. v. chandmull jain reported in , it was observed as under: 'in ..... and the terms on which it was effective, mere reading of the proposals and the letters of acceptance would not give any terms. further when a contract of insuring property is complete, it is immaterial whether the policy is delivered or not for the rights of the parties are regulated by the policy .....Tag this Judgment!
Court : Himachal Pradesh
Decided on : Mar-28-2005
Reported in : III(2005)ACC688,2005ACJ1972
..... in an accident, he does not acquire any right to get compensation from the insurance company under the policy issued to him. insurance policy issued by the respondent is a contract of indemnity to satisfy the conditions laid down under section 95 of the act. the ingredients of the law of insurance are nowhere provided in the special statute. necessarily therefore, the ..... policies cover various types of risk including the own damage to the vehicle. in that event extra premium is to be paid and it is by way of a mutual contract between the insurance company and the owner that such risk is covered. in the present case, no clause has been pointed out in the policy, exh. rx, which shows that ..... first established against the insured. it is only in that case the liability of the insurance company would arise. the insurance company or the insurer is one party to the contract, the insured or the policyholder is another and the claims made by others in respect of negligent use of the vehicle would be claims by third parties. thus, it is ..... . in mathew koshy v. oriental insurance co. ltd., 1989 acj 21 (kerala), a division bench of kerala high court held as follows:'a contract of insurance in the widest sense of the term may be defined as a contract whereby one person called the insurer' undertakes in return for the agreed consideration called 'premium' to pay to another person called the 'assured .....Tag this Judgment!
Court : Mumbai
Decided on : Jun-30-2005
Reported in : 2006(1)BomCR850; 2005(4)MhLj607
..... . the plea taken by the petitioner for the first time in its reply to the statement of claim filed before the arbitrator that clause v of the contract was an indemnity clause is clearly an afterthought and it was raised merely to avoid payment of demurrage. in my opinion, therefore, the learned arbitrator has correctly held clause no. v not to ..... arbitrator's conclusion that the words 'if required' in sub-clause (v) did not show that the demurrage provision was in the nature of indemnity was, a conclusion that he was not entitled to take.if the contract leaves the rate of demurrage open, only stipulating the maximum, why does it follow that the omission or hiatus is to be filled up ..... on the plea that an event has occurred on which an amount has become payable under the contract. the petitioner's pleaded case that demurrage was in the nature of indemnity was a plea that the right to demurrage under the contract was a right to a liquidated sum, namely the sum that the respondent paid to the vessel owner.it is no ..... demurrage, which is clearly created in favour of the seller, in fact is really an indemnity. an indemnity clause is not difficult to draft; there is no reason why the parties could not have framed the liability in indemnity form. the respondent seeks to read into the contract something that is simply not there. the provision for making payment to the shipowner is only .....Tag this Judgment!
Court : Gujarat
Decided on : Nov-25-2005
Reported in : (2006)1GLR497
..... that equitable principles underlying these sections would apply to a surety bond executed in favour of the state or a department of the state. vi. similarly section 141 of the contract act gives right to a surety to benefit of every security which the creditor has against the principal debtor. the principle underlying the rule that the surety is entitled, on ..... of default are such as to excuse the principal debtor from liability, the surety is also discharged from his liability. on the same principle, the surety is discharged when the contract by principal debtor is illegal or void. the surety's liability must be specifically proved against him and award or judgment against the debtor is no proof against the surety ..... be made:i. chapter viii of the indian contract act, 1872 (contract act) deals with indemnity and guarantee. sections 124 and 125 deal with indemnity while rest of the sections commencing from section 126 upto section 147 of the contract act, deal with law regarding guarantee. section 126 of the contract act gives various definitions. contract of guarantee is a contract to perform the promise, or discharge the ..... . it was, therefore, contended on behalf of the petitioner that the authorities cannot fasten any liability on the petitioner because the petitioner was not a surety, having not executed any contract as required by law. alternatively, it was contended that the order-in-original was bad in law as the same had been framed against the settled legal position. it was .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Oct-04-2005
Reported in : AIR2005SC4430; 2005(3)ARBLR429(SC); JT2005(9)SC173; (2005)3MLJ85(SC); 2005(8)SCALE372; (2006)1SCC86
..... and for the observance of the regulations aforesaid without prejudice to his right to claim indemnity from his sub-contract.(f) the regulations aforesaid shall be deemed to be part of this contract and breach thereof shall be deemed to be breach of contract.'special conditions of the contract inter-alia provide as follows:'31 labour conditions:-(a) the contractor shall comply with ..... workmanship, or materials used on the work or as to any other question, claim, rights, matter, or thing whatsoever in any way arising out of, or relating to, the contract, designs, drawings, specifications, estimates, instructions, order, these conditions or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of ..... the local situation regarding materials, labour and other factors pertaining to the work before submitting this order. 2. i/we carefully studied the n.i.t. conditions of contract, specification, additional instructions, general rules and directions and other documents related to this work and i/we agree to execute the work accordingly.i/we do hereby tender for ..... the work was not completed within this time and time was extended. it appears that the work was not completed within the extended time also. the appellants terminated the contract and got the balance work completed from some other contractor. the respondent raised various claims which were rejected by the appellants. the respondent, therefore, moved an application under .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Pune
Decided on : Nov-30-2005
Reported in : (2007)106TTJ(Pune.)741
..... did not in any way refer to any specific patent owned by the supplier which the buyer was permitted to accept. all that the contract provided was an indemnity to the buyer to protect the buyer against any action by a third party claim, patent, trademark or other rights in the equipments ..... cost of the plant and machinery. the admitted fact, as noted by the tribunal bench, was that there was a separate provision in the contract for making payment by the indian company to the assessee towards such cost of plant and machinery. since the agreement between the parties in that ..... , a decision of tribunal, delhi bench, in the case of munjal showa ltd. v. ito (supra) was cited. in that appeal, as per contract agreement, the assessee company had received the licence to use the industrial property right for manufacture of shock absorbers and also technical documents and know-how relating ..... . the title of the agreement was "agreement for license, process designing and technical assistance for a polyvinyl chloride complex." on the basis of the said contract, the assessee was required to pay to the non-resident an amount termed as "price" as per article vt of the impugned agreement. the assessee ..... supplied. the hon'ble court has given a finding that there was no transfer or licence of any patent, invention, model or design. the design referred to in the contract .....Tag this Judgment!
Court : Andhra Pradesh
Decided on : Jan-20-2005
Reported in : AIR2005AP199; 2005(2)ALD320
..... pay the compensation, however subject to indemnification by the contractor, regarding which all the questions as to the right to and amount of any such indemnity shall be settled by the commissioner. sub-clause (3) of section 12 leaves open an option to the workman (including the dependants) from ..... the principal employer and paid the compensation does not ipso facto entitle it to initiate the process of indemnification, without adjudication by the commissioner for indemnity.46. in srinivasarao v. commissioner for workmen's compensation, 1972 (1) an.wr 235, it was held that withholding of the amount in ..... of a contractor from whom the workman could have recovered compensation], and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the commissioner.(3).............(4)............'20. chapter-iii deals with 'commissioners'. section 19 deals with 'reference ..... part of the employer or principal shall be, in the absence of a contract to the contrary. patently it requires basic facts to determine the nature, the extent and the legality of the liability of the indemnity to be fastened on the contractor to indemnify the employer from paying the ..... appellants in the two cases from opposite party no. 2 by way of indemnity.we do not think that there is any merit in the contention of the learned government pleader that in the light of the contract entered into between the two opposite parties regarding the liability to pay compensation .....Tag this Judgment!