Court : Karnataka
Reported in : AIR2003Kant98; 2003(2)ARBLR564(Kar); ILR2002KAR5386
..... that the bank was negligent in not proceeding against the security is untenable contention. besides, it is of importance to note that in ex. p.3 the appellant has waived rights of surety envisaged under the contract act. the ruling of this court in lilavati v. bank of baroda and ors., : air1987kant2 , wherein at para 7 it is held thus :'the ..... contract act. she herself was party to that surety bond;held, the surety, having waived her right under section 141, she was bound by the clause under which she waived her right and could not contend that the clause was invalid and unenforceable. air 1984 noc 113 (guj.) disting ..... . therefore, merely because the words 'notwithstanding anything contained to the contrary', etc., do not occur in section 141, it does not follow that the parties cannot contract out of the rights and liabilities laid down insection 141 of the contract act. in the instant case, the surety had agreed that she would not claim the benefit given to her under section 141 of the ..... personal guarantee is not aware of any other security offered by the principal debtor yet once the right of the surety against the principal debtor is impaired by any action or inaction, which implies negligence appearing from lack of supervision undertaken in the contract, the surety would be discharged under the combined operation of sections 139 and 141 of the act. in any event .....Tag this Judgment!
Court : Chennai
Reported in : 58Ind.Cas.648; (1920)43MLJ402
..... c.b., points out that 'the rights of a surety depend rather on principles of equity than upon the actual contract; that there may be quasi-contract; but that the right of the surety arises out of the equitable relation of the parties.' lord brougham in mactaggart v. watson ..... on its exercise, such an omission really affects a right belonging to the surety and so alters his position as to avoid the relation of suretyship.' that has no ..... v. shuttleworth (1860) 5 h.& n 235 : 157 e.r. 1171 lays down the proposition embodied in section 139 of the contract act already quoted. there the surety was held to be discharged as the plaintiff being under a duty towards him to insure the fittings had omitted to do so. pollock, ..... which amounts to a fraudulent breach of contract against which the surety has guaranteed the party with whom he has contracted.' at page 508 bowen, l.j., observes 'i can understand that, where the omission of the employer to do something deprives the surety of a right under the contract, or of the power to insist ..... (1885) 3 c&f; 525 : 6 e.r. 1534 lard down the law in these words 'while at law the surety in a .....Tag this Judgment!
Court : Chennai
Reported in : AIR1926Mad544
..... follow the reasoning of that ruling; i think it is unsound. section 140 refers to a tripartite contract of guarantee just as section 145 does, the former stating what rights pass to the surety from the creditor and the latter dealing with the rights of the surety against the principal debtor. section 141 which immediately follows section 140 throws light on how section 140 is ..... not apply to this case as it lays down the rights of a surety in a contract of guarantee as defined in the act. such a contract is a tripartite contract to which the surety, the principal debtor and the creditor are all parties. such a contract results only when at the instance of the debtor the surety guarantees payment to the creditor. section 126 of the act ..... who agrees: to perform the obligation of another without reference to him can clothe himself with the right of action against him on the contract or how a person can become a surety without the knowledge and consent of the principal debtor and clothe himself with the rights mentioned in sections 140 and 141 or section 145.17. the english law is clear that ..... discharged to the extent of the value of the security. section 145 states that in every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully.16. i think that .....Tag this Judgment!
Court : Gujarat
Reported in : (2006)1GLR497
..... surety is entitled, on payment of debt or performance of all that he is liable for, to the benefit ..... a witness.16. 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 ..... , but it is clear from various authorities 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 ..... manner. in the circumstances, the application is required to be rejected as being premature and presumptuous.19. a brief resume of the law regarding surety may 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 .....Tag this Judgment!
Court : Chennai
Reported in : 95Ind.Cas.154
..... the reasoning of that ruling; i think: it is unsound. section 140 refers to a irioarvite contract of guarantee just as s 145 does, the former stating what rights pass to the surety from the creditor and the latter dealing with the rights of the surety against the principal debtor section 141, which immediately follows section 140 throws light on how section 140 ..... not apply to this case as it lays down the rights of a surety in a contract of guarantee as defined in the act. such a contract in a tripartite contract to which the surety, the principal debtor and the creditor are all parties. such a contract results only when at the instance of the debtor the surety guarantees payment to the creditor. section 126 of the ..... discharged to the extent of the value of the security. section 145 states that in every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully.16. i think ..... that the contract act draws a distinction between contracts of indemnity and contracts of suretyship and that contracts of suretyship, unlike contracts of indemnity, require the concurrence of .....Tag this Judgment!
Court : Karnataka
..... against the principal debtor, other than the guarantee executed by the petitioner. it is only on such omission, that under the mandate of section 141 of the indian contract act, 1872, the surety's rights can stand protected. no such foundational facts have been brought to our notice. in the aforesaid view of the matter, we are satisfied, that the contention advanced at ..... personal guarantee is not aware of any other security offered by the principal debtor yet once the right of the surety against the principal debtor is impaired by any action or inaction, which implies negligence appearing from lack of supervision undertaken in the contract, the surety would be discharged under the combined operation of sections 139 and 141 of the act. in any event ..... of the principal is not a sufficient ground for restraining execution of the decree against the surety. it is the duty of the surety to pay the decretal amount. on such payment he will be subrogated to the rights of the creditor under section 140 of the indian contract act, and he may then recover the amount from the principal. the very object of ..... for the petitioner has placed reliance on sections 139 and 141 of the indian contract act, 1872. the aforesaid provisions are being extracted hereunder. "139. discharge of surety by creditors act or omission impairing surety's eventual remedy._ if the creditor does any act which is inconsistent with the rights of the surety, or omits to do any act which his duty to the .....Tag this Judgment!
Court : Andhra Pradesh
Reported in : AIR1981AP215
..... to the 9th defendant, having had such knowledge. if that be so, it squarely falls within the protective umbrella under sections 133 and 139 of the indian contract act, as the creditor acted inconsistently with the rights of the surety by failing to inform him about the availability of the r. r., which, in our undoubted view, resulted in the discharge of the ..... is as follows:'any variance made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance.' section 139 of the indian contract act is as under: 'if the creditor does any act which is inconsistent with the rights of the surety, or omits to do any act which ..... is thereby impaired, the surety is discharged.' since in this case ..... his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor .....Tag this Judgment!
Court : Mumbai
Reported in : (2007)109BOMLR483
..... is not dealt with in the indian contract act. it obviously cannot be dealt with by the indian contract act as, as observed earlier, the right of subrogation in respect of a contract of indemnity is. itself not dealt with in the indian contract act.120. section 140 of the contract act reads as under:section 140 rights of surety on payment or performance.-where a ..... an indemnifier. section 141 reads as under:141. surety's right to benefit of creditor's securities. - a surety is entitled to the benefit of every security which the creditor has against the principal debtor at ..... the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and if ..... as the marginal note indicates, only deals with the rights of the indemnity-holder as i shall presently point out. the indemnity-holder has other rights besides those mentioned in section 125.115. the rights of the indemnifier have not been exhaustively dealt with in the indian contract act. the rights conferred on a surety under section 141 have not been conferred expressly on .....Tag this Judgment!
Court : Andhra Pradesh
Reported in : II(2003)BC527
..... 1st respondent to enforce the decree against the 2nd respondent in the 1st instance, in view of section 132 of contract act. here i feel it relevant to mention that in relation to the right of surety against the creditor there is a difference in english law and indian law. in england, as per rouse v. ..... undertaking to indemnify the creditor for the loss, etc., but not after the creditor obtained a decree against both the principal debtor and surety. therefore, 1st respondent has a right to enforce the decree against revision petitioners also as if they also are principal debtors.4. this apart i do not see any ..... to proceed against the revision petitioners also, as if they are principal debtors, though in fact they are the sureties of the 2nd respondent. even as per the rule in rouse's case (supra ..... section 132 of contract act which is in force from 1.9.1872, i.e., long prior to the said decision, knowledge per se of the creditor that one out of the joint promisers is a principal debtor and the other is surety is not enough, to enforce such a right unless there is ..... surety as if he is a principal debtor, without trying to realise the debt from the principal debtor. in this case it is not the case of the revision petitioners that there is an agreement between them and 1st respondent. therefore, in view of section 132 of contract act first respondent has a right .....Tag this Judgment!
Court : Karnataka
Reported in : ILR1993KAR201; 1993(1)KarLJ308
..... 141 of the act cannot be held to defeat the provisions of chapter viii of the act. the rights conferred on the surety under chapter viii are not inalienable rights nor those rights have anything to do with the public policy as such. those rights relate to the contracts entered into by individuals. it is not the case of defendant-3 that the aforesaid recital in ..... instant case, as already pointed out, the consideration and object of the agreement of guarantee or contract of surety are not unlawful. the rights available to the surety under chapter viii of the act, as already pointed out, can be waived by the surety. therefore, such waiving of right by the surety is neither intended to defeat nor does it defeat any provisions of law. therefore, it ..... may be arrived at by the parties'. therefore, different views are expressed by the high courts as to whether it is open to contract outside the provisions of chapter viii of the act pertaining to rights of the sureties.10. high court of punjab in union of india, ministry of food and agriculture (department of food) new delhi v. pearl hosiery mills and ..... .g. brothers lorry service v. prasad textiles : 2scr1027 .18. it is next contended that the very clause contained in the surety bond under which the surety has given up the right conferred upon him as surety by sections 133, 134, 135, 139 and 141 of the contract act, is unenforceable as it is opposed to public policy and also the provisions contained in the .....Tag this Judgment!