Professional Documents
Culture Documents
1. INDEMNITY
124. "Contract of indemnity" defined
A contract by which one party promises to save the other from loss caused to him by the conduct
of the promisor himself, or by the conduct of any other person, is called a "contract of indemnity".
Loss caused by either:
The conduct of the promisor himself, or,
The conduct of any other person.
I.e the definition covers
Only loss caused only by human agency.
And not loss by:
events /accidents which do not depend upon conduct of indemnifier/any other
person
Liability incurred by something done at the request of the indemnifier.
Insurance contract of indemnity or not?
➢ INDIA:
● Loss NOT arising due to human agency not covered by S.124
● .’. Contract of insurance → not indemnity
● Eg: Promise by indemnifier to compensate in case of loss by fire → not covered.
But, they are valid contracts under S.31 (contingent contracts)
● Oriental Insurance Co. Ltd., Ahmedabad v. Gujarat State Warehousing
Corpn., Ahmedabad
○ Plaintiff’s employees embezzled fertilizer stored in plaintiff’s godown.
Defendant had ensurd indemnity in case of loss sustained by such acts.
○ Breach of condition by plaintiff where notice was to be given to defendant
company regarding discovery of such act → held not to be fundamental
breach
○ HELD: Defendant cannot negate plaintiff’s claim on this ground and
plaintiff’s claim → legitimate
➢ ENGLAND:
● Includes loss caused by agents other than human
● Contract for insurance is a contract of indemnity
125. Right of indemnityholder when sued: To recover in case of suit
➢ All damages
● Compelled to pay
● Any matter w.r.t promise of indemnity
➢ All costs
● Compelled to pay
● In bringing or defending it
➢ All sums
● He may have paid
● Compromise
Commencement of Liability
➢ ENGLAND:
● Earlier: only after loss had been suffered
● Later: Courts of Equity → “no more necessary for indemnityholder to be demnified
before he could be indemnified”
➢ INDIA:
● Gajanan Moreshwar v. Moreshwar Madan
○ Chagla, J. : S.124 and S.125 not exhaustive of the law of indemnity and
courts would follow the principle of equity as in England.
○ .’. If Indemnityholder has incurred liability
○ And that liability is absolute
○ He is entitled to call upon the indemnifier to save him from liability and pay it
off.
● Law Commission of India supported this view
2. GUARANTEE
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 is called the "surety"
the person in respect of whose default the guarantee is given is called the "principal
debtor"
the person to whom the guarantee is given is called the "creditor" .
A guarantee may be either oral or written.
Object of a contract of guarantee → provide additional security to the creditor in the form of a
promise by the surety to fulfill a certain obligation, in case the principal debtor fails to do so.
→ Three contracts
Essential Features of Guarantee:
1. Principal debt
● Recoverable debt necessary
● Guarantee of void debt → when enforceable
● Guarantee of minor’s debt
When surety knows that Principal debtor is a minor
2. Consideration
● S.127. Consideration for guarantee: Anything done, or any promise made, for
the benefit of the principal debtor, may be a sufficient consideration to the
surety for giving the guarantee.
● Guarantee for past as well as future debts → valid
3. Consent to be obtained without misrepresentation or concealment of material facts
● 142. Guarantee obtained by misrepresentation, invalid.
● 143. Guarantee obtained by concealment, invalid .
4. Contract Oral/Written
● INDIA: O/W
● ENGLAND: Only Written and Signed
128. Surety’s Liability : The liability of the surety is coextensive with that of the principal debtor,
unless it is otherwise provided by the contract.
1. Coextensive
● I.e identical to that of the Principal Debtor
● If PD’s liability is reduced, so is surety’s
○ Narayan Singh v. Chattar Singh
✓ Liability of agriculturist reduced due to passing of Rajasthan Relief
of Agricultural Indebtedness Act, 1957
✓ Held that, surety’s liability was also reduced
● If PD not liable to pay debt due to its illegality → surety also discharged
● Minor guarantee is void as loan to minor is void.
2. Exhaustion of Remedies before suing Surety
● Coextensive .’. Needn’t exhaust
● Unless contract to contrary
● Bank of Bihar v. Damodar Prasad
○ Default on loan PD and Surety sued Trial court passed in favor of bank
but with condition that all remedies against PD have to be exhausted
before it can enforce its dues against surety.
○ SC held, coextensive as no contract to contrary
3. Limit on surety’s liability by contract
● If contract so provides, surety’s liability may not be to the full extent of the PD’s but
smaller than that.
● Yarlagadda v. Devata China Yerakayya
● Aditya Narayan Chauresia v. Bank of India
4. Condition that there shall be a cosurety
● Contract of Guarantee not valid unless another person joins such contract
● Condition precedent for liability of surety existence of cosurety
● Liability of cosurety
○ Coextensive
○ Joint and several
○ State Bank of India v. G.J. Herman
✓ Where there is a composite decree against the PD and the sureties,
it's the creditor’s discretion as to against whom he proceeds.
✓ Neither the court nor a cosurety can insist that the creditor should
first proceed against another surety before proceeding against him
as such a direction would go against the coextensiveness of the
liabilities of the PD and the sureties.
129. Continuing guarantee : A guarantee which extends to a series of transaction, is called, a
"continuing guarantee".
➢ Specific Guarantee: guarantee in respect of a particular transaction
➢ 130. Revocation of continuing guarantee: A continuing guarantee may at any time be
revoked by the surety, as to future transactions, by notice to the creditor.
➢ 131. Revocation of continuing guarantee by surety's death → unless, contract to
contrary
Discharge of Surety from Liability
1. By revocation S.130
● When it is a continuing guarantee, and
● As regards future transactions only
● When a transaction has already been made, surety’s liability with regard to that
transaction cannot be revoked by subsequent notice
● Offord v. Davies
○ A promised B that if B discounted bills for C, A would guarantee payment
of bills to the extent of 600 pounds during a period of 12 calendar months
agreed and discounted some bills and payment for same was made.
○ Thereafter, A gave notice that A would no longer guarantee payment of
bills
○ Held: A not liable as surety for bills discounted after notice.
● .’. Revocation possible when there are separate distinct transactions contemplated
by contract
● If consideration is single and indivisible (eg: where a continuing relationship is
established on the faith of a certain guarantee), no revocation possible
○ Lloyd v. Harper :
✓ Servant employed on basis of guarantee of his good conduct
✓ No revocation possible so long as the servant observes good
conduct.
2. By death of surety S.131
● Operates as revocation of continuing guarantee
● Unless contract to contrary
3. By variance in terms of contract S.133
● Any variation made w/o surety’s consent b/w PD and creditor
● Without surety’s consent
● Discharges surety as to subsequent transactions
● Bonar v. McDonald
○ Defendant → surety for conduct of Bank Manager
○ Subsequently, w/o surety’s knowledge, manager’s salary enhanced and he
agreed to be liable for 1/4th of the losses on discounts allowed by him
○ Held: This arrangement resulted in the discharge of the surety
● Indian Partnership Act, S.38: continuing guarantee given to partnership firm/3rd
party in respect of its transactions stands revoked as to future transactions from the
date there is a change in the constitution of the firm. ( unless CTC)1
● When alteration is not to the prejudice of the surety, such alteration is unsubstantial
and does not discharge the surety from liability
○ Amrit Lal v. State Bank of Travancore (credit limit reduced and restored)
○ Anirudhan v. Thomco’s Bank (PD altered amt. Of G. so as to reduce it)
1
Contract to Contrary
4. By release or discharge of PD S.134
● By any contract b/w creditor and PD by which PD is released, or
● By any act or omission of the creditor, the legal consequence of which is the
discharge of PD
5. When creditor compounds with, gives time to, or agrees not to sue the PD S.135
● When creditor makes composition w/ PD
● When creditor promises to give time to PD
○ If contract to give time to PD done w/ 3rd party, surety isn’t discharged
● When the creditor promises to not sue the PD
○ ‘.’ such promise inconsistent with the right of surety
○ S.137 mere forbearance to sue does not discharge surety
6. By creditor's act or omission impairing surety’s remedy S.139
● Eg: C lends money to B w/ A as surety along with a bill of sale of B’s furniture. C
sells B’s furniture for only a small price, owing to his misconduct and wilful
negligence. Surety is discharged from liability.
● Union Bank of India, Bombay v. S.B. Mehta
○ A (PD) executed a demand promissory note and an agreement of
hypothecation of goods + B stood as surety. Due to negligence and inaction
of bank, A disposed of said goods, thereby ending B’s remedy to proceed
against A.
○ Held: B discharged as surety towards plaintiff bank
7. By loss of security by the creditor S.141
● S.141: Surety’s right to benefit of creditor’s securities
○ Every security which creditor has against PD at the time when the contract
is entered into
○ If creditor loses or w/o consent of surety, parts with such security, surety
discharged
○ To the extent of the value of such security.
● However, it is not necessary that at the time of making the contract, the surety
should be aware of the securities which the creditor had.
● Discharge of PD w/o creditor’s fault does not discharge surety
○ IFCI Ltd. v. Cannanore Spinning and Weaving Mills Ltd.
✓ There was a contract for supply of textile goods to a certain textile
unit. Said textile unit was nationalised and assets vested in the Gov.
✓ Held: Impossibility of performance of contract by PD does not
discharge surety ad PD’s discharge was not due to voluntary act of
creditor.
Rights of Surety
1. Against PD:
i. Right of Subrogation S.140 (Rights of Surety on payment/performance)
○ When PD makes a default in the performance of his duties, and
○ surety does the needful,
○ he becomes invested with all the rights the creditor had against the PD,
○ i.e the surety steps into the shoes of the creditor
ii. Right of indemnity against PD S.145 (implied promise to indemnify surety)
○ Surety can recover from the PD sums rightfully paid by him to the creditor
○ Eg: C lends money to B with A as surety. A, not having reasonable grounds
to do so, on being sued for payment by C defends the suit and incurs
costs. B not liable to indemnify A for such costs.
2. Against Creditor:
i. Right to securities with the creditor S.141
○ ~as given above~
○ Securities received at the time of contract of guarantee entitled to benefit
○ Securities received after the contract of guarantee not entitled to such
securities
ii. Right of surety who guarantees a part of the debt
○ Difference of opinion between high courts
○ Bom. HC: creditor’s right to security paramount
○ Mad. HC: entitled to benefits in proportion
○ Bom HC’s view seems to be correct as the obj. Of S.141 appears to be that
the creditor does not lose or part with the securities and should preserve
them for the benefit of the surety, than to ask the creditor to part with them,
even partially, when his claim is yet to be met
iii. Right to share reduction
iv. Right to setoff
3. Against Cosureties:
i. Right of contribution against cosureties S.146 and S.147
○ S.146 Cosureties liable to contribute equally:
✓ Same debt/ duty
✓ Jointly/severally
✓ Under same/different contracts
✓ with/without knowledge of each other
✓ In the absence of any CTC are liable as between themselves
✓ To pay an equal share
✓ Of the whole debt or that part of it which remains unpaid by the PD
○ S.147 Cosureties bound in different sums:
✓ Liable to pay equally
✓ As far as the limits of their respective obligations permit
ii. Effect of releasing a surety from liability
○ S.138 release of one, does not discharge others
○ Neither does it set free the released surety from his responsibilities to the
other sureties.