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Indemnity under Indian Contract Act

In Indian contract law, the concept of indemnity finds its roots in the Indian Contract Act of 1872. The Act, which governs contracts in India, defines and regulates the rights and obligations arising from contractual agreements.

Indeminity indian contract act

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Under this Act, indemnity is understood as a promise made by one party to compensate or protect another party from losses or damages incurred due to the actions or defaults of either party or a third party. This principle is elucidated through various legal precedents and case laws, as well as specific provisions within the Indian Contract Act.


One notable case that illustrates the application of indemnity under the Indian Contract Act is Adamson v Jarvis. In this case, which serves as an English law precedent but is also informative in the Indian context, the plaintiff, an auctioneer, sold cattle on the instruction of the defendant. However, it was later discovered that the cattle did not belong to the defendant but to another person, resulting in the auctioneer being held liable to the true owner. 

The auctioneer then sued the defendant for indemnity, seeking to be compensated for the losses incurred by acting on the defendant's instructions. The court ruled in favor of the auctioneer, affirming the principle that the party acting upon the request of another is entitled to assume indemnification for any losses suffered as a result.

Section 124 of the Indian Contract Act explicitly defines indemnity as a contract by which one party promises to save the other from any loss caused to him by the conduct of the promisor himself or by the conduct of any other person. This provision emphasizes the contractual nature of indemnity agreements and establishes the legal framework for enforcing such contracts in India.

Another significant case that exemplifies the application of indemnity under the Indian Contract Act is Dugdale v Lovering. In this case, the plaintiffs possessed trucks that were claimed by both the defendants and another party. Despite requesting an indemnity bond from the defendants, the plaintiffs delivered the trucks to them. Subsequently, the true owner of the trucks successfully sued the plaintiffs for conversion. 

The plaintiffs then sought indemnity from the defendants, arguing that their delivery of the trucks was contingent upon receiving indemnification. The court held in favor of the plaintiffs, recognizing an implied promise of indemnity based on the circumstances surrounding the delivery of the trucks.

Similarly, Sheffield Corpn v Barclay further elucidates the principles of indemnity under the Indian Contract Act. In this case, a corporation registered a transfer of stock at the request of a banker. However, it was later discovered that the transfers were forged. The corporation then sought indemnity from the banker for any losses incurred as a result of the forged transfers. The court upheld the corporation's right to indemnification, emphasizing the implied promise of indemnity arising from the corporation's actions at the banker's request.

Overall, the concept of indemnity under the Indian Contract Act serves to protect parties from losses or damages resulting from contractual agreements or actions undertaken at the request of another party. Through various legal precedents and provisions such as Section 124, the Act provides a comprehensive framework for enforcing indemnity agreements and ensuring fair and equitable outcomes in contractual disputes involving indemnification.


Section 124 of the Indian Contract Act provides a narrower definition of "indemnity" compared to its broader understanding in common law. According to this section, a contract of indemnity is one in which one party promises to save the other from loss caused by the conduct of the promisor or any other person. 

The scope of indemnity under this definition is limited to situations where there is a promise to indemnify against loss caused either by the promisor or by a third party. This definition excludes losses arising from accidents like fire or perils of the sea, as they are not caused by human agency. Moreover, contracts of insurance against loss are governed by the chapter on Contingent Contracts.

The distinction between indemnity as defined in Section 124 and other situations, such as those illustrated in the case of Adamson v Jarvis, is important. In cases where goods are sold under the instruction of a wrongful owner, or where a loss arises from an act done at the request of the promisor, Section 223 of the Indian Contract Act comes into play, providing for indemnity between principal and agent. These situations fall outside the scope of Section 124's definition of indemnity but are addressed elsewhere in the Act.

The promise of indemnity, as outlined in Section 124, can be either express or implied. An example of implied indemnity is demonstrated in the decision of the Privy Council in the case of Secy of State for India v Bank of India Ltd. In this case, a bank received a note with a forged endorsement, accepted it in good faith, and sent it to the Public Debt Office for renewal in their name. The true owner of the note recovered compensation from the State, and the State was allowed to recover from the bank based on an implied promise of indemnity.

Furthermore, the validity and interpretation of indemnity bonds have also been subjects of legal scrutiny. An indemnity bond that permits an employee to leave employment earlier than the agreed period, with the forfeiture of bond money, is deemed valid under certain conditions. The bond period and bond money must be reasonable, and only that portion of the bond money necessary to indemnify the employer for their loss can be retained.

In a case before the Supreme Court, the question arose regarding whether a document constituted a contract of indemnity or a bank guarantee. The document purported to indemnify the party against losses, claims, damages, etc., without employing the usual language found in a bank guarantee. It was held to be a contract of indemnity, and the bank was not obligated to honor the claim made by the assured upon termination of the contract without proof of loss.

Section 124 of the Indian Contract Act provides a specific definition of indemnity, which differs from its broader understanding in common law. This section outlines the parameters within which indemnity contracts operate in India, including the scope, validity, and interpretation of such agreements. Various legal precedents and cases further elucidate the application and nuances of indemnity under Indian contract law.


Section 125 of the Indian Contract Act delineates the rights of the indemnity-holder when sued, providing a comprehensive framework for the extent of liability and the entitlements of the promisee in a contract of indemnity. According to this section:

The promisee is entitled to recover all damages they may be compelled to pay in any suit related to the matter covered by the promise to indemnify. This ensures that the promisee is fully protected from any financial liabilities arising from the subject of indemnity.

  • Additionally, the promisee can recover all costs they may be compelled to pay in such suits, provided they did not contravene the orders of the promisor and acted prudently. This includes costs incurred in bringing or defending the suit, ensuring that the promisee is not unfairly burdened with legal expenses.

Furthermore, the promisee is entitled to recover all sums paid under the terms of any compromise of such suits, as long as the compromise was not contrary to the orders of the promisor and was a prudent decision. This allows the promisee to seek reimbursement for any amounts paid to settle legal disputes, ensuring fair and equitable resolution.

  • It is emphasized that the indemnity-holder, acting within the scope of their authority, is entitled to recover damages, costs, and sums paid under compromise agreements, thereby providing comprehensive protection against financial losses incurred in legal proceedings.

Moreover, in the context of indemnity bonds resembling bank guarantees, it is established that the bond-holder can retain only that part of the bond amount representing the damage or loss suffered as a result of the breaching party's breach. This prevents any unjust enrichment or penalty for either party, ensuring fairness and equity in the enforcement of indemnity agreements.

In a specific case involving indemnity insurance for a stolen motor vehicle, it was held that the proper amount of indemnity payable to the insured was the sum fixed by the surveyor, along with 18% interest for the delay period. Any settlement of the claim at a lesser amount by the insurance authorities was deemed arbitrary and unfair under Article 14 of the Constitution, which guarantees equality before the law. This case underscores the importance of adhering to principles of fairness and equity in determining indemnity payouts under insurance policies.

Overall, Section 125 of the Indian Contract Act and relevant legal precedents provide a robust framework for defining the extent of liability and the entitlements of the indemnity-holder, ensuring adequate protection against financial losses in contractual indemnity agreements.


The commencement of liability in indemnity agreements is a crucial aspect that determines when the indemnifier becomes obligated to pay and when the indemnity-holder is entitled to recover their indemnity. Traditionally, under English common law, indemnity was payable only after the indemnity-holder had suffered actual loss by paying off the claim. This principle was encapsulated in the maxim: "you must be damnified before you can claim to be indemnified."

However, recognizing the potential burden this approach placed on the indemnity-holder, courts of equity intervened to mitigate the rigors of the common law. As elucidated by Chagla J (later Chief Justice) of the Bombay High Court in the case of Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri, courts acknowledged that waiting until the indemnity-holder had actually paid the loss before enforcing indemnity could be intolerable. Therefore, equity courts allowed the indemnity-holder to enforce indemnity once their liability became absolute, even if they hadn't yet paid the loss. This ensured that the indemnified party could seek relief from the indemnifier before incurring financial hardship.

  • The principle that indemnity does not necessarily require repayment after payment was further emphasized in the case of Richardson, where it was held that indemnity entails preventing the indemnified party from ever being called upon to pay. 

This approach was also followed by the High Court of Calcutta in Osman Jamal & Sons Ltd v Gopal Purshottam, where it was held that the Official Liquidator could recover the amount owed by the company to a supplier, even though the company had not yet paid the vendor. The court directed that the amount be set aside to fulfill the company's liability to the vendor.

Various High Courts, including those of Allahabad, Madras, and Patna, have expressed concurrence with the principle that once the liability of the indemnity-holder becomes clear and certain, they should have the right to require the indemnifier to put them in a position to meet the claim. However, contrary views have also been expressed in this regard.

  • In practical terms, the commencement of liability may vary depending on the specific circumstances of each case. For instance, in a case where an authorized agent of an insurance company collected the premium amount from the assured against proper receipt, the liability of the insurer began from that moment, even though the agent deposited the collection with the company after the occurrence.

Overall, the principle of commencement of liability in indemnity agreements reflects the evolution of legal principles to ensure fairness and equity between the parties involved, balancing the rights and obligations of the indemnifier and the indemnity-holder.

Essentially a Contract

In conclusion, the concept of indemnity as provided in the Indian Contracts Act is a fundamental aspect of contractual agreements, designed to protect parties from losses or damages arising from their contractual obligations. Throughout this article, we have explored the various facets of indemnity under the Indian legal framework, examining its definition, scope, extent of liability, commencement of liability, and practical applications in different contexts.

Section 124 of the Indian Contract Act defines indemnity as a contract by which one party promises to save the other from loss caused by the conduct of the promisor or any other person. This definition, while narrower than its common law counterpart, forms the basis for understanding indemnity agreements in India.

The extent of liability under indemnity agreements is further elucidated in Section 125 of the Act, which outlines the rights of the indemnity-holder when sued. This section ensures that the promisee in a contract of indemnity is entitled to recover all damages, costs, and sums paid under compromise agreements related to the matter covered by the indemnity.

Moreover, the commencement of liability in indemnity agreements has evolved over time, reflecting a balance between the common law principle of waiting for actual loss to be incurred before seeking indemnification and equitable principles that allow for relief once the indemnity-holder's liability becomes absolute. Courts of equity have intervened to mitigate the harshness of the common law rule, allowing indemnity to be enforced once the indemnified party's liability is clear and certain.

Practical applications of indemnity in various contexts, such as insurance agreements and commercial transactions, demonstrate its importance in protecting parties from financial risks and ensuring the fulfillment of contractual obligations. Whether in cases involving stolen property covered by insurance or breach of contract liabilities, indemnity serves as a safeguard against unforeseen losses and liabilities.

Furthermore, the Indian legal system has shown a commitment to upholding principles of fairness and equity in interpreting and enforcing indemnity agreements. Courts have consistently sought to strike a balance between the rights and obligations of the indemnifier and the indemnity-holder, ensuring that neither party is unfairly burdened or disadvantaged.

Indemnity under the Indian Contracts Act embodies principles of contractual fairness, protection against losses, and equitable resolution of disputes. As India continues to evolve economically and legally, the principles and applications of indemnity will remain integral to the functioning of contractual relationships, providing assurance and security to parties engaged in various forms of business and commercial transactions.

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