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SCA/14593/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14593 of 2011
=========================================================
CHECKMATE
SERVICES PVT. LTD - Petitioner(s)
Versus
NEW
INDIA ASSURANCE CO. LTD - Respondent(s)
=========================================================
Appearance
:
MR
VISHWAS S DAVE for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 29/09/2011
ORAL
ORDER
The
petitioner has filed this petition under Articles 226 and 227 of the
Constitution of India and challenged the order passed by the learned
senior civil Judge, Vadodara below Exh-14 in Summary Suit No.1317 of
2008 on 21.7.2011 granting unconditional leave to defend the suit.
2. According
to the petitioner – original plaintiff, it had obtained
insurance coverage against various perils mainly to protect its
financial interest from the respondent – original defendant.
The petitioner had a policy known as “Money Insurance”
for protection of his cash. The petitioner filled up proposal form
and provided all the information required for insurance. The
respondent accepted the proposal and therefore, premium was paid to
the respondent and the insurance policy for a period of one year
effective from 16.9.2005 to 15.9.2006 was issued to the petitioner.
The petitioner has business in Ankleshwar town and has employees for
its services and had employed one Paresh Patel as Field Officer and
was entrusted with the job of withdrawing cash from the bank. On
12.9.2006, Mr. Patel went to Bank of Baroda, GIDC Branch, Ankleshwar
and withdrew Rs.1,40,000/- and proceeded towards SBI, GIDC branch,
Ankleshwar. As per the statement of employee Mr. Patel, a bag
containing cash amount of Rs.1,40,000/- was stolen from his custody
while he was proceeding to receive cash from SBI, GIDC branch,
Ankleshwar. Said Mr. Patel put all best possible attempts to find
out the bag, but it was not found and therefore, he lodged FIR in
respect of the incident with GIDC, Ankleshawar Police Station on
12.9.2006. Mr. Patel subsequently changed his complaint and gave
contradictory statement on 15.9.2006 that when he was travelling from
Bank of Baroda to State Bank of India, bag hanging on the hook of
motorcycle fell down and on search, it was not found. After
investigation, police filed final report under section 173 of the
Cr.P.C. On account of loss of Rs.1,40,000/-, the petitioner made a
claim under the said policy with the respondent, who appointed a
surveyor to assess the loss. The surveyor after checking books of
account of the petitioner, Statement of the Bank Account maintained
with the Bank, Account of Mr. Paresh Patel, reported that the claim
does not arise out of theft, robbery or any fortuitous cause and
hence, the respondent repudiated the claim. Therefore, the
petitioner issued notice calling upon the respondent to pay
Rs.1,40,000/- with interest, but the respondent neither replied nor
complied with the notice. Therefore, the petitioner filed summary
suit for recovery of Rs.1,40,000/- with interest.
3. Summons
of the suit was served and the respondent filed his appearance.
Thereafter, the petitioner took out summons for judgment and the
respondent filed leave to defend affidavit raising various defences.
It was contended in the leave to defend affidavit that there is no
theft or loot of the alleged amount and the police has after
investigation filed “C” summary and thereby, it is proved
that false complaint was filed. It was also contended that according
to the terms of policy, the insurance covered only loss of money on
account of theft or loot and the surveyor has also reported that
there was no theft or loot and therefore, the policy does not cover
the risk. It was also contended that the relief claimed in the suit
was not within the purview of order 37 of the CPC and whether the
petitioner is entitled for the amount claimed in the suit under the
policy of insurance could be decided only after leading
evidence and therefore, unconditional leave to defend is required to
be granted.
4. The
trial Court after hearing learned advocates for the parties, in para
8 of its order, observed that triable issues like whether the loss of
money was on account of theft, loot or in the circumstances beyond
the control and whether the risk was covered under the policy of
insurance issued to the petitioner are involved, which can be decided
only after leading evidence and therefore, granted unconditional
leave to defend. Being aggrieved by the said decision, the
petitioner has approached this Court by way of this extraordinary
remedy under Articles 226 and 227 of the Constitution of India.
5. I
have heard learned advocate Mr. VK Dave for the petitioner at length
and in great detail.
6. Learned
advocate Mr. Dave submitted that on account of loss of money, which
was covered under the policy of the insurance, the petitioner had
sustained loss and therefore, the respondent was bound to pay the
amount of loss under the policy of insurance issued to him.
However, without justifiable reason, the claim was rejected and
therefore, the suit was filed but the trial Court committed error in
granting unconditional leave. Therefore, impugned order is required
to be set aside.
7.
Under Order 37 of the CPC, a summary suit could be filed in the
following classes of suit.
“(a)
suits upon bills of exchange, hundies and promissory notes;
(b) suits
in which the plaintiff seeks only to recover a debt or liquidated
demand in money payable by the defendant, with or without interest,
arising,-
(i) on
a written contract; or
(ii) on
an enactment, where the sum sought to be recovered is a fixed sum of
money or in the nature of a debt other than a penalty; or
(iii)on
a guarantee, where the claim against the principal is in respect of a
debt or liquidated demand only.”
8. It
appears from the averments made in the plaint, copy of which is
annexed at Annexure K, page 38, that the suit is filed to claim the
amount under a policy of insurance issued by the respondent.
Therefore, looking to the nature of the claim made in the plaint, it
does not fall under any of the clauses of suit under Order 37 of the
CPC. It also appears that the petitioner claimed that the amount was
lost after its withdrawal from the bank and a complaint in that
regard was filed before the police, but during the course of
investigation, the employee, who lodged the complaint, changed his
version that the bag containing the amount was lost during the
transit. Therefore, the police filed “C” Summary report
that the complaint is neither true nor false with regard to alleged
offence. This prima facie indicates that it is a triable issue
whether the amount was stolen from the custody of the employee or
whether it was lost during its transit while it was in custody of the
employee of the petitioner. It is also a triable issue that whether
such loss would be covered under the policy of insurance issued by
the respondent. These issues can be decided only after leading
evidence.
9. It
also appears from the copy of the plaint that the petitioner claimed
18% interest from the date of loss i.e. 12.9.2006, the date on which
the amount was allegedly lost. The petitioner has not produced any
documentary evidence in support of his claim of interest. Therefore,
it is also a triable issue as to whether the petitioner would be
entitled to claim interest and if yes, at what rate and from which
date.
10. In
view of above, numerous triable issues are involved in the suit.
Therefore, the trial Court was justified in granting unconditional
leave to defend the suit. Hence, no interference is warranted in the
impugned order.
11. In
the result, the petition fails and stands dismissed.
(BANKIM.N.MEHTA,
J.)
shekhar*
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