Supreme Court - Daily Orders
Iffco Tokio General Insurance Co. Ltd vs Gujarat Narmada Valley Fertilizers Co. ... on 10 July, 2017
Bench: A.K. Sikri, Ashok Bhushan
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).8942/2017
(Arising out of Special Leave (C) No(s). 8874/2016)
IFFCO TOKIO GENERAL INSURANCE CO. LTD APPELLANT(s)
VERSUS
GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD RESPONDENT(s)
O R D E R
Leave granted.
We have heard the learned counsel for the parties. The respondent herein had taken insurance i.e. damage policy as well as loss of profit policy. There was some fire in the factory premises which resulted in certain losses. Insofar as claim under the damage policy is concerned, it was settled by the appellant insurance company and the amount was paid. However, thereafter, the appellant filed a suit for recovery of money on the ground of loss of profit policy which was taken by the appellant. It may be noted that the explosion in the respondent's premises occurred on 14.10.2003 and the suit was filed on 14.06.2010. The appellant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) on the ground that the suit was time Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2017.07.15 barred and the claim needed to be rejected under the aforesaid 13:51:05 IST Reason:
provisions. The Trial Court dismissed the said application with the 2 observation that the question of limitation could not be decided at the initial stage of the suit. This order is upheld by the High Court vide its impugned judgment dated 07.12.2015. It is argued by Mr. Gaurab Banerji, learned senior counsel appearing on behalf of the appellant that a clear error is committed by the courts below in dismissing the application of the appellant under Order VII Rule 11 of the CPC inasmuch as for deciding the said application no disputed question of facts are involved and, therefore, no evidence is required at all. He submitted that the suit was time barred, on the face of it, even if one were to look into the plaint itself.
For this purpose, he referred to the chronology of dates indicating chronology of events, which is reproduced hereunder:
Date Undisputed facts
25.03.2003 Petitioner issued two insurance polices
- Standard Fire and Special Perils Police (MD
Policy)
- Loss of Profit Policy (LOP Policy)
14.10.2003 Explosion at Plaintiff's premises
16.08.2005 Petitioner rejected the claim w.r.t. LAC clause
under the MD Policy
21.09.2005 Revised claim of the Plaintiff of additional Rs.3
crores to include consequential loss of profit on reinstatement of filling station also rejected by the petitioner.
08.02.2006 Plaintiff invoked the arbitration clause in terms of clause 13 of the MD Policy.
28.08.2006 Fresh Arbitration Agreement by which the parties agreed to adjudication on liability and quantum in respect of the MD Policy.
13.10.2006 Statement of Claim filed in respect of Claims under both policies.
30.11.2006 Petitioner filed an application under Section 16 questioning jurisdiction to adjudicate on the claim under LOP policy.
313.06.2007 Tribunal allowed the said Section 16 application. 14.06.2010 Civil Suit filed by the Plaintiff for recovery of monies claimed under LOP Policy.
Mr. Banerji, referred to Article 44B of the Schedule to the Limitation Act, 1963 as per which the limitation for filing the suit on admission of insurance when the sum insured is payable after proof of the loss has been given to or received by the insurers, is three years. This three years period is to commence from the date of the occurrence causing the loss, or where the claim on the policy is denied, either partly or wholly, the date of such denial. As can be seen from the relevant dates mentioned above, the revised claim of the respondent i.e. claim of additional Rs.3 crores towards loss of profit was rejected on 21.09.2005. In these circumstances, three years period had expired on 20.09.2008. No doubt, in the meantime, i.e. on 08.02.2006, the respondent invoked the arbitration clause and the arbitration proceedings commenced. However, ultimately the Tribunal in the said case passed order on 13.06.2007 allowing Section 16 application preferred by the appellant questioning the jurisdiction of the Tribunal to arbitrate such a matter. Even if the period from 08.02.2006 to 13.06.2007, when the respondent had invoked the remedy before a wrong Forum, is excluded on the principles laid down in Section 14 of the Limitation Act, still the last date for filing the suit would have been much before 14.06.2010 when the suit was filed. Thus, the suit filed by the respondent is clearly time barred.
4We, accordingly, allow this appeal and set aside the orders of the courts below resulting thereto allowing the application filed by the appellant under Order VII Rule 11 of the CPC and rejecting the plaint.
......................J. [A.K. SIKRI] ......................J. [ASHOK BHUSHAN] NEW DELHI;
JULY 10, 2017
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ITEM NO.32 COURT NO.7 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 8874/2016 (Arising out of impugned final judgment and order dated 07-12-2015 in SCA No. 3562/2014 passed by the High Court Of Gujarat At Ahmedabad) IFFCO TOKIO GENERAL INSURANCE CO. LTD Petitioner(s) VERSUS GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD Respondent(s) Date : 10-07-2017 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHAN For Petitioner(s) Mr. Gaurab Banerji, Sr. Adv.
Mr. V.K. Misra, Adv.
Mr. Saurajay Nanda, Adv.
Mr. Arjun Master, Adv.
Mr. Sahil Tagotra, Adv.
Mr. Subhro Mukherjee, Adv.
Mr. Devendra Singh, AOR For Respondent(s) Mr. Saurabh Kirpal, Adv.
Mr. Ashish Batra, Adv.
Ms. Kanika Saran, Adv.
Ms. Diksha Rai, AOR UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order. Pending application(s), if any, stands disposed of accordingly.
(ASHWANI KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)