JUDGMENT - PATANKAR P.S., J.:---The only point involved in this appeal is whether there was a concluded contract of insurance between the parties on 24th December, 1973 so as to foist liability upon the insurance company, the appellant herein.

2. A few facts are as follows :-

The respondent has constructed 28 sheds at Panvel in 1973. Out of those 28 sheds, shed standing on plot No. 54 was allotted to one Mr. Jani who was having partnership business in the name of Synthetic Esters and Chemicals. One Mr. V.B. Shaha was working as an agent of the appellant insurance company. On 24th December, 1973, he approached the respondent's Manager for the purpose of insuring those 28 sheds with the appellant. Mr. Shaha ascertained the premium and a cheque of Rs. 3,800/- was paid by the Manager of the respondent. In token thereof, Mr. Shaha also signed on counterfoil. On the next day in the morning, the shed which was standing on plot No. 54 caught fire and was damaged extensively. The Manager of the respondent informed this to Mr. Shaha immediately and in turn, this was informed to the appellant insurance company. On 29th January, 1974, the Manager of the respondent or the first time, wrote a letter to Mr. Shaha with a copy to the appellant that stamped receipt in respect of the said cheque of Rs. 3,800/- along with cover-note be forwarded. He also asked for the policy of insurance. There was no reply either by Mr. Shaha or by the appellant. Therefore, he addressed a letter on 5th March, 1974 to the appellant pointing out that though the cheque of Rs. 3,800/- was given on 24th December, 1973 to Mr. Shaha, it has not been encashed. The stamped received by the respondent. It was pointed out that the cheque would otherwise become stale and therefore may be encashed. On 30th April, 1974, the appellant sent a reply to the respondent pointing out that the appellant was unable to accept the risk and, therefore, the cheque of Rs. 3,800/- was returned. The Manager of the respondent again addressed a letter dated 3rd June, 1974 to the appellant pointing out that the letter dated 30th April, 1974 was received on 28th May, 1974 and it was accepted under protest and the respondent was proceeding against the appellant. A notice dated 8th July, 1974 was addressed to the appellant on behalf of the respondent through an Advocate and the appellant was called upon to pay Rs. 24,900/- towards the damage which were suffered due to fire to the said shed. The appellant in turn replied to the said notice and pointed out that the appellant had not accepted the risk. The cheque was not encashed and it has been returned. It was stated that the appellant's agent Shri Shaha has pointed out that the cover-note shall be issued only after inspection of the sheds on the next day and till that time, the risk was not undertaken. Therefore, the appellant declined to pay the loss.

3. As the appellant declined to pay, the respondent filed Civil Suit for recovery of the said damage from the appellant. In the plaint, the respondent pointed out about the construction of 28 sheds and the payment of premium to Mr. Shaha on 24th December, 1973. On 25th December, 1973 fire took place in the shed on plot No. 54, Mr. Shaha, the agent of the appellant, promised to send a stamped receipt and a cover-note immediately. However that was not sent, but the appellant had accepted the proposal and assumed the risk and there was a concluded contract between the parties. It was, therefore, prayed that the appellant was liable to pay the said loss which was ascertained after the respondent appointed a surveyor by name Shri Desai, Architect, in that respect and who submitted a report dated 28th December, 1973 calculating the said loss. The respondent also stated about the correspondence which took place between the parties and the notice which was issued and a reply received. The appellant filed written statement and it was contended that there was no concluded contract. The insurance company had not

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