JUDGMENT :

ARINDAM MUKHERJEE, J.

1. This is an application filed by the sole defendant for rejection of the plaint and/or for the plaint being taken off the file inter alia on the ground that the claim of the plaintiff as made out in the plaint filed in CS 45 of 2022 is ex facie not payable and as such the plaintiff has no cause of action to file the suit.

2. It is submitted by the defendant that the plaintiff purchased a Marine Cargo specific Voyage Policy Bearing No. 100301211910000080 for the year 2020 from the defendant an insurance company on 14th February, 2020 (hereinafter referred to as the said policy).

3. The Institute Cargo Clause (A) being annexure-I to the said policy formed an integral part thereof. As per Clause 8.1.4 of the institute the Cargo Clause the Policy was to remain in force for a period of 60 days after completion of discharge overside of the insured cargo from the overseas vessel at the final port of discharge of the destination. The cargo was Off Sagar Island at the Anchorage on 5^th March, 2020.

4. It is also the case of the defendant that the goods were admittedly brought to Kolkata Port by five barges, the last of which reached Kolkata Port on 12^th March, 2020. On the goods being unloaded at Sagar Anchorage, the Cargo is to be considered to have been unloaded at the final port of discharge. The plaintiff could have transported the goods to any place therefrom but close to bring the same to Kolkata. The policy, therefore, should be reckoned to be valid for 60 days from 5^th March, 2020 i.e., up to 5th May, 2020 and not from 12th March, 2020. The plaintiff admittedly could not lift the entire quantity of cargo from Kolkata Port till 21^st May, 2020 despite getting the time from 12^th March to 21st March. Even considering the National Lockdown on 20th May, 2020 and thereafter continuously from 24th March, 2020 the functioning again started from 5^th May, 2020 as admitted by the plaintiff. The plaintiff could not remove the Cargo even by 19^th May, 2020 and as such a part of the Cargo got damaged on 20th May, 2020 by the severe cyclone “Amphan”. The defendant was required to extent the policy beyond 5th May, 2020 but did not do so. The failure on the part of the defendant’s transporter as alleged in the plaint does not extend the tenure of the policy. Moreover, the plaintiff did not take appropriate steps even on 19th May, 20202 when the defendant was unable to take appropriate steps even on 19^th May, 2020 when the defendant was unable to remove the Cargo. Even if the date of arrival of Cargo at Kolkata Port is reckoned to be the final part of discharge, then also on 19^th – 20^th May, 2020 there was no valid coverage. The defendant also says that from the plaint it is also evident that the materials discharged 200 metric ton of raw petroleum coke which was lying at Kolkata Port was damaged due to severe cyclone “Amphan”.

5. The plaintiff raised a claim for loss suffered due to damage of the cargo on the defendant being the insurer. The claim was repudiated by the defendant on 27^th May, 2020 on the ground that the goods were not insured as on 19th May, 2020. The plaintiff, therefore, has no cause of action to file and maintain the suit and the plaint is liable to be and should be rejected and taken off the file.

6. The plaintiff, on the other hand, says that it had entered into an agreement with western carrier India Ltd., on 19th February, 2020 for transporting the cargo from Kolkata to Barauni. Between 11^th and 21^st March, 2020 due to intervening Holi festival, the entire cargo could not be transported. On and from 20th March, 2020, there was one day National Lockdown followed by continuous lock down was declared and as such the cargo could not be transported from Kolkata to Barauni. Subsequently, the lockdown was withdrawn but it is to public knowledge the normalcy was not restored. There were intermittent lockdown declared by various States and partial lockdown at different areas. Due to such abnormality owing