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2022 Supreme(Del) 796
IN THE HIGH COURT OF DELHI AT NEW DELHI
Neena Bansal Krishna, J.
Kataria Carriers Registered Partnership firm Through its Partner, Mr. Manish Kataria - Plaintiff
Versus
National Insurance Company Limited and ors. – Defendants
CS(COMM) 118 of 2021
Decided On : 25-11-2022
For the Plaintiff :Mr. Ramesh Singh, Sr. Advocate along with Mr. Gaurav Tanwar and Ms. Shreya Jain, Advocates.
For the Defendant :Mr. Niraj Singh and Mr. Dev Hans Kasana, Advocates, Ms. Garima Sharma, Advocate
Point of Law: Section 41(a) of Specific Relief Act, 1963 bars injunction to restrain any person from prosecuting a judicial proceeding pending at institution of suit in which injunction is sought.
Headnote:
Civil Procedure Code, 1950 – Order VII Rule 11 – Section 151 – Suit for Declaration – An application under Order VII Rule 11 read with Section 151 Code of Civil Procedure been filed on behalf of defendant No.1 National Insurance Co. Ltd. for rejection of plaint.
Finding of the court :
Plaintiff herein had taken similar defences and made counterclaim, as have been agitated by way of present suit – Claims of plaintiff raised in present suit, have already been adjudicated by a Competent Forum i.e in arbitration and present suit cannot be permitted to continue to raise same issues afresh – Reliefs claimed by plaintiff in present suit are not maintainable and no cause of action is disclosed in suit – Relief has already become infructuous as arbitration proceedings have been concluded and Award.
Results: Application allowed.
JUDGMENT :
Neena Bansal Krishna, J.
I.A.11184/2021 (For Rejection of Plaint)
1. An application under Order VII Rule 11 read with Section 151 Code of Civil Procedure (hereinafter referred to as “CPC”) has been filed on behalf of defendant No.1 National Insurance Co. Ltd. for rejection of the plaint.
2. It is submitted in the application that the plaintiff has filed a suit for Declaration, Mandatory and Prohibitory Injunction against the defendants, whereby the plaintiff has sought that the Letter of Repudiation dated 19th November, 2015 issued by defendant No.1 rejecting the Insurance claim of Defendant No.3 and Statutory Surveyor Report dated 19th August, 2014 of the Surveyor/ defendant No.2 be declared as wrong, invalid, erroneous, null and void.
3. It is submitted that defendant No.3 Bharat Heavy Electrical Limited had obtained a Comprehensive Project Insurance Mega Policy bearing No. 350600/44/08/5050000011 from Defendant No.1 National Insurance Co. Ltd. for insuring the Goods during transportation by the plaintiff who is the Transporter. During transit, the goods/“Generator Stator” got damaged due to collapse of bridge. Upon receipt of intimation from defendant No.3 regarding damage, defendant No.1 appointed defendant no.2, M/s J. Basheer & Associates, a Statutory Surveyor to survey and assess the loss suffered by defendant No.3. A Survey Report dated 19th August, 2014 was submitted by the Defendant No.2/Statutory Surveyor and on its recommendation defendant No.1 repudiated the claim of defendant No.3 on 19th November, 2015.
4. It is submitted that the Contract of Insurance was between defendant No.1 and defendant No.3 and the claim of defendant No.3 was repudiated by defendant No.1. If any party is aggrieved on account of such repudiation, it is defendant No.3 and not the plaintiff. There is no Privity of Contract between plaintiff and defendant No.1 and also there was no insurable interest of the plaintiff under the Policy and thus, the plaintiff has no cause of action to seek any relief against defendant no.3 arising out of Insurance Policy, Surveyor report or the Repudiation Letter issued by defendant No1. to defendant No.3.
5. The plaintiff has also sought a decree of Mandatory Injunction against defendant No.1 to appoint a Surveyor for conducting Survey and make loss assessment under the Policy issued by defendant No.1 to defendant No.3. Defendant No.1 had appointed Defendant No.2, a duly licensed Surveyor to survey and assess the loss suffered by defendant No.3. It was only for defendant No.3 to approach the Competent Authority i.e. Insurance Regulatory Development Authority (IRDA) under Section 64UM(4) of the Insurance Act, 1938 for appointment of another Surveyor. The plaintiff has no right to ventilate his grievance against defendant No.1 before this Court for want of privity of contract.
6. Section 34 of Specific Relief Act, 1963 deals with declaratory suits. To enable an Order on declaration, the plaintiff is required to prima facie satisfy that the rights of the plaintiff was infringed by defendant No.1 and the declaration sought is that of legal character or right of the plaintiff. The plaintiff cannot clothe itself with legal character or legal status to file the suit for Declaration and Mandatory Injunction in respect of Repudiation Letter dated 19th November, 2015. The plaintiff cannot acquire the legal character to seek or enforce any relief against defendant No.1.
7. Under Section 39 of Specific Relief Act, 1963, there are twin requirements for mandatory injunction: firstly, an obligation of the defendant towards plaintiff and secondly, a breach thereof by the defendant. In the present case, both the requirements are absent.
8. Moreover, this suit is also barred by limitation. The cause of action according to the plaintiff first arose on 29th September, 2011 when defendant No.2 was appointed by defendant No.1 to conduct the survey while the present suit has been filed on 12th March, 2021 and is clearly barred by l
