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2018 Supreme(Mad) 4311
IN THE HIGH COURT OF MADRAS
M. SUNDAR, J.
Oriental Insurance Co. Ltd. Chennai and Another – Appellants
Versus
ACME Commodities Pvt. Ltd. Chennai – Respondent
A. No. 4755 of 2018
Decided On : 06-09-2018
Headnote:
Civil Procedure Code,1908 - Consumer Protection Act, 1986 - Section 17 - Suit for insurance claim - Consignment - Commodity trade plaintiff entered into a contract with an entity having offices in Dubai and Singapore for purchase of dried raw cashew nuts in shell, plaintiff shipped said consignment from Guinea Bissau Port a Port in Western Africa to Tuticorin in India Tamil Nadu plaintiff took an insurance policy being Voyage policy Crores for this shipment voyage ran into rough weather necessitating change of voyage voyage ultimately commenced in vessel Star from Guinea Bissau reached Tuticorin but there was loss/damage for consignment plaintiff raised a claim for such loss/damage such insurance claim was repudiated/rejected by insurance company i.e defendants amongst other resulting in instant suit against insurance company being filed -Journey of this suit that commenced is now at a stage where pleadings have been completed - At this stage defendants have filed instant application with a prayer to revoke leave to sue granted to plaintiff vide order at time of inception of suit - Pivotal and primary ground on which instant revocation application is predicated is that no part of cause of action arose within territorial jurisdiction of this court and therefore leave deserves to be revoked - Held, Cause of action is a bundle of facts that plaintiff needs to prove to succeed in suit - It is also well settled that cause of action may not necessarily mean every facts in chain of facts but it is those facts which have to necessarily be proved or in other words those which are imperative that they are proved for plaintiff to be entitled to a decree - Now that Court have set out test to be applied for determining this application as also what is cause of action as laid down in a long line of authorities Court can look at submissions of plaintiff - Plaintiff submitted that a reference to various plaint paragraphs by defendants is of no avail as it is plaintiffs specific case that a part of cause of action has arisen within territorial jurisdiction of this Court - On this basis counsel for plaintiff referred to various paragraphs in plaint - Learned counsel referred to paragraph of plaint where it has been averred that plaintiff furnished all material information regarding Cargo voyage and vessel for consideration of defendant much before Cargo loading commenced at Port of origin - Mere non-granting and denial of utilisation of credit in pass book is not sufficient to confer jurisdiction on a Court - This judgment was rendered in light of amendment to section 17 of Consumer Protection Act - Rules and procedure applicable to consumer fora are very different - However without going into that aspect of matter and leaving that aspect of matter open it is clear as day light that this case law also does not help defendants as it is clearly distinguishable on facts - Instant case is one where there is specific pleadings in plaint which go beyond a mere denial / rejection of claim of insured - Application Dismissed
1. This suit pertaining to an insurance claim arising out of voyage of a Vessel which goes by the name M.V. Grandway Star - (originally voyage was scheduled to be in M.V. Golden Endurance) from the Atlantic Coast of Guinea Bissau Port to the Coromandel Coast of Tuticorin, ought not to have been filed in this Court (incidentally and ironically, this Court stands on the Coromandel coast) is the prayer in the instant application, i.e. A. No. 4755 of 2018. Technically speaking, i.e. in legal parlance, this is an application to revoke the leave to sue granted by this Court on 27.04.2017 in A. No. 2672 of 2017.
2. There are two defendants in the main suit. Defendants 1 and 2 are applicants 1 and 2 respectively in the instant application. There is a sole plaintiff in the main suit. The sole plaintiff in the main suit is the lone respondent in the instant application. The parties in the instant application are referred to by their respective ranks in the main suit for the sake of convenience and clarity.
3. Considering the scope of this application, a thumbnail sketch of facts will suffice.
4. Facts necessary for understanding and appreciating this order (as they unfurl from the pleadings and submissions before me) are that the plaintiff is in commodity trade, plaintiff entered into a contract with an entity having offices in Dubai and Singapore for purchase of dried raw cashew nuts in shell, plaintiff shipped the said consignment from Guinea Bissau Port, a Port in Western Africa to Tuticorin in India, Tamil Nadu, plaintiff took an insurance policy being Voyage policy dated 3.7.2014 for Rs. 33 Crores for this shipment, the voyage ran into rough weather necessitating change of voyage, the voyage ultimately commenced on 09.10.2014 in the vessel M.V. Grandway Star from Guinea Bissau, reached Tuticorin on 05.11.2014, but there was loss/damage for the consignment, plaintiff raised a claim for such loss/damage, such insurance claim was repudiated/rejected by the insurance company, i.e., defendants amongst other dates on 25.1.2017, resulting in the instant suit against the insurance company being filed on 26.04.2017.
5. The journey of this suit that commenced on 26.04.2017 is now at a stage where pleadings have been completed (defendants have filed written statement). At this stage, defendants have filed the instant application with a prayer to revoke the leave to sue granted to the plaintiff vide order dated 27.04.2017 in A. No. 2672 of 2017 at the time of inception of the suit.
6. The pivotal and primary ground on which the instant revocation application is predicated is that no part of cause of action arose within the territorial jurisdiction of this court and therefore, leave deserves to be revoked. Elaborating on the submissions made by defendants in this application, it can be said that it is the specific case of the defendants that the voyage policy dated 03.07.2014 (hereinafter referred to as suit policy for the sake of convenience and clarity) was issued only by second defendant and there is no dispute or disagreement that the second defendant is carrying on business outside the territorial jurisdiction of this Commercial Division.
7. Defendants also make specific reference to paragraphs 12, 13, 14, 22 and 23 of the plaint to demonstrate that the cause of action for this suit has arisen outside the territorial jurisdiction of this Commercial Division.
8. Before I advert to the response of the plaintiff to the aforesaid arguments put forth by the defendants in the instant application, it is necessary to have clarity on the basis of which this application is to be tested. In other words, the test which has to be applied for deciding this application has to be set out. An application of this nature has to necessarily be tested on the basis of uncontraverted averments in the plaint. In other words, this application has to be tested
