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Sm. Monorama Kundu Vs. Fire and General Insurance Company of India Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1212 of 1954
Judge
Reported inAIR1956Cal226,60CWN376
ActsInsurance Act, 1938 - Sections 7 and 8(1); ;Cvil Procedure Code , 1908 - Section 60
AppellantSm. Monorama Kundu
RespondentFire and General Insurance Company of India Ltd.
Appellant AdvocatePoddar, Adv.
Respondent AdvocateS.P. Mitra, Adv. for Controller of Insurance
DispositionApplication dismissed
Excerpt:
- orderp.b. mukharji, j. 1. this is an application for execution by the decree-holder. the decree-holder obtained her decree on 29-3-1955 against the fire and general insurance company of india limited. the present application is for realisation of the balance of the decree amounting to rs. 62,973-10-3.the decree-holder asks to realise this money from the judgment-debtor by attachment of the sum of rs. 3,53,300/- in g. p. notes kept in deposit by the judgment-debtor with the reserve bank of india, calcutta, under section 7 of the insurance act.2. the applicant first obtained an 'ex parte' order which later was set aside on the application of the controller of insurance on the ground that the procedure laid down by section 106a of the insurance act had not been followed. that section.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application for execution by the decree-holder. The decree-holder obtained her decree on 29-3-1955 against the Fire and General Insurance Company of India Limited. The present application is for realisation of the balance of the decree amounting to Rs. 62,973-10-3.

The decree-holder asks to realise this money from the judgment-debtor by attachment of the sum of Rs. 3,53,300/- in G. P. Notes kept in deposit by the judgment-debtor with the Reserve Bank of India, Calcutta, under Section 7 of the Insurance Act.

2. The applicant first obtained an 'ex parte' order which later was set aside on the application of the Controller of Insurance on the ground that the procedure laid down by Section 106A of the Insurance Act had not been followed. That section provides that when an application is made to the Court for making any order to which this section applies the Court shall, unless the Controller has himself made the application or has been made a party thereto, send a copy of the application together with the intimation of the date fixed for the hearing thereof to the Controller and shall give him an opportunity of being heard.

As the Controller had not this opportunity of being heard and as no copy of the application was sent to him, the 'ex parte' order for attachment of this sum was set aside. The application now comes up before me on merits.

3. The whole point of the Controller is basedon the language of Section 8 of the Insurance Act which provides that an order for the attachment in execution of a decree of any deposit made by the Insurance Company under Section 7 of the InsuranceAct can only oe made where the decree-holder 'has failed to realise in any other way'. Those are the last words of Section 8(1) of the Insurance Act.

The language is plain to indicate that the decree-holder before he can proceed in execution to attach this deposit must show that he had failed to realise his decree in any other way.

On a construction of Section 8 and specially of the penultimate expression 'has failed to realise in. any other way', it appears to me that the Statutory deposit under Section 7 of the Insurance Act can be attached in execution only as a last resort and where it has been shown by the decree-holder that he could not realise it in any other way. Resort to this Statutory deposit for the purpose of attachment before the decree-holder has exhausted other means and failed thereby to realise his decree is not in my judgment permitted by law.

Such deposit under Section 7 of the Insurance Act has certain Statutory privileges as well as obligations, it does not enjoy completely immunity from attachment. But such attachment will only be allowed when there is no other means of realising the decree for which attachment is sought, and where the decree is obtained by a policy-holder in respect of a debt due on a policy. The policy behind this privilege of limited protection is obvious.

It is a wholesome provision for the benefit of the entire general body of policy-holders whom the Insurance Companies are expected to serve and this Statutory deposit is a fund earmarked for discharge of liabilities arising on the policies issued by the Insurance Companies. While the deposit enjoys this partial privilege in respect of attachment, it has the limitation of being incapable of assignment or subjected to any charge and cannot be used to meet any liability other than that arising on the policies.

4. In the present petition for execution and Tabular statement nothing is said by the decree-holder that any attempt was made by her to realise her decree and that she had failed to realise it in any other way. The Controller of Insurance has used an affidavit in which he has referred to the last audited balance-sheet for 1954 of the judgment-debtor Fire & General Insurance Co., of India Ltd.

A glance at that balance-sheet, shows that obviously there are other assets of the judgment-debtor from which this decretal amount could be realised. Attempts at. any rate could have been made to realise from such other assets certainly a good portion, if not the whole, of the decree. The balance-sheet shows that the judgment-debtor had shares in the Calcutta National Bank Ltd. Those shares, however, are rightly. said to be worthless because the Calcutta National Bank Ltd., is in liquidation.

Leaving those shares of the Calcutta National Bank Ltd., aside, there appear as assets on the balance-sheet, shares of other Companies to the value of Rs. 1,18,868/- as well as furniture and fittings worth Rs. 14,627-14-6. 'Prima facie, on the balance-sheet, therefore, sufficient assets are available to satisfy the decree now sought to be executed by attachment of the deposit under Section 7 of the Insurance Act.

On behalf of the applicant it is said that shares of other Companies although stated to be Rs. 1,18,868/- are unascertainable inasmuch as itis difficult to know what these shares are and inwhat Companies. There is no difficulty in thatrespect. The applicant could easily have appliedfor the examination of the judgment-debtor, itsassets and properties under Order 21 Rule 41, C. P. Order In fact, nothing has been done by the decree-holder to realise this decree in any other way.(5) For these reasons, this application mustfail. I dismiss this application with costs. TheController will get the costs of the two previousapplications where costs were made to abide by theresult of this application. Certified for Counsel.


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