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Punam Chand JaIn Vs. the General Assurance Society Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberSpecial No. 1 of 1974
Judge
Reported inAIR1974Cal335
ActsArbitration Act, 1940 - Section 20
AppellantPunam Chand Jain
RespondentThe General Assurance Society Ltd. and anr.
Cases ReferredRuby General Insurance Co. Ltd. Amritsar v. Peare Lal Kumar
Excerpt:
- .....of the case and shall within seven days thereafter at his own expense, deliver to the society a claim in writing containing as particular an account as may be reasonably practicable of all the articles lost or damaged and the amount of the loss or damage in respect thereof respectively, having regard to their value at the time of loss or damage, and also of the damage (if any) to the premises. the insured shall also produce and give to the society when, where and to whom and in manner required by them, and at his own expense, all such books of account, vouchers, proofs and information as may be reasonably required, and he shall be bound to satisfy the society by such reasonable evidence as they may require that the loss or damage claimed for has actually arisen from one of.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This is an application under Section 20 of the Arbitration Act, 1940 for filing of an arbitration agreement. It appears that there was a policy of Insurance dated the 7th April, 1972, covering loss caused by burglary and house-breaking. It is alleged that on the 19th March, 1973, a burglary took place and there was a loss to the goods in question covered by the Policy in this application. The defendant company on the 2nd May, 1973, repudiated the said claim. The said repudiation was reiterated by a letter dated the 14th July, 1973. On the 24th October, 1973, reference was made to arbitration under the clause. The said Policy contained, inter alia, the following:

'(a) Clause-3. On the happening of any loss or damage the insured shall immediately after the same has come to his knowledge give notice thereof in writing to the Society detailing the circumstances of the case and shall within seven days thereafter at his own expense, deliver to the Society a claim in writing containing as particular an account as may be reasonably practicable of all the articles lost or damaged and the amount of the loss or damage in respect thereof respectively, having regard to their value at the time of loss or damage, and also of the damage (if any) to the premises. The insured shall also produce and give to the society when, where and to whom and in manner required by them, and at his own expense, all such books of account, vouchers, proofs and information as may be reasonably required, and he shall be bound to satisfy the society by such reasonable evidence as they may require that the loss or damage claimed for has actually arisen from one of the causes insured against, and the property in respect of which a claim is made is not merely mislaid or missing.

(b) Clause-10: All differences arising between the Society and the insured or the Claimant hereunder shall be referred to the decision of an arbitrator to be appointed in writing by the parties in differences or if they cannot agree upon a single arbitrator to the decision of two arbitrators one to be appointed in writing by each of the parties. Before entering upon the reference, the arbitrators shall appoint an Umpire and in case of disagreement between the arbitrators reference shall be made to the Umpire whose decision shall be final. The arbitration shall take place in Calcutta or in such other place as the Society shall at their discretion appoint. The obtaining of an award shall be a condition precedent to any liability or right of action against the society in respect of any such difference. If the Society shall disclaim liability to the insured for any claim hereunder and such claim shall not' within three calendar months from the date of such disclaimer have been referred to arbitration under the provision herein contained then the claim shall for all purposes be deemed to have been abandoned and thereafter no right shall be enforceable and nothing shall be recoverable hereunder.

(c) Jurisdiction Clause: It is hereby agreed that in case of any claim arising in respect of the property hereby insured the same shall be settled and paid in Calcutta and the entire cause of action shall also be deemed to arise in Calcutta and further that all arbitration or legal proceedings in respect of any such claim shall be held or be instituted in a competent Court in the City of Calcutta only.'

2. The first point is that the General Assurance Society Ltd. has merged with the National Insurance, Company Ltd. Therefore, the application is not maintainable. It appears to me that this is a formal objection in the facts of this case. The National Insurance Co. Ltd. is really appearing before me and I accordingly direct that in place of the defendant No. 1 the name of National Insurance Co. Ltd, be substituted. The respondent has no objection to the same. The second point in opposition to this application was that the claim had become barred by limitation and as such the plaintiff had abandoned the claim and was not entitled to proceed with the arbitration. Reliance was placed on the aforesaid Arbitration Clause and it was contended that in view of the fact that there was repudiation on the 2nd May, 1973, or in any event on the 14th July, 1973, and the claim had been referred to arbitration on the 24th October, 1973, the claim was no longer alive. In support of this argument reliance was placed or a Division Bench Judgment of this Court in the case of Girdharilal Hanuman Bux v. Eagle Star & British Dominions Insurance Co. Ltd., ATR 1924 Cal 186. But the question here is not whether the claim has become time barred. The question is whether the arbitrator has jurisdiction to decide the question whether the claim has become time barred in the facts of this case. On this matter there is no limitation in the facts of this case of filing the application under Section 20 of the Arbitration Act and the question whether after the matter goes before arbitration it would be held that the matter had become, time barred or had been abandoned is not at this stage to be decided. The amplitude given to the arbitration in the Arbitration Clause in my opinion, is an answer to the contention raised on behalf of the respondent. Reliance may be placed in support of the above proposition on the decision of the Supreme Court in the case of Wazir Chand Mahajan v. The Union of India, : [1967]1SCR303 and on the decision of the Punjab High Court in the case of Ruby General Insurance Co. Ltd. Amritsar v. Peare Lal Kumar AIR 1951 Punj 440. It was, thirdly, contended that the State Bank of Bikaner, Jaipur has not been made a party as a plaintiff. I do not see any substance in this opposition in view of the terms of the Insurance Clause. Furthermore, the Slate Bank of Bikaner, Jaipur, has been made a party as a defendant in the suit. The last contention was that the petitioner was not entitled to an order in terms of prayer (b) of the petition in view of the provisions of Subsection (4) of Section 20 of the Arbitration Act, 1940. I am unable to accept this position. In the aforesaid view of the matter there will be an order in terms of prayer (a). The petitioner has already nominated its arbitrator. I direct the defendant No. 1 to nominate its arbitrator within two months from date. In default the arbitration will proceed in accordance with the arbitration agreement. In default of such nomination within two months from date the petitioner will be at liberty to obtain further directions from this Court.

3. Cost of this application will be cost in the arbitration proceeding.


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