Partly allowed

M/S V.R Enterprises & Anr. v. National Insurance Co. Ltd. & Anr. B+

Delhi HC13 Feb 2018CS(OS)/909/2011

Case brief

AI extract

What is this about?

The Court dismissed an application for restoration of a suit dismissed for non-prosecution and default. Despite restored, the plaintiff filled no evidence over vol opportunities, was cannot to be leads to dismissal of the suit. The Court quashed the order of dismissal, restored the suit, and subsequently dismissed it as withdrawn upon the plaintiff's request.

What did the court decide?

The order dismissing the suit is set aside; the suit is restored but subsequently dismissed as withdrawn by the plaintiff.

M/S V.R Enterprises & Anr. Vs National Insurance Co. Ltd. & Anr. B+ — Insurance | Delhi HC (2018)

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$~10.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CS(OS)909/2011 V.RENTERPRISES&ANR .....Plaintiffs Through: Mr.KrishanKumar,Adv. versus NATIONALINSURANCECOLTD&ANR .....Defendants Through: Mr. Arihant Jain for Ms. Shantha Devi Raman,Adv.forD-1. Mr. Pankaj Gupta for Ms. Suman Bagga, Adv.forD-2.

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CORAM:

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HON'BLEMR.JUSTICERAJIVSAHAIENDLAW ORDER % 13.02.2018

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IA No.11796/2017 (of the plaintiffs for restoration of the suit dismissed in default and for non-prosecution on 1^st September, 2017).

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The counsel for the plaintiff/applicant and the counsels for both the defendants namely National Insurance Co. Ltd. and IFFCO-Tokio General Insurance Co. Ltd. have been heard.

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The plaintiff/applicant instituted this suit for recovery of principal amount of Rs.51,15,854.16p and for recovery of interest at 15% per annum from 11^th July, 2005 to 11^th February, 2011 on Rs.51,15,845.16p.

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The counsel for the plaintiff/applicant, on enquiry states that the recovery of monies was sought on account of insurance claims.

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The defendants contested the suit and on the pleadings of the parties, the following issues were framed on 27^th August, 2012:-

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“1. Whether the plaintiff is entitled to recover an amount of Rs.51,15,845/- on account of the loss suffered by the plaintiff and as assessed by the surveyor? OPP

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CS(OS) 909/2011

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page 1of 6

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2. Whether the plaintiff is also entitled to claim an amount of Rs.44,34,962/towards interest

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calculated @15% p.a. from 11.7.2005 to 11.2.2011 on the principal amount? OPP

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3. Whether the plaintiff is also entitled to pendent lite and future interest, if so at what rate and for what period? OPP.

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4. Whether the plaintiff is entitled to claim a decree for a sum of Rs.5 lacs for suffering mental agony and harassment? OPP.

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5. Whether the plaintiff has filed the present suit within the prescribed period of limitation? OPP.

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6. Relief.”

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and the plaintiff/applicant directed to file entire affidavits by way of examination-in-chief within a period of four weeks and the suit posted before the Joint Registrar on 18^th October, 2012 for fixing the dates of evidence.

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The plaintiff/applicant did not file affidavits by way of examinationin-chief and on 18^th October, 2012, before the Joint Registrar, stated that the plaintiff/applicant alone was to be examined through affidavit; on such statement, the learned Joint Registrar granted eight weeks’ further time to the plaintiff/applicant to file affidavit by way of examination-in-chief and adjourned the suit to 10^th April, 2013.

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On 10^th April, 2013, though the affidavit by way of examination-inchief of the plaintiff/applicant was on record but the plaintiff/applicant did not appear and accordingly the suit was adjourned to 13^th August, 2013 for evidence of the plaintiff.

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CS(OS) 909/2011

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page 2of 6

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On 13^th August, 2013, without recording any reason for adjournment, the suit was adjourned to 21^st January, 2014.

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On 21^st January, 2014 and thereafter on 24^th July, 2014 and 18^th November, 2014, though the plaintiff/applicant was present for his crossexamination but cross-examination was not recorded for reasons not attributable to the plaintiff/applicant.

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Thereafter on 23^rd April, 2015, the counsel for the plaintiff/applicant sought adjournment and the suit adjourned to 12^th October, 2015. 9. On 12^th October, 2015, the plaintiff/applicant appearing as PW1, was partly examined but the counsel for the plaintiff/applicant stated that the plaintiff/applicant in the affidavit by way of examination-in-chief which had been filed had not exhibited the documents and sought liberty to file additional affidavit by way of examination-in-chief; time of four weeks was granted for the said purpose.

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The plaintiff/applicant did not file any additional affidavit and on the next date i.e. 21^st March, 2016, sought reference to the Mediation Cell of this Court and the next two dates were wasted on account of pendency of mediation.

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Ultimately, on 28^th July, 2016, it was informed that mediation has failed; accordingly the suit was posted to 5^th October, 2016 for remaining evidence of the plaintiff/applicant.

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On 5^th October, 2016, the plaintiff/applicant failed to appear and the suit adjourned to 15^th December, 2016.

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The plaintiff/applicant again did not appear on 15^th December, 2016 and adjournment was sought and subject to the plaintiff/applicant paying CS(OS) 909/2011 page 3of 6

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costs of Rs.10,000/- to the defendants the suit adjourned for evidence of the plaintiff/applicant to 20^th March, 2017.

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On 20^th March, 2017, the counsel for the plaintiff/applicant stated that the plaintiff/applicant seeks to withdraw the suit and to move an appropriate application in that regard and on this ground, the suit was adjourned to 19^th May, 2017 though again for plaintiff/applicant’s evidence.

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On 19^th May, 2017 also, the plaintiff/applicant did not appear and the proxy counsel appearing for the counsel for the plaintiff/applicant reiterated that the plaintiff/applicant intended to withdraw the suit; again adjournment to 14^th August, 2017 was granted. 16. It appears that the suit could not be taken up on 14^th August, 2017 and was taken up on 16^th August, 2017 when none appeared for the plaintiff/applicant and the costs earlier imposed had also not been paid; still, instead of dismissing the suit, the suit was adjourned to 1^st September, 2017. 17. On 1^st September, 2017 again none appeared for the plaintiff/applicant and the suit was dismissed in default and for non-prosecution. 18. The counsel for the plaintiff/applicant has contended that on 1^st September, 2017 the suit was listed before the Joint Registrar as well as before the Court and the counsel for the plaintiff/applicant went before the Joint Registrar and reached the Court only after the suit had been dismissed in default. It is further stated that Mr. Arvind Bansal who had filed the suit on behalf of the plaintiff/applicant had suffered a paralytic stroke.

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The counsel who is today appearing for the plaintiff/applicant is found to be appearing at least since 12^th October, 2015, if not earlier. Thus it is not as if at the time when the suit was dismissed in default, Mr. Arvind Bansal, CS(OS) 909/2011 page 4of 6

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page 4of 6

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Advocate was appearing on behalf of the plaintiff/applicant.

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Even if the factum of the suit having been reflected in the cause list of this Court as well as of the Joint Registrar were to be considered, the fact remains that the plaintiff/applicant inspite of fourteen opportunities has not led evidence in the suit till now. I have thus enquired from the counsel for the plaintiff/applicant as to what purpose restoration of the suit will serve when otherwise also, the suit has to be dismissed. I may also notice that the plaintiff/applicant even after making the application under consideration did not tender the costs of Rs.10,000/- imposed vide order dated 15^th December, 2016 and it is only when the counsel for the defendants reminded the Court of this fact on 20^th November, 2017 that the costs have been paid today. Once it is found that the suit even after restoration has to be dismissed for the reasons of onus of all the issues on the plaintiff/applicant and the plaintiff/applicant having not led evidence, no purpose will be served in first restoring the suit. The dismissal of the suit, beside for default in appearance, was also for non prosecution.

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The Courts are not meant for such litigants who sleep over their rights. For the same reason, the arguments of insolvency of the plaintiff/applicant and of the plaintiff/applicant being in a bad financial condition cut no ice inasmuch as the said factors instead of causing any impediment to the plaintiff/applicant should have spurred the plaintiff/applicant into action in the suit for recovery of monies claimed therein.

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There is thus no merit in the application.

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Dismissed.

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CS(OS) 909/2011

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page 5of 6

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The counsel for the plaintiff/applicant at this stage states that the suit be restored and be permitted to be withdrawn.

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I have enquired from the counsel for the defendants whether they have any objection and the reason therefor.

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Though the counsels for the two defendants oppose but are unable to give any reasons.

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The request is found to be grantable. Accordingly, though the order dated 1^st September, 2017 is set aside and the suit is restored to its original position but the suit is dismissed as withdrawn.

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No costs.

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RAJIV SAHAI ENDLAW, J

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FEBRUARY 13, 2018 ‘pp’..

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page 6of 6

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CS(OS) 909/2011

M/S V.R Enterprises & Anr. v. National Insurance Co. Ltd. & Anr. B+

Case brief

What is this about?

What did the court decide?

M/S V.R Enterprises & Anr. v. National Insurance Co. Ltd. & Anr. B+

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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