Calcutta High Court
M/S. Neo Carbons Private Limited vs National Insurance Company Limited on 21 May, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
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IN THE HIGH COURT AT CALCUTTA
ORdINARy ORIGINAL CIvIL JURISdICTION
[COMMERCIAL dIvISION]
ORIGINAL SIdE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
IA No.GA 3 of 2022
In
CS-COM 356 of 2024
(Old No.CS 45 of 2022)
M/S. NEO CARBONS PRIVATE LIMITED
Vs
NATIONAL INSURANCE COMPANY LIMITED
For Plaintiff : Ms. Anupa Banerjee,
Mr. Himadree Ghosh,
.........Advocates
For the Defendant : Mr. Debajyoti Datta, Sr. Adv.,
Mr. Arijeet Doss Mullick
......... Advocates
Last Heard on : 20.05.2025.
Judgment on : 21.05.2025.
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ARINDAM MUKHERJEE, J.
1. This is an application filed by the sole defendant for rejection of the
plaint and/or for the plaint being taken off the file inter alia on the
ground that the claim of the plaintiff as made out in the plaint filed in CS
45 of 2022 is ex facie not payable and as such the plaintiff has no cause
of action to file the suit.
2. It is submitted by the defendant that the plaintiff purchased a Marine
Cargo specific Voyage Policy Bearing No. 100301211910000080 for the
year 2020 from the defendant an insurance company on 14th February,
2020 (hereinafter referred to as the said policy).
3. The Institute Cargo Clause (A) being annexure-I to the said policy formed
an integral part thereof. As per Clause 8.1.4 of the institute the Cargo
Clause the Policy was to remain in force for a period of 60 days after
completion of discharge overside of the insured cargo from the overseas
vessel at the final port of discharge of the destination. The cargo was Off
Sagar Island at the Anchorage on 5th March, 2020.
4. It is also the case of the defendant that the goods were admittedly
brought to Kolkata Port by five barges, the last of which reached Kolkata
Port on 12th March, 2020. On the goods being unloaded at Sagar
Anchorage, the Cargo is to be considered to have been unloaded at the
final port of discharge. The plaintiff could have transported the goods to
any place therefrom but close to bring the same to Kolkata. The policy,
therefore, should be reckoned to be valid for 60 days from 5 th March,
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2020 i.e., up to 5th May, 2020 and not from 12th March, 2020. The
plaintiff admittedly could not lift the entire quantity of cargo from
Kolkata Port till 21st May, 2020 despite getting the time from 12th March
to 21st March. Even considering the National Lockdown on 20 th May,
2020 and thereafter continuously from 24 th March, 2020 the functioning
again started from 5th May, 2020 as admitted by the plaintiff. The
plaintiff could not remove the Cargo even by 19th May, 2020 and as such
a part of the Cargo got damaged on 20th May, 2020 by the severe cyclone
"Amphan". The defendant was required to extent the policy beyond 5 th
May, 2020 but did not do so. The failure on the part of the defendant's
transporter as alleged in the plaint does not extend the tenure of the
policy. Moreover, the plaintiff did not take appropriate steps even on 19 th
May, 20202 when the defendant was unable to take appropriate steps
even on 19th May, 2020 when the defendant was unable to remove the
Cargo. Even if the date of arrival of Cargo at Kolkata Port is reckoned to
be the final part of discharge, then also on 19th - 20th May, 2020 there
was no valid coverage. The defendant also says that from the plaint it is
also evident that the materials discharged 200 metric ton of raw
petroleum coke which was lying at Kolkata Port was damaged due to
severe cyclone "Amphan".
5. The plaintiff raised a claim for loss suffered due to damage of the cargo
on the defendant being the insurer. The claim was repudiated by the
defendant on 27th May, 2020 on the ground that the goods were not
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insured as on 19th May, 2020. The plaintiff, therefore, has no cause of
action to file and maintain the suit and the plaint is liable to be and
should be rejected and taken off the file.
6. The plaintiff, on the other hand, says that it had entered into an
agreement with western carrier India Ltd., on 19 th February, 2020 for
transporting the cargo from Kolkata to Barauni. Between 11 th and 21st
March, 2020 due to intervening Holi festival, the entire cargo could not
be transported. On and from 20th March, 2020, there was one day
National Lockdown followed by continuous lock down was declared and
as such the cargo could not be transported from Kolkata to Barauni.
Subsequently, the lockdown was withdrawn but it is to public knowledge
the normalcy was not restored. There were intermittent lockdown
declared by various States and partial lockdown at different areas. Due
to such abnormality owing to the pandemic, the plaintiff was unable to
transport the entire cargo till 20th May, 2020 when the super-cyclone
passed through Kolkata and nearby areas thereby causing severe
damage to a portion of the cargo. The delay in lifting the cargo was
beyond the control of the plaintiff. So the force majeure clause came into
operation according to the plaintiff. The plaintiff, therefore, could not be
held responsible for not having lifted the cargo within 60 days from the
discharge thereto.
7. The plaintiff also says that the Hon'ble Supreme Court of India by
pronouncing a series of orders and judgments and order from time to
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time has excluded the application of the provisions of Limitation Act,
1963 till 28th February, 2022. The benefit of such exclusion should be
given to the plaintiff. The insurance coverage obtained by the plaintiff
from the defendant in view of such judgments also got extended and was
valid on 20th May, 2020 when the goods were damaged due to the super-
cyclone.
8. The plaintiff says that at this stage without evidence being laid down it
cannot be held that the plaintiff has no cause of action to file and
maintain the suit. The necessary pleadings are there which provides the
foundation of laying the evidence in support of validity of the plaintiff's
claim which can be done only at the trial.
9. After hearing the parties and considering the materials on record, the
only question which falls for consideration is whether the insurance
coverage relating to the goods imported by the plaintiff under the
insurance policy obtained from the defendant was valid and operational
on 20th May, 2020.
10. On a perusal of the plaint and the documents annexed thereto and
taking the admitted dates provided in the plaint and the documents
annexed to the plaint. It is evident that the damage occurred admittedly
beyond 60 days from the date of discharge. The exclusion of limitation
period as held by the Hon'ble Supreme Court on reading of the said
orders clearly shows that the same was applicable to legal judicial
proceedings and not to agreements between parties like that of an
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insurance policy and/or in respect of the coverage. Thereunder, in the
instant case, the validity of the policy admittedly expired on 11 th May,
2020 and the damage was caused subsequent thereto. The plaintiff's
claim, therefore, arose when admittedly the policy was not in force.
11. This is not a case where the claim arose when the policy was valid
but could not be lodged within the time frame provided in the policy. In
such a case, the orders passed by the Hon'ble Supreme Court, excluding
the limitation could have some application if the claim was repudiated on
the ground of delaying the lodging the same. It was all along known to
the plaintiff that the policy would expire on the expiry of 60 days from
the date of discharge of cargo. The date of discharge was known to the
plaintiff and it was prior to the National Lockdown. The plaintiff had a
reasonable opportunity for removing the cargo prior to the declaration of
the National Lockdown. Even after the National Lockdown was
withdrawn the plaintiff had sufficient time to remove the cargo prior to
20th May, 2020. The port operations for release of the cargo was on
going after withdrawal of the National Lockdown as it is the case of the
plaintiff that removing the goods after the National Lockdown was
withdrawn.
12. The plaintiff after the opening of the National Lockdown did not
obtain any clarification from the defendant as to whether the period of
the policy would stand extended for the reason that the transport
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operations for removing the cargo remained suspended or was in limited
score. The plaintiff did not seek any clarification.
13. It is also not the case of the plaintiff that the office of the defendant
was closed as a consequence whereof the extension of the policy dispute
applied could not be availed. The averment in the plaint on the contrary
clearly demonstrated that the electronic mails issued by the plaintiff were
promptly replied by the defendant. It was also open to the plaintiff to
approach the defendant for extension of cover beyond 60 days from the
date of discharge of cargo when the plaintiff could not lift the cargo
within 10th May, 2020.
14. The approach in deciding the application under Order 7 Rule 11of
the Code of Civil Procedure, 1908 (in short 'CPC') has been clarified by
the Hon'ble Supreme Court in the judgment reported in (2020)7 SCC
366 [Dahiben Vs, Arvindbhai Kalyanji Bhanusali (Gajra) Deed
through Legal Representatives]. In paragraph 23.3 of Dahiben (supra)
the Hon'ble Supreme Court clearly laid down the following:-
"23.3. The underlying object of
Order 7 Rule 11(a) is that if in a
suit, no cause of action is disclosed,
or the suit is barred by limitation
under Rule 11(d), the court would
not permit the plaintiff to
unnecessarily protract the
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proceedings in the suit. In such a
case, it would be necessary to put
an end to the sham litigation so that
further judicial time is not wasted."
15. The same principles are to be followed while deciding this
application. On a reading of the plaint in the context of the paragraph
quoted above. It is clear that if in a suit no cause of action is disclosed
the Court would not permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be necessary to put an
end to the said litigation so that further judicial time is not wasted. In the
instant case despite being aware that the insurance cover will expire after
60 days from the date of discharge of cargo at the final destination from
the vessel by which it was imported, the plaintiff could not lift the cargo,
the plaintiff did not get a clarification as to whether the time of the
coverage stood extended due to conditions arising out of the pandemic.
The defendant cannot be blamed for any of this. The plaintiff did not take
any extended cover beyond 10th May, 2020 when it was known to the
plaintiff that it was not being able to lift the entire cargo. In the aforesaid
facts and circumstances, it is apparent that the provision of Order 7 Rule
11(a) of Code of Civil Procedure, 1908 is attracted as the plaint does not
disclose a cause of action in support of plaintiff's claim and the plaintiff
also does not have any cause of action against the defendant, as there was
no insurance cover at the time when the goods were destroyed. On the
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point of preliminary issue as contended by the plaintiff, I have considered
the judgments of the Hon'ble Supreme Court respectively reported in
2020 (6) SCC 557 (Nusli Neville Wadia vs. Ivory Properties & Ors.)
and 2022 (7) SCC 644 (Sathyanath & Anr. Vs. Sarojamani). On the
plaint being read as a whole in the context of the two judgments as
aforesaid, I do not find any reason to relegate the issue of rejection of
plaint for non-disclosure of cause of action as also absence of cause of
action in favour of the plaintiff as against the defendant. The force
majeure clause may have came into operation for damage of a part of the
goods if there was a valid cover on the date when the loss occurs.
16. Following ratio laid down in the Dahiben (supra) in the plaint is
rejected and directed to be taken off the file. The suite instituted by filing
the plaint is CS 45 of 2022 is also dismissed.
17. Application being I.A. G.A. No. 03 of 2022 is according allowed and
stands disposed of.
ARINDAM MUKHERJEE, J.
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