Delhi High Court
Vishal Hira Merchants Pvt Ltd vs Icici Lombard General Insurance ... on 9 November, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2332/2015
VISHAL HIRA MERCHANTS PVT LTD ..... Plaintiff
Through Mr.Sandeep Sharma with
Mr.Aman Dhyani, Advocates.
Versus
ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD & ANR ..... Defendants
Through Mr.Vishnu Mehra, Advocate
for D-1.
Mr.Chetan Roy, Advocate for
D-2.
% Date of Decision: 9th November, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. On 16th October, 2017, this Court had passed the following
order:-
"Prima facie, this Court is of the view that the
present suit is not maintainable against defendant
no.2. However, as Mr.Sharma requests that he be
given an opportunity to cite certain judgments, the
matter is adjourned to 9th November, 2017."
2. After some arguments, learned counsel for the plaintiff states
that he has no objection if the defendant no.2/bank is deleted from the
array of parties. However, the plaintiff is given liberty to call the
officials of the bank as witnesses with the relevant records in the
present proceedings.
3. With the aforesaid liberty, defendant no.2/bank is deleted from
the array of parties. Let an amended memo of parties be filed within
a period of one week.
I.A.No.15878/2015
4. Present application has been filed under Section 14 of the
Limitation Act on behalf of the plaintiff.
5. Learned counsel for the plaintiff states that initially the plaintiff
had approached the National Consumer Dispute Redressal
Commission (hereinafter referred to as the 'Commission') seeking
compensation on account of a fire incident that took place on 04 th
November, 2007 in the factory premises of the plaintiff. He states that
though the claim petition was filed on 07th June, 2010 i.e. within the
period of limitation, yet the Commission on 22nd May, 2015 was of the
view that since all documents filed by the plaintiff had been denied by
the Insurance Company and the matter required extensive evidence, it
would be appropriate if the matter is filed before the civil court and
further the plaintiff leads proper evidence to prove its claim. In view
of the aforementioned factual position, learned counsel for the plaintiff
contends that Section 14 of the Limitation Act is attracted as the
plaintiff bonafidely and unintentionally was pursuing its claim before
a wrong forum.
6. On the other hand, learned counsel for the defendant/Insurance
Company states that the contentions advanced by learned counsel for
the plaintiff are not correct. He states that the plaintiff had filed
voluminous evidence before the Commission. He further states that
after an extensive hearing as the Commission was not inclined to grant
any relief to the plaintiff, the said proceedings were withdrawn.
7. Learned counsel for the plaintiff contends that if the present
petition is entertained, it would amount to giving a second chance to
the plaintiff to litigate the same issue. In support of his contention, he
relies upon the judgment of the Apex Court in Dr.J.J. Merchant and
others Vs. Shrinath Chaturvedi, AIR 2002 SCC 2931.
8. This Court is of the view that it has to read the order of the
Commission dated 22nd May, 2015 for what it says and the
circumstances surrounding the order, as highlighted by both the
learned counsel, are irrelevant. The said order is reproduced
hereinbelow:-
"After extensive arguments the learned counsel for the
complainant on instructions seeks to withdraw the
complaint with liberty to approach the concerned Civil
Court for redressal of the grievances of the complainant.
The complaint is accordingly dismissed as withdrawn.
Leave as sought is granted. If the complainant
approaches the Civil Court for redresal of his grievances
it shall also be open to it to seek benefit of provision
contained in Section 14 of the Limitation Act if such a
benefit is otherwise available to it in law."
9. From a perusal of the aforesaid order, it is apparent that the
counsel for the complainant/plaintiff had withdrawn the complaint
with liberty to approach the concerned civil court for redressal of its
grievances and specific leave had been granted by the Commission for
the said purpose. The Commission had also clarified that if the
plaintiff/complainant approaches the civil court for its redressal, it
would be open for it to seek the benefit of Section 14 of the Limitation
Act if such a benefit is otherwise available to it in law.
10. This Court is of the view that the plaintiff/complainant having
made known its intention of filing a civil suit had been granted
specific liberty by the Commission and not to entertain the present suit
today, would render nugatory the relief and liberty granted by the
Commission.
11. This Court is further of the opinion that the judgment of the
Apex Court in Dr.J.J. Merchant (supra) has no relevance to the issue
at hand as it only declares that the Commission has the power to
decide disputed questions of fact after recording evidence. In any
event, as specific relief and liberty had been granted and the matter
had not been adjudicated upon on merits, this Court is of the view that
the plaintiff must have his 'day in Court' and the claim of the plaintiff
needs to be adjudicated upon.
12. In fact, in a similar case, a Coordinate Bench of this Court in
Anil Bhambri Vs. North Delhi Power Ltd., 188 (2012) DLT 786 has
held as under:-
"4. Surely, an impression with respect to definition of a
person being or not being a consumer is a legal issue
and if there is a particular opinion of a legal issue there
cannot be said to be any lack of bonafides for denying
the benefit of Section 14 of the Limitation Act, 1963 to
the appellant/plaintiff. Once a plaintiff pursues, in
bonafide manner, a claim in wrong forum which did not
have jurisdiction, such a plaintiff is entitled to the benefit
of exclusion of the period under Section 14 of the
Limitation Act, 1963 spent in the wrong forum."
13. Since the plaintiff had approached the Commission within the
period of limitation and had been prosecuting with due diligence the
said proceedings, this Court is of the view that the time spent by the
plaintiff in prosecuting the said proceedings before the Commission
needs to be excluded while determining the period of limitation.
14. Accordingly, the present application is allowed.
I.A.No.21026/2015
15. Present application has been filed under Order VII Rule 11 CPC
by the defendants for rejection of the plaint on the ground of
limitation.
16. Keeping in view the order passed today in I.A.No.15878/2015,
the present application is dismissed.
CS(OS) 2332/2015
17. List the matter before the Joint Registrar for admission/denial of
the documents on 22nd January, 2018.
MANMOHAN, J
NOVEMBER 09, 2017
KA
