Kerala High Court
Anto.A.V vs The United India Insurance Co.Ltd on 18 August, 2025
2025:KER:62233
W.P.(C).No.18705 of 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947
WP(C) NO. 18705 OF 2019
PETITIONER:
ANTO.A.V.,
MANAGING PARTNER, ALUKKAS JEWELLERY,
CORPORATE OFFICE AT GOSAIKUNNU, KURIACHIRA,
THRISSUR- 680006.
BY ADVS.
SRI.ELVIN PETER P.J. (SR.)
SRI.K.R.GANESH
SMT.N.R.REESHA
RESPONDENTS:
1 THE UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR,
HEAD OFFICE AT BUILDING NO.24,
WHITES ROAD, CHENNAI- 600014.
2 THE MANAGING DIRECTOR,
THE UNITED INDIA INSURANCE CO.LTD., HEAD OFFICE AT
BUILDING NO.24, WHITES ROAD, CHENNAI- 600014.
3 THE DEPUTY CHIEF MANAGER,
THE UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE,
HOSPITAL ROAD, KOCHI- 682011.
4 THE DIVISIONAL MANAGER,
THE UNITED INDIA INSURANCE CO.LTD., DIVISION NO.1,
PARK HOUSE, ROUND NORTH, THRISSUR- 680001.
BY ADV SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C).No.18705 of 2019
2
S.MANU, J.
--------------------------------------------------
W.P.(C).No.18705 of 2019
-------------------------------------------------
Dated this the 18th day of August, 2025
JUDGMENT
The petitioner opened a jewellery shop at Tirupur,
Tamil Nadu in 2009. Movable assets kept inside the premises of
the show room were insured with the 1 st respondent company
under Jewellers Block Policy for the period from 27.4.2011 to
midnight of 26.4.2012.
2. On 22.2.2012, at night some thieves broke into the
jewellery shop and committed theft of 36 kgs. of gold jewellery
and 2 kgs. of diamond studded gold jewellery. Tirupur police
registered crime No.333/2012 in connection with the
occurrence. Investigation has not been completed yet as five
absconding accused could not be traced and arrested.
3. Petitioner informed the 1st respondent company
about the incident. A Surveyor was deputed by the 1 st
respondent company. On 17.4.2012, Surveyor submitted his
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report. In the report the Surveyor stated that entire stock of
gold ornaments, etc. kept in the safe was still there and all
ornaments in the display windows including diamond studded
ornaments were taken away by the burglars. Surveyor found
that the petitioner had complied with all the warranties except
safe keeping of jewellery displayed in the windows in the safe
lockers after business hours.
4. Petitioner had obtained a burglary policy also for the
period from 17.2.2012 to the midnight of 16.2.2013. Surveyor
stated in the report that the petitioner was entitled for an
indemnity of Rs.40,00,00,00/- under the burglar policy as
against the total loss of Rs.11,44,044,202/-. According to the
Surveyor, the petitioner was not entitled for claiming indemnity
under the Jewellers Block Policy.
5. Respondent granted only Rs.30,00,00,00/- to the
petitioner out of Rs.40,00,00,00/- under the burglar policy.
Petitioner approached this Court in W.P.(C)No.17610/2018. This
Court directed the respondents to release the balance amount of
Rs.10,00,00,00/-. It was made clear that in case the final
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report of police reveals any insider involvement, it will be open
to the respondents to recover the entire amounts from the
petitioner. Petitioner later approached this Court in the above
writ petition seeking the following reliefs:-
"i) to issue a writ of mandamus or other
appropriate writ, order or direction, directing
the respondents to forthwith disburse the
amount of Rs.14,29,71,655/- (Rupees
Fourteen Crores Twenty Nine Lakhs Seventy
one Thousand Six Hundred and Fifty Five only)
covered by Ext. P-2 Jeweller' s Block Policy for
the loss suffered by the petitioner's due to the
burglary committed on 20.2.2012 forthwith;
ii) to declare that the petitioner is entitled to be
paid the amount of Rs.14,29,71,655/- by way
of indemnity due to the loss suffered by the
petitioner due to the burglary committed on
20.2.2012;
iii) to issue a writ of mandamus or other
appropriate writ, order or direction, declaring
that the respondents are legally bound to
indemnify the petitioner for the loss suffered
by him due to the burglary committed for the
reason that the property was kept out of the
safe; And
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iv) to grant such other and further reliefs as this
Hon'ble Court be pleased to deem fit, just,
proper and necessary in the interest of justice.
6. The respondents entered appearance and filed a
statement refuting the contentions in the writ petition.
7. Heard the learned Senior Counsel appearing for the
petitioner and the learned Standing Counsel for the respondent
Insurance Company.
8. Sri.Elvin Peter, the learned Senior Counsel made
extensive reference to the terms of Ext.P2 policy. He submitted
that in Section I of Ext.P2 in the opening page there is a clear
statement regarding the property insured. It reads thus:-
"Section I
Address of the premises: 242/162-A,
S.M.R. SUBHA ARCADE,
OPP. THALUK OFFICE,
KUMARAN ROAD, TIRUPUR
Dist.: COIMBATORE, Tamil Nadu
a)Property insured on the premises (Total) Rs.15,13,25,000
I) In Display Windows
(Included in the total sec I Sum Insured) Rs.7,00,00,000
II) In Locked Safe (included in the total sec I Sum Insured)Rs.0
III) Elsewhere Rs.8,13,25,000
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b)Cash and Currency Notes Rs.20,00,000
c) Property Insured in Bank Lockers Rs.0
d) Private Lockers (subject to insured maintaining
separate register to record all deposits,
withdrawals in such lockers). Rs.0
Address of the Branch of the Bank
TOTAL SUM INSURED (Section I) Rs.15,33,25,000 PREMIUM:Rs.2,34,362.50"
9. He pointed out the specific statement under Section I
which reads as under:-
"Warranted that all stocked whilst at the premises
specified in the schedule shall be secured in locked
burglar proof safe at night and at all times out of their
business hours.
Classification Warranties
Class I Warranted that insured having stated in his
proposal form that all the premises specified in schedule
I of the policy are fully protected by employment of
watchman/watchmen, all the 24 hours of the day they
will be so continued to be employed during the currency
of the policy."
10. He submitted that the company repudiated the claim
citing the exceptions mentioned in Ext.P2. Relevant exception
relied on by the company is extracted hereunder:-
"12. Loss or damage to property insured whilst in
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window display at night or whilst kept out of safes
after business hours."
11. The learned Senior Counsel submitted that the 1st
respondent company acted in a highly arbitrary and illegal
manner by repudiating the claim, relying on the exception
extracted above. He contended that the exception was in
conflict with the specific provision of the policy and also the very
object and purpose of the policy. He submitted that no proposal
was signed by the petitioner and no exception was brought to
the notice of the petitioner when the policy was obtained. The
learned Senior Counsel contended that obtaining a proposal
signed by the insured was essential for issuing the policy. The
terms and conditions of the policy are in a particular format and
unless the insured has made a declaration/endorsement to the
effect that he had read and understood all conditions, the
insurer will not be justified to repudiate claims citing exceptions
or exclusions which were not properly brought to the notice of
the insured. The learned Senior Counsel further submitted that
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the exception relied on by the respondent company in the
instant case is manifestly inconsistent with the general provision
of the policy that every movable and valuable jewellery within
the premises is covered by the insurance. He submitted that
though a written proposal and declaration are stated in Ext.P2
to form the basis of the contract, the respondent company has
not produced any such documents, as no such proposal or
declaration was obtained from the petitioner. The learned Senior
Counsel contended that the insurance company was making
efforts to repudiate all claims and was reluctant to make even
the payment of the amount under the burglar policy despite
favourable report submitted by the Surveyor. He pointed out
that the petitioner had to approach this Court for getting the
balance amount of Rupees one crore released. The learned
Senior Counsel asserted that the first three pages of Ext.P2 are
the proposals and policy document commences from page 3
only. He contended that Section I in page No.4 of Ext.P2 does
not speak about any exclusions and it covers loss or damage to
property insured under items (a) to (e) under Section I of the
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schedule whilst contained in the premises or other place
specified in the schedule by fire, explosion, lightening, burglary
and theft. The exception No.12 relied on by the respondent
company, is liable to be ignored or read down as it is in conflict
with Section I.
12. The learned Senior Counsel relied on judgment of the
Hon'ble Supreme Court in M/s.Texco Marketing Pvt. Ltd. v.
TATA AIG General Insurance Company Ltd. and others
[(2023) 1 SCC 428] in support of his contentions. He relied on
the following paragraphs of the judgment:-
"22. On a discussion of the aforesaid principle, we
would conclude that there is an onerous
responsibility on the part of the insurer while
dealing with an exclusion clause. We may only add
that the insurer is statutorily mandated as per
Regulation 3(2) of the Insurance Regulatory and
Development Authority (Protection of Policyholders'
Interests) Regulations, 2002, dated 16-10-2002
(hereinafter referred to as "the IRDA Regulations,
2002") to the effect that the insurer and his agent
are duty bound to provide all material information
in respect of a policy to the insured to enable him
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to decide on the best cover that would be in his
interest. Further, sub-regulation (4) of Regulation 3
mandates that if proposal form is not filled by the
insured, a certificate has to be incorporated at the
end of the said form that all the contents of the
form and documents have been fully explained to
the insured and made him to understand. Similarly,
Regulation 4 enjoins a duty upon the insurer to
furnish a copy of the proposal form within thirty
days of the acceptance, free of charge. Any non-
compliance, obviously would lead to the irresistible
conclusion that the offending clause, be it an
exclusion clause, cannot be pressed into service by
the insurer against the insured as he may not be in
knowhow of the same.
Doctrine of blue pencil
23. In such a situation, the doctrine of "blue
pencil" which strikes off the offending clause being
void ab initio, has to be pressed into service. The
said clause being repugnant to the main contract,
and thus destroying it without even a need for
adjudication, certainly has to be eschewed by the
court. The very existence of such a clause having
found to be totally illegal and detrimental to the
execution of the main contract along with its
objective, requires an effacement in the form of
declaration of its non-existence, warranting a
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decision by the court accordingly.
24. The aforesaid principle evolved by the English
and American courts has been duly taken note of
by this Court in Beed District Central Coop. Bank
Ltd. v. State of Maharashtra [(2006) 8 SCC 514],
......."
13. The learned Senior Counsel submitted that in view of
the law laid down by the Hon'ble Supreme Court the insurer had
a duty to provide all material information to the insured and to
incorporate a certificate that all the contents of the form and
documents have been fully explained to the insured and made
him to understand. He submitted that in the instant case the
petitioner was made to believe that the policy would cover the
entire stock and the exclusion clause cannot be relied on later
without a certificate as mentioned in the above judgment by the
Hon'ble Supreme Court. He hence contended that the entire loss
suffered was covered by Ext.P2 policy and therefore the writ
petition is only to be allowed.
14. Sri.Manoj Kumar, learned counsel for the respondent
insurance company submitted that in the burglary policy there
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were no exception clauses and warranted conditions as in Ext.P2
policy. He submitted that the contention of the petitioner that
Ext.P2 is the written proposal and declaration made by the
petitioner is wrong. Ext.P2 is the policy issued by the
respondent company duly typed, stamped and sealed with the
warranted conditions and specific exclusions based on the
proposal given by the petitioner in the proposal form for
jewellers block policy. The policy was issued for the period from
27.4.2011 to 26.4.2012 covering the petitioner's stock and
stock in trade. As discernible from Ext.P2 there was a warranted
condition that all stock whilst at the premises specified in the
schedule shall be secured in locked burglar proof safe at night
and out of the business hours. However, the petitioner failed to
comply with the warranted condition and articles were
remaining in the display windows at night after the business
hours. He also submitted that the petitioner obtained burglary
policy in addition to jewellers block policy after issuing a letter
to the company that the burglary policy is for night only cover.
The learned counsel handed over a copy of the letter dated
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11.10.2011 for perusal. Hence, the learned counsel contended
that the petitioner was well aware that jewellers block policy
would not cover the gold jewellery kept in the display during
night hours. The independent surveyor conducted survey and
the report was filed on 17.4.2012. The learned counsel pointed
out that this writ petition was filed only in July 2019 after lapse
of a long time. He hence submitted that the writ petition is liable
to be dismissed on the ground of delay without entering into
merits of the case. The learned counsel relied on the judgment
of the Hon'ble Supreme Court in Mrinmoy Maity v. Chhanda
Koley and others [2024 SCC OnLine SC 551]. Further the
learned counsel submitted that there is a clear factual finding in
the survey report that the petitioner had violated the warranted
conditions in the jewellers block policy. He also contended that
the case of the petitioner that the terms and conditions of the
policy were not properly put to him and made him understand
the same is without any bonafides as the burglary policy was
obtained with the clear understanding that the jewellers block
policy would not cover the jewellery kept in the display walls
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during night hours. He contended that the petitioner has
approached this Court only on experimental basis. The learned
counsel further submitted that the petitioner had signed and
submitted proposal form after understanding all the exclusions
and warranted conditions. In reply to the submission made by
the learned Senior Counsel for the petitioner that the company
has not produced the proposal form allegedly submitted by the
petitioner, the learned counsel pointed out the provisions of the
manual regarding maintenance and destruction of old records.
He submitted that documents like the proposal forms, cover
notes, endorsement copies, etc. required to be kept for only
three years. He pointed out that the writ petition was filed
much after the said period and therefore the proposal form
signed by the petitioner could not be produced by the company.
The learned counsel further submitted that the writ petition is
not maintainable also for the reason that the petitioner is in fact
raising a monetary claim arising out of contractual obligation for
resolution in this writ petition. Such disputes fall within the
realm of private law remedies. He relied on a judgment of this
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Court in W.P.(C)No.16730/2022 in this regard. The proper
remedy, according to the learned counsel, was to file suit for
specific performance of the insurance contract or to sue the
company for damages. The learned counsel hence submitted
that in any view of the matter this writ petition is not liable to
be entertained by this Court. He further submitted that
absolutely there is no doubt regarding the fact that the
petitioner failed to comply with the warranted condition. The
surveyor's report is credible evidence as held by the Hon'ble
Supreme Court in United India Insurance Co. Ltd. v. M/s
Hyundai Engineering & Construction Co. Ltd. & Ors.
[(2024) 6 SCC 310]. Hence, he submitted that the petitioners
have no right to claim any benefit of jewellers block policy since
they violated the warranted conditions. Learned counsel
concluded by submitting that the writ petition is highly belated,
totally misconceived and devoid of merits.
15. The burglary happened on 22.2.2012. Petitioner
approached this Court in W.P.(C)No.17610/2018, after about 6
years with respect to the burglary policy. However, even then
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the petitioner did not raise any claim with respect to the
jewellery block policy. This writ petition was filed still later in
July 2019. Scanning of the pleadings in this writ petition does
not reveal any explanation for the delay in filing the writ
petition. When the learned counsel for the respondent made
submission regarding the delay involved, the learned Senior
Counsel for the petitioner submitted that the criminal case
registered by Tamil Nadu police is still under investigation and
the petitioner waited for the outcome of the investigation for
sometime and on account of the delay in completing the
investigation, finally decided to approach this court without
waiting for its outcome. However, though the said investigation
was pending, with respect to the burglary policy, the petitioner
did not hesitate to approach this Court though belatedly in
2018. Nothing prevented the petitioner from raising claims with
respect to the jewellers block policy also in the previous writ
petition as the same was also obtained with respect to the same
shop from the same insurance company. Petitioner decided to
approach this Court in the instant writ petition obviously after
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obtaining favourable judgment in the writ petition filed in 2018,
to claim benefits of the jewellers block policy also. This conduct
of the petitioner coupled with the fact pointed out by the
learned counsel for the insurance company that the petitioner
obtained burglary policy in addition to the jewellers block policy
as the petitioner was well aware that the latter policy would not
cover jewellery kept on display at night indicate that the
petitioner was not confident that he would be entitled for the
benefits of the jewellers block policy. Hence, the petitioner's
attempt to obtain the benefits of jewellers block policy by
approaching this Court more than 7 years after the date of
burglary in this writ petition can be considered only as a result
of afterthought. It is well settled that though no time limit has
been stipulated for invoking the jurisdiction under Article 226 of
the Constitution, delay and laches would dis-entitle a litigant
from invoking the extra-ordinary remedies under Article 226.
Especially when there is total lack of explanation in the
pleadings of the writ petition regarding the delay, the Court
need not entertain the writ petition which has been filed after
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long lapse of time. In Mrinmoy Maity's case (supra) cited by
the learned counsel for the petitioner the Hon'ble Supreme
Court held as under:-
"9. Having heard rival contentions raised and on perusal
of the facts obtained in the present case, we are of the
considered view that writ petitioner ought to have been
non-suited or in other words writ petition ought to have
been dismissed on the ground of delay and laches itself.
An applicant who approaches the court belatedly or in
other words sleeps over his rights for a considerable
period of time, wakes up from his deep slumber ought
not to be granted the extraordinary relief by the writ
courts. This Court time and again has held that delay
defeats equity. Delay or laches is one of the factors
which should be borne in mind by the High Court while
exercising discretionary powers under Article 226 of the
Constitution of India. In a given case, the High Court
may refuse to invoke its extraordinary powers if laxity
on the part of the applicant to assert his right has
allowed the cause of action to drift away and attempts
are made subsequently to rekindle the lapsed cause of
action.
10. The discretion to be exercised would be with care
and caution. If the delay which has occasioned in
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approaching the writ court is explained which would
appeal to the conscience of the court, in such
circumstances it cannot be gainsaid by the contesting
party that for all times to come the delay is not to be
condoned. There may be myriad circumstances which
gives rise to the invoking of the extraordinary
jurisdiction and it all depends on facts and
circumstances of each case, same cannot be described
in a straight jacket formula with mathematical precision.
The ultimate discretion to be exercised by the writ court
depends upon the facts that it has to travel or the
terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no
fixed period of limitation is prescribed. However, when
the extraordinary jurisdiction of the writ court is
invoked, it has to be seen as to whether within a
reasonable time same has been invoked and even
submitting of memorials would not revive the dead
cause of action or resurrect the cause of action which
has had a natural death. In such circumstances on the
ground of delay and laches alone, the appeal ought to
be dismissed or the applicant ought to be non-suited. If
it is found that the writ petitioner is guilty of delay and
laches, the High Court ought to dismiss the petition on
that sole ground itself, in as much as the writ courts are
not to indulge in permitting such indolent litigant to take
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advantage of his own wrong. It is true that there cannot
be any waiver of fundamental right but while exercising
discretionary jurisdiction under Article 226, the High
Court will have to necessarily take into consideration the
delay and laches on the part of the applicant in
approaching a writ court. This Court in the case of
Tridip Kumar Dingal and others v. State of W.B.
and others, [(2009) 1 SCC 768] has held to the
following effect:
"56. We are unable to uphold the contention. It is
no doubt true that there can be no waiver of
fundamental right. But while exercising
discretionary jurisdiction under Articles 32, 226,
227 or 136 of the Constitution, this Court takes
into account certain factors and one of such
considerations is delay and laches on the part of
the applicant in approaching a writ court. It is well
settled that power to issue a writ is discretionary.
One of the grounds for refusing reliefs under
Article 32 or 226 of the Constitution is that the
petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of
a writ court, he should come to the Court at the
earliest reasonably possible opportunity.
Inordinate delay in making the motion for a writ
will indeed be a good ground for refusing to
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exercise such discretionary jurisdiction. The
underlying object of this principle is not to
encourage agitation of stale claims and exhume
matters which have already been disposed of or
settled or where the rights of third parties have
accrued in the meantime (vide State of M.P. v.
Bhailal Bhai, [AIR 1964 SC 1006 : (1964) 6 SCR
261], Moon Mills Ltd. v. Industrial Court, [AIR
1967 SC 1450] and Bhoop Singh v. Union of India,
[(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992)
2 SCR 969]). This principle applies even in case of
an infringement of fundamental right (vide
Tilokchand Motichand v. H.B. Munshi, [(1969) 1
SCC 110], Durga Prashad v. Chief Controller of
Imports & Exports, [(1969) 1 SCC 185] and
Rabindranath Bose v. Union of India, [(1970) 1
SCC 84]).
58. There is no upper limit and there is no lower
limit as to when a person can approach a court.
The question is one of discretion and has to be
decided on the basis of facts before the court
depending on and varying from case to case. It
will depend upon what the breach of fundamental
right and the remedy claimed are and when and
how the delay arose."
12. It is apposite to take note of the dicta laid down by
this Court in Karnataka Power Corportion Ltd. and
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another v. K.Thangappan and another, [(2006) 4
SCC 322] whereunder it has been held that the High
Court may refuse to exercise extraordinary jurisdiction if
there is negligence or omissions on the part of the
applicant to assert his right. It has been further held
thereunder:
"6. Delay or laches is one of the factors which is to be
borne in mind by the High Court when they exercise
their discretionary powers under Article 226 of the
Constitution. In an appropriate case the High Court
may refuse to invoke its extraordinary powers if there is
such negligence or omission on the part of the applicant
to assert his right as taken in conjunction with the lapse
of time and other circumstances, causes prejudice to
the opposite party. Even where fundamental right is
involved the matter is still within the discretion of the
Court as pointed out in Durga Prashad v. Chief
Controller of Imports and Exports, [(1969) 1 SCC
185 : AIR 1970 SC 769]. Of course, the discretion has
to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, [(1874) 5 P.C. 221 : 22 WR 492]
(PC at p. 239) was approved by this Court in Moon Mills
Ltd. v. M.R. Meher, [AIR 1967 SC 1450] and
Maharashtra SRTC v. Shri Balwant Regular Motor
Service, [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir
Barnes had stated:
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"Now, the doctrine of laches in courts of equity is not
an arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy either because the
party has, by his conduct done that which might fairly
be regarded as equivalent to a waiver of it, or where
by his conduct and neglect he has though perhaps
not waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place
him if the remedy were afterwards to be asserted, in
either of these cases, lapse of time and delay are
most material. But in every case, if an argument
against relief, which otherwise would be just, is
founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitation, the
validity of that defence must be tried upon principles
substantially equitable. Two circumstances always
important in such cases are, the length of the delay
and the nature of the acts done during the interval
which might affect either party and cause a balance
of justice or injustice in taking the one course or the
other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of
this Court in which this aspect has been dealt with in
relation to Article 32 of the Constitution. It is apparent
that what has been stated as regards that article would
apply, a fortiori, to Article 226. It was observed in
Rabindranath Bose v. Union of India, [(1970) 1 SCC
84 : AIR 1970 SC 470] that no relief can be given to the
petitioner who without any reasonable explanation
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approaches this Court under Article 32 after inordinate
delay. It was stated that though Article 32 is itself a
guaranteed right, it does not follow from this that it was
the intention of the Constitution-makers that this Court
should disregard all principles and grant relief in
petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal,
[(1986) 4 SCC 566 : AIR 1987 SC 251] that the High
Court in exercise of its discretion does not ordinarily
assist the tardy and the indolent or the acquiescent and
the lethargic. If there is inordinate delay on the part of
the petitioner and such delay is not satisfactorily
explained, the High Court may decline to intervene and
grant relief in exercise of its writ jurisdiction. It was
stated that this rule is premised on a number of factors.
The High Court does not ordinarily permit a belated
resort to the extraordinary remedy because it is likely to
cause confusion and public inconvenience and bring, in
its train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may have the
effect of inflicting not only hardship and inconvenience
but also injustice on third parties. It was pointed out
that when writ jurisdiction is invoked, unexplained delay
coupled with the creation of third-party rights in the
meantime is an important factor which also weighs with
the High Court in deciding whether or not to exercise
such jurisdiction."
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13. Reiterating the aspect of delay and laches would
disentitle the discretionary relief being granted, this
Court in the case of Chennai Metropolitan Water
Supply & Sewerage Board and others v. T.T. Murali
Babu, [(2014) 4 SCC 108] has held:
"16. Thus, the doctrine of delay and laches should
not be lightly brushed aside. A writ court is
required to weigh the explanation offered and the
acceptability of the same. The court should bear in
mind that it is exercising an extraordinary and
equitable jurisdiction. As a constitutional court it
has a duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person,
without adequate reason, approaches the court at
his own leisure or pleasure, the court would be
under legal obligation to scrutinise whether the lis
at a belated stage should be entertained or not. Be
it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not be
fatal but in most circumstances inordinate delay
would only invite disaster for the litigant who
knocks at the doors of the court. Delay reflects
inactivity and inaction on the part of a litigant -- a
litigant who has forgotten the basic norms, namely,
"procrastination is the greatest thief of time" and
second, law does not permit one to sleep and rise
like a phoenix. Delay does bring in hazard and
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causes injury to the lis."
16. In State of West Bengal v. Debabrata Tiwari and
Others [(2025) 5 SCC 712], the Apex Court made the following
observations;
"36. Laches or undue delay, the blameworthy conduct of a
person in approaching a Court of Equity in England for
obtaining discretionary relief which disentitled him for grant
of such relief was explained succinctly by Sir Barnes Peacock,
in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874)
LR 5 PC 221] as under : (LR pp. 239-40)
"Now the doctrine of laches in Courts of Equity is not
an arbitrary or a technical doctrine. Where it would
be practically unjust to give a remedy, either because
the party has, by his conduct, done that which might
fairly be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has, though
perhaps not waiving that remedy, yet put the other
party in a situation, in which it would not be
reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay,
that delay of course not amounting to a bar by any
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statute of limitations, the validity of that defence
must be tried upon principles substantially equitable.
Two circumstances, always important in such cases,
are, the length of the delay and the nature of the
acts done during the interval, which might affect
either party and cause a balance of justice or
injustice in taking the one course or the other, so far
as it relates to the remedy."
17. As previously mentioned, pleadings of the petitioner
provide no justification for the delay in approaching this court.
The reason of non-conclusion of the investigation offered by the
learned Senior Counsel cannot be accepted as the petitioner
approached this court in another writ petition with respect to
burglar policy prior to filing of this petition, pursued it and got it
finally decided. It was not explained as to how the non-
conclusion of the investigation affected the petitioners right to
pursue remedies for claiming the benefits of the policy.
18. Apart from the reason of delay, I also find that the
petitioner is agitating a claim arising out of an insurance policy
in this writ petition. In cases of such claims, writ petitions need
not be entertained in normal circumstances as the obligations
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are essentially contractual and do not fall within the realm of
public law. In Joshi Technologies International Inc. v.
Union of India and Ors. [(2015) 7 SCC 728] the Hon'ble
Supreme Court summarized the principles regarding
interference in contractual matters in exercise of the writ
jurisdiction. The Hon'ble Supreme Court held as under:-
"69. The position thus summarised in the aforesaid
principles has to be understood in the context of
discussion that preceded which we have pointed out
above. As per this, no doubt, there is no absolute bar to
the maintainability of the writ petition even in
contractual matters or where there are disputed
questions of fact or even when monetary claim is raised.
At the same time, discretion lies with the High Court
which under certain circumstances, it can refuse to
exercise. It also follows that under the following
circumstances, "normally", the Court would not exercise
such a discretion:
69.1. The Court may not examine the issue unless the
action has some public law character attached to it.
69.2. Whenever a particular mode of settlement of
dispute is provided in the contract, the High Court would
refuse to exercise its discretion under Article 226 of the
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Constitution and relegate the party to the said mode of
settlement, particularly when settlement of disputes is
to be resorted to through the means of arbitration.
69.3. If there are very serious disputed questions of fact
which are of complex nature and require oral evidence
for their determination.
69.4.Money claims per se particularly arising out of
contractual obligations are normally not to be
entertained except in exceptional circumstances.
70. Further, the legal position which emerges from
various judgments of this Court dealing with different
situations/aspects relating to contracts entered into by
the State/public authority with private parties, can be
summarised as under:
70.1. At the stage of entering into a contract, the State
acts purely in its executive capacity and is bound by the
obligations of fairness.
70.2. State in its executive capacity, even in the
contractual field, is under obligation to act fairly and
cannot practise some discriminations.
70.3. Even in cases where question is of choice or
consideration of competing claims before entering into
the field of contract, facts have to be investigated and
found before the question of a violation of Article 14 of
the Constitution could arise. If those facts are disputed
and require assessment of evidence the correctness of
which can only be tested satisfactorily by taking detailed
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evidence, involving examination and cross-examination
of witnesses, the case could not be conveniently or
satisfactorily decided in proceedings under Article 226 of
the Constitution. In such cases the Court can direct the
aggrieved party to resort to alternate remedy of civil
suit, etc.
70.4. Writ jurisdiction of the High Court under Article
226 of the Constitution was not intended to facilitate
avoidance of obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid
contractual obligation. Occurrence of commercial
difficulty, inconvenience or hardship in performance of
the conditions agreed to in the contract can provide no
justification in not complying with the terms of contract
which the parties had accepted with open eyes. It
cannot ever be that a licensee can work out the licence
if he finds it profitable to do so : and he can challenge
the conditions under which he agreed to take the
licence, if he finds it commercially inexpedient to
conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such breach
may sue for specific performance of the contract, if
contract is capable of being specifically performed.
Otherwise, the party may sue for damages.
70.7. Writ can be issued where there is executive action
unsupported by law or even in respect of a corporation
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there is denial of equality before law or equal protection
of law or if it can be shown that action of the public
authorities was without giving any hearing and violation
of principles of natural justice after holding that action
could not have been taken without observing principles
of natural justice.
70.8. If the contract between private party and
the State/instrumentality and/or agency of the
State is under the realm of a private law and there
is no element of public law, the normal course for
the aggrieved party, is to invoke the remedies
provided under ordinary civil law rather than
approaching the High Court under Article 226 of
the Constitution of India and invoking its
extraordinary jurisdiction.
70.9. The distinction between public law and private law
element in the contract with the State is getting blurred.
However, it has not been totally obliterated and where
the matter falls purely in private field of contract, this
Court has maintained the position that writ petition is
not maintainable. The dichotomy between public law
and private law rights and remedies would depend on
the factual matrix of each case and the distinction
between the public law remedies and private law field,
cannot be demarcated with precision. In fact, each case
has to be examined, on its facts whether the contractual
relations between the parties bear insignia of public
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element. Once on the facts of a particular case it is
found that nature of the activity or controversy involves
public law element, then the matter can be examined by
the High Court in writ petitions under Article 226 of the
Constitution of India to see whether action of the State
and/or instrumentality or agency of the State is fair, just
and equitable or that relevant factors are taken into
consideration and irrelevant factors have not gone into
the decision-making process or that the decision is not
arbitrary.
70.10. Mere reasonable or legitimate expectation of a
citizen, in such a situation, may not by itself be a
distinct enforceable right, but failure to consider and
give due weight to it may render the decision arbitrary,
and this is how the requirements of due consideration of
a legitimate expectation forms part of the principle of
non-arbitrariness.
70.11. The scope of judicial review in respect of
disputes falling within the domain of contractual
obligations may be more limited and in doubtful cases
the parties may be relegated to adjudication of their
rights by resort to remedies provided for adjudication of
purely contractual disputes."
[ Emphasis added]
19. Relying on the principles laid down by the Supreme
Court as mentioned above, a learned Single Judge of this Court,
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in W.P.(C).No.16730 of 2022, rejected a writ petition involving
monetary claims arising out of an insurance policy.
20. In the instant case there is a serious factual dispute as
to whether the proposal form was filled by the insured after
noticing the exclusion clauses and whether declaration was
signed. Though the learned Senior Counsel contended that the
first two pages of Ext P2 policy is the proposal, the same was
vehemently denied by the learned counsel for the Insurance
Company. Perusal of the first page of Ext P2 shows that it is
titled as "Schedule". The learned counsel for the insurer
submitted that the writ petition was filed after the normal period
for preserving records including proposal form expired. Hence a
factual dispute about a vital aspect which cannot be ordinarily
decided in a writ petition is also arising.
21. In view of the above discussion, I am of the view that
the writ petition is not liable to be entertained on account of the
unexplained long delay and also for the reason that the claim
raised is purely a monetary claim arising out of a contractual
obligation, having no element of public law involved. Disputed
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facts are also involved in the matter.
In accordance with the above explained perspective, no
discussion on merits of the claim is required. Writ petition is
dismissed. Observations in this judgment shall not be construed
as findings on the merits of the claim.
Sd/-
S.MANU
skj JUDGE
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APPENDIX OF WP(C) 18705/2019
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE STATUS REPORT OF CRIME
NO.333/2012 SUBMITTED BY THE INSPECTOR
OF POLICE, TIRUPUR NORTH POLICE STATION
DATED 03.01.2013 BEFORE THE JUDICIAL
MAGISTRATE COURT, TIRUPUR.
EXHIBIT P2 TRUE COPY OF POLICE NO.100600/
46/11/45/000000321 ISSUED BY THE 1ST
RESPONDENT COMPANY.
EXHIBIT P3 TRUE COPY OF THE SURVEY REPORT
SUBMITTED BY THE SURVEYOR OF THE 1ST
RESPONDENT COMPANY.
EXHIBIT P4 TRUE COPY OF BURGLARY BP POLICE
NO.100600/46/14/04/00000539 ISSUED BY
THE 1ST RESPONDENT COMPANY.
EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 18.12.2018
IN W.P.(C)NO.17610/2018 OF THIS COURT.
