Madras High Court
Super Trading Corporation vs The Senior Manager on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.865 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No.865 of 2014
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Super Trading Corporation
Rep by its Sole Proprietor
K. Somarajan
No.42, Post Office Street,
Chennai 600 001. .. Appellant
Versus
1. The Senior Manager,
National Insurance Company Ltd
Mylapore Branch
164, Kutchery Road,
Mylapore,
Chennai 600 004.
2. K.S.Raghavan
3. The Senior Manager,
Allahabad Bank,
George Town Branch,
47, Armenian Street,
Chennai – 600 001. .. Respondents
Appeal Suit is filed under Section 96 of C.P.C against the judgment and decree
of the learned XVIII Additional Judge, City Civil Court, Chennai dated
17.04.2014 in O.S.No.12591 of 2010.
1/42
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A.S.No.865 of 2014
For Appellants : Mr. T.M. Hariharan
For R1 : Mr. S.Arunkumar
For R3 : No appearance
JUDGMENT
This Appeal Suit has been filed against the judgment and decree of the
learned XVIII Additional Judge, City Civil Court, Chennai, dated 17.04.2014
in O.S.No.12591 of 2010.
2. The learned Counsel for the Appellant Thiru. T.M.Hariharan
submitted his arguments. As per his submissions, the Plaintiff in
O.S.No.12591 of 2010 is the Appellant before this Court. The Appellant as
Plaintiff filed the suit in C.S.No.823 of 2003 on the original side of the High
Court. Subsequently, on raising of the pecuniary jurisdiction, the case was
withdrawn and transferred to the file of the City Civil Court.
3. The brief facts of the case are as follows:
3.1. The Plaintiff is the registered partnership firm established in the
year 1987. After several reconstruction, the partnership as on the date of the
filing of the suit, consisting of Managing partner K.Somarajan, Mrs. Indira
Somarajan, wife of Somarajan and Mrs. Sridevi, wife of Sridharan, brother of
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Somarajan and Sujith Somarajan, Son of Somarajan. Defendant-1 is an
Insurance Company. Defendant-2 is the Investigator appointed by Defendant-1
to investigate the burglary claim preferred by the Plaintiff. The Defendant-3 is
the Allahabad Bank, Banking financial Institution represented by its Senior
Manager.
3.2. The Plaintiff's partnership firm is the authorised dealer of M/s.
ASIL Industries Limited. The above said Company is the manufacturer and
supplier of H&T Steel strips and the same have been delivered at the godown
of the Plaintiff's concern by M/s. ASIL Industries Ltd in the form of steel coils
weighing about 100 kg approximately. The Plaintiff is the exclusive dealer of
Tamil Nadu for marketing the imported steel strips in the brand name of
“SCHLOSS” and German make supplied by ASIL Industries Limited which is
higher in price by Rs.18,000/- per tonne. Since the commencement of the
business in the year, 1987, the Plaintiff is having his Bank account with Federal
Bank Limited, Armenian Street, Chennai. The Plaintiff was enjoying over-
draft cash credit facilities with the Federal Bank from the beginning to the
extent of Rs.12,00,000/-. The Federal Bank in turn every year insured the
Plaintiff's stocks and trade with New India Assurance Company,
Nungambakkam Branch, Chennai. The premium paid by the Bank is debited
from the account of Super Trading Corporation, the Plaintiff herein.
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3.3. Even though the Plaintiff requested the Federal Bank to enhance
the over-draft cash credit facility from 12,00,000/- to 20,00,000/- the Bank
refused to do so. On the other hand, the third Defendant's Bank after verifying
the documents produced by the Plaintiff consented for them. The Allahabad
Bank as usual insured the stocks in trade with the Defendant-1 on 05.06.2000
to the extent of Rs.25,00,000/-vide Policy No.501701/200/7540081 in the
name of Allahabad Bank account of Super Trading Corporation. The premium
paid was also debited from the account of the Plaintiff. Because of the above
said circumstances, the Plaintiff was forced to change the Bank account from
Federal Bank to Allahabad Bank. The Plaintiff used to submit statement of
stocks of outstanding value amount in trade every month to Allahabad Bank.
The Plaintiff's premises at No.42, Post Office Street, Chennai, consisting of a
godown in the ground floor. The ground floor is used to keep heavy materials
like H&T steel strips, electrodes, etc., and whenever there is shortage of space
in the ground floor, the Plaintiff used to keep electrodes in the store room in the
first floor. The Plaintiff also used to store electrodes which expired from the
manufacturing date. In the brand coils in the godown of M/s.Sanulaa
Enterprises as there was shortage of space in the Plaintiffs godown. The
Plaintiff also has raised an Invoice No.440, dated 18.07.2000 in this regard in
favour of M/s. Sanulaa Enterprises.
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3.4. On 21.07.2000 at about 8.00 a.m., the Managing Partner,
Somarajan have received a telephonic call from one of the staff of the
Plaintiff's concern Geetha informing him that the wife of the watchman of the
office building who was staying in the second floor had come to her house and
informed her that the Plaintiff's ground floor godown door was opened and
suspected that theft might have taken place. Somarajan directed Geetha to rush
to the office as early as possible and asked Ramalingam to rush to the
Plaintiff's office and verify whether any theft had taken place in the godown. If
so, to take necessary steps to inform the Police, Somarajan had rushed to the
Plaintiff's office at about 9.30.am. At that time, the Police had arrived and
already commenced their enquiry. Somarajan who entered the godown found
that only few coils and some scrap items, the rest of stocks stored in the
godown were removed in its entirety. Somarajan had given complaint to the
Inspector of Police, Esplanade Police Station, immediately after making a
rough calculation of the stocks stored in the ground floor and stated the value
of the material stolen as Rs.8,74,000/-. Because of the shocking state mind
Somarajan was unable to state the correct value of the stolen goods stored in
the godown. The Assistant Commissioner of Police and Joint Commissioner of
Police had also visited the Plaintiff's premises and made enquiry with regard to
burglary of stocks stored in the godown. On 26.07.2000 the burglary claim
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form had been filed with the Defendant-1 on behalf of the Plaintiff and the
value has been stated as Rs.10,70,401.50/- after verifying the details with the
stock Register maintained by the Plaintiff. The Plaintiff purchased the
materials subsequently on 21.07.2000 for the purpose of carrying on the
business of sales. The Inspector of Police - Murugan had taken the office boy
and the cartman to the Ambattur factory and seized 78 coils of H&T steel strips
available in the premises which was purchased after the date of burglary. The
Inspector of Police had transported all the 78 coils, H&T steel strips to the
Police Station and he had also seized 51 coils of imported steel strips same in
the premises of M/s.Sanulaa Enterprises and the same was also transported to
the Police Station. On the same day, the Inspector of Police also seized other
materials from the first floor store room of the Plaintiff's premises. The
Inspector of Police had also taken all the records such as stock Register,
Purchase Bill files, sales invoice files etc.. The seized materials were deposited
with the VII Metropolitan Magistrate Court at George Town.
3.5. The Inspector of Police had proceeded with his Investigation on
the basis that the seized goods were the one which had been alleged to be
stolen from the godown of the Plaintiff for the purpose of making false claim
of insurance. The Plaintiff has been advised to file an affidavit to take back
possession of the materials seized by the Police to avoid deterioration of the
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materials deposited with the Court. As advised by the Counsel, one of the
partners of the Plaintiff concern had signed the affidavit prepared by the
Counsel for the purpose of return of all the materials seized and the same was
ordered. The burglary complaint was transferred to the new Investigating
Officer. The new Officer examined the witness and filed the detailed report to
the VII Metropolitan Magistrate Court at George Town. The Court also after
detailed scrutiny had accepted the investigation of the new Investigator and
passed the final order recorded as “undetectable”. Based on the finding of the
learned VII Metropolitan Magistrate, the Plaintiff approached the Defendant-1
to settle the claim. Defendant-1 informed the Plaintiff that the Defendant-2 has
been appointed as Investigator to investigate the claim of the Plaintiff. The
Defendant-2, who is the Investigator, visited the Plaintiff's premises and
investigated the matter. The Defendant-1 also deputed their Chartered
Accountant to look into the accounts and stocks in detail. After the final order
passed by the Court, the Plaintiff sent several requests to the Defendant-1 to
settle the claim.
3.6. Even after several communications dated 03.12.2002 that within a
couple of weeks, the claim was likely to be referred to the Regional Office for
settlement and also requested the Bank to bear with the Company till then.
Defendant-1 had sent a communication dated 26.05.2003 stating that the claim
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preferred by the Plaintiff had been rejected due to cerain irregularity in the
proceedings of the criminal court in A.F.I.R No.394/2000 and further stated in
that communication that an affidavit was filed by the wife of Somarajan one of
the partners of the Plaintiff’s concern in the criminal court stating that the
seized goods and the stolen goods are one and the same. The Defendant-1 is
duty bound to honour the claim submitted by the Plaintiff. The third Defendant
also charged interest for the entire sum of Rs.20,00,000/- for every quarter and
the Interest to be debited to the Plaintiff’s account. Defendant-1 is liable to pay
Rs.10,70,401.50p to the Plaintiff with subsequent Interest at the rate of 18%
per annum and damages of Rs.1,00,000/-. Because of the attitude of
Defendant-1, Plaintiff has no other option except to approach this Court for
redressal of his grievances. Hence, the Suit. The short cause title and long
cause tile of the plaint has been amended as per order in I.A.No.308/2011 dated
07.12.2011.
4. The written statement filed by the Defendant-1 reads as follows:
4.1. The plaint is bad for misjoinder of parties. The Plaintiff has added
the 2nd Defendant though no relief can be claimed against him. The
Investigator appointed by the Insurance Company is not a necessary party for
the adjudication of the suit. It is true that Plaintiff had availed burglary and
House breaking policy for a period from 05.06.2000 to 04.06.2001. The
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Plaintiff intimated the insurer that an alleged burglary had taken place in their
office on 20.07.2000 which was noticed on the morning of 21.07.2000. They
signed a claim form dated 26.07.2000 for loss of stocks worth about
Rs.10,70,401.50/-. The Plaintiff had stated that a complaint had been lodged
with B-2, Esplanade Police Station. The insurer on such intimation, promptly
appointed a licensed Surveyor to inspect, survey and assess the loss, if any. The
licensed Surveyor filed his interim report on 07.08.2000 to the effect that the
"loss does not appear to be in order”. He doubted the very occurrence of such
a loss. The insurer was put on notice that it may be in order to appoint an
Investigator to go into the genuineness of the occurrence and loss, if any.
Hence, the 2nd Defendant was appointed as the Investigator. The 2nd
Defendant filed his interim report on 30.08.2000 stating that "The B-2.
Esplanade Police Station had written to the insurer in their letter dated
24.08.2000 stating that the reported burglary was not true and that it was a
fraudulent one. The Police Officer had further stated that a claim of the insured
need not be entertained. In the circumstances, the chances of the insured
getting a non-traceable certificate from the Police is remote".
4.2. It was ascertained by the insurer that First Information Report
dated 21.07.2000 lodged by the Plaintiff led to a report from P.Murugan,
Inspector of Police, B-2, Esplanade Police Station dated 24.08.2000 to the
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effect that the claim of burglary was false. It was pointedly recorded that the
Plaintiff had himself dishonestly removed and concealed the stocks for the
purpose of insurance. The Surveyor G.M.Chandrasekaran also filed his final
survey report on 21.12.2000 stating that insurer would not be liable as the
claim was false one. More importantly, the insurer received an official
communication on 19.03.2001 from the office of Deputy Commissioner of
Police (Crime -North) Greater Chennai as stating that “In this connection I am
to inform you that the complaint of burglary preferred by Somarajan on
18.07.2000 has been found false upon the due investigation by the then
Investigating Officer and given disposal accordingly. Further development in
this case as informed in your letter is being enquired into. As such, I request
you not to proceed with the claim of M/s. Super Trading Company until you
hear to that effect in writing from this office. I will get in touch with you
shortly in this regard, and you are requested to get in touch with me in this
connection in future" Till this day, the communication dated 19.03.2001 has
not been taken back from the office of the Deputy Commissioner of Police and
therefore, continues to be in force. In the above said circumstances, the claim
was deemed fit to be inadmissible under the policy as being false.
4.3. It is also claimed by the Plaintiff that on re-investigation the loss
due to burglary was confirmed and the crime is closed undetected vide final
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order dated 21.02.2001 by the learned VII Metropolitan Magistrate, Chennai. It
is in the light of these curious developments, the insurer chose to enlist the
service of 2nd Defendant again and also commissioned the service of Hemaa
Raghavan and Company to assess the loss if any. The 2nd Defendant filed a
report on 28.07.2002 suggesting that the closed Police Investigation had since
been re-opened and not concluded to be genuine and that the occurrence of
burglary was true. The finding and assessment in the two reports are not
admitted by the insurer. Hence, under Section 64 UM of Insurance Act 1938
the insurer has an obligation to appoint a licensed Surveyor in respect of claims
above Rs.20,000/- but they are not bound by the finding in such reports and it
is open to them to decide independently. The insurer found that Mrs.Indira
Somarajan had sworn to an affidavit before the learned VII Metropolitan
Magistrate, Chennai, seeking return of seized property and the learned VII
Metropolitan Magistrate also had ordered return of property by its order dated
22.09.2000, granting interim custody of goods on execution of bond for
Rs.10,00,000/-.
4.4. In the sworn affidavit before the Court, Mrs.Indira Somarajan had
stated that the stolen property had been recovered and interim custody should
be given to her, it is now sought to be portrayed that her statement in the
affidavit was innocuously made and she merely signed without being aware of
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the same. The 2nd Defendant reversed his earlier stand in his subsequent report
dated 28.07.2002 not on merits. The report of the Inspector of Police and the
letter of the Deputy Commissioner of Police which remained undiluted till
date. On a combined reading of various factors, the occurrence of burglary of
such huge stocks without being noticed by any one, impossibility of physical
removal of such magnitude of such weight without large number of men and
vehicles. The claim for damage is totally far fetched and alien to the
contractual relationship between the parties. The amount stated in the plaint
also excessive and inadmissible. There is no valid cause of action for the
Plaintiff to file the suit. This suit is also bad for non joinder of necessary parties
that is the New India Assurance Company who is also the insurer of the
Plaintiff. Hence, the suit deserves to be dismissed with the cost of Defendant-1.
5. Written statement filed by the 3rd Defendant reads as follows:
5.1. The Plaintiff has sought relief only as against the Defendant-1.
This Defendant is not at all a necessary party for the adjudication of the suit.
The Plaintiff approached this Defendant's Bank for grant of Cash Credit facility
to the tune of Rs.20,00,000/- inter alia agreeing to mortgage immovable
property and also hypothecate the stocks in trade of the Plaintiff. Considering
the request made by the Plaintiff, this Defendant sanctioned cash credit facility
of Rs.20,00,000/- in favour of the Plaintiff repayable with the interest as per the
terms of cash credit agreement entered by the Plaintiff with the Bank. The
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Plaintiff had deposited the title deeds relating to the properties as security for
the credit facility apart from the stock in Trade. Hence, this Court may be
pleased to dispose the suit in accordance with law as deemed fit and proper in
the circumstances of the case.
6. The following issues are framed for consideration:
1. Whether the Plaintiff is entitled for the Suit claim as prayed in
the plaint ?
2. Whether the suit is bad for non-joinder of necessary party, The
New India Assurance Company Limited?
3. To what relief the Plaintiff is entitled ?
7. After hearing the arguments of both parties, the learned Judge by
judgment dated 17.04.2014 dismissed the claim of the Plaintiff. Aggrieved by
the dismissal of the suit, the Plaintiff in O.S.No.12591 of 2010 before the
learned XVIII Additional Judge, City Civil Court, Chennai, had preferred this
Appeal raising the following grounds:
7.1. The judgment and decree of the trial Court are contrary to law, the
weight of evidence and the probabilities of the case.
7.2. The trial Court has failed to advert to and consider the pleadings of
the parties and the documents produced and has proceed to dismiss the
suit almost mechanically assuming that contention of the 1st
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Respondent were true.
7.3. The trial Court has failed to frame the necessary and proper issue
for trial and this has resulted in lack of focus on the crucial issues that
arise for determination in the suit.
7.4. The trial Court has erred in dismissing the suit relying only on
Ex.B-3 affidavit and the report of the first Investigation Officer which
has since been superseded.
7.5. The reasoning of the trial Court that P.W-2 has not shown that the
contents of Ex.B-3 were made on mistaken belief is completely
erroneous and contrary to the very records produced in the case.
7.6. In this connection, the trial Court has failed to see that Ex.A-26
Report of the Investigation Officer has clearly revealed that the burgled
goods are different and distinct from the goods seized and produced
before the learned Magistrate by the prior Investigating Officer.
7.7. Above all, the Trial Court has failed to see that concurring with the
findings of the Investigation Officer Ex.A-26 report, the learned VII
Metropolitan Magistrate, Chennai has made Ex.A-28 order dated
21.02.2001 finding that the burgled goods are undetectable.
7.8. The Trial Court has further failed to see that Ex.A-18 order has
become final and binding and has not been challenged by the
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prosecution.
7.9. In the circumstances, the Trial Court ought to have seen that Ex.B-
12 letter of the Deputy Commissioner of Police without taking note of
Ex.A-28 order is of no effect at all and cannot be pressed into service to
defeat the legitimate claim of the Appellant.
7.10. In any event, the Trial Court ought to have seen that P.W-2 has
clearly explained the admission made in Ex.B-3 Affidavit and the
circumstances in which it was made.
7.11. The Trial Court ought to have accepted the evidence of P.W-2 in
the light of Ex A-26 report of the Investigation Officer, Ex.A-28 order
of the learned Magistrate and Ex.A-37 Report of the Assistant
Commissioner of Police which clearly establish that the admission in
Ex.B-3 is erroneous.
7.12. The Trial Court has further failed to see that Ex.B-3 was filed in
order to get return of the goods which were rusting in custody and
would have been rendered a mere scrap, if not properly stored; in the
circumstances, the Trial Court ought to have seen that admission in
Ex.B-3 has been clearly explained and the evidence of PW-2 is fully
fortified by Ex.A-26, Ex.A-28 and Ex.A-37.
7.13. The Trial Court has further failed to perform its duty in not
considering the documents produced by the Appellant which will
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clearly establish that the goods burgled and detailed in Ex.A-15
complaint are different and distinct from the goods that were seized by
the 1st Investigation Officer and produced before the learned
Magistrate's Court.
7.14. The Trial Court ought to have seen that the documents produced
by the Appellant in this regard are clinching and clearly establish the
goods seized are entirely different from the goods that were burgled;
the invoices, stock statements and Registers clearly establish this fact
and the Trial Court has completely misdirected itself in shutting its eyes
to these crucial documents which are vital for deciding the lies between
the parties.
7.15. The Trial Court ought to have further seen that even assuming
without admitting that Ex.B-12 letter which does not even take note of
Ex.A-28 order were tenable, the same cannot be pressed into service to
defeat the legitimate claim of the Appellant when admittedly the Ex A-
26 report and A-28 order have become final and when even the
subsequent Ex.A-37 Report confirms that the goods have been stolen
and are untraceable.
7.16. The Trial Court ought to have rejected the claim of the 1st
Respondent that it is not liable as nothing has transpired since Ex.B-12
letter; in fact, the subsequent investigation also confirms the burglary
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and this is recorded in Ex.A-37 Report.
7.17. The Trial Court ought to have further seen that Ex.B-12 cannot be
used against the Appellant after 13 years especially in the light of the
subsequent Ex.A-37 Report and when Ex.A-28 Order remains
unchallenged.
7.18. Having referred to the citation in 2009 ACJ 2837, the Trial Court
has erred in not following the ratio of the said decision.
7.19. In this connection, the Trial Court has failed to see that it has been
clearly held that Insurance Company cannot go on appointing
Surveyors to get a tailor-made report to their satisfaction and that the
Company has to give valid reason for not accepting the report of the
Surveyor.
7.20. The Trial Court ought to have therefore seen that the first
Respondent has not made out any acceptable case for departing from
Ex.B-13 & Ex.B-14 reports and the reasons assigned in this regard are
flimsy and wholly unacceptable.
7.21. The allegations made against the 2nd Defendant who is the 1st
Defendant's own Surveyor are uncharitable and would only disclose
that the 1st Defendant will not hesitate to stoop down to any level to
avoid payment of legitimate claim under the policy.
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7.22. The Trial Court ought to have seen that Insurance Company
cannot be allowed to evade its liability by making baseless and reckless
allegations against its own Surveyor which allegations remain wholly
un-substantiated.
7.23. The Trial Court ought to have seen that the Insurance Company
cannot evade liability or defeat the claim of the Appellant by attributing
blame on its own Surveyor.
7.24. The Trial Court ought to have further seen that the rejection of the
Ex.B-13 Report of a Qualified Auditor on the ground that the Auditor
has confined the report to examination of books and registers and has
not gone into the genuineness of the occurrence is wholly untenable
and only indicates predetermination of the 1st Respondent to defeat the
claim.
7.25. The Trial Court ought to have seen that the duty of the Auditor is
only to examine the books and to submit his report and the occurrence
cannot be investigated by the Chartered Accountant.
7.26. The Trial Court ought to have therefore seen that the 1st
Respondent has not made out any case at all for rejecting the Ex.B-13
and Ex.B-14 and that the attempt in this regard is puerile and self-
serving.
7.27. The trial Court ought to have seen that Ex.B-13 and Ex.B-14
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constitute substantial evidence against the Insurer and the 1st
Respondent cannot get over the same by resort to uncharitable
allegation.
7.28. The trial Court ought to have seen that K.S.Raghavan is an Agent
or employee of the 1st Respondent and the Appellant has no connection
whatsoever with K.S.Raghavan. This aspect of the matter has been
completely ignored.
7.29. The trial Court ought to have rejected the contention that another
Surveyor subsequent to Ex.B-14 Report was appointed; no particulars
are disclosed and no such report is produced; the claim itself is false.
7.30. The trial Court ought to have seen that it is the duty of the 1st
Respondent, a Public Sector undertaking, to act fairly and to redress the
legitimate grievance; 1st Respondent cannot be allowed to act as an
ordinary litigant and is expected to act as a model litigant.
7.31. The 1st Respondent cannot be allowed to defeat such legitimate
claims contending that it were the sole custodian of public funds; the 1st
Respondent is not rendering an act of charity and having received the
premium and issued the policy, the 1st Respondent is duty bound to
make payment of the legitimate claim.
7.32. In any event, the trial Court ought to have seen that when on
admitted facts two views are possible, the view that is favourable to the
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insured must be adopted and that Insurance Company cannot defeat the
claim by clinging to the other view with the intent of profit
maximization at the cost of innocent claimants.
7.33. The Trial Court ought to have therefore seen that in the light of
Ex.A-26, Ex.A-28, Ex.A-39, Ex.B-13 and Ex.B-14 and its own letters
promising that the claim is being processed for payment, the 1st
Respondent cannot be allowed to reject the claim on the ground that it
is false.
7.34. In any event, the Trial Court ought to have seen that the
investigation under Criminal Law and Proceedings thereunder cannot
be relied on to defeat the claim in the Civil Suit.
7.35. The Trial Court ought to have seen that deliberately, the 1st
Respondent has not examined the Officials who have sworn to the
pleadings and who are conversant with the facts. D.W-1 has feigned
ignorance of all relevant facts and the Trial Court ought to have seen
that the 1st Respondent cannot be allowed to escape through the horns
of the dilemma by fielding D.W-1; a duty is cast on the 1st Respondent
to field a witness conversant with the claim and the evidence of D.W-1
is inadmissible and unacceptable.
7.36. The Trial Court has failed to see that the admissions of D.W-1 that
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she has not compared the details of the goods seized with the goods
referred to in the F.I.R. would completely destroy the defence to the
Suit.
7.37. The Trial Court has failed to see that the 1st Respondent is
blowing hot and cold; in a Written Statement the 1st Respondent pleads
that there is no burglary but seeks to rely on Ex.B-3 to contend that the
burgled goods have been recovered; at the Trial, the 1st Respondent was
required to elect but unfortunately the Trial Court has allowed the 1st
Respondent to pursue mutually destructive defenses.
7.38. The Trial Court ought to have accepted the documents of the
Appellant and the clear and categoric evidence of P.W-1 and P.W-2.
7.39. The Trial Court ought to have rejected the self-serving documents
of the 1st Respondent and the unacceptable testimony of D.W-1.
7.40. The other reasonings and conclusions of the Trial Court against
the Appellant are erroneous and unsustainable.
7.41. In any view of the matter, the Trial Court ought to have decreed
the suit as prayed for.
8. Arguments of the learned Counsel for the Appellant :
8.1. The goods seized by the Inspector of Police were not the goods
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that were burgled as mistakenly concluded by P.Murugan, Inspector of Police.
In fact, a bare perusal of Ex.A-14 stock statement prior to burglary, Ex.A-17
stock statement after the burglary, Ex.A-16 list of materials stolen and Ex.A-21
to Ex.A-23 purchase bills would reveal this. The assumption of P.Murugan,
Inspector of Police that the burglary had not taken place and goods were sold
elsewhere by the Plaintiff is thus clearly erroneous.
8.2. The 1st Defendant Insurance Company appointed
G.M.Chandrasekaran, Surveyor carried away by the findings of the Inspector
of Police, he submitted Ex.B-10 report dated 21.12.2000 that Insurer is not
liable as the claim is false.
8.3. As the valuable steel coils and electrodes were rusting in the custody
of the learned VII Metropolitan Magistrate, P.W-2 Mrs.Indira Somarajan filed
an application before the said Court stating that the Plaintiff is the owner of the
stolen materials, that the materials must be kept in a cool place and stored
properly, that the materials now in Police custody are exposed to rain and
sunshine damaging the properties and prayed that the goods be returned. The
learned Magistrate passed orders dated 22.09.2000 finding that the properties
could be the Company's stock and further detention would result in damage
and ordered that the same be entrusted to the interim custody of the petitioner
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on executing a bond for Rs.10,00,000/- with one surety for a like sum.
8.4. The Inspector of Police Mr.P.Murugan was transferred and
investigation was continued by the subsequent Police Officer. As stated above,
investigation was continued by the succeeding Police Officer. Ex.A-26 dated
15.02.2001 is the Report submitted to the learned VII Metropolitan Magistrate
after detailed analysis, finding that the goods have been stolen and it is not
traceable. Ex.A-27 dated 15.02.2000 is the Non Traceable Certificate issued.
8.5. Based on the same is the final order of the learned VII Metropolitan
Magistrate, George Town dated 21.02.2001. Without nothing at these, the
Deputy Commissioner of Police addressed the 1st Defendant under Ex.B-12
dated 19.03.2001 overlooking of the clinching materials and stating that the
complaint is false. In fact, under Ex.A-37 dated 26.03.2002, the Assistant
Commissioner of Police had addressed the Deputy Commissioner of Police in
detail, confirming the burglary and reporting that the goods are not traceable.
8.6. In the light of the changed circumstances and the clear finding of the
Police Authorities, the 1st Defendant engaged the services of Maruti Services to
investigate the burglary. The 1st Defendant also engaged the services of Hemaa
Raghavan to assess the loss. Under Ex.B-14 Report dated 28.07.2002, Maruti
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Services appointed by the 1st Defendant after detailed analysis reported that
the burglary is true and factual. Hemaa Raghavan also submitted Ex.B-13
Survey Report dated 17.10.2002 assessing the value of the goods stolen.
Inspite of all these, the 1st Defendant under Ex.B-15 dated 22.01.2003
addressed the 3rd Defendant Bank repudiating the claim.
8.7. The Trial Court has dismissed the Suit mainly on the following
grounds:-
(i) Ex.A-25 Affidavit filed by P.W-2 (Indira Somarajan, a then partner of
the Plaintiff) will be binding for the following reasons:-
a. In the Affidavit, she has admitted that the seized goods are the stolen goods.
b. She has contended that Ex.A-25 Affidavit was prepared by the then Police
Officer and Advocate and she had no knowledge. She is is not an illiterate.
However, she has not taken any action against the Police Officer or the
Advocate.
8.8. In this connection, the Trial Court has failed to consider the
following vital aspects:-
a. An admission can always be explained.
b. The valuable Iron and steel goods of the Plaintiff was seized by the
Police and deposited with the Magistrate Court.
c. The goods not properly stored were deteriorating and rusting.
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d. The goods had to be taken returned of immediately to avoid loss.
e. It is, in such circumstances, that Ex.A-25 Petition and Affidavit was
filed by P.W-2 to get return of the goods.
f. In fact, even in the Order dated 22.09.2000, the learned Magistrate had
specifically accepted the plea that any further detention would result in damage
to the case properties.
g. Thus, the main object of filing Ex.A-25 was to retrieve the iron and
steel goods that were rusting. In fact, in her Affidavit before the Magistrate
Court, P.W-2 has stated that she has valid documents to prove her claim and
that the properties must be returned to prevent exposure to rain and sun-shine
which will damage the properties.
h. After full and complete investigation by the Police, the burglary was
found to be true. Ex.A-26 dated 15.02.2001 is the report of the Inspector of
Police. Ex.A-27 dated 15.02.2001 is the non-traceable certificate issued by the
Police. Ex.A-28 dated 21.02.2001 is the final order of the learned Magistrate
accepting the report.
i. The 1st Defendant wants to take advantage of one sentence in Ex.A-25
Affidavit. In fact, the very reports of the Surveyors appointed by the 1st
Defendant after Ex.A-25 Petition and Orders thereon (22.09.2000) clearly
establish that the burglary is true and that the goods stolen are not the goods
seized by the then Inspector (Ex.B-14 Survey Report dated 28.07.2002 and Ex.
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B-13 Survey Report dated 17.10.2002).
(j) In fact Ex.A-37 Report of the Assistant Commissioner of Police dated
26.03.2002 also finds that the burglary is true.
(k) P.W-2 has also deposed that her admission is erroneous and was
made for the above purposes.
9. Overlooking all the above vital documents which clearly explain the
admission and without considering the same, the Trial Court concludes that the
admission in Ex.A-25 Affidavit is binding and not explained. This is clearly
erroneous and proceeds on a total non-application of mind to the clinching
evidence on record. The Trial Court holds against the Plaintiff on the
reasoning that the 1st Defendant has the right to appoint a second Surveyor
under Section 64 UM(2) of the Insurance Act.
10. This reasoning is wholly unavailing for the following:-
a. The right of the Insurer to appoint a second Surveyor is not in dispute.
b. In the instant case, the 1st Surveyor Chandarasekaran issued Ex.B-10
Final Report dated 21.12.2000 finding that the claim is bogus. This is based on
the finding of the then Inspector Mr. P. Murugan.
c. After the transfer of the then Inspector, investigation continued. After
full and complete investigation by the Police, the burglary was found to be
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true. Ex.A-26 dated 15.02.2001 is the report of the Inspector of Police. Ex.A-
27 dated 15.02.2001 is the non-traceable certificate issued by the Police. Ex.A-
28 dated 21.02.2001 is the final order of the learned Magistrate accepting the
report.
d. It is in the changed circumstances that the 1st Defendant appointed the
subsequent Surveyors who submitted Ex.B-13 and Ex.B-14 reports finding that
the burglary is true. Having doubted Ex.B-10 report and having appointed the
subsequent two Surveyors, the 1st Defendant cannot unilaterally reject the
subsequent reports and cling on to the earlier report.
e. It is well settled that the Insurance Company cannot go on appointing
Surveyors to get a tailor-made report to suit its satisfaction.
The Trial Court finds that nothing has happened after Ex.B-12 letter of
the Deputy Commissioner of Police dated 19.03.2001.
a. This reasoning is contrary to the clinching evidence on record.
b. The Trial Court has failed to see the subsequent Ex.A-37 Report dated
26.03.2002 submitted by the Assistant Commissioner of Police.
C. The Trial Court has also ignored the non-traceable certificate Ex.A-27 and
the order of the learned Magistrate Ex.A-28.
d. In fact, it is after Ex.B-12 letter of the Deputy Commissioner of Police that
the 1st Defendant appointed two other Surveyors and both of them have found
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that the burglary is true (Ex.B-14 and Ex.B-13)
Aggrieved, the Plaintiff has filed the Appeal.
11. The learned Counsel for the Appellant relied on the following
reported decisions:
(i) in the case of Nagubai Ammal & Others vs. B.Shama Rao and
Others reported in 1956 SCC Online SC 14, particularly in Paragraph 16, it is
held as follows:
“16. An admission is not conclusive as to the truth of the matters
stated therein. It is only a piece of evidence, the weight to be attached to
which must depend on the circumstances under which it is made. It can be
shown to be erroneous or untrue, so long a the person to whom it was
made has not acted upon it to his detriment, when it might become
conclusive by way of estoppel.”
(ii) in the case of Udham Singh vs. Ram Singh and another reported in
(2007) 15 Supreme Court Cases 529, in which the relevant portion is extracted
as under;
“B. Evidence Act, 1872 – S.18 – Admission – Held, can always be explained-
Person making the admission should be confronted with his statement and
given an opportunity to explain the same-What weight should be given to an
admission would depend upon whether it is clear, unambiguous, relevant and
proved conclusively – Practice and Procedure – Admission-Practice and
Procedure-Admission.
9. The above averments made in the plaint, as indicated earlier has been
taken as admission of the Plaintiff, however, this question needs to be looked
into. First of all, we find that the averment made in the previous plaint does
not lead to a conclusion that the Defendants were admitted as tenants though
no doubt the word “theka” has been used. But the expression theka can be
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used in many ways. e.g it may be “theka” for labour. It required to be
explained or elaborated. We also find that the earlier suit was dismissed in
default.. No written statement was filed, nor were issued framed. Hence,
obviously no trial took place. No doubt admission is the best evidence
against the person who is said to have made it, but it can always be
explained/ On whose previous statement is to be treated as an admission of
it is sought to be used, he has to be confronted with such a statement. We
find that though the document, namely, the plaint in the earlier suit, has been
brought on record but no request seems to have been made for summoning
the Plaintiff. Learned Counsel for the appellant has placed reliance on the
decision of this Court in Sita Ram Bhau Patil vs. Ramachandra Nago Patil.
Out attention has been draw to the observations made in paragraph 17 of
the Report to the effect that the admission has to be clear, unambiguous and
proved conclusively. It is a question which needs to be considered as to what
to find out as to whether it is clear, unambiguous and a relevant piece of
evidence and further it is proved in accordance with the provisions of the
Evidence Act. It would be appropriate that an opportunity is given to the
person under cross-examination to tender his explanation and clear the
point on the question of admission. In our view, the High Court was again
wrong in attaching much weight to the averments made in the earlier plaint
and coming to the conclusion that the Defendants were admitted to be the
tenants by the Plaintiff on the land in question.”
(iii) in the case of Texco Marketing Private Limited vs. Tata AIG
General Insurance Company Limited and Others reported in (2023) a
Supreme Court Cases 428, in which it is held as follows:
“10. Adhesion contracts are otherwise called standard form contracts.
Contracts of insurance are one such category of contracts. These contracts
are prepared by the insurer having a standard format upon which a
consumer is made to sign. He has very little option or choice to negotiate
the terms of the contract, except to sign on the dotted lines. The insurer who,
being the dominant party dictates its own terms, leaving it upon the
consumer, either to take it or leave it. Such contracts are obviously one-
sided, grossly in favour of the insurer due to the weak bargaining power of
the consumer.
11. The concept of freedom of contract loses some significance in a
contract of insurance. Such contracts demand a very high degree of
prudence, good faith, disclosure and notice on the part of the insurer, being
different facets of the doctrine of fairness. Though a contract of insurance is
a voluntary act on the part of the consumer, the obvious intendment is to
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cover any contingency that might happen in future. A premium is paid
obviously for that purpose, as there is a legitimate expectation of
reimbursement when an act of God happens. Therefore, an insurer is
expected to keep that objective in mind, and that too from the point of view of
the consumer, to cover the risk, as against a plausible repudiation.”
(iv) in the case of Sri Venkateswara Syndicate vs. Oriental Insurance
Company Limited and another reported in (2009) 8 Supreme Court Cases 507,
in which it is held as follows:
“16. Sub-section (2) of Section 64-UM mandates that no claim in
respect of a loss which has occurred in India and requiring to be paid in
India equal to or exceeding twenty thousand rupees in value on any policy of
insurance be admitted for payment, unless the insurer obtains a report on
the loss that has occurred from a person who holds a license issued under
sub-section (1) of Section 64-UM of the Act as a surveyor or loss assessor.
The proviso to sub-section (2), however, retains the right of the insurer to
settle a claim for an amount different from that assessed by the surveyor.
This proviso impliedly permits an insurer to obtain a second or further
report where considered appropriate or expedient in the circumstances of a
case, based upon which the claim could be settled for a different amount
than as assessed earlier.
32. There is no disputing the fact that the surveyor/surveyors are
appointed by the Insurance Company under the provisions of the Insurance
Act and their reports are to be given due importance and one should have
sufficient grounds not to agree with the assessment made by them. We also
add, that, under this Section the Insurance Company cannot go on
appointing surveyors one after another so as to get a tailor-made report to
the satisfaction of the officer concerned of the insurance Company; if for
any reason, the report of the surveyors is not acceptable, the insurer has to
give valid reason for not accepting the report.
33. Scheme of Section 64-UM, particularly of sub-sections (2), (3)
and (4) would show that the insurer cannot appoint a second surveyor just
as a acceptable to the insurer may be for the reason if there are inherent
defects, if it is found to be artitrary, excessive, exaggerated etc, it must
specify cogent reasons, without which it is not free to appoint the second
surveyor or surveyors till it gets a report which would satisfy its interst.
Alternatively, it an be stated that there must be sufficient ground to disagree
with the findings of surveyor/surveyors. There is no prohibition in the
Insurance Act for appointment of second surveyor by the insurance
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Company, but while doing so, the insurance Company has to give
satisfactory reasons for not accepting the report of the first surveyor and the
need to appoint second surveyor.
37. The option to accept or not to accept the report is with the insurer.
However, if the rejection of the report is arbitrary and based on no
acceptable reasons, the Courts or other forums can definitely step in and
correct the eror committed by the insurer while repudiating the claim of the
insured. We hasten to add, if the reports are prepared in good faith, with due
application of mind and in the absence of any error or ill motive, the
insurance Company is not expected to reject the report of the surveyors.”
Therefore, the learned Counsel for the Appellant (Plaintiff before the
learned XVIII Additional Judge, City Civil Court, Chennai) seeks to set aside
the judgment of dismissal in O.S.No.12591 of 2010, dated 17.04.2010 and to
decree the suit as prayed for.
12. The learned Counsel for the first Respondent by way of reply to
the argument of the learned Counsel for the Appellant submitted that the duty
of the Police Officer is to find out the truth. Accordingly, the Inspector of
Police found out that there was no theft in this case. It is bereft of the fact that
the affidavit filed by wife of the Complainant seeking return of the stolen
materials. The Plaintiff now cannot be permitted to approbate or reprobate in
the light of the statement made by his wife before the learned Metropolitan
Magistrate. Also the learned Counsel for the first Respondent invited the
attention of this Court to the cross examination of the P.W-2. The Plaintiff
relied on the report filed by the Surveyor Hemaa Raghavan and Maruti
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Services. The Plaintiff had not proved his case. There is admission by P.W-2
before the learned Metropolitan Magistrate based on which the learned XVIII
Additional Judge, had dismissed the claim of the Plaintiff. This Appeal has no
merit and is to be dismissed.
Point for determination:
Whether the judgment of the learned XVIII Additional Judge,
City Civil Court dismissing the suit in O.S.No.12591 of 2010,
dated 17.04.2014 is erroneous warranting interference by this
Court?
13. Heard Thiru.T.M.Hariharan, learned Counsel for the Appellant and
Thiru.S.Arun Kumar, learned Counsel for the first Respondent. Perused the
judgment of the learned XVIII Additional Judge, City Civil Court, Chennai, in
O.S.No.12591 of 2010, dated 17.04.2014. Perused the records in
O.S.No.12591 of 2010 on the file of the learned XVIII Additional Judge, City
Civil Court, Chennai.
14. Ex.B-3 is the affidavit filed by the wife of the Plaintiff, typed by
their Counsel, based on the instructions of the Investigation Officer. Usually in
Magistrate Courts, for return of properties, the parties/Complainant go by
advise of the Police Officers. The extract of Ex.B-3 is as follows:
“I state that I am owner of the stolen material properties and the
same was stolen away from our premises and the complaint was lodged with
the respondent on 21.07.2000 and case u/s. 457 & 380 I.P.C was registered
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in B.2 in Crime No.1414/2000.
I state that I am the owner of the property and has valid document to
prove my claim. I further state that the properties are tempered steel and
must be kept in proper place and must be maintained daily with oil.
I further state that the property welding electric rods must be kept in
cool place and to be stored properly.
I further state that the properties are now kept in police custody and
exposed to rain and shine which may lead to damage to the properties.
I further state that the properties are recovered and deposited in
B.No.732/2000.
I further state that I am ready to keep the property in as is where is
condition till disposal of the case. I further state that I am ready to produce
the properties as and when required by this Hon'ble Court.
I further state that I am ready to furnish solvent sureties if the
properties are returned to me.
I pray that in the above circumstances this Hon'ble Court may be
pleased to order for the return of the schedule mentioned properties to me
and render justice”
Therefore, the evidence of the Plaintiff before the trial Court that the
wife of the Plaintiff Mrs.Indira Somarajan filed petition in M.P.No.3543 of
2000 in A.F.I.R.No.394 of 2000 in B-2 Police Station in Crime No.1418 of
2000 claiming return of the property with the wordings is found to be based on
the information furnished to the Counsel before the Magistrate Court from the
Police Officials. The fact of the case is different. Instead of tracing out the
missing property, the initial investigation conducted by the Investigation
Officer Murugan seized materials from godown of the Plaintiff from his factory
premises at Ambattur and from the godown of his friend, Mr.Menon of Sanulaa
Enterprises and produced it before the Court as though it was seized item. If
the property was not stolen there was no necessity for the said Murugan,
Inspector of Police seizing the materials from godown maintained by the
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Plaintiff either at Ambattur or at his friend M/s.Menon (Sanulaa Enterprises)
and he had produced the materials claiming that they have recovered stating
that case is a false case. Based on which the Assistant Commissioner of Police
had sent a report that the claim is false claim to the Deputy Commissioner of
Police. The Deputy Commissioner of Police had given a report to the Insurance
Company that the claim is a false claim and the claim shall not be settled.
15. The report of the Surveyor, M/s.Hemaa Raghavan and Co.,
appointed by the Insurance Company clearly mentions as there is loss, the
report of the Surveyor is extracted as below:
"We then perused their audited financial statements during the
years ended 31.03.2000 and 31.03.2001 and found that Insured and
disclosed a Turnover of Rs.9.42 crores during the year ended
31.03.2001 with Net loss of Rs.3.27 lakhs on account of Theft of stocks
worth Rs.10,70,401.50/- (as shown in the trading, profit and loss
account for the year ended 31.03.2001).
Thus from the above mentioned records, we find that Insured
had been doing good business during the past several years prior to
the loss and this business is a profitable business at the time of loss.
All their records are well maintained duly supported with purchase
bills and sales invoices and hence one could safely place reliance on
their records.
Assessment of Loss
Value of the loss arrived at earlier R.10,77,972.00
Hence, loss is assessed at Rs.10,77,972.00 only”.
16. Subsequently another surveyor was appointed by the Insurance
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Company namely Maruti Services Ltd. The conclusion of the Investigation
Report reported by the Maruti Services are as follows:
“Based on the findings of the investigations and the discussions thereon, the
reported burglary is true and factual.
We have not come across with any materials contrary to the claim of the
insured.
The Police have closed the case. Hon'ble Magistrate Court recorded the
burglary as “undetectable” and the jurisdictional B2 police station have
issued the non-traceable certificate.”
17. The submission of the learned Counsel for the Appellant (Plaintiff
in O.S.No.12591 of 2010) placing reliance on the reported ruling in 1956 SCC
OnLine SC 14, (Nagubai Ammal and others vs. B.Shama Rao and others)
and (2007) 15 SCC 529 (Udham Singh vs. Ram Singh and another regarding
admission in earlier proceedings is applicable to the facts of the case regarding
affidavit filed by wife of Plaintiff Mrs.Indira Somarajan Ex.B-3 seeking return
of property from the Court of the learned Metropolitan Magistrate, George
Town, Chennai. Those who practice before the Criminal Courts are aware of
the procedures adopted in seeking return of property. Those Counsels
recommended by the Investigation Officer alone can be engaged. Otherwise
they see to it that the Petitioner (Owner of property) does not get a favourable
order before the Court at the trial stage. They vehemently object to return of
the property. Therefore, litigants are at the mercy of the Investigating Officers
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and the Counsel they recommend. Under those circumstances, strict
interpretation of the words in the affidavit cannot be treated as affidavit of
Mrs.Indira Somarajan accepting that the stolen articles were retrieved by the
then Inspector of Police. The wordings in the affidavit are drafted by the
Counsel who appeared for Mrs.Indira Somarajan as Petitioner. For him, the
return of property is the important task. He has to act as per the wish of the
Investigating Officer. This is the truth based on experience at trial Courts in
Criminal Courts. Therefore, the claim of admission of Mrs.Indira Somarajan
based on which Defendant-1 Insurance Company refused the claim of Plaintiff
is found unacceptable particularly in the light of the Surveyor report, Auditor
report of M/s.Hemaa Raghavan and Company under Ex.B-13 and the report of
Maruti Services under Ex.B-14.
18. When investigation was carried out, the Surveyor report of the
Insurance Company supports the claim of the Plaintiff. The claim of the
Plaintiff having been denied based on the Police report is found unacceptable
for the following facts. The earliest Investigation Officer seized the articles
from the godown of Mr.Menon of Sanulaa Enterprises and the godown in the
factory and produced the materials in the Court. If it was found to be false,
there is no necessity for him to seize the materials as he had seized the missing
articles. It is the clear case of the Plaintiff that he maintains these stocks in all
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his places viz., in the Godown in Post Office Street, in the godown belonging
to Mr. Menon, in another premises in the godown of factory at Ambattur.
Therefore, the initial Investigation Officer had found short cut method to
sabotage the investigation as the claim itself to be a false claim. The
subsequent Investigation Officer Yakoolam had detailed report under Ex.B-11
based on which the learned VII Metropolitan Magistrate had recorded stating
'undetectable' which is reflected in the Surveyor reports of Maruti Services.
The conduct of the Insurance Company not believing the Surveyors appointed
by them who are competent to conduct such survey and find out the truth is
found unacceptable in the light of the reported decision relied by the learned
Counsel for the Appellant in the case of Sri Venkateswara Syndicate vs.
Oriental Insurance Company Limited reported in (2009) 8 Supreme Court
Cases 507.
19. The conduct of the earlier Investigation Officer - Murugan seizing
the materials from the godown belonging to the Plaintiff as though there is no
missing of materials and engaging a Counsel for the Plaintiff for return of the
property with the words found in the affidavit that they need the property as it
will be subjected to vagaries of nature. It is found acceptable and fair. The
person is bothered only about the return of the property and not the wordings in
or of the consequence of the words which may result in future litigations.
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Therefore, the Plaintiff as party cannot be blamed for such an affidavit. The
Affidavit filed before the learned VII Metropolitan Magistrate, seeking return
of the property in M.P. in A.F.I.R is filed for return of the properties seized
from the other premises. Instead of tracing out the missing articles, the
subsequent Investigation Officer Yakoolam had conducted detailed probe and
filed a report as undetectable. There are two conflicting Police reports. The
learned Metropolitan Magistrate had closed the FIR based on the report of the
subsequent Investigation Officer Yakoolam as undetectable. Therefore, the
submission of the learned Counsel for the Appellant (Plaintiff before the
learned XVIII Additional Judge) is found acceptable in the light of the reported
decision in (2009) 8 Supreme Court Cases 507 [Sri Venkateswara Syndicate
-vs- Oriental Insurance Company Limited].
20. The Police Officer had seized articles without verifying the stocks
with the registers maintained by the Plaintiff whereas the surveyors who are
trained in their work in carrying out the survey work had verified the Registers
and stocks and arrived at a correct conclusion. Two surveyors reports are
available before the Defendant-1/Insurance Company which had been rejected
by the Insurance Company based on the Police report, is found unacceptable.
The report filed by the Police before the Metropolitan Magistrate Court that it
is undetectable was ignored. If the report of the earlier Investigation Officer
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had been true, he need not seize the articles from the premises of the Plaintiff.
It is an exercise in futility by Murugan, the earlier Inspector of Police. The
Assistant Commissioner sent the report to the Deputy Commissioner of Police,
the Deputy Commissioner had sent the report to the Insurance Company that
the claim itself is false. If it is false, the Insurance Company ought to have
proceeded against the Plaintiff for false claim, but they had not done so. The
surveyor appointed by the Insurance Company carried out their survey based
on their experience in the field they examined the stocks maintained by the
Plaintiff and the materials as well as Registers and had arrived at a conclusion.
The detailed report had been filed which had been rejected by the Defendant-
1/Insurance Company which is found unfair in the light of short cut method
adopted by the earlier Inspector of Police as though the claim is false claim.
The subsequent Investigation Officer had conducted detailed probe and filed
the report before the learned Metropolitan Magistrate. The learned
Metropolitan Magistrate had exercised his judicial mind and recorded as
undetectable and closed the F.I.R.
21. Therefore, the reported decision cited by the learned Counsel for
the Appellant is found acceptable in the facts of this case. The reasoning given
by the learned XVIII Additional Judge, City Civil Court refusing to grant the
relief on the ground of the objections raised by the Defendant in the written
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statement and based on the affidavit by the learned Counsel for the wife of the
Plaintiff/Mrs.Indira Somarajan seeking return of property is found that she had
misdirected herself in accepting the contention of the Respondent/Insurance
Company before the learned XVIII Additional Judge, City Civil Court. The
contents of the affidavit of the wife of the Plaintiff before the learned VII
Metropolitan Magistrate cannot at all be treated as bona fide truth. As the
Counsel has the responsibility to prove the affidavit, the party does not have
any responsibility. The party merely gives instructions, while the wording of
the Affidavit is that of the Counsel.
22. It is the clear case of the Plaintiff that the property that was seized
from their godown was produced before the learned Metropolitan Magistrate,
thereby the wife of the Plaintiff was forced to seek return of the property by
engaging a Counsel. On advise of the Investigation Officer, to seek return of
the property, this method was adopted as though, the claim of the Plaintiff is
fictitious and the Surveyors were favoring the Plaintiff. In the light of the
reported decision in (2009) 8 Supreme Court Cases 507 [Sri Venkateswara
Syndicate -vs- Oriental Insurance Company Limited] and in the light of the
facts available before the learned XVIII Additional Judge, City Civil Court, the
argument of the learned Counsel for the Respondent before this Court placing
reliance on the affidavit of the wife before the learned Metropolitan Magistrate
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is rejected.
In the light of the above discussion, the reasoning of the learned XVIII
Additional Judge, City Civil Court, Chennai in paragraphs 16 to 18 of the
judgment, is found erroneous. The point for determination is answered in
favour of the Appellant/Plaintiff and against the Respondent/Defendant.
The judgment of the learned XVIII Additional Judge, City Civil Court,
dismissing the suit in O.S.No.12591 of 2010, dated 17.04.2014 is found
erroneous warranting interference by this Court. The suit claim is decreed as
prayed for with cost.
In the result, the Appeal Suit is allowed. The judgment and decree of
the learned XVIII Additional Judge, City Civil Court, Chennai, dated
17.04.2014 in O.S.No.12591 of 2010 is set aside. The suit in O.S.No.12591 of
2010 is decreed with cost throughout.
24.06.2025
Shl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm )
SATHI KUMAR SUKUMARA KURUP, J.
shl
To:
1. The XVIII Additional Judge,
City Civil Court, Chennai.
2. The Section Officer,
V.R. Section,
High Court Madras.
Judgment made in
24.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/08/2025 05:53:11 pm )
