IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1122 OF 1991 FIRST APPEAL NO.1122 OF 1991 FIRST APPEAL NO.1122 OF 1991 Mrs.Arundhati Jaiprakash Sathe ) Age-34 years, Occ. Business ) R/o. 1187/25, Ghole Road, Pune )..Appellant Versus 1) United India Insurance Co. Ltd ) 2) Shriram Bhikaji Chitale ) 3) Prabhakar Maruti Bhor, deceased) by his legal representatives : ) a. Sanjay Prabhakar Bhor ) b. Sachin Prabhakar Bhor ) c. Maruti Balwant Bhor ) d. Smt.Kondabai Maruti Bhor ) (deleted) ) e. Pramila Prabhakar Bhor ) f. Manjusha Prabhakar Bhor ) g. Suvarna Prabhakar Bhor ) Nos.c and d r/o At post Chas, ) Tal.Ambergaon, Nos.a, b, e to g ) are residing near Shivaji Statue, ) Near Atreya Building, Sundernagari) Behind Ranawade Chawl, Kothrud, ) Pune-411 029. ) 4) State Bank of India )..Respondents W I T H FIRST APPEAL NO.1130 OF 1991 FIRST APPEAL NO.1130 OF 1991 FIRST APPEAL NO.1130 OF 1991 Shri Jaiprakash Anant Sathe ) Age-39 years, Occ. Business ) R/o. 1187/25, Ghole Road, Pune )..Appellant Versus 1) United India Insurance Co. Ltd ) 2) Shriram Bhikaji Chitale ) 3) Prabhakar Maruti Bhor, deceased) by his legal representatives : ) a. Sanjay Prabhakar Bhor ) b. Sachin Prabhakar Bhor ) c. Maruti Balwant Bhor ) d. Smt.Kondabai Maruti Bhor ) (deleted) ) e. Pramila Prabhakar Bhor ) : 2 : f. Manjusha Prabhakar Bhor ) g. Suvarna Prabhakar Bhor ) Nos.c and d r/o At post Chas, ) Tal.Ambergaon, Nos.a, b, e to g ) are residing near Shivaji Statue, ) Near Atreya Building, Sundernagari) Behind Ranawade Chawl, Kothrud, ) Pune-411 029. ) 4) State Bank of India )..Respondents ---- Mr.K.Y.Mandlik Advocate for the appellants in both the appeals. Mr.S.M.Vidyarthi for respondent no.1 in F.A.No.1122/91. Smt.Anita A.Agarwal and Smt.Uma Patel for respondent no.1 in F.A.No.1130/91. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 7.10.2008. Judgment :- Judgment :- Judgment :- 1. First Appeal No.1122 of 1991 has been filed by the original plaintiff Mrs.Arundhati Jaiprakash Sathe against the judgment and order passed by the 3rd Joint Civil Judge, Sr.Division, Pune, on 5th February, 1990 in Special Civil Suit No.970 of 1987. By the impugned judgment and order, the trial Court has dismissed the suit filed by the plaintiff mainly against respondent no.1 i.e. United India Insurance Co.Ltd., Pune, seeking recovery of an amount of Rs.2,80,090.91 being partly an amount in repairation of damage to their machinery, sufferred on account : 3 : of rioting and partly being the claim for interest on the aforesaid amount. 2. First Appeal No.1130 of 1991 has been filed by Jaiprakash Anant Sathe who is the husband of the aforesaid Arundhati. In his appeal he impugns a judgment and decree passed by the 3rd Joint Civil Judge, Senior Division, Pune on 5th February, 1990 in Special Civil Suit No.969 of 1987. The said suit was filed by Jaiprakash Sathe mainly against United India Insurance Co.Ltd., for the recovery of an amount of Rs.92,124.87. Since both these claims for damages were made on the basis of the same incident which occurred on 17.7.1986, though the evidence led in both the matters are different, in my view, both the appeals can be disposed off by this common judgment and order. 3. The brief relevant facts are as follows :- (a) Arundhati alongwith 2 other partners was a partner in a firm known as M/s.Uma Enterprises. Jaiprakash was also a partner of M/s.Fabricare which was situated adjoining to the aforesaid firm M/s.Uma Enterprises. They had taken the premises whereon the two firms were being run, on lease sometimes in the year 1976. The owner of the said premises had filed a suit for eviction against the original lessee and had obtained a decree of possession. : 4 : (b) The said decree was executed on 17.7.1986. It was the case of the original plaintiff that since the decree was being executed through the baillif with the help of police, they had agreed to hand over peaceful and vacant possession, but their workers started demanding all due payments. Jaiprakash tried to convince them that the due payments could not be made in a day and upon hearing this, the workers rioted and caused damage to the machinery. The plaintiffs therefore, contended that since their insurance policy taken out on 19.9.1985 with respondent no.1 was subsisting, respondent no.1 was liable to pay the damages to the plaintiff. It was their further case that inspite of repeated requests, the insurance company did not pay the amount of damages and hence, they were compelled to file the aforesaid two suits for recovery of the amount due with interest. 4. At the stage of the trial in Special Civil Suit No.970 of 1987, the witnessess examined were the plaintiff Arundhati and a Surveyor by name Dilip Deshpande. In Special Civil Suit No.969 of 1987 the plaintiff Jaiprakash examined himself as PW-1. His father Anant Sathe who claimed to be an eye witness to the incident was examined as PW-2. Defendant no.1 also examined one of their Senior Divisional Manager Vitthal Gokhale. : 5 : 5. On perusal of the impugned judgment and orders, it is seen that the trial Court dismissed both the suits basically on the footing that the rioting had not been proved. The Court also concluded that the plaintiff was incompetent to file a suit. After hearing both the sides and after perusing the entire record, I find that there is no substance in these appeals. The trial Court has rightly concluded that the case of rioting was not proved. Mrs.Arundhati in her evidence claimed that she received a telephonic call through which she learnt that the workers were damaging the machineries. She claimed to have gone to the spot and contended that during this period she saw the workers damaging the machineries. The record further indicates that her husband had filed a police complaint. A perusal of the said police complaint dated 17.7.1986 indicates that the only grievance made is that the workers were not helping in the loading the machinery but were obstructing the said loading. Police were only requested for help. 6. The record further indicates that the insurance company was first informed on 4.8.1986. This was done by a written letter at Exhibit-52. On perusal of this letter in paragraph-4 it is seen that completely different reasons have been given for the damages caused to the machinery. It is contended : 6 : that during the process of removal of the machinery from the premises totally unskilled labour was used by Mr.K.D.Velankar (decree holder) and this caused severe damage to the machinery, material, record and belongings. There is no whisper about the damages caused by rioting. In this view of the matter, it seems more probable that this entire theory is a after thought. 7. The trial Court has also held that both the partnership firms were admittedly dissolved on 2.2.1997. The deed of dissolution was never produced and in these circumstances, the Court also held that the suits are not maintainable. In my view, the evidence of the father of Jaiprakash also does not inspire confidence. He claimed to have witnessed the incident. However, he claimed to have seen the workers armed with stick and stones causing damages to the machinery. In his cross-examination, he admitted that in the police complaint, there is no reference to the fact that the workers were armed with stick and stones. Taking an overall view, there is no substance in both these appeals. Hence, both the appeals stand dismissed. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)