1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1246 OF 2009 IN SUIT NO. 332 OF 1983 Jamnadas & Sons .. Plaintiff V/s United India Insurance Company Limited .. Defendant Mr. Shailesh Shah i/b Kanga & Co. for the plaintiff. Mr. S.P. Kanuga with Ms. Dwivedi i/b Mr. Prakash N. Sadrarangai for the defendant, in support. CORAM : D.G. KARNIK, J. DATE : 20th APRIL 2010 P.C. : 1. Heard. 2. By this chamber summons, the defendant prays for an amendment of addition of para 10(a) in the written statement. The amendment is strongly opposed by the learned counsel for the plaintiff. 3. In order to consider whether the amendment should be allowed, it is necessary to set out a few facts. 2 Under a fire insurance policy, the defendant-insurance company had agreed to indemnify the plaintiff for any loss arising out of a fire. The plaintiff suffered a loss in a fire on 29th January 1981. The plaintiff made a claim which was repudiated by the defendant. There is some dispute between the parties as to the date of repudiation. According to the plaintiff, the claim was repudiated on 18th February 1982 while according to the defendant it was repudiated on 20th April 1981. The plaintiff filed a suit for recovery on the basis of an insurance policy on 16th February 1983. The defendant contested the suit and filed its written statement, but did not raise plea of limitation nor raised a plea that the claim had been extinguished as it was not made within a period specified in the insurance policy. 4. By the proposed amendment, the defendant seeks to add para 10(a) in the written statement which reads thus: “10(a). It is submitted that the Insurance Policy stipulates that the claim denied by the Insurer and not made subject matter of the suit within 12 calendar months and shall be deemed to have been 3 abandoned and will become irrecoverable. It is submitted that in the present case the fire took place on 29.1.181 and the claim is rejected/repudiated on 20.4.1981 and the suit is filed in 1983.” 5. In Himachal Pradesh State Forest Company Limited v. United India Insurance Company Limited, (2009) 2 SCC 252, the Supreme Court has considered the effect of a clause in an insurance policy which prescribes that a suit under the policy would be required to be filed within a specified period which is shorter than the period of limitation prescribed under the Limitation Act. While interpreting the clause, the Supreme Court held that curtailment of the period of limitation is not permissible in view of section 28 of the Limitation Act. However, a clause in an insurance policy extinguishing the right to file a claim, if the claim is not made within a period specified in the insurance policy, is valid. Relying on a similar clause in the insurance policy in question, the defendant now wants to amend the written statement to contend that the plaintiff’s suit is not maintainable as its claim is extinguished by reason of the plaintiff not filing the suit within one year of the repudiation of the claim. 4 6. Per contra, Mr. Shah appearing for the plaintiff invited my attention to the observations in para 3 of a decision of the Supreme Court in Muni Lal v. Oriental Fire & General Insurance Co. Ltd., (1996) 1 SCC 90. The observations in para 3 of the said decision suggest that the suit can be filed within a period of limitation even if it was beyond the period specified in the insurance policy. However, at this stage, I am not required to decide whether the suit is barred by limitation and/or barred by reason of any clause contained in the insurance policy. The question is whether such a plea can be allowed to be taken in the written statement by means of an amendment. 7. In my view, the amendment if allowed, would cause great prejudice to the plaintiff. The suit has been filed in the year 1983. Application for amendment is made after 26 years, i.e. in the year 2009. It is true that mere delay in making an application for amendment by itself is not a ground for rejecting the amendment. However, if the amendment is so delayed as to be likely to cause prejudice to the other side which cannot be compensated by money, the amendment should be disallowed. By allowing an amendment, a party cannot be allowed to set up a claim or defence which is 5 barred by limitation. In A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 2000 SC 614, the Supreme Court has observed: “The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neale (1887) 19 QBD 394: 56 LJ QB 621.” 8. In the present case, in my view, the defence which is sought to be added by the proposed amendment is not merely an elaboration of an existing defence or existing facts. It is a new defence altogether. It is a defence which states that the right of the plaintiff to file the suit has been extinguished by reason of the claim not having been made within the period specified in the insurance policy. There is a dispute between the parties as to the date of repudiation of the claim. While a suit filed within one year of the repudiation of the claim is maintainable, the one filed after one year is not. The date of repudiation is disputed and involves disputed questions of fact. The defence of repudiation of the claim and the claim being extinguished by reason of it not being made within one 6 year of the date of repudiation ought to have been taken in the original written statement. It cannot be allowed to be taken after 26 years when perhaps the evidence regarding the date of repudiation may have been lost and is not preserved by the plaintiff. For these reasons, the amendment cannot be allowed at this stage. The chamber summons is accordingly dismissed. (D.G. KARNIK, J.)