CM No.4557-C of 2007 and -1- RSA No.1565 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.4557-C of 2007 and RSA No.1565 of 2007 Date of Decision: 16.12.2009 The United India Insurance Company Limited and another .... Appellants. Versus East India Transport Agency and another ..... Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.K.Bashamboo, Advocate for the appellants. Mr.Shekhar Chaudhary, Advocate for Mr.Vikas Jain, Advocate for the respondents. RAKESH KUMAR JAIN J. This is an appeal on behalf of plaintiff No.1 (United India Insurance company Ltd.) in a suit for recovery of Rs.3,63,932/- with future interest @ 12% per annum against the judgment and decree of both the Courts below. The appeal has been filed along with an application i.e. CM No.4557-C of 2007 under Section 5 of Limitation Act, 1963 for condonation of delay of 227 days in filing of the appeal. Notice in the application was issued on 13.11.2007. The application was replied and thereafter the case was adjourned. On 20.11.2008, learned counsel for the applicants-appellants prayed for time to file additional affidavit explaining the delay from 29.3.2006 till 17.10.2006 and the case was adjourned on the request of the counsel for the appellants. Ultimately, vide CM No.8567-C of 2009 an affidavit of Raj Kumar, Senior Divisional Manager of United India CM No.4557-C of 2007 and -2- RSA No.1565 of 2007 Insurance Company Limited was filed which was taken on record. On 2.9.2009, counsel for the appellants again prayed for time to file a single consolidated affidavit explaining the delay in filing of the appeal by referring to the officers who were in-charge of the affairs of the company at the relevant time. The case was then adjourned but consolidated affidavit as ordered on 2.9.2009 was never filed. The learned lower Appellate Court passed the judgment and decree on 16.3.2006. According to para 2 of the application for condonation of delay, certified copy of the judgment and decree dated 16.3.2006 was obtained by the appellant on 29.3.2006. It is alleged that after obtaining the legal advice, the Company decided to file the appeal but the certified copy was mixed up with other case and could not be traced till 17.10.2006. Counsel for the appellants prepared the appeal and purchased stamp papers on 23.10.2006 and after doing the needful, handed over the papers to Divisional Officer for signatures and since the Sub Divisional Manager was transferred and there was no authorised person to sign the Court papers, therefore, the file was kept pending. The Senior Divisional Manager joined the office in the third week of December 2006 and wanted to discuss the matter with the counsel but the counsel was not available due to winter vacations as he had gone out of India, therefore, Company could contact him only on 15.1.2007 and thereafter, the appeal was filed on 7.2.2007. This explanation was not found satisfactory by this Court, therefore, vide order dated 2.9.2009 the appellant was asked to file a consolidated affidavit explaining the delay in filing of the appeal referring to the officers who were in-charge of the affairs of the Company at the relevant time but the CM No.4557-C of 2007 and -3- RSA No.1565 of 2007 said affidavit has not been filed despite having many opportunities and the learned counsel for the appellants has rather preferred to argue the application for condonation of delay sans affidavit. After hearing the learned counsel for the appellants, I do not find the explanation given in the application to be worthwhile for the purpose of condoning the delay specially when the appellant has deliberately withheld affidavit whereby the liability of the officers of the company would have been fixed for causing the delay, therefore, I do not find any merit in the present application. Even otherwise, there is no merit in the appeal. The facts in brief are that plaintiff No.2 is the consigner of 142 boxes containing 1662 reals of tissue papers each which were consigned from Barotiwala to Chandigarh and then to Hyderabad through the defendant who is a transporter vide consignment note No.7174353 dated 29.12.92 of which plaintiff No.1 was the insurer with marine policy No.110203/21/1/00042/92 insuring the consignment from all risks while transportation by road. The stock reached to the consignee on 19.1.1993 at Hyderabad which was found in damaged condition, therefore, it was re- booked by the consignee to the consigner from Hyderabad to Barotiwala. The insurer claimed the amount of Insurance from the Company which was paid to the tune of Rs.3,63,180/- as full and final settlement and insurer issued a letter of subrogation and special power of attorney to the Company on the basis of which the present suit has been filed for recovery. The learned Court below has held that plaintiff No.1 has miserably failed to prove on record survey report by examining the persons who had prepared CM No.4557-C of 2007 and -4- RSA No.1565 of 2007 the report and as per document Ex.P3, the consignment was booked at the owner's risk, therefore, in case of any claim having been paid by plaintiff No.1 to plaintiff No.2 the same cannot be recovered by plaintiff No.1 from the defendants. The learned Appellate Court has also observed that as per document Ex.P2, jurisdiction of the Court at Chandigarh is barred because it is mentioned therein that all the claims and disputes are subject to the jurisdiction of the Calcutta High Court. Keeping in view the facts and circumstances much less the fact that there is no reason to condone the delay of 227 days in filing of the appeal, the application under Section 5 of the Limitation Act is hereby dismissed and consequently the appeal is also dismissed. (RAKESH KUMAR JAIN) 16.12.2009 JUDGE Meenu