Delhi District Court
Klj Plasticizers Limited vs Oriental Insurance Co Ltd on 30 July, 2025
IN THE COURT OF Sh. RAJESH KUMAR GOEL
District Judge (Commercial Court) -02,
Central, Tis Hazari
DLCT010063762023
CS (COMM.) No. 806/2023
CNR No. DLCT010063762023
K.L.J Plasticizers Limited
through its Director
At: 8A, Shivaji Marg,
Moti Nagar,
New Delhi, Delhi 110 015 ......Plaintiff
Versus
Oriental Insurance Co. Ltd
Through its Divisional Manager
A-25/27, Asaf Ali Road,
New Delhi - 110 002 ......Defendant
Date of filing of suit : 15.05.2023
Date of Argument : 23.07.2025
Date of Judgment : 30.07.2025
JUDGMENT
Prologue
1. There are thirteen connected cases pending
before this Court wherein principally the parties are
the same. In all the aforesaid cases, the main dispute
RAJESH by
Digitally signed
RAJESH
between the parties is whether loss of quantity(s) in
KUMAR GOEL
KUMAR Date:
2025.07.30
GOEL 17:07:50
+0530M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 1 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
question is/are covered under the Insurance policy(s)
or not ? Further, in most of the cases, the evidence
led by the parties, arguments and contentions are
absolutely identical and similar. Rather in a few cases,
even the cross examination of the witnesses appears to
be photocopies. Further, reference to the provisions of
law and judicial authorities is also the same, therefore,
this judgment in a way, would be reproduction of the
same judgment in all the thirteen cases after making
few cosmetic changes regarding the insurance cover
notes, insurance policies, details of consignment and
surveyor reports etc.
2. Here it is pertinent to mention that in the present
case the evidence of both the parties has been recorded
by the Ld. Court Commissioner appointed by the Ld.
Predecessor of this Court. From the records of these
cases, it is evident that even those documents have
been given exhibit mark which are either dim or
absolutely dark and not legible. It was the duty of the
Ld. Court Commissioner to ask the party concerned to
provide the legible copies. During the Final
arguments, Ld. Counsel for the plaintiff was asked to
provide the legible copies of such documents, so that
the same may be considered. This court is not happy
with the way Ld. Court Commissioner has recorded
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 2 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
the evidence. Be that as it may, this Court tried its
best to consider the documents as relied upon by the
parties for adjudicating the dispute effectively between
them.
3. Vide this judgment, I shall dispose of the present
suit for recovery of Rs 60,75,678/- (Rs Sixty Lakhs
Seventy Five Thousand Six Hundred and Seventy
Eight only) filed by the plaintiff company against the
defendant company alleging that the defendant
company has wrongfully rejected the insurance claims
of the plaintiff company.
Factual Matrix
4. The brief facts of the case, as made out from the
plaint are that the plaintiff company is stated to be a
company registered under the companies Act, 1956,
and is engaged in manufacturing of plasticizers and
allied items and also in import/export of various types
of chemicals/petrochemicals; as a matter of business
prudence, the plaintiff company would insure all its
consignments to be imported against the various
transit risk under ‘All Risk Insurance Policy’.
5. It is the case of the plaintiff company that in
order to protect its Chemicals/petrochemicals to be
imported by the plaintiff company against any kind of
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 3 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
loss or damages during transit, plaintiff company had
obtained insurance covers from the defendant
company, who is stated to be a leading insurance
company of the country in public sector and also a
Body incorporated and registered under the
Companies Act,1956; defendant company issued cover
notes in respect off the consignments by providing
covers for all kind of transit risks from Anywhere in
the world to Anywhere in India via any Indian Port on
shore tank to shore tank basis.
6. The details of the said cover notes and insurance
policies issued by the defendant company are as under:
Cover Note No. Policy No.
318836 272200/212013/714
319878 272200/21/2013/1150
319843 272200/21/2013/947
315808 272200/21/2013/451
308882 272200/21/2012/793
318837 272200/21/2013/716
312125 272200/21/2013/227
7. It is stated that the aforesaid cover notes and
insurance policies were issued by the defendant
company in respect of the following consignments:
Invoice No. Dated Quantity Ship Name Delivery
Port
3002369296 21.10.12 999.865 STOLT MUMBAI
MT VANGUARD
3005000015 04.02.13 1000.06 ORIENTAL MUMBAI
MT PROTEA
3002396347 17.12.12 999.970 ORIENTAL MUMBAI
MT NADESHIKO
30023458 29.08.12 898.151 ORIENTAL MUMBAIM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 4 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
MT ROSE
300195434 02.09.11 499.888 STOLT KANDLA
MT SAPPHIRE
3002369292 21.10.12 749.888 STOLT MUMBAI
MT VANGUARD
92024019 28.06.12 600.674 FAIR CHEM KANDLA
MT EAGLE
8. It is the further case of the plaintiff company
that the plaintiff company received a short quantity of
the consignments and has suffered losses. According
to the plaintiff company, the unloading of the
consignments were done under the supervision of the
Insurance Surveyors; defendant company after
obtaining the report of first surveyor, had deputed
second surveyor for the same losses and had obtained
another report; the surveyors in their reports confirmed
the losses due to short quantities received by the
plaintiff company. The details of the Surveyors reports
are as under:
Surveyor Dated 2nd Short Claim Claim Short
Report Surveyor Quantity Intimatio Bill quantity
Ref. No. report Ref. n Letter
No. to Ins.
Co.
SGS 29.11.12 S.K CHAK- 15.613 27.11.12 4.03.13 15.613
INDIA- SKC/HO/S MT MT
IN/MUM/ UR/8079/12
OGC/201 -13
2/1220
SGS 18.03.13 SKC/ND/ 11.556 04.05.13 04.06.13 11.556
INDIA- SUR/ MT MT
IN/MUM/ 8282/12-14
OG/C/201
3/00303
SGSINDI 30.01.13 SK Chak- 9.334 04.03.13 04.03.13 9.334
A-IN/ SKC/ND/S MT MT
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 5 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
MUM/ UR/8078/12
OGC/ -13
2013/0006
0
SGS 10.10.12 SK Chak- 9.075 04.03.13 04.03.12 9.075
INDIA- SKC/ND/S MT MT
IN/MUM/ UR/7977/12
OGC/201 -13
2/1054
JB Boda- 17.10.11 NA 4709MT 10.01.12 10.01.12 4.709M
KDL/031 T
39/11/AA
SGS 29.11.12 SKC/ND/ 8.281 05.03.13 05.03.13 5.281
INDIA- SUR/ MT MT
IN/MUM/ 8080/12
OGC/201
2/1219
JB Boda- 23.07.12 SK Chak- 4.910 31.10.12 31.10.12 4.910
KDL/020 SKC/ND/S MT MT
26/12/AA UR/7719/12
-13
9. The plaintiff company is said to have lodged its
claims for shortage of the said material to the Ship’s
agents also vide their letters and then to the defendant
company in respect of the aforesaid losses.
10. It is stated that the defendant company did not
settle the claims of the plaintiff company despite the
reminders having been sent by the plaintiff company
and instead rejected the claims of the plaintiff
company on the ground that under the insurance
policies, the defendant company has no liability as the
same being beyond the scope of insurance policies
taken by the plaintiff company.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 6 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
11. According to the plaintiff company, the plaintiff
company had taken the insurance policies ” All Risk
Policy” covering all kind of losses without any
exception, therefore, the shortage of material would
come within the scope of insurance policies and the
defendant company is under statutory obligation to
indemnify the plaintiff company to the extent of losses
which have been suffered by the plaintiff company.
12. Another set of facts, as emanate from the plaint,
is that after rejection of the claims by the defendant
company, plaintiff company had approached District
Consumer Dispute Redressal Forum, Central, Delhi (
hereinafter referred to as “District Forum”); the
claims of the plaintiff company were returned by the
District Forum as it was observed that it lacked
pecuniary jurisdiction; plaintiff company then
approached the National and State Commission
seeking redressal and consequently the complaints
were returned to the District Forum by the State
Commission; the entire process of trial was repeated at
the District Forum; District Forum observed that the
claims/complaints filed by the plaintiff company is
not maintainable as it was the business to business
transactions and is not covered under the Consumer
Protection Act 1986; District Forum is said to have
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 7 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
been apprised of by the plaintiff company that
pursuant to the judgment of National Commission, the
claims were maintainable but despite that the
complaints of the plaintiff company were returned.
13. It is also stated that the claims/complaints of the
plaintiff company were never dealt with by the District
Forum on merits, therefore, the plaintiff company is
entitled for the benefit under section 14 of the
Limitation Act for which a separate application has
been filed and the case of the plaintiff company fall
within the prescribed period of limitation and is
maintainable.
14. It is stated that since the claims of the plaintiff
company were rejected wrongly by the defendant
company, therefore the defendant company is liable to
pay the interest @ 12% p.a from the date of
repudiation i.e. 20.03.2014 till 30.04.2023 to the
extent of Rs 31,74,398/-. According to the plaintiff
company a total amount of Rs 60,75,678/- (Rs
29,01,280/- as Principal + Rs 31,74,398/- as Interest)
is due and outstanding against the defendant company.
15. In compliance of the provision of section 12A of
the Commercial Courts Act, 2015, as amended to date,
the plaintiff company filed a pre-litigation mediation
application before the Delhi Legal Service Authority,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 8 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Central District, Tis Hazari Courts, Delhi, (in short
“DLSA”) against the defendant company; the DLSA
has released a non-starter report dated 11.04.2023.
16. Summons of the suit were issued to the
defendant company. The defendant company made the
appearance and has filed the written statement.
17. In the written statement, the defendant company
has taken certain preliminary objections to the effect
that this court does not have territorial or pecuniary
jurisdiction; the present suit is liable to be dismissed as
the plaintiff company has clubbed separate claims
arising out of separate policies having different
surveyors reports and different assessment of losses;
the suit of the plaintiff company is barred by limitation
as the losses were reported by the plaintiff company
and came to be rejected by the defendant company on
20.03.2014, whereas the present suit was filed in the
year 2023; the present suit is bad for non-joinder of
necessary and proper party and is liable to be rejected
as shipping agent should have been made a party etc.
18. On the merits, the defendant company has not
denied that the plaintiff company had taken the
insurance policies in question but the stand of the
defendant company is that the claims of the plaintiff
company are not payable as the alleged losses of
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 9 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
quantities reported by the plaintiff company neither
comes within the scope of coverage under the
insurance policies nor payable under the terms and
conditions of the Marine Cargo Single Voyage (Sea)
Policy-Institute Cargo Clauses (A). According to the
defendant company, there was no evidence of any
insured marine peril activated when the cargo was
pumped from shore tank to ship tank at the time of
loading and the ship tank to the shore tank at the time
of discharge; defendant company has alleged that
shortage was not due to any insured peril and hence
the defendant company has no liability under the
insurance policies, therefore the claims of the plaintiff
company were rejected.
19. It is the further stand of the defendant company
that the Marine Cargo Policy makes it crystal clear
that company insures against loss or damage or
expenses subject to clauses, endorsements, conditions
and warranties mentioned in the schedule and attached
thereto which included Institute Cargo Clause-A. By
referring to clause 4.2 of the Institute Cargo Clause A,
it is stated that in no case shall this insurance cover
for ordinary leakage, ordinary losses, weight or
volume and ordinary wear and tear of the subject
matter insured.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 10 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
20. The defendant company has also referred to the
reports of the surveyors and it was stated that the cause
of shortage is attributed to the transfer of goods from
shore tank to the ship’s tank at the port at the time of
loading and discharge. It is also stated that the alleged
shortage, as reported by the plaintiff company, is a
normal phenomenon in transit of chemicals by ship
and the actual shortage would be found to be an
ordinary leakage or ordinary loss in weight or volume,
which is as per the nature of the subject matter
insured. Hence the present suit of the plaintiff
company is liable to be rejected.
21. The defendant company has filed an affidavit of
admission and denial of the documents along with the
written statement.
22. Thereafter, the plaintiff company filed the
rejoinder to the written statement of the defendant
company denying the allegations made by the
defendant company and reiterated the facts as
mentioned in the plaint. Along with the rejoinder , the
plaintiff company has also filed the statement of
admission and denial of documents.
23. After completion of pleadings, vide order dated
18.10.2023, following issues were framed by the Ld.
Predecessor of this Court:-
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 11 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
1. Whether this court has no territorial Jurisdiction as
well as Pecuniary Jurisdiction to try the present suit, as
alleged by defendant in the written statement ( Para 1-
Preliminary Objections)? (OPD)
2. Whether the present suit is not maintainable being
barred by Limitation, as alleged by the defendant in the
written statement ( Para 3-Preliminary Objections) ?
(OPD)
3. Whether the suit is bad for non-joinder of necessary
parties, as alleged by the defendant in the written
statement ( Para 4- Preliminary Objections)? (OPD)
4. Whether the present suit is not maintainable the
plaintiff having clubbed together separate claims arising
out of the separate policies having different survey
reports, different assessment of loss, as alleged by the
defendants in the written statement ( Para 2- Preliminary
Objections)? (OPD)
5 Whether the plaintiff is entitled to recovery of the
principal amount, as asked for in plaint? (OPP)
6. In case if issue no. 5 is decided in affirmative, whether
the plaintiff is entitled for any interest, as asked for in
the plaint? (OPP).
7. Relief
24. Vide order dated 28.11.2023, the Schedule of
Second Case Management hearing was fixed by the
Ld. Predecessor of this court and Ld. Court
Commissioner was appointed to record the evidence of
both the parties.
25. The Ld. Court Commissioner has already
submitted his report to this court.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 12 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
26. In support of its case, the plaintiff company has
examined two witnesses i.e. PW1 Ashok Kumar
Maharshi, an officer in the plaintiff company and PW2
Satish Kumar, ASO from District Forum. No other
witness was examined by the plaintiff company and
the plaintiff evidence was closed.
27. The defendant company has examined one Smt
Renuka Chaudhary, Manager, as DW1, who has filed
her evidence by way of affidavit and Sh.S.K
Chakraborty, surveyor as DW2. No other witness was
examined by the defendant company and the
defendant’s evidence was closed.
28. PW1 Ashok Kumar Maharshi has deposed on
the lines of the averments made in the plaint in his
evidence filed by way of affidavit Ex.PW1/A. He also
relied upon the documents i.e Copy of board
resolution ExPW1/1, copy of Memorandum and
Articles of Association of plaintiff company,
ExPW1/2 (colly), Copy of Final Order dated
24.03.2017 of the Consumer Complaint filed by
plaintiff Ex PW1/3, Copy of Status Report and order
dated 05.04.2019 of the Consumer Appeal filed by
plaintiff before State Commission Delhi Ex PW1/4,
Copy of Order dated 09.02.2022 of the Consumer
District Commission Ex PW1/5, Copy of Complaint
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 13 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
with supporting affidavit in Policy No.
272200/21/2013/714 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi Ex PW1/6, Copy of
Board Resolution dated 27.08.2015 Filed By Plaintiff
Co. before Consumer Forum, Central, Delhi Ex
PW1/7, Copy of Insurance Cover note no. 318836 Ex
PW1/8, Copy of Insurance Policy
272200/21/2013/714 Ex PW1/9, Copy of Invoice No.
3002369296 Dated 21.10.2012 Ex PW1/10, Copy of
Bill of Lading No. B/L NO. SVANG044GIP135A to
D, Dated 21.10.2012 Ex PW1/11, Copy of warehouse
bill of entry and Survey Report dated 21.10.2012 Ex
PW1/12, Copy of email dated 05.02.2013 sent by
plaintiff to surveyor & defendant Ex PW1/13, Copy
of Letter dated 27.11.2012 sent by plaintiff to
defendant Ex PW1/14 , SGS Survey report dated
30.11.2012 and S.K. Chakraborty Surveyor report
dated 20.02.2013 Ex PW1/15, Copy of letter dated
04.03.2013 sent by plaintiff to J.M. Baxi Shipping
Agent Ex PW1/16 , Copy of Letter dated 04.03.2013
along with claim bill sent by plaintiff to defendant Ex
PW1/17, Copy of Letter dt 30.03.2013 sent by
defendant to plaintiff Ex PW1/18, Copy of letter dated
09.07.2013 sent by plaintiff to defendant Ex PW1/19,
Copy of repudiation letter dt. 20.03.2014 received by
the plaintiff from the defendant Ex PW1/20, Copy of
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 14 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Letter dt 28.03.2014, 09.04.2014, 28.07.2014 sent by
plaintiff to defendant Ex PW1/21, Copy of Written
Statement filed by defendant before consumer forum
Ex PW1/22, Copy of Order dated 09.02.2022 of the
Consumer District Commission Ex PW1/23, Copy of
Complaint with supporting affidavit in Policy No.
272200/21/2013/1150 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi Ex PW1/24, Copy of
Board Resolution dated 27.08.2015 Filed By Plaintiff
Co. before Consumer Forum, Central, Delhi Ex
PW1/25, Copy of Insurance Cover note no. 319878 Ex
PW1/26, Copy of Insurance Policy
272200/21/2013/1150 Ex PW1/27, Copy of Invoice
No. 3005000015 Dated 04.02.2013 Ex PW1/28, Copy
of Bill of Lading No. B/L NO. OP/EV/O/INA/01 to
04, Dated 04.02.2013 Ex PW1/29, Copy of warehouse
bill of entry dated 04.02.2013 Ex PW1/30, Copy of
email dated 18.03.2013 sent by plaintiff to surveyor &
defendant Ex PW1/31, Copy of Letter dated 18.03.213
sent by plaintiff to defendant Ex PW1/32, SGS Survey
report dated 18.03.2013 and S.K. Chakraborty
Surveyor report dated 21.05.2013Ex PW1/33, Copy
of letter dated 03.06.2013 sent by plaintiff to Allied
Shipping Agent Ex PW1/34, Copy of Letter dated
03.06.2013 along with claim bill sent by plaintiff to
defendant Ex PW1/35, Copy of repudiation letter dt.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 15 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
20.03.2014 received by the plaintiff from the
defendant Ex PW1/36, Copy of Letter dt 28.03.2014,
09.04.2014, 28.07.2014 sent by plaintiff to defendant
Ex PW1/37, Copy of Written Statement filed by
defendant before consumer forum Ex PW1/38, Copy
of Order dated 09.02.2022 of the Consumer District
Commission Ex PW1/39, Copy of Complaint with
supporting affidavit in Policy No.
272200/21/2013/947 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi, Ex PW1/40, Copy
of Board Resolution dated 27.08.2015 Filed By
Plaintiff Co. before Consumer Forum, Central, Delhi,
Ex PW1/41, Copy of Insurance Cover note no. 319843
dated 30.11.2012 Ex PW1/42, Copy of Insurance
Policy 272200/21/2013/947, Ex PW1/43, Copy of
Invoice No. 3002396347 Dated 17.12.2022 Ex
PW1/44, Copy of Bill of Lading No. B/L NO.
ON/INA/01 to 04, Dated 17.12.2012 Ex PW1/45,
Copy of warehouse bill of entry dated 17.12.2012 Ex
PW1/46, Copy of letter dated 31.01.2013 sent by
plaintiff to defendant Ex PW1/47, SGS Survey report
dated 31.01.2013 and S.K. Chakraborty Surveyor
report dated 20.02.2013 Ex PW1/48, Copy of letter
dated 04.03.2013 sent by plaintiff to Allied Shipping
Agent Ex PW1/49, Copy of Letter dated 04.03.2013
along with claim bill sent by plaintiff to defendant Ex
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 16 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
PW1/49, Copy of Letter dated 31.03.2013 sent by
defendant to plaintiff Ex PW1/50, Copy of repudiation
letter dt. 20.03.2014 received by the plaintiff from the
defendant Ex PW1/51, Copy of Letter dt 28.03.2014,
09.04.2014, 28.07.2014 sent by plaintiff to defendant
Ex PW1/52, Copy of Written Statement filed by
defendant before consumer forum Ex PW1/53, Copy
of Order dated 09.02.2022 of the Consumer District
Commission Ex PW1/54, Copy of Complaint with
supporting affidavit in Policy No.
272200/21/2013/451 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi Ex PW1/55, Copy of
Board Resolution dated 27.08.2015 Filed By Plaintiff
Co. before Consumer Forum, Central, Delhi Ex
PW1/56, Copy of Insurance Cover note no. 315808
dated 20.07.2012 Ex PW1/57, Copy of Insurance
Policy 272200/21/2013/451 Ex PW1/58, Copy of
Invoice No. 3002345873 Dated 29.08.2012 Ex
PW1/59, Copy of Bill of Lading No. B/L NO.
OR/EYO/INA/01 to 04, Dated 29.08.2012 Ex
PW1/60, Copy of warehouse bill of entry dated
29.08.2012Ex PW1/61, SGS Survey report dated
10.10.2012 and S.K. Chakraborty Surveyor report
dated 04.12.2012 Ex PW1/62, Copy of letter dated
27.02.2013 sent by plaintiff to Allied Shipping Agent
Ex PW1/63, Copy of Letter dated 04.03.2013 along
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 17 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
with claim bill sent by plaintiff to defendant Ex
PW1/64 ,Copy of Letter dated 18.03.2013 sent by
defendant to plaintiff Ex PW1/65, Copy of Letter
dated 09.07.2013 sent by plaintiff to defendant Ex
PW1/66, Copy of repudiation letter dt. 20.03.2014
received by the plaintiff from the defendant Ex
PW1/67, Copy of Letter dt 28.03.2014, 09.04.2014,
28.07.2014 sent by plaintiff to defendant Ex PW1/68,
Copy of Written Statement filed by defendant before
consumer forum Ex PW1/69 , Copy of Order dated
09.02.2022 of the Consumer District Commission Ex
PW1/70, Copy of Complaint with supporting affidavit
in Policy No. 272200/21/2012/793 Filed By Plaintiff
Co. before Consumer Forum, Central, Delhi Ex
PW1/71, Copy of Board Resolution dated 27.08.2015
Filed By Plaintiff Co. before Consumer Forum,
Central, Delhi Ex PW1/72, Copy of Insurance Cover
note no. 308882 dated 29.08.2011 Ex PW1/73, Copy
of Insurance Policy 272200/21/2012/793 Ex PW1/74,
Copy of Invoice No. 3002195434 Dated 02.09.2011
Ex PW1/75, Copy of Bill of Lading No. B/L NO.
SAPPH090GIP530A & B, Dated 04.09.2011 Ex
PW1/76, Copy of warehouse bill of entry dated
04.09.2011 Ex PW1/77, Copy of J.B. Boda Survey
report dated 17.10.2011 Ex PW1/78, Copy of letter
dated 09.01.2012 sent by plaintiff to J.M. Baxi
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 18 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Shipping Agent Ex PW1/79, Copy of Letter dated
10.01.2012 along with claim bill sent by plaintiff to
defendant Ex PW1/80, Copy of Letter dated
28.08.2012 sent by plaintiff to defendant Ex PW1/81,
Copy of repudiation letter dt. 20.03.2014 received by
the plaintiff from the defendant Ex PW1/82, Copy of
Letter dt 28.03.2014, 09.04.2014, 28.07.2014 sent by
plaintiff to defendant Ex PW1/83, Copy of Written
Statement filed by defendant before consumer forum
Ex PW1/84, Copy of Order dated 09.02.2022 of the
Consumer District Commission Ex PW1/85, Copy of
Complaint with supporting affidavit in Policy No.
272200/21/2013/716 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi Ex PW1/86, Copy of
Board Resolution dated 27.08.2015 Filed By Plaintiff
Co. before Consumer Forum, Central, Delhi Ex
PW1/87, Copy of Insurance Cover note no. 318837
dated 28.09.2012 Ex PW1/88, Copy of Insurance
Policy 272200/21/2013/716 Ex PW1/89, Copy of
Invoice No. 3002369292 Dated 21.10.2012 Ex
PW1/90, Copy of Bill of Lading No. B/L NO.
SVANG044GIP145A to C, Dated 21.10.2012 Ex
PW1/91, Copy of warehouse bill of entry dated
21.10.2012 Ex PW1/92, Copy of Letter dated
27.11.2012 sent by plaintiff to defendant Ex PW1/93,
SGS Survey report dated 30.11.2012 & S.K.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 19 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Chakraborty report dated 20.02.2013 Ex PW1/94,
Copy of letter dated 05.03.2013 sent by plaintiff to
J.M. Baxi Shipping Agent Ex PW1/95, Copy of Letter
dated 05.03.2013 along with claim bill sent by
plaintiff to defendant Ex PW1/96, Copy of repudiation
letter dt. 20.03.2014 received by the plaintiff from the
defendant Ex PW1/97, Copy of Letter dt 28.03.2014,
09.04.2014, 28.07.2014 sent by plaintiff to defendant
Ex PW1/98, Copy of Written Statement filed by
defendant before consumer forum Ex PW1/99, Copy
of Order dated 09.02.2022 of the Consumer District
Commission Ex PW1/100,Copy of Complaint with
supporting affidavit in Policy No.
272200/21/2013/227 Filed By Plaintiff Co. before
Consumer Forum, Central, Delhi Ex PW1/101, Copy
of Board Resolution dated 27.08.2015 Filed By
Plaintiff Co. before Consumer Forum, Central, Delhi
Ex PW1/102, Copy of Insurance Cover note no.
312125 dated 24.05.2012 Ex PW1/103, Copy of
Insurance Policy 272200/21/2013/227 Ex PW1/104,
Copy of Invoice No. 92024019 Dated 28.06.2012, Ex
PW1/105, Copy of Bill of Lading No. B/L NO. 337-1
to 3, Dated 28.06.2012 Ex PW1/106, Copy of
warehouse bill of entry dated 28.06.2012 Ex
PW1/107, Copy of email conversations dated
16.07.2012 between plaintiff to defendant and letter
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 20 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
sent by plaintiff to defendant Ex PW1/108, J. B. Boda
Survey report dated 23.07.2012 & S.K. Chalraborty
report dated 10.09.2012 Ex PW1/109, Copy of letter
dated 30.10.2012 sent by plaintiff to J.M. Baxi
Shipping Agent Ex PW1/110, Copy of Letter dated
31.10.2012 along with claim bill sent by plaintiff to
defendant Ex PW1/111, Copy of email dated
04.12.2012 and letter dated 31.03.2013 sent by
defendant to plaintiff Ex PW1/112, Copy of Letter
dated 09.07.2013 sent by plaintiff to defendant Ex
PW1/113, Copy of repudiation letter dt. 20.03.2014
received by the plaintiff from the defendant Ex
PW1/114, Copy of Letter dt 28.03.2014, 09.04.2014,
28.07.2014 sent by plaintiff to defendant Ex PW1/115,
Copy of Written Statement filed by defendant before
consumer forum Ex PW1/116.
29. PW2 Satish Kumar is a summoned witness
from District Forum, Kashmere Gate, who produced
the original diary register of 10.09.2015 to 13.05.2016
having reference of CC No.97/2016, 95/2016,
90/2016, 96/2016, 92/2016, 94/2016, 93/2016 filed on
04.03.2016 ExPW2/1.
30. PW2 Satish Kumar was not cross examined by
the Ld. Counsel for the defendant company despite
opportunity being given.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 21 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
31. DW1 Renuka Chaudhary tendered her evidence
by way of affidavit ExDW-1/A and has deposed on the
lines of stand taken in the written statement filed by
the defendant company. She has relied upon the
documents i.e Power of attorney ExDW1/1, the
Institute Cargo Clauses (A) is ExDW1/2.
32. DW1 Renuka Chaudhary was cross examined
on behalf of the plaintiff company.
33. DW2 S.K Chakraborty, Surveyor was also
examined by the defendant company who also filed his
evidence by way of affidavit ExDW2/A and has relied
upon Survey report dated 20.02.2013 ExPW2/1,
survey report dated 21.05.2013 ExDW2/2, survey
report dated 20.02.2013 ExDW2/3 and survey report
dated 04.12.2012 ExDW2/4.
34. DW2 S.K Chakraborty was cross examined on
behalf of the plaintiff company.
35. Here , it is pertinent to mention that at the stage
when evidence of the defendant company has already
been recorded, the defendant company moved an
application under order 16 Rule (1) (3) r/w section 151
CPC making a request to summon additional witnesses
to be examined by the defendant company. Vide
aforesaid application defendant company wanted to
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 22 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
produce and prove “Institute Cargo Clauses (A) as
applicable to Marine Cargo- Single Voyage (Sea) Policy”.
36. The said application moved on behalf of the
defendant company was allowed by this Court vide
order dated 27.04.2024 subject to the cost whereby the
defendant company was allowed to summon the
concerned witness. Pursuant to the summons issued by
the court, one Sh. R.Pardha Saradhi appeared on
06.5.2024, and he was examined as DW2 in another
connected case bearing no. 763/2023. In that case, he
proved the Institute Cargo Clauses (A) as applicable to
Marine Cargo- Single Voyage (Sea) Policy as Ex
DW2/A.
37. Both the parties made a request to place the
copy of the said document ExDW2/A in each of the
files, including the present case and it was stated that
in that eventuality there would not be any need to
examine the witness Sh. R. Pardha Saradhi as one of
the defendant witnesses in each and every case. It was
also stated on behalf of both the parties that they do
not have any objection, if the said document
ExDW2/A is read and considered into evidence while
deciding the case at the time of final hearing.
38. Considering the request of both the parties and
no objection from their side, the copy of Institute Cargo
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 23 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Clauses (A) as applicable to Marine Cargo- Single Voyage
(Sea) Policy ExDW2/A, was directed to be placed in
each of the cases pending between the parties
including the present one and it was directed that same
shall be read in evidence at the stage of final disposal
of the cases. Accordingly, the present case reached
the stage of final arguments.
39. Ld. Counsels for both the parties have filed the
written synopsis of arguments and have argued the
matter orally as well at length. Their arguments shall
be considered while giving the findings on the issues.
40. Ld. Counsel for the plaintiff company has relied
upon the following judicial pronouncements:-
a) M.P Steel Corporation Vs Commissioner of Central
Excise, (2015) 7 SCC 58
b) Saurashtra Chemicals Ltd vs National Insurance
Company Ltd , (2019) 19 SCC 70.
c) Bharat Watch Company Vs NIC (2019) 6 SCC 212.
d) National Insurance Company Ltd Vs Mangalagowri
Cashew Industries, II (2006) CPJ-32 (National
Commission)
e) Bajaj Allianz GIC Ltd vs G P Petroleums Ltd. (State
Commission Mumbai), Appeal No. A/16/2917
f) Texco Marketing Pvt Ltd vs Tata AIG Capital General
Insurance Company Ltd and Ors, IX (2022) SLT 144
g) Narsingh Ispat Ltd Vs OIC Capital, 2022 SCC
OnLine SC 535.
h) Mavji Kanji Jungi & Anrs vs Oriental Insurance
Company Ltd. I (2021) CPJA 435 ( National
Commission)M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 24 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
i) Mappie International Ltd Vs Oriental Insurance Co.
Ltd, (NCDRC, New Delhi ) CC N. 5 of 2015
j) Sri Venkaterswara Syndicate Vs. Oriental Insurance
Co. Ltd II (2010) SLT 664
41. Ld. Counsel for the defendant company has
relied upon the following judicial authorities:
a) House of Lords in case of British and Foreign Marine
Insurance Co. Ltd Vs. Gaunt ( 1921) 2 AC 41 (HL)
b) New India Assurance Co. Ltd Vs Hira Lal Ramesh
Chand and Ors, AIR 2008 SC 2620
c) Josita Antony vs New India Assurance Company Ltd,
II (2006) ACC 713
d) J.M.F Sea Foods, Alleppey and Ors vs National
Insurance Co. Ltd, Alleppey, AIR 1992 Ker 202.
e) Bajaj Allianz General Insurance Co. Ltd and Ors Vs
The State of Madhya Pradesh , AIR 2020 SC 2237.
f) General Assurance Society Ltd vs Chandumull Jain
and Anr. , 1966 (3) SCR 500
g) Consolidated Engineering Enterprises vs Principal
Secretary, Irrigation Department and Ors ( 2008) 7
SCC 169.
h) Ghasi Ram & Ors Vs Chait Ram Saini & Ors (1998) 6
SCC 200.
i) Maidi Bhikashmiah & Anrs Vs. Venugopalrao & Ors,
1958 SCC OnLine AP 206.
j) Hassan Chand & Sons Vs H.H Majaraja Shri Gaj
Singh, 1961 SCC OnLine Raj 125.
k) Sohan Singh Vs State of Rajasthan & Ors, 1977 WLN
(UC) 96.
l) Bihar Supply Syndicate Vs Asiatic Navigation
(1993) 2 SCC 639
m) Oriental Insurance Company Ltd Vs Peacock
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 25 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Plywood (P) Ltd. 2004 SCC OnLine Cal 681.
42. I have gone through the material available on
record and heard the Ld. Counsel for both the parties. I
have also gone through the case laws cited at bar.
Issue No.1
Whether this Court has no Territorial Jurisdiction
as well as Pecuniary Jurisdiction to try the present
suit, as alleged by defendant in the written
statement? (OPD)
43. During the arguments, on the query being raised
by this court to the Ld. Counsel for the defendant
regarding the issue of jurisdiction, Ld. Counsel for the
defendant submitted that he is not pressing the said
issue and the same may be disposed off accordingly.
44. Plaintiff company has filed the present suit for
recovery of Rs 60,75,678/- (Rs Sixty Lakhs Seventy
Five Thousand Six Hundred and Seventy Eight only)
against the defendant company, which is well within
the pecuniary jurisdiction of this court. Further, the
address of the defendant company, as per memo of
parties is of Asaf Ali Road, New Delhi 110002, which
falls within the jurisdiction of this court. There is no
dispute that cause of action also arose within the
jurisdiction of this court. Although, the Ld. Counsel
for the defendant has not pressed this issue, however,
even otherwise also, as discussed herein above, this
court has the territorial and pecuniary jurisdiction to
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 26 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
try and entertain the present suit. Hence, issue no.1 is
answered accordingly.
Issue no.2
Whether the present suit is not maintainable
being barred by Limitation, as alleged by the
defendant in the written statement? (OPD)
45. In the written statement, one of the objections
taken by the defendant company is that the suit filed
by the plaintiff company is barred by limitation. Ld.
Counsel for the defendant company submitted that it is
not in dispute that the claims of the plaintiff company
were rejected on 20.03.2014; the present suit was filed
in the year 2023 which is beyond the period of
limitation. He further submitted that the plaintiff
company cannot be given the benefit of section 14 of
the Limitation Act,1963 as neither the relief to file the
fresh suit was sought by the plaintiff company nor was
granted by the Ld. District Forum; the present
proceedings are distinct from the proceedings which
took place before the consumer forum; the period of
limitation in both the said proceedings is different ; the
proceedings before the consumer forum were not
prosecuted diligently and in good faith and the
plaintiff company was well aware that the case of the
plaintiff company would not fall under the definition
of consumer; By referring to the order passed by the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 27 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Consumer Forum, Ld. Counsel for the defendant
company submitted that the complaints of the plaintiff
company were dismissed vide order dated 09.2.2022.
The plaintiff company approached the Pre-Litigation
Mediation on 11.01.2023, therefore, the protection as
available u/s 14 of the Limitation Act would not be
available to the plaintiff company.
46. In reply to that Ld. Counsel for the plaintiff
company submitted that the claims of the plaintiff
company were repudiated vide communications dated
20.3.2014; plaintiff company filed the complaint cases
before the District Forum on 26.02.2016 which were
finally returned on 09.02.2022. He further submitted
that the copy of the order of District Forum dated
09.2.2022 was received by the plaintiff company on
07.03.2022, therefore, the period from 26.02.2016 to
07.3.2022 spent before the District Forum has to be
excluded. He further submitted that the plaintiff
company had diligently followed up its complaints
before the Consumer Forum and there were repeated
rounds of litigations about the maintainability of the
complaints; the complaints were returned vide order
dated 09.2.2022; the defendant company admitted the
part of the said processes and has participated in the
same before the Consumer Forum and the Consumer
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 28 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Forum had not adjudicated the dispute on merits. He
further submitted that the relief sought by the plaintiff
company before Consumer Forum and before this
court is identical and in a separate application moved
u/s 14 of the Limitation Act, the plaintiff company has
given details indicating how the present suit is within
limitation. He further submitted that the time spent by
the plaintiff company before the Consumer Forum has
to be excluded.
47. It will be relevant to refer to Section 14 of the
Limitation Act, which reads as under:-
“14. Exclusion of time of proceeding bona fide in
court without jurisdiction.–(1) In computing the
period of limitation for any suit the time during
which the plaintiff has been prosecuting with due
diligence another civil proceeding, whether in a
court of first instance or of appeal or revision,
against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and
is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant
has been prosecuting with due diligence another
civil proceeding, whether in a court of first
instance or of appeal or revision, against the same
party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a
court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2
of Order 23 of the Code of Civil Procedure, 1908
(5 of 1908), the provisions of sub-section (1) shallM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 29 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
apply in relation to a fresh suit instituted on
permission granted by the court under Rule 1 of
that Order, where such permission is granted on
the ground that the first suit must fail by reason of
a defect in the jurisdiction of the court or other
cause of a like nature.
Explanation.–For the purposes of this section–
(a) in excluding the time during which a former
civil proceeding was pending, the day on which
that proceeding was instituted and the day on
which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action
shall be deemed to be a cause of a like nature with
defect of jurisdiction.”
48. Section 14 of the Limitation Act deals with
exclusion of time of proceeding spent bona fide in a
court without jurisdiction. On analysis of the said
section, it becomes evident that the following
conditions must be satisfied before Section 14 can be
pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due
diligence and in good faith;
(3) The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must
relate to the same matter in issue and;
(5) Both the proceedings are in a court.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 30 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
49. Here I may refer to a few judgements touching
the controversy in question qua limitation. In the case
of Laxmi Engineering Works vs P.S.G. Industrial
Institute,1995 SCC (3) 583, the following order of
National Commission dated 07-12-1993 was assailed
before Hon’ble Supreme Court:-
“From the facts appearing on record it is manifest
that the complainant is carrying on the business
of manufacture of machine parts on a large scale
for the purpose of earning profit and significantly
one single item of machinery in respect of which
the complaint petition was filed by him before the
State Commission itself is of the value of Rs. 21
lakhs and odd. In the circumstances, we fail to
see how the conclusion can be escaped that the
machinery, in question which is alleged to be
defective was purchased for a commercial
purpose. Hence, the complainant is not entitled to
be regarded as a consumer and the complaint
petition filed by him was not maintainable before
the State Commission. He order passed by the
State Commission is set aside. The complaint
petition is dismissed.” The National Commission,
however, observed that their order does not
preclude the appellant from pursuing his remedy
by way of ordinary civil suit.”
50. In that case Hon’ble Supreme Court observed as
under:-
“25.So far as the present case is concerned we
must hold (in agreement with the National
Commission), having regard to the nature and
character of the machine and the material on
record that it is not goods which the appellant
purchased for use by himself exclusively for the
purpose of earning his livelihood by means of self
employment, as explained hereinabove.
26.The appeal accordingly fails and is dismissed
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 31 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
but without costs. If the appellant chooses to file
a suit for the relief claimed in these proceedings,
he can do so according to law and in such a case
he can claim the benefit of Section 14 of the
Limitation Act to exclude the period spent in
prosecuting the proceedings under the Consumer
Protection Act, while computing the period of
limitation prescribed for such a suit.”
51. In a similar case of Saushish Diamonds Ltd. vs
National Insurance Co. Ltd.,(1998) 8 SCC357 , the
appellant had approached the National Consumer
Disputes Redressal Commission for recovery of the
loss of diamonds entrusted to the Commission Agent.
The National Consumer Disputes Redressal
Commission, New Delhi in its order dated 28-9-1995
passed the order holding that since the Insurance
Company has repudiated the claim, it declined to grant
the relief. Thus, an appeal was preferred before the
Hon’ble Supreme Court.:-
“2. Shri Harish Salve, the learned Senior Counsel
for the appellant, contended that in view of the
policy undertaken by the respondent, the
Commission could have granted the relief, instead
of relegating the appellant to a civil action. We
find no force in the contention. We have gone
through the stand taken by the respondent in the
repudiation. The very interpretation of the policy
itself is a subject-matter of the dispute. Under
these circumstances, the Commission rightly
relegated the parties to a civil action. It is true that
limitation has run out against the appellant during
the pendency of the proceedings. Therefore, the
time taken between the date of the filing of the
claim before the Commission and the date of its
disposal, namely, 28-9-1995 would be consideredM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 32 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
by the civil court for exclusion under Section 14
of the Limitation Act, 1963. The appeal is
accordingly dismissed.”
52. In Basheer Ahmed Noor-ul-Hussain Farooqui Vs.
Shaikh Hamad, MANU/MH/1527/2021, the Hon’ble
High Court of Bombay, while considering the
contentions regarding the applicability of section 14,
Limitation Act upon the time spent by the plaintiff
bona fide before a Court without jurisdiction. It was
held:-
“It is thus material to note, that the District
Consumer Forum, had entertained the plea of the
plaintiff for a direction to the defendant to execute
the sale deed upon the receipt of the balance
consideration and had issued an according
direction. It is quite another matter altogether, that
the State Commission by its order dated
04.01.2010, dismissed the claim of the plaintiff
and directed him to approach the Civil Court
which order was confirmed by the National
Commission on 14.03.2011 immediately after
which the plaintiff approached the Civil Court on
13.04.2011 with the suit for specific performance.
The very fact that the District Forum, had ruled in
favour of the plaintiff would indicate that the
plaintiff had prosecuted the remedy before the
Consumer Forum diligently and bonafidely. In a
series of decisions, namely, Laxmi Engineering
Works; Saushish Diamonds Ltd.; M/s Deokar
Exports Pvt. Ltd. and Shangrilla Apartments Co-
Operative Housing Society ltd (Supra), it has been
held, that prosecution of a remedy before the
Consumer Forum, would be a legal and valid
ground, to invoke and apply the provisions of
Section 14 of the Limitation Act. There is no
reason whatsoever, why the same benefit, cannot
be granted to the plaintiff, specifically in light of
the fact, that the District Consumer Forum in fact
entertained the plea of the plaintiff and hadM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 33 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
granted relief. It therefore cannot be said that
prosecution of the remedy by the plaintiff before
the authorities under the Consumer Protection Act
was either malafide, or with knowledge that the
same was not maintainable. Ramji Pandey (Supra)
upon which reliance has been placed by Mr.
Deshpande, learned counsel for the respondent, is
on a different footing altogether as in that case,
the initial institution of the suit itself, was in the
proper forum that is the Civil Court and it was not
a case where at the inception, the proceedings
were filed and prosecuted in a forum which
subsequently was held to be without authority.
The courts below, have failed to consider the
above position, in light of the settled position of
law, and therefore, the finding in this regard,
cannot be sustained. It is therefore held, that the
suit as filed by the plaintiff, was maintainable in
view of the availability and applicability of
Section 14 of the Limitation Act, to the plaintiff,
for if the period spent before the Consumer Forum
and the Higher Authorities under the Consumer
Protection Act was subtracted, then the suit filed
by the plaintiff, was clearly within the limitation
as prescribed under Section 54 of the Limitation
Act.”
53. In the case of Purni Devi Vs Babu Ram, 2024
INSC 259, by referring to the cases of Consolidated
Engg. Enterprises vs The Principal Secretary (Irrigation
Department) & Ors, (2008) 7 SCC 169 and the case of
Sesh Nath Singh V. Baidyabati Sheoraphuli Coop Bank
Ltd, (2021) 7 SCC 313, Hon’ble Supreme Court
observed as under:-
34. The judgment of this Court in M.P. Steel
(Supra) discussed the phrases, “due diligence” and
“in good faith” for the purposes of invocation of
Section 14 of the Limitation Act. While
considering the application of Section 14 to the
Customs Act, it was observed:
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 34 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
“10. We might also point out that Conditions 1
to 4 mentioned in the Consolidated Engg. case
have, in fact, been met by the Plaintiff. It is clear
that both the prior and subsequent proceedings
are civil proceedings prosecuted by the same
party. The prior proceeding had been prosecuted
with due diligence and in good faith, as has been
explained in Consolidated Engg. [(2008) 7 SCC
169] itself. These phrases only mean that the
party who invokes Section 14 should not be
guilty of negligence, lapse or inaction. Further,
there should be no pretended mistake
intentionally made with a view to delaying the
proceedings or harassing the opposite party.
49. ……. the expression “the time during
which the plaintiff has been prosecuting
with due diligence another civil
proceeding” needs to be construed in a
manner which advances the object sought
to be achieved, thereby advancing the
cause of justice.” (emphasis supplied)
35. The judgments in Consolidated Engg.
Enterprises (Supra) and M.P. Steel (Supra) have
been followed consistently by this Court. For
instance in Sesh Nath Singh v. Baidyabati
Sheoraphuli Coop. Bank Ltd. 5 (2-Judge Bench),
while holding Section 14 to be applicable to
applications under Section 7 of the Insolvency and
Bankruptcy Code, 2016 and the SARFAESI Act, it
was observed:-
“75. Section 14 of the Limitation Act is to be
read as a whole. A conjoint and careful
reading of sub-sections (1), (2) and (3) of
Section 14 makes it clear that an applicant
who has prosecuted another civil proceeding
with due diligence, before a forum which is
unable to entertain the same on account of
defect of jurisdiction or any other cause ofM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 35 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
like nature, is entitled to exclusion of the time
during which the applicant had been
prosecuting such proceeding, in computing
the period of limitation. The substantive
provisions of sub-sections (1), (2) and (3) of
Section 14 do not say that Section 14 can only
be invoked on termination of the earlier
proceedings, prosecuted in good faith.”
54. Here it would be relevant to refer to the
observation of the Hon’ble Supreme Court made in the
case of M.P. Steel Corporation (supra), which are as
under:-
” 34. It now remains to consider the decision of a
2-Judge Bench reported in P. Sarathy v. State
Bank of India, (2000) 5 SCC 355. This judgment
has held that an abortive proceeding before the
appellate authority under Section 41 of the Tamil
Nadu Shops and Establishment Act would attract
the provisions of Section 14 of the Limitation Act
inasmuch as the appellant in this case had been
prosecuting with due diligence another civil
proceeding before the appellate authority under the
Tamil Nadu Shops and Establishment Act, which
appeal was dismissed on the ground that the said
Act was not applicable to nationalized banks and
that, therefore, such appeal would not be
maintainable. This Court made a distinction
between “Civil Court” and “court’ and expanded
the scope of Section 14 stating that any authority or
Tribunal having the trappings of a Court would be
a “court” within the meaning of Section 14. It must
be remembered that the word “Court” refers only to
a proceeding which proves to be abortive. In this
context, for Section 14 to apply, two conditions
have to be met. First, the primary proceeding must
be a suit, appeal or application filed in a Civil
Court. Second, it is only when it comes to
excluding time in an abortive proceeding that the
word “Court” has been expanded to include
proceedings before tribunals.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 36 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
35. This judgment is in line with a large number of
authorities which have held that Section 14 should
be liberally construed to advance the cause of
justice – see: Shakti Tubes Ltd. v. State of Bihar,
(2009) 1 SCC 786 and the judgments cited therein.
Obviously, the context of Section 14 would require
that the term “court” be liberally construed to
include within it quasi-judicial Tribunals as well.
This is for the very good reason that the principle
of Section 14 is that whenever a person bonafide
prosecutes with due diligence another proceeding
which proves to be abortive because it is without
jurisdiction, or otherwise no decision could be
rendered on merits, the time taken in such
proceeding ought to be excluded as otherwise the
person who has approached the Court in such
proceeding would be penalized for no fault of his
own. This judgment does not further the case of
Shri Viswanathan in any way. The question that
has to be answered in this case is whether suits,
appeals or applications referred to by the
Limitation Act are to be filed in courts. This has
nothing to do with “civil proceedings” referred to
in Section 14 which may be filed before other
courts or authorities which ultimately do not
answer the case before them on merits but throw
the case out on some technical ground. Obviously
the word “court” in Section 14 takes its colour from
the preceding words “civil proceedings”. Civil
proceedings are of many kinds and need not be
confined to suits, appeals or applications which are
made only in courts stricto sensu. This is made
even more clear by the explicit language of Section
14 by which a civil proceeding can even be a
revision which may be to a quasi-judicial tribunal
under a particular statute”.
55. Coming back to the case at hand, it is not in
dispute that initially the complaints of the plaintiff
company were returned by the District Forum vide
order dated 24.03.2017 ExPW1/3. From the order
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 37 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
dated 24.03.2017 ExPW1/3, it is evident that Ld.
District Forum observed that it has no pecuniary
jurisdiction to entertain the complaints filed by the
plaintiff company. The matter landed before National
Commission, then before State Commission and
finally vide order dated 09.02.2022, again the
complaints of the plaintiff company were returned by
the District Forum vide order dated 09.2.2022
ExPW1/5 observing that “the dispute raised by the
complainant company as involved in the instant case is a
dispute between “business to business” and is not covered
under the Act as observed by Hon’ble Apex Court in
Laxmi Engg. Works (Supra). The instant complaint is
therefore dismissed as not maintainable before Consumer
Commission under the Act”. From the said order it is
evident that District Forum had dismissed the
complaints of the plaintiff company on the ground that
the purpose of transaction between the parties were
commercial and the complainant ( plaintiff company)
is not a consumer under section 2 (1) (d) of the Act.
Meaning thereby, the District Forum did not consider
the complaints of the plaintiff company on merits.
56. Having said so, there would be no difficulty in
arriving at a conclusion that the case of the plaintiff
company comes within the ambit of section 14 of the
Limitation Act. In the present case it is not in dispute
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 38 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
that the proceedings before the District Forum were
between the same parties i.e M/s KLJ Plasticizers Ltd
vs The Oriental Insurance Co. Ltd who are the plaintiff
company and defendant company respectively before
this Court. There would be no denial of the facts that
the proceedings before the District Forum were civil
proceedings and so is the case before this Court.
There is nothing on record suggesting that the plaintiff
company had not prosecuted its complaints with due
diligence and in good faith. Assailing the order of
District Forum before the Appellate Authority i.e State
Commission and National Commission indicates that
plaintiff company was diligent enough in prosecuting
its claim before the District Forum. The orders passed
by the District Forum, State Commission and National
Commission would make it further clear that the
plaintiff company had tried its best to get its claims
adjudicated by the District Forum. As noted herein
above the proceedings came to be dismissed by the
District Forum on technical grounds of jurisdiction.
Last but not the least, the issue between the parties
before the District Forum as well as before this Court
are the same i.e according to the plaintiff company the
repudiation of the claims of the plaintiff company by
the defendant company is illegal.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 39 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
57. In view of my aforesaid discussion and the
observations made in various judgments, as noted,
now it is no more res Integra that prosecution of a
remedy before the Consumer Forum, would be a legal
and valid ground, to invoke and apply the provisions
of Section 14 of the Limitation Act. There is no reason
whatsoever why the same benefit cannot be granted to
the plaintiff company in the present case. It is
therefore cannot be said that prosecution of the remedy
by the Plaintiff company before the authorities under
the Consumer Protection Act, 2019 was either
malafide, or with knowledge that the same was not
maintainable. Thus, the plaintiff company is entitled to
exclusion of the time during which the plaintiff
company had prosecuted its claim before the District
Forum.
58. Having said so, now it is to be seen whether the
present suit has been instituted within the period of
limitation or not even after giving the benefits of
section 14 of the Limitation Act.
59. According to the plaintiff company, the claims
of the plaintiff company were repudiated by the
defendant company vide communications dated
20.03.2014 ExPW1/20, ExPW1/36, ExPW1/51,
ExPW1/67, ExPW1/82, ExPW1/97 and ExPW1/114 .
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 40 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
That being so, the cause of action in the present case
arose on 20.03.2014. Thus, the limitation period
would start from 21.03.2014.
60. In ordinary circumstances, the period of
limitation for filing the present suit for recovery would
have expired on 20.03.2017.
61. In the present case, the plaintiff company has
filed a separate application under section 14 of the
Limitation Act seeking to exclude a certain period
while calculating the period of limitation and has
sought the benefit under section 14 of the Limitation
Act. According to the plaintiff company as pleaded in
the said application, the plaintiff company is said to
have preferred the complaints to the District Forum on
26.02.2016. Meaning thereby, the plaintiff company
kept waiting during the period from 21.03.2014 to
26.02.2016. Even as per the case of the plaintiff
company, the complaints before the District Forum
were filed after One year, eleven Months and Six
days. As per the case of the plaintiff company, the last
order passed by the District Forum was of 09.02.2022
as the complaints of the plaintiff company came to be
dismissed or returned on the ground of
maintainability.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 41 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
62. Pertinent to mention that during the argument,
Ld. Counsel for the plaintiff pointed out that although
the said order of the District Forum is dated 9.2.2022,
but it was prepared on 7.03.2022, therefore, the period
from 26.2.2016 to 07.03.2022, has to be excluded. I do
find support in the aforesaid contention of the Ld.
Counsel of the plaintiff as from the record it is evident
that the order dated 09.02.2022 appears to have been
made ready on 07.3.2022 and served on the plaintiff
company. Ld. Counsel for the defendant has not
disputed the same. That being so, the plaintiff
company has spent the time before the Consumer
Forum from 26.2.2016 to 07.03.2022 and that has to
be excluded in terms of section 14 of Limitation Act.
63. The limitation period started from 21.03.2014
and it stopped on 26.02.2016 at the time when the
plaintiff company preferred complaints before the
District Forum. The limitation would again start w.e.f.
8.3.2022 i.e. one day after the day when the
complaints were returned by the District Consumer
Forum and received by the plaintiff company. The
present suit has been filed on 15.5.2023 i.e after One
year two months and eight days. The total period
spent by the plaintiff company, excluding the period
spent before District Forum, would be One year
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 42 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Eleven Months and Six days. + One year two months
and eight days i.e Three years Two Months and
fourteen Days. The plaintiff company can be given
the benefit under section 14 of the Limitation
Act,1963 only for that period which was spent before
the District Forums.
64. We can understand it from another angle also.
There are three blocks of the time periods which are
relevant for calculating the period of limitation.The
first block would be from 21.03.2014 to 26.02.2016.
This is a period which was spent by the plaintiff
company and no claims were preferred by the plaintiff
company before any Court, Tribunal or Judicial
Authority. The second block would be the time spent
by the plaintiff company before the District Forum i.e
from 26.02.2016 to 7.3..2022. This time has to be
excluded and the third block would be the period from
8.3.2022 to 15.5.2023. As far as calculating the period
of limitation is concerned, the time spent in first block
and third block would be added which comes as noted
herein above i.e Three years Two Months and
fourteen Days.
65. Further, in terms of the proviso attached to the
section 12 A of the Commercial Courts Act,2015, the
time spent in Pre-Litigation Mediation is to be
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 43 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
excluded while calculating the period of limitation. In
the present case, as per the non starter report, the
application before the Pre-Litigation Mediation was
preferred on 11.01.2023 and the non-starter report was
released on 11.04.2023, therefore, around three
months were spent by the plaintiff company before the
Pre-litigation Mediation and that period also has to be
excluded. As noted herein above, the plaintiff
company took Three years, Two Months and fourteen
Days for filing the present case. After giving the
benefits of three months u/s 12 A of the Commercial
Court Act, the plaintiff company finally took Two
years and Eleven Months and fourteen days time in
filing the present suit i.e Three years Two Months and
fourteen Days- Three months. That being so, the
present suit has been filed within the period of
limitation. Accordingly, issue no.2 is decided in
favour of the plaintiff company and against the
defendant company .
Issue No. 3
Whether the suit is bad for non-joinder of necessary
parties, as alleged by the defendant in the written
statement? OPD
66. The next objection taken by the defendant
company is that the present suit is bad for non-joinder
of necessary and proper parties and is liable to be
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 44 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
dismissed. Ld. Counsel for the defendant company
submitted that the shipper or the shipping agent to
whom also the plaintiff company had raised the
claims, was a necessary party and he has not been
made defendant in the present case. He submitted that
the goods in question were transported by the shipper
and it was the responsibility of the shipper to make the
loss good, as per the case of the plaintiff company,
therefore, the shipping agent was a necessary party
which is not there, therefore, the suit is liable to be
dismissed.
67. Refuting the allegations of the defendant
company, Ld. Counsel for the plaintiff company
submitted that as per the insurance policies issued by
the defendant company, it was not obligatory for the
plaintiff company to implead the shipping agent in
case of losses covered under the policy. He submitted
that the plaintiff company had lodged a protest on the
shipper therefore, preserving the rights to subrogation
and it cannot be expected from the plaintiff company
to indulge in litigation with the shipper to claim the
indemnity from the Insurer.
68. Before proceeding further, I may mention that
the general rule in regard to impleadment of parties is
that the plaintiff company in a suit, being dominus
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 45 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
litis, may choose the persons against whom he wishes
to litigate and cannot be compelled to sue a person
against whom he does not seek any relief.
Consequently, a person who is not a party has no right
to be impleaded against the wishes of the plaintiff
company. But this general rule is subject to the
provisions of Order 1 Rule 10(2) of the Code of Civil
Procedure, which provides for impleadment of proper
or necessary parties. The said sub-rule is extracted
below:
“10. (2) Court may strike out or add parties .–The
court may at any stage of the proceedings, either
upon or without the application of either party, and
on such terms as may appear to the court to be just,
order that the name of any party improperly joined,
whether as plaintiff or defendant, be struck out,
and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or
whose presence before the court may be necessary
in order to enable the court effectually and
completely to adjudicate upon and settle all the
questions involved in the suit, be added.”
69. The said provision makes it clear that a court
may, at any stage of the proceedings, either upon or
even without any application, and on such terms as
may appear to it to be just, direct that any of the
following persons may be added as a party: (a) any
person who ought to have been joined as plaintiff or
defendant, but not added; or (b) any person whose
presence before the court may be necessary in order to
enable the court to effectively and completely
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 46 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
adjudicate upon and settle the questions involved in
the suit. In short, the court is given the discretion to
add as a party any person who is found to be a
necessary party or proper party.
70. Here I may refer to the case of Mumbai
International Airport (P) Ltd. v. Regency Convention
Centre & Hotels (P) Ltd., (2010) 7 SCC 417, wherein it
was held that:-
“15. A “necessary party” is a person who ought
to have been joined as a party and in whose
absence no effective decree could be passed at all
by the court. If a “necessary party” is not
impleaded, the suit itself is liable to be dismissed.
A “proper party” is a party who, though not a
necessary party, is a person whose presence
would enable the court to completely, effectively
and adequately adjudicate upon all matters in
dispute in the suit, though he need not be a person
in favour of or against whom the decree is to be
made. If a person is not found to be a proper or
necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff.
The fact that a person is likely to secure a
right/interest in a suit property, after the suit is
decided against the plaintiff, will not make such
person a necessary party or a proper party to the
suit for specific performance.”
71. In the present case, it is not in dispute that all the
consignments belonging to the plaintiff company were
insured by the defendant company and for that
separate cover notes and insurance policies were
issued. As such it is also not in dispute, rather it has
come on record that there was a losses of quantity of
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 47 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
the goods which were imported by the plaintiff
company. The bone of contention between the parties
is whether that losses, as detailed, are covered by the
insurance policies or not? It is also a matter of fact that
the plaintiff company is stated to have lodged the
claims before the Shipper also. There is nothing on
record suggesting that it was the pre-condition to
accept the claims of the plaintiff company by the
defendant company to raise the claims first to the
shipper. Further, it is not that the liability of the
shipper and the insurance company is joint and
several.
72. There was a separate contract of insurance
between the plaintiff and the defendant company and
the consideration thereof was the premium to be paid
by the plaintiff company to the defendant company
and defendant company was under obligation to make
the losses good in terms of the clauses of the insurance
policies as agreed between the parties, in case it comes
within the ambit of the policy. There is no privity of
contract between the shipper and the insurance
company as such. Therefore, in any claim filed by the
plaintiff company against the defendant company, the
shipper would not be a necessary or proper party.
Therefore, issue No. 3 is decided in favour of the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 48 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
plaintiff company and against the defendant company.
Issue No. 4
Whether the present suit is not maintainable the
plaintiff having clubbed together separate claims
arising out of the separate policies having different
survey reports and different assessment of loss, as
alleged by the defendants in the written statement?
(OPD)
73. The next objection taken by the defendant
company is that the present suit is not maintainable as
the plaintiff company has clubbed together separate
claims arising out of separate policies. Ld. Counsel for
the defendant company submitted that for each of the
consignments, there were separate cover notes and
separate policies. The claims of the plaintiff company
have been rejected by the defendant company
separately. Therefore, there was a different cause of
action for each of the claims and the plaintiff company
cannot be allowed to club the same as one cause of
action. He further submitted that the plaintiff company
has filed the claims of more than one consignment just
to bring the claim within the pecuniary jurisdiction of
this court. On this ground, the present suit is liable to
be rejected.
74. Per contra, Ld. Counsel for the plaintiff
company submitted that in the present case, the parties
are the same; all the claims were processed and
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 49 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
rejected by the defendant company on the same day’
all the claims are of the similar nature which came to
be dismissed or rejected on the ground by the
defendant company. There is a common relief sought
by the plaintiff company. He has also taken me to
order 2 rule 3 CPC, Ld. Counsel for the plaintiff
company submitted that the plaintiff company is
within its right to club more than one cause of action
when the parties are the same.
75. Since the present suit is being challenged for
misjoinder of causes of action also, it is pertinent to
mention here the law on the point which is as under:
Order 2 Rule 3 CPC
“3. Joinder of causes of action.–(1) Save as
otherwise provided, a plaintiff may unite in the
same suit several causes of action against the
same defendant, or the same defendants jointly;
and any plaintiffs having causes of action in
which they are jointly interested against the same
defendant or the same defendants jointly may
unite such causes of action in the same suit.
(2) Where causes of action are united, the
jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate
subject-matters at the date of instituting the suit.”
Order 2 Rule 6 CPC
“6. Power of court to order separate trials .–
Where it appears to the court that the joinder of
causes of action in one suit may embarrass or
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 50 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
delay the trial or is otherwise inconvenient, the
court may order separate trials or make such other
order as may be expedient in the interests of
justice.”
76. The expression “cause of action” is the fact or
facts which give a person a right to judicial relief. A
cause of action, thus, means every fact, which, if
traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of the
court. In other words, it is a bundle of facts which,
taken with the law applicable to them, gives the
plaintiff a right to relief against the defendant. It must
include some act done by the defendant since in the
absence of such an act no cause of action can possibly
accrue. It is not limited to the actual infringement of
the right sued on but includes all the material facts on
which it is founded.
77. Order 2 Rule 3 CPC provides for the joinder of
several causes of action and states that a plaintiff may
unite in the same suit several causes of action against
the same defendant, or the same defendants jointly or
several plaintiffs having causes of action in which they
are jointly interested against the same defendant or
defendants jointly may unite them in one suit. The
remedy for any possible inconvenience with regard to
the said rule is supplied by the provisions of Order 2
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 51 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Rule 6, which authorises the Court to order separate
trials of causes of action which though joined in one
suit cannot be conveniently tried or disposed of
together.
78. In the case of Prem Lala Nahata v. Chandi Prasad
Sikaria, (2007) 2 SCC 551 : , it was held that:-
“11. Order 2 deals with frame of suits. It provides
that every suit shall be framed as far as practicable
so as to afford grounds for final decision upon the
subjects in dispute and to prevent further litigation
concerning them. It is also insisted that every suit
shall include the whole of the claim that a plaintiff
is entitled to make in respect of its subject-matter.
There is a further provision that the plaintiff may
unite in the same suit several causes of action
against the same defendant and the plaintiffs
having causes of action in which they are jointly
interested against the same defendant, may unite
such causes of action in the same suit. It provides
that objection on the ground of misjoinder of
causes of action should be taken at the earliest
opportunity. It also enables the court, where it
appears to the court that the joinder of causes of
action may embarrass or delay the trial or
otherwise cause inconvenience, to order separate
trials or to make such other order as may be
expedient in the interests of justice.
12. Thus, in a case where a plaint suffers from the
defect of misjoinder of parties or misjoinder of
causes of action either in terms of Order 1 Rule 1
and Order 1 Rule 3 on the one hand, or Order 2
Rule 3 on the other, the Code itself indicates that
the perceived defect does not make the suit one
barred by law or liable to rejection. This is clear
from Rules 3-A, 4 and 5 of Order 1 of the Code,
and this is emphasised by Rule 9 of Order 1 of the
Code which provides that no suit shall be defeated
by reason of non-joinder or misjoinder of parties
and the court may in either case deal with theM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 52 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
matter in controversy so far as it regards the rights
and interests of the parties actually before it. This
is further emphasised by Rule 10 of Order 1 which
enables the court in appropriate circumstances to
substitute or add any person as a plaintiff in a suit.
Order 2 deals with the framing of a suit and Rule 3
provides that save as otherwise provided, a
plaintiff may unite in the same suit several causes
of actions against the same defendant and any
plaintiffs having causes of actions in which they
are jointly interested against the same defendant
may unite such causes of action in the same suit.
Rule 6 enables the court to order separate trials
even in a case of misjoinder of causes of action in
a plaint filed.
13. After the amendment of Order 16 Rule 1 in
England, it was held by the Court of Appeal in
England in Thomas v. Moore [(1918) 1 KB 555 :
87 LKB 577 (CA)] thus:
“Whatever the law may have been at the time when
Smurthwaite v. Hannay [1894 AC 494 : (1891-4)
All ER Rep 865 (HL)] was decided, joinder of
parties and joinder of causes of action are
discretionary in this sense, that if they are joined
there is no absolute right to have them struck out,
but it is discretionary in the Court to do so if it
thinks right.”
14. The Privy Council in Mahant Ramdhan Puri v.
Chaudhury Lachmi Narain [AIR 1937 PC 42 :
1937 All LJ 556] pointed out: (AIR p. 45)
“It is desirable to point out that under the rules
as they now stand the mere fact of misjoinder is
not by itself sufficient to entitle the defendant to
have the proceedings set aside or action
dismissed.”
Of course, their Lordships were speaking in the
context of Section 99 of the Code. Their
Lordships referred to the above quoted
observation of the Court of Appeal in Thomas
v. Moore [(1918) 1 KB 555 : 87 LKB 577
(CA)] in that decision. It is therefore clear that aM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 53 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
suit that may be bad for misjoinder of causes of
action is not one that could be got struck out or
rejected by a defendant as a matter of right and
the discretion vests with the court either to
proceed with the suit or to direct the plaintiff to
take steps to rectify the defect. In fact, the Privy
Council in that case noticed that the suit was
bad for misjoinder of causes of action. It further
noticed that the trial Judge had in spite of the
complications created thereby, tried and
disposed of the suit satisfactorily. Therefore,
there was no occasion for the court to dismiss
the suit on the ground of misjoinder of causes
of action at the appellate stage.
15. It is well understood that procedure is the
handmaid of justice and not its mistress. The
scheme of Order 1 and Order 2 clearly shows that
the prescriptions therein are in the realm of
procedure and not in the realm of substantive law
or rights. That the Code considers objections
regarding the frame of suit or joinder of parties
only as procedural, is further clear from Section 99
of the Code which specifically provides that no
decree shall be reversed in appeal on account of
any misjoinder of parties or causes of action or
non-joinder of parties unless a court finds that the
non-joinder is of a necessary party. This is on the
same principle as of Section 21 of the Code which
shows that even an objection to territorial
jurisdiction of the court in which the suit is
instituted, could not be raised successfully for the
first time in an appeal against the decree unless the
appellant is also able to show consequent failure of
justice. The Suits Valuation Act similarly indicates
that absence of pecuniary jurisdiction in the court
that tried the cause without objection also stands
on the same footing. The amendment to Section 24
of the Code in the year 1976 confers power on the
court even to transfer a suit filed in a court having
no jurisdiction, to a court having jurisdiction to try
it. In the context of these provisions with particular
reference to the rules in Order 1 and Order 2 of the
Code, it is clear that an objection of misjoinder of
plaintiffs or misjoinder of causes of action, is a
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 54 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
procedural objection and it is not a bar to the
entertaining of the suit or the trial and final
disposal of the suit. The court has the liberty even
to treat the plaint in such a case as relating to two
suits and try and dispose them of on that basis.
16. Order 7 Rule 11(d) speaks of the suit being
“barred by any law”. According to Black’s Law
Dictionary, bar means, a plea arresting a law suit
or legal claim. It means as a verb, to prevent by
legal objection. According to Ramanatha Aiyar’s
Law Lexicon, “bar” is that which obstructs entry
or egress; to exclude from consideration. It is
therefore necessary to see whether a suit bad for
misjoinder of parties or of causes of action is
excluded from consideration or is barred entry for
adjudication. As pointed out already, on the
scheme of the Code, there is no such prohibition or
a prevention at the entry of a suit defective for
misjoinder of parties or of causes of action. The
court is still competent to try and decide the suit,
though the court may also be competent to tell the
plaintiffs either to elect to proceed at the instance
of one of the plaintiffs or to proceed with one of
the causes of action. On the scheme of the Code of
Civil Procedure, it cannot therefore be held that a
suit barred for misjoinder of parties or of causes of
action is barred by a law, here the Code. This may
be contrasted with the failure to comply with
Section 80 of the Code. In a case not covered by
sub-section (2) of Section 80, it is provided in sub-
section (1) of Section 80 that “no suit shall be
instituted”. This is therefore a bar to the institution
of the suit and that is why courts have taken the
view that in a case where notice under Section 80
of the Code is mandatory, if the averments in the
plaint indicate the absence of a notice, the plaint is
liable to be rejected. For, in that case, the
entertaining of the suit would be barred by Section
80 of the Code. The same would be the position
when a suit hit by Section 86 of the Code is filed
without pleading the obtaining of consent of the
Central Government if the suit is not for rent from
a tenant. Not only are there no words of such
import in Order 1 or Order 2 but on the other hand,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 55 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Rule 9 of Order 1, Rules 1 and 3 of Order 1, and
Rules 3 and 6 of Order 2 clearly suggest that it is
open to the court to proceed with the suit
notwithstanding the defect of misjoinder of parties
or misjoinder of causes of action and if the suit
results in a decision, the same could not be set
aside in appeal, merely on that ground, in view of
Section 99 of the Code, unless the conditions of
Section 99 are satisfied. Therefore, by no stretch of
imagination, can a suit bad for misjoinder of
parties or misjoinder of causes of action be held to
be barred by any law within the meaning of Order
7 Rule 11(d) of the Code.
17. Thus, when one considers Order 7 Rule 11 of
the Code with particular reference to clause ( d), it
is difficult to say that a suit which is bad for
misjoinder of parties or misjoinder of causes of
action, is a suit barred by any law. A procedural
objection to the impleading of parties or to the
joinder of causes of action or the frame of the suit,
could be successfully urged only as a procedural
objection which may enable the court either to
permit the continuance of the suit as it is or to
direct the plaintiff or plaintiffs to elect to proceed
with a part of the suit or even to try the causes of
action joined in the suit as separate suits.
18. It cannot be disputed that the court has power
to consolidate suits in appropriate cases.
Consolidation is a process by which two or more
causes or matters are by order of the court
combined or united and treated as one cause or
matter. The main purpose of consolidation is
therefore to save costs, time and effort and to make
the conduct of several actions more convenient by
treating them as one action. The jurisdiction to
consolidate arises where there are two or more
matters or causes pending in the court and it
appears to the court that some common question of
law or fact arises in both or all the suits or that the
rights to relief claimed in the suits are in respect of
or arise out of the same transaction or series of
transactions; or that for some other reason it is
desirable to make an order consolidating the suits.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 56 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
(See Halsbury’s Laws of England, Vol. 37, para
69.) If there is power in the court to consolidate
different suits on the basis that it should be
desirable to make an order consolidating them or
on the basis that some common questions of law or
fact arise for decision in them, it cannot certainly
be postulated that the trying of a suit defective for
misjoinder of parties or causes of action is
something that is barred by law. The power to
consolidate recognised in the court obviously gives
rise to the position that mere misjoinder of parties
or causes of action is not something that creates an
obstruction even at the threshold for the
entertaining of the suit.
19. It is recognised that the court has wide
discretionary power to control the conduct of
proceedings where there has been a joinder of
causes of action or of parties which may embarrass
or delay the trial or is otherwise inconvenient. In
that situation, the court may exercise the power
either by ordering separate trials of the claims in
respect of two or more causes of action included in
the same action or by confining the action to some
of the causes of action and excluding the others or
by ordering the plaintiff or plaintiffs to elect which
cause of action is to be proceeded with or which
plaintiff should proceed and which should not or
by making such other order as may be expedient.
(See Halsbury’s Laws of England, Vol. 37, para
73.) Surely, when the matter rests with the
discretion of the court, it could not be postulated
that a suit suffering from such a defect is
something that is barred by law. After all, it is the
convenience of the trial that is relevant and as the
Privy Council has observed in the decision noted
earlier, the defendant may not even have an
absolute right to contend that such a suit should
not be proceeded with.
79. In the case of Carlsberg Breweries A/S. Versus
Som Distilleries and Breweries Ltd. , 2018 Scc
OnLine 12912, it was held that:-
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 57 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
“27. Joinder of causes of action-dealt with in
Order II Rule 3 enables the plaintiff to ” unite in
the same suit several causes of action against the
same defendant, or the same defendants jointly;
and any plaintiffs having joinder of causes of
action in which they are jointly interested
against the same defendant or the same
defendants jointly may unite such joinder of
causes of action in the same suit .” Rule 3(2)
states that if there is such joinder of causes of
action “jurisdiction of the court as regards the
suit shall depend on the amount or value of the
aggregate subject-matters at the date of
instituting the suit.
************************************ 31.
An indisputable conclusion from the above
authorities is that there is no per se or threshold
bar to maintainability of suits, on the perceived
ground of misjoinder of causes of action. In
more senses than one, the subject of joinder of
causes of action is a mirror image of the issue of
joinder of parties. Prem Lata Nahata (supra)
clearly enunciates that “in a case where a plaint
suffers from the defect of misjoinder of parties
or misjoinder of causes of action either in terms
of Order I Rule 1 and Order I Rule 3 on the one
hand, or Order II Rule 3 on the other, the Code
itself indicates that the perceived defect does not
make the suit one barred by law or liable to
rejection.” The court later analyzed Order VII
Rule 11(b) and stated that an objection to the
frame of a suit, is at best a procedural one,
which cannot result in rejection of a plaint. The
court noticed that unlike Section 80 (of the
CPC) which enacted a clear substantive bar to
the entertainment of a suit unless a procedural
step is taken, there is no such bar-or one by
necessary implication which renders a suit
deemed improper (as to frame of suit for
misjoinder of causes of action), liable to
rejection. It was noticed, importantly that the
objection to joinder or misjoinder is an
insufficient ground for appeal, if not raised at
the earliest point. A very important conclusion
in Prem Lata Nahata (supra) (which has
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 58 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
nowhere been disapproved or distinguished from
in any subsequent ruling by the Supreme Court)
is that objection to misjoinder (of causes of
action) is procedural and that rejection of a suit
on that count cannot be resorted to:
“Thus, when one considers Order VII Rule
11 of the Code with particular reference to
Clause (d), it is difficult to say that a suit
which is bad for misjoinder of parties or
misjoinder of causes of action, is a suit
barred by any law. A procedural objection to
the impleading of parties or to the joinder of
causes of action or the frame of the suit,
could be successfully urged only as a
procedural objection which may enable the
Court either to permit the continuance of the
suit as it is or to direct the plaintiff or
plaintiffs to elect to proceed with a part of
the suit or even to try the causes of action
joined in the suit as separate suits.”
80. Adverting to the case at hand, it is not denied
that all the consignments belonged to the plaintiff
company and all the consignments have been insured
by the defendant company. Meaning thereby, the
parties are the same. The terms and conditions of the
insurance policies and cover notes of each of the
claims are the same. The grounds on which the claims
of the plaintiff company have been repudiated or
rejected are also the same. The main bone of
contention between the parties in each of the claims is
also identical and similar therefore, in terms of order II
rule 3 and in view of the judgments as noted herein
above, the plaintiff company can club more than one
cause of action in a single suit and there is no such
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 59 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
prohibition. Only on this ground alone, the suit of the
plaintiff company cannot be rejected as the procedural
law is the handmaid of justice and not its mistress.
Hence, issue No.4 is also decided in favour of the
plaintiff company and against the defendant company .
Issue no 5.
5. Whether the plaintiff is entitled to recovery of the
principal amount, as asked for in plaint? (OPP)
81. Before proceeding further, I may note certain
admitted facts. It is not in dispute that the
consignments in question were insured by the plaintiff
company with the defendant company and for that
separate cover notes and insurance policies were
issued. Without going into the issue of whether there
were actually short quantities in all the consignments
causing losses to the plaintiff company or not, the
moot question which is to be decided by this court is,
whether the said losses are covered under the
insurance policy or not ?
82. Ld. Counsel for the defendant company
submitted that no claims are payable qua the alleged
losses of quantity reported by the plaintiff company as
it neither comes within the scope of coverage nor
payable under the terms and conditions of the Marine
Cargo Single Voyage (Sea ) Policy and Institute Cargo
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 60 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Clause (A). He has taken me to the clauses of said
insurance policies and submitted that as per the
exclusion clause 4.2 of the Institute Cargo Clause (A)
there was no insurance cover for ordinary leakage,
ordinary losses, no weight or volume and ordinary
wear and tear subject matter in short. He submitted
that above said clause makes it crystal clear that the
losses in question are excluded from the Institute
Coverage. He further submitted that there was no
evidence of insured marine peril activated.
83. Ld. Defence Counsel vehemently argued that
losses of shortage volume and weight was neither due
to any peril nor it was due to unfortunate event
covered under the policy but has occurred only
because of handling operations of the shipment as well
as the transfer of the material from commencement
port to the ship tank and then transfer of the material
from the ship to the destination shore tank.
84. Per contra, Ld.Counsel for the plaintiff company
vehemently refuted the defense as set up by the
defendant company and submitted that the policies
which were issued to the plaintiff company is “All
Risk Policy” and it covers in its ambit losses of any
kind during the coverage/voyage period. He submitted
that the obligation of the plaintiff company ends once
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 61 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
the loss is reported to the defendant company and it
was the defendant company to prove that the loss is
not covered under the policy and mere denial on the
part of the defendant company would not be sufficient
to reject the claim of the plaintiff company.
85. In reply to the contention of the defendant
company regarding the exclusion clause 4.2 of the
Institute Cargo (A), Ld. Counsel for the plaintiff
company submitted that no such document was ever
provided by the defendant company to the plaintiff
company alongwith policy and it is during the
proceedings before the Consumer Courts that first time
the said document was brought to the notice of the
plaintiff company. He further submitted that the said
clause of Institute Cargo Clause (A) would not be
applicable as in the said clause nowhere it is
mentioned that the losses/damages must take place
during the course of transit/voyage; ‘All Risk Policy’
would cover all type of losses including the present
one which were caused to the plaintiff company. He
further submitted that the defendant company cannot
be allowed to go beyond the grounds of rejection as
communicated to the plaintiff company vide
communications dated 20.03.2014.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 62 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
86. Here it is pertinent to refer to the proceedings
dated 06.05.2024. From the proceedings dated
06.05.2024, it is evident that the copy of the Institute
Cargo Clause (A) ExDW2/A was directed to be taken
on record in the present case also making it clear that
Institute Cargo Clause (A) ExDW2/A shall be read in
evidence at the stage of final disposal of the cases.
Meaning thereby, now, there is no dispute regarding
the admissibility of the said document Institute Cargo
Clause (A) ExDW2/A and its mode of proof.
87. Before diving deep into the sea of Marine
Insurance, it is imperative to understand the meaning
of “Marine Insurance” and “Perils of Sea”. Marine
insurance is defined under Section 3 of the Marine
Insurance Act, 1963 as an agreement whereby the
insurer undertakes to indemnify the insured, in the
manner and to the extent thereby agreed, against
marine losses, that is to say, the losses incidental to
marine adventure. In simple terms, marine insurance is
a contract which protects the insured against losses on
inland waters or any land risk that may be incidental to
any sea voyage. The nature of maritime insurance is
essentially a contract of indemnity meaning thereby
that the insurance company is liable only for the actual
loss or damages suffered by the insurer. However, the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 63 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
insurer cannot be made liable for each and every loss.
Under the Act, the loss to an insurable property must
arise as a consequence of a maritime peril.
88. Section 2 (e) of the Act defines ‘maritime perils’.
Broadly speaking, ‘maritime perils’ also called as perils
of the sea include extraordinary forces of nature which
maritime ventures might need to face during the
voyage. It includes those accidents or casualties which
happen during the voyage by the act of god without
any human intervention. Some of the conditions which
cover the loss by the perils of the sea are clearly laid
down under Sections 55 to 58 of the Marine Insurance
Act, 1963.
89. Perils of the sea is defined in The Hague Visby
Rules12 which under Article 4(2) (c) defines ‘perils’
as ‘perils’ , dangers and accidents of the sea or other
navigable waters, and provides a defence for the
carrier from liability for loss or damage.
90. Under the Marine Insurance Act, 1963, loss or
damages which occur in the ordinary course of nature
or due to own default are not included in the category
of maritime perils. These include: Loss damage or
expense attributed to willful misconduct of the
insured, deliberate damage to/destruction of the goods,
ordinary leakage/ordinary loss in weight or volume /
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 64 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
ordinary wear and tear of the insured goods, any loss
proximately caused by delay, breakage, inherent vice
or nature of the subject-matter insured, or for any loss
proximately caused by rats or vermin, or for any injury
to machinery not proximately caused by maritime
perils.
91. Further, the doctrine of Proximate cause or
causa proxima is one of the principles of insurance. In
insurance law ‘causa proxima Non Remota Spectrum’
means the immediate and not the remote cause is to be
considered. For the purpose of claiming any insurance
policy the loss or injury caused must be as a result of
any one of the insured perils. Peril is basically the
cause of loss or the prime cause of what will give rise
to a loss. When the loss is caused by the perils of the
sea the maxim ‘causa proxima’ is applicable to the
case of Marine Insurance.
92. Thus, once the predominant cause is determined
and it becomes clear that the causa proxima is covered
under the ‘insured peril’, the insurer is liable to
compensate and at that point the principle of
Indemnity will take place. However, the insurer is not
liable if the losses caused by the insured and the
excepted perils cannot be separated or distinguished
and also if it is caused by the negligent act of the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 65 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
insured .
93. Before adjudicating the main controversy
between the parties, it would be relevant to weigh the
quality and quantity of the evidence adduced by the
parties. The primary witnesses of both the parties led
their evidence and have deposed by way of an
affidavit. A careful examination of their affidavit(s)
would reveal that the stand taken in the pleadings has
been reiterated in the said affidavit(s) as an
examination- in -chief of the witnesses. As noted
earlier, the witnesses have been cross examined by the
Ld. Counsel of the opposite party on certain aspects
including the facts which are not in dispute. Thus, I
would be referring to that part of their cross
examination which is relevant and is touching the
controversy between the parties and not otherwise.
94. This takes me to the real issue between the
parties. The consignments of the plaintiff company
were insured vide separate cover notes and insurance
policies. When the losses were reported to the
defendant company, surveyors were appointed who
had already given their reports. The details of the
cover notes, insurance policies and the report of the
Surveyors (only those reports where final opinion is
there) are as under:
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 66 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Sl. No Nature of document Exhibit
First Consignment
i Insurance Cover note 318836 ExPW1/8
ii Insurance Policy 272200/21/2013/714 ExPW1/9
iii SGS Surveyors Survey Report dated ExPW1/15
30.11.2012 and S.K Chakraborty
Surveyor report dated 20.02.2013(final
opinion on cause of loss not complete i.e
missing)
iv Repudiation letter dated 20.03.2014 ExPW1/20
received by the plaintiff from the
defendantSecond consignment
i Insurance Cover Note 319878 ExPW1/26
ii Insurance Policy 272200/21/2013/1150 ExPW1/27
iii SGS Surveyors Survey Report dated ExPW1/33
18.03.2013 and S.K Chakraborty
Surveyor report dated 21.05.2013
iv Repudiation Letter dated 20.03.2014 ExPW1/36.
received by the plaintiff from the
defendant
Third consignment
i Insurance Cover Note 319843 ExPW1/42
ii Insurance Policy 272200/21/2013/947 ExPW1/43
iii SGS Surveyors Survey Report dated ExPW1/48
31.01.2013 and S.K Chakraborty
Surveyor report dated 20.02.2013 (no
final opinion on cause of loss)
iv Repudiation Letter dated 20.03.2014 ExPW1/51.
received by the plaintiff from the
defendant
Fourth consignment
i Insurance Cover Note 315808 ExPW1/57
ii Insurance Policy 272200/21/2013/451 ExPW1/58
iii SGS Surveyors Survey Report dated ExPW1/62
10.10.2012 and S.K Chakraborty
Surveyor report dated 04.12.2012
iv Repudiation Letter dated 20.03.2014 ExPW1/67.
received by the plaintiff from the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 67 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
defendant
Fifth consignment
i Insurance Cover Note 308882 ExPW1/73
ii Insurance Policy 272200/21/2012/793 ExPW1/74
iii J B Boda Survey Report dated 17.10.2011 ExPW1/78
iv Repudiation Letter dated 20.03.2014 ExPW1/82.
received by the plaintiff from the
defendant
Sixth consignment
i Insurance Cover Note 318837 ExPW1/88
ii Insurance Policy 272200/21/2013/716 ExPW1/89
iii SGS Surveyors Survey Report dated ExPW1/94
30.11.2012 and S.K Chakraborty
Surveyor report dated 20.02.2013
iv Repudiation Letter dated 20.03.2014 ExPW1/97
received by the plaintiff from the
defendant
Seventh consignment
i Insurance Cover Note 312125 ExPW1/103
ii Insurance Policy 272200/21/2013/227 ExPW1/104
iii J.B Boda Survey Report dated 23.07.2012 ExPW1/109
and S.K Chakraborty Surveyor report
dated 10.09.2012
iv Repudiation Letter dated 20.03.2014 ExPW1/114
received by the plaintiff from the
defendant
95. One of the terms and conditions as mentioned in
the insurance cover notes ExPW1/8, ExPW1/26,
ExPW1/42, ExPW1/57, ExPW1/73, ExPW1/88 and
ExPW1/103 is ” the insured named above having this day
proposed to affect the above insurance and having paid the
premium stated above the risk is hereby insured, subject to
the usual terms and conditions of the Company’s Standard
Policy’.
96. In the Insurance Policies ExPW1/9, ExPW1/27,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 68 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
ExPW1/43, ExPW1/58, ExPW1/74, ExPW1/89 and
ExPW1/104, under the heading ‘Term of Insurance’ it
is stated as under:
” The risks under this policy are covered as per
the following clauses, current on date of sailing or
despatch and / or other conditions/warranties
otherwise stated herein and attached hereto:-
Institute Classification Clause
Institute Cargo Clauses (A)
Institute Tpnd clause
Institute War Clause (Cargo)
Institute Strike Clauses (Cargo)”
97. In the evidence filed by way of affidavit by the
PW1 Ashok Kumar Maharshi, the reports of the
surveyors were given exhibit marks as ExPW1/15,
ExPW1/33, ExPW1/48, ExPW1/62, ExPW1/78,
ExPW1/94 and ExPW1/109.
98. During the arguments by referring to the said
reports, Ld. Counsel for the defendant company tried
to make out a case that the losses in question are not
covered by insurance policies. These reports have been
filed by the plaintiff company but have not been
disputed by the defendant company also. Meaning
thereby, there is no dispute about these reports and
both the parties are placing reliance on these reports,
so the same are being considered.
99. As per the surveyor report of SGS India
ExPW1/15 in respect of the first consignment, the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 69 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
remarks are as under:-
“Reason for short receipt of cargo in shore tank
against bill of lading. The loss of 15.813 M.T.
(1.56%) could be due to the various
handling/multiple operation loss.”
100. The remarks of the surveyor namely SGS India
Pvt. Ltd, in respect of the second consignment as per
its survey report ExPW1/33 are as under:-
“Reason for short receipt of cargo in shore tank
against bill of lading. The loss of 11.568 M.T
(1.16%) could be due to the various
handling/multiple operation loss”
101. The report of surveyor namely SGS India Ltd,
ExPW1/48 in respect of the Third consignment are as
under:-
” Reason for short receipt of cargo in shore
tank against bill of lading. The loss of 9.334
M.T. (0.93%) could be due to the various
handling/multiple operation loss ”
102. The report of surveyor namely SGS India Ltd,
ExPW1/62 in respect of the Fourth consignment,
remarks are as under:-
” Reason for short receipt of cargo in shore tank
against bill of lading. The loss of 9.075 M.T. (0.82%)
could be due to the various handling/multiple
operation loss ”
103. The report of surveyor namely J.B Boda
Surveyors Pvt. Ltd , ExPW1/78 in respect of the fifth
consignment concludes as under:-
” At the port of loading Rotterdam, quantity as per
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 70 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
vessel’s tanks’ ullage worked out to 496.253 M/
Tons., this quantity when compared with the Bill of
Lading quantity of 499.888 M/ Tons., shows a
difference of (-) 3.835 М/Топs., (0.727%).
On arrival at Kandla quantity as per vessel’s tanka’
ullage worked out to 496.531 M/Tons., this quantity
when compared with the Bill of Lading quantity
499.888 M/Tons., shows a difference of (-) 3.357
M/Tons., (0.672 %).
As per shore tanks’ out-turn, the receipt quantity
worked out to 495.179 M/Tons., this quantity when
compared with Bill of Lading quantity of 499.888
M/Tons,, shows a shortage of (-) 4.709 M/Tons.,
(0.942 %), which could be partly attributed to the
above difference and partly to unloading loss. ”
104. The report of surveyor namely SGS India Ltd,
ExPW1/94 in respect of the Sixth consignment is as under:-
” Reason for short receipt of cargo in shore tank
against bill of lading. The loss of 5.281 M.T. (0.70%)
could be due to the various handling/multiple
operation loss ”
105. The remarks of the surveyor namely S.K
Chakraborty, in respect of the Sixth consignment as
per its survey report ExPW1/94 is as under:
” In our opinion, the shortage of Liquid 2-
Popylheptanol from the above vessel has been
occurred due to multiple operation/handling of the
cargo as well as vessel”
106. The report of surveyor namely J.B Boda
Surveyors Pvt. Ltd , ExPW1/109 (colly)in respect of
the Seventh consignment are as under:-
” As per shore tank’s out-turn, the receipt quantity
worked out to 595.764 M/Tona, this quantity when
compared with Bill of Lading quantity of 600.574
M/Tons shows a shortage of (-)4.910 M/Ton,
(0.817%) which could be attributed to unloading
loss”
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 71 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
107. The remarks of the surveyor namely S.K
Chakraborty, in respect of the Seventh consignment as per its
survey report ExPW1/109 (colly) are as under:
” In our opinion, the shortage of Liquid Pentylol
from the above vessel has been occurred due to
handling operation of the shipment as well as
unloading of product from ship tank to shore tank at
discharge port. ”
108. The main cause of dispute between the parties
is the exclusion clause 4.2 of the ICC (A) ExDW2/A,
which reads as under:-
” EXCLUSIONS
4. In no case shall this insurance cover
4.1…….
4.2 Ordinary leakage, ordinary loss in weight
or volume, or ordinary wear and tear of the
subject matter insured.”
109. Here it would be relevant to refer to the cross
examination of the witnesses examined by the parties.
During the cross examination, PW1 Ashok Kumar
Maharshi replied (Q.4 & 12 ) the loss in question
resulted due to Transit Operational Loss. Regarding
the nature of goods imported by the plaintiff company,
PW1 replied that it was in liquid form (Q.5). He
further replied that the chemical products went under
the process of loading and unloading two times till
final measurement of volume of chemical (Q.8).
110. Coming to the cross examination of DW1
Renuka Chaudhary, I may mention that even during
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 72 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
her cross examination plaintiff company failed to elicit
anything contrary to the stand of the defendant
company. DW1 also has deposed about certain facts
which are not in dispute like insurance policies taken
by the plaintiff company was ‘All Risk Policy’;
Insurance Policies are not a named peril policy;
surveyors have not recommended repudiation of the
claims of the plaintiff company or they did not point
out any violation on the part of the plaintiff company;
the definition of ordinary loss or ordinary leakage has
not been provided in the policies and the term insured
peril has not been defined in the insurance policies etc.
111. DW1 Renuka Chaudhary during her cross
examination on being asked replied that shortage has
occurred during the transfer and nature of the product.
She further replied that in the repudiation
communications, the reason for shortage are deviation
of reference height or discrepancies in recording the
quantity and /or adherence loss or evaporation loss.
She categorically stated that the defendant company
was sure about the exact cause of loss and that is why
the claims were repudiated as per the surveyors
reports.
112. In addition to DW1 Reunka Chaudhary,
defendant company has examined S.K Chakraborty,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 73 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
Surveyor as DW2 who has also filed his evidence by
way of affidavit ExDW2/A. During the cross
examination of DW2, the nature of questions put to
him was regarding preparation of the affidavit,
qualification of the witness, the obligation of the
surveyor to submit the report within 30 days, the
documents provided to him for carrying out the survey
by the defendant company and the fact that DW2 had
never visited the court physically etc.
113. If the aforesaid testimonies of these witnesses
are scanned, there would be no difficulty in arriving at
a conclusion that whatever losses were suffered by the
plaintiff company, it was Transit Operational Loss
even as per PW1 Ashok Kumar Maharshi. PW1
nowhere has stated that the loss occurred due to
marine peril. Thus, whatever the losses were suffered
by the plaintiff company, it was operational loss
during the transit and no marine peril has taken place
for which the defendant company can be held
responsible.
114. Additionally, the insurance cover notes
ExPW1/8, ExPW1/26, ExPW1/42, ExPW1/57,
ExPW1/73, ExPW1/88 and ExPW1/103 , as noted
herein above clearly indicate that the risk has been
insured subject to usual terms and conditions of the
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 74 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
company’s standard policy.
115. The terms and conditions have been duly
reflected in the insurance policies ExPW1/9,
ExPW1/27, ExPW1/43, ExPW1/58, ExPW1/74,
ExPW1/89 and ExPW1/104 . Under the heading ‘
Term of Insurance’, it has been categorically
mentioned that the risks have been covered as per
certain clauses including Institute Cargo Clauses (A)
ExDW2/A. The said clause clearly says that Insurance
Cover shall not cover the ordinary leakage, ordinary
loss in weight or volume, or ordinary wear and tear of
the subject matter insured.
116. Further, even if it was ‘All Risk Policy’, there is
nothing on record suggesting that said clause is not
applicable. The term ” All Risk Policy”, no doubt, is
very wide but it has its own limitations. It does not
mean that all types of losses and damages are covered
under such type of policy. I am of the opinion that it
would not cover things that are inevitable or almost
certain to happen. Even under ‘All Risk Policy’, it was
the duty of the insured (plaintiff) to prove that the loss
suffered by it was fortuitous. In marine insurance
‘fortuitous acts’ referred to unexpected and accidental
events that cause loss or damage to the insured. The
examples of ‘fortuitous acts’ are storms or rough seas,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 75 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
collision of ships, stranding or sinking, fire or
explosion, lightning, earthquake, piracy etc., which is
missing in the present case. Nothing has been brought
on record by the plaintiff company to show that the
loss to the plaintiff was caused due to any of the
fortuitous acts. Mere wear and tear in handling the
product would not come within the ambit of ‘
fortuitous acts’. The plaintiff company was under
obligation to connect the losses with any of the marine
peril which the plaintiff company has miserably failed
to do so.
117. It is pertinent to mention that certain types of
products, particularly the chemicals in liquid form,
which are there in the present case, would have a
natural tendency to leakage or losses in weight or
volume during the course of a voyage. Such ordinary
leakage or loss is expected to happen and the same
cannot be treated as fortuitous. The losses caused to
the plaintiff company in the present case even as per
the reports of the surveyors are basically an
operational loss or unloading loss. Meaning thereby,
the losses in the quantity of consignments are caused
by the natural characteristics of the chemical being
transported without any external influence.
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 76 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
118. Having reached the said conclusion, the plaintiff
company cannot be allowed to say that the Institute
Cargo Clause A ExDW2/A document was never
supplied to them at the time when the policies were
issued by the defendant company. In the cover notes it
is specifically mentioned that the insured i.e plaintiff
company has agreed to take insurance policies subject
to the usual terms and conditions of the company’s
standard policy. It is categorically mentioned at page
no.2 under the Terms of Insurance that the Risk under
the police are covered as per the clauses mentioned
therein including Institute Cargo Clause A ExDW2/A .
Meaning thereby, the plaintiff company is bound by
all terms and clauses including the Institute Cargo
Clauses A ExDW2/A. That clause clearly excludes the
liability of the defendant company under clause 4.2
which says that in no case shall this insurance cover
ordinary leakage, ordinary loss in weight or volume, or
ordinary wear and tear of the subject-matter insured.
119. It is true that as per the cover notes and the
insurance policies, the consignments were insured
from anywhere in India via any Indian Port (by sea)
but at the same time the insurance policies clearly
states that it agrees to insure the loss/damages or
liability or expenses subject to the clauses, endorsed,
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 77 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
conditions, warranties contained in the schedule and
attached thereto. As per the schedule, the risk cover
was “from anywhere in the world (load port) to
anywhere in India via Indian Port, India.” Therefore,
the losses as suffered by the plaintiff company were
not covered under the insurance policies and excluded
by the clause of Institute Cargo Clause (A)ExDW2/A .
120. During the argument, one of the contentions of
the Ld. Counsel for the plaintiff company was that the
defendant company cannot be allowed to travel
beyond the grounds as mentioned in the letter of
repudiation. According to the plaintiff company if the
defendant company has not taken the plea of Institute
Cargo Clause (A) in the repudiation, in that
eventuality it cannot do so later on for rejecting the
claims of the plaintiff company. In this regard, reliance
was placed on the judgment passed in the case of
Saurashtra Chemicals Ltd. (Supra).
121. In the present case, it is an admitted fact that the
claims of the plaintiff company were repudiated vide
communications dated 20.03.2014 ExPW1/20,
ExPW1/36, ExPW1/51, ExPW1/67, ExPW1/82,
ExPW1/97 and ExPW1/114. The grounds of
rejecting the claims of the plaintiff company as evident
from ExPW1/20, ExPW1/51, ExPW1/67, ExPW1/97
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 78 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
and ExPW1/114, which are almost identical, are as
under:-
“…….. The file has been reconsidered & discussed
in details by the competent authority & it has been
observed that there was no evidence of any
Insured Marine Peril activated when the cargo
was pumped from shore tank to ship tank at the
port of loading & ship’s tank into the shore tank at
the port of discharge viz. breaking of lines,
overflowing of tanks, abnormal leakages etc
during the voyage. In that case, the quantity
brought by the vessel was fully pumped and
received in shore tank & it is confirmed that the
shortage was not due to any Insured Peril, hence
there is no liability under the Policy. The same
has been confirmed by the surveyor.
In view of above, we have repudiated this claim.
As such we have no liability under the policy,
which you please note. We sincerely regret the
inconvenience caused to you and assure you that
all care has been taken to arrive at the above
conclusion, keeping the best interest of clients and
the company in mind.”
122. The main grounds/reasons for rejecting the
claims of the plaintiff company as per the
communications ExPW1/36 and ExPW1/82 are as
under:-
“…. The shortage happened due to deviation of
reference height or discrepancy in recording the
quantity & or adherence loss or evaporation
loss. There was no evidence of any insured
marine peril activated when the cargo was
pumped from ship’s tank into the shore tank viz
breaking of lines, overflowing of tanks,
abnormal leakages etc. or during the voyage in
that case, the quantity brought by vessel was inM/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 79 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
fact pumped and received. In shore tank and
shortage was not due to any insured peril hence
there is no liability under the policy and loss is
outside the scope of the policy…”
123. The aforesaid repudiation communications are
making it clear that the claims of the plaintiff company
were scrutinized vis-a-vis terms and conditions of the
policies issued in addition to the reports of the
surveyor and one of the grounds for repudiation was
adherence loss. In the said communication, it was
categorically stated that the shortage was not due to
marine peril hence, there is no liability under the
policies. This is the stand of the defendant company
from the very beginning. The Institute Cargo Clause
(A) ExDW2/A has been pressed into service by the
defendant company to show that the losses suffered by
the plaintiff company were not caused by any marine
peril and ordinary leakage or loss in weight or volume
are excluded from the Insurance Cover. It is true that
aforesaid the repudiation communications are silent in
referring to the Institute Cargo Clause (A) ExDW2/A
explicitly but in pith and substances the claims were
repudiated by the defendant company on the grounds
that the losses are not caused due to any marine peril
and ordinary or operational losses are not covered
under the insurance policy. Therefore, the contention
of the Ld. Counsel for the plaintiff company would not
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 80 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
help him much and no benefit of the said judgment can
be extended to the plaintiff company.
124. I have also gone through the judicial authorities
as relied upon by the Ld. Counsels of both the parties.
There is no doubt about the proposition of law as laid
down in those judgments with regard to certain issues
i.e interpretation of section 14 of Limitation Act; the
burden to prove exclusion clause lies on the insurer;
appreciation of surveyors reports; in case of doubt of
admissibility of claims, it has to be interpreted in
favour of the insured; the scope of ‘All Risk Policy’
and exclusion clause as contained in Institute Cargo
Clause (A) ExDW2/A ; the value of second surveyor
report etc. and these principles as laid down, have
duly been considered. However, the same would not
extend any benefit to the plaintiff company as the
defendant company has been able to prove its case and
has discharged the burden placed on it.
125. In view of my aforesaid discussion, I am of the
considered opinion that the defendant company has
been able to establish that the losses suffered by the
plaintiff company were merely operational losses and
were not caused due to any marine peril during the
voyage of the consignments and it might have
occurred due to the handing of the material for which
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 81 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)
the defendant company cannot be held liable. Thus,
this Court does not find any fault in repudiating the
claims of the plaintiff company by the defendant
company and consequently the plaintiff company is
not entitled to recover the amount, as prayed for.
Hence, issue no. 5 is answered accordingly.
Issue no. 6
In case if issue no. 5 is decided in affirmative,
whether the plaintiff is entitled for any interest, as
asked for in the plaint? (OPP).
126. In view of my findings on issue no. 5, the
question of awarding any interest does not arise. This
issue is also disposed off accordingly.
Issue No .7. Relief
127. In view of my findings on the issues, no. 5, the
present suit of the plaintiff company is hereby
dismissed.
128. There is no order as to costs.
129. File be consigned to record room, as per rules.
RAJESH Digitally
by RAJESH
signed
KUMAR KUMAR GOEL
Date: 2025.07.30
(Rajesh
GOELKumar Goel)
17:07:55 +0530
District Judge (Commercial)-02
Central, Tis Hazari Courts
30.07.2025
Announced in the Open Court
today i.e: 30.07.2025
M/s KLJ Plasticizers Limited Date of Judgment 30.07.2025 (Page 82 of 82 )
Vs Oriental Insurance Co. Ltd (806/2023)