National Insurance Co. Ltd.and anr. Vs. S.B.Overseas Ltd. and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1061772
CourtKolkata High Court
Decided OnOct-03-2012
JudgeGIRISH CHANDRA GUPTA
AppellantNational Insurance Co. Ltd.and anr.
RespondentS.B.Overseas Ltd. and anr.
Excerpt:
g.a.2590 of 2012 apot 45 of 2012 a.p.o.of 2012 w.p.633 of 2010 in the high court at calcutta civil appellate jurisdiction original side national insurance co.ltd.& anr. versus s.b.overseas ltd.& anr. before: the hon'ble justice girish chandra gupta the hon'ble justice mrinal kanti sinha date :3. d october, 2012. for the appellants : mr.abhijit gangopadhayaya with ms.supriya dubey, advocates for the respondents : mr.joydip kar with mr.s.k.mal, mr.atanu raichowdhury mr.dibanath dey, advocates the court : by the impugned learned trial court admitted the writ petition order, the overruling a preliminary objection and in doing so, the learned court made the following observations : “whether or not the court would entertain a grievance arising out of contractual matters must be determined on appreciation of the peculiar facts of each case and no straight jacket formula can be laid down in that respect. the court might entertain a writ petition even in respect of contractual disputes, as would be evident from the decision of the supreme court reported in (2004) 3 scc 553. i find no reason to accept the preliminary objection in view of prima facie satisfaction that the respondentinsurance company has acted with arbitrariness while treating the petitioner’s claim as “no claim”.while rejecting the preliminary objection, i admit the writ petition. the respondent-insurance company shall be at liberty to file affidavit-in-opposition within six weeks from date ; reply thereto, if any, may be filed within two weeks thereafter. the writ petition shall be treated as ready for hearing on expiry of the period mentioned hereinabove for exchange of affidavits and thereafter the parties shall be at liberty to mention it for hearing before the appropriate bench.” mr.for the gangopadhayaya, appellants-insurance learned company advocate submitted appearing that the defence that the writ petition was not maintainable has been decided finally. it is not possible to accept his submission that the point of maintainability of the writ petition has been decided by the impugned order. the learned trial court has opined that entertainability of the writ petition “must be determined on appreciation of the peculiar facts of each case”.the facts of the case are yet to transpire before the court because the affidavits are yet to be exchanged. therefore, the view formed by the learned trial court for the purpose of admission is a prima facie view and the view formed by the learned trial court with regard to entertainability of the writ petition is also a prima facie view. mr.kar appearing for the writ petitioner- respondent did not make any submission contrary to what has been observed by us. accordingly, learned trial court this appeal shall consider is disposed of. the matter after the the affidavits are exchanged. let affidavit-in-opposition be filed within a week after the vacation ; reply thereto, if any, be filed within a week thereafter. the matter may be mentioned before the appropriate bench after the affidavits are exchanged and filed. accordingly both the appeal and the application are disposed of. urgent available to certified the copy parties of upon this order compliance be of formalities. (girish chandra gupta, j.) (mrinal kanti sinha, j.) ss. made usual
Judgment:

G.A.2590 of 2012 APOT 45 of 2012 A.P.O.of 2012 W.P.633 of 2010 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side NATIONAL INSURANCE Co.LTD.& ANR.

Versus S.B.OVERSEAS LTD.& ANR.

BEFORE: The Hon'ble JUSTICE GIRISH CHANDRA GUPTA The Hon'ble JUSTICE MRINAL KANTI SINHA Date :

3. d October, 2012.

For the Appellants : Mr.Abhijit Gangopadhayaya with Ms.Supriya Dubey, Advocates For the Respondents : Mr.Joydip Kar with Mr.S.K.Mal, Mr.Atanu Raichowdhury Mr.Dibanath Dey, Advocates THE COURT : By the impugned learned Trial Court admitted the writ petition order, the overruling a preliminary objection and in doing so, the learned Court made the following observations : “Whether or not the Court would entertain a grievance arising out of contractual matters must be determined on appreciation of the peculiar facts of each case and no straight jacket formula can be laid down in that respect.

The Court might entertain a writ petition even in respect of contractual disputes, as would be evident from the decision of the Supreme Court reported in (2004) 3 SCC 553.

I find no reason to accept the preliminary objection in view of prima facie satisfaction that the respondentinsurance company has acted with arbitrariness while treating the petitioner’s claim as “no claim”.While rejecting the preliminary objection, I admit the writ petition.

The respondent-insurance company shall be at liberty to file affidavit-in-opposition within six weeks from date ; reply thereto, if any, may be filed within two weeks thereafter.

The writ petition shall be treated as ready for hearing on expiry of the period mentioned hereinabove for exchange of affidavits and thereafter the parties shall be at liberty to mention it for hearing before the appropriate Bench.”

Mr.for the Gangopadhayaya, appellants-insurance learned company advocate submitted appearing that the defence that the writ petition was not maintainable has been decided finally.

It is not possible to accept his submission that the point of maintainability of the writ petition has been decided by the impugned order.

The learned Trial Court has opined that entertainability of the writ petition “must be determined on appreciation of the peculiar facts of each case”.The facts of the case are yet to transpire before the Court because the affidavits are yet to be exchanged.

Therefore, the view formed by the learned Trial Court for the purpose of admission is a prima facie view and the view formed by the learned Trial Court with regard to entertainability of the writ petition is also a prima facie view.

Mr.Kar appearing for the writ petitioner- respondent did not make any submission contrary to what has been observed by us.

Accordingly, learned Trial Court this appeal shall consider is disposed of.

The matter after the the affidavits are exchanged.

Let affidavit-in-opposition be filed within a week after the Vacation ; Reply thereto, if any, be filed within a week thereafter.

The matter may be mentioned before the appropriate Bench after the affidavits are exchanged and filed.

Accordingly both the appeal and the application are disposed of.

Urgent available to certified the copy parties of upon this order compliance be of formalities.

(GIRISH CHANDRA GUPTA, J.) (MRINAL KANTI SINHA, J.) ss.

made usual