TaxTMI 
TaxTMI 
2004 (12) TMI 740
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....iff, by fire. (b) On 28.6.1986, at about 3.00 a.m., there was a fire in the godown of the plaintiff firm, where stocks were stored, which was put off by the fire brigade subsequently. In the meantime, the entire godown and stock were destroyed by the fire, which was inspected by the first defendant's Assistant Divisional Manager, who came to the spot on the same day at about 10.00 a.m. At about 11.45 a.m., the first defendant's Surveyor also came to the scene, conducted preliminary survey. The stock stored in the godown of the plaintiff's firm, which was valued at Rs. 9,92,420, was destroyed completely, thereby making total loss. The plaintiff's claim for the above said amount, made to the first defendant on 17,10.1986 was repudiated by the first defendant only on 20.3.1989, that too, without mentioning any grounds. Under the above circumstances, the plaintiff/ appellant, was constrained to file the suit, for recovery of the suit claim. (c) The first respondent in its written statement, not admitting the worth of the stock as Rs. 9,92,420 in the godown, had contended, that the stock is exaggerated, that the claim of interest is untenable, that the ....
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....aran. 4. The learned counsel for the appellant submitted, that the plaintiff has proved not only the stock available on the date of fire, but also the value of the stock in trade, by producing stock registers, which were not properly considered by the learned single Judge; that there is no defence of foul play or fraud on the side of the first defendant, questioning the cause of fire and in view of the admitted fire accident and the stock in trade was destroyed in the fire completely, the learned Judge ought to have decreed the suit. In this view, it is submitted, by the interference of this Court, a decree should be granted as prayed for. 5. The above submissions are countered by the learned counsel for the first defendant, that the materials placed for proving the stock in trade or the cause of fire, are insufficient and undependable, as held by the learned Single Judge, that the good faith, on which the contract of insurance is based upon, was shattered by the conduct of the plaintiff and that the suit filed by the plaintiff firm, without complying Section 69(2) of the Indian Partnership Act (hereinafter called 'the Act') is not maintainable. On the above grounds, ....
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....o the contesting defendant, that too, in the appellate stage. 9. But, the learned counsel appearing for the first respondent submitted, that the question of maintainability of the suit, for non- compliance of Section 69(2) of the Act, is purely a question of law, which could be raised even without any plea and in this way, making submission, an attempt was made, to non suit the plaintiff. Therefore, we have to see the effect of Section 69 of the Act, as well as the procedure contemplated under C.P.C., for the suits to be filed by or against firms and persons carrying on business in names other than their own. 10. Section 69(2) of the Act reads: "No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm." This Section has two limbs and the first one is, the firm should be registered and the second is, that the persons suing are or have been shown in the register of firms as partners in the firm. The plaintiff/appellant had satisfied the first requirement, which is conc....
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....the latter part of the condition, contemplated in the ruling is not at all available, and the first respondent also admittedly failed to challenge the capacity of the managing partner, who claim so, to sign and verify the pleadings. On this point, no evidence has been let in, and materials are also not available, to decide whether the partner, who has filed the suit, was shown as a partner in the register of firms. In this view of the matter, we are of the considered opinion, that the point now raised by the learned counsel for the first respondent is not a pure question of law, which could be raised in the appeal, without raising the same before the trial Court. In this context, we have to see Order 30, Rule 1 of C.P.C. 12. Order 30, Rule 1, C.P.C. contemplates, how two or more persons claiming or being liable as partners and carrying on business may sue or be sued in the name of the firm. Satisfying this condition i.e. by producing the firm's registration certificate, the suit was filed and the same was taken on file. As indicated by us hereinbefore, the cause title shows that the signatory to the plaint is the Managing Partner of the firm. If the contesting defendant had ....
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....s of Section 69(2), Partnership Act, could only be attracted to a suit if it was instituted either by or on behalf of the firm, that is to say, ex facie it purports to be filed either by or on behalf of the firm." In the case involved in the above decision, only non-production of the registration certificate alone was in dispute and the second limb of Section 69(2) was not considered. Therefore, on the basis of the above decision, in this case, where it is proved that the firm is registered, it cannot be said that the institution of the suit itself is bad, from the inception. 15. A Division Bench of Bombay High Court in Gandhi & Co. v. Krishna Glass Pvt. Ltd., AIR 1987 Bom 348 has considered the scope of Section 69(2) of the Act, as well as Order 30, Rules (1) & (2), C.P.C. While considering so, the Division Bench has held that the question of applicability of provisions of Order 30, Rules (1) & (2) of the Civil Procedure Code arises only if the suit itself is validly instituted in compliance with the provisions of Section 69(2) of the Act and therefore, the provisions of C.P.C. cannot lend any support, in a curing defect viz., non-compliance of Section 69(2) of the Act. It i....
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....at the name of the person, who has sued, representing the firm, has not been shown in the register of firms, then demanding to produce the certificate, as contemplated under Order 30, Rule 2, C.P.C, thereby giving an opportunity to the plaintiff to satisfy the requirement of latter part or second limb of Section 69(2) of the Act. Since such an opportunity has not been made available to the plaintiff, having taken this defence surprisingly at the time of the second appeal, the first respondent's attempt to non suit the plaintiff, is not acceptable to us, since this is not a question of law alone, which could be decided on the facts available, for its determination, the fact being no concentration was made by the parties to let in evidence, to satisfy the requirement of Section 69(2) of the Act or otherwise. In the above case only considering the fact, that the name of one of the partners does not find place in the register of firms, the division bench has ruled as extracted above, which ratio cannot be applied as such to the case on hand. 16. The submission of the learned counsel for the first respondent, that the person suing must be shown as partner of firm at the time of f....
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....enefit is conferred by a statute which has public policy for its object, and, (4) Such waiver can be expressed or be inferred from the facts and circumstances of the case." The above principle could be made applicable to the present case, since the defendant has not raised the maintainability of the suit, based on Section 69 of the Act, thereby bringing his conduct within the meaning of waiver, which could be inferred from the facts and circumstances of the case. For the foregoing reasons, we are of the firm opinion that the suit is maintainable and the non-compliance of second limb of Section 69(2) of the Act under the facts and circumstances of this case, cannot be raised by the first defendant, to non suit the plaintiff, at the appellate stage. Hence this point is answered accordingly. Point No. 2 18. The fact that the plaintiff insured its stock of cotton of all varieties, with the first respondent under two policies, totaling a sum of Rs. 10,00,000 is not in dispute. The first policy was taken on 3.6.1986 and the second policy was taken on 10.6.1986. Within 18 days, the godown of the plaintiff, where the plaintiff stocked its trading goods, caught fire and th....
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....ly, having regard to their value at the time of the loss or damage, not including profit of any kind; (b) particular of all other insurances if any; The insured shall also at all times at his own expense produce, procure and give to the Company all such further particulars, plans, specifications, books, vouchers, invoices, duplicates or copies thereof documents, proofs and information with respect to the claim and the origin, and cause of the matter touching the liability or the amount of the liability of the company as may be reasonably required by or on behalf of the Company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected there with. The above said conditions mandate the insured that he should produce books, vouchers, invoices, etc., in respect of the claim, probably in this case, to prove the actual stock as on the date of fire. According to the learned counsel for the first respondent, except Exs. P.7 and P.8, the self serving stock registers, said to have been maintained by him, not even written by the accountant though available, no other documents have been produced, such as vouchers for t....
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....een dumped in the godown, later on calculated the value of the stock at Rs. 4,50,474. In the surveyor's report itself, number of documents were attached, thereby indicating that the insured had produced the documents available with him, to prove the stock. Therefore, disowning the surveyor's report, the first respondent is not entitled to repudiate the claim in entirety, which was unfortunately accepted by the learned single Judge as such, concluding that there was no good faith on the part of the plaintiff, and the circumstances suggest that the fire is attributable to a cause, which is not a reason covered by the policy of insurance, which appears to be not the case of insurer. The policy covers specifically the damage caused to the stock by fire also. It is not the case of the defendant that there is any foul play or fraud, for the purpose of claiming insurance amount, to enrich themselves unlawfully. This being not the defence, we do not find any reason to ignore the surveyor's report filed on behalf of the first defendant, which proved the damage, to the stock that could have been available on the date of fire accident, for which the plaintiff is entitled to a decr....
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....ough it could be said, the plaintiff having made a claim of Rs. 9,92,420, failed to prove the same to the entire entire extent. 24. The learned counsel for the appellant relying upon certain passage in "Fire and Motor Insurance" by E.R. Hardy Ivamy, (1973 Edition), submitted that the cause of fire in this case may not weigh the quantum of evidence or it may not be the cause for rejecting the claim, since the contract is to provide for the payment of money, upon the happening of a fire. In the said book, it is observed under the heading 'Immateriality of Cause of the Fire' as follows: "The object of the contract is to provide for the payment of a sum of money, or for some corresponding benefit, to meet a loss or detriment which may be suffered by the insured upon the happening of a fire. To carry the investigation, therefore, beyond the cause of the loss, and to cast upon the insured the burden of establishing that the cause of the fire itself was covered by his contract, would largely defeat this object. When it is once established that the loss is due to fire within the meaning of the contract, the cause of the fire is, as a general rule, immaterial. ....
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....erial what the cause of the fire is, generally. Thus, whether it was because the fire was lighted improperly or was lighted properly but negligently attended to thereafter or whether the fire was caused on account of the negligence of the insured or his servants or strangers is all immaterial and the insurer is liable to indemnity the insured." Therefore, considering the policies taken by the insured here, we affirm the above said view, thereby concluding that the claim of the plaintiff cannot be dismissed on the ground that the cause of fire pleaded in the plaint has not been established. The cause of fire becomes material and should be seen, where there is a defence such as that the fire occasioned not by the negligence, but by the wilful act of the insured or where any foul play has been made out or suspected, which are not even pleaded in this case and no such case has also been made out. 28. In Harris v. Poland, 1941 KB 462, Lord Atkinson, J. has ruled that, "It mattered not whether the property had gone to the fire or the fire had gone to the property. There had been ignition of insured property not intended to be ignited, and the loss fell within the plain wor....