M/s. Bharat Coking Coal Limited, a Central Government v. M/s. ICICI Lombard General Insurance Company Limited

(c) Whether the learned 1st appellate court has failed to consider that the burden of proof as to dispatch of insured articles by the plaintiff/appellant during the insured period was upon the defendant/respondent who miserably failed to prove the plaintiff/appellant dispatched any article/material during the aforesaid period?”

3. The learned counsel for the appellant has addressed the substantial question of law nos. (a) and (b) simultaneously and has submitted that both the issues are related to each other. The learned counsel submits that the appellant is a public sector company and the suit was filed through the material manager and the plaint itself was filed on affidavit stating that Priya Ranjan was the material manager of the plaintiff company and was authorized to file the suit and was well acquainted with the facts and circumstances of the case. 4. The learned counsel submits that a written statement was filed. Although an objection was raised that the suit was not maintainable either on law or in facts, but no objection was taken in connection with the locus of the material manager to file the suit. The learned counsel submits that the said person had also deposed before the court as P.W.1 and there has been no cross-examination of this witness with regard to his authority to file the suit. The learned counsel submits that the parties did not join issue with regard to locus of the material manager to file the suit at the stage of trial and accordingly no such issue was framed. However, the learned first appellate court has framed the issue of competence of this authority to file the suit and has 2 decided the same against the appellant. Consequently, the appellant has been non-suited. 5. The learned counsel has referred to Order XXIX Rule 1 of Code of Civil Procedure (CPC) to submit that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. The learned counsel submits that the term “principal officer” has not been defined under CPC, but the material manager would certainly fall within the meaning of “principal officer” as he was duly acquainted with the facts and circumstances of the case and was certainly an officer of the company. 6. The learned counsel has also referred to the documents exhibited before the court which were undisputed documents on record particularly Exhibit - 5 and submits that even the defendant has been communicating with the plaintiff company through the material manager. The learned counsel has submitted that she could not find out any other statute or even under the General Clauses Act defining the term “principal officer” and she could get the definition only under Income Tax Act, 1961 which defines the term “principal officer” under Section 2 (35) which is quoted as under: “(35) “principal officer”, used with reference to a local authority or a company or any other public body or any association of persons or any body of individuals, means— (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the [Assessing Officer] has served a notice of his intention of treating him as the principal officer thereof;”

7. The learned counsel has also relied upon the judgement passed by Hon’ble Orissa High Court in Writ Petition No.6068 of 2009 (M/s Jindal Steel & Power Limited and another Vs. State of Orissa and 3 others) and referred to paragraph 21 and 22 of the said judgement which inter alia refers to the judgement passed by Hon’ble Delhi High Court and the Hon’ble Supreme Court and has in particular referred to the quotations recorded in the said judgment taken from the judgement reported in AIR 1997 SC 3 (United Bank of India Vs. Naresh Kumar and Ors.). The learned counsel has also submitted that in the said judgment i.e. AIR 1997 SC 3 (supra), it has also been observed that a person may be expressly authorized to sign the pleadings on behalf of the company, through Board of Directors by passing a resolution to that effect or by a power of attorney being executed in favour of any individual and in absence thereof and in cases where pleadings have been signed by one of its officers, a corporation can ratify the said action of its officers in signing the pleading. 8. The learned counsel has thereafter referred to the judgment passed by the Hon’ble Supreme Court reported in 1961 SCC Online SC 277 (Jute and Gunny Brokers Ltd. and Ors. Vs. Union of India and Ors.) at page 12 to submit that the said judgment was relating to the service of summons which has similar provisions as that of Order XXIX Rule 1 and is incorporated in order XXIX Rule 2. The learned counsel submits that in the said case, it has been noted that order XXIX Rule 1 and 3 do not define who is a principal officer and in the said case, the notice was served upon managing agent and the Hon’ble Supreme Court held that considering the nature of duties of the managing agent of the corporation it must be held that he was the principal officer. 9. The learned counsel submits that the nature of duties assigned to material manager in order to be a principal officer is essentially a matter of evidence. Had any objection been taken with regard to the status of the material manager to file the suit itself, or had any such query being raised at the stage of cross examination, this aspect of the matter could have been answered. She submits that whether a person who constitute a principal officer for the purpose of company to file a case is essentially a question of fact and not a pure question of law and such a point requires evidence and therefore such a point of 4 determination could not have been formulated by the learned first appellate court without foundational pleading. 10. With respect to the substantial question of law no.(a) and (b), the learned counsel for the respondent has submitted that from perusal of the entire plaint, there is no averment that the material manager or the person who had filed the suit who was the material manager at the relevant point of time was competent to file the suit and the statements made in the affidavit appended to the plaint has no relevance as the defendant has to respond only to the plaint and not to the affidavit and verification to the plaint. The learned counsel submits that it is certainly open to the court to see as to whether the plaint as such was maintainable or not irrespective of any specific objection being raised by the defendant. 11. The learned counsel has referred to Section 103 of the Evidence Act to submit that the burden of proof as to a particular fact that the then material manager Mr. Priya Ranjan was competent to file the plaint was upon the plaintiff and this burden was never discharged and therefore the point was already taken that the suit was not maintainable. This point was not properly addressed by the learned trial court and therefore the learned first appellate court has framed specific issue with regard to competence of Priya Ranjan, the material manager to file the suit and the same has been decided in accordance with the law. The learned counsel has also referred to the evidence and has submitted that at the stage of evidence, the said person Mr. Priya Ranjan had deposed and he has simply stated that he was competent to give evidence but no statement has been made that he was competent to file the suit and therefore in absence of basic averments and evidence with regard to his competence to file the suit, the first appellate court has rightly decided the issue. 12. The learned counsel has also submitted that the judgments relied upon by the appellant has no applicability to the facts and circumstances of this case in view of the fact that in paragraph 22 of the judgment passed in the case of W.P. No.6068 of 2009 (supra) by Hon’ble Orissa High Court, it was held that in certain situation in 5 public interest a strict adherence to rules of filing a proceeding in a suit or writ petition can be relaxed especially when the public interest is involved. The learned counsel submits that in the present case there is no public interest as such involved; it is litigation between two companies. The learned counsel has submitted that no order of relaxation as such passed by the learned trial court on this technical aspect of the matter. 13. In response, the learned counsel for the appellant has submitted that a close look of Order XXIX Rule 1 reveals that the principal officer can sign and verify the pleadings. In the present case, the plaint was the pleading which was duly verified and signed by the material manager and it was supported vide affidavit disclosing his status and therefore, the argument of the learned counsel for the respondent that only the plaint is to be seen bereft of the verification and affidavit is not correct. The plaint has to be seen along with the affidavit. 14. With respect to the 3rd substantial question of law i.e. substantial question no.(c), the learned counsel for the respondent has raised a serious objection and submitted that the 3rd substantial question of law does not arise for consideration in this case as the same is not a substantial question of law at all. The learned counsel submits that the learned first appellate court has considered the terms and conditions of the agreement, the plaint and the oral and documentary evidences on record to come to a finding that the plaintiff was not entitled for any refund of premium. The learned counsel has also submitted that admittedly, there is no clause or stipulation for return of the premium in the agreement between the parties and the learned first appellate court has recorded that in absence of any such clause, Section 84B of the Marine Insurance Act, 1963 would not come to the rescue of the plaintiff. 15. The learned counsel submits that with respect interpretation of Section 84 (b) of the Marine Insurance Act, 1963, no substantial question of law has been framed and, therefore, such finding has become final. The learned counsel has submitted that such 6 objection with regard to formation of substantial questions of law can be taken by the respondent in terms of Section 100, subsection 5 of CPC, and for that he has referred to the judgments passed by the Hon’ble Supreme Court reported in (2008) 12 SCC 796 (Kashmir Singh Vs. Harnam Singh and Anr.). The learned counsel has further referred to internal page 799 of the aforesaid judgment and has submitted that paragraph 17 onwards of the earlier judgment passed in the case of Kanhaiyalal Vs. Anupkumar reported in (2003) 1 SCC 430 has been considered and in particular he has referred to the paragraph 20 thereof to submit that where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. It has been held in the said paragraph itself that mere appreciation of facts, the documentary evidences or the meaning of the entries and the contents of the document cannot be held to be raising a substantial question of law. 16. The learned counsel submit that in order to answer the substantial question of law so framed by this Court in paragraph 5 (c) the order dated 29.04.2025, the same essentially requires appreciation of pleadings and evidences on record and interpretation of documents which has already been fairly done by the learned first appellate court. 17. The learned counsel for the appellant, in response, has submitted that it was the specific case of the plaintiff that there was no dispatch covered under the policy. There may be dispatches but unless the dispatch is covered under the policy, there was no requirement to give any details of such dispatch and therefore the learned first appellate court has not considered the matter properly while reversing the decree. 18. The learned counsel for the appellant has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2024) 8 SCC 712 (Mahakali Sujatha Vs. Branch Manager, Future Generali India Life Insurance Company Limited and Anr.), paragraph 53, which deals with the doctrine of contra proferentem rule and she 7 submits that in the said paragraph, a reference has been made to the judgment passed by the Hon’ble Supreme Court, reported in AIR 1966 SC 1644, (General Assurance Society Ltd. v. Chandumull Jain) wherein it was held that where there is an ambiguity in the contract of insurance or doubt, it has to be construed contra proferentem against the insurance company. The learned counsel submits that this principle is attracted in the present case, and there is ambiguity in the terms and conditions of the policy, and therefore, the impugned judgment is fit to be set aside. 19. In response to the aforesaid submissions of the appellant with respect to substantial question of law no. ( c ) , the learned counsel for the respondent, has submitted that it was never the case of the plaintiff that one or the other clause of the contract or insurance was suffering from any doubt or ambiguity, and therefore, such principle is not attracted and consequently the judgment relied upon by the appellant has no applicability to the facts and circumstances of this case. 20. The learned counsel has referred to Section 58 and Section 103 of the Indian Evidence Act and submitted that whatever pleading was there in the plaint on behalf of the plaintiff was only required to be addressed and therefore there was no burden of proof on the defendant to prove dispatch of insured articles by the plaintiff during the insurance period. The learned counsel submits that the learned 1st appellate court has interpreted the contract by holding that each and every dispatch was to be disclosed. The learned counsel has also submitted that when the terms of the contract is in writing then the same cannot be interpreted through oral evidence. Findings of this court. 21. After hearing the learned counsels for the parties and considering the facts and circumstances, it is not in dispute that the parties were bound by the insurance policy covered under the Marine Insurance Act, 1963 which was valid for a period from 27.04.2005 to

26.04.2006. It is further not in dispute that after the period of insurance was over, the plaintiff had applied for refund of the 8 premium to which the defendant had denied vide communication dated 26.12.2006 (Exhibit -5) and the same was indicating “drawing kind attention to Mr. Mihir Chandra, (Material Manager (SD))”. 22. A legal notice was also given by the plaintiff dated 20.03.2007 (Exhibit – 6) seeking refund of Rs.2,75,501/- through registered post, but the plaintiff did not receive any response to the same. The payment of premium through cheque amounting to Rs. 2,75,501/- is Exhibit 4. Exhibit 1 is the communication issued by the plaintiff to the defendant regarding acceptance of policy dated 03.03.2005, Exhibits - 2 and 3 are the documents connecting general terms and conditions of the policy. The documents were marked without objection from the side of the defendant. The documents are not in dispute. 23. On account of refusal to refund the premium amount and having no response to the legal notice, a money suit was filed seeking recovery of Rs.2,75,501/- with interest, pendente lite and future. The defendant appeared and filed their written statement opposing the prayer. Following issues were framed for consideration by the learned trial court: “(I)Is the suit as framed is legally maintainable? (II) Has the plaintiff got any cause of action for the suit? (III) Is the suit barred under the Insurance Act? (IV) Is the suit barred under the terms of Marine Inland Transit Insurance (Open) Policy? (V) Is the premium amount in question is returnable by the defendant to the plaintiff? (VI) Is the plaintiff entitled to the reliefs claimed in the suit? (VII) To other or further relief the plaintiff is entitled to?”

24. The learned trial court considered all the issues and the material issues were decided in favour of the plaintiff and decreed the suit. 25. So far as the learned 1st appellate court is concerned, it framed three points for determination, which are as follows. “1. Whether the suit has been signed, verified and instituted by a duly authorized person? 9

2. Whether M/s Bharat Coking Coal Limited (Respondent herein) is entitled for refund of amount of insurance premium?

3. Whether judgment and decree passed by the court below required any interference?”

26. All the points for determination were decided against the plaintiff and in favour of the defendant and, consequently, the judgment and decree passed by the learned trial court was set aside. 27. So far as the substantial questions of law no.(a) and (b) are concerned, they are related and the learned counsel for the parties have advanced their arguments with respect to both the issues at one go. 28. This Court finds that the plaint was filed by the plaintiff, namely, M/s. BCCL, stating that the plaintiff is a Central Government Company within the meaning of Section 617 of Indian Companies Act having its registered office at Dhanbad and it was accompanied with verification and affidavit. The plaint was verified by one Priya Ranjan, who was the employee of the plaintiff company posted at BCCL headquarter as material manager and claimed to have been authorized to file the suit and also claimed that he was well acquainted with the facts and circumstances of the case. The body of the plaint as such did not mention about the status of Priya Ranjan, but the plaint was duly signed, verified and affidavit by Priya Ranjan declaring his status and also acquaintance and authority to file the case. 29. The written statement was filed by the defendant raising that the suit was not maintainable either in law or on fact and further no objection was raised with regard to the locus/status or authority of Priya Ranjan to file the suit. In such circumstances the learned trial court apart from formulating a formal issue as issue no.(I) as to whether the suit as framed was legally maintainable, no issue was framed with regard to competence of Priya Ranjan to file the suit. While deciding issue no.(I), the learned trial court held that the suit was maintainable as the refund for payment of premium was denied by the defendant and there was valid cause of action. 10

30. The records of the case reveal that the plaintiff and the defendant did not join issue with regard to the locus of Priya Ranjan to file the case on behalf of the plaintiff namely M/s. BCCL. Further, the communication placed on record exhibit-5 also reveals that there was direct communication between the parties through the Mr. Mihir Chandra, (Material Manager (SD) and through the same material manager the case was filed by the plaintiff. 31. The respondent has submitted before this court that since there was no averment in the body of the plaint as such regarding the status and locus of Priya Ranjan to file the suit, so, no such specific averment was made in the written statement. He has also submitted that verification and affidavit do not form part of the plaint. 32. This Court is of the considered view that the plaint has to be seen along with its verification and affidavit. The argument of the learned counsel for the respondent that the affidavit to the plaint had no value at all, is not tenable in the eyes of the law. 33. The learned counsel for the respondent has also submitted that the court can suo moto go into the maintainability of the suit as filed, and therefore, he has submitted that there was no illegality on the part of the learned 1st appellate court in framing an issue to that effect. To draw an analogy, the learned counsel for the respondent has also relied upon the provisions under the Limitation Act to submit that the courts are suo moto under obligation to examine the point of limitation. Similar is the situation with respect to the person who is filing the plaint. 34. This Court is of the view that the Order XXIX Rule 1 clearly provides that in case of corporation, the suit can be filed by Secretary or any director or any other principal officer of the corporation who is able to depose to the fact of the case. This Court is of the view that the law clearly provides that any principal officer of the corporation who is able to depose to the facts is competent to file the suit. In the present case, the affidavit appended to the plaint clearly indicated that Priya Ranjan was authorized and was well acquainted with the facts and circumstances of the case. The statements made in affidavit to the 11 plaint are not ornamental but every word carries meaning to it. The term “principal officer”, as such, has not been defined under the CPC. The judgment, which has been relied upon by the learned counsel for the appellant with respect to the authority of the principal officer of the corporation to file the plaint and depose, essentially reveal that whether a person would qualify to be a principal officer of the company would essentially depend upon the facts and circumstances of the case, and it is essentially a matter of evidence. 35. This Court is of the view that since no serious objection was taken on the part of the defendant with regard to the status of Priya Ranjan to file the suit, there was no occasion for him to bring him through evidence regarding his acquaintance with the facts and circumstances of the case and the fact that he would qualify as a Principal Officer. The aforesaid judgment also reveals that there is also a possibility of post facto approval by the company. If any such objection was raised by the defendant in this case, then there was also a scope for post-facto approval by the company. Such objections having not been raised at appropriate time, there was no occasion to even go for post-facto approval. The evidence on affidavit which was filed by Priya Ranjan also reveals that he made a statement that he was acquainted with the facts and circumstances of the case to depose, and there is no cross-examination from the side of the defendant with regard to the competence of Priya Ranjan to file the plaint and depose on behalf of the plaintiff. 36. So far as analogy having drawn by the respondent with regard to the provisions of Limitation Act, this Court finds that under Section 3 of the Limitation Act, there is a legal obligation cast on every court even to suo motu see as to whether the suit is barred by limitation or not. This Court is of the view that in case where the law permits the plaint to be filed even by the principal officer, and in case where no specific objection has been raised by the defendant with regard to the locus of the officer who had filed the case, the parties do not join issue on such matter and therefore there was no occasion for the learned first appellate court to frame a point for determination in that 12 connection. The locus of Priya Ranjan to file the case was itself could have been a matter of mixed question of fact and law had the defendant raised such an issue at the stage of trial. 37. In view of the aforesaid findings, this Court is of the view that the learned first appellate court was not justified in framing the point of determination no.1 i.e. whether the suit has been signed, verified and instituted by duly authorized person, in spite of there being no specific objection from the side of the defendant on this ground. 38. Further, this Court also holds that the finding of the learned 1st appellate court that suit was not signed, verified and instituted by duly authorized person is itself perverse on the face of the affidavit appended to the plaint. 39. It is held that the learned 1st appellate court was not justified in framing point of determination No. (1) i.e. whether the suit has been signed, verified and instituted by a duly authorized person inspite of there being no specific objection from the side of the defendant on this ground. It is also held that otherwise also the finding of the learned 1st appellate court that the suit was not signed, verified and instituted by a duly authorized person is perverse. 40. Accordingly, both the substantial questions of law nos. (a) and (b) are answered in favour of the appellant and against the respondent. 41. So far as the 3rd substantial question of law is concerned, the learned counsel for the respondent has raised a serious objection by stating that the same is not a substantial question of law at all and for that he has relied upon the judgement passed by the Hon’ble Supreme Court reported in (2008) 12 SCC 796 (Kashmir Singh Vs. Harnam Singh and Anr.). The 3rd substantial question of law essentially deals with the burden of proof with regard to dispatch of insured articles upon the defendant when the plaintiff had taken a plea that the plaintiff had not dispatched the insured articles during the period. 42. This Court finds that the specific case of the plaintiff as per paragraphs 6, 7, 8 of the plaint was that besides other condition, there was a declaration clause and it was their case that there was no 13 dispatch of material attracting coverage under open general policy and therefore no declaration was given by the plaintiff to the defendant during the currency of the contract. It was their further case that the subject matter insured had never been imperiled and no further declaration, as per the contract, was given by the plaintiff to the defendant during the currency of the policy/contract and therefore the entire premium amount was to be refunded. From perusal of the entire plaint, this Court finds that no plea was raised by the plaintiff that one or the other clause was ambiguous so as to attract the principle of contra proferentem, and therefore, the judgment as relied upon by the appellant reported in (2024) 08 SCC 712 (supra) does not apply to the facts of the case. 43. This Court finds that admittedly no declaration was furnished from the side of the plaintiff, and they claimed that there was no dispatch material attracting coverage under open general policy. Although, as per the declaration clause, the insured was required to give full particulars of each dispatch in a declaration statement in the chronological order assigning declaration number for each such dispatch. This clause has been interpreted by the learned 1st appellate court by holding that each and every dispatch was required to be interpreted and during the cross-examination of P.W.-1, he has admitted that there were numerous dispatches during the period in question. In paragraph 13 and 14 of the evidence, and in paragraph 5, he has stated that the dispatch covering the insurance were not available; there was no dispatch covering the insurance. 44. Both the counsels have referred to the evidences on record and also the terms and conditions of the agreement and have advanced their argument with respect to the 3rd substantial question of law. This court finds that the learned 1st appellate court has appreciated the plaint, written statement, the terms and conditions of the agreement, and has come to a definite finding upon interpretation of Clause 6 that all the full particulars of each dispatch in the declaration was to be given. This is essentially a finding of fact based on materials on 14 record. No perversity as such has been pointed out by the learned counsel for the appellant with respect to this finding of fact. 45. Having recorded the aforesaid finding of fact that all the full particulars of each dispatch in the declaration was to be given by the plaintiff, as per the learned 1st appellate court, the onus was upon the plaintiff to make declarations of each and every dispatch which the plaintiff admittedly failed to abide. 46. In view of the aforesaid finding of fact recorded by learned 1st appellate court which does not suffer from any perversity, this Court is fully satisfied with the arguments advanced on behalf of the respondent that the substantial question of law no. (c) as framed by this Court is not a substantial question of law at all as the same would involve reappreciation of the agreement, the evidences on record which is not permissible except in case of perversity and no perversity as such has been shown by the learned counsel for the appellant with respect to the appreciation of the evidences and materials placed on record. This is over and above the fact that the learned 1st appellate court has recorded a clear finding that Section 84 (b) of the Marine Insurance Act is not attracted as the terms and conditions of the contract did not have any such clause to entitle the plaintiff to claim refund of premium. This Court finds that no substantial question of law has been framed with regard to such finding of the learned 1st appellate court. In view of the aforesaid facts and circumstances, this court holds that the substantial question of law no. (c) as framed by this Court is not a substantial question of law in the light of Section 100 of CPC as interpreted by the Hon’ble Supreme Court. 47. In spite of holding that the substantial questions of law no. (a) and (b) are answered in favour of the appellant and in view of the aforesaid finding of this Court that the substantial question of law no. (c) is not a substantial question of law, the findings recorded by the learned 1st appellate court on merits of the case that the plaintiff is not entitled for refund does not call for any interference. Consequently, the judgment of the learned first appellate court is confirmed except with regard to point of determination no. 1. 15

48. Accordingly, this 2nd appeal is dismissed even when the substantial question of law nos. (a) and (b) are answered in favour of the appellant but no relief can be granted to the appellant with respect to the relief of refund from the defendant claimed by them in the suit. 49. Pending interlocutory application, if any, is dismissed as not pressed. Saurav/ (Anubha Rawat Choudhary, J.) 16