At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE M.M. SUNDRESH & THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
For the Appellants: P.V.S. Giridhar for M/s. Giridhar & Sai, Advocates. For the Respondent: T. Murugamanickam, Sr.C. for M. Selvaraju, Advocate.
(Prayer: Original Side Appeal is filed under Order XXXVI Rule 9 of the O.S. Rules read with Clause 15 of the Letters Patent to set aside the judgment and decree passed in C.S.No.375 of 2009 dated 24.03.2017.)
N. Anand Venkatesh, J.
1. The defendants in the suit have filed this Original Side Appeal, aggrieved by the judgment and decree made in C.S.No. 375 of 2009, dated 24/03/2017.
2. For the sake of convenience, the parties shall be referred in the same manner as in the suit as plaintiff and defendants.
3. Facts in Nutshell:
3.1. The plaintiff is an exporter of garments. On 19/02/2001, he obtained a shipment comprehensive risks policy from the defendants to secure their goods from defaulting purchasers. As per the policy, the obligation is on the plaintiff to file shipment declarations and to pay the premium within the time stipulated under the policy. Clauses 8 and 10 of the policy specifically stipulates such an obligation. The proposal for renewal of policy was received from the plaintiff on 24/01/2003 and on receipt of premium for the difference of risk value amount on 17/03/2003, the policy was renewed with retrospective effect from 01/01/2003 valid for a period up to 31/12/2004.
3.2. The plaintiff made shipments to the buyer on 30/12/2002 and 31/12/2002 and as per clause 8 (a) of the policy, the declaration should have been submitted by the plaintiff for this shipment by 15/01/2003. However, the declaration was received by the first defendant only on 17/03/2003, which disentitles the plaintiff to make any claim for these shipments under the policy as per clause 19 (a). At this point of time there was a no claim bonus to the tune of Rs.1,33,552/-[Rupees One Lakh Thirty Three Thousand Five Hundred and Fifty Two only] for the policy for the period from 01/01/1997 to 31/12/2004.
3.3. In the regular course, the foreign buyer should have taken delivery of the goods only after accepting the documents sent to him through the plaintiff s bankers to the foreign buyer s bankers. However, the foreign buyer took delivery of the goods from the ship without