9911796707
TMI Blog1977 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for affidavits were obtained from the Court. The suit is by the plaintiff, I. T. C. Ltd. against seven defendants. The main defendant, however, is the defendant No. 1 and the plaintiff alleged that the defendant No. 1, of which the defendants Nos. 2 and 3 are the Directors and guarantors, had borrowed some money and the plaintiff had agreed to lend and advance to the defendant No. 1 the said moneys on, inter alia, the terms that they would pledge two Trawlers to the plaintiff as security for repayment of the amounts advanced. Both the trawlers were insure with the National Insurance Company Ltd. being the defendant No. 5 herein. The material fact for the present purpose is that one of the Trawlers viz. Akashi Maru was lost on 15th Sept. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment made by the 5th defendant had been made with knowledge of the assignment and was therefore illegal and made fraudulently and in collusion with the first and the fifth defendants. Consequently the plaintiff has sought to amend the prayers in the plaint by asking a declaration that the payment made by the fifth defendant under the policies has not discharged the fifth defendant of its liability to pay the plaintiff and a decree to pay ₹ 5 lakhs or ₹ 3 lacs as to be determined by this Court. 3. On behalf of the respondents, viz., the respondents Nos. 1 and 5, it was urged that the amendments sought to introduce a new cause of action and, therefore, it should not be allowed. It was further submitted that the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that the claim on the policy has not been denied at all in this case. If one accepts this argument urged on behalf of the respondent No. 1 that the claim on the policy has not been denied but on the other hand the claim on the policy has been discharged, then, of course, the present claim of the plaintiff cannot be said to have become barred by virtue of Clause (b) of Article 44 of the Schedule to the Limitation Act. Article 58 of the Limitation Act states that for a declaration of the nature that the plaintiff has sought for, the period of limitation is 3 years when the right to sue accrues. Then again, the question would be for a suit of this nature, when can one say the right to sue accrued? Now, in this case the correct position i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amendment application. But the limitation as such is not the only deciding and guiding factor. It is one of the elements that should be taken into consideration in dealing with the justice of the situation. In this connection reference may be made to the observations of the Supreme Court in the case of Leach Co. Ltd. v. Jar-dine Skinner Co., [1957]1SCR438 . In the instant case the present amendment sought is not foreign to the claim. It arises out of the claim originally made. The claim arises out of an attempt or payment made by the fifth defendant. The controversy is that the fifth defendant had knowledge, according to the petitioner, of such an assignment. The fifth defendant denies such knowledge of assignment. In the pleading or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would become barred by limitation. On the other hand, on behalf of the petitioner it was urged that the summons was taken out on the 25th June, 1977 and therefore, the application should be deemed to have been made on that date. In the case of Govind Das v. Pran Kumar (1959) 63 Cal WN 877, the Division Bench of this Court has held that the Master when he discharged functions under Rule 3 or Rule 5 of Chapter VI of the Rules of this Court, could not be said to be doing any judicial act. These were purely ministerial acts. Taking out of a chambers summons, to which the Master had affixed his signature, did not amount to making an application to the Court. The Division Bench observed following the decision in the case of Khetter Mohun Sing v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication could not be said to have been made. Notice by the different procedures of the High Court might be given either by notice of motion or by Chambers Summons. If that is the position, then, in my opinion, the principle of Clause (c) of Sub-section (2) of Section 3 would be applicable in this case and the application in this case was to be made when the notice of the summons was taken out, that is to say, on the 25th June. 1977. But in the view that I have taken on the other aspect of the matter that the time had not started to run until the statements filed in the written statements of May, 1075, I need not rest my decision in allowing this application on this aspect of the matter. 6. For the reasons aforesaid, the prayer for ame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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