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Judgment
Ravi Malimath, J.—Aggrieved by the Judgment & decree dated 9-4-2007 passed by the Senior Civil Judge, Doddaballapur, in O.S. No. 438/2002 decreeing the plaintiff''s suit for damages of Rs. 6,77,000/- with proportionate cost and interest @ 6% p.a. from the date of suit until realization the defendants have filed the present appeal. The case of the plaintiff is that it is a proprietary concern manufacturing Tissue papers and other allied products. For the purpose of expansion of business a loan of Rs. 31,66,000/- was taken from the 2nd defendant KSFC, under the supervision of their main office 1st defendant KSFC, for plant and machineries. That the plaintiff had insured the building and stock in hand only and the defendants had insured plant and machineries with an understanding that since the 2nd defendant stands in the foot of the mortgager to the plaintiff and the plant and machineries were under their first charge. That for two consecutive years, that is from 21-01-1997 to 20-01-1998 and 21-01-1998 to 20-01-1999 the defendants had paid the insurance premium of Rs. 15,166/-. Consequently, they ought to have insured the plant and machineries for the third consecutive year. However they did not do so. Due to a fire accident on the intervening night of 23rd and 24th November 1999 in the plaintiff''s factory the plant and machineries and stock in trade as well as the buildings were damaged causing extensive loss. Thereafter, the matter was reported to the defendants with a request to inspect and assess the damage. They did not respond. Since the plaintiff had insured the building and stock in trade, they claimed insurance. They could not do so in respect of the damaged plant and machineries only due to a bonafide impression and reasonable belief that the defendants would have insured the same. Therefore legal notices dated 11-6-2001 and 9-11-2001 were issued to them holding them liable to make good the loss suffered due to the fire accident. However, the plaintiff to re-start the unit has spent an amount of Rs. 9,79,731.65 ps/ towards various expenditures for setting up the plaint and machineries and has been regularly repaying the loan dues to the defendants. Hence, it be held that due to the changed position and conduct of the defendants, they are liable to make good the loss suffered by the plaintiff under the provisions of promissory estoppel for the actual amounts of damages sustained by them as well as interest at the rate of 12% p.a. thereon if not @ 18% p.a. Hence, the present suit for claiming damages.
The defendants appeared and filed their common written statement admitting the loan facility. They denied the plaintiff''s plea that there was an understanding that the defendants were to insure the plant and machinery. It was their case that it was only on an oral request made by the plaintiff that the defendants had insured the mortgaged properties for the first two years. Since there was no request made by the plaintiff for subsequent years, the same was not insured. Hence, it is pleaded that the suit be dismissed.
The trial court framed 5 issues for consideration. On considering the contentions as well as the evidence on record the trial Court partly decreed the suit of the plaintiff, for a sum of Rs. 6,77,000/- along with proportionate costs and interest at 6% per annum from the date of the suit till realisation. Aggrieved by the same, the defendants have filed the present appeal.
The learned counsel for the appellants contends that the impugned Judgment and decree is bad in law and liable to be set aside. That the trial court failed to consider the evidence and material let in by relying on the registered mortgage deed vide Ex. D.1. He contends that it was the plaintiffs primary obligation to have insured the property. They have failed to do so. On such a failure the defendants cannot be held liable to satisfy the damages. As claimed by the plaintiff in terms of Ex. D-1 itself it is the plaintiff who is responsible for the loss that he has sustained. Hence he pleads that the appeal be allowed by dismissing the suit.
On the other hand, the learned counsel for the respondent defends the impugned Judgment & decree. He contends that there was no oral request made by the plaintiff requesting the defendants to insure the mortgaged properties. Therefore he denied that it was not the obligation of the defendants themselves to insured the mortgaged properties. They having done so for the first two years deliberately did not do so for the 3rd year. It is due to this act of the defendants that he has sustained a loss. The material evidence would show the extent of loss sustained by the plaintiffs in terms of Exs. P-11 and 217. He pleads that the appeal be dismissed.
Heard learned counsels and examined the records. The primary document relied upon by the defendants is Ex. D-1 namely, the registered mortgage deed. It is stated therein with reference to the payment of insurance policy amounts as well as to specify the other policies etc. It is narrated that mortgagor shall at times during the subsistence of the contract shall pay all rates and taxes, present as well as future dues, duties was as well as the future dues and shall keep the mortgaged property insured. That on the failure to do so it would be the responsibility of the mortgagor to pay the insurance for the said properties and thereafter recover it. It is this clause (6) that is relied upon. It is further contended that there was an oral request by the plaintiff to pay the insurance premium and thereafter to recover it. It is on such a oral request the insurance for the first two years was made. However, there is no material to substantiate the said plea. It is merely a contention that has remained unsubstantiated. It is only the plea of the defendants that an oral request was made. There is no material led in as to all such an oral request or that such a request was made. There is no material to substantiate such a ground. Hence, we are unable to accept the said contention. Even otherwise it is contended that in the third year the plaintiff has insured only the building and stock. That if that was the case he could have insured the plant & machineries also. Hence he has deliberately not done so. Therefore when the building, plant and machineries as well as stock are liable for insurance coverage, insurance made by the plaintiff only so far as the building & stock is concerned, therefore cannot be accepted. On considering the contentions we are of the view that there was no obligation for the plaintiff to insure the plant and machineries also. The plea put forth by the defendants that there was an oral request by the plaintiff to make the insurance for the mortgaged properties having held to be unacceptable, we are of the considered view that the trial court has rightly considered the evidence on record. The contention of the defendants has remained only as a contention. There is no material produced by the defendants in order to establish their plea. The oral plea put forth by the defendants therefore cannot be accepted. Reliance is placed by the appellants on the Judgment in the case of Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, with reference to para-7. On considering the said Judgment we are of the considered view that the same would not be applicable to the case on hand. Therein the Hon''ble Supreme court at para-7 have held that when once the contract is reduced to writing, by operation of Section 91 of the Evidence Act, it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or documentary evidence to find out the intention of the parties. Herein what is sought to be relied upon by the defendants is that there was an oral request by the defendants with regard to the payment of insurance. Such a contention having been held to be unacceptable, the said Judgment would not come to the aid of the appellant. Under these circumstances, we are of the considered view that there is no error committed by the trial court that calls for interference. The appeal therefore being devoid of merit, is dismissed.