Sabyasachi Mukharji, J. - (1.) This is an application for amendment of the plaint. The suit in question was filed on 25th June, 1974. The Master's Summons for the application for amendment of the plaint was taken out on 25th June, 1977. The summons was made returnable on the 4th July, 1977 and on the 4th July, 1977 directions 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. 1973. It is alleged that on 30th Oct. 1973 the plaintiff wrote to the defendant No. 5 about the assignment of the policies of the insurance in favour of the plaintiff and claimed damages payable under the insurance policies. On 3rd Nov. 1973 the defendant No. 5 wrote back to say that the defendant No. 5 was not informed about the assignment of the policies, Thereafter the suit was filed, as I have mentioned before, on the 25th June, 1974 and there was an order of injunction restraining the insurance company from making any payment to the defendant No. 1. In opposition to that application on the 27th June, 1974 on behalf of the defendant No. 5 a statement was made in Court stating that in respect of Akashi Maru the amount covered by the policy had been paid to the defendant No. 1. Originally the plaintiff in the suit had claimed, inter alia, a decree for specific performance against the first defendant and a declaration that the plaintiff is entitled to a lien or charge on the Trawlers to secure the said amount of Rs. 5,22,000/ and a further declaration, inter alia, that the plaintiff is entitled to the benefit of the insurance policies mentioned in para 8 of the plaint and to any moneys payable thereunder and such moneys are charged with liability for payment of the plaintiff's claim and for other relief to which it is not necessary for me to refer for the purpose of this application.
(2.) In the proposed amendment, the plaintiff seeks to amend the plaint by stating 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 Rs. 5 lakhs or Rs. 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 amendment sought to introduce a claim on cause of action which had become barred by lapse of time. Reliance in this connection was placed on Article 44 (b) of the Schedule to the Limitation Act, 1963. It was said that the period of limitation for a cause of action on a policy of insurance of this nature starts from the date of the occurrence causing the loss, or where the claim on policy is denied, either wholly or partly, the date of such denial, and the period of limitation is 3 years from the accrual of the cause of action.;