- (1.) This is an application for an order that the plaint in the suit, being Suit No. 882 of 1982 be rejected and/or taken off the file; and dismissal of the suit and for other reliefs.
(2.) The petitioner's case is that the plaint in the suit be rejected on the ground that the suit is barred by the laws of limitation. The petitioner is the defendant 1 in the suit. The plaintiff 1 is National Insurance Company Ltd. and the plaintiff 2 is Shalimar Paints Ltd. The plaintiffs instituted the suit against the defendants for a decree for Rs. 1,63,999.72, interest and further interest and other reliefs. The averments in the plaint are that the plaintiff 1 was an Insurer in respect of a vessel called "M.L. KIT" belonging to the plaintiff 2 under a Marine Hull Insurance Policy being policy No. 310/4100089B(e). In or about July, 1979 the said 'M.L.KIT' was lying at anchor at the Jetty of the plaintiff 2 on the river Hooghly, another vessel named "M.V. Jalamatsya" owned by the first defendant, the petitioner herein, whilst turning in the river Hooghly perilously came to the said "M.L.KIT", as a result the said "M.L.KIT" started sinking and ultimately sank. It caused loss and damages to the owner of the said vessel the plaintiff 2. As the said vessel was insured with the plaintiff 1, the plaintiff 2 made a claim to the plaintiff 1 on account of the said loss and the plaintiff 1 paid to the plaintiff 2 a sum of Rs. 1,45,000.88 in or about March, 1980. The plaintiff 2 upon such payment issued a letter of subrogation dated 30th March, 1980 in favour of the plaintiff 1 which made claims against the defendants and filed the present suit against the defendant, the petitioner herein, claiming damages and other reliefs.
(3.) The petitioner in this application alleges that on the date of the filing of the suit the alleged claim of the plaintiff 2 for the alleged loss caused to the plaintiff 2 as a result of the said collusion was clearly barred by the laws of limitation as appearing from the plaint in the suit. It is further alleged by the petitioner that the plaint discloses no cause of action in favour of the plaintiff 1 inasmuch as mere subrogation without assignment cannot vest the alleged cause of action of the plaintiff 2 in the plaintiff 1. The petitioner further alleges that no assignment has been pleaded by the plaintiffs in the plaint and in any event, if there was any assignment the effect of such assignment was to put the plaintiff 1 as the assignee in the same position of the plaintiff 2 and as such on the date of filing of the suit the alleged cause of action of the plaintiff 2 had become barred by limitation and similarly, the claim of the plaintiff 1 taking over the rights and remedies of the plaintiff No. 2 is also barred by limitation.;