C.MOOKERJEE, C.J. - (1.) BY the judgement and order appealed against, his Lordship Hon'ble Mr. Justice T.K. Basu (as he then was) had allowed the application under Ss. 30 and 33 of the Arbitration Act of the New India Assurance Company Ltd. the respondent 1 herein and had set aside the award dated 22nd March, 1978 of Keshab Chandra Basu (since deceased) in favour of M/s. Lohia Jute Press Pvt. Ltd. the appellant, for a sum of Rs. 29,66,832.67 p. with interest. Being aggrieved by the said judgement and order, the Lohia Press and others having preferred this appeal.
(2.) ON 3rd January, 1976 New India Assurance Co.Ltd. the respondent herein issued a fire insurance policy covering risk against damage by fire the raw materials jute goods, plastic materials, etc. lying at the appellant Company's factory-cum-godown at 28, Barrack pore Trunk Road, Calcutta Originally the said properties of the appellant company were insured for a sum of Rs. 20,00,000/- and the period of insurance as from 6th October, 1975 to 6th October, 1976. Subsequently, by mutual consent, on three different dates, extra endorsements were made for making the appellant company and its mortgagee, State Bank of India, jointly entitled to certain additional benefits under the said policy. By one of these endorsements, the description of the covered goods were enlarged, by another endorsement, the sum assured under the policy was increased to Rs. 60,00,000/-. On 8th May, 1976 the appellant 1 who was assured had intimated the respondent 1, insurance company that a fire had broken out at one of its godown at 28, Barrack pore Trunk Road. Mr. S.C. Majumdar, Surveyor, who was initially appointed by the Insurance Company to investigate the loss, because the appellant did (not) allow him to inspect the godown on the ground that the warehouse was a bonded warehouse and the permission of the Customs Authorities would be necessary. On 12th May, 1976a preliminary inspection of the godown was carried out by said S.C. Majumdar and an Administrative Officer of the insurer. On the same date the assured submitted a claim for a sum of Rs. 48,00,000/- for the said loss allegedly suffered by it. The said Administrative Officer of the respondent had reported that the fire had suspicious features. Thereupon the insurance company had appointed M/s. Ascon and Avins to jointly carry out survey with S.C. Majumdar. Thereafter a tally was undertaken by the Joint Surveyors. There was also a joint and agreed valuation made of the goods that could not be salvaged. According to the Joint Surveyors, no trace had been found of 3411 bags of goods supposed to have been in the godown.
(3.) THE Insurance Company had then appointed Mr. S.S. Biswanathan, a Cost Accountant to investigate the books of accounts of the appellant company. According to the report of Mr. S.S. Biswanathan, a market survey undertaken by him disclosed sale of the goods in question. THEreafter the Insurance Company had appointed M/s. Mehta and Padamsey to investigate the matter. THE Insurance Company had also informed the Customs Authorities. M/s. Ascon and Avins submitted a report inter alia observing that it was difficult to explain the fact that no trace at all could not found of as many as 3411 bags. THE Chairman of the respondent Insurance Company had instructed the Area Manager of the Company to wait for the final report of the Joint Controller of Imports and of M/s. Mehta and Padamsey Ltd. before taking a final decision in the case. On 28th April, 1977 the appellant was intimated by the Insurance that the final report of M/s. Mehta and Padamsey Ltd. was awaited before bringing the claim to a conclusion. Upon the request made by the assured company the appellant the Insurance Company had extended the time for lodging their claim under Cl.19 of the Policy by three months. On 5th March, 1977 the appellant wrote a letter to the Insurance Company informing that it had appointed Keshab Chandra Basu, as an Arbitrator and invited the Insurance Company to nominate another Arbitrator by the date mentioned failing which Keshab Chandra Basu would act as the sole Arbitrator.;