Bela M. Trivedi, J. - (1.) THE present appeal has been filed by the appellant/plaintiff, challenging the judgment and decree dated 10/8/1994 passed by the Additional District and Sessions Judge, Beawar (hereinafter referred to as 'the Trial Court') in Civil Suit No. 79 of 1985, whereby the Trial Court has dismissed the suit of the appellant/plaintiff, seeking recovery of Rs. 1,42,263.10 from the respondents/defendants.
(2.) THE short facts, giving rise to the present appeal, are that the appellant/plaintiff was a partnership firm registered under the Partnership Act. The said firm was engaged in the business of cottons at Vijaynagar. During the period 11/3/1981 to 16/3/1981, the plaintiff -firm had booked 266 bales of cottons from Kekri to be delivered through Laxmi Transport Company to M/s. Eastern Cotton Company, Culcutta through Milap Transport Company, Delhi -Ghaziabad Border. According to the appellant/plaintiff, the said bales of cottons had reached to Milap Transport Company safely and were lying there for being delivered further to the company at Culcutta, however, on 20/3/1981, a fire broke out at the premises of Milap Transport Company, as a result of which 156 cotton bales of the appellant burnt out and others got damaged. It was the further case of the appellant/plaintiff that the appellant had got the insurance of Rs. 4 lacs from the respondent No. 1 and of Rs. 2 lacs from the respondent No. 2 in respect of the said bales of cotton. The said insurance was for the period from 20/3/1981 to 20/4/1981. The appellant, having come to know about the said fire at the premises of Milap Transport Company, informed the respondents -companies. According to the appellant, the respondent companies had appointed Mehta and Padamsey Surveyors Private Limited, New Delhi for carrying out the survey and assess the loss suffered by the appellant and others. The said surveyors submitted the report assessing the loss suffered by the appellant to the extent of Rs. 1,80,567/ - for 156 cotton bales. Since some of the cotton bales were partly damaged, they were sold out by the said surveyor, and the appellant was paid net Rs. 91,224/ - by cheque after deducting Rs. 193 as the bank commission. Since the respondents did not pay the balance amount, the appellant/plaintiff had filed the suit seeking recovery of Rs. 1,42,263.10, claiming interest and cost upto the date of filing of the suit and also claiming interest on the said amount at the rate of Rs. 1.50 per cent per month from the date of suit till realization. The said suit was resisted by the respondents/defendants by filing their respective written -statements, denying the allegations and averments made in the plaint. Both the respondents had admitted that the appellant/plaintiff had taken the insurance in respect of the bales of cotton on 20/3/1981, and that the cover notes were also issued by them, however, according to them, the plaintiff had suppressed the fact at the time of taking the said insurance that the cotton bales were already burnt out in the fire, which had taken place at the premises of Milap Transport Company on that day. According to the said defendants, the plaintiff was aware about the said fire having taken place but did not disclose the said fact and had got the insurance done from them by committing fraud. The respondents therefore had contended that the cover notes issued by them were null and void. The respondents/defendants had also contended that the suit was bad for misjoinder of parties and was liable to be dismissed.
(3.) THE Trial Court from the pleadings of the parties had framed following issues: - - ;