KESHOTE, J. - (1.) M/s. Nand Construction Company (hereinafter shall be referred to as `the petitioner') filed S. B. Civil Writ Petition No. 1041/1999 against the Regional Manager, Oriental Insurance Company limited and its Branch Manager (hereinafter shall be referred to as `the respondents'), which was decided by the learned Single Judge under its judgment dated 4. 3. 2002 (RLW 2002 (2) Raj. 1233) Distinguished. The petitioner filed S. B. Civil Review Petition No. 54/2002, which was dismissed by the learned Single Judge under its order dated 4. 9. 2002. The petitioner and the respondents, felt aggrieved of the judgment of the learned Single Judge filed these special appeals under Section 18 of the Rajasthan High Court Ordinances, 1949. Both the special appeals were taken up for hearing together; arguments were heard and concluded and the order was reserved on 29. 8. 2005.
(2.) BRIEFLY stated the facts of the case are that the petitioner entered into insurance contract with respondent Oriental Insurance Company Limited vide Contractors All Risk (CAR) Policy No. 44/96/00008 for a total contract price of Rs. 1. 42 crores four road on different sites in Nadbai Tehsil, District Bharatpur. The petitioner paid premium of Rs. 39,661/- through Cheque No. 378071, dated 27. 10. 1995, and the respondent Insurance Company issued a miscellaneous provisional Cover Note No. 069264/93, dated 27. 10. 1995, in favour of the petitioner and the period of contract was specified as from 27. 10. 1995 to 26. 11. 1996 (including one year maintenance period ). A loss alleged to have been occurred in respect of CAR Policy aforesaid and accordingly the petitioner lodged a claim vide Claim No. 44/97/00006 with the respondent Insurance Company. It is alleged that the respondent Insurance Company entrusted the job of surveying he actual loss sustained by the petitioner, to different surveyors on different times, first to Mr. N. K. Jain (Surveyor of Jaipur) and secondly, to M/s. R. K. Singhal & Company (Surveyor of New Delhi ). After completing his survey work Mr. N. K. Jain alleged to have quantified the loss sustained by the petitioner to the tune of Rs. 29. 50 lacs. The second surveyor M/s. R. K. Singhal & Company private Limited, New Delhi assessed the loss sustained by the petitioner and quantified it to the tune of Rs. 24. 50 lacs. The grievance of the petitioner was despite repeated requests made. A notice of demand of justice was served and the writ petition, out of which these special appeal arise, was filed on 12. 2. 1999. In the writ petition aforesaid the petitioner prayed for grant of following relief, " (i) to issue a writ in the nature of mandamus, wherewith, the respondents be directed to settle the claim of the petitioner as per the survey report, received by them. (ii) to direct the respondents to pay the amount of interest @ 24% per annum accrued, thereon, i. e. , on the principal sum payable from the date of loss dated 22. 6. 1996 till the actual payment is made. (iii) to direct the respondents to pay damages to the tune of Rs. 5. 00 lacs for their failure to discharge their statutory and public duty in accordance with the law, and (iv) the cost of the petition may kindly be awarded to the petitioner. " The respondent Insurance Company contested the writ petition. The reply thereto was filed by it on 28. 6. 1999. The rejoinder thereto was filed by the petitioner on 20. 7. 1999. The learned Single Judge, under the impugned order, allowed the writ petition of the petitioner and set aside the letter dated 31. 5. 1999 (Annex. R/1), issued by the respondent Insurance Company during the pendency of the writ petition. The learned Single Judge directed to the respondent Insurance Company to settle the claim of the petitioner as per survey reports received by them, within two months from the date of the order. The respondent Insurance Company has also been saddled with the costs of the writ petition. The petitioner, as stated above, filed S. B. Civil Review Petition No. 54/2002 for review of the impugned judgment of the learned Single Judge on the ground that the Court has not passed any order on prayer Nos. (ii) and (iii) made by the petitioner in the writ petition. In prayer No. (ii) the petitioner prayed for grant for interest at the rate of 25% per annum on the principal sum with effect from 22. 6. 1996 till the actual payment is made thereof. In prayer no. (iii) the petitioner prayed for direction to the respondent Insurance Company to pay damages to the tune of Rs. 5. 00 lacs for their failure to discharge their statutory and public duty in accordance with the law. The learned Single Judge dismissed the review petition on4. 9. 2002 and in D. B. Special Appeal (Writ) No. 946/2002 this order of the learned Single Judge is under challenge. Both the special appeals came up for hearing before the Bench on 6. 5. 2003 and same were heard and orally the result was pronounced, the reasons in support of the order were to be recorded later on. It is unfortunate that the files were not placed for recording reasons in the Chamber before one of us. It transpired later on, that files of both the appeals have been lost. On the prayer made by the parties files of these special appeals have been reconstituted and the same are placed for hearing and decision before us.
(3.) LEARNED counsel for the respondent Insurance Company contended that the learned Single Judge has committed an error in granting relief to the petitioner in a petition filed under Article 226 of the Constitution of India as therein attempt was made for enforcement of alleged right under the contract of insurance. In his submission the writ petition under Article 226 of the Constitution of India for enforcement of contractual rights is not maintainable. In support of his contention learned counsel for the respondent Insurance Company placed reliance on the decision of Hon'ble the Apex Court in Belde Venkatesham vs. Chokkarapu Lakshmi Narasiah (AIR 1977 SC 1504 ). It has next been contended that the learned single judge granted the relief in favour of the petitioner though the same was not prayed for in the writ petition. In his submission the petitioner has not prayed for quashing of the letter dated 31. 5. 1999 (Annex. R/1) repudiating thereunder the contract of insurance by the respondent Insurance Company and still the same was quashed. Not only this, the learned Single Judge has given direction to the respondent Insurance Company to settle the claim of the petitioner. It is urged that where the learned Single Judge considered it necessary to grant relief to the petitioner and to quash the letter Annexure-R/1 it was expected to record filing as regard to correctness of the claim raised. It is submitted that in fact the petition filed by the petitioner for the claim made has become infructuous after the decision aforesaid of the respondent Insurance Company. The learned Single Judge ought to have decided whether the claim made by the petitioner against the respondent Insurance Company is sustainable. Only after the Court having been recorded its satisfaction that the ground given for repudiation of contract by the respondent Insurance Company is not legally sustainable the relief could not have been granted. The learned Single Judge has not undertaken this exercise and without there being any prayer for quashing Annex. R/1 and adjudication upon the validity of the decision taken by the respondent Insurance Company the relief has been granted in favour of the petitioner, which on the face of it is erroneous. Lastly, it is contended that the learned Single Judge has committed an error to draw an inference of mala fide on the part of the respondent Insurance Company to repudiate the contract on the ground that it has been done after notice of the writ petition. ;