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TMI Blog2016 (8) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwal HUF. The plaintiff in his personal capacity as well as Karta and Manager of Ramesh Agarwal HUF the firm M/s. Agarwal Textile Industries and the company Ramesh Agarwal Dying & Printing Mills Pvt. Ltd., enjoyed certain facilities from defendant No. 1. Defendant No. 2 is the daughter and legal heir of the original plaintiff. Defendant No. 2 is only a formal party. The present plaintiff is the son of the original plaintiff. The original plaintiff died on 17.10.2008 when the present proceedings were pending. 3. In order to secure facilities for the said Ramesh Agarwal Dying & Printing Mill Pvt. Limited, the company had provided various securities to the defendant No. 1. The plaintiff had also given security in the form of personal guarantee to defendant. The securities given to the defendant were duly insured with New India Assurance Company Limited (hereinafter referred to as Insurance Company) and the policies issued by the Insurance company were also given to defendant as security. It should be noted that it is not the plaintiff's case that the defendant was also an assured under the insurance policies. I am stating this because if it was so, defendant would have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication was rejected. 5. Suit No. 1631 of 1979 and Suit No. 2587 of 1984 were both transferred to Debt Recovery Tribunal and re-numbered as Original Application (O.A.) No. 301 of 2001 and O.A No. 2364 of 1999, respectively. 6. By a letter dated 22.12.2000 (part of Exhibit P-6) the plaintiff made an offer of settlement to the defendant whereby the plaintiff agreed to pay a sum of Rs. 1,82,00,000/- in full and final settlement (OTS) of all the claims of the defendant. By a letter dated 12.3.2001 (part of Ex. P-6) the defendant accepted the plaintiff's offer of settlement. The plaintiff paid the amount of Rs. 1,82,00,000/- and the defendant issued No Dues Certificate dated 17.6.2002 (part of Ex. P-6) relieving the plaintiff from all liabilities. Following this the defendant also withdrew O.A No. 301 of 2001 against the plaintiff and Ramesh Agarwal Dying & Printing Pvt. Ltd. which was pending before the Debt Recovery Tribunal. 7. It is the case of the plaintiff that by virtue of paying amount of Rs. 1,82,00,000/- to the defendant, the plaintiff came to be subrogated to all the rights that defendant had against the insurance company and there was an agreement between the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, he could not have sued the insurance company under the insurance policies and (b) more than 23 years had passed since the fire broke out and 19 years had passed since the claim was repudiated by the insurance company and any claim would have been grossly time barred and (c) the assured, Ramesh Agarwal Dying & Printing Pvt. Ltd. was wound up and Official Liquidator was in charge. 9. The defendant has denied that there was any such understanding with the plaintiff and has also denied the claim as made by the plaintiff. The issues were settled on 28.8.2014 and were slightly modified/corrected on 23.8.2016. The following 4 issues were settled. ISSUES (1) Whether the plaintiff proves that the right of defendant No. 1 in the insurance policy, under which the security given by the plaintiff to defendant No. 1 were insured with the New India Assurance Company Limited, stood vested and/or subrogated in favour of the original plaintiff and the amounts payable, if any, under the insurance policy by the Insurance Company is payable to the original plaintiff? (2) Whether the defendant No. 1 proves that one time settlement ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. We are also aware that our third party intervener application has been turned down by the DRT on technical grounds. However you also will agree that having settled the compromise dues we are the rightful beneficiary of the Insurance policy and even if bank succeeds in getting the dues from Insurance Company, we shall have every right to claim the proceeds of settled claim even at a later stage as and when it occurs. We have enjoyed a long standing relationship with the bank and in all fairness don't want to take disadvantage of the situation. With this in mind we offer the following for your kind consideration :- (1) The Bank shall pursue the suit in DRT on our behalf; (2) We shall reimburse all the legal expenses incurred by the bank so far in the suit against the Insurance Company; (3) We shall incur all future legal expenses which may occur in future in care of this suit against the Insurance Company and keep the Bank funded as per requirement; (4) We shall be paid 90% of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagement of the defendant has taken a decision to discontinue the suit against the insurance company. It is the case of the plaintiff that thereafter the defendants' manager informed the plaintiff that the defendant intended to restore DRT case against the insurance company but still the defendant did not do so. This being the background, let us consider the evidence. 12. The original plaintiff is dead. The person who gave evidence is the plaintiff's son. It is stated in the evidence that the defendant agreed to prosecute the suit as per the terms of agreement dated 16.4.2003 (Exhibit P-7) but Exhibit P-7 is not even an agreement. Exhibit P-7 is actually only a letter from the plaintiff to the defendant making some suggestion and asking the defendant to consider the same. Therefore, the testimony of PW-1 is not correct. The counsel for the plaintiff submitted that the plaintiff relies only on the correspondence exhibited to submit that there was an understanding. In my view none the correspondence read independently or together indicate any understanding as alleged in the plaint between the plaintiff and defendant. It is also stated in the testimony at paragraph-24 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cri LJ 1266, wherein it was observed "without prejudice" would indicate that the order was not final and irrevocable. The definition in Black's law Dictionary was then quoted which reads as under : Where an offer or admission is made "without prejudice" or a motion is denied or a bill in equity dismissed "without prejudice", it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except insofar as may be expressly conceded or decided. See also 'Dismissal without prejudice'. It would thus, be clear that the expression "without prejudice" is to be understood on the fact situation. When parties agree to a set of things then merely marking on the document "without prejudice" would be of no consequence. However, if the material indicates that the negotiations are still in progress and there is no finality on what was contained in the document marked "without prejudice", then the document marked "without prejudice" cannot be considered without the consent of both the parties." 13. Therefore, the meaning of without prejudice is if the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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