X Composite Mills Limited -Versus- Y Insurance Company Limited & others

IN THE COURT OF 5TH JOINT DISTRICT JUDGE, DHAKA

MONEY SUIT NO. _________ OF _________

IN THE MATTER OF:

An application praying for disposal of the application filed on 10.02.2005 under Order XIV, Rules 2 and 5 read with section 151 of the Code of Civil Procedure, 1908 before proceeding with further hearing of the suit

AND

IN THE MATTER OF:

X Composite Mills Limited

Plaintiff

-Versus-

Y Insurance Company Limited & others

Defendants

The petition on behalf of the defendant No. 1 most respectfully

SHEWETH:

1. That the plaintiff has filed an application on 10.02.2005 under Order XIV, Rules 2 and 5 read with section 151 of the Code of Civil Procedure, 1908 for framing and trial of the following legal issue:

“Whether the agreement entered into on 26.08.2001 by the plaintiff with the defendant No. 1 and others and subsequent receipt of an amount of Tk. 9,40,00,000.00 (Taka nine crore and forty lacs) only by the plaintiff under a Loss Voucher as full and final settlement of their claim under the Insurance Policy No. GDI/MBR/FP-31/1/01 dated 27.01.2001 constitute a waiver of the plaintiff’s right to bring any future claim under the said insurance policy and as such whether the instant suit is barred by the principle of waiver?”

2. That the application was heard by the learned Court on the same date i.e. on 10.02.2005 in presence of both the parties and the learned Court stated that an Order will be passed on the said application.

3. That from the order sheet of the suit it appears that the learned Court has kept the application with the record and stated that the same will be determined at the time of disposal of the suit. As such, the application has not yet been disposed of.

4. That subsequently the defendant No. 1 has filed another application on 17.02.2005 praying fort disposal of the application dated 10.02.2005.

5. That admittedly as stated by the plaintiff in paragraphs 14 and 19 of the plaint, in an agreement entered into between the plaintiff with the defendant No. 1 and others on 26.08.2001, the plaintiff agreed to settle the claim amicably with the defendant No. 1 and subsequently received an amount of Tk. 9,40,00,000.00 (Taka nine crore and forty lacs) only from the defendant No. 1 under a Loss Voucher as full and final settlement of their claim under the Insurance Policy No. GDI/MBR/FP-31/1/01 dated 27.01.2001. The said agreement and receipt of the aforesaid amount constitute a waiver of the plaintiff’s right to bring any future claim under the said insurance policy.

6. That in such circumstances, it is necessary to frame the legal issue suggested by the defendant No. 1 and trial of the said legal issue before proceeding with further hearing of the suit.

7. That it is submitted that once the legal issue suggested by the defendant No. 1 is tried and disposed of against the plaintiff and in favour of the defendant No. 1, the trial of other issues, which are factual issues, would not be necessary and the suit may be disposed of upon trial of the aforesaid legal issue only. Therefore, the defendant No. 1 prays for trial and disposal of the aforesaid legal issue before proceeding with further hearing of the suit.

Wherefore, it is humbly prayed that this Hon’ble Court may graciously be pleased to dispose of the application filed by the defendant No. 1 on 10.02.2005 under Order XIV, Rules 2 and 5 read with section 151 of the Code of Civil Procedure, 1908 before proceeding with further hearing of the suit and/or pass such or further order or orders as the Court may deem fit and proper.

And for this act of kindness the defendant No. 1, as in duty bound, shall ever pray.

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