APPLICATION UNDER ORDER 9 RULE 4 OF CPC, APPLICATION FOR RESTORATION OF SUIT OR PETITION

IN THE --------------- COURT OF --------- AT .........

I.A NO.       OF 20--

IN

------------. _______ OF 20--

IN THE MATTER OF:-

ABC.                                                                    …      Applicant

VERSUS

Xyz                                                                       …      Respondent

APPLICATION UNDER ORDER 9 RULE 4 OF CPC, READ WITH SECTION 151 OF CPC, ON BEHALF OF PETITIONER, FOR RESTORATION OF PRESENT OBJECTION PETITION. WITH AFFIDAVIT.

MOST RESPECTFULLY SHOWETH:

1.       That the aforesaid matter was pending adjudication in the regular list before this Hon’ ble High Court. The matter in regular list reached for final hearing on --.--. Again the matter came up for

hearing on -------- and this Hon’ ble High Court pleased to dismiss the present objection petition in default and non-prosecution because of nonappearance on behalf of the petitioner.

          The copy of the order-dated ------- is annexed as ANNEXURE-A.

2.       That the petitioner counsel couldn't notice the present case published and circulated in the cause list on -------- and -------. Hence couldn't appear on the above dates. The office staffs of petitioner counsel was instructed to regularly checkup the matters in regular matters on internet but they failed and missed out previous listing of the matters on -------- & ------. Since counsel of petitioner was not aware of above listing. Hence couldn't appear in the matter before this Hon' ble High Court at the time of hearings on above mentioned dates. The petitioner-department was also not aware about the  listing of the present case on above-mentioned dates.

3.       That on -------------------, the counsel for petitioner Mr --------------- Adv received a message from the office of Mr --------------- that the present matter has been - dismissed in default and non-prosecution for non appearance. Thereafter, the office of counsel for petitioner checked up the previous orders and came to know about the orders dated --------------------- and -------------. Thereafter the restoration application was  prepared and sent for signature to the department, on ---------------------. The signed copy of restoration application received by the counsel on --------- and hence the application is being filed before this Hon' ble Court.

4.       That the absence of counsel for petitioner was not wilful or intentional rather circumstantial.

5.       That in the above facts and circumstance of the  case and in the interest of justice and the Hon' ble High Court may be pleased to restore the present objection petition.

PRAYER

It is, therefore, most respectfully prayed this Hon’ble Court may be pleased to:-

           a.        Allow the present restoration application andrestore the present Objection                             Misc. Petition OMP No.000/0000 to its original position .

b.         Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.     

PETITIONER/ APPLICANT

THROUGH                                                 

Advocate

NEW DELHI

DATE:

ORDER 1 RULE 3 OF CIVIL PROCEDURE CODE

“Order I Rule 3 CIVIL PROCEDURE CODE 

Who may be joined as defendants.-All persons may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or 

transactions is alleged to exist against such persons, whether jointly, severally or in the alternative;

and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.

Order II Rule 3 CIVIL PROCEDURE CODE 

Joinder of causes of action.-(1) Save as otherwise provided, a plaintiff may unite in the same suit 

several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs

 having causes of action in which they are jointly interested against the same defendant or the same 

defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Courts as regards the suit shall depend 

on the amount or value of the aggregate subject matters at the date of instituting the suit.”

Civil Procedure Code 1908

The Important guidelines contained in IRDA (Protection of Policyholders Interests) Regulations, 2002

The Important guidelines contained in IRDA (Protection of Policyholders Interests) Regulations, 2002 are as under:

9. Claim procedure in respect of a general insurance policy (1) An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/ claim, it shall be so done within 72 hours of the receipt of intimation from the insured.

(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

 (3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report. Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.

 (4) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.

 (5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.

(6) Upon acceptance of an offer of settlement as stated in subregulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it.

Section 37 of the Arbitration and Conciliation Act 1996

CHAPTER IX

 APPEALS 37.

 Appealable orders.

 1. An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely :- (a). granting or refusing to grant any measure under section 9; (b). setting aside or refusing to set aside an arbitral award under section 34.

 2. An appeal shall also lie to a court from an order of the arbitral tribunal- (a). accepting the plea referred to in sub-section (2) or subsection (3) of section 16; or (b). granting or refusing to grant an interim measure under section 17.

 3. No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

Meaning of Commercial Disputes as Secion 2 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015

2. (1) In this Ordinance, unless the context otherwise requires,- (c) "commercial dispute" means a dispute arising out of-

(i) ordinary transaction of merchants, bankers, financiers and trade such as those relation to mercantile documents, including enforcement and interpretation of such documents;

 (ii) export or import of merchandise or services;

 (iii) issues relating to admiralty and maritime law;

 (iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;

(v) carriage of goods; (vi) construction and infrastructure contracts, including tenders;

 (vii) agreements relating to immovable property used exclusively in trade or commerce;

 (viii) franchising agreements;

(ix) distribution and licensing agreements;

 (x) management and consultancy agreements;

 (xi) joint venture agreements;

 (xii) shareholders agreements;

(xiii) subscription and investment agreements pertaining to the service industry including outsourcing services and financial services;

 (xiv) mercantile agency and mercantile usage;

(xv) partnership agreements; (xvi) technology development agreements;

 (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits;

 (xviii) agreements for sale of goods or provision of services;

 (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;

 (xxi) contracts of agency relating to any of the above; and

 (xxii) such other commercial disputes as may be notified by the Central Government. Explanation.- A commercial dispute shall not cease to be a commercial dispute merely because- (a) it also involves action for recovery of immovable property or for realisation of monies out of immovable property given as security or involves any other relief pertaining to immovable property; (b) one of the contracting parties is the State or any of its agencies or instrumentalities, or a private body carrying out public functions.