S. N. Kapoor ( 1 ) THIS Regular First Appeal is directed against judgment anddecree dismissing suit for recovery of Rs. 64,900. 00 for loss occasioned on account ofburglary. The suit has been dismissed solely on the finding on the issue: "whetherthe suit is barred by time?" in affirmative. ( 2 ) THE plaintiff/appellant, a registered partnership firm, is an authoriseddealer of M/s. Raymond s Woolen Mills Ltd. , having their showroom at C- 1/agreen Park Extension. It had procured multi-peril insurance policy No. 7512100791for the period 8. 11. 82 to 8. 11. 83 from the defendants/respondents in the sum of Rs. 2 lakhs to cover losses on account of (a) fire, lightening; (b) riot and strike; or (c) theftor any attempt thereof. According to the appellant, there was a burglary or theft inthe evening of 16. 4. 83 at about 5. 15 p. m. at the above said shop of the plaintiff. Theburglars/culprits opened the door of the shop violently and forcibly and threatenedthe employees and customers of the plaintiff of dire consequences in case anybodymoves from his place. They were carrying revolver and knives and few had coveredtheir faces with clothes. They even beat the employee and customers. After this reinof terror let loose they started loading the car which was parked outside with thecloth rolls. They also took away valuables like gold chain and watches from theperson of Purshottam Saran, partner of the plaintiff firm apart from watches, penrings and cash of the customers and employees and cash of Rs. 900. 00 from the cash box. They also gave details of the loss. A claim vide letter dated 20/04/1983 waspreferred TO on account of (disputed) loss due to burglary. It was registered by thedefendants/respondents as No. 5120/20/83/9 and M/s. Lakenders Care Claimscorporation, independent Surveyors were appointed to survey and assess the Joss. The said Surveyors on compliance of the requirements submitted their report to thedefendants/respondents and confirmed the loss of Rs. 55. 000. 00 in their report. Despite repeated requests and reminders for settling the claim of the plaintiff/appellant and legal notice dated 7/01/1984 served on the defendants/respondents, the defendants/respondents failed to settle their claim. Instead ofsettling their claim vide letter dated 19/01/1984, the respondents repudiatedthe claim. 55. 000. 00 in their report. Despite repeated requests and reminders for settling the claim of the plaintiff/appellant and legal notice dated 7/01/1984 served on the defendants/respondents, the defendants/respondents failed to settle their claim. Instead ofsettling their claim vide letter dated 19/01/1984, the respondents repudiatedthe claim. Thereafter, another legal notice dated 25/09/1984 was sentcalling upon the respondents to re-examine and re-process the claim as repudiationwas illegal, wrong and biased and that the claim of the plaintiffs fell within the fourcorners of the insurance policy. On persistent refusal to honour the policy by therespondents, the plaintiff/appellant led to file this suit for recovery of Rs. 64,900. 00. ( 3 ) RESPONDENTS No. 1 to 3 contested the suit inter alia on the ground that suitwas not maintainable. There was no theft in the shop of the plaintiff within the ambitof the insurance policy No. 7512100791 valid from 8/11/1982 to the noonof 8/11/1983; for the burglars/culprits had not opened the door of the shopviolently and forcibly and had not threatened the customers and employees of theplaintiff with dire consequences. The claim of the plaintiff was repudiated afterconsidering all the facts and terms and conditions of the policy bond and theplaintiff/appellant was duly intimated vide letters dated 19/01/1984, 1 1/05/1984 and 4/02/1985 that the suit was barred by limitation as per theterms and conditions of policy of insurance. Consequently, the plaintiff/appellantfirm was not entitled to recover any damages. ( 4 ) ON the pleadings of the parties the following issues were framed: " (1) Whether the suit has been signed, verified and filed by a dulyauthorised and competent person? OPP. (2) Whether there was any theft or burglary of the insured goods? If so,extent of loss suffered by plaintiff and the amount to which he isentitled? OPP. (3) Whether the suit is barred by time? (4) Whether there is no cause of action against the defendant? (5) To what amount, the plaintiff is entitled? (6) Relief. " ISSUE Nos. 1, 2 and 4 were decided in favour of the appellant/plaintiff. Issueno. 3 was decided against the appellant and consequently. Issue No. 5 and 6 were alsodecided against the appellant. ( 5 ) FEELING aggrieved, the present appeal has been filed. ( 6 ) AS would be evident, the appeal could be confined to the issue on limitationalone. 1, 2 and 4 were decided in favour of the appellant/plaintiff. Issueno. 3 was decided against the appellant and consequently. Issue No. 5 and 6 were alsodecided against the appellant. ( 5 ) FEELING aggrieved, the present appeal has been filed. ( 6 ) AS would be evident, the appeal could be confined to the issue on limitationalone. But the question "whether the repudiation of the claim of the appellants/disclaimer dated 19/01/1984 was sufficient to deem that the appellants hadabandoned their claim and they could not file suit for recovery of the claim on 1 9/01/1985?" also arose during the course of arguments. ( 7 ) SINCE the respondents argued before learned Trial Court as well as before usabout limitation based on disclaimer mentioned in Clause 9 of the policy, we heardthe parties at length to arrive at a just decision of the case and to avoid any prejudiceto either of the parties. ( 8 ) LEARNED Counsel for the plaintiff /appellant argued that the letter of disclaimer dated 19. 1. 1984 was neither received on 19. 1. 1984 nor it could have beenreceived on that date. Consequently, the suit was within time. This submission wasrejected by the learned Trial Court on the ground that in the plaint the plaintiff/appellant has not alleged that this letter dated 191. 1984 was received by the plaintiffafter 19. 1. . 1984 nor any evidence was produced in this regard. IN this respect, it is worthwhile to reproduce para 14 of the plaint as well as written statement. Para 14 of the plaint reads as under: "14. That the cause of action accrued to the plaintiff from 16. 4. 1983 when theloss occurred and on different dates when the claim was preferred TO, thesurveyor surveyed the loss, parties entered into correspondence. The cause ofaction finally arose on 19. 1. 1984 when the defendant Insurance Companydisowned and rejected the claim vide letter dated 19. 1. 1984 and when legalnotice dated 25. 11. 1984 was served by the plaintiff on the defendant Companyfor re-examining the reprocessing the claim. " PARA 14 of the written statement reads as under: "14. Para No. 14 of the plaint is wrong and denied. The plaintiff has no causeof action. Rest of the para is wrong. The suit is barred by limitation as per termsof policy of insurance. This suit has been filed after 12 months of repudiation of the claim. " PARA 14 of the written statement reads as under: "14. Para No. 14 of the plaint is wrong and denied. The plaintiff has no causeof action. Rest of the para is wrong. The suit is barred by limitation as per termsof policy of insurance. This suit has been filed after 12 months of repudiation of the claim. " ( 9 ) 9. 1. In so far as the issue on limitation is concerned, if we go by Law a Limitationarticle 44 (b) is relevant. It reads as under: 9. 2. It is evident that Article 44 (b) of the Limitation Act, 1963 provides twokinds of cases. In the first case, date from which period of 3 years begins to run is thedate of the occurrence of the loss. This clause would apply only to those cases wherethe claim under the policy is not denied. Second clause provides for period of timein cases where the claim is repudiated and in such cases the period starts runningfrom the date of disclaimer or repudiation and expires after a period of 3 years fromthat date. If any authority is needed to verify this preposition, one may refer torajunder Kumar Arya v. M/s. New India Assurance Co. Ltd. , AIR 1992 Cal 110 . IN that case the suit was brought within 3 years from the date of denial of the claimand suit was held to be validly instituted within the said period of three years fromthe date of denial of the claim. Since incident causing loss to the appellant took placeon 16/04/1983 and the suit was filed on 18/01/1985, i: is within 3 years. Applying the second part of Article 44 (b), since claim was denied, according to thedefendant, on 19/01/1984, it is within 3 years. Consequently, the suit is notbarred by limitation. ( 10 ) NOW, coming to the arguments advanced by learned Counsel for the parties based on clause 9, it is desirable to reproduce Clause 9 of the policy in its entirety: "9. Consequently, the suit is notbarred by limitation. ( 10 ) NOW, coming to the arguments advanced by learned Counsel for the parties based on clause 9, it is desirable to reproduce Clause 9 of the policy in its entirety: "9. If any difference shall arise as to the quantum to be paid under this Policy, (liability being otherwise admitted) such difference shall independently of a"other questions be REFERRED TO to the decision of an Arbitrator, to be appointed inwriting by the parties in difference, or if they cannot agree upon a Singlearbitrator to the decision of two disinterested persons as Arbitrators of whomone shall be appointed in writing by each of the parties within two calendarmonths after having been required so to do in writing by the other party inaccordance with the provisions of the Arbitration Act, 1940, as amended fromtime to time and for the time being in force. In case either party shall refuse orfail to appoint Arbitrator within two calendar months after receipt of notice inwriting requiring an appointment, the other party shall be at liberty to appointsole Arbitrator; and in case of disagreement between the Arbitrators, thedifference shall be REFERRED TO to the decision of an Umpire who shall have beenappointed by them in writing before entering on the reference and who shallsit with the Arbitrators and preside at their meetings. IT is clearly agreed and understood that no difference or dispute shall bereferable to arbitration as hereinbefore provided, if the Company has disputedor not accepted liability under or in respect of this policy. It is hereby expressly stipulated and declared that it shall be conditionprecedent to any right of action or suit upon this policy that the award by sucharbitrator, Arbitrators or Umpire of the loss or damage shall be first obtained. IT is also hereby further expressly agreed and declared that if the Companyshall disclaim liability to the Insured for any claim hereunder and such claimshall not, within 12 calendar months from the date of such disclaimer have beenmade the subject matter of such a suit in a Court of Law, then the claim shallfor all purposes be deemed to have been abandoned and shall not thereafter berecoverable hereunder. " DURING the course of arguments following other incidental questions also arose; (a)Whether Clause 9 is purely an arbitration clause and is confined to the appellants sclaim to arbitration? " DURING the course of arguments following other incidental questions also arose; (a)Whether Clause 9 is purely an arbitration clause and is confined to the appellants sclaim to arbitration? (b) If point (a) is decided in negative, whether part 4 of Clause9 is hit by Section 28 of the Contract Act? (c) If point No. (b) is decided in affirmativewhat is the date of effective disclaimer to pin-point the date from which period of 12calendar months would start running? (d) Whether letter dated 19/01/1984could be presumed to have been admittedly served on 19/01/1984 ( 11 ) A question arises about effective date of denial of claim in interpretation ofarticle 44 (b) as well as disclaimer in Clause 9 of the policy. We are not oblivious tothe fact that there could be difference m approach in matters of interpretation of a Statute and a policy of insurance. But in the present case it is not likely to make muchdifference. ( 12 ) EX. Public Witness -1 /6 i. e. letter dated 19/01/1984 repudiating the claim of the respondent reads as under: THE NEW INDIA ASSURANCE CO. LTD. (A subsidiary of the General Insurance Corporation of India) REF. 5120/mla-rks/b4 (REGISTERED A. D.)Dated: 19/01/1984m/s. Ramsons Southend,c-1/a, Green Park Extn. MAIN Mehrauli Road,new DELHI. Dear Sirs, RE: Claim No. 5120/20/89/9 - Policy No. 7512100791 - allegedrobbery on 16-4-83. THE above loss has been carefully processed and we regret to inform you thatthe claim does not fall within the purview of the policy and therefo)i:e werepudiate our liability and are filing away the papers as no Claim whichkindly note. THANKING you and assuring you of our best attention. Yours faithfully, S/dsr. DIVISION MANAGER A carbon copy of the above mentioned letter, filed by the respondents. Divisionalmanager, The New India Assurance Co. Ltd. , is available at page-231 of the Trial Court record. ( 13 ) FROM the perusal of para 14 of the plaint, it is apparent that two dates havebeen mentioned which gave rise to the cause of action: first, which arose on 19. 1. 1984"when the defendant Insurance Company disowned and rejected the claim of theplaintiff/appellant vide letter dated 19. 1. 1984" and secondly, "when legal noticedated 25. 11. 1984 was served on the defendants/respondents for re-examining andre-processing the claim". 1. 1984"when the defendant Insurance Company disowned and rejected the claim of theplaintiff/appellant vide letter dated 19. 1. 1984" and secondly, "when legal noticedated 25. 11. 1984 was served on the defendants/respondents for re-examining andre-processing the claim". In any case in view of subsequent notice sent by theappellant and reasons of disclaimer given subsequently by the respondents, itcannot be said that the cause of action arose finally on 19. 1. 1984. If appellant s pleais properly understood, it arose on account of rejection of claim vide letter dated19. 1. 1984 on the date of the receipt of this letter. There is nothing whatsoever in para14 of the plaint to hold that this letter was actually received by the plaintiff/appellanton 19. 1. 1984 itself and on that very day finally the cause of action accrued to theplaintiff/appellant. This conclusion drawn by the Trial Court is certainly erroneous. There is no dispute in between the parties that the disclaimer was made vide letter dated 19. 1. 1984. That letter was sent by Regd. AD post. The onus was on therespondents to prove that the claim in suit was abandoned. ( 14 ) IN this regard, one has to further examine the matter in the light of theevidence. The respondents have not produced any acknowledgement or even postalreceipt of sending the letter dated 19. 1. 1984 by Regd. AD post to show that- this letterdated 19. 1. 1984 was actually sent on 19. 1. 1984 itself. However, the appellants haveproduced this letter in Court. As such, its receipt is not in dispute. ( 15 ) UNDER Section 114 of the Indian Evidence Act "the Court may presume theexistence of any fact which it thinks likely to have happened, regard being had to thecommon course of natural events, human conduct and public and private business,with reference to the facts of the particular case". But, would we raise a presumptionthat a Regd. AD letter sent on 19. 1. 1984 was delivered on the same date? We feel thatthis has to be answered in an emphatic "no". Having due regard to common causeof natural events and postalbusiness, in their relation to the facts of this case, it couldnot be expected that the registered letter would have been delivered on the same day. In Delhi we may dream and aspire for such efficient service, but the fact remains thatit cannot be delivered on the same day. Having due regard to common causeof natural events and postalbusiness, in their relation to the facts of this case, it couldnot be expected that the registered letter would have been delivered on the same day. In Delhi we may dream and aspire for such efficient service, but the fact remains thatit cannot be delivered on the same day. ( 16 ) IN this regard, we must refer to Section 27 of the General Clauses Act, 1897also. Section 27 reads as under: "27. Meaning of service bypost-Where any [central Act] or Regulation madeafter the commencement of this Act authorises or requires any document to beserved by post, whether the expression "serve" or either of the expression"give" or "send" or any other expression is used, then, unless a differentintention appears, the service shall be deemed to be effected by properlyaddressing, pre-paying and posting by registered post, a letter containing thedocument, and unless the contrary is proved, to have been effected at the timeat the letter would be delivered in the ordinary course of post". (Emphasis supplied) ( 17 ) BUT it is not possible in ordinary course of the postal business that a lettersent on 19. 1. 198 itself would be delivered on the same day, specially when there isno evidence in the shape of receipt of registration of the letter and its posting on19. 1. 1984 itself, leaving aside other requirements of Section 27 of the General Clausesact. We feel that the time would start running under the Limitation Act and alsounder Clause 9 only after service of repudiation of the claim as well as of service ofletter of disclaimer and not before that. Since in ordinary course the suit was notbarred under Article 44 (b), a heavy burden lay on the respondents to establish thatthe period would start running for the purpose of part 4 of Clause 9 of the policy witheffect from 19. 1. 1984 itself. ( 18 ) NOW, we proceed to examine two other facets of Clause 9 relating to themeaning of words "within 12 calendar months". One relates to the question ofexclusion or inclusion of 19/01/1984 for the purpose of counting the periodof 12 months and second, relates to the number of days in a calendar month. Thisquestion arose, for the learned Trial Court proceeded on the assumption that 1 9/01/1984 could not be excluded for the purpose of counting 12 calendar months. One relates to the question ofexclusion or inclusion of 19/01/1984 for the purpose of counting the periodof 12 months and second, relates to the number of days in a calendar month. Thisquestion arose, for the learned Trial Court proceeded on the assumption that 1 9/01/1984 could not be excluded for the purpose of counting 12 calendar months. In case we apply Section 9 of the General Clauses Act, then 19/01/1984 beterminus ad quo has to be excluded. ( 19 ) IN this regard the submission of the appellant is that Section 9 of the Generalclauses Act gives effect to the principle that in reckoning the period, the terminationad quo i. e. the first day is excluded and the terminus adquem i. e. closing daincluded. Section 9 also embodies a principle of equity. Section 9 of the Gen Clauses Act reads as under: "9. Commencement and termination of time- (1) In any [central Actregulation made after the commencement of this Act, it shall be sufficientthe purpose of excluding the furst in a series of days or any other period of the to use the word "from", and, for the purpose of including the last in a seriesdays or any other period of time, to use the word "or" (2) This section applies also to all [central Acts] made after the third dajanuary, 1868, and to all Regulations made on or after the fourteenth dajanuary, 1887. " ( 20 ) A bare perusal of Section 9 would indicate that it applies only to Central. and Regulations. In this regard one has to note that ordinarily terms of any controlwould not be interpreted with the application of General Clauses Act, though appropriate cases its principles could be extended. ( 21 ) NOW, the question relating to length of calendar month in relation to the phrase "within 12 calendar months" is required to be seen. The learned Trial Courtobserved that one month consists of 30 days. In this way, 12 months would consilationof 360 days. If the period of 360 days is computed with effect from 19/01/1988it would expire on 13/01/1985 and even if the period of 12 months was treatedequivalent to 365 days (one year) even then the period would expire on 18/01/1985 and after 18/01/1985 the claim, in terms of the policy, would standabandoned and suit filed after 18/01/1985 will not be maintainable. If the period of 360 days is computed with effect from 19/01/1988it would expire on 13/01/1985 and even if the period of 12 months was treatedequivalent to 365 days (one year) even then the period would expire on 18/01/1985 and after 18/01/1985 the claim, in terms of the policy, would standabandoned and suit filed after 18/01/1985 will not be maintainable. ( 22 ) ACCORDING to the Black s Law Dictionary, 6th Ed. , the terms "calender days", "calendar months", "calendar year" and "months", mean as under : "calendar days-A calendar say contains 24 hours; but "calendar days"be synonymous with "working days. " Sherwood v. American Sugar Refinery Co. C. C. A. N. Y. , 8 F. 2d 586,588. The time from midnight to midnight. Crimes, 173 Misc. 614, 18 N. Y. 2d 322,327. So many days reckoned accordingto the course of the calendar. CALENDAR month-Period terminating with day succeeding month, nuncally corresponding to day of its beginning less one. State v. Jones, 2081641, 305 N. W. 2d 355, 358. CALENDAR year-The period from January 1 to December 31 inclusive. ordenarily calendar year means 365 days except leap year, and is composed of months varying in length. MONTH-WORD "month", unless otherwise defined, means "calendar monthor time from any day of any of the months as adjudged in the calendarcorresponding day, if any, if not any, to last day, of next month. . . " ( 23 ) ACCORDING to the Chambers Dictionary, word "month" reads thus: "month.-ONE of the twelve conventional divisions of the year, or its length. " ( 24 ) IT was observed in South British Fire and Marine Insurance Co. v. Brojo Nathshaha, ILR 36 Calcutta 517 that since in England the word "month" in a contractmeans "lunar month", there was no reason why the interpretation of an ordinaryword in a contract in English should bear a different signification in than in England. But here in the present case, the word "month" is qualified by the word "calendar". It could not be lunar month of 28 days and a calendar month, civil or solar, is themonth in the Gregorian calendar. Therefore, one has to refer to Gregorian calendarfor the purpose of ascertaining months and in that case it could not be less than 365days. According to Section 25 of the General Clauses Act "month" shall mean amonth reckoned according to the British calendar. Therefore, one has to refer to Gregorian calendarfor the purpose of ascertaining months and in that case it could not be less than 365days. According to Section 25 of the General Clauses Act "month" shall mean amonth reckoned according to the British calendar. Accordingly, calendar monthmeans only Gregorian calendar month and no other month. ( 25 ) IT would be worthwhile to reproduce Section 28 of the Contract Act here forthe purpose of interpretation of Clause 9 of the policy in relation to its validity in thelight of Section 28 of the Contract Act. Clause 9 of the policy has already been REFERRED TOto earlier. Section 28 of the Contract Act reads as under : "28. Agreements in restraint of legal proceedings void-Every agreement, bywhich any party thereto is restricted absolutely from enforcing his rights underor in respect of any contract, by the usual legal proceedings in the ordinarytribunals, or which limits the within he may thus enforce his rights, is void tothat extent. " EXCEPTION 1.-Saving of contract to refer to arbitration dispute that may arise-This section shall not render illegal a contract, by which two or more personsagree that any dispute which may arise between them in respect of any subjector class of subjects shall be REFERRED TO to arbitration, and that only the amountawarded in such arbitration shall be recoverable in respect of the dispute so REFERRED TO. SUIT barred by such contracts-When such a contract has been made, a suit maybe brought for its specific performance; and if a suit, other than for such specificperformance, or for the recovery of the amount so awarded, is brought by oneparty to such contract against any other such party, in respect of any subjectwhich they have so agreed to refer, the existence of such contract shall be barto the suit. EXCEPTION 2.-Saving of contract to refer questions that have already arisen-Nor shall this section render illegal any contract in writing, by which two ormore persons agree to refer to arbitration any question between them whichhas already arisen, or affect any provision of any law in force for the time beingas to reference to arbitration. " ( 26 ) LEARNED Counsel for the parties REFERRED TO to some case law on the point ofinterpretation of the provisions nearly similar to the provisions contained in Clause9. In Food Corporation of India v. New India Assurance Co. Ltd. Ors. " ( 26 ) LEARNED Counsel for the parties REFERRED TO to some case law on the point ofinterpretation of the provisions nearly similar to the provisions contained in Clause9. In Food Corporation of India v. New India Assurance Co. Ltd. Ors. , (1994) 3 SCC324, Justice and R. M. Sahai concurring with the majority observed in para 3 of the judgment as under: "27. In Rehmatunnisa Begum v. Price, AIR 1917 PC it was observed as generellprinciple that, no man can exclude himself from the protection of the Courts". THE rationale obviously is to ensure protection against fair dealing evenbetween unequal bargaining parties. The intention and objective being clearthe Courts primary responsibility is to construe and interpret it in a manner soas to advance the objective and protect the interest of the party who might befrustrated by too technical and expensive approach in such matters. Further itis trite saying that the Courts should lean in favour of construction which keepsthe remedy alive, that is if two constructions are possible then the onefavouring continuance of the suit is to be preferred TO than the one barring theremedy. Even though the phraseology of Section 28 is explicit it and strikes atthe very root by declaring any agreement curtailing the normal statutoryperiod of limitation to be void the Courts have been influenced by thedistinction drawn by English Courts in extinction of right by agreement andcurtailment of limitation. . . The occasion to draw such distinction flows fromthe anxiety of the Courts to interfere as less as possible in agreements unless itis unconscionable or against public policy etc. Where statutory prohibition isplaced on agreements and they are declared to be void the provision has to beconstrued strictly and applied restrictively confining to only those situationswhich are squarely covered in it. It is for this reason that any agreement whichwas not specifically covered in Section 28 was not held to be valid. When this Court observed in Vulcan insurance Co. v. Maharaj Singh, (1976) 1 SCC 943 air 1976 SC 287 , that Clause like 19, in that, case was not violative of Section28 it, obviously, meant that where filing of suit within specified time agreed between parties is made dependent on any consideration precedent then suchagreement would not be void. When this Court observed in Vulcan insurance Co. v. Maharaj Singh, (1976) 1 SCC 943 air 1976 SC 287 , that Clause like 19, in that, case was not violative of Section28 it, obviously, meant that where filing of suit within specified time agreed between parties is made dependent on any consideration precedent then suchagreement would not be void. And probably, rightly, as then it is not anagreement curtailing limitation but providing for doing one or other thing andfiling the suit only after condition precedent was complied. " ( 27 ) IN Sujir Ganesh Nayak and Co. v. National Insurance Co. Ltd. , AIR 1996kerala 49, clause 19 of the contract of insurance reads as under: "5. Clause 19 of the contract of insurance reads as follows: "in no case whatever shall the Company be liable for any loss or damage afterthe expiration of twelve months from the happening of the loss or damageunless the claim is the subject of pending action or arbitration. " ( 28 ) A similar question arose in that case "whether Clause 19 of the contract ofinsurance prohibited filing of the suit after expiration of twelve months of thehappening of loss or damage. The Division Bench of Kerala High Court, afterreferring to Pearl Insurance Company v. Atmaram, AIR 1960 Pandh 236, Secretarytaluka Agricultural Produce Co-operative Marketing Society v. Custodian Newindia Assurance Company Ltd. , 1989 AC) 26 (AIR 1988 Kant. 185) and Foodcorporation of India v. New India Assurance Co. , (1994) 3 SCC 324 : (1994 AIR SCW1827), took the following view in paragraph 12 of judgement: "12. In the instant case. Clause 19 of the contract of insurance only states thatthe insured shall enforce his claim before the expiration of twelve months of thedate of happening of the damage. It does not expressly prohibit the insuredfrom filing a suit beyond that period. Under the Limitation Act, there is aspecific article for filing a suit for damage due under the contract of insurance. Any clause in the contract of insurance curtailing the period of limitation will be hit by Section 28 of the Contract Act. If Clause 19 of the contract of insuranceis construed in such a way, it limits the period of limitation to twelve monthsfrom the date of happening of the loss or damage and it would seriouslyprejudice the rights of the insured. If Clause 19 of the contract of insuranceis construed in such a way, it limits the period of limitation to twelve monthsfrom the date of happening of the loss or damage and it would seriouslyprejudice the rights of the insured. The insurer can very well defeat the claimof the insured by rejecting the claim after the period of 12 months from the dateof happening of the loss. Under Article 44 (b) of the Limitation Act, the periodof limitation runs from the date of rejection of the claim. Therefore, it is clearthat Clause 19 of the contract of insurance only prescribes the period duringwhich the claim to be preferred TO by the insured before the Insurance Companyand it does not, in any way, curtail the period of limitation prescribed underthe Limitation Act for filing suit of that nature. " ( 29 ) IN the National Insurance Co. Ltd. v. Sujir Ganesh Nayak and Co. , JT 1997 (4) SC 179, a clause similar to the clause REFERRED TO in Sujir Ganesh Nayak and Co. v. National Insurance Co. Ltd. (supra) was considered by the Hon ble Supreme Court. That clause/condition reads as under : "5. The appellants contested the suit inter alia on the ground that the suit wasbarred by limitation as well as by Condition No. 19 of the policy and on theground that the claim made by the respondent No. 1 was not covered by thepolicy. Condition 19 of the policy which was set up by way of defence runs as under: "condition No. 19-In no case whatever shall the Company be liable for anyloss or damage after the expiration of 12 months from the happening of loss orthe damage unless the claim is the subject of pending action or arbitration. " ( 30 ) THE Supreme Court after considering numerous cases, including Valcaninsurance Co. Ltd. v. Maharaj Singh and Anr. , (1976) 1 SCC 943 , Food Corporation ofindia v. New India Assurance Co. Ltd. and Ors. , J. T. 1994 (1) SC 703: (1994) 3 SCC 324 . . The Baroda Spinning and Weaving Co. Ltd. v. The Satyanarayan Marine and Fireinsurance Co. Ltd. , 1913 (15) Bombay Law Reporter 948, Pearl Insurance Companyv. Atmaram (supra) and Secretary, Taluka Agricultural Proudce Cooperativemarketing Society Ltd. v. New India Assurance Co. Ltd. (supra) observed inparagraph 19 as under : "19. . The Baroda Spinning and Weaving Co. Ltd. v. The Satyanarayan Marine and Fireinsurance Co. Ltd. , 1913 (15) Bombay Law Reporter 948, Pearl Insurance Companyv. Atmaram (supra) and Secretary, Taluka Agricultural Proudce Cooperativemarketing Society Ltd. v. New India Assurance Co. Ltd. (supra) observed inparagraph 19 as under : "19. From the case law REFERRED TO to above the legal position that emerges is thatan agreement which in effect seeks to curtail the period of limitation andprescribes a shorter period than that prescribed by law would be void asoffending Section 28 of the Contract Act. That is because such an agreementwould seek to restrict the party from enforcing his right in Court after theperiod prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But therecould be agreements which do not seek to curtail the time for enforcement ofthe right but which provides for the forfeiture or waiver of the right itself if noaction is commenced within the period stipulated by the agreement. Such aclause in the agreement would not fall within the mischief of Section 28 of thecontract Act. To put it differently, curtailment of the period of limitation is notpermissible in view of Section 28 but extinction of the right itself unlessexercised within the specified time is permissible and can be enforced. If thepolicy of insurance provides that if a claim is made and rejected and no actionis commenced within the time stated in the policy, the benefits flowing from thepolicy shall stand extinguished and any subsequent action would be timebarred. Such a clause would fall outside the scope of Section 28 of the Contractact. This, in brief, seems to be the settled legal position. We may now apply itto the facts of this case. " ( 31 ) THEREAFTER, referring to the facts of the case, the Court found that there wasno dispute that neither claim was made nor any proceeding was pending during thesaid period of 12 months. ( 32 ) HOWEVER, with regard to constructions of insurance policy in The Generalassurance Society Ltd. v. Mohd. Salim, AIR 1965 All 561 (DB), a Divisionbench of Allahabad High Court REFERRED TO to Halsbury s Laws of England withapproval in para 49 as under: "49. According to Para 440 of Halsbury s Laws of England, Vol. 23,3rd Edn. ( 32 ) HOWEVER, with regard to constructions of insurance policy in The Generalassurance Society Ltd. v. Mohd. Salim, AIR 1965 All 561 (DB), a Divisionbench of Allahabad High Court REFERRED TO to Halsbury s Laws of England withapproval in para 49 as under: "49. According to Para 440 of Halsbury s Laws of England, Vol. 23,3rd Edn. at page 232 any description, whether of the locality of the property insured, or ofthe circumstances affecting the subject-matter or the incidence of the peril is ingeneral sufficient if it is substantially accurate; in other words misdescriptionmust be material if it is to affect the validity of the policy. " (Emphasis supplied) ( 33 ) IN the light of above case law and the different clauses REFERRED TO to thereinand Clause 9, we must note three concepts of limitation, extinction of right on accountof non-filing of claim with the Insurance Company and in case of dispute in seekingarbitration and still further not filing the suit and deemed abandoned in thecircumstances mentioned in the concerned clause. ( 34 ) IN this connection, let us revert back to Clause 9 in its entirety. We will startwith the presumption that Clause 9 was never intended to violate provisions ofsection 28 of the Contract Act. If we treat Clause 9 simply as an arbitration clause,then Exception 1 to Section 28 of the Contract Act relating to saving of contract to referto arbitration dispute that may arise would protect the said clause. In case we treatit as a contract extinguishing right to enforce any liability under the insurance cover,then again the provision under Clause 9 would not be hit by Section 28 of the Contractact. It is evident that first part of Clause 9 refers to arbitration in case of differenceas to quantum to be paid under the policy. The second part clearly provides that nodifference or dispute shall be referable to arbitration if the Company has disputedand not accepted liability under or in respect of the said policy. Thus, the second partexcludes possibility of reference if the Company has disputed or not acceptedliability under or in respect of the policy. In part three, it expressly stipulates anddeclares that "it shall be condition precedent to any right of action or suit upon thispolicy that the award by such Arbitrator, Arbitrators or Umpire of the loss c r damageshall be first obtained". In part three, it expressly stipulates anddeclares that "it shall be condition precedent to any right of action or suit upon thispolicy that the award by such Arbitrator, Arbitrators or Umpire of the loss c r damageshall be first obtained". Without fulfilling this condition in absence of any disclaimerno suit could be filed without seeking arbitration meaning thereby that the right tosuit does not arise and cause of action does not exist till this condition is fulfilled. Thisis a condition precedent. In so far as the fourth part is concerned, if it is to be read aspart and parcel of the entire Clause 9 and due emphasis is laid on the words "also","further" "hereunder", "then" and the phrase "then the claim shall for ail purposesbe deemed to have been abandoned and shall not thereafter be recoverable hereunder". If due emphasis is given to words "also", "further" and "hereunder", it wouldhave to be held that this part is confined to arbitration proceedings as part and parcel of Clause 9. Then, it would not be hit by Section 28 of the Contract Act. What militatesagainst this kind of interpretation is that this part seeks that the insured must makehis claim "the subject matter of a suit in a Court of law" and if it is not made, "thenthe claim shall for all purposes be deemed to have been abandoned and shall notthereafter be recoverable hereunder". In these three conditions it is to be made asubject-matter of a suit in a Court of law, meaning thereby that the suit has to be filed. It has further to be read alongwith part 2, which provides an exception to thearbitration clause in case of dispute or non-acceptance of liability under the policy. In the case of disclaimer of liability, the matter would not be REFERRED TO to arbitration. and if there is no reference to arbitration in part 4 of Clause 9 if there is specificreference to make the claim subject-matter of a suit in Court of law, then it appearsdifficult to accept the proposition that in part 4 the assertion of right to claimarbitration is only REFERRED TO to and only that would be deemed to be abandoned. Moreover, if this part related to reference to arbitration then the term reference andphrase "shall not thereafter be REFERRED TO to" or "referable to arbitration hereunder"would have been used and "not recoverable hereunder". Moreover, if this part related to reference to arbitration then the term reference andphrase "shall not thereafter be REFERRED TO to" or "referable to arbitration hereunder"would have been used and "not recoverable hereunder". Recovery could be of theamount of the claim alone and not of the claim in arbitartion. Should it mean,therefore, that part 4 is hit by Section 28 of the Contract Law. We would not like tojust jump to the conclusion without further examining it. ( 35 ) UNDISPUTEDLY, in this case, the claim has been filed by the appellant/ plaintiff within the stipulated time and the respondent/defendant has disclaimedthe liability under the insurance policy. It is to be seen that fourth part of Clause 9provides for two kinds of consequences in case of disclaimer of liability and nonfiling of a suit within 12. months from the date of such disclaimer. Firstly, the claimshall for all purposes be deemed to have been abandoned. Second, the claim shall notthereafter be recoverable. ( 36 ) NOW, let us appreciate the distinction between limitation, deemed abandoned, extinction of right. With reference to Clause 9. Abandonment or deemedabandonment would relate to (a) enforcement of right to claim recovery of the amount in arbitration; (b) enforcement of right in Court; and (c) enforcement of therights (a) and (b) both. According to the Black s Law Dictionary, the terms"abandonment", "extinguishment" and limitation" mean as under : "abandonment.-THE surrender, relinquishment, disclaimer, or cession ofproperty or of right. Voluntary relinquishment of all right, title, claim andpossession, with the intention of not reclaiming it. State v. Bailey, 97 396,235a. 2d 214. 216. The giving up of a thing absolutely, without reference to anyparticular person or purpose, as vacating property with the intention of notreturning, so that it may be appropriated by the next comer or finder. Thevoluntary relinquishment of possession of thing by owner with intention ofterminating his ownership, but without vesting it in any other person. Doberv. Ukase lnv. Co. , 139 Or. 626, 10 P. 2d 356, 357. The relinquishing of all title,possession, or claim, or a virtual, intentional throwing away of property. Term includes both the intention to abandon and the external act by which theintention is carried into effect. In determining whether one has abandoned hisproperty or rights, the intention is the first and pararnount object of inquiry, forthere can be no abandonment without the intention to abandon. Term includes both the intention to abandon and the external act by which theintention is carried into effect. In determining whether one has abandoned hisproperty or rights, the intention is the first and pararnount object of inquiry, forthere can be no abandonment without the intention to abandon. Roebuck v. Mecosta County Road Commission, 59 Mich. App. 128,229 N. W. 2d 343, 345. Generally, "abandonment" can arise from a single act or from a series of acts. Holly Hill Lumber Co. v. Grooms, 198 S. C. 118, 16 S. E. 2d 816, 821. THIS is not an essential element of act, although the lapse of time may beevidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whetherthere has been an abandonment. Ullman ex rel. Erama v. Payne, 127 Conn. 239,16 A. 2d 286,287. "abandonment" differs from surrender in that surrender requires agreement,and also from forfeiture, in that forfeiture may be against the intention of theparty alleged to have forfeited. " "extinguishment. The destruction or cancellation of a right, power, contract, orestate. The annihilation of a collateral thing or subject in the subject itself outof which it is derived. "extinguishment" is sometimes confounded with "merger", though there is aclear distinction between them. "merger" is only a mode of extinguishment,and applies to estates only under particular circumstances; but "extinguishment"s a term of general application to rights, as well as estates. "extinguishment"connotes the end of a thing, precluding the existence of future life therein; in"mergers" there is a carrying on of the substances of the thing, except that it ismerged into and becomes a part of a separate thing with a new identity. Mcroberts v. Mcroberts, 177 Okl. 156 P. 2d 1175, 1177. " "limitation. Restriction or circumspection; settling an estate or property. Acertain time allowed by a statute for bringing litigation. The provisions of Stateconstitution are not a "grant" but a "limitation" of a legislative power. Ellerbev. Davit, 193 S. C. 332,8 S. E. 2d. 518,520; Mulholland v. Ayers, 109 Mont. 558,99 P. 2d 234, 239. " (Emphasis supplied) ( 37 ) IT may be mentioned that this part 4 proceeds to provide that to keep the right alive the suit was also required to be filed within a period of one year. Ellerbev. Davit, 193 S. C. 332,8 S. E. 2d. 518,520; Mulholland v. Ayers, 109 Mont. 558,99 P. 2d 234, 239. " (Emphasis supplied) ( 37 ) IT may be mentioned that this part 4 proceeds to provide that to keep the right alive the suit was also required to be filed within a period of one year. Thus,clause 9 bars, in case of disclaimer of the liability under the insurance cover, firstly,the right to enforce arbitration; and secondly, prescribes period of filing of the suitwithin a period of one year also. This is strictly in contrast with the intention of theclause dealt with in the case of Food Corporation of India v. New India Assuranceco. Ltd. and Ors. (supra ). So, the observations made in the Food Corporation of Indiav. New India Assurance Co. Ltd. and Ors. (supra) as well as in paragraph 22 of thenational Insurance Co. Ltd. (supra) are not applicable to the facts of the present case. Moreover, fourth part does not refer to bar confined to arbitration clause und toenforce arbitration clause only. Enforcement of right to arbitration protected byexplanation under Section 21 since it refers to filing of the suit also within a periodof one year, the clause is hit by the main provisions of Section 28 of the Contract Act. ( 38 ) IT is further notable that the abandonment itself s based on the restrictionof one year s period provided by fourth part of Clause 9. Consequently, it intends toprescribe a period of limitation for filing the suit from the date of disclaimer inviolation of Section 28 and accordingly it is hit by Section 28 of the Contract Act. Part4 provides two kinds of consequences in case of disclaimer of liability and non filing of a suit within 12 calendar months from the date of such disclaimer: (i) then the claimshall for ali purposes be deemed to have been abandoned; (ii) the claim shall notthereafter be recoverable. No party would be forced to abandon his claim, withoutexpress consent or conduct, by a deeming provision to make his claim unenforceable. ( 39 ) IN the aforesaid facts and circumstances and the foregoing discussion, weare of the definite opinion that suit is neither barred by limitation provided undersection 44 (b) of the Limitation Act nor it falls within the mischief of abandonmentunder Clause 9 of the Insurance policy. ( 39 ) IN the aforesaid facts and circumstances and the foregoing discussion, weare of the definite opinion that suit is neither barred by limitation provided undersection 44 (b) of the Limitation Act nor it falls within the mischief of abandonmentunder Clause 9 of the Insurance policy. ( 40 ) SINCE the finding on Issue No. 3 is being set aside and it is held that the claimin suit is neither abandoned nor barred by time, the decision on Issues No. 5 and 6also is reversed. On merits, the learned Trial Court gave the following finding: "there was theft/burglary of the insured goods and in that incident theplaintiff had suffered the loss of at least Rs. 55,000. 00 which, according to theterms of the policy, he was entitled to get from the defendants. Issue No. 2 isdecided accordingly. " THIS finding has not been challenged before us. The plaintiff, therefore is entitled torecover this amount of Rs. 55,000. 00 for the loss of goods under the Insurance Policy. ( 41 ) IN addition, the plaintiff/appellant has also claimed a sum of Rs. 9. 900. 00as interest at the rate of 18 percent per annum, from the date of loss for withholdingthe payment, by notice Ex. Public Witness -1/5 dated 25/11/1984. It has to be seen asto whether it is a commercial transaction. The term "commercial transaction" is explained in Explanation II of Section 34 of the CPC, in the following terms :34. (1 ). . . Explanation 1:. . . Explanation II: For the purposes of this Section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. " ( 42 ) COMPENSATION for the loss under the Insurance Policy is undoubtedlyconnected with the business of parties. In such a case, the rate of interest to beawarded can exceed 6 percent per annum, and in absence of any contractual rate, theplaintiff is entitled to claim interest at a rate at which monies are lent or advanced bythe nationalised Banks in relation to commercial transactions. In such a case, the rate of interest to beawarded can exceed 6 percent per annum, and in absence of any contractual rate, theplaintiff is entitled to claim interest at a rate at which monies are lent or advanced bythe nationalised Banks in relation to commercial transactions. ( 43 ) IN B. S. Rajput v. M/s. The Cellar and Another, AIR 1993 Karnataka 9, adivision Bench of Karnataka High Court took the view that where receipts do notprovide for payment of interest on the basis of notice demanding interest, the partywould be entitled to receive interest at the "current rate" as defined in Clause (b) ofsection 2 of the Interest Act, 1978. Where claim for interest at 18 percent per annum,which was normal rate of interest, was not disputed by both the parties, award ofinterest at the rate of 18 percent per annum from the date of final bill was held notto be an error apparent on the face of record. In the present case, the plaintiff claimsinterest at the rate of 18 per cent per annum. The rate of interest has not been disputedin the reply Ex. Public Witness -1/d2 sent to the notice dated 25/11/1984. Consequently, this rate of interest has to be treated and presumed to be current rate ofinterest at that time. Accordingly, the plaintiff is entitled to interest from the date ofnotice i. e. 25/11/1984 till the date of filing of the suit, during pendency ofthe suit and till realisation at the rate of 18 percent per annum on the principal sumof Rs. 55,000. 00. ( 44 ) ACCORDINGLY, the impugned judgment and decree dated 25/04/1992 is hereby set aside. The suit is decreed accordingly for recovery of Rs. 55,000. 00 withinterest at the rate of 18 percent per annum from 25th of November, 1994 to the dateof realisation. The appeal is allowed with costs throughout.