T.Chatterjee, J. - (1.) This revisional application is directed against an order being Order No. 31 dated 10th September, 1997 passed by the Assistant District Judge, Burdwan in Money Suit No. 33 of 1995. By the impugned order, the Asst. District Judge, Burdwan rejected the application filed by the petitioners under section 151 of the Code of Civil Procedure praying for an order of stay of all further proceedings in the aforesaid suit till the disposal of a criminal proceeding being G.R. Case No. 221 of 1994 pending in the court of the City Division Judicial Magistrate, Burdwan which has been started under section 420/407/468/489/120B of the Indian Penal Code.
(2.) The facts leading to the filing of the application under section 151 of the Code of Civil Procedure can be briefly stated as follows : On 23.7.93, an accident took place in the cold storage of Satima Cold Storage being the plaintiff in the aforesaid money suit. On 24th July, 1993, the petitioners appointed a surveyor who made a report on 25th July, 1993 in which it was stated that the accident was beyond the control of the plaintiff Satima Cold Storage. On 29.7.93, the petitioners appointed another surveyor viz. Mahata Pademsay Surveyor Company. On 2.12.93, all documents pertaining to accident were filed with the petitioners by the Satima Cold Storage and on 3.12.93 Satima Cold Storage filed a claim petition for compensation inter alia for an amount of Rs. 24,25,56,834.28 as compensation on account of deterioration of stock of potatoes and other damages. On 17.12.93, the second surveyor, Mahata Pademsey sealed the damaged parts of the cold storage which was damaged in the accident and was sealed by the first surveyor. On 24.12.93, the damaged parts again were sealed by the second surveyor company and were taken delivery by them to get the same examined in C.M.R.E., Durgapur. The second surveyor wrote a letter on 6th January, 1994 in which it was admitted that the seal and signature of the Satima Cold Storage was intact in the damaged parts of the said cold storage. The first surveyor was however, withdrawn on 17th of January, 1994 and on 4th of February, 1994, the second surveyor company wrote another letter in which it was alleged that the seal affixed on the damaged parts was the shellac pressed with coin and the signature was made by one Sri Jashmir Singh and not by the Manager partner of the Satima Cold Storage. According to the plaintiff, Satima Cold Storage, after entering through the magnitude of the loss suffered by it due to the accident, the surveyor company along with the officials of the defendant-Insurance Company made a conspiracy and changed the damaged parts only to divert the claim of the Satima Cold Storage. On the basis of the reasonable suspicion that the seal was broken and damaged parts were charged by the defendants and the surveyor company, the plaintiff Satima Cold Storage had to lodge F.I.R. on 7.2.94 at Burdwan Police Station under section 420/467/468/489/120 B of the Indian Penal Code. The said criminal case is pending as G.R. Case No. 221 of 1994 before the learned Sub Divisional Judicial Magistrate, Burdwan. It is alleged by the plaintiff Satima Cold Storage that after knowing about the FIR lodged on 17.2.94, the said surveyor company again changed their stand within 5 days by admitting that all the identified tags were duly signed by the Manager Partner of the plaintiff and not by the said Jashmir Singh. As per the charge-sheet submitted in the criminal proceeding, the seal embossed of Goddess (Satima) was found intact in the two nos of damaged pipes and the seals in the remaining two nos. of pipes were tampered and changed. It was further alleged by the opposite party that the criminal proceeding was started only on 17th of February, 1994 that is long after the filing of the claim documents by the plaintiff Satima Cold Storage to the Insurance Company which was made on 3rd December of 1993. It is further alleged that the criminal proceeding is, therefore, a subsequent happening after the claim was made and there is no connection between the civil suit and the criminal proceedings. Before we proceed further, we may record here that the plaintiff Satima Cold Storage has filed the present money suit being Money Suit No. 33 of 95 praying for the following reliefs: (a) Decree in favour of the plaintiff or alternatively jointly in favour of the plaintiff and the proforma defendant No. 5 for Rs. 64,33,54,793.03 as mentioned in the schedule of the plaint; (b) Interest on the above amount at the rate of 21.25% per annum during the pendency of the suit and till recovery; (c) Interest on suits; (d) Interest on decrees; (e) Costs; (f) Further relief or reliefs which the Satima Cold Storage may be found entitled against the defendants.
(3.) After filing of the written statement by the defendant No. 1, the following issues were framed. 1.Has the plaintiff got any cause of action? 2.Is the suit maintainable in its present form? 3.It the suit barred by the principle of estoppel, waiver and acquiescence? 4. Is the suit barred by limitation? 5. Is the suit bad for non joinder of the necessary parties? 6. Has proper court fee been paid? 7. Is the certificate issued by the Agricultural Marketing Division authorised by law and whether is competent to issue such certificate? 8. Whether the letter of the defendant dated 21.7.93 is sufficient and valid? 9. Was the accident dated 23.7.93 beyond the control of the plaintiff? 10. Whether any condition between the parties can be changed unilaterally by one of the parties and whether in consequence thereof any act can be done by such parties without notice to the other parties? 11. Whether the report of the surveyor was just and proper? 12. Did the plaintiff practise misrepresentation at any stage of the agreement? 13. Are the prayers of the plaintiff tenable in view of the decision given by the National Consumer Disputes Redressal Commission? 14. Are the plaintiff entitled to the decrees sought for ? 15. To what other relief/reliefs the plaintiff is entitled?;