D.G.R.PATNAIK, J. - (1.) THE defendant -appellant have preferred the instant appeal against the judgment and decree dated 24.1.1996 and 7.2.1996 passed by the Subordinate Judge 7th, Ranchi, in Money Suit No. 26 of 1992 whereby the suit as filed by the plaintiff -respondents for a sum of Rs. 5.54.898/20P alongwith interest at the rate of 19 -1/2% per annum from the date of institution of the suit i.e. 10.3.1992 till the realisation of the amount, was decreed in favour of the plaintiff -respondents.
(2.) THE case of the plaintiff -respondents is that the plaintiffs have been carrying on a cloth business in the name and style of Vimal Deep having their show room of the products and goods of Vimal Fabrics. The show room and business premises is located on the Main Road in town of Ranchi. The plaintiffs had entered into a contract of insurance with the defendants to cover risk of loss of goods in stock of the plaintiffs shop on account of theft and burglary and also on account of fire and damages. The defendants undertook to cover the risk of loss of the plaintiffs to the extent of Rs. 12.50 lakhs on account of loss due to theft and burglary under Policy No. 5329100580. Further case of the plaintiffs is that since it had obtained substantial loan from the Canara Bank hypothecating the entire stock and the goods of the shop, the plaintiffs used to submit monthly statement of account relating to the stock to the Bank in its regular course of business. On the night of 28/29th December, 1984, a burglary occurred in the shop of the plaintiffs. The burglars by use of violence had broken open the lock of the iron shutters and after entering into the shop, had stolen away the cloths and goods from within the shop of the plaintiffs shop. The theft was detected on the next morning and the First Information Report (FIR) was lodged at the police station on 29.12.1984. The extent of value of the goods stolen away was assessed at Rs. 5,54,898/ -. The plaintiffs put up their claim with the defendants to reimburse the loss to the extent of the amount assessed. In response to the claim raised by the plaintiffs, the defendants have deputed a Surveyor of M/s M.T. Kothari and Company, who after conducting survey and complete inquiry, submitted his survey report. Not being satisfied with the report submitted by the surveyor, the defendant Insurance company deputed another surveyor namely S.R. Kar Roy, who also conducted survey and submitted his report recommending payment of compensation to the plaintiffs. On investigation of the case on the basis of the FIR, the Police submitted a final report declaring that the case was not true and that the informant should be prosecuted for the offence under Section 211 of the Indian Penal Code. The plaintiffs claim that the Police did not investigate the case properly and became hostile to the plaintiffs and submitted final report declaring falsely that no theft had occurred and went to the extent of even recommending proceedings against the informant under Section 211, IPC. The plaintiffs promptly lodged a protest petition against the final report in the Court of the Chief Judicial Magistrate and consequently the final report was not accepted by the Magistrate. Meanwhile, the plaintiffs kept on reminding the defendants to pay the claim amount on the basis of the insurance policy, but the defendants continued to delay the matter for over six years and ultimately by letter dated 5.12.1991, repudiated the claim of the plaintiffs refusing payment of compensation. The plaintiffs claim that cause of action had accrued to them on 5.12.1991 on account of refusal of the defendants to acknowledge the claim of the plaintiffs as a result of which, the plaintiffs filed the instant suit. The defendant insurance company contested the suit by filing written statement and claiming that the suit is not maintainable on the principles of waiver, estoppel and acquiescence under the Specific Relief Act and that the suit is barred by limitation. The case of the defendants is that the plaintiffs had no cause of action whatsoever since no theft or burglary was committed in the business premises of the plaintiffs, and therefore, the plaintiffs had not suffered any loss of goods on account of the alleged theft. In support of their contention, the defendants have relied upon the final report submitted by the Police on the conclusion of the investigation in the FIR lodged by the plaintiffs. The defendants further claim that the stock of goods of the plaintiffs shop was not covered under any policy of insurance on the date of the occurrence. The defendants have also denied the plaintiffs contention that the surveyor namely S.R. Kar Roy had recommended payment of compensation to the plaintiffs.
(3.) ON the basis of the rival pleadings, the trial Court framed the following issues. (i) Is the suit as framed maintainable? (ii) Have the plaintiffs a valid cause of action for the suit? (iii) Is the suit bared by law of limitation? (iv) Whether the theft and burglary was committed i.e. in the business premises of the plaintiffs in the night of 28/29th December, 1984 causing damage and loss to the plaintiffs as claimed in the suit? (v) Whether the plaintiffs had kept the alleged insured goods under proper safety as per insurance policy? (vi) Are the plaintiffs entitled to a decree as sought for in the plaint?;