STATE Vs. SATYANARAYAN RICE MILL

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed in Money Suit No. 528 of 1974 at the instance of the defendant, State of West Bengal.

(2.) The facts of the case as appear from the plaint in short are as follows:- The respondent, Satyanarayan Rice Mill instituted the said Money Suit for recovery of the price of the rice delivered on the basis of the purported order made under the West Bengal Rice Mills Levy Order, 1967 whereby he was directed to deliver 225 quintals of fine quality and 450 quintals of common quality rice as well as 224.80 quintals of common rice and 300 quintals of fine rice the price of which is claimed at the rate as per the order of this Hon'ble Court to be Rs. 37,578.25 P. It has been stated that the impugned Levy Order directing delivery of the aforesaid quantities of rice was served on the plaintiff some time in April, 1967 and the procurement price fixed under the West Bengal Rice Mills Levy Order, 1967 was much below the average price prevalent. It has been stated that the price that was fixed in the aforesaid Rice Mills Levy Order, 1967 being illusory, the Rice Mills Owners Association made an application under Art.226 of the Constitution to this Hon'ble Court on or about 6th June, 1967 and this was registered as Matter No. 347 of 1967. This application was heard on 14th Nov. 1968 and by consent of parties, B. C. Mitra J. made an order appointing Mr. A. K. Sarkar as a Special Referee for determining the question as to what was the price of rice between Jan. 1, 1967 and April, 30, 1967. On or about 28th Feb. 1972 the Special Referee submitted his report finding that the average wholesale price of rice in all the districts of West Bengal during the period under enquiry was Rs. 124.09 P. per quintal. On 5th May, 1972 the said application came up for hearing before his Lordship B. C. Mitra J. and the learned Judge was pleased to uphold the finding of the Special Referee holding that the wholesale price of rice throughout the districts of West Bengal was Rs. 124.09 P. per quintal and direction was given for issuance of a Writ in the nature of Mandamus directing the respondent State of West Bengal to cancel and withdraw and not to give effect to Cl. IV of the West Bengal Rice Mills Levy Order, 1967 and further directed issue of a Writ in the nature of prohibition directing the respondent, State of West Bengal not to give effect to the procurement price fixed by Cl. IV of the said Order. Against the said order, the defendant, State of West Bengal, preferred an appeal and an application for stay of operation of the order was also filed. But the prayer for stay was refused by the Appeal Bench of this Hon'ble Court. Hence the instant suit has been brought by the plaintiff claiming the difference of price, i.e. the procurement price and the price that has been fixed by this Hon'ble Court in the aforesaid Matter No. 347/67 amounting to a sum of Rs. 37,578.25 P. The defendant, State of West Bengal, appeared in the suit and filed written statement. Four issues were framed, which were as follows : - 1. Is the suit barred by limitation? 2. Is the suit not maintainable in view of the appeal pending against the order dt the 5th May, 1972 of his Lordship, B. C. Mitra J.? 3. Is the suit barred by the provisions of O.2 R.2 of the Civil P. C? 4. To what relief, if any, is the plaintiff entitled?

(3.) The suit was heard on 20th Dec. 1978 before the Chief Judge, City Civil Court, Calcutta As regards issue No. 1, it was held that the suit was not barred by limitation. This finding was arrived at on the basis of a judgment rendered by His Lordship, S. C. Ghosh J. (as His Lordship then was) in Suit No. 414 of 1973 (Banishri Rice Mills Private Ltd. v. State of West Bengal) (Ext. 4a).