The Patna High Court, while dismissing a suit seeking the arrest of the vessel “ESPERNZA III” and a decree directing the defendant to deliver 263 TABP coils, held that having taken advantage of an interim order, which virtually amounted to the final relief, the plaintiff cannot now contend that there is no obligation of the plaintiff to discharge the burden of proof and prove its case.
Brief Facts:
The plaintiff imported the goods by carriage on the vessel. Upon receipt of the goods, the defendant issued a bill of lading dated 28 December 1996 and agreed to deliver the same to the plaintiff. Although a bill of entry for warehousing was prepared by the plaintiff and the goods were to be delivered on 17 February 1996, the defendant failed and was unable to deliver the goods on the ground that the vessel was detained at the docks in view of an ongoing strike by the Calcutta Port Pilots. In this background, alleging wrongful detention and breach of agreement, the plaintiff instituted the present suit seeking the arrest of the vessel with an alternative claim for specific delivery of the goods. Upon filing this suit, the plaintiff filed an interlocutory application which was allowed. On 10 January 2017, the plaintiff unconditionally submitted that it did not want to adduce any evidence nor want to proceed any further with its claim.
Contentions of the Plaintiff:
The Learned Counsel for the Plaintiff submitted that the defendant’s counterclaim is barred by limitation. The interim order directing the release of the goods was passed on 29 February 1996. He argued that the defendant is not entitled to any detention charges since the defendant acted contrary to the agreement by not discharging the goods at the nearest port nor making any attempt to mitigate their losses.
Contentions of the Defendant:
The Learned Counsel for the Defendant submitted that the plaintiff failed to discharge the burden of proof. The burden of proof was squarely on the plaintiff who had complained of the breach. In such circumstances, the plaintiff chose not to adduce any evidence and abandon the suit after having enjoyed the interim orders; hence, the suit is liable to be dismissed on that ground alone and the bank guarantee be encashed in favor of the defendant.
Observations of the Court:
The Court noted that a person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove their case. Any act which is an interference with the dominion of the true owner of the goods is a conversion of those goods. A person who is in possession of goods and unjustifiably refuses to deliver the goods is guilty of conversion by detention.
The Court observed that the plaintiff has chosen not to lead any evidence to prove that the defendants were in breach of the agreement as pleaded in the plaint. The Court said that having taken advantage of an interim order, which virtually amounted to the final relief, the plaintiff cannot now contend that there is no obligation of the plaintiff to discharge the burden of proof and prove its case. The interlocutory reliefs being in aid of the main relief, the plaintiff cannot having enjoyed the fruits of interim reliefs abandon the main relief and contend that there is no obligation to prove its case. The plaintiff cannot be unjustly enriched.
The decision of the Court:
The Patna High Court, dismissing the suit, held that the defendant is entitled to the benefit of the bank guarantee furnished.
Case Title: The Tinplate Co. Of India Ltd. v Own. & Parties Int. Vessel Esperanza-III
Coram: Hon’ble Justice Ravi Krishan Kapur
Case no.: AS/3/1996
Advocate for the Plaintiff: Mr. Jishnu Saha
Advocate for the Defendant: Mr. Ramabhadrawn
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