Calcutta High Court
The Tinplate Co. Of India Limited vs Own. & Parties Int.Vessel ... on 7 May, 2024
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
ORIGINAL SIDE
[Commercial Division]
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
AS/3/1996
IA NO: GA/1/1997, GA/2/1997,GA/3/1997,GA/5/2003,
T/7/2003,T/8/2003, GA/10/2006
IN THE MATTER OF
THE TINPLATE CO. OF INDIA LIMITED
VS
OWN. & PARTIES INT.VESSEL ESPERANZA-III
For the Plaintiff : Mr. Jishnu Saha, Senior Advocate
Mr. Ovik Sengupta, Advocate
For the Defendant : Mr. Ramabhadrawn, Senior Advocate
Mr. Krishnaraj Thakker, Advocate
Mr. S. Prasad, Advocate
Mr. P. Bose, Advocate
Mr. N. Banerjee, Advocate
Judgment on : 07.05.2024
Ravi Krishan Kapur, J.:
1. This is a suit seeking arrest of the vessel "ESPERNZA III" and a decree
directing the defendant to deliver 263 TABP coils of prime quality tin
mill black plates in coils weighing 2,510,173 kgs. The invoice value of
the goods was USD 1703527.52.
2. Briefly, 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 carry the goods to Kolkata and to
deliver the same to the plaintiff. The vessel arrived at Sand Heads on
16 February 1996 and was scheduled to arrive at the port of discharge
i.e. Khidderpore Dock on 28 February 1996. Although a bill of entry
for warehousing was prepared by the plaintiff on 16 February 1996
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.
3. In this background, alleging wrongful detention and breach of
agreement, the plaintiff instituted the present suit seeking arrest of
the vessel with an alternative claim for specific delivery of the goods.
The relevant portion of the plaint reads as follows:
"11. The defendants are wrongly contending that
due to strike by the Calcutta Port Pilots the said Ocean
Vessel Esperanza III has been "detained" and the plaintiff
will have to pay to the defendants "detention charges" yet
to be ascertained.
12. The plaintiff states that neither in law nor in fact
the said Ocean Vessel has been detained and as such the
question of payment of any detention charges by the
plaintiff does not arise. The purported claims of the
defendants by way of "detention charges" are wrongful,
untenable and the defendants are not justified in
withholding delivery of the said goods covered by the said
Bill of Lading. Such withholding delivery of the plaintiff's
goods is in breach of the agreement and breach of duty as
common carrier and/or public carrier and the defendants
are liable to pay all losses and damages suffered and that
might be suffered by the plaintiff as a result thereof.
13. The plaintiff is entitled to and claims delivery of
the said goods forthwith and claims damages for the
wrongful withholding of delivery of goods."
4. Upon filing of this suit, the plaintiff had filed an interlocutory
application. By an order dated 28 February 1996, read with the order
dated 29 February 1996, the defendant was directed to issue a
delivery order for the goods upon the plaintiff furnishing security of
Rs. 68 lacs alongwith interest which was to be deposited with the
Registrar, Original Side to secure the claim of the defendant. Pursuant
to interim orders, the plaintiff duly furnished a bank guarantee for a
sum of Rs.68 lacs, and the defendant issued a delivery order to the
plaintiff for the goods.
5. Thereafter, the parties completed their pleadings. By an order dated 3
October 2012, the defendant also without prejudice to their rights,
amended the written statement to include a counter claim and also
sought encashment of the bank guarantee.
6. Pursuant to orders of Court, a Commissioner was appointed for
recording of evidence. At the meeting held before the Commission on
10 January 2017, the plaintiff unconditionally submitted that they did
not want to adduce any evidence nor want to proceed any further with
its claim. The relevant portion of the Minutes of the Commissioner
dated 10 January 2017 is as follows:
"Mr. Sukrit Mukherjee submitted that the plaintiff
does not wish to adduce any evidence as the plaintiff
does not wish to proceed with its claim.
7. The defendant led evidence by examining two witnesses one being
Gopal Krishna Bhattacharjee (DW1), working at the relevant point of
time with Oceanic Shipping Agencies Pvt. Ltd., who were agents of
Cargo Levant and the other being, Dilipkumar Chatterjee (DW2)
working with the P & I Services Pvt. Ltd. During the course of
examination, the defendant's witness inter-alia proved the bill of
lading (Exhibit-1), invoices, notices issued to the plaintiff. DW1
further deposed that the reason for the vessel detention was an
ongoing strike. DW1 also produced a letter dated 7 June 2008
(Exhibit-8) being the reply from the Calcutta Port Trust in which the
Port Authorities had confirmed that there was a pilot's strike from 5
February 1996 to 26 February 1996. The plaintiff extensively cross-
examined both the witnesses.
8. It is contended on behalf of the plaintiff that the defendant's counter
claim is barred by limitation. The interim order directing release of the
goods was passed on 29 February, 1996. The defendant filed its
written statement on 3 January 1997. By orders dated 3 August 2012
and 6 August 2012, it was clarified that the order for amendment
would not prelude the plaintiff to contend that such counter claim
was barred by limitation. The amendments sought to include a
counter claim seeking encashment of the bank guarantee were made
only in 2012 beyond the period of limitation. Hence, there was no
contemporaneous demand for release of the bank guarantee. In any
event, the defendant is not entitled to any detention charges since the
defendant had acted contrary to the agreement by not discharging the
goods at the nearest port nor making any attempt to mitigate their
losses. It is also alleged that the suit has been filed by a person who is
not the defendant but is masquerading to be the defendant. It is
further alleged that none of the witnesses had any authority to depose
on behalf of the owners of the vessel.
9. On behalf of the defendant, it is submitted that, the plaintiff has 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 having chosen not to adduce any evidence
and abandon the suit after having enjoyed the interim orders, the suit
is liable to be dismissed on that ground alone and the bank guarantee
be encashed in favour of the defendant. The defendant also seeks
interest on the aforesaid amount of Rs.68 lacs. It was also submitted
that the counter claim had been filed without prejudice to the rights of
the defendant and there was no need to file the counter claim.
10. For convenience, sections 101, 102 and 103 of Indian Evidence Act,
1872 reads as follows:
101. Burden of proof- Whoever desires any Court to give
judgment as to any legal right or liability dependent on
the existence of facts which he asserts, must prove that
those facts exist.
When a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on that
person.
102. On whom burden of proof lies.- The burden of proof
in a suit or proceeding lies on that person who would fail
if no evidence at all were given on either side.
103. Burden of proof as to particular fact.- The burden of
proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is
provided by any law that the proof of that fact shall lie on
any particular person.
11. The sections embody a test for ascertaining on which side the burden
of proof lies. On a combined reading of sections 101, 102 and 103 of
the Act, 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. The Court has to examine as to
whether the person upon whom the burden lies has been able to
discharge this burden or not. It means that when the burden of proof
lies on a party, that party must fail if it fails to discharge the burden
by giving evidence [State of Madhya Pradesh vs Ushadevi, (2015) 8
SCC 672, Vidhyadhar vs Manikrao, (1999) 3 SCC 573].
12. An action for "detention" is a wrong independent of contract and is
founded in tort. 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. Briefly, the tort of
conversion by detention is an act of willful interference without lawful
justification with any chattel in a way inconsistent with the rights of
another, whereby that other is deprived use and possession of it
(Dhian Singh Sobha Singh and Ors vs The Union of India, AIR 1958 SC
274).
13. The suit is one for wrongful detention of goods and for breach of
agreement. The burden of proving these facts was squarely on the
plaintiff. The plaintiff deliberately and consciously opted not to adduce
any evidence nor prove their case. The plaintiff has also chosen not to
lead any evidence to prove that the defendants were in breach of the
agreement as pleaded in the plaint. The burden of proving this fact is
always on the person who asserts such fact. Until such burden is
discharged, the defendant is not obliged to adduce any evidence.
14. In any event, 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 plaintiff to discharge the burden of proof
and prove its case. It is true that the defendant had (without
prejudice) amended its written statement, to include a counter claim.
But, this does not absolve the plaintiff from proving its case. In
Vidhyadhar vs. Manikrao (1999) 3 SCC 573 it has been held as follows:
"17. Where a party to the suit does not appear in the
witness-box and state his own case on oath and
does not offer himself to be cross-examined by the
other side, a presumption would arise that the case
set up by him is not correct. If a party abstains from
entering the witness-box, it would give rise to an
adverse inference against him."
15. Admittedly, pursuant to the interim orders, the plaintiff had obtained
delivery of the goods. 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. In such
circumstances, the deliberate and conscious course of not leading any
evidence and abandoning their claim is akin to committing harakiri
and is a glaring omission of the plaintiff.
16. The other issue raised by the plaintiff of the defendant's counter claim
being barred by limitation is also without substance. The counter
claim was filed without prejudice to the rights of contentions of the
defendant. It is true that the defendant's witnesses had deposed and
were cross examined. In any event, regardless of the counter claim,
the burden of proof always remained with the plaintiff to prove its case
which it has deliberately abandoned.
17. DW1 had at the time of cross examination deposed that he had
affirmed the written statement as an agent of the Owner of the vessel
MV Esperanza-III and that the principals of the vessel had authorized
him to affirm the same. There is nothing contrary on record to
controvert such allegation. Accordingly, there is no merit in the
allegation that, the suit has been affirmed by a person masquerading
as the defendant and the same is rejected.
18. For the above reasons, AS 3 of 1996 is dismissed. In view of the
aforesaid, nothing further survives in any of the pending interlocutory
applications being GA 1 of 1997, GA 2 of 1997, GA 3 of 1997 GA 5 of
2003 and GA 10 of 2006 and the same are also dismissed by consent
of the parties as infructuous.
19. Upon the dismissal of the suit, the parties must be restored to same
position in which they would have been if the interim order would not
have existed. The test is whether an act of Court has resulted in one
party gaining an advantage which it would not have otherwise earned.
In view of the above, all other issues are irrelevant and require no
adjudication. [South Eastern Coalfields Ltd. vs. State of Madhya
Pradesh (2003) 8 SCC 648].
20. In the above circumstances, the defendant is entitled to the benefit of
the bank guarantee furnished in terms of the interim orders dated 28
February 1996 and 29 February 1996 respectively. The Registrar,
Original Side is directed to encash the bank guarantee and in view of
the Power of Attorney dated 30 May, 2002 transfer the proceeds
thereof to the defendant's carrier Cargo Levant. The Advocate on
Record of the defendant shall within 7 days from date intimate the
Registrar, Original Side the details of the bank account of the
defendant's carrier.
21. In view of the fact that the transaction between the parties is
commercial in nature, the plaintiff is also directed to pay interest @
6% per annum in the same manner on the amount of Rs.68 lacs
commencing from 25 April 1996 till the date of payment. However,
there shall be no order as to costs.
(Ravi Krishan Kapur, J.)
Later:
After pronouncement of the judgment, the plaintiff prays for stay of
operation of the decree.
The prayer for stay is considered and rejected.
(Ravi Krishan Kapur, J.)
