Delhi High Court
Metro Exporters Private Limited vs United India Insurance Company ... on 16 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.922/2004
% 16th February, 2018
METRO EXPORTERS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Mohan M. Jayakar,
Advocate with Mr. Ashwin
Shete, Advocate, Mr. Javaid
Muzaffar, Advocate, Mr. Harsh
Moorjani, Advocate and Mr.
Bharat Bagla, Advocate.
versus
UNITED INDIA INSURANCE COMPANY LIMITED ..... Defendant
Through: Ms. Sunita Dutta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1.
This suit being CS(OS) No.922/2004 is filed by the
plaintiff Metro Exporters Pvt. Ltd. The sole defendant in the suit is
United India Insurance Co. Ltd. By the suit plaintiff seeks a money
decree for a total amount of Rs.79,38,613.02/-, i.e principal amount of
Rs.76,70,056/- with interest at 18%. The present suit was originally
filed in the Mumbai High Court but was thereafter transferred to this
Court in terms of the order of the Supreme Court dated 23.1.2004 in
Transfer Petition (Civil) Nos. 6 and 7 of 2001. This suit was
transferred to this Court because the issues in this suit were connected
with respect to various other suits which were pending in this Court.
All the suits pertain to shipping of goods Ex-Singapore to different
ports in India by two Ships OH DAI and MV AVERILLA. Both these
ships allegedly sank, resulting in as per the plaintiffs in each of the
suits, loss of the cargo. Therefore, various suits were filed by various
owners/consignees of the goods which were shipped under the
aforesaid two ships. The suits which are before this Court and which
have come up for decisions are 8 in number, and details of the same
are as under:-
Sl. No. Case no. Title
1. CS(OS) No. 1408/1979 Elephanta Oil Vanaspati Industries Ltd. Vs.
The New India Assurance Co. Ltd. & Anr.
2. CS(OS) No. 1409/1979 Elephanta Oil & Vanaspati Industries Ltd. Vs.
The New India Assurance Co. Ltd. & Anr.
3. CS(OS) No.1417/1979 M/s. Jain Export P. Ltd. Vs. New India
Assurance Co. Ltd.
4. CS(OS) No.672/1980 Indo Foreign Commercial Agency Vs.
National Insurance Co. & Ors.
5. CS(OS) No.738/1980 Canara Bank & Anr. Vs. Oriental Insurance
Co. Ltd.
6. CS(OS) No.739/1980 Canara Bank & Anr. Vs. Oriental Fire &
General Ins. Co. Ltd.
7. CS(OS) No.1/1982 M/s. Sawhney Bros. Vs. Hong Kong Shanghai
Banking Corpn. & Ors.
8. CS(OS) No.922/2004 Metro Exporters P. Ltd. Vs. United India
Insurance Co. Ltd.
2. The two suits being CS(OS) No.1417/1979 titled as M/s.
Jain Export P. Ltd. Vs. New India Assurance Co. Ltd. and CS(OS)
No.672/1980 titled as Indo Foreign Commercial Agency Vs.
National Insurance Co. & Ors., have been disposed of by this Court.
CS(OS) No.672/1980, after arguments was withdrawn by the plaintiff
and this Court passed a detailed order on 12.2.2018 giving liberty in
accordance with law to the plaintiff in the said suit to seek adjustment
against its bankers who had debited the plaintiff in that suit with
respect to payment under the letter of credit issued by the plaintiff's
banker in favour of the foreign seller. Suit being CS(OS)
No.1417/1979 titled M/s. Jain Export P. Ltd. Vs. New India
Assurance Co. Ltd. was dismissed in terms of the judgment dated
6.2.2018 noting that the basic document which was required to be
filed by the plaintiff in the suit to seek the insurance claim against the
insurance company was the insurance policy but the insurance policy
containing the terms was not filed and only the cover note was filed,
and consequently it could not be known as to what was the loss which
was covered under the insurance policy in the said CS(OS) No.
1417/1979 and therefore once it is not known as to what was the loss
which was covered under the insurance policy, the suit claiming loss
under the insurance policy could not succeed and hence was
dismissed.
3. The present suit is the third suit out of the 8 suits which is
being decided. I may note that in all the 8 suits there are a total of 4
Insurance Companies who have issued the insurance policies being
United India Insurance Co. Ltd. (defendant in the present suit), New
India Assurance Co. Ltd., Oriental Insurance Co. Ltd. and National
Insurance Co. Ltd. All these four Insurance Companies had insured
the goods which were shipped through the two ships OH DAI and MV
AVERILLA. Out of the eight suits, the plaintiffs in the suits CS(OS)
Nos. 1408/1979, 1409/1979 and 1417/1979 are all companies
belonging to the Jain Shudh Vanaspati Group. Plaintiff in the present
suit being Metro Exporters Pvt. Ltd. is the company which is not a
part of the Jain Shudh Vanaspati Group and which companies of the
Jain Shudh Vanaspati Group are owned by the Jain brothers Sh. Vinod
Kumar Jain and Sh. Raj Kumar Jain. One another aspect which has to
be noted is that an order was passed in all the suits on 23.1.2014
whereby evidence which was led on behalf of the insurance companies
was to be treated as common evidence for all the eight suits. Suit
CS(OS) No. 1417/1979 was treated as a lead case in terms of the order
dated 23.1.2014. As already stated above this suit CS(OS)
No.1417/1979 already stands dismissed in terms of the judgment dated
6.2.2018. With the aforesaid preliminary statements let us turn to the
facts of the present suit.
4. As already stated above, plaintiff by the suit seeks
recovery of Rs.76,70,056/- along with interest at 18% totaling to
Rs.79,38,613.02 from the sole defendant being the United India
Insurance Co. Ltd. In sum and substance, the cause of action in the
suit is that the goods owned by the plaintiff company were subject
matter of the insurance policies issued by the defendant/insurance
company and since the goods have been lost on account of sinking of
the ship OH DAI and the loss is covered under the insurance policies,
hence the defendant/insurance company is liable to pay the plaintiff
the value of the goods along with the profit margin of the goods. I
may note that there were two policies issued by the
defendant/insurance company in favour of the plaintiff with one policy
being for the value of the goods and the second policy was with
respect to profit margin of the goods.
5. The facts of the case are that plaintiff entered into a
contract with one M/s. Palmex Enterprises of Singapore whereby M/s.
Palmex Enterprises, Singapore had agreed to sell and the plaintiff had
agreed to buy 800 M.T. of PVC Resin Suspension Grade. The
contract entered into between the plaintiff and the M/s. Palmex
Enterprises, Singapore is dated 11.6.1979 (Ex.PW1/1). In terms of the
contract plaintiff opened a letter of credit upon the seller M/s. Palmex
Enterprises, Singapore through the banker of the plaintiff State Bank
of India, Overseas Branch, Mumbai. The value of the letter of credit
was USD 624000 being roughly equivalent to Rs.50,690,49.50/-.
Defendant/insurance company firstly issued its cover-note dated
20.6.1979 in the sum of Rs.56,22,041/- (Ex.PW1/2). Another cover-
note dated 16.8.1979 (Ex.PW1/23) was also issued by the
defendant/insurance company in favour of the plaintiff for the sum of
Rs.25,96,500/- being the profit insurance with respect to subject
goods. With respect to both these cover-notes subsequently insurance
policies dated 5.9.1979 were also issued by the defendant/insurance
company in favour of the plaintiff and which have been proved and
exhibited as Ex.PW1/60 and Ex.PW1/59. Plaintiff pleads that on or
about 2.9.1979 plaintiff received a telex message from the supplier of
shipping of goods on the vessel OH DAI under the Bill of Lading No.
SB-15 dated 1.9.1979, Ex.PW1/31. Plaintiff by its letter dated
3.9.1979 informed the defendant/insurance company the details with
respect to shipment. On or about 13.9.1979, the plaintiff pleads, that it
appeared in the newspaper that the vessel OH DAI had sunk in the
Bay of Bengal and therefore plaintiff by its letter dated 15.9.1979 sent
the newspaper cutting to the defendant/insurance company. The
defendant/insurance company by its letter dated 15.9.1979 is stated to
have advised the plaintiff to act as a prudent person and to take steps
which are necessary to prevent retiring of the shipping documents.
Plaintiff is pleaded to thereafter sent notices to the shipping company
Tata Financial Limited and Wellway Lines who was the shipping
agent of the ship OH DAI. The plaint thereafter refers to
correspondence between the parties and since defendant/insurance
company failed to pay the amount hence the subject suit was filed
under Order XXXVII CPC in the Bombay High Court where
unconditional leave to defend was granted. As already stated above
the suit was thereafter transferred to this Court as per order of the
Supreme Court on a transfer petition.
6. The defendant/insurance company has contested the suit
and its defence is that a fraud is sought to be perpetrated upon the
defendant/insurance company because no goods were ever shipped by
the seller from Singapore to the plaintiff/buyer through the ship OH
DAI. The defendant/insurance company pleaded that Bill of Lading
and connected documents with respect to shipping of the goods are
fake documents because in fact goods which were the subject matter
of the contract between the plaintiff and M/s. Palmex Enterprises were
never shipped by M/s. Palmex Enterprises, Singapore to Mumbai,
India.
7. The following issues were framed by the Mumbai High
Court on 24.12.1999 in this suit:-
"1. Whether the Plaintiffs prove that on or about 11th June 1979 they
entered into a contract in writing with one Palmex Enterprises for the
purchase of 800 metric tons of PVC Resins Suspension grade (hereinafter
referred to as the "said goods") as more particularly alleged in paragraph 3
of the plaint?
2. Whether the Plaintiffs prove that the said goods had been shipped
on board the vessel "OH-DAI" as more particularly set out in paragraphs
7, 8 & 9 of the plaint?
3. Whether the Plaintiffs are entitled to recover from the defendants
the sum of Rs.76,70,056/- together with interest thereon being the amounts
payable by the Defendant under the policies of insurance dated 5th
September 1979 issued by the Defendants, on account of loss of the said
goods as alleged in paragraph 19 and the prayer clause of the plaint?
4. Whether the Defendants prove that the Plaintiffs have not fulfilled
the condition precedents before their claim could be entertained and
accepted by the Defendants as alleged in paragraph 1 of the written
statement?
5. Whether it was obligatory upon the Plaintiffs to prove by
independent evidence that the goods in question were in fact loaded on the
vessel "OH-DAI" as alleged in paragraphs 1 and 10 of the written
statement?
6. Whether the Defendants prove that under the insurance policy
issued by them, it was incumbent upon the Plaintiffs to take all reasonable
steps for ensuring all the rights against the carriers, bailees or third parties
are carefully preserved and exercised as alleged in paragraph 2 of the
written statement.?
7. Whether on the Plaintiffs failing to file a suit or take any action
against the shipping company and/or the consignor, the Plaintiffs are
disentitled for maintaining the claim under the insurance policies as
alleged in paragraph 2 of the written statement?
8. Whether the Defendants prove that the Plaintiffs have no insurable
interest and hence are not entitled to make any claim under the insurance
policies as alleged in paragraph 5 of the written statement?
9. Whether the insurance contracts entered into between the Plaintiffs
and the Defendants are vitiated by failure to disclose all material facts as
alleged in paragraph 6 of the written statement?
10. Whether the Defendants prove that the Bill of Lading issued and
evidencing shipping of the said goods on board "OH-DAI" was issued by a
company which has issued a false Bill of Lading as alleged in paragraph 9
of the written statement?
11. Whether it was incumbent upon the Plaintiffs to prove that their
goods were lost as a result of the perils of the sea insured against as
alleged in paragraph 11 of the written statement?
12. What order.
13. Generally. "
8. Issue nos. 2, 5, 8, 10 and 11 can be decided together
inasmuch as all these issues pertain to whether insurance policies did
not come into existence in the sense that no claim under the insurance
policies can be filed because goods which were subject matter of the
insurance policies never existed and were never shipped by the foreign
seller M/s. Palmex Enterprises to the plaintiff.
9. On behalf of the plaintiff, it is argued that plaintiff has
proved the factum of shipment of goods because the Bill of Lading
dated 1.9.1979 bearing no. SB-15 has been proved and exhibited as
Ex.PW1/31. It is argued that once plaintiff proves the Bill of Lading,
plaintiff is said to have discharged its burden of proof of goods having
been shipped by the seller M/s. Palmex Enterprises to the
plaintiff/buyer. This argument is sought to be buttressed by the
plaintiff by pleading that plaintiff has proved the Mate's Receipt of the
shipping company of the ship OH DAI as Ex.PW1/14 and which
shows that the said goods were received on board, the ship OH DAI
for transportation to Mumbai. Reference by plaintiff is also invited to
the Tally Sheets Ex.PW1/28 issued by the same agents of the shipping
company Union Ocean Shipping (PTE) Limited so as to show that
goods were shipped. It is argued that once these documents i.e Bill of
Lading, Mate‟s Receipt and Tally Sheets are taken together, the
plaintiff has to be held to have discharged the burden of proof of
shipping of the goods. It is also argued on behalf of the plaintiff that
the fact that the insurance policies refer to the fact that insurance
policies cover the goods which have been shipped, therefore for this
additional reason this Court must hold that the goods which are
subject matter of contract between the plaintiff and M/s. Palmex
Enterprises were shipped Ex-Singapore to Mumbai via the ship OH
DAI. Plaintiff also draws the attention of this Court to the oral
depositions made in the examination-in-chief of the plaintiff‟s
witnesses with respect to shipping of the goods Ex-Singapore to
Mumbai by the ship OH DAI under the subject Bill of Lading. It is
also argued on behalf of the plaintiff that the defendant/insurance
company has led no substantive evidence to show that goods were in
fact not shipped or that the goods which were the subject matter of the
policies did not come into existence and were not shipped, and it is
argued that the onus had shifted upon the defendant/insurance
company to prove that goods were not shipped by M/s. Palmex
Enterprises to plaintiff once plaintiff had proved Bill of Lading,
Mate‟s Receipt and Tally Sheets.
10. On behalf of the plaintiff, in support of its case, reliance
is placed upon the following judgments:-
(i) Peacock Plywood (P) Ltd. Vs. Oriental Insurance Co. Ltd.
(2006) 12 SCC 673
(ii) Shaw Wallace and Company Limited Vs. Nepal Food
Corporation and Others (2011) 15 SCC 56.
(iii) Ellerman and Bucknall Steamship Company Ltd. Vs. Sha
Misrimal Bherajee AIR 1966 SC 1892.
Plaintiff has also placed reliance upon the provisions of the Indian
Bills of Lading Act, 1856.
11. On behalf of the defendant/insurance company, it is
argued that the entire arguments urged on behalf of the plaintiff are
misconceived because existence of a Bill of Lading or a Mate‟s
Receipt or Tally Sheets is not sufficient evidence to discharge the
burden of proof upon the plaintiff of the shipment of goods because of
the provisions of the Commercial Documents Evidence Act, 1939
(hereinafter referred to as „the Act‟) and that the facts of the present
case show that grave fraud is sought to be perpetrated upon the
defendant/insurance company. It is argued that the
defendant/insurance company has led evidence of Captain Jose
Varghese Paloccaran who was working at Palco Surveyors and
Adjustors Limited and who has deposed with respect to Criminal
Investigation Department Division of Singapore conducting
investigations leading to the owners of the ship OH DAI and MV
AVERILLA being convicted. Captain Jose Varghese Paloccaran has
deposed with respect to making inquiries from the sellers M/s. Bentrex
and Company and M/s. Palmex Enterprises and as to how he was
stonewalled by the employees of these companies thereby arousing
suspicion. Captain Jose Varghese Paloccaran also deposed that there
was doubt with respect to sinking of the ships as all the employees of
the ship were found to be residing in their houses. Captain Jose
Varghese Paloccaran has also deposed with respect to the factum of
non-receipt of the goods because of non-existence of the lorry/truck
passes with respect to lorries/trucks containing goods entering the
custom/port/dock area authority of Singapore. Captain Jose Varghese
Paloccaran has also deposed of remaining in touch with the police
personnel including Sh. Abu Bakar Moosa who has deposed as CW-2
on behalf of the defendant/insurance company. Captain Jose Varghese
Paloccaran has deposed with respect to the lengthy trial taking place in
the Singapore Court which heard the details of how the plan had been
chalked out to play a massive fraud upon the insurance companies and
banks thereby defrauding them of huge amounts running into crores of
rupees and how the Singapore Court concluded with the accusations
leveled against all the accused persons who were duly proved to be
faking Bills of Lading, shipping documents without actual cargo, and
so on showing that no goods were ever loaded on ships OH DAI and
MV AVERILLA. Captain Jose Varghese Paloccaran also deposed
with respect to yellow water being shipped instead of palm oil and rice
bags being shipped as bags containing cloves of Zanzibar origin and
that water drums and tins were passed off as brass scrap or copper
scrap etc.
12. I may note that in the present suit the goods are not of
brass scrap or copper scrap or palm oil or cloves because the goods in
question which are subject matter of the present suit and insurance
policy is 800 M.T. of PVC Resin Suspension Grade, however Captain
Jose Varghese Paloccaran deposed with respect to palm oil, cloves,
copper scrap, brass scrap which are subject matter of the other suits,
and that Para 11 of the affidavit of Captain Jose Varghese Paloccaran
specifically uses the expression „etc‟ after the words palm oil, copper
scrap. On behalf of the defendant/insurance company it is argued that
the deposition of Captain Jose Varghese Paloccaran is also with
respect to the subject goods and which becomes clear from the
question put by plaintiff itself in the cross-examination of Captain Jose
Varghese Paloccaran on 25.7.2014 and which question when put by
the plaintiff was replied by Captain Jose Varghese Paloccaran by
specifically referring to 800 pallets of PVC resin and Captain Jose
Varghese Paloccaran deposed that he had made enquiries with the port
authorities itself with respect to 800 pallets of PVC Resin which is
subject matter of the present suit.
13. On behalf of the defendant/insurance company, reliance
is also placed upon the evidence led of Sh. Abu Bakar Moosa as CW-
2. Sh. Abu Bakar Moosa was working in the capacity of the Deputy
Head and later on Head of the Crime Division in the Criminal
Investigation Department of Singapore during the years 1979 to 1983.
Sh. Abu Bakar Moosa has deposed with respect to conspiracy hatched
between Sh. Bhagwan Singh Aujla, Sh. Manmohan Singh Aujla of
M/s. B.S. Aujla & Co. Pte. Ltd., M/s. Bentrex & Co. and M/s. Palmex
Enterprises with respect to scuttling and sinking of the ships and
preparing false documentation showing shipment of the goods which
were in fact never shipped. Sh. Abu Bakar Moosa has referred to the
investigations conducted by various persons including himself and
thereafter submitting their investigation reports to the Public
Prosecutor office in Singapore giving the entire details of the
conspiracy, conspirators and co-conspirators. Sh. Abu Bakar Moosa
has also deposed with respect to the proceedings in the Court at
Singapore and as to how Sh. Bhagwan Singh Aujla, Sh. Manmohan
Singh Aujla, Sh. Isaac Paul Retnam and Sh. Rethinasamy were handed
over different sentences for their part of the conspiracy in terms of the
judgment dated 31.3.1983. It is accordingly argued on behalf of the
defendant/insurance company that merely because insurance policies
were issued by it would not mean in the facts of the present case that
plaintiff has been successful in proving that goods which are subject
matter of the insurance policies were in fact shipped and once the
goods which were subject matter of the insurance policies never
existed and were never shipped, hence the insurance policies did not
come into operation for plaintiff to be compensated for the alleged
loss of goods which were subject matter of the insurance policies.
14. The crucial issue to be decided in the present case is as to
whether the goods which are subject matter of the insurance policies
ever came into existence and ever commenced their journey of
shipment Ex-Singapore from M/s. Palmex Enterprises to Mumbai on
the ship OH DAI. I may note that there is a statute called as the
Commercial Documents Evidence Act. This Act has in its Schedule
two parts. As per Section 3 of this Act with respect to documents
which are subject matter of Part I of the Schedule, a Court „shall
presume‟ that the documents stated in Part I of the Schedule were so
made and the statements contained therein are accurate. With respect
to documents which are stated in Part II of the Schedule instead of
„shall presume‟ so far as Part I of the Schedule is concerned, it is only
„may presume‟ so far as documents which are stated in Part II of the
Schedule of the Act. The Bill of Lading, Mate‟s Receipt and Tally
Sheets which are proved by the plaintiff will fall under Entries 15 and
18 of Part II of the Schedule of the Act i.e court „may presume‟ with
respect to the validity of these documents. Therefore once Court has
to only „may presume‟ the factum of the Bill of Lading, Mate‟s
Receipt and the Tally Sheets having been issued by the appropriate
authority and the Court may only presume accuracy of the contents of
these three documents, in the facts of the present case this Court
refuses to hold that the Bill of Lading, Mate‟s Receipt and the Tally
Sheets should be taken as accurate with respect to statements
contained therein. In fact if the plaintiff wanted some benefit of the
Part II of the Schedule of the Act, then, the plaintiff should have filed
documents which are subject matters of Entries 1, 3, 4, 5, 7, 14 and 16
of Part II of the Schedule because it is these documents stated in these
entries which will show that goods in fact came within the dock area
or port area or the customs area and coming of the goods in such areas
is a pre-condition and sine qua non before loading the goods on to the
ships and with respect to which loading a Bill of Lading is issued. In
fact, the plaintiff was duty bound to file documents under Entry 19 in
the Part I of the Schedule of the Act which talks of a receipt of
payment of custom duty issued by the custom authorities and which
would have shown that goods which are subject matter of the
insurance policies and the shipment did come into existence because it
is when custom duty is paid to the custom authorities would the goods
have been shown to be entered the custom area in the concerned port
at Singapore.
15. At this stage, it will be necessary to draw cross-reference
to the deposition of Captain Jose Varghese Paloccaran who
specifically deposed that as per the process in the port at Singapore,
lorries/trucks which bring the goods from outside the
custom/port/dock area to the said custom/port/dock area, then in such
cases passes are issued with respect to the lorries/trucks showing entry
into the custom/port/dock area and admittedly there are no documents
before this Court in the form of those lorry/truck receipts to show that
the goods which are subject matter of the insurance policies ever had
reached the custom/port/dock area in the port at Singapore.
16. There are also various very curious aspects and which
this Court is forced to note. It is surprising as to why the
plaintiff/buyer has only sued the insurance company but has not sued
the foreign seller M/s. Palmex Enterprises or the shipping company
which owned the ship OH DAI. Counsel for the plaintiff argued that
when the suit was filed no payment was made under the letter of credit
to the foreign seller and therefore the foreign seller was not sued as a
defendant in the suit but it is conceded that the foreign seller was in
fact paid during the pendency of the suit but even thereafter the
plaintiff did not amend the suit to add the foreign seller M/s. Palmex
Enterprises as a defendant in this suit for seeking of the money decree
against M/s. Palmex Enterprises on the ground that M/s. Palmex
Enterprises has received the value of the goods but plaintiff has not
received the goods. No other independent suit has also been filed by
plaintiff against M/s. Palmex Enterprises. In fact besides the plaintiff
ought to have sued the seller M/s. Palmex Enterprises, the plaintiff
should also have sued the shipping company because now it is clear
from the record that shipping company was also part of the fraud and
conspiracy because the subject goods never came to be loaded on the
ship OH DAI. Therefore it is indeed very curious, strange and
suspicious as to why the plaintiff has chosen to file a suit only against
the insurance company and the plaintiff has not sued the seller M/s.
Palmex Enterprises who has received the price of the goods without
delivering the goods and the plaintiff has also not sued the shipping
company who has issued the Bill of Lading and which never shipped
the goods.
17. Reliance placed on behalf of the plaintiff on the
judgments of the Supreme Court is misconceived because in none of
these judgments, the facts existed that with respect to the goods which
were subject matter of the Bill of Lading never came into existence
and that the Bills of Lading were fake/forged. In all the cases cited
before this Court on behalf of the plaintiff the facts show that there
was no quarrel with respect to genuineness of the Bills of Lading and
shipping of the goods under the Bills of Lading in those cases.
Therefore, any observations made by the Supreme Court in the facts of
those cases would not assist the plaintiff because in the facts of the
present case it is seen that the Bill of Lading is fake and false or
putting it in other words in fact no goods were ever loaded on the ship
OH DAI with respect to which the subject Bill of Lading was issued
and which is proved as Ex.PW1/31.
18. Even the provision of Section 3 of the Indian Bills of
Lading Act read with Preamble of the said Act does not in any manner
assist the plaintiff because the Preamble and the provision of Section 3
of the Indian Bills of Lading Act with respect to bindingness of the
contents of the Bill of Lading as to shipment of the goods is to be
taken as final only between the shipping company and the
consignees/endorsees and which is also held in the judgments of the
Supreme Court referred to by the plaintiff, and it is noted that there is
no provision in the Indian Bills of Lading Act nor any observations in
any judgments of the Supreme Court cited on behalf of the plaintiff
that merely because a Bill of Lading exists, then only for such reason
the Court has to necessarily hold that goods which are subject matter
of the Bill of Lading were in fact loaded on the ship and it must be
held that the journey of shipment of goods commenced and thereby
making such goods as being covered under the insurance policies with
respect to those goods.
19. I would also like to note that in fact reliance placed by the
plaintiff upon the Bill of Lading Ex.PW1/31 does not prove that in
fact goods which were sold by the M/s. Palmex Enterprises being 800
pallets of PVC Resin were in fact loaded on the ship OH DAI because
the Bill of Lading begins with the expression "said to contain goods".
Obviously such statements are normally found generally in the Bills of
Lading because a shipping company does not physically inspect
complete details of all the goods which are loaded on the ships which
are written in the Bills of Lading. In fact, it is for this reason that
normally there is bound to exist a survey report of the goods showing
that an approved surveyor has inspected the goods which are subject
matter of the consignment contained in the Bill of Lading and it is
seen that the plaintiff in the present case has not filed and proved any
survey report with respect to the 800 metric pallets of PVC Resin.
Therefore in my opinion mere proving of the Bill of Lading etc,
besides the fact that a Court only has to „may presume‟ the accuracy
of the same, that therefore even if „may presume‟ presumption has to
be drawn in favour of the plaintiff, yet in the absence of a surveyor‟s
report with respect to the contents of the goods loaded on the ship
which are subject matter of the Bill of Lading, it cannot be held that
the 800 metric pallets of PVC Resin which were subject matter of the
insurance policies were loaded on to the ship, were shipped or the
journey/shipment of the goods which were subject matter of the
insurance policies commenced at Singapore from the warehouse of the
M/s. Palmex Enterprises firstly to the port then to the ship and
thereafter in terms of the ship‟s voyage to the Mumbai port.
20. For all the aforesaid reasons, this Court rejects the case of
the plaintiff that goods which are subject matter of the insurance
policies were ever shipped by the seller M/s. Palmex Enterprises or
that the goods ever at all came into existence which were owned by
M/s. Palmex Enterprises and commenced their journey from the
warehouse of the M/s. Palmex Enterprises firstly to the port, then to
the ship and then via the OH DAI ship to Mumbai port.
21. The aforesaid conclusion with respect to the goods which
are subject matter of the insurance policies not coming into existence
and not being shipped also has to be held against the plaintiff because
it is very curious that plaintiff has made no efforts to summon or seek
from the seller M/s. Palmex Enterprises documents with respect to
existence of the subject goods in the warehouse of M/s. Palmex
Enterprises, then as to how those goods were transported to the
port/dock and by which lorries/trucks to the port in Singapore, and as
to where are those documents which are subject matter of Entry 19 of
Part I of the Schedule of the Act or where are those documents which
are covered in Part II of the Schedule of the Act in the Entries
1,3,4,5,7,14 and 16. This Court therefore has no doubt whatsoever
that a fraud is sought to be played upon the defendant/insurance
company by claiming amounts from the defendant/insurance company
under the subject insurance policies although the goods which are
subject matter of the insurance policies never came into existence and
were never brought into a port in Singapore and were never shipped
much less through the Bill of Lading Ex.PW1/31.
22. Issue nos.2,5,8,10 and 11 are therefore decided in favour
of the defendant/insurance company and against the plaintiff.
Issue no.1
23. This issue is with respect to whether plaintiff entered into
a contract with M/s. Palmex Enterprises and this issue is proved in
favour of the plaintiff because of the contract Ex.PW1/1, but in any
case mere fact that a contract was entered into between the plaintiff
and M/s. Palmex Enterprises would not mean that plaintiff will
succeed in this suit against the defendant/insurance company.
Issue No.3
24. In view of the discussion on the aforesaid issue
nos.2,5,8,10 & 11, it is held that plaintiff is not entitled to succeed in
the suit and the plaintiff is not entitled to a money decree as against
the defendant/insurance company.
This issue no.3 is therefore decided against the plaintiff.
25. These issues are not pressed on behalf of the
defendant/insurance company.
Issue No.7
26. In the facts of the present case, it is held that plaintiff
cannot fail because plaintiff has not sued the shipping company or the
seller/consignor inasmuch as liability of the insurance company is
independent of the liability of the seller/consignor and the shipping
company, however as already discussed above the fact that plaintiff
has not sued the shipping company or the seller M/s. Palmex
Enterprises is an aspect to be held against the plaintiff with respect to
the lack of genuineness of the claim of the plaintiff and the fact that
goods which are subject matter of the insurance policies never came
into existence or never commenced their journey Ex-Singapore to
Mumbai port. Issue no.7 is decided accordingly.
27. Accordingly, the suit of the plaintiff stands dismissed,
leaving the parties to bear their own costs.
FEBRUARY 16, 2018 VALMIKI J. MEHTA, J
Ne/godara/AK
+ CS (OS) No. 738/1980
% 19th February, 2018
CANARA BANK & ANR. ..... Plaintiffs
Through: Mr. Anil Airi, Sr. Advocate
with Mr. Ravi Krishan
Chandna, Ms. Bindiya
Logawney, Ms. Sadhana
Sharma, Ms. Sukanya Lal and
Mr. Satyam, Advocates.
Versus
ORIENTAL INSURANCE CO. LTD. ..... Defendant
Through: Ms. Sunita Dutta, Advocate.
+ CS (OS) No. 739/1980
CANARA BANK & ANR. ..... Plaintiffs
Through: Mr. Anil Airi, Sr. Advocate
with Mr. Ravi Krishan
Chandna, Ms. Bindiya
Logawney, Ms. Sadhana
Sharma, Ms. Sukanya Lal and
Mr. Satyam, Advocates.
Versus
ORIENTAL FIRE & GENERAL INS. CO. LTD. ..... Defendant
Through: Ms. Sunita Dutta, Advocate.
VALMIKI J. MEHTA, J (ORAL)
1. These suits will also stand dismissed as per the
discussion, reasoning and conclusions given while dismissing CS (OS)
No. 922/2004, and which discussion, reasoning and conclusions will
apply mutatis mutandis to the facts of the present cases where the
cover-note has been proved as Ex.P-1 and the Bill of Lading has been
proved as Ex.PW1/3.
2. Goods which were to be supplied in CS (OS) No.
738/1980 were Brass Scrap Honey Grade and goods to be supplied in
CS (OS) No. 739/1990 were Cloves of Zanzibar quality.
3. The amount claimed in CS (OS) No. 738/1980 is
Rs.27,50,000/- and the amount claimed in CS (OS) No. 739/1980 is
Rs.22,00,000/-.
4. One another aspect to be noted is that plaintiffs in these
suit is the banker of the buyer and since the insurance policies have
been assigned to the plaintiff bank, therefore, it is the plaintiff bank
which is suing for recovery of amounts under the insurance
policies/cover notes.
5. The issues framed in CS (OS) No. 738/1980 and CS (OS)
No. 739/1980 on 31.7.1989 are reproduced as under:-
"Issues in CS (OS) No. 738/1980
1. Whether Shri S.S. Bedi, who has signed the plaint was not aware of
the facts of the case? OPP
2. Whether the plaintiff No.2 is a registered company? OPP
3. Whether plaintiff No.2 is carrying on business of export and
import? OPP
4. Whether the plaintiff No.2 entered into a contract with M/s Palmex
Enterprises for the import of Brass Scrap "Honey Grade" as set out
in para 4 of the plaint? OPP
5. Whether the plaintiff No.1 established a letter of credit in favour of
the plaintiff No.2 for the sum of US Dollars 3,05,500 equivalent to
Rs.25 lakhs as set out in para 6 of the plaint? OPP
6. Whether the goods in question were loaded on board the vessel
Ohdai for carriage to Bombay as pleaded in para 9 of the plaint?
OPP
7. Whether the goods were lost on account of sinking of ship Ohdai?
OPP
8. Whether the policy of insurance was not in full force and effect
when the goods allegedly became total loss on account of the
sinking of the vessel Ohdai? OPD
9. Whether insurance policy is not valid for the reasons set out in the
preliminary objection No.1? OPD
10. Whether the plaintiff‟s claim is not maintainable because of the
alleged fact that the plaintiffs knew or ought to have known that
Shri Bhagwan Singh Ahjula was a person of doubtful integrity and
President of the company owning the vessel Ohdai and since the
contract of insurance is a contract of good faith, the insurance
policy would be deemed to have been frustrated? OPD
11. Whether the ship Ohdai was sunk in pursuance to conspiracy, fraud
or crime as stated in para 11 of the written statement, if so what are
its effect? OPD
12. Whether the acceptance by the defendant of additional premium to
cover shipment of an old ship was not sufficient compliance with
the terms of the cover note issued by defendant No.1? OPP
13. To what amount, if any, is the plaintiff entitled? OPP
14. Whether the plaintiff is entitled to interest and if so, at what rate?
OPP
15. Relief.
Issues in CS (OS) No. 739/1980
1. Whether Shri S.S. Bedi, who has signed the plaint was not aware
of the facts of the case? OPP
2. Whether the plaintiff No.2 is a registered company? OPP
3. Whether plaintiff No.2 is carrying on business of export and
import? OPP
4. Whether the plaintiff No.2 entered into a contract with M/s Bentrex
& Co. for the import of cloves as set out in para 4 of the plaint?
OPP
5. Whether the plaintiff No.1 established a letter of credit in favour of
the plaintiff No.2 for the sum of Rs.20 lacs as set out in para 6 of
the plaint? OPP
6. Whether the goods in question were loaded on board the vessel
Ohdai for carriage to Bombay as pleaded in para 9 of the plaint?
OPP
7. Whether the goods were lost on account of sinking of ship Ohdai?
OPP
8. Whether the policy of insurance was not in full force and effect
when the goods allegedly became total loss on account of the
sinking of the vessel Ohdai? OPD
9. Whether insurance policy is not valid for the reasons set out in
the preliminary objection No.1? OPD
10. Whether the plaintiff‟s claim is not maintainable because of the
alleged fact that the plaintiffs knew or ought to have known that
Shri Bhagwan Singh Ahjula was a person of doubtful integrity and
President of the company owning the vessel Ohdai and since the
contract of insurance is a contract of good faith, the insurance
policy would be deemed to have been frustrated? OPD
11. Whether the ship Ohdai was sunk in pursuance to conspiracy, fraud
or crime as stated in para 11 of the written statement, if so what are
its effect? OPD
12. Whether the acceptance by the defendant of additional premium to
cover shipment of an old ship was not sufficient compliance with
the terms of the cover note issued by defendant No.1? OPP
13. To what amount, if any, is the plaintiff entitled? OPP
14. Whether the plaintiff is entitled to interest and if so, at what rate?
OPP
15. Relief."
6. These issues are not opposed on behalf of the
defendant/insurance company and therefore these issues are decided in
favour of the plaintiffs subject to the clarification qua issue no.8 that
decision of this issue in favour of the plaintiffs does not mean that the
defendant/insurance company is agreeing to its liability under the
insurance policy and issue no.8 being decided in favour of plaintiffs is
that the loss if it would have occurred was within the duration of
validity of the insurance policy. These issues are conceded for being
decided in favour of the plaintiffs as defendant/insurance company has
succeeded as regards issue nos. 6 and 7 and thus suit has to be
dismissed.
7. These issues would stand decided against the plaintiffs by
adopting the reasoning contained in the judgment in the case of CS
(OS) No. 922/2004, inasmuch as, identical issues are involved and
same arguments were urged on behalf of the plaintiffs in these suits
also. It is therefore held that subject goods were not loaded on to the
ships and were not lost on account of sinking of the ships.
8. There is no finding required to be returned so far as this
issue no. 11 is concerned, inasmuch as, while deciding issue nos. 6
and 7 it has already been held that the goods which are subject matter
of the policies never came into existence and the journey of shipment
of the goods did not commence i.e once no goods which were subject
matter of the policies came into existence or commenced their journey
on shipment, the insurance policies did not come into existence and
hence sinking of the ships did not result in loss of goods for the
defendant/insurance company to be liable under the subject insurance
policies/cover notes.
9. Adopting the discussions and reasoning as contained in
the judgment in CS (OS) No. 922/2004, and therefore having decided
issue nos. 6 and 7 in favour of the defendant/insurance company these
issue nos. 13 to 15 are decided against the plaintiffs and the plaintiffs
are held not entitled to succeed by getting the money decrees as
prayed for in the suits. The suits are therefore dismissed, leaving the
parties to bear their own costs.
FEBRUARY 19, 2018 VALMIKI J. MEHTA, J
godara/AK/Ne
+ CS (OS) No. 1408/1979
% 19th February, 2018
ELEPHANTA OIL VANASPATI INDUSTRIES LTD. .... Plaintiff
Through: Ms. Sangeeta Chandra, Advocate.
Versus
THE NEW INDIA ASSURANCE CO. LTD. & ANR. .... Defendants
Through: Ms. Sunita Dutta, Advocate.
VALMIKI J. MEHTA, J (ORAL)
1. This suit is also dismissed by adopting the discussion,
reasoning and conclusions given while dismissing CS (OS) No.
922/2004 and which discussion, reasoning and conclusions will apply
mutatis mutandis to the facts of the present case where the Bill of
Lading has been proved as Ex.PW1/5, Mate‟s Receipt has been proved
as Ex.PW1/4 and Weighment Certificate has been proved as
Ex.PW1/3.
2. In this suit the goods which were to be supplied by the
foreign seller were Cloves of Zanzibar quality. The amount claimed
in the suit is Rs.2,77,44,026.68/-.
3. One another aspect to be noted is that plaintiff/company
has gone into liquidation and now is being represented through the
Official Liquidator attached to the High Court of Delhi.
4. The issues framed in the present suit are as under:-
"1. Has defendant no.2 been joined as a defendant within time, if not,
to what effect?
2. Whether the plaintiff agreed to purchase and the said Bentrex & Co
agreed to sell to the plaintiff 300 metric Tons of Cloves (Zanzibar
Quality) as alleged in paragraph 3 of the plaint?
3. Whether the plaintiff opened an irrevocable letter of credit in
favour of the sellers through the Punjab & Sind Bank, the
predecessor in interest of the 2nd Defendant for US $ 22,500 as
alleged in paragraph 4 of the plaint?
4. Whether any goods were unconditionally appropriated to the
contract in favour of the plaintiff by the sellers as alleged in
paragraph 5 of the plaint?
5. Whether the Uni Q marine Services of Singapore issued a weight
certificate dated 6th August 1979 containing the statements alleged
in paragraph 5 of the plaint?
6. Whether cloves packed in 6000 bags bearing No.Victor Bombay
16000 were duly loaded and shipped on board the SS Averilla at
Singapore as alleged in paragraph 6 and 7 of the plaint?
7. Whether there was a contract of a-ffreighment contained in a bill of
lading bearing No.AB-21 dated 7th August 1979 issued by the
Wellway Lines as alleged in paragraph 7 of the plaint?
8. Whether the plaintiff was the buyer of any goods or was the owner
of the Cloves of the value of Rs.2,74,19,500 or any other value as
alleged in paragraph 8 of the plaint?
9. Are the pleas embodied in the Issues No.4 to 10 available and open
to the defendants?
10. Whether the Insurance Policy is void ab initio and unenforceable
for the reasons alleged in para 4 of the written statement of the
defendant?
11. Whether the plaintiff was a privy or a party to a fraud intended and
calculated to fraudulently obtain an insurance policy and/or to
obtain fraudulently a claim thereunder as alleged in paragraph 4(a)
of the written statement of defendant no.1?
12. Whether the policy of Insurance is liable to be avoided by the 1st
defendant as alleged in paragraphs 4(b) and 4(c) of the written
statement of defendant No.1?
13. Whether the transactions in suit were calculated to cause injury to
the Ist Defendant and/or make unlawful gains for the plaintiff and
are therefore uneforceable, null and void as alleged in paragraph
4(d) of the written statement of defendant No.1?
14. Whether the policy of Insurance is void on the ground of mistake
as alleged in paragraph 4(e) of the written statement of defendant
No.1?
15. Whether the suit transactions are a result of a conspiracy between
the plaintiff and one Mr. C.S. Aujla or are founded in illegalities as
alleged in paragraph 7 and 11 of the written statement of defendant
no.1?
16. Whether the plaintiffs have forfeited their rights to recover any
money or any liquidated sum under the Insurance Policy by reasons
of the allegations made in paragraph 7 of the written statement of
defendant No.1?
17. Whether the Insurance Policy is void for the reasons alleged in
paragraph 7 of the written statement of defendant No.1?
18. Whether the plaintiff had interest in the goods or have insurable
interest as alleged in paragraphs 9 and 18 of the plaint?
19. Whether the said goods became a total loss by reason of the perils
insured against as alleged in paragraph 9 of the plaint?
20. Whether the replacement import licences for the consignment of
cloves alleged to be lost were available or could have been
obtained by the plaintiff as alleged in paragraph 10 of the written
statement?
21. Whether the plaintiff did not behave as a prudent person as
alleged in paragraph 16 of the written statement of defendant No.1?
22. Whether the documents relied upon by the plaintiff have
discrepancies and/or are vitiated as alleged in paragraph 16 of the
written statement of defendant No.1?
23. Whether the plaintiffs are entitled to recover a sum of
Rs.2,74,19,500/- or any other sum under the Insurance Policy as
alleged in paragraphs 15 and 16 of the plaint?
24. What is the effect of the claim made by the second defendant in its
written statement on its behalf?
25. Whether the plaintiff has not paid any consideration in respect of
the purported goods and has refused to make payment under the
letter of credit as alleged in paragraph 22 of the written statement
of defendant No.1. If, so, to what effect?
26. Whether the plaintiff is entitled to receive any amount from
defendant No.1?
27. Can now defendant No.1 raise the pleas embodied in the Issues
No.11 to 18 in view of the objections raised by the plaintiff in
preliminary objection No.1 in the replication?
28. Is the plaint vague and indefinite as alleged by the defendants in
preliminary objections No.3 in the written statement, if so, to what
effect?
29. Relief."
Issue Nos. 1, 11 to 13, 15 to 17, 20, 21, 22, 25, 27 and 28
5. These issues are not pressed on behalf of defendant no.
1/insurance company as it has otherwise been held under the relevant
issues that the goods which were the subject matter of the policy/cover
note were never supplied and hence there is no liability of the
defendant no.1/insurance company under the subject insurance
policy/cover note.
6. On behalf of defendant no. 2 it is not disputed that there
was a contract entered into by the plaintiff company with M/s. Bentrex
and Company. This issue is decided accordingly.
Issue No. 3.
7. Counsel for defendant no. 1/insurance company does not
dispute that plaintiff's bank had opened a letter of credit in favour of
the sellers, and this issue is therefore decided accordingly.
Issue Nos. 4, to 10, 14, 17, 18 and 19
8. These issues are decided in favour of the defendant no.
1/insurance company by holding that the goods which were subject
matter of the cover note/insurance policies did not come into existence
inasmuch as mere existence of the Bill of Lading or Mate‟s Receipt is
held to be no proof of factum of actual loading/shipment of goods and
as already discussed in detail while deciding CS (OS) No. 922/2004. I
may note that counsel for the plaintiff had relied upon the Weighment
Certificate proved as Ex.PW1/3 to argue that loading on the ship did
take place, however it is seen that this Weighment Certificate is not a
Weighment Certificate after the goods entered into port/dock area and
that this Weighment Certificate is a certificate only of the goods in
warehouse of the seller M/s. Bentrex and Company. Therefore this
Weighment Certificate will not help the plaintiff to prove that the
goods which are subject matter of the insurance policies entered into
the port/dock area or commenced their shipment/journey in terms of
the Bill of Lading.
9. Accordingly, these issues are decided in favour of the
defendant no. 1/insurance company holding that though there was a
cover note/insurance policy, however since the goods which are
subject matter of the cover note/insurance policies were never loaded
on to the ship MV AVERILLA and the goods never entered into the
port/dock area at Singapore so as to be loaded on to the ship MV
AVERILLA and that therefore the insurance policies do not come into
operation because the goods which are subject matter of the policies
never commenced their shipment on the ship MV AVERILLA.
10. Since the second defendant has not contested the suit and
in fact no relief is prayed against the defendant no.2. This issue is not
called for decision.
11. In view of the detailed discussion given in CS (OS) No.
922/2004 and which will mutatis mutandis apply in this case, and the
according decision on aforesaid issues, the plaintiff is not entitled to
any relief of grant of money decree in its favour and against the
defendant no. 1/insurance company.
12. The suit is therefore dismissed, leaving the parties to bear
their own costs.
FEBRUARY 19, 2018 VALMIKI J. MEHTA, J
godara/AK/Ne
+ CS (OS) No. 1409/1979
% 19th February, 2018
ELEPHANTA OIL VANASPATI INDUSTRIES LTD. .... Plaintiff
Through: Ms. Sangeeta Chandra, Advocate.
Versus
THE NEW INDIA ASSURANCE CO. LTD. & ANR. .... Defendants
Through: Ms. Sunita Dutta, Advocate.
VALMIKI J. MEHTA, J (ORAL)
1. I am informed by the counsel for the plaintiff that exhibit
numbers to the documents in this suit are the same exhibit numbers as
given in CS (OS) No. 1408/1979 and therefore exhibit numbers are
not being stated herein.
2. Goods which were to be supplied by the foreign seller in
this suit were Cloves of Zanzibar quality. The amount claimed in the
suit is Rs.2,11,72,660.27.
3. The issues framed in the present suit are reproduced as
under:-
"1. Has defendant no.2 been joined as a defendant within time, if not,
to what effect?
2. Whether the plaintiff agreed to purchase and the said Bentrex & Co
agreed to sell to the plaintiff 300 metric Tons of Cloves (Zanzibar
Quality) as alleged in paragraph 3 of the plaint?
3. Whether any goods were unconditionally appropriated to the
contract in favour of the plaintiff by the sellers as alleged in
paragraph 5 of the plaint?
4. Whether the Uni Q marine Services of Singapore issued a weight
certificate dated 6th August 1979 containing the statements alleged
in paragraph 5 of the plaint?
5. Whether cloves packed in 6000 bags bearing No.Victor Bombay
16000 were duly loaded and shipped on board the SS Averilla at
Singapore as alleged in paragraph 6 and 7 of the plaint?
6. Whether there was a contract of affreighment contained in a bill of
lading bearing No.AB-21 dated 7th August 1979 issued by the
Wellway Lines as alleged in paragraph 7 of the plaint?
7. Whether the plaintiff was the buyer of any goods or was the owner
of the Cloves of the value of Rs.2,74,19,500 or any other value as
alleged in paragraph 8 of the plaint?
8. Are the pleas embodied in the Issues No.4 to 10 available and open
to the defendants?
9. Whether the Insurance Policy is void ab initio and unenforceable
for the reasons alleged in para 4 of the written statement of the
defendant?
10. Whether the plaintiff was a privy or a party to a fraud intended and
calculated to fraudulently obtain an insurance policy and/or to
obtain fraudulently a claim thereunder as alleged in paragraph 4(a)
of the written statement of defendant no.1?
11. Whether the policy of Insurance is liable to be avoided by the 1st
defendant as alleged in paragraphs 4(b) and 4(c) of the written
statement of defendant No.1?
12. Whether the transactions in suit were calculated to cause injury to
the Ist Defendant and/or make unlawful gains for the plaintiff and
are therefore uneforceable, null and void as alleged in paragraph
4(d) of the written statement of defendant No.1?
13. Whether the policy of Insurance is void on the ground of mistake
as alleged in paragraph 49e) of the written statement of defendant
No.1?
14. Whether the suit transactions are a result of a conspiracy between
the plaintiff and one Mr. C.S. Aujla or are founded in illegalities as
alleged in paragraph 7 and 11 of the written statement of defendant
no.1?
15. Whether the plaintiffs have forfeited their rights to recover any
money or any liquidated sum under the Insurance Policy by reasons
of the allegations made in paragraph 7 of the written statement of
defendant No.1?
16. Whether the Insurance Policy is void for the reasons alleged in
paragraph 7 of the written statement of defendant No.1?
17. Whether the plaintiff had interest in the goods or have insurable
interest as alleged in paragraphs 9 and 18 of the plaint?
18. Whether the said goods became a total loss by reason of the perils
insured against as alleged in paragraph 9 of the plaint?
19. Whether the replacement import licences for the consignment of
cloves alleged to be lost were available or could have been
obtained by the plaintiff as alleged in paragraph 10 of the written
statement?
20. Whether the plaintiff did not behave as a prudent person as alleged
in paragraph 16 of the written statement of defendant No.1?
21. Whether the documents relied upon by the plaintiff have
discrepancies and/or are vitiated as alleged in paragraph 16 of the
written statement of defendant No.1?
22. Whether the plaintiffs are entitled to recover a sum of
Rs.2,09,25,000/- or any other sum under the Insurance Policy as
alleged in paragraphs 15 and 16 of the plaint?
23. What is the effect of the claim made by the second defendant in its
written statement on its behalf?
24. Whether the plaintiff has not paid any consideration in respect of
the purported goods and has refused to make payment under the
letter of credit as alleged in paragraph 22 of the written statement
of defendant No.1. If, so, to what effect?
25. Whether the plaintiff is entitled to receive any amount from
defendant No.1?
26. Can now defendant No.1 raise the pleas embodied in the Issues
No.11 to 18 in view of the objections raised by the plaintiff in
preliminary objection No.1 in the replication?
27. Is the plaint vague and indefinite as alleged by the defendants in
preliminary objections No.3 in the written statement, if so, to what
effect?
28. Relief."
4. Since issues framed in this suit are identical to the issues
in CS (OS) No. 1408/1979 (except that the issues framed in this suit
are one number less because of an additional issue no.3 framed in CS
(OS) No. 1408/1979) therefore the discussion of issues in CS (OS)
No. 1408/1979 are adopted in this suit. This suit is also therefore
dismissed, leaving the parties to bear their own costs.
FEBRUARY 19, 2018 VALMIKI J. MEHTA, J
godara/AK/Ne
