IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2902 of 2008. NOTICE OF MOTION NO.2902 of 2008. NOTICE OF MOTION NO.2902 of 2008. IN IN IN SUIT NO.969 of 1989. SUIT NO.969 of 1989. SUIT NO.969 of 1989. The Board of Trustees of the Port of Bombay ..Plaintiff versus Mascot Metal Traders & Anr. ..Defendants Mr.U.J.Makhija i/b.Mulla & Mulla for the Plaintiff None for the Defendant No.1 Mr.Bootwala for the DefendantNo.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 17th Sept., 2008. DATED : 17th Sept., 2008. DATED : 17th Sept., 2008. P.C. 1. This motion is taken out by the plaintiffs for seeking directions to file and rely upon further documents annexed to the affidavit in support of the Notice of Motion and for recalling P.W.1 Mr. Almeida or examine some other witness to lead further evidence in the matter. Affidavit in reply is filed by defendant No.2. Pleadings are complete. Few facts necessary for disposal of this motion are as under: 2. Plaintiff, Board of Trustees of Port of Bombay instituted a suit against the defendant No.1 -2- - importer and defendant No.2 agent of the Vessel for recovery of Rs.4,14,000/- along with interest more particularly set out in prayer clause (a) on the ground that the defendants were liable to pay Port Trust Charges. The defendant No.2 had filed written statement and issues came to be framed on 21.11.2007. Job of recording of evidence was over on 26.2.2008 and the matter was posted for arguments and ultimately posted for judgment. As I went through the papers, the question as regards the time taken by the plaintiffs for disposal of the goods after the lapse of period of two months as set out in Section 62 of the Major Port Trust Act was considered by the Court. I wanted to hear both the parties on that question. At that stage Learned Advocate Mr.Makhija took time to file Notice of Motion and the present Notice of Motion is filed accordingly. 3. I have heard learned Advocates Mr. Makhija and Mr. Bootwala for the respective parties. According to learned Advocate Makhija, plaintiffs have in their possession certain documents to explain as to why the goods were not sold prior to the date of passing of the confiscation Order by -3- the Customs Department and the goods were allowed to lie with the plaintiffs. Learned Advocate Mr.Makhija submitted that various documents which are annexed to the affidavit in support of this motion were in the custody of this plaintiffs, but because there was no issue on the question of delay on the part of plaintiffs in disposing of the suit goods, plaintiffs had not thought it fit to rely on the said documents. He further submitted that when the Court called upon the plaintiffs to explain the delay in disposing of the suit goods, plaintiffs thought it fit to take out the present Notice of Motion in the interest of justice and place the documents before the Court and clear the doubt of the Court. Learned Advocate Mr. Makhija relied upon Order 18 of the Code of CPC and submitted that the Court has power to recall the witness who has given evidence, and according to learned Advocate Mr.Makhija this power is required to be exercised by the Court in the present case in the interest of justice. Learned Advocate Mr. Makhija relied upon the judgment of this Court in the case of Babasaheb s/o.Limbaji Mete & Anr. vs. Sumanbai w/o. Bajrang Saraf & Ors. reported in 2008(4) MLJ 502 stating the Court’s power to allow the plaintiffs -4- to bring additional evidence before the Court is not taken away. He prays the motion be made absolute. 4. Learned Advocate Mr.Bootwala opposed the motion contending that the plaintiffs had enough opportunity of placing before the Court all the material including the relevant documents as to why the goods were not sold for substantially long time and in any case till the confiscation Order is passed. He had drawn my attention to the fact that P.W.1 Mr.Almeida had in the cross examination at paragraph 9 in no uncertain terms stated that there was no obstacle for disposal of the consignment before Confiscation Order was passed. According to learned Advocate Mr.Bootwala this answer given by the Plaintiff’s witness should have given signal to the plaintiffs and it was the duty of the plaintiffs to place before the Court appropriate material, if the plaintiffs were of the view that plaintiffs were prevented from selling the said goods. According to Learned Advocate Mr.Bootwala, plaintiffs could have examined other witness. He submitted that the plaintiffs did not avail of the opportunity and chose to close their case with full -5- knowledge of the evidence of Almeida P.W.1 on record. He prays for dismissal of the Notice of Motion. He submitted that in the written statement Defendant No.2 had raised the point as regards delay and therefore it was necessary for the plaintiffs to place before the Court appropriate material. He prays for dismissal of the Notice of Motion. 5. I have considered the point involved and the rival submissions. It appears that the plaintiffs gave evidence as per their choice, and it is only when the Court called upon the plaintiffs to explain as to why suitable action for disposal of the goods was not taken by the plaintiffs as expeditiously as possible and why the plaintiffs allowed the goods to lie on their property, the plaintiffs have come out with the present Notice of Motion and want to rely upon certain documents to show that the plaintiffs were prevented from disposing of the cargo. 6. The contention raised by learned Advocate Mr.Makhija that no issues with regard to the question of delay was framed and therefore the -6- plaintiffs did not place before the Court appropriate material cannot be accepted. In my view, though there is no issue framed as regards the delay in clearing the goods in specific terms, the issues at serial nos.3 and 4 have bearing on the question whether delay has occassioned in disposing of goods. The said issues are as follows: 3. Whether the suit consignment incurred pre-confiscation port trust charges of Rs.4,02,174.32 as stated in para 7 of the plaint? 4. Whether the plaintiffs are entitled to recover from the defendants and they are liable to pay the amount of Rs.4,02,174.32 being the pre-confiscation port trust charges in respect of suit consignment together with a sum of Rs.11,825.68 paise being interest @ 6% p.a. from 23.9.1988 till 6.12.1988 aggregating to Rs.4,14,000/- as stated in para 19 of the plaint? 7. In my view, keeping the broad nature of the -7- above two issues, the plaintiffs were required to discharge the burden to show that the provisions of Major Port Trust Act were properly followed and the goods came to be sold and disposed of by them as expeditiously as possible. Mr. Almeida P.W.1 has in paragraph 9 in cross examination has admitted that there was no obstacle for the disposal of the consignment before confiscation Order was passed. The record now sought to be produced by the plaintiffs goes contrary to the answer given by P.W.1 Almeida. If answer given by P.W.1 Almeida is considered in proper perspective it will mean that the P.W.1 Almeida had admitted that the goods could be sold before the Confiscation Order was passed. If plaintiffs were of the view that answer given by Almeida P.W.1 was wrong and they were in possession of record to show that the goods could not be sold till confiscation order is pased they should have produced those documents through some other witness. Instead the plaintiffs chose to close the case and it is only when the Court raised the point at the time of arguments, plaintiffs thought of examining the additional witness. In my view sufficient opportunity was given to the plaintiffs to place before the Court appropriate evidence. At -8- the stage of hearing of this Notice of Motion, no explanation is offered as to why the decision was taken to close, when according to the plaintiffs they were in possesion of documentary evidence to show that goods could not have been sold till confiscation order is passed. In my view in the absence of such an explanation the plaintiffs case cannot be considered. In my view, the plaintiffs had sufficient opportunity to bring evidence in the wake of cross examination of Almeida P.W.1 Plaintiffs did not avail of the said opportunity. In my view, plaintiffs cannot be heard to say that they be given a chance to bring evidence in support of their contention that the goods were not sold till confiscation order is passed. 8. For the reasons mentioned aforesaid, plaintiffs Notice of Motion is required to be dismissed. The judgment relied upon by learned Advocate Makhija in the case of Babasaheb Limbaji Mete & Anr. vs. Sumanbai Bajrang Saraf (Supra) will not be applicable to the facts of this case as the facts of this case will not fall within the ambit of Rule 17 Order XVIII which now stands deleted. It need not be emphasized that the power -9- of the Court to give a chance to a particular party to give evidence is not taken away. At the same time Court has to exercise the discretion in the judicious manner. If the plaintiffs chose to close their case, then it will not be proper for the Court to grant the request for recalling of the witness or examine some other witness to bring on record documents which were very well within the power and control of the plaintiffs. It was absolutely necessary for the plaintiffs to consider their case as a whole, and bring all the documents on record. For the reasons mentioned aforesaid, I pass the following Order. ORDER i. Notice of Motion is dismissed. ii. There shall be no Order as to costs. iii. The suit was posted for judgment Out of indulgence and in order to enable the learned advocates to advance their submissions in the proper perspective, I am posting the matter for arguments, so that if anything has remained to be -10- argued, it can be done by the respective advocates. Hence adjourned to 24.9.2008 for arguments at 3.00 p.m. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)