1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.2123 OF 2009 IN SUIT NO.1146 OF 1979 The Cotton Corporation of India Ltd. ..Plaintiffs. Vs. Niranjan Piramal Textile Mills Ltd. ..Defendants. .... Mr. Rushabh Shah with Mr. U. Mahajan i/b M/s. Divekar & Co. for the Plaintiffs. Mr. Prashant Chande with Ms. Sanaya Dadachanji and Ms. Pranika Bhatia i/b Manilal Kher Ambalal & Co. for the Defendants. .... CORAM : DR. D.Y. CHANDRACHUD, J. 20th November, 2009. P.C. : 1. The Motion has been taken out for recasting of issues. Counsel appearing on behalf of the Defendants in support of the Motion states that the Defendants do not wish to adduce any additional evidence on the strength of the issues as sought to be recast, but that the recasting of issues is necessary in order to fully elucidate the points in dispute between the parties. 2 2. In issue No.1 the word “ type frito” is sought to be added after the word “Guatamala”. This is only to correct the description of the goods and there is no reason why the correction should not be allowed. In the circumstances, in issue No.1 after the word “Guatamala”, the word “type frito” shall be inserted. Issue No.1 as recast shall read as follows : “Issue 1 : Whether the Plaintiffs prove that there is valid concluded and binding contract bearing No.G/597 dated 12.5.1977 between the Plaintiff and the Defendant for import and supply of 221 bales of Guatamala type frito cotton on the terms and conditions contained in it; 3. Proposed issue No.1(a) cannot be allowed to be raised at this stage. Evidence has been concluded. Counsel appearing on behalf of the Defendants fairly states that the defence to the effect that the Plaintiffs had not offered to the Defendants delivery of cotton as per the description, quantity and quality of the contract has not been raised. Insofar as proposed issue No.1(b) is concerned, the following issue shall be added and be numbered as issue No.1(a) : 3 “Whether the Defendants prove that the suit contract could not and did not exist on 12th May, 1977 for the reasons as alleged in paragraph 5 of the written statement;” 4. Issue No.4 shall stand corrected to read as follows : “Whether the Plaintiffs prove that the Defendants committed a breach of contract by not effecting delivery of the cotton and/or not furnishing the bank guarantee as alleged;” 5. The following issue shall be added as issue No.5(a) - “Whether the Defendants prove that the Plaintiffs committed a gross delay in disposing of the contracted goods and if so what would be the effect thereof;” As recast the issues would now read as follows : 1. Whether the Plaintiffs prove that there is a valid concluded and binding contract bearing No.G/597 dated 12.5.1977 between the Plaintiff and the Defendant for import and supply of 221 bales of 4 Guatamala type frito cotton on the terms and conditions contained in it; 1(a). Whether the Defendants prove that the suit contract could not and did not exist on 12th May, 1977 for the reasons as alleged in paragraph 5 of the written statement; 2. Whether this Hon’ble Court has jurisdiction to entertain and try the suit; 3. Whether the Defendants prove that time is the essence of the contract and the Plaintiffs delayed in making supply of the cotton; 4. Whether the Plaintiffs prove that the Defendants committed a breach of contract by not effecting delivery of the cotton and/or not furnishing the bank guarantee as alleged; 5. Whether the Plaintiffs prove that the Plaintiffs suffered the loss of Rs.4,02,590.88 or any part thereof and that the Plaintiffs are entitled to claim interest at the rate of 17% p.a. from the date of the suit till payment; 5(a). Whether the Defendants prove that the Plaintiffs committed a gross delay in disposing of the contracted goods and if so what 5 would be the effect thereof; 6. What reliefs? 7. Generally. The Motion is accordingly disposed of. The suit shall be listed for argument on 18th December, 2009. *****