- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS No. 992 OF 2009 IN ADMIRALTY SUIT No. 22 OF 2005 M/s. Baby Marine International ... Plaintiff Vs. m.v. Ever Gentle & Anr. ... Defendants *** Mr. Mayur Khandeparkar a/w Mr. Vatsal Shah i/b M/s. Advani & Co., for the Plaintiff. Mr. Prashant S. Pratap i/b Mr. Manoj Khatri, for the Defendants. *** CORAM : S. J. VAZIFDAR, J. DATE : SEPTEMBER 22, 2009. PC :- 1. Not on board. By consent of the parties taken up for final hearing along with Chamber Summons No. 642 of 2009. 2. This Chamber Summons is taken up by the defendants to amend the written-statement for bringing on record the facts that transpired in a proceeding initiated by the consignees of the suit bills of lading in Spain. 3. The cause of action in this suit is based on four suit bills of lading. The plaintiff is the consignor. The consignee was a - 2 - Spanish Company – CONGEPESCA-SL. The cargo was allegedly damaged on account of the defendant’s negligence. According to the plaintiff, as a result thereof the Spanish Company, the consignee accepted the consignment only in respect of two bills of lading and rejected the same in respect of the four suit bills of lading. 4. The consignee filed proceedings in Spain inter-alia on the basis of the four suit bills of lading. It is to bring on record the details of these proceedings, that the written-statement is sought to be amended. 5. I am not concerned here with the merits or the rival contentions or with the consequences of the proceedings adopted in the court in Spain or the orders passed therein. That would have to be considered at the final hearing of the suit. Considering the issues of law which arise on account of a foreign judgment inter-alia on the principles of Comity, it cannot be said that the facts sought to be introduced are irrelevant. A decree was passed by the first Court of Spain. Pursuant to the decree, the defendant had deposited an amount of about Euros 1,90,000/-. The fact that the defendant succeeded in the first appellate Court is irrelevant while considering the present Chamber Summons. That order itself has been carried in appeal by the consignee. 6. It is true that the issues in the present suit were settled on 26th September 2006 and that the evidence on Commission - 3 - commenced on 8th January 2007. It is also true that the plaintiffs closed their evidence and that the defendants’ have already examined two witnesses. Moreover, on 30th September 2008 the defendants applied to examine further witnesses. Alleging that the defendants were prolonging the matter without any justification an application has been made on behalf of the plaintiff to close the evidence. That application was dismissed by an order dated 16th February 2009. Be that as it may, the evidence has not concluded. 7. Even assuming that there has been some delay in bringing the fact about the institution of the proceedings in the Court of Spain, there is no delay per se. For instance, the decree passed by the first Court in Spain was passed only on 15th September 2008. Pursuant to the execution proceedings in Spain, the defendants deposited the said sum of 1,90,000/- Euros on 10th November 2008. The consignee was allowed to withdraw the said amount by an order dated 29th November 2008. The plaintiff’s appeal in the Spain was allowed by an order dated 26th May 2009. The consignee filed the appeal before the Supreme Court in Spain on 3rd June 2009. All these facts transpired much after the defendants’ witnesses were examined. Therefore, there is no question of delay. 8. In the circumstances, the Chamber Summons is made absolute in terms of prayer Clause (a) and (b). It is further clarified that this order is without prejudice to the contentions of all the parties. The plaintiff shall be entitled to file a response to the - 4 - amendment within 4 weeks of the service of a copy of the amended written-statement on them. Liberty to the parties to apply for further evidence.