: 1 : 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.1607 OF 2008 NOTICE OF MOTION NO.1607 OF 2008 NOTICE OF MOTION NO.1607 OF 2008 IN IN IN SUIT NO.881 OF 1989 SUIT NO.881 OF 1989 SUIT NO.881 OF 1989 The Board of Trustees of the Port of Bombay .. Plaintiffs. Versus Shah & Co. & Anr. .. Defendants. Mr.U.J.Makhija i/b.Motiwala & Co. for plaintiffs. Ms.N.Sumnani i/b.Bhatt & Saldanha for defendant No.2. Defendant No.1 is absent though served. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 4th September, 2008. DATE : 4th September, 2008. DATE : 4th September, 2008. P.C. :- P.C. :- P.C. :- 1. This motion is taken out for following reliefs :- a) that the plaintiffs be given leave to file supplementary affidavit of documents; : 2 : b) that the plaintiffs be given leave to lead further evidence of the plaintiffs’ witness Mr.Santosh Dighe. 2. At the outset, learned Counsel Mr.Makhija submitted that by this motion, plaintiffs wanted to reopen the case and lead further evidence through another witness in support of their stand that customs duty was demanded by the customs department and plaintiffs were liable to pay the customs duty to the customs department from and out of sale proceeds and release it from and out of sale proceeds. 3. Without going into the controversy as regards the drafting of the prayer clauses, I am inclined to treat this motion as it is for relief by which plaintiffs want to reopen their case and lead evidence through another witness. 4. Affidavit in reply is filed by the defendant No.2. Defendant No.1 has not filed affidavit in reply. Few facts necessary for the disposal of the motion are as under :- : 3 : 5. The plaintiffs have filed this suit in the year 1989. The turn of the plaintiffs came for leading evidence and evidence affidavit came to be filed by one Mr.Sanjay Sawant for and on behalf of the plaintiffs, who was styled as P.W.No.1. His evidence was fully recorded on 16.1.2008. He was thoroughly cross-examined and after his evidence was over, learned Counsel appearing on behalf of the plaintiffs in a way indicated to the court that the plaintiffs do not wish to examine any other witness and close their case. This is being observed on the basis of following words which are written at the end of evidence of P.W.No.1. "Plaintiff has examined one witness and closed his side. Defendants do not want to examine anybody." 6. The present motion is taken out in order to reopen their case and bring on record by way of documentary evidence to show as to what was the quantum of customs duty payable by the plaintiffs for and on behalf of the consignee as well as ITC fine payable on behalf of the consignee by the plaintiffs. The affidavit in support of the notice of motion mentions that the Advocate for the : 4 : plaintiffs again requested plaintiffs to trace out the documents and those documents could be traced after exhaustive search and that is how the plaintiffs come out with the case for reopening as set out in the notice of motion. 7. After having perused the affidavit in support of the motion, I am inclined to observe that the plaintiffs have not come out with appropriate material to show as to in what circumstances plaintiffs closed their case. In fact, after going through the cross-examination on the part of the plaintiffs witness Mr.Sanjay Sawant, plaintiffs had enough time to take decision as to whether they should close their case on the relevant date i.e. 16.1.2008 and this court closed the case of the plaintiffs. In the present affidavit in support of the motion, no light is thrown as to who took the decision to close the case of the plaintiffs and why time was not sought to examine some more witness/es on behalf of the plaintiffs to bring the figures concerning customs duty or ITC fine. In the entire affidavit in support of the notice of motion, nothing is specifically stated as to in what circumstances, decision to close the case was taken when the cross-examination of P.W.No.1 would be studied : 5 : and appreciated by the concerned persons, who were at the helm of affairs. 8. In my view, in the absence of such an explanation coming forth and merely because the plaintiffs want to reopen the case, the present notice of motion cannot be granted. It is also required to be mentioned that the documents concerning customs duty and ITC fine are not reflected in the first affidavit of documents dated 16.3.2006. This would clearly go to show that the plaintiffs at the time of preparing of evidence affidavit did not rely upon the necessary documents to show that the customs duty and ITC fine were payable by the plaintiffs to the customs department and to be recovered from the defendants. If this be so, the present stand of the plaintiffs that they took exhaustive search of the documents and tried to get them filed, is something which cannot be accepted for the purposes of reopening the case of the plaintiffs. One could have understood if the plaintiffs would have been candid enough in saying that the decision to close the case of the plaintiffs was a bonafide mistake on the part of a particular person who instructed the concerned Advocate to close the case. In the absence of such a statement on part of the plaintiffs’ : 6 : request to bring additional evidence on record cannot be accepted. 9. In my view, the plaintiffs have failed to make out a case for reopening and allowing the plaintiffs to lead additional evidence. In my view, if such a course is permitted, the plaintiffs would get the chance to further their case which they could have done before closure of the case. In my view, plaintiffs’ notice of motion cannot be granted and the same is required to be dismissed. In the peculiar facts and circumstances of the case, I am not inclined to saddle the plaintiffs with the costs of the motion. Hence the order :- O R D E R O R D E R O R D E R i) Plaintiffs’ motion is dismissed. There shall be no order as to costs. 10. Suit is set down for arguments on 18.9.2008. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)