1 mss CHS2082 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY & ICE ADMIRALTY JURISDICTION CHAMBER SUMMONS NO. 2082 OF 2011 IN ADMIRALTY SUIT NO. 5 OF 2011 FALCON OFFSHORE SERVICES (I) PVT. LTD. .. .. PLAINTIFF Vs. M.V. KHALIJIA & ORS. .. .. DEFENDANTS Mr. Bimal Rajasekhar i/b Ashwin Shankar for the plaintiff Mr. V. K. Ramabhadran for D-1 CORAM: S.C.DHARMADHIKARI, J. DATED: 17/12/2011 P.C. Heard. With the assistance of plaintiff’s counsel I have perused the affidavit- in-support of the chamber summons and the affidavit of evidence of PW 1 Conald J. Baptist, Managing Director of the plaintiff. . In the light of the statement made in the affidavit-in-support of this chamber summons and the contents of the affidavit in lieu of examination- 2 mss CHS2082 in-chief, I am satisfied that the proviso to Section 66 of the Indian Evidence Act, 1872 is attracted and particularly because of the clause 2 below the said proviso. The chamber summons is, therefore, made absolute as the plaintiff has satisfied me that secondary evidence of the documents mentioned in the schedule to the affidavit-in-support, is required to be led for the reasons set out in Section 65(a) of the Indian Evidence Act, 1872. 3. Chamber Summons is made absolute in terms of prayer clause (a). (S. C. DHARMADHIKARI, J) 3 mss CHS2082 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY & ICE ADMIRALTY JURISDICTION ADMIRALTY SUIT NO. 5 OF 2011 FALCON OFFSHORE SERVICES (I) PVT. LTD. .. .. PLAINTIFF Vs. M.V. KHALIJIA & ORS. .. .. DEFENDANTS Mr. Bimal Rajasekhar i/b Ashwin Shankar for the plaintiff Mr. V. K. Ramabhadran for D-1 CORAM: S.C.DHARMADHIKARI, J. DATED: 17/12/2011 P.C. Heard both sides on the question of marking the documents from the affidavit of plaintiff as exhibits. 2. The documents are disclosed in the Schedule para 1 of the affidavit of documents of Conald J. Baptist, Managing Director of the plaintiff affirmed at Mumbai, on 5/11/2011. Having perused the said affidavit of documents as also the documents themselves, I am of the opinion that as far as document which is marked as “Anexure AA” is concerned, in para 27 there 4 mss CHS2082 is a reference to the Harbour Master’s handwritten note at the foot of the application. The same cannot be read in evidence at this stage. In such circumstances the application for shifting from and to Stream Berth Vessels transiting to and from ONGC Berths and Dharamtar, VCN: 1008478 dated 13/9/2010 is marked as an exhibit but without the portion containing the handwritten note stated to be made by the Harbour Master and signed by him. The plaintiff is at liberty to prove this handwriting note/remark by leading such evidence as is permissible in law. 3. As far as the document which is referred to as “Exhibit TT” is concerned even that also is marked as an Article and not as an Exhibit. Liberty is reserved of the plaintiff to prove it in accordance with law. 4. Then my attention is invited to “Exhibit WW”. That document is stated to be invoice and thereafter main engines running hours report which is stated to be accompanying the same. As far as that is concerned, a perusal of para 41 of the affidavit in lieu of examination-in-chief would indicate that it is not enough to prove the portions from pages 90 and 91. Therefore, the documents without these pages and portions drawn is marked as an “Exhibit”. 5. As far as “Annexure XX” is concerned, the same position emerges with regard thereto as well. Therefore, the letter dated 16/11/2011 and the 5 mss CHS2082 original invoice are marked as “Exhibits” together but pages 94 to 111 of this documents cannot be marked in evidence unless the contents are proved in accordance with law. Reserve liberty to do so. The said documents viz. letter and the invoice collectively are marked as Exhibits. 6. Needless to state that the documents from the list/schedule to the plaintiff’s affidavit of documents are marked as “Exhibits”, reserving liberty to the defendants to cross-examine the deponent of the affidavit in lieu of examination-in-chief on the contents thereof and all contentions of parties with regard to the same are kept open. (S. C. DHARMADHIKARI, J.)