As per case facts, a UK-based company sold goods to an Indian entity. When the Indian entity relinquished its claim, the goods were to be re-exported, but the defendant port ...
902-FA-1757-2013-(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1757 OF 2013
Seal International Limited,
incorporated under the laws of U.K.,
having its registered office at
Ladywell Mills, Hall Lane, Bradford,
West Yorkshire BD47DF, England,
U.K. … Appellant
(Orig. plaintiff)
Versus
The Board of Trustees of the Port of
Bombay, a statutory Corporation
constituted under the provisions of
the Major Port Trust Act, 1963 (38 of
1963) as amended by Act 29 of 1974,
having its principal place of business
at Vijay Deep, Shoorji
Vallabhdas Marg, Bombay 400038. ...Respondent
(Orig. defendant)
*****
Mr. Cyrus Bharucha, Solicitor Krunal Gadhia, Mr. Jainuddin Khan, Mr.
Hisham Abdus Salam, Ms. Maitreyi Kulkarni, Ms. Neha Dhuru i/b
Gagrats, Advocates for the Appellant.
Mr. Dhruva Gandhi a/w Ms. Kajal Gupta a/w Ms. Shweta Singh i/b M.
V. Kini & Co., Advocates for the Respondent.
*****
CORAM : JITENDRA JAIN, J.
DATED : 9
th
FEBRUARY 2026
JUDGMENT:-
1.This appeal challenges an order dated 26
th
July, 2013 passed by
the Bombay City Civil Court whereby suit filed for money claim by the
original plaintiff / appellant came to be dismissed on the ground that
the original plaintiff has not proved its ownership of the goods which
1
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SHARADA
RANGNATH
WAHULE
Digitally
signed by
SHARADA
RANGNATH
WAHULE
Date:
2026.02.09
16:31:03
+0530
902-FA-1757-2013-(J).doc
were sold by auction by the original defendant. The parties are
addressed in the present judgment as per their original status in the
suit.
BRIEF FACTS:
2.It is the case of the original plaintiff, U.K. based company, that in
late 1993 / early 1994 goods were sold by them to M/s. Kansale
Hosiery Exports, Ludhiana under the trade name “M/s. Blackwell
Enterprises”. Since Kansale Hosiery Exports gave up its claim to the
goods, the goods were sought to be re-shipped back to U.K. However
the goods were lying with the original defendant and various charges
were demanded by the original defendant. The original defendant on 8
th
August, 1994 sold these goods for a consideration of Rs.18,30,070/-
though all the charges were paid by the local agent.
3.The original plaintiff, therefore, filed a suit in November 1994 i.e.
within three months from date of sale claiming the sale proceeds on the
ground that they were the owners of the goods and “M/s. Blackwell
Enterprises” was a trade name used by them for the purpose of trading.
Issues were framed on 24 February, 2003. Notice for admission of
document was issued by the defendant on 26 July 2006 and while
recording evidence on 4 August 2006 documents were marked in which
some of the documents were admitted by the plaintiff alongwith its
contents. In July 2003, impugned order and judgment came to be
passed.
FINDINGS OF THE TRIAL COURT:
4.The Trial Court framed various issues primarily being whether the
sale by the original defendant was contrary to the provisions of the
Major Port Trusts Act, 1963 and whether the original plaintiff is the
owner of the consignment which was sold. The Trial Court after
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considering the evidence held that the auction sale conducted by the
original defendant was contrary to the provisions of the Major Port
Trusts Act, 1963. There is no challenge to this part of the order by the
original defendant. The Trial Court insofar as the ownership of the
original plaintiff of the suit consignment is concerned held that the
original plaintiff has not proved that they are the owners of the goods
which were sold and therefore they are not entitled to the sale
proceeds. It is
inter alia this finding which is challenged by the original
plaintiff in the present Appeal.
SUBMISSIONS OF THE PLAINTIFF / APPELLANT :
5.Mr. Barucha, learned counsel for the plaintiff states that there is
no dispute that M/s. Kansale Hosiery Exports had given up its claim to
the goods. It is his submission that “M/s. Blackwell Enterprises” was a
trade name of the original plaintiff which was used for transacting the
business and same was proved by the evidence led by the original
plaintiff’s witness. He further submits that the Advocate’s for the
original defendant issued notice calling upon the original plaintiff to
admit various documents which
inter alia included the document dated
5
th
September, 1994 addressed by the original plaintiff’s advocate to the
original defendant. This document records that the original plaintiff was
the owner of the goods. This document and its contents were admitted
by the original plaintiff without any objection being raised by the
defendant and came to be exhibited, as recorded in the minutes of 4
th
August, 2006. He, therefore, submits that since the document and in its
contents were admitted the question of proving the said document does
not arise and consequently the ownership was admitted by the
defendant. He further submits that the Trial Court was in error
interpreting the provisions of Order XII Rule 2-A of the Code of the Civil
Procedure. He further stated that in civil proceedings based on
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preponderance of probability and the fact that no one has claimed
ownership till today except the plaintiff, the ownership can be said to
have been proved.
6.Mr. Bharucha, relied upon the following two decisions.
(a)Canara Bank, Bombay Vs. Eastern Mechanical Works, Bombay
1
(b)Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane
2
SUBMISSIONS OF THE DEFENDANT / RESPONDENT:
7.Mr. Gandhi, learned counsel for the defendant submits that in
the written statement they have taken a plea denying the ownership of
the plaintiff. He further submitted that all the documents and evidence
are in the name of “M/s. Blackwell Enterprises” and the plaintiff has
failed to prove it’s claim that “M/s. Blackwell Enterprises” was plaintiff’s
trade name. He submits that even the address of the plaintiff and the
address of “M/s. Blackwell Enterprises” is different. He relied upon the
evidence of the witnesses of the plaintiff and discredited this evidence
on the issue of “M/s. Blackwell Enterprises” being trade name of the
original plaintiff. He submitted that under Section 63 of the Major Port
Trusts Act, 1963, the sale proceeds, if not claimed within six months,
could be applied by the Board for the purposes of the said Act. He relied
upon the decision of this Court in the case of Hiren P. Doshi Vs. State of
Maharashtra & Anr.
3
and contended that even if the document is
admitted, the original plaintiff should prove the same and, therefore,
pleaded that no fault can be found in the impugned order. He further
submitted that the issue of admission of document dated 5
th
September,
1994 has been considered by the learned Trial Court in paragraph
nos.24 to 26. He, therefore, submitted that the Appeal is devoid of
1 2008(5) Mh.L.J.
2 1975 S.C.R.
32015 SCC OnLine Bom 6090
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merits and should be dismissed. He, however, fairly states that sale
proceeds are to be refunded to the owners but till today no one has
claimed except the present original plaintiff.
ANALYSIS & CONCLUSIONS:
8.I have heard learned counsel for the original plaintiff and the
defendant. The only issue which arises for my consideration is whether
the Trial Court was justified in holding that the plaintiff has not proved
its ownership of the goods auctioned by the defendant ?
9.At the outset, the Trial Court has held that the auction sale
conducted by the defendant is contrary to the provisions of the Major
Port Trusts Act, 1963. This finding has not been challenged by the
defendant. Therefore, insofar as the issue of claim to the sale proceeds
from auction sale is concerned, the defendant cannot retain the same
because admittedly the sale proceeds do not belong to the defendant.
The reliance placed by Mr. Gandhi on Section 63 of the Major Port
Trusts Act, 1963 to justify the retention cannot be accepted because
provisions of Section 63 would be applicable only if the sale is legal and
valid as per Sections 61 and 62 of the said Act. In the instant case, on
this issue the Trial Court has held that the auction was contrary to the
provisions of Sections 61 / 62 of the Major Port Trusts Act. Mr. Gandhi,
learned counsel for defendant fairly states that the sale proceeds have
to be refunded to the owner and till today no one has claimed
ownership except the present suit filed by the plaintiff. Even otherwise,
since the suit was filed within 6 months of auction, the defendant by
virtue of Section 63 of the Major Part Trust Act cannot use it for the
purpose of the said Act. Therefore, in my view, retention of the sale
proceeds of the auction sale by the defendant is illegal and amounts to
unjust enrichment. Since the sale itself is held to be illegal the
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defendant is liable to refund sale proceeds to the owner. Whether
plaintiff is the owner or not is discussed in subsequent paragraphs.
10.Now, I propose to analyse the issue of whether the original
plaintiff has proved its ownership to the goods which were auctioned by
the defendant and whether the plaintiff is required to prove the
documents and its contents when both are admitted by the plaintiff on a
notice by the defendant.
11.The relevant provisions of Order XII Rule 2 and Order XII
Rule 2-A of the Code of Civil Procedure, 1908 are as follows:-
Order XII Rule 2
Notice to admit documents. —Either party may call upon the other
party to admit, within seven days from the date of service of the
notice any document, saving all just exceptions; and in case of
refusal or neglect to admit, after such notice, the costs of proving
any such document shall be paid by the party so neglecting or
refusing, whatever the result of the suit may be, unless the Court
otherwise directs; and no costs of proving any document shall be
allowed unless such notice is given, except where the omission to
give the notice is, in the opinion of the Court, a saving of expense.
Order XII Rule 2-A
Document to be deemed to be admitted if not denied after service
of notice to admit documents.—(1) Every document which a party
is called upon to admit, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of that
party or in his reply to the notice to admit documents, shall be
deemed to be admitted except as against a person under a
disability:
Provided that the Court may, in its discretion and for reasons to be
recorded, require any document so admitted to be proved
otherwise than by such admission.
(2) Where a party unreasonably neglects or refuses to admit a
document after the service on him of the notice to admit
documents, the Court may direct him to pay costs to the other party
by way of compensation.
12.The original defendant called upon the original plaintiff to admit
various documents by issuing notice under Order XII Rule 2 of the Code
of Civil Procedure, 1908 (CPC). One of the document which was called
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upon by the original defendant to admit by the original plaintiff was the
document dated 5 September 1994 addressed by the original plaintiff’s
advocate to the original defendant. This letter states that the original
plaintiff having its office at UK has sold goods to M/s. Kansal Hosiery
Exports, Ludhiana and the same were shipped through Ceylon Shipping
Corporation Limited by their vessel M.V. LANKA RUWAN to Bombay.
However, M/s. Kansal Hosiery Exports did not take the delivery and
therefore, the goods were proposed to be re-exported to UK. The said
letter further states that the auction of the goods by the original
defendant was contrary to the provisions of the Major Port Trusts Act,
1963. The said letter called upon the original defendant to return the
sale proceeds.
13.The original plaintiff, on 4 August 2006 during the course of
recording the evidence admitted the said document including the
contents thereof. Insofar as some other documents are concerned, same
were admitted by the plaintiff but subject to proving the contents
thereof. The letter dated 5 September 1994 which was at serial no.23 of
the compilation of the documents of the defendant was admitted
including its contents. No objection to the said admission of the
document and its contents was taken by the original defendant in the
meeting of 4 August 2006 before the Commissioner. The document was
thereafter exhibited and marked.
14.There is no denial to the contents of this document by the
original defendant in the written statement except stating in paragraph
10 of the written statement that the original plaintiff is not the owner of
the consignment. This written statement was filed in 1996 whereas the
meeting in which the contents of the document were admitted took
place on 4 August 2006, which is much after the written statement was
filed and to which no objection was taken by the original defendant.
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15.Order XII of the CPC deals with Admissions. Rule 2 provides for
notice to admit documents by either party calling upon the other party
to admit the document, save all just exceptions. In my view, on a
reading of Order XII Rule 2, it would mean that a party who is called
upon to admit a document can admit it subject to raising just
exceptions. The exceptions cannot be raised by the party who calls upon
the other party to admit but it is the other party who is called upon to
admit the document who has to raise exceptions. In this case, the
original plaintiff who was called upon to admit the documents has not
raised any objections or exceptions while admitting the document at
serial no.23, which is the document dated 5 September 1994 addressed
by the original plaintiff's advocate to the original defendant. It is
important to note that in the meeting of 4 August 2006, this document
was not only admitted with respect to its execution, but also with
respect to its contents and to which no objection was raised by the
original defendant in the said meeting. Therefore, in my view, the
phrase “saving all just exceptions” in Order XII Rule 2 would be
applicable to the exceptions/objections to be raised by the party who is
called upon to admit the document and if no such objection is raised,
then the Court on its own cannot invoke this saving. In this case no
objections/exceptions were raised by the plaintiff.
16.Order XII Rule 2-A of the CPC is a deeming provision which
provides that every document which a party is called upon to admit, if
not denied specifically or by necessary implication, or by pleading of
that party or in his reply to the notice to admit documents, shall be
deemed to be admitted except as against a person under a disability. In
the instant case, the exception in Order XII Rule 2A(1) on account of
disability is not applicable.
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17.The document of 5 September 1994 was called upon to be
admitted by the original defendant to the original plaintiff and the
original plaintiff expressly admitted the said document not only with
respect to its execution but also with respect to its contents and as
observed above, no objection was taken to the said admission of the
execution and its contents by the original defendant.
18.The proviso to Order XII Rule 2-A(1) provides that the Court may
in its discretion and for reasons to be recorded require any document so
admitted to be proved otherwise than by such admission.
19.In my view, on a reading of the above said proviso, the Court of
first instance has to exercise its discretion by recording the reasons and
calling upon the party to prove the document though admitted under
sub-rule (1) of Rule 2 of Order XII of the CPC. In the instant case, on a
reading of the impugned judgment, I do not find that the Trial Court
has exercised its discretion by recording the reasons and called upon the
original plaintiff to prove the said document though its admission and
contents were admitted on 4 August 2006. The proviso contemplates an
express finding and reasons to be recorded by the Court as to why even
if the document is admitted, the Court is calling upon the party to prove
the same. In this case no such discretion seems to have been exercised
by the Court.
20.First proviso to Order XII Rule 2-A(1) gives a clue that unless the
Court calls upon the party admitting the document to prove, the
document and its contents are deemed to have been proved in a case
where the contents are also admitted alongwith the document and no
further proof is necessary. In the instant case, the Court having not
exercised its discretion, the document of 5
th
September, 1994 is to be
taken as proved and the party cannot be called upon to prove again a
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proved and admitted document. If the Court does not exercise its
discretion then the admitted documents of which the contents are also
admitted is deemed to have been proved and therefore the contention
of the defendant that they only called upon the plaintiff to admit
execution and not contents and therefore contents need to be proved is
required to be rejected and accepting such a contention would be
contrary to the proviso to Order XII Rule 2-A(1) of the Code of Civil
Procedure in the facts of the present case.
21.It is important to note that Section 58 of the Indian Evidence Act,
1872 (as it existed at relevant time) provides that no fact need to be
proved in any proceedings which the parties have agreed to admit at
the hearing, or which, before the hearing, they agree to admit by any
writing, or which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings.
22.In the instant case, at the time of recording the evidence, the
defendant called upon the plaintiff to admit various documents
including the letter dated 5 September 1994. The plaintiff admitted the
documents and its contents and the same was not objected to by the
defendant in the said hearing. Furthermore, in the said document, it is
stated that the transaction was executed by the plaintiff. Also there is no
reply to the said letter dated 5 September 1994. Therefore, considering
all these facts, in my view, there is no further requirement on the
plaintiff to prove the contents of the document since the ownership of
the goods has been admitted by both the parties.
23.The defendant having called upon the plaintiff to admit the
document and the plaintiff having admitted not only the document but
its contents and no objection having been raised at that point in time,
today the defendant is estopped from contending that the plaintiff has
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not proved ownership of the goods since by the above chain of events,
both the parties admitted the plaintiff being the owner of the goods.
24.The object of obtaining admission is to do away with the
necessity of proving facts that are admitted. In the instant case, there is
not only admission by the plaintiff of the execution of the document
called upon by the defendant to admit but there is also an admission of
the contents of the document and therefore, no further necessity of
proving the admitted facts is required.
25.The object of the amendment by which Rule 2-A was inserted
clearly shows that the rule is to enable the parties to obtain speedy
judgment atleast to the extent of relief to which, according to the
admission of one of the party, the other party is entitled to. In the
instant case and after considering the above chain of events, in my view,
admission of document dated 5 September 1994 by the plaintiff and its
contents thereof would not require any further proof of contents to be
proved by the plaintiff.
26.In the instant case, framing of an issue on the point of ownership
by the Trial Court will not amount to the Court having exercised its
discretion under the proviso to Order XII Rule 2-A(1). The framing of
issue to prove ownership is different from calling upon the party to
prove the document, though admitted. The discretion under the proviso
has to be exercised prior to framing of the issue. Therefore, the Court
having not exercised its discretion under the proviso to Order XII Rule
2-A(1), the challenge to the document cannot be assailed by the original
defendant in the trial of the present proceedings.
27.In this case, issues were framed by this Court (prior to its transfer
to the City Civil Court) on 24
th
February, 2003. The notice for admission
and its admission of document alongwith contents happened on
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26
th
July, 2006 and 4
th
August 2006 respectively. Therefore to say that
the Court had exercised its direction under the proviso while framing
issue would be incorrect because when the issues were framed
admissions had not taken place. Therefore subsequent event of
admission can, therefore, be relied upon by the plaintiff to prove
ownership.
28.In the instant case, the plaintiff has admitted contents alongwith
document of 5
th
September, 1994 and it is this fact which played an
important role in coming to the conclusion that contents stands proved.
The learned counsel for both the parties have not shown me any
precedent which requires or does not require contents of documents to
be proved or not to be proved in a situation where on notice by
defendant on plaintiff to admit the document, the plaintiff not only
admits the document but also its contents. The decision relied upon by
the learned counsel for the plaintiff in the case of Canara Bank (supra)
deals with where the document was proved by the witness and read
with Bankers Books Evidence Act, the Court held that the document
stands proved. In the instant case before me, this stage did not arise
because the document and its contents were admitted much before the
witnesses were cross-examined.
29.The challenge to the auction sale from inception was raised by
none other than the plaintiff itself. The Trial Court based on such
challenge by the plaintiff held the auction to be contrary to the Major
Port Trusts Act. This fact cannot be brushed aside for considering the
ownership issue. Why would any stranger challenge the auction sale
unless a such person has interest. When challenge by such a person is
recognised and upheld, same can certainly be considered by the Court
when it comes to assessing the claim of ownership by this very plaintiff.
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30.It is also important to note that the defendant themselves relied
upon the admission of other documents of which contents were also
admitted on 4
th
August 2006 to justify the legality of auction process
(which the Trial Court held as illegal) and no proof of its contents was
ever sought by the defendant or the Trial Court. Therefore to contend
that the document of 5
th
September 1994 which formed part of the
same batch of admitted documents alongwith its contents, plaintiff is
required to prove ownership is unjustified. It amounts to blowing hot
and cold at the same time.
31.It is important to note that the original defendant did not reply to
the letter dated 5 September 1994 by denying that the original plaintiff
was not the owner of the auctioned goods. The denial of ownership
comes in the written statement. Post filing of the written statement on a
notice to admit by the original defendant, the original plaintiff not only
admitted the execution of the said document but also the contents
thereof. Therefore, in my view, the Trial Court was not justified in
coming to the conclusion that the document dated 5 September 1994
was not proved.
32.In view of above, the document dated 5 September 1994 clearly
states that the original plaintiff is the owner of the auctioned goods and
the original plaintiff having admitted the execution and contents thereof
and the Court having not exercised its discretion under the proviso to
Order XII Rule 2-A(1), the original defendant is now estopped from
submitting that the original plaintiff is not the owner of the auctioned
goods.
33.The learned counsel for the original defendant has relied upon
the decision in the case of Hiren P. Doshi (supra) in support of his
submission that even if a document is admitted under Order XII Rule 2,
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still it needs to be proved. I have perused the said decision. The facts of
the said decision were materially different than the facts before me. In
the said decision, the original defendant did not respond to the notice
issued by the original plaintiff for admitting the documents and
therefore, the original plaintiff filed chamber summons calling upon the
original defendant to admit the document. There was no admission of
the contents of the document in the facts of the said judgment. In the
case before me, the contents and execution have both been admitted
and no objection was raised at the time of such admission of its
execution and contents. Furthermore, in paragraph 12 of the said
decision, it is made clear that it is the party who has admitted the
documents who can challenge the correctness of the contents of the
document and in such a case, the burden would lie on such party who
relies on the documents to prove the correctness of such document. In
the instant case, the original plaintiff, who has admitted the document,
is not challenging the correctness of the contents of the document but
on the contrary has accepted the contents of the document and
therefore, the decision in the case of Hiren Doshi (supra) does not assist
the original defendant but on the contrary supports the case of the
original plaintiff.
34.The observations of this Court in the case of Hiren P. Doshi
(supra) that the document has to be proved is in the context of the
proviso to Order XII Rule 2-A(1) of the CPC. The relevant observations
are reproduced :-
“In terms of Rule 2-A of Order XII of the Code of Civil Procedure, 1908,
only those documents which were not denied specifically or by
necessary implication or stated to be not admitted in the pleading of
that party or in his reply to admit documents shall be deemed to have
been admitted except as against a person under a disability. In this
case, defendants have not expressed any disability. Therefore, only
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such documents which defendants have not denied specifically or by
necessary implication or stated to be not admitted in the written
statement can be considered to have been admitted under this Rule. At
the same time, Court also has discretion and for reasons to be
recorded, to require plaintiff to prove the documents otherwise than by
way of admission under Rule 2-A. This, means that the Court should
generally admit that if it feels that the plaintiff despite the defendants
not denying specifically or by necessary implication or the defendants
not stating in the pleasing that the document is not admitted or has
failed to reply to the notice to admit documents, has to prove the
documents, the Court has to give reasons for that and write other way
round. The intention behind Rule 2-A of Order XII is to speed up the
trial.”
35.On a reading of the judgment in the case of Hiren Doshi (supra),
the said decision does not state that when the contents of the document
and the document both are admitted and the Court has not exercised its
discretion under the proviso then even in that scenario, the party has to
prove the contents of the document. There is a difference between
admission of document which may or may not amount to admission of
contents in which case contents have to be proved for its truth but when
the document and contents both are admitted necessity of proving the
contents for its truth would not arise.
36.The issue of “M/s Blackwell Enterprises” being a trade name
arose only after the defendant took this objection post filing the suit
and, therefore, there was no occasion for the plaintiff to plead the same
specifically in the plaint, since the plaint proceeded on a footing that
there is no dispute with respect to ownership of the plaintiff to the
goods which were auctioned. This has to be read alongwith the notice
issued by the advocate for the plaintiff, wherein the plaintiff was
described as the owner of the goods. Therefore, the reasoning given by
the Trial Court that in the plaint there is no mention of the trade name
and, therefore, the claim of ownership is not proved is erroneous.
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37.The plaintiff led the evidence of its managing director Mr.
Andrew David (PW-2). In the examination-in-chief, the managing
director stated on oath that the plaintiff uses the name “M/s. Blackwell
Enterprises” to trade in Greasy Texas, Mohair from Texas USA to India
and under the said trade name continues to do business with India. In
the cross-examination of PW-2, the plaintiff explained that the
document which contains the name “M/s. Blackwell Enterprises” is
signed by Mr. Simpson, who is employed with the plaintiff. It is also
important to note that a managing director will not be aware of each
and every transaction and who carries out the instructions and,
therefore, no adverse inference can be drawn from the answers which
requires a managing director to answer on each consignment of the
plaintiff. The PW-2 in his cross-examination has stated that Mr. Simpson
instructed a UK based company called Cory Brothers, who in turn
availed the services of M/s. Seahorse Shipping Agencies and M/s. Ocean
Waves. It is important to note that M/s. Seahorse Shipping Agency and
M/s. Ocean Waves were in constant touch with the defendant in its
capacity as representative. There is a correspondence between Cory
Brothers and M/s. Seahorse Shipping Agency with respect to this
transaction. PW-2 in answer to question nos.72 and 73 stated
“M/s Blackwell Enterprises” is a trading name used by the plaintiff
when exporting Greasy Taxes, Mohair to India and also explained that
Bill Blackwell is the name of the person who has signed the document
on which the address is shown as Texas, USA and Bill Blackwell works
for the plaintiff. The ownership of the goods was admitted by PW-2 in
the cross-examination in answer to question no.76. In my view, the
documents containing the name of “M/s. Blackwell Enterprises” have
been sufficiently explained by PW-2 in his examination- in-chief and in
his cross-examination and, therefore, it cannot be said that the plaintiff
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has not proved the ownership.
38.The evidence of PW-1 has been heavily relied upon by the learned
counsel for the defendant to dislodge the claim of the original plaintiff.
In my view PW-1 was a clearing agent who would certainly not have
any knowledge about the constitution of his client. However, PW-1 has
admitted that they were appointed by Cory Brothers and PW-2 has in
his evidence stated that Cory Brothers was appointed by the original
plaintiff. This chain is relevant for appreciating the evidence. PW-1 in
his cross-examination has also admitted that the statement in his
evidence to the effect that “M/s. Blackwell Enterprises” is the original
plaintiff’s trading partner was made by mistake and he has fairly stated
that this mistake was realized after the discussion with the original
plaintiff and their advocate’s by which time the correct status of “M/s.
Blackwell Enterprises” came to his knowledge. Even otherwise if the
evidence of PW-1 is ignored then also, in my view the evidence of PW-2
read with my analysis of Order XII Rule 2-A and the other reasons given
above and after appreciating the evidence in totality, it cannot be said
that the original plaintiff has failed to prove the ownership.
39.It is important to note that evidence has to be appreciated by
taking into account all the relevant factors. The fact that the plaintiff
was pursuing its claim from 1994 with the defendant with respect to the
auctioned goods is not disputed. It is also not disputed that till today
other than the plaintiff, no one else has staked its claim to the sale
proceeds of the auctioned goods, though almost three decades have
passed. The plaintiff has also undertaken to file an indemnity before the
Trial Court to secure any future claim against the defendant. This
proves the bona fides of the original plaintiff. Even today the original
plaintiff has offered to furnish indemnity. Admittedly, the defendant
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cannot retain this money and no one else other than the plaintiff is
pursuing its claim for the last three decades and based on the document
dated 5 September 1994 which is admitted not only qua its execution,
but also qua its contents and the fact that PW-2 in his evidence has
explained the documents which bears the name of “M/s. Blackwell
Enterprises” goes on to show that the claim of ownership has been
proved by the plaintiff.
40.The learned counsel for the appellant is justified in relying on the
decision of the Hon’ble Supreme Court in the case of Naranyan Ganesh
Dastane (supra) on applicability of preponderance of probabilities in
civil cases. In my view and looking at the facts which are stated above,
certainly the preponderance of probabilities based on the above reasons
leans in favour of the plaintiff with regard to the issue of proving
ownership of the goods which are auctioned.
41.For all the above reasons, appeal deserves to be allowed and the
order of the Trial Court to the extent challenged herein by the original
plaintiff is quashed and set-aside. It is made clear that interpretation of
Order XII is restricted to the facts of the present case only and same
should not be read
dehors peculiar facts of the present case. This
precedent should not be read to mean that if only documents are
admitted there is no need for its proof since facts before me are
different.
42.The decree be directed to be drawn in terms of prayer clause (a)
of the plaint with modification with respect to the amount and the rate
of interest of 18% p.a. claimed. The High Court on 28
th
July 1999 in a
motion by the plaintiff directed the defendant to deposit Rs.11,60,729/-
with the Registry. Therefore no interest is payable from the date of
deposit on this sum of Rs.11,60,729/- since the defendants’ have
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complied with the said order as stated in the affidavit of DW-1.
However, defendant would be liable to pay interest on Rs.11,60,729/-
from the date of filing of the suit till the above order passed in motion
at the rate of 6% p.a. since plaintiff has not led any evidence with
regard to the interest at the rate of 18% p.a.
43.Insofar as balance amount of Rs.6,24,659 (Rs. 17,85,388/- minus
Rs. 11,60,729/-) is concerned, DW-1 in his examination-in-chief in
paragraph 29 has said that defendant had incurred expenses as per the
work sheet. The said work sheet is at page 371 of the Appeal book
which shows Rs.6,62,201/- having been incurred. Plaintiff has not
cross-examined the said witness on this issue. Rs.6,62,201 consists of
Rs.1,83,007/- sales expenses, customs duty-Rs.3,66,014/- and BPT
charges-Rs.1,13,180/- Since sale has been held to be contrary to the
Major Part Trusts Act and there is a finding by the Trial Court that all
the charges are paid while dealing with legality of the auction,
Rs.1,83,007/- and Rs.1,13,180/- is due to the plaintiff. On customs duty
since plaintiff did not cross examine Rs.3,66,014/- same cannot be
directed to be paid by the defendant to the plaintiff. Therefore the
plaintiff is entitle to Rs.2,96,187/- (Rs.1,13,180 plus Rs.1,83,007/-) and
interest thereon at 6% p.a. from the date of filing the suit till the date of
payment.
44.Plaintiff is entitled to the amount deposited Rs.11,60,729/- under
order of this Court alongwith interest accrued thereon till today after
complying with the procedure in accordance with law.
45. In view of above, I pass the following order.
ORDER
(i) Impugned order dated 26
th
July 2013 is quashed to the
extent challenged herein;
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(ii) Appeal is partly allowed. Decree be drawn up
accordingly and as more particularly set out in
paragraphs 42 and 43 of this judgment;
(iii) If in future any person raises any claim on the auction
transaction for recovery then defendant would not be
liable.
(iv) No order as to cost.
( JITENDRA JAIN, J. )
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