Delhi High CourtElephanta Oil Vanaspati Industries ... vs The New India Assurance Co. Ltd. & Anr. on 19 February, 2018Author:Valmiki J.MehtaBench:Valmiki J.Mehta*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.922/2004

%                                               16th February, 2018

METRO EXPORTERS PRIVATE LIMITED             ..... Plaintiff
                 Through: Mr. Mohan M. Jayakar,
                          Advocate with Mr. Ashwin
                          Shete, Advocate, Mr. Javaid
                          Muzaffar, Advocate, Mr. Harsh
                          Moorjani, Advocate and Mr.
                          Bharat Bagla, Advocate.
                          versus

UNITED INDIA INSURANCE COMPANY LIMITED ..... Defendant
                  Through: Ms. Sunita Dutta, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?       YES


VALMIKI J. MEHTA, J (ORAL)1.           This suit being CS(OS) No.922/2004 is filed by the

plaintiff Metro Exporters Pvt. Ltd. The sole defendant in the suit is

United India Insurance Co. Ltd. By the suit plaintiff seeks a money

decree for a total amount of Rs.79,38,613.02/-, i.e principal amount of

Rs.76,70,056/- with interest at 18%. The present suit was originally

filed in the Mumbai High Court but was thereafter transferred to this

Court in terms of the order of the Supreme Court dated 23.1.2004 inCS(OS) No.922/2004 and connected matters                 Page 1 of 41Transfer Petition (Civil) Nos. 6 and 7 of 2001. This suit was

transferred to this Court because the issues in this suit were connected

with respect to various other suits which were pending in this Court.

All the suits pertain to shipping of goods Ex-Singapore to different

ports in India by two Ships OH DAI and MV AVERILLA. Both these

ships allegedly sank, resulting in as per the plaintiffs in each of the

suits, loss of the cargo. Therefore, various suits were filed by various

owners/consignees of the goods which were shipped under the

aforesaid two ships. The suits which are before this Court and which

have come up for decisions are 8 in number, and details of the same

are as under:-Sl. No.       Case no.                                 Title
  1.      CS(OS) No. 1408/1979     Elephanta Oil Vanaspati Industries Ltd. Vs.
                                   The New India Assurance Co. Ltd. & Anr.
  2.      CS(OS) No. 1409/1979     Elephanta Oil & Vanaspati Industries Ltd. Vs.
                                   The New India Assurance Co. Ltd. & Anr.
  3.CS(OS) No.1417/1979      M/s.Jain Export P. Ltd. Vs. New India
                                   Assurance Co. Ltd.4.CS(OS) No.672/1980       Indo Foreign Commercial Agency Vs.
                                   National Insurance Co. & Ors.
  5.      CS(OS) No.738/1980       Canara Bank & Anr. Vs. Oriental Insurance
                                   Co. Ltd.
  6.      CS(OS) No.739/1980       Canara Bank & Anr. Vs. Oriental Fire &
                                   General Ins. Co. Ltd.
  7.      CS(OS) No.1/1982         M/s. Sawhney Bros. Vs. Hong Kong Shanghai
                                   Banking Corpn. & Ors.
  8.CS(OS) No.922/2004       Metro Exporters P. Ltd. Vs. United India
                                   Insurance Co. Ltd.CS(OS) No.922/2004 and connected matters                    Page 2 of 412.           The two suits being CS(OS) No.1417/1979 titled as M/s.

Jain Export P. Ltd. Vs. New India Assurance Co. Ltd. and CS(OS)

No.672/1980 titled as Indo Foreign Commercial Agency Vs.

National Insurance Co. & Ors., have been disposed of by this Court.

CS(OS) No.672/1980, after arguments was withdrawn by the plaintiff

and this Court passed a detailed order on 12.2.2018 giving liberty in

accordance with law to the plaintiff in the said suit to seek adjustment

against its bankers who had debited the plaintiff in that suit with

respect to payment under the letter of credit issued by the plaintiff's

banker in favour of the foreign seller.Suit being CS(OS)

No.1417/1979 titled M/s.Jain Export P. Ltd. Vs. New India

Assurance Co. Ltd.was dismissed in terms of the judgment dated

6.2.2018 noting that the basic document which was required to be

filed by the plaintiff in the suit to seek the insurance claim against the

insurance company was the insurance policy but the insurance policy

containing the terms was not filed and only the cover note was filed,

and consequently it could not be known as to what was the loss which

was covered under the insurance policy in the said CS(OS) No.

1417/1979 and therefore once it is not known as to what was the loss

which was covered under the insurance policy, the suit claiming lossCS(OS) No.922/2004 and connected matters                   Page 3 of 41under the insurance policy could not succeed and hence was

dismissed.3.           The present suit is the third suit out of the 8 suits which is

being decided. I may note that in all the 8 suits there are a total of 4

Insurance Companies who have issued the insurance policies being

United India Insurance Co. Ltd. (defendant in the present suit), New

India Assurance Co. Ltd., Oriental Insurance Co. Ltd. and National

Insurance Co. Ltd. All these four Insurance Companies had insured

the goods which were shipped through the two ships OH DAI and MV

AVERILLA. Out of the eight suits, the plaintiffs in the suits CS(OS)

Nos. 1408/1979, 1409/1979 and 1417/1979 are all companies

belonging to the Jain Shudh Vanaspati Group. Plaintiff in the present

suit being Metro Exporters Pvt. Ltd. is the company which is not a

part of the Jain Shudh Vanaspati Group and which companies of the

Jain Shudh Vanaspati Group are owned by the Jain brothers Sh. Vinod

Kumar Jain and Sh. Raj Kumar Jain. One another aspect which has to

be noted is that an order was passed in all the suits on 23.1.2014

whereby evidence which was led on behalf of the insurance companies

was to be treated as common evidence for all the eight suits. Suit

CS(OS) No. 1417/1979 was treated as a lead case in terms of the orderCS(OS) No.922/2004 and connected matters                    Page 4 of 41dated 23.1.2014.        As already stated above this suit CS(OS)

No.1417/1979 already stands dismissed in terms of the judgment dated

6.2.2018. With the aforesaid preliminary statements let us turn to the

facts of the present suit.4.            As already stated above, plaintiff by the suit seeks

recovery of Rs.76,70,056/- along with interest at 18% totaling to

Rs.79,38,613.02 from the sole defendant being the United India

Insurance Co. Ltd. In sum and substance, the cause of action in the

suit is that the goods owned by the plaintiff company were subject

matter of the insurance policies issued by the defendant/insurance

company and since the goods have been lost on account of sinking of

the ship OH DAI and the loss is covered under the insurance policies,

hence the defendant/insurance company is liable to pay the plaintiff

the value of the goods along with the profit margin of the goods. I

may    note    that   there   were   two   policies   issued   by   the

defendant/insurance company in favour of the plaintiff with one policy

being for the value of the goods and the second policy was with

respect to profit margin of the goods.CS(OS) No.922/2004 and connected matters                 Page 5 of 415.           The facts of the case are that plaintiff entered into a

contract with one M/s. Palmex Enterprises of Singapore whereby M/s.

Palmex Enterprises, Singapore had agreed to sell and the plaintiff had

agreed to buy 800 M.T. of PVC Resin Suspension Grade.                The

contract entered into between the plaintiff and the M/s. Palmex

Enterprises, Singapore is dated 11.6.1979 (Ex.PW1/1). In terms of the

contract plaintiff opened a letter of credit upon the seller M/s. Palmex

Enterprises, Singapore through the banker of the plaintiff State Bank

of India, Overseas Branch, Mumbai. The value of the letter of credit

was USD 624000 being roughly equivalent to Rs.50,690,49.50/-.

Defendant/insurance company firstly issued its cover-note dated

20.6.1979 in the sum of Rs.56,22,041/- (Ex.PW1/2). Another cover-

note dated 16.8.1979 (Ex.PW1/23) was also issued by the

defendant/insurance company in favour of the plaintiff for the sum of

Rs.25,96,500/- being the profit insurance with respect to subject

goods. With respect to both these cover-notes subsequently insurance

policies dated 5.9.1979 were also issued by the defendant/insurance

company in favour of the plaintiff and which have been proved and

exhibited as Ex.PW1/60 and Ex.PW1/59. Plaintiff pleads that on or

about 2.9.1979 plaintiff received a telex message from the supplier ofCS(OS) No.922/2004 and connected matters                  Page 6 of 41shipping of goods on the vessel OH DAI under the Bill of Lading No.

SB-15 dated 1.9.1979, Ex.PW1/31. Plaintiff by its letter dated

3.9.1979 informed the defendant/insurance company the details with

respect to shipment. On or about 13.9.1979, the plaintiff pleads, that it

appeared in the newspaper that the vessel OH DAI had sunk in the

Bay of Bengal and therefore plaintiff by its letter dated 15.9.1979 sent

the newspaper cutting to the defendant/insurance company. The

defendant/insurance company by its letter dated 15.9.1979 is stated to

have advised the plaintiff to act as a prudent person and to take steps

which are necessary to prevent retiring of the shipping documents.

Plaintiff is pleaded to thereafter sent notices to the shipping company

Tata Financial Limited and Wellway Lines who was the shipping

agent of the ship OH DAI. The plaint thereafter refers to

correspondence between the parties and since defendant/insurance

company failed to pay the amount hence the subject suit was filed

underOrder XXXVII CPCin the Bombay High Court where

unconditional leave to defend was granted. As already stated above

the suit was thereafter transferred to this Court as per order of the

Supreme Court on a transfer petition.CS(OS) No.922/2004 and connected matters                  Page 7 of 416.              The defendant/insurance company has contested the suit

and its defence is that a fraud is sought to be perpetrated upon the

defendant/insurance company because no goods were ever shipped by

the seller from Singapore to the plaintiff/buyer through the ship OH

DAI. The defendant/insurance company pleaded that Bill of Lading

and connected documents with respect to shipping of the goods are

fake documents because in fact goods which were the subject matter

of the contract between the plaintiff and M/s. Palmex Enterprises were

never shipped by M/s. Palmex Enterprises, Singapore to Mumbai,

India.7.              The following issues were framed by the Mumbai High

Court on 24.12.1999 in this suit:-"1.     Whether the Plaintiffs prove that on or about 11th June 1979 they
         entered into a contract in writing with one Palmex Enterprises for the
         purchase of 800 metric tons of PVC Resins Suspension grade (hereinafter
         referred to as the "said goods") as more particularly alleged in paragraph 3
         of the plaint?2.      Whether the Plaintiffs prove that the said goods had been shipped
         on board the vessel "OH-DAI" as more particularly set out in paragraphs
         7, 8 & 9 of the plaint?3.      Whether the Plaintiffs are entitled to recover from the defendants
         the sum of Rs.76,70,056/- together with interest thereon being the amounts
         payable by the Defendant under the policies of insurance dated 5th
         September 1979 issued by the Defendants, on account of loss of the said
         goods as alleged in paragraph 19 and the prayer clause of the plaint?4.      Whether the Defendants prove that the Plaintiffs have not fulfilled
         the condition precedents before their claim could be entertained and
         accepted by the Defendants as alleged in paragraph 1 of the written
         statement?CS(OS) No.922/2004 and connected matters                            Page 8 of 415.      Whether it was obligatory upon the Plaintiffs to prove by
      independent evidence that the goods in question were in fact loaded on the
      vessel "OH-DAI" as alleged in paragraphs 1 and 10 of the written
      statement?6.      Whether the Defendants prove that under the insurance policy
      issued by them, it was incumbent upon the Plaintiffs to take all reasonable
      steps for ensuring all the rights against the carriers, bailees or third parties
      are carefully preserved and exercised as alleged in paragraph 2 of the
      written statement.?7.      Whether on the Plaintiffs failing to file a suit or take any action
      against the shipping company and/or the consignor, the Plaintiffs are
      disentitled for maintaining the claim under the insurance policies as
      alleged in paragraph 2 of the written statement?8.      Whether the Defendants prove that the Plaintiffs have no insurable
      interest and hence are not entitled to make any claim under the insurance
      policies as alleged in paragraph 5 of the written statement?9.      Whether the insurance contracts entered into between the Plaintiffs
      and the Defendants are vitiated by failure to disclose all material facts as
      alleged in paragraph 6 of the written statement?10.     Whether the Defendants prove that the Bill of Lading issued and
      evidencing shipping of the said goods on board "OH-DAI" was issued by a
      company which has issued a false Bill of Lading as alleged in paragraph 9
      of the written statement?11.     Whether it was incumbent upon the Plaintiffs to prove that their
      goods were lost as a result of the perils of the sea insured against as
      alleged in paragraph 11 of the written statement?12.     What order.13.     Generally. "Issue Nos. 2,5,8,10 and 118.            Issue nos. 2, 5, 8, 10 and 11 can be decided together

inasmuch as all these issues pertain to whether insurance policies did

not come into existence in the sense that no claim under the insurance

policies can be filed because goods which were subject matter of the

insurance policies never existed and were never shipped by the foreign

seller M/s. Palmex Enterprises to the plaintiff.CS(OS) No.922/2004 and connected matters                            Page 9 of 419.           On behalf of the plaintiff, it is argued that plaintiff has

proved the factum of shipment of goods because the Bill of Lading

dated 1.9.1979 bearing no. SB-15 has been proved and exhibited as

Ex.PW1/31. It is argued that once plaintiff proves the Bill of Lading,

plaintiff is said to have discharged its burden of proof of goods having

been shipped by the seller M/s. Palmex Enterprises to the

plaintiff/buyer. This argument is sought to be buttressed by the

plaintiff by pleading that plaintiff has proved the Mate's Receipt of the

shipping company of the ship OH DAI as Ex.PW1/14 and which

shows that the said goods were received on board, the ship OH DAI

for transportation to Mumbai. Reference by plaintiff is also invited to

the Tally Sheets Ex.PW1/28 issued by the same agents of the shipping

company Union Ocean Shipping (PTE) Limited so as to show that

goods were shipped. It is argued that once these documents i.e Bill of

Lading, Mate‟s Receipt and Tally Sheets are taken together, the

plaintiff has to be held to have discharged the burden of proof of

shipping of the goods. It is also argued on behalf of the plaintiff that

the fact that the insurance policies refer to the fact that insurance

policies cover the goods which have been shipped, therefore for this

additional reason this Court must hold that the goods which areCS(OS) No.922/2004 and connected matters                  Page 10 of 41subject matter of contract between the plaintiff and M/s. Palmex

Enterprises were shipped Ex-Singapore to Mumbai via the ship OH

DAI.    Plaintiff also draws the attention of this Court to the oral

depositions made in the examination-in-chief of the plaintiff‟s

witnesses with respect to shipping of the goods Ex-Singapore to

Mumbai by the ship OH DAI under the subject Bill of Lading. It is

also argued on behalf of the plaintiff that the defendant/insurance

company has led no substantive evidence to show that goods were in

fact not shipped or that the goods which were the subject matter of the

policies did not come into existence and were not shipped, and it is

argued that the onus had shifted upon the defendant/insurance

company to prove that goods were not shipped by M/s. Palmex

Enterprises to plaintiff once plaintiff had proved Bill of Lading,

Mate‟s Receipt and Tally Sheets.10.          On behalf of the plaintiff, in support of its case, reliance

is placed upon the following judgments:-(i)    Peacock Plywood (P) Ltd. Vs. Oriental Insurance Co. Ltd.(2006) 12 SCC 673(ii)   Shaw Wallace and Company Limited Vs. Nepal Food

Corporation and Others(2011) 15 SCC 56.CS(OS) No.922/2004 and connected matters                  Page 11 of 41(iii)   Ellerman and Bucknall Steamship Company Ltd. Vs. Sha

Misrimal BherajeeAIR 1966 SC 1892.Plaintiff has alsoplaced reliance uponthe provisions of theIndian

Bills of Lading Act, 1856.11.          On behalf of the defendant/insurance company, it is

argued that the entire arguments urged on behalf of the plaintiff are

misconceived because existence of a Bill of Lading or a Mate‟s

Receipt or Tally Sheets is not sufficient evidence to discharge the

burden of proof upon the plaintiff of the shipment of goods because of

the provisions of theCommercial Documents Evidence Act, 1939(hereinafter referred to as „the Act‟) and that the facts of the present

case show that grave fraud is sought to be perpetrated upon the

defendant/insurance      company.      It    is     argued       that    the

defendant/insurance company has led evidence of Captain Jose

Varghese Paloccaran who was working at Palco Surveyors and

Adjustors Limited and who has deposed with respect to Criminal

Investigation   Department     Division     of    Singapore     conducting

investigations leading to the owners of the ship OH DAI and MV

AVERILLA being convicted. Captain Jose Varghese Paloccaran has

deposed with respect to making inquiries from the sellers M/s. BentrexCS(OS) No.922/2004 and connected matters                      Page 12 of 41and Company and M/s. Palmex Enterprises and as to how he was

stonewalled by the employees of these companies thereby arousing

suspicion. Captain Jose Varghese Paloccaran also deposed that there

was doubt with respect to sinking of the ships as all the employees of

the ship were found to be residing in their houses. Captain Jose

Varghese Paloccaran has also deposed with respect to the factum of

non-receipt of the goods because of non-existence of the lorry/truck

passes with respect to lorries/trucks containing goods entering the

custom/port/dock area authority of Singapore. Captain Jose Varghese

Paloccaran has also deposed of remaining in touch with the police

personnel including Sh. Abu Bakar Moosa who has deposed as CW-2

on behalf of the defendant/insurance company. Captain Jose Varghese

Paloccaran has deposed with respect to the lengthy trial taking place in

the Singapore Court which heard the details of how the plan had been

chalked out to play a massive fraud upon the insurance companies and

banks thereby defrauding them of huge amounts running into crores of

rupees and how the Singapore Court concluded with the accusations

leveled against all the accused persons who were duly proved to be

faking Bills of Lading, shipping documents without actual cargo, and

so on showing that no goods were ever loaded on ships OH DAI andCS(OS) No.922/2004 and connected matters                 Page 13 of 41MV AVERILLA. Captain Jose Varghese Paloccaran also deposed

with respect to yellow water being shipped instead of palm oil and rice

bags being shipped as bags containing cloves of Zanzibar origin and

that water drums and tins were passed off as brass scrap or copper

scrap etc.12.          I may note that in the present suit the goods are not of

brass scrap or copper scrap or palm oil or cloves because the goods in

question which are subject matter of the present suit and insurance

policy is 800 M.T. of PVC Resin Suspension Grade, however Captain

Jose Varghese Paloccaran deposed with respect to palm oil, cloves,

copper scrap, brass scrap which are subject matter of the other suits,

and that Para 11 of the affidavit of Captain Jose Varghese Paloccaran

specifically uses the expression „etc‟ after the words palm oil, copper

scrap. On behalf of the defendant/insurance company it is argued that

the deposition of Captain Jose Varghese Paloccaran is also with

respect to the subject goods and which becomes clear from the

question put by plaintiff itself in the cross-examination of Captain Jose

Varghese Paloccaran on 25.7.2014 and which question when put by

the plaintiff was replied by Captain Jose Varghese Paloccaran by

specifically referring to 800 pallets of PVC resin and Captain JoseCS(OS) No.922/2004 and connected matters                  Page 14 of 41Varghese Paloccaran deposed that he had made enquiries with the port

authorities itself with respect to 800 pallets of PVC Resin which is

subject matter of the present suit.13.          On behalf of the defendant/insurance company, reliance

is also placed upon the evidence led of Sh. Abu Bakar Moosa as CW-2. Sh. Abu Bakar Moosa was working in the capacity of the Deputy

Head and later on Head of the Crime Division in the Criminal

Investigation Department of Singapore during the years 1979 to 1983.

Sh. Abu Bakar Moosa has deposed with respect to conspiracy hatched

between Sh. Bhagwan Singh Aujla, Sh. Manmohan Singh Aujla of

M/s. B.S. Aujla & Co. Pte. Ltd., M/s. Bentrex & Co. and M/s. Palmex

Enterprises with respect to scuttling and sinking of the ships and

preparing false documentation showing shipment of the goods which

were in fact never shipped. Sh. Abu Bakar Moosa has referred to the

investigations conducted by various persons including himself and

thereafter submitting their investigation reports to the Public

Prosecutor office in Singapore giving the entire details of the

conspiracy, conspirators and co-conspirators. Sh. Abu Bakar Moosa

has also deposed with respect to the proceedings in the Court at

Singapore and as to how Sh. Bhagwan Singh Aujla, Sh. ManmohanCS(OS) No.922/2004 and connected matters              Page 15 of 41Singh Aujla, Sh. Isaac Paul Retnam and Sh. Rethinasamy were handed

over different sentences for their part of the conspiracy in terms of the

judgment dated 31.3.1983. It is accordingly argued on behalf of the

defendant/insurance company that merely because insurance policies

were issued by it would not mean in the facts of the present case that

plaintiff has been successful in proving that goods which are subject

matter of the insurance policies were in fact shipped and once the

goods which were subject matter of the insurance policies never

existed and were never shipped, hence the insurance policies did not

come into operation for plaintiff to be compensated for the alleged

loss of goods which were subject matter of the insurance policies.14.          The crucial issue to be decided in the present case is as to

whether the goods which are subject matter of the insurance policies

ever came into existence and ever commenced their journey of

shipment Ex-Singapore from M/s. Palmex Enterprises to Mumbai on

the ship OH DAI. I may note that there is a statute called as theCommercial Documents Evidence Act.This Acthas in its Schedule

two parts. As perSection 3of this Act with respect to documents

which are subject matter of Part I of the Schedule, a Court „shall

presume‟ that the documents stated in Part I of the Schedule were soCS(OS) No.922/2004 and connected matters                  Page 16 of 41made and the statements contained therein are accurate. With respect

to documents which are stated in Part II of the Schedule instead of

„shall presume‟ so far as Part I of the Schedule is concerned, it is only

„may presume‟ so far as documents which are stated in Part II of the

Schedule of the Act. The Bill of Lading, Mate‟s Receipt and Tally

Sheets which are proved by the plaintiff will fall under Entries 15 and

18 of Part II of the Schedule of the Act i.e court „may presume‟ with

respect to the validity of these documents. Therefore once Court has

to only „may presume‟ the factum of the Bill of Lading, Mate‟s

Receipt and the Tally Sheets having been issued by the appropriate

authority and the Court may only presume accuracy of the contents of

these three documents, in the facts of the present case this Court

refuses to hold that the Bill of Lading, Mate‟s Receipt and the Tally

Sheets should be taken as accurate with respect to statements

contained therein. In fact if the plaintiff wanted some benefit of the

Part II of the Schedule of the Act, then, the plaintiff should have filed

documents which are subject matters of Entries 1, 3, 4, 5, 7, 14 and 16

of Part II of the Schedule because it is these documents stated in these

entries which will show that goods in fact came within the dock area

or port area or the customs area and coming of the goods in such areasCS(OS) No.922/2004 and connected matters                  Page 17 of 41is a pre-condition and sine qua non before loading the goods on to the

ships and with respect to which loading a Bill of Lading is issued. In

fact, the plaintiff was duty bound to file documents under Entry 19 in

the Part I of the Schedule of the Act which talks of a receipt of

payment of custom duty issued by the custom authorities and which

would have shown that goods which are subject matter of the

insurance policies and the shipment did come into existence because it

is when custom duty is paid to the custom authorities would the goods

have been shown to be entered the custom area in the concerned port

at Singapore.15.          At this stage, it will be necessary to draw cross-reference

to the deposition of Captain Jose Varghese Paloccaran who

specifically deposed that as per the process in the port at Singapore,

lorries/trucks   which    bring    the     goods   from   outside    the

custom/port/dock area to the said custom/port/dock area, then in such

cases passes are issued with respect to the lorries/trucks showing entry

into the custom/port/dock area and admittedly there are no documents

before this Court in the form of those lorry/truck receipts to show that

the goods which are subject matter of the insurance policies ever had

reached the custom/port/dock area in the port at Singapore.CS(OS) No.922/2004 and connected matters                  Page 18 of 4116.          There are also various very curious aspects and which

this Court is forced to note. It is surprising as to why the

plaintiff/buyer has only sued the insurance company but has not sued

the foreign seller M/s. Palmex Enterprises or the shipping company

which owned the ship OH DAI. Counsel for the plaintiff argued that

when the suit was filed no payment was made under the letter of credit

to the foreign seller and therefore the foreign seller was not sued as a

defendant in the suit but it is conceded that the foreign seller was in

fact paid during the pendency of the suit but even thereafter the

plaintiff did not amend the suit to add the foreign seller M/s. Palmex

Enterprises as a defendant in this suit for seeking of the money decree

against M/s. Palmex Enterprises on the ground that M/s. Palmex

Enterprises has received the value of the goods but plaintiff has not

received the goods. No other independent suit has also been filed by

plaintiff against M/s. Palmex Enterprises. In fact besides the plaintiff

ought to have sued the seller M/s. Palmex Enterprises, the plaintiff

should also have sued the shipping company because now it is clear

from the record that shipping company was also part of the fraud and

conspiracy because the subject goods never came to be loaded on the

ship OH DAI. Therefore it is indeed very curious, strange andCS(OS) No.922/2004 and connected matters                  Page 19 of 41suspicious as to why the plaintiff has chosen to file a suit only against

the insurance company and the plaintiff has not sued the seller M/s.

Palmex Enterprises who has received the price of the goods without

delivering the goods and the plaintiff has also not sued the shipping

company who has issued the Bill of Lading and which never shipped

the goods.17.          Reliance placed on behalf of the plaintiff on the

judgments of the Supreme Court is misconceived because in none of

these judgments, the facts existed that with respect to the goods which

were subject matter of the Bill of Lading never came into existence

and that the Bills of Lading were fake/forged. In all the cases cited

before this Court on behalf of the plaintiff the facts show that there

was no quarrel with respect to genuineness of the Bills of Lading and

shipping of the goods under the Bills of Lading in those cases.

Therefore, any observations made by the Supreme Court in the facts of

those cases would not assist the plaintiff because in the facts of the

present case it is seen that the Bill of Lading is fake and false or

putting it in other words in fact no goods were ever loaded on the ship

OH DAI with respect to which the subject Bill of Lading was issued

and which is proved as Ex.PW1/31.CS(OS) No.922/2004 and connected matters                  Page 20 of 4118.          Even the provision ofSection 3of the Indian Bills of

Lading Act read with Preamble of the said Act does not in any manner

assist the plaintiff because the Preamble and the provision ofSection 3of the Indian Bills of Lading Act with respect to bindingness of the

contents of the Bill of Lading as to shipment of the goods is to be

taken as final only between the shipping company and the

consignees/endorsees and which is also held in the judgments of the

Supreme Court referred to by the plaintiff, and it is noted that there is

no provision in theIndian Bills of Lading Actnor any observations in

any judgments of the Supreme Court cited on behalf of the plaintiff

that merely because a Bill of Lading exists, then only for such reason

the Court has to necessarily hold that goods which are subject matter

of the Bill of Lading were in fact loaded on the ship and it must be

held that the journey of shipment of goods commenced and thereby

making such goods as being covered under the insurance policies with

respect to those goods.19.          I would also like to note that in fact reliance placed by the

plaintiff upon the Bill of Lading Ex.PW1/31 does not prove that in

fact goods which were sold by the M/s. Palmex Enterprises being 800

pallets of PVC Resin were in fact loaded on the ship OH DAI becauseCS(OS) No.922/2004 and connected matters                   Page 21 of 41the Bill of Lading begins with the expression "said to contain goods".

Obviously such statements are normally found generally in the Bills of

Lading because a shipping company does not physically inspect

complete details of all the goods which are loaded on the ships which

are written in the Bills of Lading. In fact, it is for this reason that

normally there is bound to exist a survey report of the goods showing

that an approved surveyor has inspected the goods which are subject

matter of the consignment contained in the Bill of Lading and it is

seen that the plaintiff in the present case has not filed and proved any

survey report with respect to the 800 metric pallets of PVC Resin.

Therefore in my opinion mere proving of the Bill of Lading etc,

besides the fact that a Court only has to „may presume‟ the accuracy

of the same, that therefore even if „may presume‟ presumption has to

be drawn in favour of the plaintiff, yet in the absence of a surveyor‟s

report with respect to the contents of the goods loaded on the ship

which are subject matter of the Bill of Lading, it cannot be held that

the 800 metric pallets of PVC Resin which were subject matter of the

insurance policies were loaded on to the ship, were shipped or the

journey/shipment of the goods which were subject matter of the

insurance policies commenced at Singapore from the warehouse of theCS(OS) No.922/2004 and connected matters                 Page 22 of 41M/s. Palmex Enterprises firstly to the port then to the ship and

thereafter in terms of the ship‟s voyage to the Mumbai port.20.          For all the aforesaid reasons, this Court rejects the case of

the plaintiff that goods which are subject matter of the insurance

policies were ever shipped by the seller M/s. Palmex Enterprises or

that the goods ever at all came into existence which were owned by

M/s. Palmex Enterprises and commenced their journey from the

warehouse of the M/s. Palmex Enterprises firstly to the port, then to

the ship and then via the OH DAI ship to Mumbai port.21.          The aforesaid conclusion with respect to the goods which

are subject matter of the insurance policies not coming into existence

and not being shipped also has to be held against the plaintiff because

it is very curious that plaintiff has made no efforts to summon or seek

from the seller M/s. Palmex Enterprises documents with respect to

existence of the subject goods in the warehouse of M/s. Palmex

Enterprises, then as to how those goods were transported to the

port/dock and by which lorries/trucks to the port in Singapore, and as

to where are those documents which are subject matter of Entry 19 of

Part I of the Schedule of the Act or where are those documents whichCS(OS) No.922/2004 and connected matters                   Page 23 of 41are covered in Part II of the Schedule of the Act in the Entries

1,3,4,5,7,14 and 16. This Court therefore has no doubt whatsoever

that a fraud is sought to be played upon the defendant/insurance

company by claiming amounts from the defendant/insurance company

under the subject insurance policies although the goods which are

subject matter of the insurance policies never came into existence and

were never brought into a port in Singapore and were never shipped

much less through the Bill of Lading Ex.PW1/31.22.          Issue nos.2,5,8,10 and 11 are therefore decided in favour

of the defendant/insurance company and against the plaintiff.


Issue no.123.          This issue is with respect to whether plaintiff entered into

a contract with M/s. Palmex Enterprises and this issue is proved in

favour of the plaintiff because of the contract Ex.PW1/1, but in any

case mere fact that a contract was entered into between the plaintiff

and M/s. Palmex Enterprises would not mean that plaintiff will

succeed in this suit against the defendant/insurance company.


Issue No.3CS(OS) No.922/2004 and connected matters                  Page 24 of 4124.          In view of the discussion on the aforesaid issue

nos.2,5,8,10 & 11, it is held that plaintiff is not entitled to succeed in

the suit and the plaintiff is not entitled to a money decree as against

the defendant/insurance company.This issue no.3 is therefore decided against the plaintiff.Issue Nos.4, 6 and 925.          These issues are not pressed on behalf of the

defendant/insurance company.Issue No.726.          In the facts of the present case, it is held that plaintiff

cannot fail because plaintiff has not sued the shipping company or the

seller/consignor inasmuch as liability of the insurance company is

independent of the liability of the seller/consignor and the shipping

company, however as already discussed above the fact that plaintiff

has not sued the shipping company or the seller M/s. Palmex

Enterprises is an aspect to be held against the plaintiff with respect to

the lack of genuineness of the claim of the plaintiff and the fact that

goods which are subject matter of the insurance policies never cameCS(OS) No.922/2004 and connected matters                   Page 25 of 41into existence or never commenced their journey Ex-Singapore to

Mumbai port. Issue no.7 is decided accordingly.Issue Nos. 12 and 1327.          Accordingly, the suit of the plaintiff stands dismissed,

leaving the parties to bear their own costs.FEBRUARY 16, 2018                              VALMIKI J. MEHTA, J
Ne/godara/AK+                         CS (OS) No. 738/1980%                                                   19th February, 2018

CANARA BANK & ANR.                                       ..... Plaintiffs
                Through:                Mr. Anil Airi, Sr. Advocate
                                        with    Mr.   Ravi      Krishan
                                        Chandna,     Ms.        Bindiya
                                        Logawney,     Ms.       Sadhana
                                        Sharma, Ms. Sukanya Lal and
                                        Mr. Satyam, Advocates.
                          Versus

ORIENTAL INSURANCE CO. LTD.                ..... Defendant
                 Through: Ms. Sunita Dutta, Advocate.+                         CS (OS) No. 739/1980CANARA BANK & ANR.                                      ..... Plaintiffs
                Through:                Mr. Anil Airi, Sr. Advocate
                                        with  Mr.    Ravi      Krishan
                                        Chandna,    Ms.        BindiyaCS(OS) No.922/2004 and connected matters                  Page 26 of 41Logawney,     Ms.     Sadhana
                                       Sharma, Ms. Sukanya Lal and
                                       Mr. Satyam, Advocates.
                          Versus

ORIENTAL FIRE & GENERAL INS. CO. LTD.      ..... Defendant
                  Through: Ms. Sunita Dutta, Advocate.


VALMIKI J. MEHTA, J (ORAL)1.           These suits will also stand dismissed as per the

discussion, reasoning and conclusions given while dismissing CS (OS)

No. 922/2004, and which discussion, reasoning and conclusions will

apply mutatis mutandis to the facts of the present cases where the

cover-note has been proved as Ex.P-1 and the Bill of Lading has been

proved as Ex.PW1/3.2.           Goods which were to be supplied in CS (OS) No.

738/1980 were Brass Scrap Honey Grade and goods to be supplied in

CS (OS) No. 739/1990 were Cloves of Zanzibar quality.3.           The amount claimed in CS (OS) No. 738/1980 is

Rs.27,50,000/- and the amount claimed in CS (OS) No. 739/1980 is

Rs.22,00,000/-.CS(OS) No.922/2004 and connected matters                Page 27 of 414.           One another aspect to be noted is that plaintiffs in these

suit is the banker of the buyer and since the insurance policies have

been assigned to the plaintiff bank, therefore, it is the plaintiff bank

which is suing for recovery of amounts under the insurance

policies/cover notes.5.           The issues framed in CS (OS) No. 738/1980 and CS (OS)

No. 739/1980 on 31.7.1989 are reproduced as under:-"Issues in CS (OS) No. 738/19801. Whether Shri S.S. Bedi, who has signed the plaint was not aware of
             the facts of the case? OPP2. Whether the plaintiff No.2 is a registered company? OPP3. Whether plaintiff No.2 is carrying on business of export and
             import?         OPP4. Whether the plaintiff No.2 entered into a contract with M/s Palmex
             Enterprises for the import of Brass Scrap "Honey Grade" as set out
             in para 4 of the plaint?       OPP5. Whether the plaintiff No.1 established a letter of credit in favour of
             the plaintiff No.2 for the sum of US Dollars 3,05,500 equivalent to
             Rs.25 lakhs as set out in para 6 of the plaint? OPP6. Whether the goods in question were loaded on board the vessel
             Ohdai for carriage to Bombay as pleaded in para 9 of the plaint?
             OPP7. Whether the goods were lost on account of sinking of ship Ohdai?
             OPP8. Whether the policy of insurance was not in full force and effect
             when the goods allegedly became total loss on account of the
             sinking of the vessel Ohdai? OPD9. Whether insurance policy is not valid for the reasons set out in the
             preliminary objection No.1? OPD10. Whether the plaintiff‟s claim is not maintainable because of the
             alleged fact that the plaintiffs knew or ought to have known that
             Shri Bhagwan Singh Ahjula was a person of doubtful integrity and
             President of the company owning the vessel Ohdai and since the
             contract of insurance is a contract of good faith, the insurance
             policy would be deemed to have been frustrated? OPDCS(OS) No.922/2004 and connected matters                         Page 28 of 4111. Whether the ship Ohdai was sunk in pursuance to conspiracy, fraud
             or crime as stated in para 11 of the written statement, if so what are
             its effect? OPD12. Whether the acceptance by the defendant of additional premium to
             cover shipment of an old ship was not sufficient compliance with
             the terms of the cover note issued by defendant No.1? OPP13. To what amount, if any, is the plaintiff entitled? OPP14. Whether the plaintiff is entitled to interest and if so, at what rate?
             OPP15. Relief.Issues in CS (OS) No. 739/19801. Whether Shri S.S. Bedi, who has signed the plaint was not aware
              of the facts of the case? OPP2. Whether the plaintiff No.2 is a registered company? OPP3. Whether plaintiff No.2 is carrying on business of export and
              import? OPP4. Whether the plaintiff No.2 entered into a contract with M/s Bentrex
              & Co. for the import of cloves as set out in para 4 of the plaint?
              OPP5. Whether the plaintiff No.1 established a letter of credit in favour of
              the plaintiff No.2 for the sum of Rs.20 lacs as set out in para 6 of
              the plaint?      OPP6. Whether the goods in question were loaded on board the vessel
              Ohdai for carriage to Bombay as pleaded in para 9 of the plaint?
              OPP7. Whether the goods were lost on account of sinking of ship Ohdai?
              OPP8. Whether the policy of insurance was not in full force and effect
              when the goods allegedly became total loss on account of the
              sinking of the vessel Ohdai? OPD9. Whether insurance policy is not valid for the reasons set out in
              the preliminary objection No.1? OPD10. Whether the plaintiff‟s claim is not maintainable because of the
              alleged fact that the plaintiffs knew or ought to have known that
              Shri Bhagwan Singh Ahjula was a person of doubtful integrity and
              President of the company owning the vessel Ohdai and since the
              contract of insurance is a contract of good faith, the insurance
              policy would be deemed to have been frustrated? OPD11. Whether the ship Ohdai was sunk in pursuance to conspiracy, fraud
              or crime as stated in para 11 of the written statement, if so what are
              its effect?      OPD12. Whether the acceptance by the defendant of additional premium to
              cover shipment of an old ship was not sufficient compliance with
              the terms of the cover note issued by defendant No.1? OPP13. To what amount, if any, is the plaintiff entitled? OPPCS(OS) No.922/2004 and connected matters                           Page 29 of 4114. Whether the plaintiff is entitled to interest and if so, at what rate?
             OPP15. Relief."Issue Nos. 1 to 5, 8 to 10 and 126.           These issues are not opposed on behalf of the

defendant/insurance company and therefore these issues are decided in

favour of the plaintiffs subject to the clarification qua issue no.8 that

decision of this issue in favour of the plaintiffs does not mean that the

defendant/insurance company is agreeing to its liability under the

insurance policy and issue no.8 being decided in favour of plaintiffs is

that the loss if it would have occurred was within the duration of

validity of the insurance policy. These issues are conceded for being

decided in favour of the plaintiffs as defendant/insurance company has

succeeded as regards issue nos. 6 and 7 and thus suit has to be

dismissed.Issue Nos. 6 and 77.           These issues would stand decided against the plaintiffs by

adopting the reasoning contained in the judgment in the case of CS

(OS) No. 922/2004, inasmuch as, identical issues are involved and

same arguments were urged on behalf of the plaintiffs in these suitsCS(OS) No.922/2004 and connected matters                          Page 30 of 41also. It is therefore held that subject goods were not loaded on to the

ships and were not lost on account of sinking of the ships.Issue No. 118.             There is no finding required to be returned so far as this

issue no. 11 is concerned, inasmuch as, while deciding issue nos. 6

and 7 it has already been held that the goods which are subject matter

of the policies never came into existence and the journey of shipment

of the goods did not commence i.e once no goods which were subject

matter of the policies came into existence or commenced their journey

on shipment, the insurance policies did not come into existence and

hence sinking of the ships did not result in loss of goods for the

defendant/insurance company to be liable under the subject insurance

policies/cover notes.Issue Nos. 13 to 159.             Adopting the discussions and reasoning as contained in

the judgment in CS (OS) No. 922/2004, and therefore having decided

issue nos. 6 and 7 in favour of the defendant/insurance company these

issue nos. 13 to 15 are decided against the plaintiffs and the plaintiffs

are held not entitled to succeed by getting the money decrees asCS(OS) No.922/2004 and connected matters                   Page 31 of 41prayed for in the suits. The suits are therefore dismissed, leaving the

parties to bear their own costs.FEBRUARY 19, 2018                            VALMIKI J. MEHTA, J
godara/AK/Ne+                         CS (OS) No. 1408/1979%                                                  19th February, 2018

ELEPHANTA OIL VANASPATI INDUSTRIES LTD.                     .... Plaintiff
                    Through:       Ms. Sangeeta Chandra, Advocate.
                                   VersusTHE NEW INDIA ASSURANCE CO. LTD. & ANR. .... Defendants
                    Through:       Ms. Sunita Dutta, Advocate.VALMIKI J. MEHTA, J (ORAL)1.           This suit is also dismissed by adopting the discussion,

reasoning and conclusions given while dismissing CS (OS) No.

922/2004 and which discussion, reasoning and conclusions will apply

mutatis mutandis to the facts of the present case where the Bill of

Lading has been proved as Ex.PW1/5, Mate‟s Receipt has been proved

as Ex.PW1/4 and Weighment Certificate has been proved as

Ex.PW1/3.CS(OS) No.922/2004 and connected matters                  Page 32 of 412.           In this suit the goods which were to be supplied by the

foreign seller were Cloves of Zanzibar quality. The amount claimed

in the suit is Rs.2,77,44,026.68/-.3.           One another aspect to be noted is that plaintiff/company

has gone into liquidation and now is being represented through the

Official Liquidator attached to the High Court of Delhi.4.           The issues framed in the present suit are as under:-"1.    Has defendant no.2 been joined as a defendant within time, if not,
             to what effect?2.     Whether the plaintiff agreed to purchase and the said Bentrex & Co
             agreed to sell to the plaintiff 300 metric Tons of Cloves (Zanzibar
             Quality) as alleged in paragraph 3 of the plaint?3.     Whether the plaintiff opened an irrevocable letter of credit in
             favour of the sellers through the Punjab & Sind Bank, the
             predecessor in interest of the 2nd Defendant for US $ 22,500 as
             alleged in paragraph 4 of the plaint?4.     Whether any goods were unconditionally appropriated to the
             contract in favour of the plaintiff by the sellers as alleged in
             paragraph 5 of the plaint?5.     Whether the Uni Q marine Services of Singapore issued a weight
             certificate dated 6th August 1979 containing the statements alleged
             in paragraph 5 of the plaint?6.     Whether cloves packed in 6000 bags bearing No.Victor Bombay
             16000 were duly loaded and shipped on board the SS Averilla at
             Singapore as alleged in paragraph 6 and 7 of the plaint?7.     Whether there was a contract of a-ffreighment contained in a bill of
             lading bearing No.AB-21 dated 7th August 1979 issued by the
             Wellway Lines as alleged in paragraph 7 of the plaint?8.     Whether the plaintiff was the buyer of any goods or was the owner
             of the Cloves of the value of Rs.2,74,19,500 or any other value as
             alleged in paragraph 8 of the plaint?9.     Are the pleas embodied in the Issues No.4 to 10 available and open
             to the defendants?CS(OS) No.922/2004 and connected matters                        Page 33 of 4110.    Whether the Insurance Policy is void ab initio and unenforceable
             for the reasons alleged in para 4 of the written statement of the
             defendant?11.    Whether the plaintiff was a privy or a party to a fraud intended and
             calculated to fraudulently obtain an insurance policy and/or to
             obtain fraudulently a claim thereunder as alleged in paragraph 4(a)
             of the written statement of defendant no.1?12.    Whether the policy of Insurance is liable to be avoided by the 1st
             defendant as alleged in paragraphs 4(b) and 4(c) of the written
             statement of defendant No.1?13.    Whether the transactions in suit were calculated to cause injury to
             the Ist Defendant and/or make unlawful gains for the plaintiff and
             are therefore uneforceable, null and void as alleged in paragraph
             4(d) of the written statement of defendant No.1?14.    Whether the policy of Insurance is void on the ground of mistake
             as alleged in paragraph 4(e) of the written statement of defendant
             No.1?15.    Whether the suit transactions are a result of a conspiracy between
             the plaintiff and one Mr. C.S. Aujla or are founded in illegalities as
             alleged in paragraph 7 and 11 of the written statement of defendant
             no.1?16.    Whether the plaintiffs have forfeited their rights to recover any
             money or any liquidated sum under the Insurance Policy by reasons
             of the allegations made in paragraph 7 of the written statement of
             defendant No.1?17.    Whether the Insurance Policy is void for the reasons alleged in
             paragraph 7 of the written statement of defendant No.1?18.    Whether the plaintiff had interest in the goods or have insurable
             interest as alleged in paragraphs 9 and 18 of the plaint?19.    Whether the said goods became a total loss by reason of the perils
             insured against as alleged in paragraph 9 of the plaint?20.    Whether the replacement import licences for the consignment of
             cloves alleged to be lost were available or could have been
             obtained by the plaintiff as alleged in paragraph 10 of the written
             statement?21.        Whether the plaintiff did not behave as a prudent person as
             alleged in paragraph 16 of the written statement of defendant No.1?22.    Whether the documents relied upon by the plaintiff have
             discrepancies and/or are vitiated as alleged in paragraph 16 of the
             written statement of defendant No.1?23.    Whether the plaintiffs are entitled to recover a sum of
             Rs.2,74,19,500/- or any other sum under the Insurance Policy as
             alleged in paragraphs 15 and 16 of the plaint?24.     What is the effect of the claim made by the second defendant in its
             written statement on its behalf?CS(OS) No.922/2004 and connected matters                          Page 34 of 4125.      Whether the plaintiff has not paid any consideration in respect of
               the purported goods and has refused to make payment under the
               letter of credit as alleged in paragraph 22 of the written statement
               of defendant No.1. If, so, to what effect?26.      Whether the plaintiff is entitled to receive any amount from
               defendant No.1?27.      Can now defendant No.1 raise the pleas embodied in the Issues
               No.11 to 18 in view of the objections raised by the plaintiff in
               preliminary objection No.1 in the replication?28.      Is the plaint vague and indefinite as alleged by the defendants in
               preliminary objections No.3 in the written statement, if so, to what
               effect?29.      Relief."Issue Nos. 1, 11 to 13, 15 to 17, 20, 21, 22, 25, 27 and 285.             These issues are not pressed on behalf of defendant no.

1/insurance company as it has otherwise been held under the relevant

issues that the goods which were the subject matter of the policy/cover

note were never supplied and hence there is no liability of the

defendant no.1/insurance company under the subject insurance

policy/cover note.Issue No. 26.             On behalf of defendant no. 2 it is not disputed that there

was a contract entered into by the plaintiff company with M/s. Bentrex

and Company. This issue is decided accordingly.Issue No. 3.CS(OS) No.922/2004 and connected matters                          Page 35 of 417.           Counsel for defendant no. 1/insurance company does not

dispute that plaintiff's bank had opened a letter of credit in favour of

the sellers, and this issue is therefore decided accordingly.Issue Nos. 4, to 10, 14, 17, 18 and 198.           These issues are decided in favour of the defendant no.

1/insurance company by holding that the goods which were subject

matter of the cover note/insurance policies did not come into existence

inasmuch as mere existence of the Bill of Lading or Mate‟s Receipt is

held to be no proof of factum of actual loading/shipment of goods and

as already discussed in detail while deciding CS (OS) No. 922/2004. I

may note that counsel for the plaintiff had relied upon the Weighment

Certificate proved as Ex.PW1/3 to argue that loading on the ship did

take place, however it is seen that this Weighment Certificate is not a

Weighment Certificate after the goods entered into port/dock area and

that this Weighment Certificate is a certificate only of the goods in

warehouse of the seller M/s. Bentrex and Company. Therefore this

Weighment Certificate will not help the plaintiff to prove that the

goods which are subject matter of the insurance policies entered into

the port/dock area or commenced their shipment/journey in terms of

the Bill of Lading.CS(OS) No.922/2004 and connected matters                    Page 36 of 419.           Accordingly, these issues are decided in favour of the

defendant no. 1/insurance company holding that though there was a

cover note/insurance policy, however since the goods which are

subject matter of the cover note/insurance policies were never loaded

on to the ship MV AVERILLA and the goods never entered into the

port/dock area at Singapore so as to be loaded on to the ship MV

AVERILLA and that therefore the insurance policies do not come into

operation because the goods which are subject matter of the policies

never commenced their shipment on the ship MV AVERILLA.Issue No. 2410.          Since the second defendant has not contested the suit and

in fact no relief is prayed against the defendant no.2. This issue is not

called for decision.Issue Nos. 23, 26 and 2911.          In view of the detailed discussion given in CS (OS) No.

922/2004 and which will mutatis mutandis apply in this case, and the

according decision on aforesaid issues, the plaintiff is not entitled to

any relief of grant of money decree in its favour and against the

defendant no. 1/insurance company.CS(OS) No.922/2004 and connected matters                  Page 37 of 4112.          The suit is therefore dismissed, leaving the parties to bear

their own costs.FEBRUARY 19, 2018                           VALMIKI J. MEHTA, J
godara/AK/Ne+                            CS (OS) No. 1409/1979%                                                  19th February, 2018ELEPHANTA OIL VANASPATI INDUSTRIES LTD. .... Plaintiff
                 Through: Ms. Sangeeta Chandra, Advocate.Versus

THE NEW INDIA ASSURANCE CO. LTD. & ANR. .... Defendants
                  Through: Ms. Sunita Dutta, Advocate.VALMIKI J. MEHTA, J (ORAL)1.           I am informed by the counsel for the plaintiff that exhibit

numbers to the documents in this suit are the same exhibit numbers as

given in CS (OS) No. 1408/1979 and therefore exhibit numbers are

not being stated herein.2.           Goods which were to be supplied by the foreign seller in

this suit were Cloves of Zanzibar quality. The amount claimed in the

suit is Rs.2,11,72,660.27.CS(OS) No.922/2004 and connected matters                  Page 38 of 413.           The issues framed in the present suit are reproduced as

under:-"1.    Has defendant no.2 been joined as a defendant within time, if not,
             to what effect?2.     Whether the plaintiff agreed to purchase and the said Bentrex & Co
             agreed to sell to the plaintiff 300 metric Tons of Cloves (Zanzibar
             Quality) as alleged in paragraph 3 of the plaint?3.     Whether any goods were unconditionally appropriated to the
             contract in favour of the plaintiff by the sellers as alleged in
             paragraph 5 of the plaint?4.     Whether the Uni Q marine Services of Singapore issued a weight
             certificate dated 6th August 1979 containing the statements alleged
             in paragraph 5 of the plaint?5.     Whether cloves packed in 6000 bags bearing No.Victor Bombay
             16000 were duly loaded and shipped on board the SS Averilla at
             Singapore as alleged in paragraph 6 and 7 of the plaint?6.     Whether there was a contract of affreighment contained in a bill of
             lading bearing No.AB-21 dated 7th August 1979 issued by the
             Wellway Lines as alleged in paragraph 7 of the plaint?7.     Whether the plaintiff was the buyer of any goods or was the owner
             of the Cloves of the value of Rs.2,74,19,500 or any other value as
             alleged in paragraph 8 of the plaint?8.     Are the pleas embodied in the Issues No.4 to 10 available and open
             to the defendants?9.     Whether the Insurance Policy is void ab initio and unenforceable
             for the reasons alleged in para 4 of the written statement of the
             defendant?10.    Whether the plaintiff was a privy or a party to a fraud intended and
             calculated to fraudulently obtain an insurance policy and/or to
             obtain fraudulently a claim thereunder as alleged in paragraph 4(a)
             of the written statement of defendant no.1?11.    Whether the policy of Insurance is liable to be avoided by the 1st
             defendant as alleged in paragraphs 4(b) and 4(c) of the written
             statement of defendant No.1?12.    Whether the transactions in suit were calculated to cause injury to
             the Ist Defendant and/or make unlawful gains for the plaintiff and
             are therefore uneforceable, null and void as alleged in paragraph
             4(d) of the written statement of defendant No.1?13.    Whether the policy of Insurance is void on the ground of mistake
             as alleged in paragraph 49e) of the written statement of defendant
             No.1?14.    Whether the suit transactions are a result of a conspiracy between
             the plaintiff and one Mr. C.S. Aujla or are founded in illegalities asCS(OS) No.922/2004 and connected matters                          Page 39 of 41alleged in paragraph 7 and 11 of the written statement of defendant
             no.1?15.    Whether the plaintiffs have forfeited their rights to recover any
             money or any liquidated sum under the Insurance Policy by reasons
             of the allegations made in paragraph 7 of the written statement of
             defendant No.1?16.    Whether the Insurance Policy is void for the reasons alleged in
             paragraph 7 of the written statement of defendant No.1?17.    Whether the plaintiff had interest in the goods or have insurable
             interest as alleged in paragraphs 9 and 18 of the plaint?18.    Whether the said goods became a total loss by reason of the perils
             insured against as alleged in paragraph 9 of the plaint?19.    Whether the replacement import licences for the consignment of
             cloves alleged to be lost were available or could have been
             obtained by the plaintiff as alleged in paragraph 10 of the written
             statement?20.    Whether the plaintiff did not behave as a prudent person as alleged
             in paragraph 16 of the written statement of defendant No.1?21.    Whether the documents relied upon by the plaintiff have
             discrepancies and/or are vitiated as alleged in paragraph 16 of the
             written statement of defendant No.1?22.    Whether the plaintiffs are entitled to recover a sum of
             Rs.2,09,25,000/- or any other sum under the Insurance Policy as
             alleged in paragraphs 15 and 16 of the plaint?23.     What is the effect of the claim made by the second defendant in its
             written statement on its behalf?24.    Whether the plaintiff has not paid any consideration in respect of
             the purported goods and has refused to make payment under the
             letter of credit as alleged in paragraph 22 of the written statement
             of defendant No.1. If, so, to what effect?25.    Whether the plaintiff is entitled to receive any amount from
             defendant No.1?26.    Can now defendant No.1 raise the pleas embodied in the Issues
             No.11 to 18 in view of the objections raised by the plaintiff in
             preliminary objection No.1 in the replication?27.    Is the plaint vague and indefinite as alleged by the defendants in
             preliminary objections No.3 in the written statement, if so, to what
             effect?28.    Relief."4.           Since issues framed in this suit are identical to the issues

in CS (OS) No. 1408/1979 (except that the issues framed in this suitCS(OS) No.922/2004 and connected matters                        Page 40 of 41are one number less because of an additional issue no.3 framed in CS

(OS) No. 1408/1979) therefore the discussion of issues in CS (OS)

No. 1408/1979 are adopted in this suit. This suit is also therefore

dismissed, leaving the parties to bear their own costs.FEBRUARY 19, 2018                           VALMIKI J. MEHTA, J
godara/AK/NeCS(OS) No.922/2004 and connected matters                  Page 41 of 41