IMPORTANT POINT
The plaintiff's failure to prove their case resulted in the dismissal of the suit, highlighting the importance of the burden of proof in legal proceedings.

JUDGMENT :

(Ravi Krishan Kapur, J.) :

1. This is a suit seeking arrest of the vessel “ESPERNZA III” and a decree directing the defendant to deliver 263 TABP coils of prime quality tin mill black plates in coils weighing 2,510,173 kgs. The invoice value of the goods was USD 1703527.52.

2. Briefly, the plaintiff imported the goods by carriage on the vessel. Upon receipt of the goods, the defendant issued a bill of lading dated 28 December, 1996 and agreed to carry the goods to Kolkata and to deliver the same to the plaintiff. The vessel arrived at Sand Heads on 16 February 1996 and was scheduled to arrive at the port of discharge i.e. Khidderpore Dock on 28 February 1996. Although a bill of entry for warehousing was prepared by the plaintiff on 16 February 1996 and the goods were to be delivered on 17 February 1996, the defendant failed and was unable to deliver the goods on the ground that the vessel was detained at the docks in view of an ongoing strike by the Calcutta Port Pilots.

3. In this background, alleging wrongful detention and breach of agreement, the plaintiff instituted the present suit seeking arrest of the vessel with an alternative claim for specific delivery of the goods. The relevant portion of the plaint reads as follows:

“11. The defendants are wrongly contending that due to strike by the Calcutta Port Pilots the said Ocean Vessel Esperanza III has been “detained” and the plaintiff will have to pay to the defendants “detention charges” yet to be ascertained.

12. The plaintiff states that neither in law nor in fact the said Ocean Vessel has been detained and as such the question of payment of any detention charges by the plaintiff does not arise. The purported claims of the defendants by way of “detention charges” are wrongful, untenable and the defendants are not justified in withholding delivery of the said goods covered by the said Bill of Lading. Such withholding delivery of the plaintiff’s goods is in breach of the agreement and breach of duty as common carrier and/or public carrier and the defendants are liable to pay all losses and damages suffered and that might be suffered by the plaintiff as a result thereof.

13. The plaintiff is entitled to and claims delivery of the said goods forthwith and claims damages for the wrongful withholding of delivery of goods.”

4. Upon filing of this suit, the plaintiff had filed an interlocutory application. By an order dated 28 February 1996, read with the order dated 29 February 1996, the defendant was directed to issue a delivery order for the goods upon the plaintiff furnishing security of Rs. 68 lacs alongwith interest which was to be deposited with the Registrar, Original Side to secure the claim of the defendant. Pursuant to interim orders, the plaintiff duly furnished a bank guarantee for a sum of Rs.68 lacs, and the defendant issued a delivery order to the plaintiff for the goods.

5. Thereafter, the parties completed their pleadings. By an order dated 3 October 2012, the defendant also without prejudice to their rights, amended the written statement to include a counter claim and also sought encashment of the bank guarantee.

6. Pursuant to orders of Court, a Commissioner was appointed for recording of evidence. At the meeting held before the Commission on 10 January 2017, the plaintiff unconditionally submitted that they did not want to adduce any evidence nor want to proceed any further with its claim. The relevant portion of the Minutes of the Commissioner dated 10 January 2017 is as follows:

“Mr. Sukrit Mukherjee submitted that the plaintiff does not wish to adduce any evidence as the plaintiff does not wish to proceed with its claim.

7. The defendant led evidence by examining two witnesses one being Gopal Krishna Bhattacharjee (DW1), working at the relevant point of time with Oceanic Shipping Agencies Pvt. Ltd., who were agents of Cargo Levant and the other being, Dilipkumar Chatterjee (DW2) working with the P & I Services Pvt. Ltd. During the course of exami