Back
2022 Supreme(Guj) 436
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A. P. THAKER, J.
CS JARDOSH & 4 other(s) – Appellant
Versus
SOMABHAI RANCHHODBHAI PATEL – Respondent
R/FIRST APPEAL NO. 2317 of 1998 With CIVIL APPLICATION NO. 2 of 2000
Decided on : 19-04-2022
Advocate Appeared:
For the Appellant : MR HARSHEEL D SHUKLA, MS PJ DAVAWALA, MS RV ACHARYA
For the Respondent: MR MA PAREKH, MR.SUNIL B DAVE
Headnote:(A) Central Excises and Salt Act, 1944 - Section 40 - Civil Suit maintainability - Appeal against judgment and decree of Trial Court declaring show cause notice issued by defendants illegal and time-barred and awarding damages of Rs.9,33,378.37/- with 6% interest - Court analyzed the legality of the notice and maintained that it should be deemed valid as defendants acted within their jurisdiction - Importance of procedural compliance and evidence evaluation reiterated. (Paras 18 to 41)
(B) Civil Procedure Code - Section 80 - Notice prior to suit - Plaintiff issued a notice under Section 80 before filing the suit, satisfying the necessary legal requirements for maintainability. (Para 39.1)
(C) Evidence and Burden of Proof - Plaintiff must establish valuation of damages and merits of claims made; mere assertions are insufficient for relief. (Paras 39.1, 40)
| Table of Content |
|---|
| 1. factual background of the case (Para 1 , 2 , 3) |
| 2. defendants' arguments against suit and notice (Para 4) |
| 3. plaintiff's case and background (Para 5 , 6) |
| 4. trial court's issues framed (Para 8 , 9) |
| 5. court's determination of issues (Para 13 , 14) |
| 6. evaluation of evidence and facts (Para 19 , 24 , 25 , 26) |
| 7. trial court's errors and misapplication of law (Para 39 , 40) |
| 8. final order and dismissal of the suit (Para 43) |
JUDGMENT :
A.P.THAKER, J.
1. This first appeal has been preferred by the original defendants against the judgment and decree passed by the learned Civil Judge, Senior Division, Anand, dated 31.12.1997 in Special Civil Suit No.67 of 1989 (Old Civil Suit no.68 of 1982).
2. By the impugned judgment and decree, the Trial Court has held that the show cause notice issued by the defendants to the plaintiff is illegal and time barred and has also passed monitory decree to the tune of Rs.9,33,378.37/- along with interest @ 6% from the date of suit i.e. from 16.03.1982 with the cost of the suit.
3. The appellants are defendants and the respondent is the plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the status assigned to them before the Trial Court.
4. It is contended by the defendants that the CENTRAL EXCISES AND SALT ACT , 1944 (hereinafter referred to as “the Act”)is self contained code and no civil suit is maintainable and no decree could have been passed against the defendants-appellants. It is also averred that the Trial Court has not appreciated the oral and documentary evidence produced by the defendants and has not appreciated the facts that the goods which were checked were handed over to the plaintiff under the suparatnama and therefore, the goods were in physical possession of the plaintiff. It is contended that the plaintiff could not have claimed any damages against the defendants. It is also contended that while checking the goods appropriate panchnama was prepared in presence of the plaintiff’s son. It is also contended that the defendants were not liable for the incident of fire which took place between 21.10.1979 and 23.10.1979. It is also contended that the Trial Court has failed to appreciate that the acquittal in Criminal Court has no relevance in a Civil Proceedings.
4.1. It is contended that the Trial Court has erred in holding that the paper panchnama at exhibit 149 was made in the absence of the plaintiff and observing that the defendants have failed to produce important documents and evidence regarding inquiry and investigation. It is further contended that the Trial Court has materially erred in accepting oral version of the plaintiff about the value of the goods and has also erred in holding that the defendants have not denied or raised the dispute regarding the value of the goods.
4.2. It is also contended that the statements recorded by the defendants are admissible under the CUSTOMS ACT and it is binding up on the plaintiff and other witnesses, which fact has not been properly appreciated by the learned Trial Court. It is also contended that the show cause notice issued to the plaintiff was adjudicated upon and the plaintiff had taken steps to file appeal before the appropriate forum wherein the plaintiff also lost the matter. It is contended that in view of this, the Trial Court has materially erred in holding that the show cause notice was not issued within a period of six months and held it to be time barred and illegal. It is also contended that the Trial Court has committed error in observing that there was malafide intentions on the part of the defendants as Section 40 of the Act is applicable.
4.3. On all these grounds, it is prayed by the defendants to set aside the impugned judgment and decree passed by the learned Civil Judge, Senior Division, Anand, in the aforesaid suit and to dismiss the suit of
