MAHINDRA EXPORTS LTD Vs. M V REEF UNGUIA

JUDGEMENT

(1.) THIS appeal impugnes the order passed by the learned Single Judge allowing the notice of motion taken out by the Ship Arrested for vacating the order. By the impugned order the learned Judge vacated the order and warrant of arrest issued against defendant No.1 vessel and the vessel was allowed to be released forthwith.

(2.) THE appeal is filed by the original plaintiffs. We have heard the learned counsel for the plaintiffs-appellants as also the learned counsel for the respondent No.1 at great length. The learned Counsel for the appellants contended that once it is shown that the carrier wrongfully released the goods without original bills of lading, the plaintiffs have the cause of action to proceed against the carrier and in the submission of the Ld. Counsel for the appellants such a cause was amply made out in the plaint. The ld. Counsel also contended that several issues regarding the alleged fraud as well as receipt or absence thereof, regarding several documents relied upon by the defendants, could not have been determined at the very threshold and must necessarily be left to be trial whereas the learned Judge, on the basis of the documents produced and the averments made in the affidavit, had determined the issue against the plaintiffs holding that the plaintiffs have not come to the court disclosing all relevant facts and is guilty of suppression.

(3.) WITH the assistance of the learned counsel for both sides, we have gone through several documents as well as the pleadings and the assertions in the affidavit of the rival parties and upon reading of the same we are of the view that the plaintiffs were knowing the issuance of the second set of the bill of lading on the strength of which the goods were released. We must mention that the learned counsel for the appellants seriously disputed the fact that the fixture note on which reliance is placed, refers to the ship and the goods in question. According to the ld. Counsel for the appellants-plaintiffs, the plaintiffs have not received the fixture note and the fixture note received by the plaintiffs is in respect of the different ship.