Wallace Pharmaceuticals Private Limited v. M.v. Bunga Bidara & Others

1 The brief facts of the case necessary to consider the rival contentions of the plaintiff and defendant nos.1 & 2 are required to be set down.

2 The plaintiff has instituted a suit for the recovery of an amount of U.S. Dollars 154,000 together with interest at the rate of 8% per annum from the institution of the suit until payment/realization. The amount which is claimed in the suit represents the CIF value of 40 Drums said to contain 1000 BOU Lincomycin HCL BP (Oral Grade) weighing about 1184 kg. (the consignment) alleged to have been short-landed. The case of the plaintiff is that in February 2001, the plaintiff imported from Shanghai to Mumbai the consignment under an invoice dated 16th February, 2001 of the shippers M/s.Sino Pharmaceuticals (HK) Ltd. (the Shipper). The consignment was entrusted by the shipper to the Third Defendant at Shanghai. The Third Defendant issued a Bill of Lading dated 22nd February, 2001 acknowledging receipt of the consignment on board a vessel by the name of m.v.BUNGA KEART Voyage 013. The Bill of Lading reflected the port of loading as Shanghai and the port of discharge as Mumbai. The delivery agent named in the Bill of Lading issued by the Third Defendant was Liberty Marine Syndicate Private Ltd. whose business address is shown at a location in Sakinaka, Andheri (East), Mumbai. The case of the plaintiff is that the Third Defendant instead of shipping the container containing the consignment on board the vessel m.v BUNGA KEART, decided to ship the consignment on board the First Defendant vessel. The consignment was stated to have been carried on board the First Defendant vessel from shanghai to Singapore where the First Defendant terminated her voyage. The consignment was thereafter transshipped on board another vessel m.v.KOTA RAJA, stated to have been owned and/or chartered and/or operated by the Fourth Defendant. M.V. KOTA RAJA arrived at Mumbai on 14th March, 2001. The consignment of the plaintiff is stated as having appeared at Item No.27 of the Import General Manifest filed by the vessel with distinct identification marks. However, the clearing agents of the plaintiff were informed that upon de-stuffing, the consignment of the plaintiff was out turned as short-landed, as a result of which the consignment was not delivered to the plaintiff. According to the plaintiff, the Mumbai Port Trust has issued a Landing Remark Certificate dated 1st June, 2001 certifying that the consignment did not appear in the Landing Remark sheet. The Port Trust is also stated to have issued a short-landing certificate dated 14th June, 2001 certifying that the entire consignment of 40 Drums had been out turned as short-landed. According to the plaintiffs, the agents of the Third Defendant had informed them that the consignment, to facilitate carriage, had been stuffed into a container bearing No.CRXU 2968674 and after sealing had been handed over by the Third Defendant to the Fourth Defendant for carriage from Shanghai to Mumbai and that the consignment must have been missing after it was handed over to the Fourth Defendant. It is the case of the plaintiff that they called on defendant No.3 to settle the claim. They were informed that they were investigating the matter. They have already lodged claim on agents of defendant No.4. Suffice it to say, in the meantime, defendant no.1 vessel sailed into the port of Mumbai. The plaintiff has brought this action in rem against the First Defendant vessel, the vessel in which the said container was stated to have been shipped. The second Defendant as owners of the First Defendant have also been impleaded as parties to the suit. Apart from these two Defendants, the Third Defendant has been impleaded as a party together with Pacific International Lines (Pte) Ltd. to whom the Third Defendant is alleged to have entrusted the consignment for carriage from Shanghai to Mumbai.

3 The jurisdiction of this Court in rem was invoked upon the arrest of the First Defendant vessel which was effected in pursuance of an order dated 4th March, 2002 passed by this court. On 5th March, 2002, the owners of the First Defendant vessel moved the Court for the release of the vessel and the vessel came to be released, upon the owners depositing security in the amount of Rs.77 lakhs to the satisfaction of the Prothonotary & Senior Master. The Owners furnished security without prejudice to the rights and contentions of the 1st Defendant Vessel and its owners and with all rights fully reserved.

4 On behalf of defendant nos.1 & 2, Notice of Motion No.2009 of 2002 was taken out where it was principally contended that there was no privity of contract between the plaintiffs and defendant nos.1 & 2 and therefore, defendant nos.1 & 2 were never liable for contract. It was further contended that at no point of time were the goods of the description described by the plaintiff carried by any of their ships and hence Defendant Nos.1 and 2 can never be liable in tort. It was contended that to maintain an action in rem, plaintiffs have to show that they have cause of action against defendant nos.1 & 2 whom they can sue in a court of competent jurisdiction. Only in that case an admiralty action of rem lie for this Court to exercise jurisdiction.

5 The Honble Court, while disposing of the said Notice of Motion, in its judgment and order dated 13.2.2003 concluded as under:-

4. .................... In the instant case, admittedly the goods of description as contained in the bill of lading issued by defendant No.4 to Defendant No.3 were not available in the container when destuffed. Prima facie nothing has been shown to show that there were the goods of plaintiff. On the contrary, on destuffing the container it was found that the said goods as contained in the earlier bill of lading issued by defendant No.3 were not destuffed from the container of vessel brought by vessel Raja Kota. The bill of lading for vessel Bunga Keart produced by the plaintiff was not issued by Defendant nos.1 and 2 or Defendant No.4 but by Defendant No.3. There is nothing on record to show that Defendant No.3 was the agent of Defendant No.1 and Defendant No.2. On the contrary, the evidence will show that Defendant No.3 shipped goods through Defendant No.4 but not the plaintiffs goods.

6 In the instant case, there is no privity of contract between plaintiff on the one hand and defendant nos.1 and 2 on the other. At the highest plaintiffs claim would be action in tort. To maintain an action in tort, it was incumbent upon plaintiffs to show that their consignment was shipped on the vessel defendant No.1 or any other vessel belonging to Defendant No.2 and was short landed. This prima facie defendants have been unable to show by any documentary evidence. In the matter of an admiralty action to arrest a ship, it cannot be mere averments that would support the action. It must be supported by documentary evidence to show that the goods were in fact shipped to maintain action against the vessel. In my opinion, plaintiffs have been unable to show that there is prima facie any cause of action against defendant nos.1 and 2. In the light of that, defendant Nos.1 and 2 would be entitled to recall of the order passed by this court on 4.3.2002. In the light of the above, exparte order dated 4.3.2002 is recalled. Motion made absolute in terms of prayer clause (a) as also prayer clause (b). Motion disposed of accordingly."

6 The plaintiff carried this in appeal and the Division Bench was pleased to dismiss the appeal. The Honble Appeal Court in its detailed judgment and order dated 10.4.2003 observed and held as under:

6.....................The learned counsel submits that the liability of the Defendant No.2 is also in tort because they owed duty to take care in transporting the consignment of the Plaintiff, which they have failed to perform. Therefore, they are liable in tort to pay damages to the Plaintiff for loss of the consignment.......

7.....................Thus though it appears from the record that the consignment of the plaintiff was received by Defendant No.3, it appears that it was not entrusted by Defendant No.3 to Defendant No.4 and consequently it was not entrusted by Defendant No.4 to the vessel of the Defendant No.2 and therefore, in our opinion, the learned single Judge has rightly recorded a clear finding that Defendant No.3 never delivered any container to the Defendant No.4 containing the consignment of the plaintiff and therefore, the goods of the plaintiff were never shipped on any vessel of the Defendant No.2 at the port of Shanghai. Thus, the plaintiff did not point out any document to us emanating either from the Defendant No.4 or from any independent authority which would even suggest that the consignment of the plaintiff was entrusted by Defendant No.3 to Defendant No.4 at any point of time. All the documents on which reliance is placed for this purpose by the plaintiff are emanating from Defendant No.3 and on the basis of those documents no liability can be fastened on Defendants Nos.1 & 2. As we find that as a matter of fact the plaintiff has failed to establish that his consignment was at any point of time entrusted by Defendant No.3 to Defendant No.4. It is not necessary for us to deal with the contention of the plaintiff that if Defendants Nos.1 & 2 can not be held liable on the breach of the contract, then they are liable in tort. Because, even the liability in tort will arise in so far as Defendants Nos.1 & 2 are concerned, only if it is established that they were entrusted with the goods of the plaintiffs. Taking overall view of the matter we find that the order passed by the learned single Judge is perfectly valid and calls for no interference at our hands.

Appeal therefore fails and is dismissed.

(emphasis supplied)

7 The matter was carried to the Honble Supreme Court by the plaintiff and the appeal came to be dismissed by an order dated 22.7.2002.

8 In view of the dismissal of the appeal, the Advocate for defendant nos.1 & 2 has taken out the above Notice of Motion for the following reliefs:-

(a) That the suit be dismissed as against Defendant nos.1 and 2 ;

(b) That pending the hearing and final disposal of the Notice of Motion, the suit and all proceedings be stayed

(c) For costs of the Notice of Motion ;

(d) For such other and further reliefs as in the nature and circumstances of the case this Honourable Court may deem fit and proper.

9 It is the case of the defendant nos.1 & 2 that the suit against defendant nos.1 & 2 be dismissed in the facts and circumstances of the case the single Judge and Division Bench having held earlier that no liability on defendant no.2 in contract or in tort consequent to which the ex-parte order of the arrest of the 1st defendant-vessel was set aside and directing to return the security furnished for release of the 1st defendant-vessel.

10 The learned Senior Counsel Shri Pratap for the defendant nos.1 & 2 submitted that the 1st defendant was ordered to be arrested by an order dated 4th March 2002 and was released pursuant to further order dated 5th March 2002 upon the owners of the defendant-vessel furnishing security for release of the vessel. In the order for release it was recorded that the security was being furnished without prejudice to the rights and contentions of the 1st defendant-vessel and its owner and all rights were fully reserved. He further submitted that on the order of arrest of the vessel, any action in rem constitutes an inducement to the owner to submit to the jurisdiction of the Court. The arrest of a ship by means of an action in rem is a means of assuming jurisdiction by the competent Court. He further submitted that the owner of the ship can enter appearance and furnish security for release of the ship without prejudice to his rights and contentions and thereafter contest the arrest and apply for setting aside the same. He submitted that the effect of the order setting aside the order of arrest is that the Court has declined to continue to assume jurisdiction which the Court did at the initial stage by the ex-parte order of arrest. In other words, if the owner does this and succeeds, then it would mean that the Court which had assumed jurisdiction over the vessel by granting an ex-parte order of arrest had declined jurisdiction by re-calling/vacating its earlier order. According to Mr.Pratap in that case the suit should come to an end in respect of the vessel and its owner and is required to be dismissed. It is his case that in the facts and circumstances of the case where the Court had held that there is no privity of contract and no action in tort is also maintainable as the plaintiffs goods were never entrusted to defendant nos.1 & 2, there can be no cause of action against defendant nos.1 & 2 and no maritime claim against defendant nos.1 & 2 either in tort or in contract and the suit against defendant nos.1 & 2 is liable to be dismissed. He has also relied on the judgment of the Honble Supreme Court of India in the matter of (m.v.Elizabeth& Ors. V/s. Harwan Investment & Trading Pvt.Ltd., AIR 1993 SC 1014 [LQ/SC/1992/193] ) m.v. Elizabeth paragraph nos.55 & 56.

11 Mr.Pratap has also relied on the judgment in the matter of m.v. Sea success- I. In paragraph-154 it is held that High Court will consider whether a prima facie case is made out when passing a final order as regards interim arrest of the ship, when an application is made to vacate the ex-parte arrest by coming to a conclusion that no prima facie case is made out for arrest of the ship. He also relied upon the judgment dated 13.8.2008 of the Division Bench of this Court in the matter of M/S.KIMBERLY-CLARK LEVER PRIVATE LTD.,V/s. m.v. EAGLE EXCELENCE in Appeal No.240 of 2007 in Notice of Motion No.2346/2006 in Admiralty Suit No.12/2006 and submitted that whether it is a prima facie case or a reasonably arguable best case, whatever expressions that may be used, it is ultimately and absolutely necessary for the plaintiff who approaches the court in a suit of such nature to place on record sufficient material in support of his claim. He further submitted that the Honble Court has held that once the security is furnished, procedure that will have to be followed is the one prescribed for any other normal suit and once the Court has analysed the material on record to ascertain whether the plaintiff has reasonably arguable best case in the Notice of Motion taken out by the defendant calling for release of the security and has come to conclusion that the Plaintiff did not have, the suit against the defendant-vessel and its owner should fail and should be dismissed.

12 Counsel for defendant nos.1 & 2 further contended that it is not open to the plaintiff now to make submission on merits of their claim as the orders of Court of the learned single Judge and learned Division Bench have attained finality. In view of the fact that the learned single Judge and the Division Bench have both held that (a) there is no privity of contract between the plaintiff and the defendant nos.1 & 2 and (b) as the plaintiff has been unable to show that their consignment was shipped on defendant no.1 or any other vessel belonging to defendant no.2 or was short landed, even the liability in tort cannot arise, and the plaintiff has failed to show any cause of action against defendant nos.1 & 2, the suit can no longer continue against defendant nos.1 & 2 and is required to be dismissed. He further submitted that as no reply has been filed by the plaintiff to the Notice of Motion for over two years to oppose the Notice of Motion and the plaintiffs counsel proceeded with the hearing without filing a reply, the contentions of defendant nos.1 & 2 as taken in the Notice of Motion have not been transversed or disputed or denied and therefore, the Notice of Motion be allowed with cost.

13 On the last point raised by Mr.Pratap, it is necessary to list out certain dates and events. When the Notice of Motion was listed on 28.6.2013 the plaintiffs Counsel sought time to file reply to the Notice of Motion and by consent the matter was stood over to 26.7.2013 directing the plaintiff to file its reply before 10.7.2013 and rejoinder if any, by defendant nos.1 & 2 to be filed on or before 19.7.2013. On 26.7.2013 the matter was once again stood over to 23.8.2013 as both, the plaintiffs counsel as well as the counsel for defendant nos.1 & 2 sought time to seek instructions. No reply had been filed by the plaintiff till then. When the matter was taken up today the plaintiff had still not filed any reply and the Counsel for the plaintiff stated that he was agreeable to argue without filing a reply. Accordingly, the matter was heard.

14 Learned Counsel Shri Vernekar for the plaintiff opposing the Notice of Motion submitted that just because the Court has vacated the ex-parte order of arrest and directed cancellation and return of bank guarantee furnished by defendant no.2 as security for release of 1st defendant-vessel which was upheld by the Division Bench of this Court and the Honble Supreme Court dismissed the appeal, does not mean that this Court has lost its jurisdiction to entertain and try the present suit against the defendants. According to him, such a contention by the defendant nos.1 & 2 is contrary to settled law. He relied upon the judgment of the Honble Supreme Court of India in the matter of m.v.Elizabeth (supra) to submit that the arrest of the ship is a mere procedure to obtain security to satisfy the judgment and once the owner appears before the Court and furnished security, he submits to the jurisdiction of the Court and the proceedings continued against owner of the ship in personam and he became personally liable to satisfy the claim if the suit is decreed. He further submitted that the arrest of a foreign ship by means of an action in rem is just a means of action in jurisdiction by the competent court and as the 1st defendant-vessel was within the jurisdiction of this court when the order of arrest was made and arrested by virtue thereof, this Honble court has already assumed jurisdiction against defendant no.1 and defendant no.2. Merely because at a later stage the security was furnished and the order of arrest was vacated and subsequently security furnished was directed to be returned, the court which had assumed jurisdiction to try, entertain and dispose of the suit does not loose jurisdiction or ceases to have jurisdiction.

15 Before, I proceed further, it would be better if this issue on jurisdiction is dealt with. The submission of Mr.Pratap that once the order of arrest is vacated and security furnished is ordered to be returned, the Court looses its jurisdiction or ceases to have jurisdiction cannot be accepted. This is not a case where Court did not have jurisdiction at all due to any exclusive jurisdiction clause or like. In this case because of the presence of the vessel within the territorial water the Court had jurisdiction over the vessel which it assumed to exercise by the order of arrest of the vessel. If the Court felt that the order of arrest and obtaining of security could not be sustained due to prima facie insufficient documents or evidence, it does not mean that the Court should be deemed to have no jurisdiction. Once the Court has correctly exercised jurisdiction, it will continue to always have jurisdiction. In this case, the Court directed return of security because the plaintiff failed to even establish that it has an arguable or a prima facie case against Defendant Nos.1 and 2. On this issue, the submissions of Mr.Vernekar that the contentions of defendant nos.1 & 2 that this Court has now lost the jurisdiction or has no jurisdiction to entertain and try the suit is incorrect, will have to be accepted.

16 As regards want of cause of action and maintainability of the suit in contract or tort, Mr.Vernekar submitted that the observations of the single Judge and the Division Bench in the orders dated 13.2.2003 and 10.4.2003, respectively, are merely prima facie observations restricted only to consider whether the ex-parte order of arrest dated 4.3.2002 is required to be set aside and bank guarantee furnished is to be returned or not. According to him both the orders were on an interim application and in no way can be read or treated as final judgment on the liability of defendant nos.1 & 2. As there is no final determination of the issues, the defendant nos.1 & 2 cannot ask for dismissal of the suit by way of this Notice of Motion.

17 Learned Counsel Mr.Vernekar further submitted that in the above Notice of Motion or in the affidavit-in-support of Notice of Motion, the defendant nos.1 & 2 have not indicated under what provisions are they seeking the reliefs mentioned therein. He submitted that assuming that the motion has been taken out under provisions of order 7 Rule 11 of the Code of Civil Procedure, 1908, the Court while deciding an application under order 7 Rule 11(a) of the CPC, is not required to make an elaborate inquiry into the doubtful and complicated questions on law and facts and the jurisdiction of the Court in such application is restricted to ascertain whether on the allegations contained in the plaint, there is a disclosure of cause of action or not. He submitted that the plaint discloses some cause of action or raises some questions fit to be decided by a Judge. The mere fact that the case is weak and is not likely to succeed, is no ground for dismissal of the suit. He further submitted that the contentions raised in the affidavit in support clearly falls short of the requirement to maintain an application under order 7 Rule 11(a) of the Code of Civil Procedure, 1908. He submitted that there is no cause of action against defendant nos.1 & 2 is totally different from saying that plaint does not disclose a cause of action against defendant nos.1 & 2 and the plaint discloses cause of action against defendant nos.1 & 2 in paragraph nos.1, 5, 6, 10, 11, 12, 13 & 17 and various triable issues as to the liability of defendant nos.1 & 2 to the said suit claim arises. Therefore, the suit must proceed to trial to determine the issues between the parties based on the pleadings and the plaintiff cannot be non-suited against defendant nos.1 & 2 merely because defendant nos.1 & 2 alleges that there is no privity of contract between the plaintiff and defendant nos.1 & 2 or that the suit consignment was not carried on the vessel of defendant no.2. He relied upon the judgment of the Honble Supreme Court in the case of M.V. Sea Success I (supra). Though during the course of his arguments he did not rely upon two further authorities in the matter of M/s.CNA Peejay Exports Pvt. Ltd., V. M.V.Nikolay Maksinov (AIR 1993 BOM 286 [LQ/BomHC/1992/462] ) and in the matter of Videsh Sanchar Nigam Ltd., V. M.V.Kapitan Kud (AIR 1996 SC 516 [LQ/SC/1995/1108] ), he has enclosed copies of the judgments to the written submissions. Even in the written submissions he has not explained what is the ratio in these two judgments on which he has relied upon.

18 Be that as it may, the judgment in M/s.CNA Peejay Exports Pvt. Ltd., V. M.V.Nikolay Maksinov (supra) is of no help to the Plaintiff. The issue there was whether the admiralty court can exercise jurisdiction in a case where the consignment was entrusted to one vessel for shipment and delivery at Indian port but the consignment was brought to Indian port by another vessel. The court held that it was entitled to exercise jurisdiction. In the present case that is not an issue because this court had similarly exercised jurisdiction. But the fact in this case is that the consignment was never received by any of the vessel owned by the defendant no.2.

19 As regards the judgment in the case of VSNL Vs. Kapitan Kud (supra), the Court has held that in an admiralty action the plaintiff has to make out a prima facie case and whether he has a reasonably arguable best case. In the present case, the Single Judge and the Appeal Court have categorically held that the Plaintiff have failed to so establish. In fact, in that judgment (Kapitan Kud), the Honble Supreme Court has relied upon an English judgment, The Moschaanthy (1971) 1 Loyds Rep 37 and held as under:

14 In The Moschanthy, (1971) 1 Loyds Rep 37 at 42, where the question was whether the admiralty action was vexatious, following the ratio of Willmer, J.St.Elefterio (1957 Probate division 179) (supra) it was held that action could not be successful. It was held that Courts should only stay the action on the ground when the hopelessness of the plaintiffs claim is beyond doubt. If it is not beyond doubt but on the contrary the plaintiff has arguable, even though difficult, case even in law the action would be allowed to proceed to trial. The application for stay was accordingly rejected. (emphasis supplied)

20 In the case of m.v. Kapitan Kud (supra) the Supreme Court concluded that the plaintiff had made out a prima facie case and there was strong evidence to show that the vessel could have caused the damage for which claim was made. In para-15 it stated as under:-

15 The admiralty action is an action in rem. The Division Bench found that the claim was not vexatious but is triable. There is strong evidence to show that at the relevant time the respondent-vessel was within the vicinity of the damaged cable. The Division Bench declined to interfere on the ground that the Captain of the vessel filed an undertaking that the vessel belonged to the Black Sea Shipping Company which is wholly owned by the Ukrainian Government. The undertaking given by the Captain of the vessel that in the event of the suit being decreed they would honour the decree, was accepted by the Court and it directed the release of the vessel. We think that neither the approach of the Division Bench of the High Court nor the finding of the learned Trial Judge on the admiralty jurisdiction that no prima facie case is made out, is right. It is seen that there is strong triable case for the reasons stated earlier. The ship is a foreign ship and if it leaves the shores of Indian territorial waters it is difficult to get hold of it and it may not return to the jurisdiction of Indian courts. The claim thereby, even if successful, would remain unexecutable or land in trouble in private international law in its enforcement. Under these circumstances, we are of the firm opinion that the vessel may be released on the certain conditions, viz., [i] the respondent shall deposit a sum of Rs.10 crores; [ii] the Ukrainian Government shall give an undertaking through its accredited authority, more particularly may be its Ambassador attached to its Embassy in India in writing duly undertaking that in the event of the suit being decreed they would comply with the decree without reference to the execution; [iv] the undertaking should be for balance amount of Rs.18 crores and towards costs and other expenses roughly put at Rs.25 crores. It would be open to them to comply with these directions at any time. We are not fixing any time limit because it would be open to them to comply with it at any time and until then the ship shall remain arrested and shall not leave the shores of the Indian territorial waters. On deposit of Rs.10 crores and on furnishing of undertakings to the satisfaction of the Division Bench of the High Court, as stated above, the High Court would give appropriate direction for releasing the vessel in accordance with law. (emphasis supplied)

21 But in this case the learned single Judge and the Division Bench have both found that the plaintiff has not made out any prima facie case to maintain the action either in contract or in tort. The Supreme Court also dismissed the appeal. There is no evidence of even a triable case. The hopelessness of the Plaintiffs claim is beyond doubt. The Plaintiff failed to establish Defendant Nos.1 and 2 were entrusted with the goods. The plaintiff had obtained an ex-parte order of arrest of the defendant no.1-vessel a very drastic order and it was absolutely necessary in a suit of this nature to place on record sufficient material in support of his claim. Plaintiff has hopelessly failed to do so. No reply also has been filed to the Notice of Motion taken out by Defendant Nos.1 and 2. In paragraph-139 of the judgment of the Honble Supreme Court in the matter of m.v. Sea Success I (supra), the Court has observed that whether the plaint discloses a cause of action or not is essentially a question of fact and it must be found out from reading the plaint itself. The test is whether if the averments made in the plaint are taken to be correct in entirity decree would be passed. The Honble Supreme Court has observed as under:-

Cause of action

140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence.

141. Order 7 Rule 14 of the Code of Civil Procedure provides as follows :

14. Production of document on which plaintiff sues or relies- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses or, handed over to a witness merely to refresh his memory.

142. In the instant case the Club not only annexed certain documents with the plaint but also filed a large number of documents therewith. Those documents having regard to Order 7 Rule 14 of the Code of Civil Procedure are required to be taken into consideration for the purpose of disposal of application under Order 7 Rule 11(a) of the Code of Civil Procedure.

22 Of course, the Honble Supreme Court has further said that the Court should not reject the plaint on the ground that the averments made are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. But in an admiralty action where an ex-parte order of arrest is passed, the plaintiff also has an obligation and it is absolutely necessary to make out and establish a prima facie or reasonably arguable best case in the matter. In the case of Sea Success I (supra) the plaintiff had filed a large number of documents in support of its case. In the present case there is no such document filed by the plaintiff. In fact the learned Single Judge in the order and judgment dated 13.02.2003 while directing cancellation of return of security has observed In the matter of an admiralty action to arrest a ship, it cannot be mere averments that would support the action. It must be supported by documentary evidence to show that the goods were in fact shipped to maintain action against the vessel. The single Judge and the Division Bench have held after analysing the material on record that the plaintiff has failed to establish that his consignment was at any point of time entrusted by defendant no.3 to defendant no.4 and there was no contract whatsoever between the plaintiff and the defendant no.2. The Courts have also conclusively held that the defendant nos.1 & 2 cannot be held liable in tort because even the liability in tort will arise in so far as defendant nos.1 & 2 are concerned, only if it is established that they were entrusted with the goods of the plaintiff and that the plaintiff has failed to establish the same. Reading the judgment of the Division Bench dated 10.4.2003, it is just not a prima facie view but a conclusive view of the Court that the plaintiff has failed to establish it has a cause of action. The Court in para-7 has held As we find the plaintiff has failed to establish his consignment was at any point of time entrusted by Defendant No.3 to Defendant no.4 and consequently not entrusted to defendant no.2. The Court has also held that ........even the liability in tort will arise in so far as defendant nos.1 & 2 are concerned only if it is established that they were entrusted with the goods. This is after concluding that there was no bill of lading issued to show any contract between plaintiff and defendant no.2. It is necessary to observe that even in the plaint or at the time when the Notice of Motion No.2009 of 2002 was heard or appeal no.343 of 2002 was heard or even at this stage when this motion was filed, the plaintiff has not even bothered to even make an attempt to establish that the defendant nos.1 & 2 were entrusted with the goods of the plaintiff.

23 In fact the Apex Court in the matter of (AIR 1977 SC 2421 [LQ/SC/1977/296] ) T.ArivandandamVs. T.V.Satyapal & Anr. has held that if on a meaningful not formal reading of the plaint it is found manifestly vexatious and merit-less in not disclosing a clear right to sue, the court should not entertain the action. Justice V.R.Krishna Iyer as he then was, in his inimitable style held as under:-

5 We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Or.VII R.11 C.P.C taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (ch.XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi It is dangerous to be too good.

6 The trial court in this case will remind itself of s.35-A C.P.C and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.

7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile dispute and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process.

24 When a ship is arrested the owners are put to immense pressure and loss. It is not only the owners but even those whose cargo are on board the vessel suffer. Any attempt of parties to cleverly draft the plaint and create an illusion of the cause of action and obtain orders of arrest of vessel to pressurize owners to settle the matter should be nipped in the bud. Some owners may succumb to the pressure, particularly in view of the fact that cost of litigation is very high today. It will save lot of time of the Courts if fraudulent and frivolous litigations are not entertained. A meaningful reading of the Plaint shows that the basis of the Plaintiffs allegation against Defendant Nos.1 and 2 are based on documents. But no document has been produced or presented or entered in any list to show there was a contract between the plaintiff and Defendant no.2 or that the consignment was loaded on defendant no.1-vessel or carried by defendant no.2. The single Judge and the Division Bench has conclusively held that the plaintiff has failed to so establish. This is not a case where admittedly the vessel has carried the cargo but the Plaintiff has not been able to establish his prima-facie title to sue or establish the value of his claim and the security is ordered to be reduced or returned. The Single Judge and the Division Bench have in no uncertain terms held that the Plaintiff has failed to establish any link with Defendant Nos.1 and 2. In such circumstances, just because the plaintiff has alleged that they have a cause of action by narrating facts without any basis, and which has so been held by the single Judge and the Division Bench, it will be unfair to make the defendant nos.1 & 2 to go through the entire trial by incurring costs. It would also save valuable time of this Court.

26 In the circumstances, the Notice of Motion has to succeed with costs. The Notice of Motion is allowed in terms of prayer clause-(a) and the suit is dismissed as against defendant no.1 and defendant no.2.