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Judgment
The Court : The defendant no. 1 moved this application upon obtaining leave today morning in relation of an order passed by this Court on 26th
September, 2018 by which the defendant no. 2 (Customs Authorities) was directed to hold a public auction within a week from the date of the order
upon notice to all concerned parties including the defendant no.1. The relevant part of the order is set out below :
“In view of the above, the defendant no.2 is directed to hold the public auction within a week from date upon notice to all concerned parties
including the defendant no.1. The mode and manner of such public auction shall be in compliance with the relevant Customs circulars as stated above.
If the Customs intends to follow any additional procedure for the sale to be made more effective or expedient, it shall give notice of such proposed /
intended procedures to all concerned parties including the defendant no.1 at least three days before the sale is conducted by public auction. Notice of
the auction shall be given to the parties immediately upon communication of this order. The Customs shall take requisite steps for completing the
auction within a day so that the conditions of the goods remain unchanged.
The defendant no.2/ Customs Authorities will file a report containing relevant particulars of the public auction and the mode of applying the sale
proceeds thereof within a fortnight of the public auction. The report will be made available to all the concerned parties before this Court. As submitted
by Mr.Kankani for the plaintiff, the Report may be taken into consideration at the time of hearing of this suit.â€
The grievance of counsel appearing for the defendant no. 1 is twofold. First that contrary to the direction that notice of the auction shall be given to all
the parties, the defendant no. 1 came to know only last evening i.e. evening of 11th October, 2018, that the Customs Authorities have proceeded to
hold the auction for the containers in question. Counsel submits that this has come to the knowledge of the defendant no. 1 only on 11th October, 2018
and no proper notice of the auction has been given to the defendant no. 1.
The second grievance is that the notice mentions two Lot numbers which are part of Annexure F to the application. The Lots are divided in two
groups; one of 256 containers and the other of the remaining 649 containers. Counsel submits that the order dated 27th October, 2017 passed in an
appeal from the order of the Single Judge restricted the scope of the suit to 256 containers. He accordingly, submits that the auction could be held only
in respect of 256 containers notwithstanding the huge outstanding owed by the defendant no. 1 to the Customs Authorities.
Counsel for the Customs/defendant no. 2 submits that notice of the auction was sent by the Customs to the defendant no. 1 on 9th October, 2018, but
is unable to produce any particulars to show that the said notice had been received by the defendant no. 1. He further submits that all 905 containers
were contemplated since the defendant no. 1 owes substantial amounts to the Customs. In view of the orders passed by this Court in the appeal
restricting the cause of action pleaded in his plaint to 256 containers, the public auction should also have been restricted to that number. This has
admittedly not been done, whatever the claims of the Customs against the defendant no. 1 may be. Counsel for the parties are in agreement that the
notice of the auction will be served on the defendant no. 1 and the other concerned defendants by e-mail, particulars of which shall be provided to the
Customs Authorities here and now.
Till such notice is served on the defendant no. 1 and all the other concerned parties, the Customs will not take any further steps with regard to the said
public auction. It is expected that the defendant no. 1 will accept such notice in the course of today or without any further delay or pretext since this
Court is convinced that substantial dues are outstanding from the defendant no. 1 to the Customs and the Container and Freight Station authorities and
the defendant no. 1 has done nothing in that respect.
Counsel appearing for the defendant no. 1 submits that a suit has been filed by his client for the remaining 649 containers sometime in 2012.
Admittedly, no steps have been taken to pursue the said suit or have the matter heard so that the goods stuffed in the remaining containers can be sold
to afford relief to the plaintiff or the other defendants. List the suit on 27th November, 2018 for the defendant no. 1 to inform this Court as to what it
proposes to do in terms of the remaining 649 containers and what steps it has taken in the said suit. Since affidavits have not been called for from the
Customs Authorities (defendant no. 2), or the defendant no. 3 the allegations made in the petition should be treated as not having been admitted. This
matter be treated as day’s list. Parties to act on a photostat signed copy on the usual undertaking.