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Judgment:

2 JUDGMENT

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5 DRAFT INVOICE

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19 15. The letter the Defendant has required the Plaintiffs to

give as well as the inconsistent invoice and payment voucher the

Defendant required to be signed support the Plaintiffs' and my

belief that the Defendant is seeking to avoid making payment of

the balance amount due. If the Defendant removed the Goods from

the jurisdiction of this court, the Plaintiffs would have no

means to secure payment from the Defendant. I would emphasise

that the Plaintiffs are not the sellers of the Goods but the

financier for the purchase of the Goods. The Goods are now

probably in the possession and control of the Defendant and are

about to be moved out of the country. < Emphasis added. >

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26 HD failed to respond to either the order or the Plaintiffs'

solicitors' telefax message which was also sent by post to HD's

two addresses. However, on the evening of 15th June, 1994, HD met

up with CM Shah and I at CM Shah's office. At this meeting HD

represented to me that he had the Goods mentioned in the order.

HD told me that the Plaintiffs' action had put him in a

predicament. HD also told me that the Plaintiffs' action would

jeopardise the good trading relationship and mutual trust he had

built up with the Defendant herein. Further, HD asked me to delay

service by 3 days while he spoke to the Defendant to secure

repayment of monies due for the Goods to the Plaintiffs. At no

point in time during this meeting on the evening of 15th June,

1994, lasting some 3 hours did HD say that he had parted with the

Goods before the order was served on him. < Emphasis added.

>

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55 Valibhoy's most material and crucial evidence is that at the

meeting on the evening of 15 June 1994, the respondent did not

mention that the goods were no longer in his possession. This was

not denied by the Respondent. Valibhoy also gave evidence that

the Respondent represented that the goods were still in his

possession. This was denied by the Respondent. Nonetheless, the

Respondent would have to give a satisfactory answer for his

silence for 7 days with respect to the goods during the meeting

and subsequent thereto. < Emphasis added. >

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57 THE BURDEN ON THE DEFENCE 38. An accused person does not have

to prove his innocence. There is no burden on him to convince the

trial judge that his version of the facts is the truth. That

burden lies on the person alleging the contempt and it is a heavy

burden: the contempt will have to be established beyond

reasonable doubt (Re Bramblevale Ltd < 1969 > 3 All ER

1062). That being so, even if the judge does not believe the

defence, he would still have to consider whether the defence

version of any relevant fact in issue could reasonably be true.

If the defence version could reasonably be true, the benefit of

the doubt has to be given to the defence.

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60 The Respondent's case was that he was merely a middle man and

had no vested interested in the transaction. Hence the words

"there will be no responsibility to you" < in the

fax from Kamlesh Doshi > after delivery to Vijaykumar would

conveniently buttress the Respondent's position as a neutral

party. However, even without these words it would be obvious what

the responsibility of the Respondent was. These additional words

therefore would be redundant in the circumstances. Their presence

only added to the overall impression that the documents have been

fabricated to substantiate the Respondent's case of delivery on

the early part of the afternoon of 15 June 1994.

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68 S Rajendran