Soumen Sen, J. - (1.) The plaintiff has instituted the suit for specific return of 33320 kgs. betel nuts seized by the Customs Authorities and in the alternative a decree for a sum of Rs.1,78,44,258/- as pleaded in Paragraph 17 of the Plaint. The plaintiff in the further alternative has prayed for an enquiry into the damages and a decree for such sum as may be found due upon such enquiry. In spite of service of the writ of summons and service of notices upon the defendants, the defendants have failed to enter appearance and filed their written statement.
(2.) In the circumstances, although the plaintiff is not required to lead any evidence in view of the doctrine of non-traverse and the fact that the plaintiff having knowledge of the proceeding has avoided to appear and contest the proceeding, the plaintiff No.1 appears and gives evidence in support of the claim made in the plaint. The cause of action in the suit arose by reason of illegal seizure of 33320 kgs. betel nuts which were subsequently sold by the Customs Authorities. The plaintiff claims that the said confiscation was illegal and held to be so by Superintendent (Adjudication) Commissioner of Customs (Preventive) by a reasoned order dated 24th November, 1999 and consequent upon such adjudication order, the plaintiff is entitled to unconditional release of 33320 kgs. betel nuts valued at Rs.47,95,200/- in connection with the seizure case No.13/IMP/CUS/SLG/DPU/99 dated 7th February, 1999 as was directed by the authority concerned in the final order of adjudication. The Customs Authorities by a letter dated 19th January, 2001 forwarded a cheque for Rs.12,31,200/- in purported settlement of the plaintiffs' claim for release of 33320 kgs. betel nuts valued at Rs.47,95,200/- and for refund of security deposit amounting to Rs.40,000/-. The plaintiffs, however, never accepted the said payment of Rs.12,31,200/- as full and final settlement of their claim.
(3.) The plaintiffs contended that the seized goods could not be sold until the final outcome of the adjudication proceeding and since the auction on the part of the Customs Authorities are illegal, per se, the plaintiffs are entitled to and claim specific return of the seized goods i.e. 33320 kgs. of betel nuts and refund of a sum of Rs.35,14,000/- being the differential amount as money had and received by the defendant for the plaintiffs' use.;