* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 89/2017
% 3rd May, 2017
M/S STANDARD GANPATI MERCHANDISE PVT. LTD.
..... Appellant
Through: Mr. Roshan Shanthalia, Advocate.
versus
M/S WATCO SHIPPING SERVICES & ORS. ..... Respondents
Through: Mr. Anuj Nair, Advocate for R-2.
Mr. B.L. Garg and Mr. Dhananjay Kumar, Advocate for R-4.
Mr. J.S. Mann, Advocate for R-3 and 5. CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
, VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the impugned order dated 25.1.2017. By the impugned order the application under Order XXXIX Rules 1 and 2 CPC moved by the appellant/plaintiff, seeking the relief of release of the goods to the appellant/plaintiff and which are lying with the shipping company and its agents being the defendant nos. 1, 2, 3 and 5, has been disposed of by ordering that the appellant/plaintiff can only receive the goods on FAO No. 89/2017 Page 1 of 5 depositing of Rs.25,00,000/- as security in court in the form of fixed deposit receipt.
2. The subject suit was filed by the appellant/plaintiff seeking decree for a sum of Rs.38,31,938/- against the respondents/defendants jointly and severally along with interest as also the relief of mandatory injunction directing the defendant no. 5 in the suit i.e the shipping agency namely Majestic Maritima Private Limited/respondent no. 5 to release the imported goods to the appellant/plaintiff.
3. The main contesting defendant in the suit is defendant no.4 and who is respondent no. 4 in this appeal. Respondent no. 4 contested the suit by filing written statement and pleading that the appellant/plaintiff is not the owner of the goods, inasmuch as, the goods in question were in fact purchased by the respondent no.4/defendant no. 4 from the seller J&R Holding Limited. It was argued that all the documents being the commercial invoice, packing list, certificate of origin, certificate of analysis, etc were issued by the seller in the name of the respondent no.4/defendant no.4, however, the appellant/plaintiff in collusion with the seller got the bill of lading changed in the name of the appellant/plaintiff. Respondent FAO No. 89/2017 Page 2 of 5 no.4/defendant no.4, therefore, claims that it/he is the owner of the goods and not the appellant/plaintiff. Respondent no.4/defendant no. 4 also states that 25% advance payment being USD 8030 has already been paid to the seller J&R Holding Limited who had received the payment from Kotak Mahindra Bank.
4. Appellant/plaintiff was not successful in getting the goods released from the shipping company and customs, inasmuch as, when the entry documents were filed it was required that even the commercial invoice, and other documents pertaining to the goods had to be in the name of the appellant/plaintiff but since they were in the name of respondent no.4/defendant no. 4 hence no objection certificate was asked from the respondent no.4/defendant no. 4 and which respondent no.4/defendant no. 4 objected to release of the goods in favour of the appellant/plaintiff by the shipping company on the ground that it is the respondent no.4/defendant no.4 which is the owner of the goods and which situation has resulted in filing of the present suit.
5. It is, therefore, seen that there is a disputed question of fact which requires trial as to who is the owner of the goods, i.e whether the owner of the goods is the appellant/plaintiff or it is the FAO No. 89/2017 Page 3 of 5 respondent no.4/defendant no.4. Though the appellant/plaintiff has filed the bill of lading in his name, however it is seen that all other original documents of the goods in question being the commercial invoice, packing list, certificate of origin, certificate of analysis, etc are all in the name of respondent no. 4/defendant no. 4 who had also made advance payment of 25% to the seller J&R Holding Limited.
6. Therefore, the disputed question of fact as to who is the owner of goods whether the appellant/plaintiff or respondent no. 4/defendant no.4 can only be decided after a trial and at this interim stage no order can be passed for unconditionally allowing the appellant/plaintiff to receive the goods and which will amount to passing a decree in favour of the appellant/plaintiff and against the respondent no.4/defendant no. 4 with respect to the goods in question.
7. In my opinion the trial court has rightly balanced the issue by directing the release of goods to the appellant/plaintiff only after the appellant/plaintiff depositing a sum of Rs.25,00,000/-, and which is a fair and balanced order although it would have been preferable if no order whatsoever had been passed by the trial court directing release of the goods to the appellant/plaintiff as there was a disputed question of FAO No. 89/2017 Page 4 of 5 fact requiring trial as to who was the owner of the goods being either the appellant/plaintiff or the respondent no.4/defendant no.4.
8. Learned counsel for the appellant/plaintiff sought to place reliance upon a judgment of the learned Single Judge of this Court in W.P. (C) No. 1721/1990 decided on 22.4.2009 titled as Transworld Shipping Service (P) Limited Vs. Central Warehousing Corporation and Ors., to argue that courts can issue interim mandatory injunction for release of the goods, however, it is seen that the judgment in the case of Transworld Shipping Service (supra) was a judgment in a writ petition wherein there was the importer/petitioner on one side with the port storage companies on the other side and the issue in that case was only of release of goods by de-stuffing the container on payment of demurrage charges and in that case there were no disputed questions of fact with respect to title of goods between two contesting parties and which dispute exists in the present case. The judgment in the case of Transworld Shipping Service (supra) therefore does not help the appellant/plaintiff.
9. In view of the above, I do not find any illegality whatsoever in the impugned order dated 25.1.2017, and the present appeal is therefore dismissed.
MAY 03, 2017 VALMIKI J. MEHTA, J
AK
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