M/S Sri Vishnupriya Cashew ... vs M/S Saanti Global Trader Ltd
2021 Latest Caselaw 3780 AP

                                                                       MVR,J
                                                   I.C.O.M.A.O.A.No.10 of 2021
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             HON'BLE SRI JUSTICE M. VENKATA RAMANA

                    I.C.O.M.A.O.A.No.10 of 2021
ORDER:

This petition is filed under Section 9 of Arbitration and

Conciliation Act, 1996 for grant of an ad-interim order directing the

respondent to deliver the cargo mentioned in the petition schedule to

it on receipt of pro-rata price as agreed under the contract

No.SGTL/026/2021-BN dated 24.03.2021, which was scheduled to

reach Visakhapatnam port on 08.09.2021.

2. The case of the petitioner is as under:

The petitioner is a proprietary concern engaged in the business

of cashew and other allied products. It sought by means of an order,

supply of 550 MT of raw cashew inshell originating from an African

country called 'Benin' and the respondent agreed to supply the same.

Accordingly, a contract was entered into on 24.03.2021 in between

them, undertaking to supply raw cashew inshell for a price, at 1126

US dollars per unit, for a total value of 6,19,300 US dollars.

According to the petitioner, the delivery of this commodity was to

commence and complete in April 2021 with a grace period of ten

days. For this purpose, the petitioner claimed that it paid 92,895/-

US dollars towards 15% of the advance and that the respondent

committed breach in supplying the commodity as agreed upon. On

account of this breach, the petitioner claimed that various obligations

it had entered into with the third parties for supply of cashew nuts

were affected. In the process, it claimed that it suffered in its profits

at 375 US dollars for metric tone and that there was also possibility of

making more profit. The petitioner claimed that the cargo in this MVR,J I.C.O.M.A.O.A.No.10 of 2021

respect was reaching Visakhapatnam on board vessel MAERSK

RUBICON in containers bearing No's: MRKU7845410 and MRKU7882265.

It further claimed that respondent had sent a packing schedule in the

name of the petitioner for this cargo on 23.7.2021 by WhatsApp and

therefore, it is entitled for delivery of this cargo the moment it

reached the port of destination.

3. Stating that there is need for arbitration in the matter under

GAFTA (The grain and Feed Trade Association) Rules, which it is

intending to invoke for the loss and damages suffered by it on

account of conduct of the respondent, the petitioner requested to

grant an interim order as prayed in this petition.

4. At the stage of admission, this matter is heard as to

maintainability as well as necessity of passing an order as prayed.

5. By the date of presentation of this petition, as per the

averments therein, the ship containing the cargo in question was yet

to reach the destination, viz. Visakhapatnam. A copy of the bill

reflecting the sales contract dated 24.03.2021 is filed along with this

petition. The destination port stated therein is Tuticorin, India. The

entire claim of the petitioner is based on this sales contract and

supplies to receive by April, 2021. The arbitration sought to be

invoked is on account of loss and damages suffered in receiving

deliveries as per its contract within due time. It is further based on

making an advance at 15% of total value of the contract as well as the

cargo to be supplied to the petitioner.

MVR,J I.C.O.M.A.O.A.No.10 of 2021

6. The nature of interim relief sought in this petition now requires

consideration. It is for the purpose of delivering the cargo on receipt

of pro-rata price, as per the sale contract, once it reached

Visakhapatnam Port. The relief so sought is in the nature of

a continuous direction, making the respondent to deliver the goods

upon receiving the price to the extent of goods delivered.

7. Learned counsel for the petitioner in the course of hearing

relied on NATIONAL ALUMINIUM CO.LTD. v. GERALD METALS SA1. It

was in turn preferred against the judgment of Division Bench of this

Court at Hyderabad between the same parties reported in 2004(3)

ALT 749. A careful reading of this judgment of Hon'ble Supreme

Court makes out that it was decided on the grounds of equity and

balance of convenience only, since their Lordships felt that it was

unnecessary to go into the questions of fact and law. Added to it,

this ruling relating to an international arbitration is prior to

amendment of Arbitration and Conciliation Act in the year 2015.

8. Therefore, the above ruling cannot be applicable for the

purposes as the petitioner required this Court to consider.

9. The very nature of the relief as an interim measure sought by

the petitioner is not amenable to grant. The parties to the contract

shall follow the terms of contract in respect of delivery of the goods.

In case of any loss or damage suffered as alleged, the remedy for

them is elsewhere. It cannot be in the nature of requiring the

respondent to continue to deliver the goods, basing on a proposed

claim for damages to make good the loss, by the petitioner against it.

(2004)9 SCC 307 MVR,J I.C.O.M.A.O.A.No.10 of 2021

Section 9 of Arbitration and Conciliation Act cannot be invoked in this

manner and for such purpose. This petition as such is not

maintainable.

10. Therefore, finding no justification to entertain this application,

the same has to be rejected and accordingly, this petition is

dismissed at admission stage.

___________________ M. VENKATA RAMANA, J Dt: 27.09.2021 Rns MVR,J I.C.O.M.A.O.A.No.10 of 2021

HON'BLE SRI JUSTICE M. VENKATA RAMANA

I.C.O.M.A.O.A.No.10 of 2021

Date:27.09.2021

Rns