Calcutta High Court
Msc Mediterranean Shipping ... vs State Trading Corporation Of ... on 20 December, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 3 of 2022
In
CS 406 of 2013
MSC Mediterranean Shipping Company S.A. & Anr.
Vs.
State Trading Corporation of India Limited & Ors.
Mr. Prantik Garai
Mr. Ayan Dutta
Ms. Somali Bhattacharjee
...For the plaintiff.
Mr. Debraj Bhattacharjee
Mr. Ritesh Kumar Ganguly
...For the defendant No. 5.
Heard on : 13.12.2022
Judgment on : 20.12.2022
Krishna Rao, J.:
The plaintiff has filed the instant application for dismissal of the
instant suit for non-prosecution.
2
Plaintiff had filed the suit against the defendants praying for decree of
Rs. 88,23,61,847.57/- against the defendants no. 1 to 5 and other reliefs.
After initiation of the instant suit, the plaintiff had filed an interlocutory
application being GA No 3457 of 2013. The interlocutory application was
disposed of on 23rd December, 2013 by passing the following order :
"In that view of the matter I think it would be just and proper if
the plaintiff/petitioner substantially secures the claim of Balmer Lawrie
& Co. Ltd. They ought to do so by depositing a sum of Rs. 25 lacs with
their Advocates-on-record M/s. Victor Moses & Co. This firm shall invest
the said sum in a term deposit of one year, to be renewed from year to
year, with SBI Calcutta High Court Branch. The deposit will be treated
as security for Balmer Lawrie & Co. Limited. I order accordingly.
The said firm of Solicitors will intimate to the Advocate-on-record
of Balmer Lawrie & Co. about the creation of the fixed deposit and will
also from time to time furnish them with statement of accounts.
The Customs authority will be at liberty to draw a sample of the
goods and get it tested within fifteen days, from date, even before
creation of the security.
If the Customs are of the view that the goods are of no value they
will handover the containers with the goods to the plaintiff/petitioner
after conclusion of the period for testing the goods. The plaintiff may
take back the containers. If their views are otherwise they will have to
take steps for sale of these goods within a further period of 45 days
peremptorily. In default the plaintiff/ petitioner will be at liberty to
empty the containers of their goods at any place notified by the
Customs and take back the containers.
This order will not preclude the Customs from taking any action
against the importer.
It is made clear failure to obtain home clearance of the goods will
not be taken to be an allegation against the container owner.
The security is furnished without prejudice to the rights and
contention of the plaintiff in the suit.
As affidavits are not invited the allegations contained in the
petition are deemed not to be admitted.
This application is disposed of by the above order."
3
In terms of the order passed by this Court, the petitioner has
deposited an amount of Rs. 25,00,000/- by way of fixed deposit in the name
of the Advocate-on-Record of the petitioner. In compliance of the interim
order passed by this Court, the plaintiff had removed the goods from the
Container Freight Station of the defendant no. 5. More than eight years have
been passed but the respondents have not initiated any legal proceeding
against the plaintiff and no claim is lodged against the plaintiff.
The plaintiff vide communication dt. 13th May 2022 informed the
Advocate-on-record of the plaintiff that the plaintiff is not inclined to
proceed with the instant suit any further and instructed the Learned
Advocate on Record of the plaintiff to take appropriate steps to withdraw the
instant suit.
Learned Counsel for the defendant no. 5 submits that taking the
benefit of the interim order passed by this Court the plaintiff has removed
the goods from the Container. He further submits that this Court passed
interim order by securing an amount of Rs. 25,00,000/- as security and if
the plaintiff is allowed to withdraw the suit, the claim of the defendant no.5
will be frustrated. Learned Counsel for the defendant no. 5 submits that the
plaintiff has not lodged writ of summons till date and thus the defendant
no.5 could not get an opportunity to lodge their claim.
Heard the Learned Counsel for the respective parties and the
materials available on record. This Court finds that on the submissions
made by the counsel for the defendant no. 5, this Court had directed the
plaintiff to secure an amount of Rs. 25,00,000/- in a fixed deposit in the
name of the Advocate-on-record of the plaintiff and accordingly the plaintiff
had complied with the same but since then till date even on completion of
more than eight years the defendant no. 5 had not lodged any claim or
initiated any proceeding for recovery of the said claim.
The defendant no. 5 without raising any claim either by counter claim
in the suit of by filing any separate proceeding, the defendant no. 5 can not
object for withdrawal of the suit as claimed by the plaintiff. Even in the
instant application, the defendant no. 5 has not prayed for filing any
opposition.
In view of the above, this Court allowed the prayer (a) of the plaintiff in
the instant application.
Accordingly, CS No. 406 of 2013 is dismissed as withdrawn and the
interim order dated 23rd December, 2013 is hereby vacated.
G.A. 3 of 2022 is thus disposed of.
(Krishna Rao, J.)
