Calcutta High Court
Strategies S.R.L vs Apocalypse Steel And Power Ltd. And Ors on 20 September, 2024
OCD- 6
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
IA No. GA-COM/1/2024
In
CS-COM/684/2024
DUVARTHIM VISADAHYUM INTERNATIONAL COOPERATION
STRATEGIES S.R.L
-VS-
APOCALYPSE STEEL AND POWER LTD. AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 09.09.2024
Order On : 20.09.2024
Appearance:
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Krishnaraj Thaker, Adv.
Mr. Chayan Gupta, Adv.
Mr. Rittick Chowdhury, Adv.
Mr. Rajesh Upadhyay, Adv.
Mr. A. Jain Sukhlani, Adv.
Ms. Surabita Biswas, Adv.
... For the plaintiff.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. S. Ghosh, Adv.
Mr. Md. Farhaduddin, Adv.
Mr. S. Ruj, Adv.
Mr. S. Nassim, Adv.
Mr. Rahul Sharma, Adv.
... For the defendant nos. 1, 2, 3 & 5.
2
Mr. Mainak Bose, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Mr. Soorjya Ganguli, Adv.
Mr. Somdutta Bhattacharyya, Adv.
Ms. Arti Bhattacharyya, Adv.
Ms. Devanshi Prasad, Adv.
...For the defendant nos. 6 & 7
Mr. Rudraman Bhattacharyya, Adv.
Mr. Rohit Banerjee, Adv.
Mr. Suryaneel Das, Adv.
Mr. Aditya Mondal, Adv.
Mr. Akash Munshi, Adv.
Ms. Sristi Das, Adv.
Mr. Chiranjit Pal, Adv.
...For the defendant no.10
ORDER
1. The plaintiff has filed the present application for grant of interim
injunction. By an order dated 10th May, 2024, this Court has granted
ad interim order in terms of prayers (a), (f), (g), (h), (i), (j) and (k) of the
application till 5th July, 2024 which is extending from time to time.
2. On 5th July, 2024, the defendant nos. 1, 2, 3, 5, 6, 7 and 10 have
entered appearance. Learned Counsel for the defendant no. 10 has
raised the point of maintainability of the suit as well as the jurisdiction
of this Court and accordingly, this Court has extended interim order
and fixed the matter on 16th July, 2024.
3. Counsel for the defendant no. 10 draws the attention of this Court to
the prayers (b), (d), (e) and (i) of the plaint and submitted that as per
Section 19 of the Indian Contract Act, 1872, the contract entered
between the plaintiff and the defendant no. 10 is voidable contract. He
submits that in para 164 of the plaint, the plaintiff has explained the
urgency for filing the suit without pre institution mediation process on
the ground that the defendant no. 10 has filed an application before the
Learned Additional Chief Judicial Magistrate, Sealdah, 24 Parganas
(South) for lifting of the order of attachment and release of six
containers stuffed with goods belonging to the plaintiff and the
defendant no. 10 has received payment for the said goods.
4. Mr. Rudraman Bhattacharyya, Learned Advocate presenting the
defendant no. 10 submits that the plaintiff has not filed any document
to establish that the plaintiff has made any payment to the defendant
no. 10 or there is any privity of contract between the plaintiff and the
defendant no. 10. He submits that as per the proforma invoice sent by
the defendant no. 1 to the plaintiff dated 5th February, 2020 along with
the sales and purchase contract dated 28th February, 2020, entered
between the plaintiff and the defendant no. 1 contains arbitration
clause and only to avoid the said clause, the plaintiff has made the
other defendants as party to the suit.
5. Mr. Bhattacharyya submitted that there is no averment in the plaint
that the plaintiff is having any privity of contract. As per the case made
out by the plaintiff, either the plaintiff had a direct contract with the
defendant no. 1 or through the defendant no. 6. There is no contract
between the plaintiff and the defendant no. 10 either in writing or
orally.
6. Mr. Bhattacharyya has drawn the attentions of the Court of paragraph
83 of the present application wherein the plaintiff has alleged that the
defendant nos. 1, 10, 11 and 13 delivered only six consignments to the
plaintiff and the details have been provided in the said paragraph but
the corresponding document which is appearing at page no. 256
onwards of the present application are in between the plaintiff and the
defendant no. 1 and not with the defendant no. 10.
7. Mr. Bhattacharyya further submitted that the plaintiff has made a
complaint against the defendant no. 10 before the concerned police
authority on the basis of which police has initiated FIR and during
investigation, police has seized the containers but on completion of
investigation, police did not find any material against the defendant no.
10 and had filed final report.
8. Learned Counsel for the defendant no. 10 has relied upon Section 41(d)
of the Specific Relief Act, 1963 and prayed for vacating the interim
order and to revoke the leave granted under Section 12A of the
Commercial Courts Act, 2015.
9. Mr. Bhattacharyya relied upon an unreported judgment in the case of
Proactive Ship Management Pvt. Ltd. -vs- The Owners and Parties
Interested in the Vessel Green Ocean in AS No. 6 of 2023 dated
22nd February, 2024 and submitted that if the Court comes to a
specific and subsequent finding either suo motu or an application made
by the defendant that the suit did not contemplate urgent interim relief
at the time of institution, the Court is entitled to dismiss the suit.
10. Mr. Bhattacharyya relied upon the judgment in the case of Bengal
Club Limited -vs- Susanta Kumar Chowdhary reported in 2002 SCC
OnLine Cal 376 and submitted that there is a clear lack of candour on
part of the plaintiff and thus on this ground alone the suit filed by the
plaintiff is required to be dismissed.
11. Mr. Bhattacharyya relied upon the judgment in the case of Patil
Automation Private Limited & Ors. -vs- Rakheja Engineers Pvt.
Ltd. reported in (2022) 10 SCC 1 and submitted that Section 12A of
the Commercial Courts Act, 2015 is a mandatory provision and
violation of the said Section, plaint is liable to be rejected under Order
VII Rule 11 of the CPC.
12. Mr. Bhattacharyya relied upon the judgment in the case of New Okhla
Industrial Development Authority -vs- Ravindra Kumar Singhvi
(dead) through legal representatives reported in (2022) 5 SCC 591
and submitted that affidavits filed are not mere sheet of paper but a
solemn statement made before a person authorized to administer oath
or to accept affirmation. He submits that in the present case, the
plaintiff has breached such solemn statement made on oath.
13. Mr. Bhattacharyya relied upon the judgment in the case of MD.
Serajuddin & Ors. -vs- State of Orissa reported in (1975) 2 SCC 47
and submitted that all relevant documents were in the name of the
plaintiff and the defendant no. 1 with regard to supply of materials,
therefore, there is no occasion to supply any material by the defendant
no. 10 to the plaintiff.
14. Mr. Mainak Bose, Learned Advocate representing the defendant nos. 6
and 7 by referring the 4th, 5th, 6th, 7th and 8th contracts submitted that
all the contracts were entered between the plaintiff and the defendant
no. 1 and thus there is no privity of contract between the plaintiff and
the defendant nos. 6 and 7.
15. Mr. Bose by referring the prayer of the plaint and submitted that prayer
(a) is not connected with the defendant nos. 6 and 7 as regard prayers
(f), (g), (h), (i), (j) and (k), no case is made out by the plaintiff against the
defendant nos. 6 and 7. He submits that no amount is remitted to the
account of the defendant no. 6 by the plaintiff.
16. Mr. Bose has referred page 149 of the application and submitted that
no communication was made by the plaintiff to the defendant no. 6. He
submits that no agreement was entered between the plaintiff and the
defendant no. 6 and as such no cause of action arose to file the present
suit against the defendant no. 6. Mr. Bose has pointed out the
documents relied by the plaintiff which are in between the plaintiff and
the defendant no. 1.
17. Mr. Bose relied upon the judgment in the case of Union of India -vs-
Raman Iron Foundry reported in (1974) 2 SCC 231 and submitted
that it is well settled law that a claim for unliquidated damages does
not give rise to a debt until the liability is adjudicated and damages
assessed by a decree or order of the Court or other adjudicatory
authority.
18. Mr. Bose relied upon the judgment in the case of M/s.
Srivenkateswara Constructions & Ors. -vs- The Union of India
reported in 1973 SCC OnLine AP 163 and submitted that it often
happens that in order to circumvent an arbitration clause, a plaintiff
adds some unnecessary parties to the suit to avoid the arbitration
proceedings.
19. Mr. Bose relied upon the judgment in the case of Biswanath Rungta -
vs- Oriental Industrial Engineering Co. Pvt. Ltd. & Ors. reported in
1974 SCC OnLine Cal 74 and submitted that all parties to arbitration
proceeding should be deemed to have knowledge of arbitration
agreement and that whether he has taken step in the proceeding
should be judged strictly.
20. Mr. Bose relied upon the judgment in the case of M/s. Damco India
Pvt. Ltd. -vs- M/s. Samtel Glass Limited & Ors. reported in 2013
SCC OnLine Del 446 and submitted that where nonparties to the
Arbitration Agreement but parties to the suit are neither necessary nor
proper for adjudication of the disputes. He submits that in the present
case also the cause of action only against the defendant no. 1 and not
the defendant nos. 6 and 7.
21. Mr. Bose relied upon the judgment in the case of Harleen Jairath -vs-
Prabha Surana & Anr. reported in 2019 SCC OnLine Cal 2372 and
submitted that an attachment before judgment is not a process to be
adopted as a matter of course. The suit is to be tried and the defendant
is to be tested.
22. Mr. Bose relied upon the judgment in the case of Raman Tech and
Process Engg Co. & Anr. -vs- Solanki Traders reported in (2008) 2
SCC 302 and submitted that passing an order under Order 38, Rule 5
of CPC, the Court should be satisfied that there is a reasonable chance
of a decree being passed in the suit against the defendant. He submits
that the Court should be satisfied that the plaintiff is having prima
facie case. He further submits that it is well settled that merely having
a just or valid claim of a prima facie case will not entitle the plaintiff to
an order of attachment before judgment, unless it is establishes that
the defendant is attempting to remove or dispose of his assets with the
intention to defeat the decree that may be passed in favour of the
plaintiff.
23. Mr. Bose relied upon the judgment in the case of Sanghi Industries
Limited -vs- Ravin Cables Limited & Anr. reported in 2022 SCC
OnLine SC 1329 and submitted that to secure an order under Order
38 Rule 5 of the CPC, the plaintiff has satisfied that the defendant is
likely to defeat the decree that may be passed by the Court.
24. Mr. Dhruba Ghosh, Learned Senior Advocate representing the
defendant nos. 1, 2, 3 & 5 and submitted that the defendants have
already filed an application under Section 8 of the Arbitration and
Conciliation Act, 1996 for referring the parties to arbitration in terms of
the clause of contracts entered between the plaintiff and the defendant
no.1 and the application is pending for adjudication.
25. Mr. Ghosh has relied upon the judgment in the case of Asma Lateef &
Anr. -vs- Shabbir Ahmad & Ors. reported in (2024) 4 SCC 696 and
submitted that a Court can be held to have jurisdiction to decide a
particular matter it must not only have jurisdiction to try the suit
brought but must also have the authority to pass the orders sought for.
He submits that it is not sufficient that it has some jurisdiction in
relation to the subject matter of the suit. He submits that its
jurisdiction must include the power to hear and decide the questions at
issue, the authority to hear and decide the particular controversy that
has arisen between the parties.
26. Mr. Surajit Nath Mitra, Learned Senior Advocate representing the
plaintiff submits that in the month of June 2020, the plaintiff entered
into discussions with defendant no.6 for purchase of bulk quantities of
1000 MTs and above High Carbon Ferro Manganese through a common
acquaintance, one Mr. Pratik Batra. The plaintiff was informed by Mr.
Batra that the defendant no.6 had quoted a price of 900.00 US Dollars
for supply of bulk quantities of High Carbon Ferro Manganese. He
submits that the plaintiff was surprised to receive the offer as the
defendant no.1 was supplying the lesser quantity of the same product
manufactured by the defendant no. 6 at a price of 795.78 Euro under
the 1st contract.
27. Mr. Mitra submitted that a virtual meeting on the Skype Platform was
held on 10th June, 2020 between the Director of the plaintiff, Senior
Manager of the defendant no. 6 and Mr. Pratik Batra. Relying on the
assurances and promise made by the defendant no. 6 in course of
virtual meeting, the plaintiff authorized its bank to remit the entire
balance consideration of 105,000.00 Euro in three instalments.
28. Mr. Mitra submitted that defendant nos. 1 and 6 gained trust and
confidence of the plaintiff by delivering consignment of the 1st Contract.
He submits that the defendant no.1 represented to the plaintiff that it
could deliver further quantities of the materials sourced from the
defendant no. 6 at a price lower than the price of the first contract. He
submits that pursuant to negotiations the plaintiff and the defendant
no. 1 entered into a sale and purchase contract on 14th July, 2020
under which the defendant no.1 agreed to sell and deliver 540 MTs of
High Carbon Ferro Manganese at 700.00 Euro per MT to the plaintiff at
Kolkata. Mr. Mitra submitted that as per the advice of the defendant
no.1, the plaintiff issued instructions for payment of entire balance
consideration of 273,000.00 Euro in two instalments on 5th October,
2020 and 6th October, 2020.
29. Mr. Mitra submitted that there is no dispute with regard to 1st and 2nd
Contract. The plaintiff entered into sales and purchase contract on 22nd
August, 2020 in which the defendant no.1 had agreed to supply 3000
MTs of Ferro Silicon Manganese to the plaintiff at the rate of 585.00
Euro per MT FOB at Kolkata. He submits that the defendant no.1
represented that it was able to give immediate delivery of 1000 MTs of
the goods sourced in part from the defendant nos. 6 and 8 and
requested to make advance payment. As per request of the defendant
no.1, the plaintiff has paid total payment from 11th September, 2020 to
14th October, 2020. The plaintiff has also arranged thirty seven (37)
empty containers from Lancer Container Lines Ltd. The plaintiff has
also arranged adequate numbers of jumbo bags bearing plaintiff's logo
in which the goods were to be packed before stuffing into containers.
The plaintiff has also instructed the SGS India Private Ltd., to carry out
the inspection of the materials. The SGS has visited the factory
premises of the defendant no.8 and took inspection. On inspection, the
SGS has found that the cargo did not comply with the contractual
specifications. Subsequently after discussion, the plaintiff got delivery
of 270 MTs of cargo in ten (10) numbers of containers from defendant
no. 8 between December, 2020 to January, 2021.
30. Mr. Mitra submitted that the defendant no.1 ultimately expressed its
inability to deliver 3000 MTs and requested the plaintiff to reduce the
quantity to 1295 MTs. The plaintiff had agreed to reduce the
contractual quantity and the defendant no.2 on behalf of defendant
no.1 submitted revised invoices of 1295 MTs. He submitted that
inspite of reduction of contractual quantity to 1295 MTs, the defendant
nos. 1, 6 and 8 did not deliver the balance quantity of 944 MTs though
the plaintiff had made total payment.
31. Mr. Mitra submitted that the defendant no.1 informed the plaintiff, it
could supply superior quality of Medium Carbon Ferro Manganese in
bulk quantities sourced from defendant no.10 which was an associate
company of the defendant no.6 and both are part of the "Shyam
Group". He submits that the defendant no. 6 had also represented that
the defendant no.10 was its associate company and both were the part
of Shyam Group. As per negotiations, the plaintiff entered into a sales
and purchase contract on 13 July, 2020 with the defendant no.1 and
the defendant no.1 agreed to sell 1000 MTs of Medium Carbon Ferro
Manganese of the specific grade at the price of 999.00 Euro per MT at
Kolkata.
32. Mr. Mitra submitted that under the 3rd Contract, the plaintiff has made
aggregate payment of 585,000.00 Euro being the price of 1000 MTs but
has received delivery of only 757 MTs valued at Rs. 442,845.00 Euro.
He submits that the plaintiff is entitled to receive the excess amount of
Rs. 142,155.00 Euro. He submits that under the 4th Contract, 4
containers were found at the Haldia Dock Complex and the police
seized the said containers and subsequently, the police released the 4
containers to the plaintiff but the plaintiff had to make payment of
15,276.00 USD on account of container detention and other charges
though it was the liability of the defendant no.1 as regard to 6
containers containing aggregate quantity of 162 MTs of the Medium
Carbon Ferro Manganese under the 4th contract lying at the factory of
the defendant no.10 which is seized by the police. The plaintiff has
already paid an amount of Rs. 30,00,000/- to the Cmora Cargotech Pvt.
Ltd. on account of detention charges. As per the claim of the plaintiff,
the plaintiff is entitled to get an amount of Rs. 327,299.71 Euro.
33. Mr. Mitra submitted that the plaintiff has made payment of 763,830.00
Euro being the price of 1242 MTs under the 5th Contract but the
plaintiff received delivery of only 810 MTs valued at 498,150.00 Euro.
As per the case of the plaintiff, the plaintiff is entitled to receive an
amount of 265,680.00 Euro. He submits that the plaintiff is entitled to
get an amount of 680,635.53 Euro from the defendant nos.1 to 5 as
well as from the defendant nos. 6, 7, 10, 11 and 12 jointly and severally
with respect to the 5th contract.
34. Mr. Mitra submitted that the plaintiff has made payment of 445,654.00
Euro being the price of 446 MTs under 6th Contract but the defendants
have not delivered any material under the said contract and thus the
plaintiff is entitled to receive an amount of 445,654.00 Euro. The
plaintiff has made payment of 448,950.00 Euro being the price of 730
MTs of goods but no materials were delivered to the plaintiff and the
plaintiff is entitle to receive an amount of 448,950.00 Euro along with
interest.
35. Mr. Mitra submitted that the plaintiff had made payment of 99,743.00
Euro being the price of 170 MTs under the 8th contract but no
materials were delivered to the plaintiff now the plaintiff is entitled to
receive the said amount along with interest.
36. Mr. Mitra submitted that the consignment of 162 MTs of Medium
Carbon Ferro Manganese stuffed in 6 containers presently lying at the
factory of the defendant no.10 and the goods are in a deliverable
condition and the price of the said materials have already paid by the
plaintiff. He submits that the defendant no.10 has also filed an
application before the Learned Court of Additional Chief Judicial
Magistrate at Sealdah for release of the 6 containers but the defendant
no. 10 is not entitled to get possession of the goods of the containers.
37. Mr. Mitra in support of his submissions relied upon the following
judgments:
"i. (2004) 1 SCC 438 (Shanti Kumar Panda -vs-
Shakuntala Devi).
ii. (2009) 11 SCC 545 (Seth Ramdayal Jat -vs-
Laxmi Prasad).
iii. (2006) 6 SCC 207 (Om Prakash Srivastava -vs-
Union of India & Anr.).
iv. (2007) 15 SCC 52 (Jageshwari Devi & Ors. -vs-
Shatrughan Ram).
v. (2007) 12 SCC 768 (Oriental Insurance Co. Ltd. -
vs- Raj Kumari (Smt) & Ors.).
vi. (2004) 7 SCC 166 (S.J.S. Business Enterprises
(P) Ltd. -vs- State of Bihar & Ors.).
vii. 1987 SCC OnLine Cal 51 (Sm. Muktakesi Dawn
& Ors. -vs- Haripada Mazumdar & Anr.).
viii. (1994) 1 SCC 1 (S.P. Chengalvaraya Naidu
(Dead) By Lrs. -vs- Jagannath (Dead) by Lrs. &
Ors.).
ix. (2021) 6 SCC 418 (Rahul S. Shah -vs- Jinendra
Kumar Gandhi & Ors.).
x. (2024) 5 SCC 815 (Yamini Manohar -vs- T.K.D.
Keerthi).
xi. Unreported judgment in the case of Gavrill Metal
Pvt. Ltd. -vs- Maira Fabricators Pvt. Ltd. passed in
APD 3 of 2022 with CS 130 of 2020 with IA No. GA
1 of 2022).
xii. 1999 SCC OnLine Cal 460 (Jitesh Pandey -vs-
Smt. Urmilata Sinha & Ors.)."
38. As per the case of the plaintiff, the plaintiff and the defendant no.1
entered into altogether eight contracts and as per the contracts, the
plaintiff has paid the entire amount of contracts. As regard to the 1st
and 2nd contract, the plaintiff submits that there is no difficulty in the
said two contracts. With regard to other contracts, the plaintiff has
claimed the amount mentioned above as in some contracts, the
defendants have supplied less quantity of materials than the agreed
quantity on receipt of full amount of the contract or some contracts, the
defendants have received amount but no materials were supplied. This
Court by an order dated 10th May, 2024 granted ad-interim order in
favour of the plaintiff in terms of prayer (a), (f), (g), (h), (i), (j) and (k) till
5th July, 2024. On receipt of notice, the defendants have entered
appearance and argued the matter on the ground of maintainability
without filing any show cause.
39. The main contentions raised by the defendant nos. 6, 7 and 10 that
there is no privity of contract between the plaintiff and the defendant
nos. 6, 7 and 10. There is no document to show that the defendants
have received any amount from the plaintiff and the leave granted
under Section 12A of the Commercial Courts Act, 2015 is to be revoked
as there is no urgency as pleaded and the urgency which the plaintiff
relied upon cannot be said to be urgency. The defendant No.1 has filed
an application under Section 8 of the Arbitration and Conciliation Act,
1996 for referring the parties to the arbitration as in the contract, there
is an arbitration clause.
40. After receipt of notice, the defendants have entered appearance. The
defendants have also not prayed for any time to file show cause. Mr.
Mitra raised contention that the defendants have not filed any show
cause or opposition which deemed that the statement made by the
plaintiff is admitted. As per the case of the plaintiff that the defendant
no.1 represented the plaintiff that defendant no.1 could deliver
materials sourced from the defendant no.6. The defendant no.6 had
assured and promised the plaintiff that would supply materials to the
defendant no.1 for onward supply to the plaintiff. The defendant no.1
also represents the plaintiff that the substantial quantity of the
materials had been manufactured by the defendant no.6 and ready and
willing to commence supply and accordingly the plaintiff has made
payment. The defendant no.1 also represented that the defendant no.8
is also established manufacturing company and the defendant no.1 is
associated with defendant no.8 on similar terms as associated with the
defendant no.6. The defendant no.1 informed that the defendant it had
made payment to the defendant no.6. The defendant no.6 had also
represented to the plaintiff that defendant no.10 was its associate
company and both the defendants were part of Shyam Group of
companies.
41. In the case of Jitesh Pandey (Supra), the Coordinate Bench of this
Court held that:
"17. In my view, a person aggrieved by
an ad interim order of temporary injunction has
three-fold remedies. Firstly, he can answer the
show cause notice by filing written objection to
application for temporary injunction putting
forward his defence and thus convince the court
that the plaintiff is not entitled to the injunction and
that the order of ad interim injunction should be
vacated. Secondly, such person can come forward
with an application under Order 39 Rule 4 of the
Code for immediate variation of the ad
interim injunction thereby not only drawing
attention of the court to fraud or suppression on the
part of the plaintiff in obtaining ad
interim injunction but also exposing his own
defence to the prayer of temporary or ad
interim injunction. Lastly, without taking recourse
to the aforesaid two ways of vacating the ad
interim injunction, the aggrieved person may
straightway prefer an appeal before an appellate
court under Order 43 Rule 1(r) of the Code. But if he
decides to choose the above mentioned remedy by
way of an appeal before filing written objection, or
application under Order 39 Rule 4 of the Code, he
must be prepared to accept all statement made in
the application for temporary injunction to be true
and he should persuade the appellate court that
even if the allegations of the otherside are true, the
trial court ought not to have granted an ad
interim order of injunction. But without showing
cause as ordered by the trial Judge or without
filing any application under Order 39 Rule 4 of the
Code, the aggrieved person cannot insist on
showing cause or placing his defence before the
appellate court for the first time. Such procedure
will be against the scheme of Order 39 of the Code.
Similarly, in such an appeal the scope of
investigation is very limited. The appellate court
will only consider whether on the basis of the
materials on record, the learned trial Judge was
justified in granting an ad interim order of
injunction."
In the present case though the defendants have not preferred an
appeal against the order of ad-interim injunction but have also not filed
any show cause to the injunction application or any application for
vacating interim order or variation of interim order but immediately on
the first day of appearance the Learned Counsel for the defendant no.
10 raised objection with regard to the maintainability and jurisdiction
and subsequently on receipt of application and documents, the
defendant nos. 6 and 7 also without filing show cause or an application
for variation of the order argued the matter for revocation of leave and
vacating of interim order.
42. As regard revocation of leave, the suit filed by the plaintiff is
commercial in nature and thus either the plaintiff has to initiate pre
institution mediation process or to seek leave from the Court showing
urgency. In the case of Patil Automation Private Limited & Ors. -vs-
Rakheja Engineers Pvt. Ltd. reported in (2022) 10 SCC 1, the
Hon'ble Supreme Court held that Section 12A of the Commercial Court
Act, 2015, is mandatory and also hold that any suit instituted violating
the mandate of Section 12A must be visited with rejection of the plaint
under Order 7, Rule 11 of the CPC. It was also held that this power can
be exercised even suo-motu by the Court.
In the case of Yamini Manohar vs. T.K.D. Keerthi reported in
(2024) 5 SCC 815, the Hon'ble Supreme Court held that:
"10. We are of the opinion that when a plaint
is filed under the CC Act, with a prayer for an
urgent interim relief, the commercial court should
examine the nature and the subject-matter of the
suit, the cause of action, and the prayer for interim
relief. The prayer for urgent interim relief should
not be a disguise or mask to wriggle out of and get
over Section 12-A of the CC Act. The facts and
circumstances of the case have to be considered
holistically from the standpoint of the plaintiff. Non-
grant of interim relief at the ad interim stage, when
the plaint is taken up for registration/admission
and examination, will not justify dismissal of the
commercial suit under Order 7 Rule 11 of the Code;
at times, interim relief is granted after issuance of
notice. Nor can the suit be dismissed under Order 7
Rule 11 of the Code, because the interim relief, post
the arguments, is denied on merits and on
examination of the three principles, namely : (i)
prima facie case, (ii) irreparable harm and injury,
and (iii) balance of convenience. The fact that the
court issued notice and/or granted interim stay
may indicate that the court is inclined to entertain
the plaint."
In the present case admittedly, the plaintiff has not initiated pre
institution mediation process. This Court has granted leave under
Clause 12A of the Commercial Courts, Act, 2015. The plaintiff pleaded
that the defendant no.10 has filed an application before the Learned
Court of Additional Chief Judicial Magistrate at Sealdah for release of
the six (6) containers and the plaintiff claims that the plaintiff has
engaged containers for stuffing the materials but the defendants have
not delivered the said materials and when the plaintiff filed a
complaint, the police has seized the said containers from the factory
godown of the defendant no.10 but the police has submitted final report
and if the defendant no.10 is not restrained, the defendant no.10 or its
agents, servants or assignees will utilize the goods of the plaintiff
available in the six (6) containers. To that effect, the plaintiff has also
prayed for an interim order in prayer (a) of the application. In the
plaint, it is the specific case of the plaintiff that the plaintiff has hired
ten (10) containers for stuffing the materials of the plaintiff but when it
was not delivered to the plaintiff, the plaintiff has filed a complaint to
the police and during investigation, the police recovered four (4)
containers at the Haldia Dock Complex and the same was handed over
to the plaintiff and the plaintiff paid the charges and subsequently six
(6) containers were seized from the factory of the defendant no. 10 now
the defendant no. 10 intent to release the said containers from the
Learned Court for utilization of the materials of the said containers.
In the case of Gavrill Metal Pvt. Ltd vs. Maira Fabrication Pvt.
Ltd., passed by the Hon'ble Division Bench of this Court also held that
in cases under Section 12A it involves exercise of discretion by the
Learned Judge on consideration of the pleadings. When discretion has
been exercised, a court of first instance should not revoke the leave.
43. Considering the above, this Court finds that the leave under Section
12A of the Commercial Courts Act, 2015 is granted after considering
the averments in the plaint, nature of urgency as well as a prayer for
ad-interim injunction. Thus the prayer made by the defendant nos. 6, 7
and 10 for revocation of leave under Section 12A of the Commercial
Courts Act, 2015, is refused.
44. As regard to the jurisdiction of this Court, the defendant no.1 has
already filed an application for referring parties to arbitration as per
clause of contracts between the plaintiff and defendant no.1 and this
Court already passed direction for exchange of affidavit and the point of
jurisdiction will be decided in the said application.
45. As regard to vacating the interim order, this Court finds that the
defendants have neither filed show cause nor have filed any application
for variation of interim order granted in favour of the plaintiff and
without going into merit of the case at this stage, this Court is not
inclined to vacate the interim order.
46. Let affidavit-in-opposition be filed within two weeks after puja vacation,
reply if any be filed within two weeks thereafter. List the matter on 29th
November, 2024. Interim order granted earlier is extended till 29th
November, 2024 or until further order whichever is earlier.
(Krishna Rao, J.)
p.d/-
