Prabhu Shipping Lines Private Limited vs River Edge Shipping Private Limited & ...
2025 Latest Caselaw 1507 Cal/2

Calcutta High Court

Prabhu Shipping Lines Private Limited vs River Edge Shipping Private Limited & ... on 28 March, 2025

                  IN THE HIGH COURT AT CALCUTTA
                             ORIGINAL SIDE
                        COMMERCIAL DIVISION



Present:

The Hon'ble Justice Krishna Rao



                           IA No. GA 7 of 2023

                                     In

                       CS (COM) No. 314 of 2024

                        (Old No. CS 192 of 2021)



                Prabhu Shipping Lines Private Limited

                                   Versus

              River Edge Shipping Private Limited & Ors.




           Mr. Dhruba Ghosh, Sr. Adv.
           Mr. Rajarshi Dutta
           Mr. Nipun Saxena
           Ms. Shrivalli Kajaria
           Mr. Piyush Agarwal
           Mr. Debojyoti Das
                                                   ... For the plaintiff.


           Mr. Debraj De
           Mr. Anurag Kumar
                                          ... For the defendant no. 2.
                                        2


            Mr. Shaunak Mitra
            Mr. Soumava Mukherjee
                                        ... For the proforma defendant no. 3.




Hearing Concluded On : 11.03.2025

Judgment on             : 28.03.2025

Krishna Rao, J.:

1. The plaintiff has filed the present application being G.A. No. 7 of 2023

for recalling of the order dated 21st November, 2022 passed in G.A. No.

4 of 2022 (Regal Container Line Pvt. Ltd. Vs. Prabhu Shipping Lines)

and also prayed for recalling of the part of the order dated 9th February,

2023 wherein this Court directed the plaintiff to re-verify and re-affirm

the plaint within 17th February, 2023.

2. The plaintiff has originally filed the suit being C.S. No. 192 of 2021

against River Edge Shipping Private Limited as the defendant no.1 and

Nepal Shipping and Multimodal Transport Private Limited as the

Proforma Defendant praying for the following reliefs:

"a. A decree of permanent injunction restraining the defendant and each of them, their servants, agents, assigns and all other acting for and on its behalf from in any way or manner operating and/or handling and/or utilising any of the containers owned and/or controlled and/or required to be controlled and/or leased by the plaintiff and/or the proforma defendant, as indicated in paragraphs 25, 26 and 27 hereof;

(b) A decree of permanent injunction restraining the defendant and each of them. their servants, agents, assigns and all other acting for and on its behalf from acting and/or holding itself out as an

agent, of the proforma defendant and from performing any act in relation to the agency agreement dated 10th March, 2019;

(c) A decree of mandatory injunction directing the defendant to hand over possession of all the containers owned and controlled and/or required to be controlled by the plaintiff and/or the proforma defendant as indicated in paragraphs 25, 26 and 27 hereof, which are in possession of the defendant;

(d) A decree of perpetual injunction restraining the defendant and each of them, their servants, agents, assigns and all other acting for and on its behalf from in any way or manner operating and/or handling and/or utilising any of the containers owned and/or controlled and/or required to be controlled and/or leased by the plaintiff and/or the proforma defendant, as indicated in paragraphs 25, and 27 hereof;

(e) A decree of perpetual injunction restraining the defendant and each of them, their servants, agents, assigns and all other acting for and on its behalf from acting and/or holding itself out as an agent of the proforma defendant and from performing any act in relation to the agency agreement dated 10th March, 2019;

(f) Attachment;

(g) Receiver;

(h) Injunction;

(i) Costs;

(j) Further and/or other reliefs."

3. In the suit, the Regal Container Line Pvt. Ltd. filed an application being

G.A. No. 4 of 2022 for addition of party. By an order dated 21st

November, 2022, this Court has allowed the application filed by the

Regal Container Line Pvt. Ltd. by passing the following order:

"On behalf of the plaintiff, the applicant's contention is seriously disputed. The plaintiff says that the said agreements by virtue of the letter dated 8th December, 2020 and its addendum dated 28th December, 2020 should be held as fraudulent documents. It has been signed on behalf of the proforma defendant by a person who, according to the plaintiff, is not the managing director of Nepal Shipping Lines. Although, the applicant has not filed any action towards defending its right or asserting the same but in view of the agreement arising out of the letter dated 8th December, 2020 read with addendum dated 28th December, 2020 the applicant has been, prima facie, able to show that there was an agreement between itself and the proforma defendant. The plaintiff on the other hand cannot have any independent knowledge about the dealing between proforma defendant, the defendant no1 and the applicant save and except which they derived from the proforma defendant. The entry of the plaintiff as a general agent is only on or after 1st April, 2020. The defendant and the proforma defendant remain unrepresented despite service.

In the aforesaid facts and circumstances calling for affidavit as prayed for by the plaintiff will not change the scenario even if an affidavit is filed, as the plaintiff cannot have any independent knowledge regarding the transactions between the defendant no.1, proforma defendant and the plaintiff.

In the aforesaid facts and circumstances, I add the applicant as a defendant in the suit. The department is directed to carry out the amendment to the cause title by adding "Regal Container Line Pvt. Ltd., a company within the meaning of the Companies Act, 2013 having its registered office at 1/425, Gariahat Road (South), Kolkata - 700068 outside the jurisdiction, as aforesaid", as the defendant no.3. The amendment should be carried out within a period of fortnight from date. The plaintiff and the other defendants shall co-operate with the department in carrying out the amendment. After the amendment is carried out by adding the applicant as a party, the plaintiff will re-verify and re-affirm the plaint. A copy of the

amended plaint with all annexures shall be served upon the added defendant within two weeks from the date of re-verification and re-affirmation of the plaint to enable the said added defendant to file its written statement.

The application being GA 4 of 2022 is, accordingly, disposed of."

4. The added defendant, namely, Regal Container Line Pvt. Ltd. has filed

an application for addition of party mainly on the context that:

"1. This suit have been filed by the plaintiff who have been newly appointed as sales and handling agents of Nepal Shipping Lines, the proforma defendants herein. The performa defendants are operating liner services under the banner of "Nepal shipping Lines". The defendant is the general agent of the proforma defendant. The plaintiff herein filed this suit by dint of its appointment on 27.04.2021 as sales and handling agents of the proforma defendant. The trade notice dated 27.04.2021 issued by the proforma defendant thereby notifying the appointment of the plaintiff as their Sales and Handling agent is annexed hereto and marked as annexurе- "А".

3. The petitioners were initially appointed as booking agent of Nepal shipping and Multimodal Transport Private Limited, for Republic of India for ships, container Liner services, Non Vessel operating Liner services, freight services (including freight forwarding services) and/or Cross Trade services under direct calls and/or under any other arrangement made by Lines' management and under direct supervision of their General agent, River Edge Shipping Pvt. Ltd., Kolkata, India, the Defendant herein with the condition that for such services the petitioner herein will get agency commission on export cargo secured and booked by the petition shall be 2.5% (including Brokerage, if any), as and when vessel operation commences to load accept SOC (various MLO/NVO) agency commission for SOC belonging to other carriers (MLO, NVO etc.,) shall commences to be US

$5.00/20' and US $7.00 Per 40'/40'HC consolidated.

4. It is pertinent to state here that as per terms of appointment, the petitioner had to submit all receipts, expenditure and bills in writing along with applicable supporting documents in original to their General agent, River Edge Shipping Pvt. Ltd., Kolkata, the defendant herein on a fortnightly basis and all excess/surplus funds should be remitted to the nominated bank account of River Edge Shipping Pvt. Ltd., within seven days of submission of such receipts and expenditure. In view thereof for settlement of accounts of the petitioner with the proforma defendant, the conciliation of accounts of the petitioner with the defendant are very much essential.

The copy of the said appointment letter dated 8th day of December, 2020 is annexed hereto and marked with letter "B". The petitioners are providing their service without any complaint as yet.

7. The petitioner company is entitled to get US $66,4548.22 equivalent to INR Rs.4,97,87,953/- from the Proforma Defendant for their services. The petitioner's many times requested the proforma defendant and their General agent, the defendant herein to release the payment against the bills submitted to the defendant herein but the defendants and proforma defendant took time to pay on one pretext or the other and deferred the payment on the plea that within short time they will release the bill amount. There are certain other claim of the petitioner also for the service provided under the aforesaid agency agreement for which reconciliation of accounts with the proforma defendant as well as the defendant to the suit is required."

5. The added defendant being the defendant no. 2 has relied upon the

Agreement dated 8th December, 2020 wherein it is mentioned that the

added defendant is responsible to collect, when applicable, all

outstanding amounts from the customers and the added defendant is

also liable to deposit freight and other revenues from the territory in the

name of General agent, River Edge Shipping Pvt. Ltd., Kolkata. The said

Agreement is valid only for one year. The added defendant has relied

upon the Addendum dated 28th December, 2020 signed by Mohammad

Alamgir Aktar Sardar as Managing Director of Nepal Shipping and

Multimodal Transport Pvt. Ltd. but the Proforma defendant has

categorically denied with regard to the locus of Mohammad Alamgir

Aktar Sardar.

6. As per the contentions raised in the application being G.A. No. 4 of

2022, the added defendant, namely, Regal Container Line Pvt. Ltd.

claiming certain amounts form the proforma defendant i.e. Nepal

Shipping and Multimodal Transport Private Limited and the defendant

no. 1, namely, River Edge Shipping Private Limited. If at all, the added

defendant is having any claim against the proforma defendant and the

defendant no.1, the added defendant can initiate proceeding for

recovery of any amount against the defendant no. 1 or proforma

defendant but the added defendant cannot file any counter claim as

defendant in the present case against the defendant no.1 or the

proforma defendant.

7. The added defendant has disclosed one Agreement Number: SKR-

NPSP2020 which contains signatures of one Hun Heo on behalf of

Sinokor Merchant Marine Co., Ltd., Shri Devi Prakash Bhattachan as

Chairman of Nepal Shipping and Multimodal Transport Pvt. Ltd. and

Mohammad Alamgir Aktar Sardar as Managing Director of Nepal

Shipping Lines Pvt. Ltd. The same Agreement is disclosed by the

plaintiff in their affidavit-in-reply and in the said agreement only two

signatures are available i.e. of Mr. Hun Heo on behalf of Sinokor

Mechant Marine Co., Ltd. and Shri Devi Prakash Bhattachan as

Chairman Nepal Shipping and Multimodal Transport Pvt. Ltd. In the

said agreement, there is no signature of Mohammad Alamgir Aktar

Sardar.

8. This Court after going through the said agreement directed the plaintiff

and the added defendant to produce the original Agreement No. SKR-

NPSP2020. As per direction of this Court, the plaintiff has produced the

copy of the said agreement with an e-mail dated 11th March, 2025 at

10:16 sent by Bhawana Balayar, Nepal Lines to Nipun Saxena and copy

to others in which it is mentioned that "the attached agreement is the

copy of the original agreement which has been sent to our Lawyers office

in Kolkata". On receipt of the said e-mail, Mr. Nipun Saxena has

forwarded the same to the Learned Advocate-on-record of the plaintiff

and the same was produced before this Court. Learned Counsel for the

added defendant has not produced the original copy of the said

agreement and submitted that it is not possible for him to produce the

original agreement.

9. The plaintiff has also relied upon one affidavit executed by one

Bhawana Balayar, General Manager of Nepal Shipping and Multimodal

Transport Private Limited (NSPL). Paragraphs 2 and 6 of the said

affidavit, reads as follows:

"2. I state that Regal Container Line Pvt. Ltd/Respondent No. 2 was never authorized to be in business with NSPL/Respondent No. 3 by the agreement dated 08.12.2020 and its addendum dated 28.12.2020. These documents were never signed by both parties for it to come into effect.

6. That the agreement dated 08.12.2020 and its addendum dated 28.12.2020 are false and we, Respondent no. 3/NSPL have no copies of the said agreements in our official records. All these agreements sought to be relied were never duly signed or authorized by Respondent no. 3/NSPL."

10. The plaintiff has relied upon Minutes of Annual General Meeting for the

year 2020 of the Nepal Shipping and Multimodal Transport Pvt. Ltd.

wherein the name of all the Directors/Shareholders are appearing but

the name of Mohammad Alamgir Aktar Sardar is appearing neither as

Director or Shareholder. The plaintiff has also disclosed the list of

Directors of Nepal Shipping and Multimodal Transport Pvt. Ltd.

wherein the name of Mr. Devi Prakash Bhattachan, Mr. Binod Thakali

and Mr. Dhurba Chandra Dhital is appearing and the name of

Mohammad Alamgir Aktar Sardar is not appearing as Director of the

proforma defendant. The plaintiff has also disclosed the list of

Shareholders of the proforma defendant in the said list also name of

Mohammad Alamgir Aktar Sardar is not appearing.

11. In the Master Data of the River Edge Shipping Private Limited, the

defendant no.1 and the Master Data of Regal Container Line Private

Limited, the name of Mohammad Alamgir Aktar Sardar is appearing as

one of the Director of both the companies.

12. This Court has not granted time to the plaintiff to file affidavit-in-

opposition in connection with G.A. No. 4 of 2022 and without affidavit,

this Court has allowed the said application by adding Regal Container

Line Pvt. Limited as defendant no.2 in the instant suit. Now, the

plaintiff has disclosed all documents in the present application and

payed for deletion of the name of defendant no.2 by recalling the order

dated 21st November, 2022.

13. This Court finds that the claim of the added defendant is not against

the plaintiff. If at all any claim of the added defendant against the

defendant no.1 or the proforma defendant, the added defendant cannot

make any claim in the present suit against them by way of counter-

claim in the suit filed by the plaintiff.

14. Considering the above, this Court finds that at the time of allowing the

application being G.A. No. 4 of 2022, the plaintiff was not provided with

an opportunity of hearing to file affidavit-in-opposition due to which the

plaintiff could not disclose relevant documents. Now in the present

application, the plaintiff has disclosed all the documents and after

going through the documents, this Court finds that the added

defendant is not a necessary or proper party be added for adjudication

of the suit filed by the plaintiff against the defendant no. 1 and the

proforma defendant.

15. In view of the above, the order dated 21st November, 2022 passed in

G.A. No. 4 of 2022 is hereby recalled. Consequently, part of the order

dated 9th February, 2023 wherein directed the plaintiff to re-verify and

re-affirm the plaint within 17th February, 2023 is also recalled.

16. Leave is granted to the plaintiff to amend the cause title of the plaint as

per the proposed amendment being Annexure "T" of the present

application within two weeks from date and also granted liberty to re-

verify and re-affirm the plaint within a week after the amendment is

carried out.

17. G.A. No. 7 of 2023 is disposed of.

(Krishna Rao, J.)