Metalex Pipes Ltd. vs Iatc (P) Ltd.
1996 Latest Caselaw 525 Del

JUDGMENT

K.S. Gupta, J.

(1) Plaintiff has filed this suit for prohibitory and mandatory injunctions against the defendants, inter alia, on the allegations that it is engaged in the sale and purchase of ferrous and non-ferrous metals and is also the manufacturer of steel pipes at B-23 Mayapuri Industrial Area Phasel, Rewari Line, New Delhi. Defendant no.l is engaged in import and export of ferrous and non- ferrous metals. Plaintiff entered into a Bond Transfer Sale Agreement dt. 5.12.95 with defendant no.l for purchase of Hot rolled coils (for short the goods) weighing 3078.320 Mt stored under bond nos.CW-18-48 to CW-18-59 all dt. 25.9.95 at Bhandup Bonded Warehouse, Bombay under the control of defendant 2 and these goods are covered under the bill of lading no.s 1 to 12 all dt. 10.8.95. It is further alleged that in lieu of the sale consideration plaintiff paid Rs.6,60,000.00 vide cheque no. 744785 dt. 5.12.95, Rs. 6,00,000.00 vide cheque no. 468391 dt. 26.12.95, Rs. 9,00,000.00 vide cheque no. 468394 dt. 27.12.95 and Rs. 12,25,000.00 vide cheque no. 468397 dt. 1.1.96, totalling to Rs. 33,85,000.00 to defendant no.l. In the local market price of the goods has increased marginally and due to that reason defendant no.l has now become dishonest and in collusion with defendant no. 4 it is trying to find fault with its ownership to the goods in question. Enquiries have revealed that defendant no.l is taking steps to sell the goods to other persons at Delhi and Bombay. It was prayed that by passing decrees of prohibitory and mandatory injunctions defendnats, their agents,servants, successors and assignees may be restrained from disposing of and creating third party interest in the goods.

(2) Along with the plaint, an application under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code, being Ia No. 3397/96 was also filed by the plaintiff and thereon vide order dt. 18.4.96 defendant no. I was restrained from transferring or alienating the goods to any third party while defendant no. 2 was also restrained from permitting the goods to be removed without the leave of the court.

(3) On 30.5.96 defendant no.4 has filed the application under Order 39 rule 4 read with Section 151 Civil Procedure Code (IA No. 5128/96) for vacating that order dt. 18.4.96. It is alleged in the application that pursuant to the negotiations between defendant nos. 1 and 4 sale agreement dt. 7.7.95 was executed between the parties and as per that agreement hot rolled coils weighing 5655 Mt were agreed to be sold at UST) 300.00 per Mt Fob and the payment was to be made by defendant no.4 to defendant no.l immediately on presentation of the documents through the bank and any delay in making payment beyond three working days after the presentation of the documents was to attract interest @10% Pa calculated on 360 days year basis for the total period of delayed payment. 5717,160 Mt of goods were loaded on board, the vessel (ILFOV) and the shipping company issued 22 bills of lading and goods reached Bombay Port Trust around 11.9.95. It is further alleged that defendant no.l was not in a position to even pay for freight charges and vide fax message dt. 10.8.95 it requested defendant no. 4 to open letter of credit for the freight amount in favour of Asia Express Shipping Agency and accordingly defendant no.4 took immediate steps to open the letter of credit for the payment of freight charges for and on behalf of defendant no.l. It is stated that defendant no.l was also not in a position to pay the sale consideration and retire the documents and therefore, vide another fax message dt. 13.10.95 it requested defendant no. 4 that the goods be removed from the Bombay Port Trust to the Custom bonded Ware House and to deliver the first set of original 22 bills of lading to its clearing and forwarding agent - M/s Dhawani Brothers to enable them to remove the goods to the Custom bonded Warehouse. Defendant no.l further committed that only upon presentation of second and third sets of original bills of lading goods be allowed to he removed from the custom bonded warehouse. It also undertook, that the bankers of defendant 4 namely Bank of Nova Scotia, Singapore shall have a lien on the goods till the second and third sets of original bills of lading are retired by it after payment of the sale consideration. Accordingly defendant 4 made endorsement on the first set of 22 original bills of lading for a limited purpose to enable the clearing and forwarding agent of defendant I to shift the goods from Bombay Port to Custom bonded Warehouse to avoid demurrage. It is alleged that vide fax message dt. 13.10.95 defendant no. I assured to make payment of the goods as per the schedule noted in para 2.11 of lhc application. Karnataka Bank Ltd at the behest of Bank of Nova Scolia, Singapore called upon defendant 1 to make payment equivalent to Us $ 20,1006 and to retire the documents. On failure and neglect of defendant no. I to retire the documents on payment of the said amount the Karnataka Bank Ltd vide letter dt. 14.2.96 confirmed that defendant no.l has not made any payment and also returned the second and third sets of 22 original bills of lading to defendant no. 4. It is also alleged that advocate of defendant no. 1 sent a threatening letter dt. 26.12.95 to Bank of Nova Scolia, Singapore not to release the goods to defendant no. 4 & defendant no. 4 was, therefore, compelled to file a suit for declaration etc. being No. 774/96 titled as Jindal Overseas Pie Ltd vs. Itac Pvt. Ltd & ors before the Bombay High Court. After considering the reply filed by defendant no. 1 dt. 13.3.96 and hearing the counsel for the parties Justice D R Dhanuka released the goods in favour of defendant no. 4 vide order dl. 14.3.96 subject to certain conditions noted in that order ilself. Against that order defendant no.l filed an appeal before the Division Bench of the Bombay High Court but the same was dismissed, It is further alleged that defendant no. I docs not have any right and interest in the goods and alter having failed in its attempt before the single Judge and the Division Bench of the Bombay High Court it has set up a proxy plaintiff being its sister/associate concern to prevent defendant no.4 from taking delivery of lhc goods. It is emphatically denied that plaintiff paid Rs. 33,85,000.00 to defendant 1 through four cheques dt. 5.12.95, 6.12.95, 27.12.96 and 1.1.96 as alleged. It is alleged that defendant No.4 has already furnished bank guarantee for an amount of Rs.56,74,660.30 with the Bombay High Court as per the order dt. 14.3.96 and the plaintiff can always claim the alleged sum of Rs.33,95,000.00 which they claim to have paid to defendant no. I out of that amount. It is stated that plaintiff has obtained the order dt. 18.4.96 by suppressing the material facts and order is, therefore, liable to be vacated.

(4) In reply to Ia 5128/96 plaintiff has, inter alia, alleged that none of its directors is the director of defendant I company and plaintiff was not a party to the litigation purported to be between defendant no.l and defendant no.4 in the Bombay High Court. Plaintiffs suit is solely based on the Bond Transfer Sale Agreement dt. 5.12.95 and both the orders by the Bombay High Court were passed after 5.12.95. It is emphatically denied that sale agreement dt. 5.12.95 has been fabricated and no payment of Rs.33,85,000.00 was made by it to defendant 1, as alleged.

(5) It was contended by Mr. Arun Jaitley appearing on behalf of defendant 4 that the plaintiff has not been able to make out a prima facie case for grant of the ad interim injunction and the impugned order dt. 18.4.96 is, therefore, liable to be vacated. Strong reliance was placed on the authority of Mahadeo Savlaram Shelke & Ors. vs. Pune Municipal Corporation & anr . Along with Ia 5128/96 filed for vacation of the impugned order defendant no 4 has filed photostat copies of a number of documents filed in the High Court of Judicature at Bombay including the order dt. 14.3.96 passed in the suit. Order dt. 14.3.96 goes to show that the learned single Judge accepting the contention raised on behalf of defendant no. 4 in the present suit that the property in the goods has never passed to defendant no. I and the same would pass only on defendant no.l's taking delivery thereof against payment, ordered the release of the goods on the following terms:- "PLAINTIFFS do furnish bank guarantee of a nationalised bank in the sum of Rs.56.74,669.30 in favour of Prothonotary & Senior Master to secure the claim made by defendant no. 1 by letter dt. 10.2.96, exhibit L to the plaint. The said bank guarantee shall he initially procured for a period of one year and the same shall be kept alive by getting the same renewed from time to time during the pendency of notice of motion. On the said bank guarantee being furnished, ad interim mandatory order in terms of prayer (a-1) against defendants 2 and 3 both to be operative with immediate effect thereafter. Defendant no. 1 will execute such writings, application and no objection Idlers as may be required for enabling plaintiffs to take delivery of the goods from the concerned authorities being the goods described in Exhibit A to the plaint. In case the court ultimately upholds the claim of defendant 1 for reimbursement in the sum of Rs.l,04,00,000.00 the court shall pass appropriate orders in that behalf and the plaintiffs shall have to comply with the same within the time which may be granted by the court. For the moment the claim of defendant 1 for reimbursement in Rs.1.04 crores appears to be an inflated claim and prima facie it appears to the court that the plaintiffs arc not bound to reimburse defendant I in respect of the said amount and defendant 1 has no lien to obstruct taking delivery of the suit goods by the plaintiffs from defendant nos.2 and 3"

(6) It was not disputed before me that the appeal taken out against the above order by defendant 1 was dismissed by a Division bench & that order is, therefore, binding on the parties to that suit. Obviously, in view of the two orders passed by Bombay High Court defendant no. 1 does not have any title to the goods covered by the sale agreement dt. 7.7.95 and that being so there was no occasion on its part to have agreed to sell a part of those goods to the plaintiff under Bond Transfer Sale Agreement dt. 5.12.95. From this discussion it must follow that the plaintiff has miserably failed to even make out a prima facie case for grant of the ad interim injunction as claimed in Ia 3392/96. Therefore the order dt. 18.4.96 is vacated and Ia No. 3392/96 is dismissed.