Shri Krishna Papers Mills & Inds. ... vs Natvar Parikh Inds. Ltd. And Ors.
2002 Latest Caselaw 2140 Del

JUDGMENT

B.N. Chaturvedi, J.

1. In a suit for permanent and mandatory injunction, an application under Order XXXIX Rules 1 & 2 CPC being IA. No. 10963/02 seeking a restraint order against defendant No. 1 and/or its agents, servants etc. from in any manner holding back any of the documents demanded by the plaintiff in its letter dated 14.11.2002 relatable to 5th and 6th consignments arriving in containers at ICD Jaipur, has been made.

2. The plaintiff, Shri Krishna Papers Mills & Industries Limited, in the process of setting up an industrial plant of paper mills at RICCO Industrial Area, Village Keshwana, Tehsil Kotputli, Jaipur, Rajasthan for manufacturing papers, entered into a MOU dated 1.7.2000 with M/s. Industrial Exchange Corporation, 5108, Arrowhead Road, Hanover, Virginia, USA, for supply of secondhand paper making machinery at the cost of US$ 4,71,000. The plaintiff engaged defendant No. 1, Natwar Parikh Industrial Limited, as its 'carrier' for the shipment of containers containing the packed machinery from Water Town, USA to Inland Container Depot, Jaipur (in short 'ICD, Jaipur'). Under this arrangement four consignments have already been received by the plaintiff and now the dispute relates to 5th & 6th consignments.

3. The plaintiff claims to have liquidated all its liability against the first four consignments, deliveries whereof have already been taken. In anticipation of 5th & 6th consignments, the plaintiff wrote letters dated 12.11.2002 and 13.11.2002 to defendant No. 1 requesting it for handing over necessary documents required for customs clearance and Container Corporation of India Limited (in short CONCOR) clearance. This was necessitated in view of the fact that the services of the defendant No. 1 for customs and CONCOR clearance which was availed by it earlier, had been terminated by the plaintiff on 9th of November, 2002.

4. The defendant No. 1 sent the Cargo arrival notice-cum-debit note for the fifth consignment on 12th of November, 2002 to the plaintiff. The defendant No. 1 charged Rs. 1,40,000/- on account of customs clearance charges in spite of the contract in that respect having already been terminated on 9th of November, 2002. The plaintiff returned the empty containers of fifth consignment to ICD, Jaipur well within time without any delay in that respect on its part. In spite of that, the defendant No. 1 has raised debit notes for repositioning of empty containers from ICD, Jaipur to Navashiva Port, Mumbai. According to the plaintiff, the empty containers were liable to be returned by it to ICD, Jaipur only. It is alleged that false, frivolous and incorrect debt notes have been raised by defendant NO. 1 simply in order to cause wrongful loss to the plaintiff and wrongful gain to itself. According to the plaintiff, only a sum of Rs. 17,67,840/- in all is due and payable to defendant No. 1.

5. The defendant No. 1, denying that it was engaged by the plaintiff as its carrier for the aforesaid consignments, asserted that it is engaged in the international freight forwarding customs clearance and other allied shipping related activities and it was acting only as a delivery agent in India for its principal, M/s. Yellow Global, LLC 10990 Roe Avenue, MS E101, Overland Park, KS 66211, USA in respect of the various consignments constituting subject matter of the present suit. It is pleaded that the plaintiff is guilty of misleading this Court by omitting to produce the terms and conditions of the contract of consignments manifested in the Ocean Bill of Lading which is binding on the shipper and the consignee. It is alleged that as an international freight forwarder and shipping agent for its principal, the defendant No. 1 had entered into an agreement with the plaintiff only to facilitate the freight forwarding of the cargo to be imported by the plaintiff from its shipper as per the terms and conditions manifested in the agreement dated 3.8.2002 issued by the defendant to the plaintiff. Contrary to the claim of the plaintiff that the empty containers were to be returned to ICD, Jaipur, within three working days, the defendant No. 1 pleads that the same were, in fact, to be returned to the custody of the Shipping Line at Mumbai. Justifying its debit notes on account of repositioning charges, the defendant No. 1 referred to its e-mail dated 2.9.2002 informing the plaintiff that the containers were required to be returned to NHAVA SHEVA. However, as plaintiff failed to return the containers to the Shipping Lines at Mumbai, debit notes on account of repositioning charges had to be raised against it. It is claimed that as per terms and conditions of the Bill of Lading, the defendant No. 1 is justified inholding lien over the consignments in question until clearance of all charges by the plaintiff due against it. Apart from raising claim against the 5th and 6th consignment, the defendant No. 1 has raised liability against the plaintiff for certain amounts in relation to the earlier four consignments also. Accordingly, the defendant No. 1 is seeking payment of a total amount of Rs. 42,82,142/- from the plaintiff before necessary documents for customs and CONCOR clearance is made available to the plaintiff.

6. I have heard the learned counsel for the parties. Oral hearing apart, I have also perused the synopsis filed by defendant No. 1.

7. Opposing the grant of relief in the nature of interlocutory injunction, apart from insisting for payment of the aforesaid amount of Rs. 42,82,142/-, it was argued on behalf of the defendant No. 1 that the suit being not properly valued for the purpose of court fee and the plaintiff being guilty of suppressing materials facts by omitting to refer to Clause 17 read with Clause 3 of the Bill of Lading providing for lien over the Cargo against the dues payable to it by the plaintiff, the suit itself is not maintainable.

8. It appears unnecessary at this juncture to examine the matter in greater detail as far as the amount which is actually due and payable by the plaintiff to the defendant No. 1 is concerned as this constitutes the very subject matter of the suit. At the very outset of hearing on the application, to cut short delay in securing the release of the consignments to escape suffering liability on account of ground rent and demurrage due to detention of the containers at ICD, Jaipur and non-return thereof, as contemplated under the agreement, and further to obviate the possibility of likely delay in setting up the manufacturing unit, on behalf of the plaintiff, an offer was made, whereunder, it agreed to make payment of Rs. 27 lakhs to the defendant No. 1 and deposit the balance amount of Rs. 15,82,142/- our of Rs. 42,82,142/- being demanded by the defendant No. 1 which could also be released to defendant No. 1 on its furnishing a bank guarantee for refund thereof in the event of that amount in the ultimate analysis, not being found due to it.

9. The learned counsel for defendant No. 1, on instructions from defendant No. 1, however showed reluctance to accept this offer and he rather insisted for payment of the entire amount of Rs. 42,82,142/- without any bank guarantee for Rs. 15,82,142/- as proposed by the plaintiff. Refusal to accept the aforesaid offer from the plaintiff was ought to be justified by the learned counsel for defendant No. 1 on the plea that defendant No. 1 was working as agent for its principal on commission basis only and, thus, it was required to remit the entire amount allegedly due and payable by the plaintiff to its principal. It was submitted that the requirement of bank guarantee for release of balance amount of Rs. 15,82,142/- would work hardship on its part as it will have to keep that much of its amount blocked with the bank concerned apart from incurring other incidental charges to secure a bank guarantee for the amount.

10. Be that as it may, since the amount actually due and payable to defendant No. 1 is yet to be ascertained in the course of trail and it would be pre-mature to venture any finding in that respect on the basis of pleas and counter-pleas being raised by respective parties with reference to various documents on record, in balancing the equities between the parties, the offer made on behalf of the plaintiff appears to be just and fair solution to the problem. While outright payment of Rs. 27 lakhs to defendant No. 1 would ease its financial liability towards its principal to a considerable extent, deposit of balance amount against its total claim with the Registry of Court would be a sufficient measure of safeguard to its financial interest. In spite of disputing the correctness of the claim being raised by the defendant No. 1, offer of the plaintiff to the said effect manifests its bonafides and concern to clear its entire liability against the said consignments so that its project of setting up a new paper manufacturing unit is not unduly delayed resulting into incalculable financial loss to it in terms of loss of production and possible inflation in cost of accomplishing the project.

11. Learned counsel for the defendant No. 1 has referred to decisions in " Hindustan Petroleum Corporation Limited v. Sriman Narayan and Anr.", ; " The Lahore Electric Supply Co. Limited v. The Bombay Motor & Cycle Co.". 1922 Indian Cases 742; and " Rasul Karim and Anr. v. Pirubhai Amirbhai", 1914 (xxxviii) Bombay Series 381 in support of his plea against grant of ad interim injunction as prayed for. In addition following decisions were also cited while pleading for dismissal of the application:-

" Dorab Cawasji Warden v. Coomi Sorab Warden and Ors.",

" Ranbaxy Lab Limited v. Doon Apartments", 1979 Raj. LR. 7

" Magnum Films and Anr. v. Golcha Properties Private Limited", AIR 1983 Delhi 392

Nandan Pictures Limited v. Art Pictures Limited and Ors.",

12. It is hardly a matter of debate as far as the law relating to grant of interlocutory injunction is concerned and which is enunciated in the decisions referred to on behalf of defendant No. 1. Grant of interlocutory injunction either of prohibitory or mandatory nature, depends on facts of each case and no hand and fast rule can be laid down in that respect, which may have universal application in every case irrespective of its factual peculiarity. In the present case, keeping in view the nature of controversy, awaiting final adjudication in due course, the offer, as aforesaid, made by the plaintiff deserves to be accorded sanction to relieve it (plaintiff) of avoidable financial hardship and loss, which is likely to be occasioned due to delay in release of consignments, by incurring liabilities on account of ground rent and demurrage charges and in turn in setting up the new manufacturing paper unit thereby causing incalculable financial loss in terms of production and cost inflation in establishing the unit and making it functional. As compared to the financial loss which the plaintiff is likely to suffer in case of refusal to grant interlocutory relief as prayed for, monetary loss, if any, likely to be occasioned to the defendant No. 1 on account of arranging for a bank guarantee to seek release of Rs. 15,82,142/- appears to be on a lower side and that way the balance of convenience appears to lie in favor of the plaintiff.

13. In the facts and circumstances of the case, keeping aside technical pleas raised on behalf of defendant No. 1, against maintainability of the suit, which can be raised and addressed at an appropriate stage of the trial guided by judicial expediency aiming at substantial justice, the application is disposed of in the following terms:-

a) The plaintiff shall make immediate payment of Rs. 27 lakhs to defendant No. 1 on its furnishing an undertaking to the Court in the form of an affidavit that in case in the ultimate analysis this amount or any part thereof is found to be in excess of the one which is actually due and payable to it by the plaintiff, the same shall be refunded to the plaintiff on being so directed. If the defendant No. 1 fails to file an undertaking as aforesaid within seven days, the plaintiff shall be at liberty to deposit the amount with the Registry.

b) The plaintiff shall deposit the balance amount of Rs. 15,82,142/- with the Registrar General of this Court within seven days, which shall be released to defendant No. 1 on its furnishing security in the form of a bank guarantee to compensate the plaintiff to that extent if so directed, to the satisfaction of the Registrar General. If the defendant No. 1 fails to furnish such a bank guarantee, the amount of Rs. 15,82,142/- shall be invested in a fixed deposit for a period of one year in the name of Registrar General. The interest accruing on such deposit shall be payable in terms of judgment to be passed while disposing of the suit finally; and

c) On compliance of the aforesaid conditions by the plaintiff, the defendant No. 1 shall release all the relevant documents to the plaintiff within three days which are necessary to seek customs and CONCOR clearance by the plaintiff in respect of the consignments in question, and the defendant No. 1 and/or its agents, servants will stand injuncted from acting in any manner which may cause hindrance in securing the said clearance by the plaintiff.