Nafed vs Megnostar Telecommunication (P) ...
2009 Latest Caselaw 1932 Del

                  * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             Date of Reserve: 26.3.2009
                                                            Date of Order: May 08, 2009

OMP No. 34/2009
%                                                                            08.05.2009

        National Agricultural Co-operative Marketing
        Federation of India Ltd. (NAFED)         ... Petitioner
                         Through: Mr. Anshuj Dhingra, Advocate
                         Mr. Anubhav Mehrotra, Advocate

                  Versus


        Megnostar Telecommunication (P) Ltd.
        & Ors.                                                      ... Respondents
                       Through: Nemo


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

The petitioner had entered into an agreement/MoU dated 30.9.2004

with respondent no.1 (company) whereby the petitioner was to finance respondent

no.1 for importing telecommunication and electronic goods including mobile phones

etc. for supplies to parties in India. The petitioner at the request of respondents (R -

2&3 are MD and Director of R-1 company) agreed to provide Letter of Credit (LoC)

facilities for import/purchase of these telecommunication/electronic goods and

opened foreign LoC from time to time. The goods so imported were to be sold by

respondent no.1 on High Sea sale basis or in lots on ex-bonded/ex-stockyard

godown basis as mutually agreed. Respondent was to advise the petitioner

indicating details of quantities, specifications, price delivery schedule etc. The sale

on High Sea sale basis was to be done against 100% payment of the value of stock,

including bank expenses and services charges and respondent no.1 was to receive

7% p.a. as finance charges and in case the material was not lifted with the usance

period, respondent no.1 was to pay interest @ 8% p.a. of the finance receipt. The

petitioner released a total payment of 60.43 crores to respondent no.1 by Letter of

Credits. The respondent no.1 also purchased goods from domestic market for a

total amount of Rs.6,79,90,728/- in terms of the MoU. The goods under import and

domestically procured were used to be deposited in godown of respondent no.1 at

B-47/1, Wazirpur Group Industrial Area and in the godown of petitioner at A-8,

Lawrence Road, Delhi.

2. It is submitted by the petitioner that the respondent no.1 did not fulfill

the terms and conditions of the agreement and did not discharge its liability towards

the petitioner. The respondent admitted its liability towards the petitioner as per

balance confirmation note dated 31.3.2007 for a sum of 31,71,54,017.28. The

respondent failed to lift the stock from the aforesaid godowns and did deliberate acts

of not repaying the outstanding amounts. The petitioner also moved an application

for arbitration before this Court under Section 11(6) of the Arbitration & Conciliation

Act, 1996 and prayed for interim orders. Vide order dated 30.1.2008, the

respondent was restrained from selling, alienating or parting with possession of

property at 119, Gangandeep Building, Rajendra place, New Delhi and respondent

was also restrained from selling or transferring the goods which were subject matter

of MoU entered into between the parties.

3. The petitioner states that the stock located at the godown of the

respondent and the petitioner, as stated above, was being regularly supervised,

controlled and managed by Dr. Amin Controllers Pvt. Ltd. in view of MoU entered

into between the parties and in view of the order passed by the Court. It is submitted

that the respondents were not allowing Dr. Amin Controllers Pvt. Ltd. to get the lock

of the godown opened and conduct a survey to verify and confirm the status of stock

lying there. Dr. Amin Controllers Pvt. Ltd. vide its letter dated 26.11.2008 informed

the petitioner that despite repeated attempts, the surveyor though reached at the

premises, but could not carry the stipulated survey and waited there for three hours

to get access to the godown. It is submitted that the respondent was deliberately not

allowing Dr. Amin Controllers Pvt. Ltd. and the petitioner to conduct the survey of the

goods lying in the godown and to verify the stock and to assess if there was any

removal of the stock from the godown by the respondent. The petitioner expressed

apprehension that the stock lying in the godown could suffer pilferage by the

respondent jeopardizing the interest of the petitioner. The petitioner has made a

prayer in this petition that in view of the admitted liability of the respondent, the

petitioner should be permitted to sell/dispose of the aforesaid stock lying in the B-

47/1, Wazirpur Group Industrial Area and in the godown of petitioner at A-8,

Lawrence Road, Delhi and usurp the amount so received towards its outstanding

dues and also direct the respondent/its Director/officials/employees to provide

necessary arrangements.

4. Notice of the petition was served upon the respondents. Despite

service of notice none appeared for the respondents. Respondents were therefore

proceeded ex parte.

5. The averments made by the petitioner had gone uncontroverted. It is

pleaded by the Counsel for the petitioner that since goods involved are electronic

and telecommunication, their value is going down day-by-day and there is every

likelihood that goods may become obsolete and lose their worth if the permission is

not accorded to dispose of/sell the stock immediately.

6. There is no doubt that the technology in the field of electronics and

telecommunication is changing very fast. New models of equipment of

telecommunication are being introduced every day and the goods in this area

become obsolete very fast and lose their value. The petitioner may not be able to

materialize its acknowledged dues from the respondent. The stock lying in the

godowns shall keep on losing its worth with every passing day and soon may

become junk. I therefore, consider that the balance of convenience lies in favour of

the petitioner and against the respondent. The petitioner has shown prima facie that

it has a good case in his favour. The debt of the petitioner to the tune of more than

31 crore has been admitted by the respondent. The petition is hereby allowed.

7. The petitioner is permitted to sell goods lying in the above two

godowns in the open market through open tender method. The petitioner may

prepare an inventory of the goods lying there. The petitioner shall ask the

respondent to open lock of the godown at B-47/1, Wazirpur Group Industrial Area,

giving him date and time of reaching the godown. In case the respondent fails to

come to the godown and fails to open lock of the godown, the petitioner would be at

liberty to break open the lock. The petitioner may inform the local police before

breaking open the lock and shall prepare inventory of the goods in presence of Dr.

Amin Controllers Pvt. Ltd. and after preparing inventory, the goods shall be sold

through open tender. The amount so received by the petitioner shall be kept by the

petitioner in fixed deposit with its banker and the information shall be given to the

Arbitrator. The amount may be adjusted by the petitioner if the award is passed in

favour of the petitioner. In case the award goes against the petitioner, the amount

shall be disbursed as per the orders of the Arbitrator.

With these directions, the petition stands disposed of.

May 08, 2009                                   SHIV NARAYAN DHINGRA, J.
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