Safmarine Container Lines N.V vs M/S Amita Enterprises & Anr
2015 Latest Caselaw 7950 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 2014/2010 & IA No.13179/2010
      SAFMARINE CONTAINER LINES N.V                  ..... Plaintiff
                    Through : Mr. Mr. Kuber Dewan, Advocate

                     versus
     M/S AMITA ENTERPRISES & ANR                 ..... Defendants
                     Through :Mr. Abhinav Jain, Advocate for D-1.
                     Mr. Gagan Gupta, Advocate for D-2.
     CORAM:
     HON'BLE MS. JUSTICE HIMA KOHLI
                     ORDER

% 15.10.2015 IA No.14592/2015 (by the plaintiff u/Sec.151 CPC for withdrawal of the suit)

1. On the last date of hearing, counsel for the plaintiff was directed

to file a copy of the Compromise Agreement referred to as Ex.C-1 in

the order dated 16.10.2014, passed in the Consumer Complaint

Case No.11/2009, entitled 'Amita Enterprises vs. Safmarine'. The

said document has not been filed. Counsel for the plaintiff states that

he could not obtain a copy of the compromise application till recently

and now the same is available with him. A copy thereof has been

handed over to the Court, with a copy to the other side. The same is

taken on record.

2. It may be noted that the plaintiff has filed an interpleader suit

under Order XXXV read with Sections 88 & 151 CPC praying inter alia

that the defendants be directed to interplead together concerning their

respective claims in respect of a consignment of goods that was

booked through the plaintiff by an entity in Kenya for delivery,

originally to the defendant No.2 and subsequently, by change of

instructions through documents, to the defendant No.1. The plaintiff

has further prayed for directions to be issued to the defendants to pay

the amounts towards the ground rent, demurrage, etc., to Startrack

Terminal Private Limited, Dadri, where the said containers have been

detained on account of the proceedings initiated by the defendant No.2

against the plaintiff in the High Court of Kenya.

3. It is submitted by learned counsel for the plaintiff that apart

from the legal proceedings initiated by the defendant No.2 against the

plaintiff, the defendant No.1 had filed a complaint against the plaintiff

before the District Consumer Protection Forum at Gautam Budh Nagar,

NOIDA, UP. The said complaint was finally settled between the

plaintiff and the defendant No.1 through a compromise application

dated 15.10.2014, a copy whereof has been furnished today. The

said compromise application was allowed by the concerned court on

16.10.2014 and as a result, the complaint case was withdrawn by the

defendant No.1.

4. The Court is informed that the defendant No.2 has succeeded in

the first court at Kenya and aggrieved by the said order, the plaintiff

has filed an appeal in the Court of Appeal at Nairobi, Kenya which is

pending adjudication. As a result, the container in question is still

lying in the premises of Startrack Terminal Private Limited, at Dadri till

the final adjudication of the appeal filed by the plaintiff. In the

meantime, the plaintiff seeks permission to withdraw the present suit

with liberty to file a fresh proceeding, if necessary, as per law.

5. Though no specific averment has been made in the application,

counsel for the plaintiff states that the right to initiate fresh

proceeding is limited to any demurrage/damages/interest that may be

payable in view of the retention of the containers with Startrack

Terminal Private Limited, at Dadri and it is only in that context that the

plaintiff reserves its right to initiate fresh proceedings, as per law.

6. Counsel for the defendant No.1 does not have any objection to

the present application being allowed and he states that the dispute

between the plaintiff and his client is over in view of the settlement

recorded in the Compromise Deed.

7. However, counsel for the defendant No.2 opposes the application

and submits that the plaintiff has not specified the ingredients of Order

XXIII Rule 1(3) of the CPC in this application and in the absence of

making out any ground, it should not be permitted to initiate fresh

proceeding, as prayed for.

8. There is sufficient explanation offered by the counsel for the

plaintiff to initiate a fresh proceeding in respect of the damages, etc.,

that may be claimed by M/s Stratrack Terminal Pvt. Ltd. and/or its

nominees for retaining the containers in its premises. This is apparent

from a perusal of the prayers made in the present suit, particularly

prayer (b) of the plaint, that seeks directions to the defendants for

payment of the ground rent, container retention charges etc. to

Startrack Terminal (P) Ltd. Therefore, it cannot be stated that a fresh

proceedings cannot be initiated by the plaintiff for the subject matter

of the suit or part of the claim raised by the plaintiff in the present

case. Having regard to the submission made by counsel for the

plaintiff as noted herein above, and in view of the nature of relief

prayed for in the suit, this Court is of the opinion that the ingredients

of Order XXIII Rule 1(3) of the CPC stand satisfied.

9. For the reasons noted herein above, the present application is

allowed and the suit is dismissed as withdrawn, along with the pending

application, with liberty granted to the plaintiff, as prayed for.

10. File be consigned to the record room.

HIMA KOHLI, J OCTOBER 15, 2015 sk/ap