M/S Standard Ganpati Merchandise ... vs M/S Watco Shipping Services & Ors.
2017 Latest Caselaw 2196 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 89/2017

%                                                      3rd May, 2017

M/S STANDARD GANPATI MERCHANDISE PVT. LTD.
                                              ..... Appellant
             Through: Mr. Roshan Shanthalia, Advocate.

                          versus

M/S WATCO SHIPPING SERVICES & ORS.         ..... Respondents

Through: Mr. Anuj Nair, Advocate for R-2.

Mr. B.L. Garg and Mr. Dhananjay Kumar, Advocate for R-4.

Mr. J.S. Mann, Advocate for R-3 and

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

,

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal under Order XLIII Rule 1(r) of the Code

of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff

against the impugned order dated 25.1.2017. By the impugned order

the application under Order XXXIX Rules 1 and 2 CPC moved by the

appellant/plaintiff, seeking the relief of release of the goods to the

appellant/plaintiff and which are lying with the shipping company and

its agents being the defendant nos. 1, 2, 3 and 5, has been disposed of

by ordering that the appellant/plaintiff can only receive the goods on

depositing of Rs.25,00,000/- as security in court in the form of fixed

deposit receipt.

2. The subject suit was filed by the appellant/plaintiff

seeking decree for a sum of Rs.38,31,938/- against the

respondents/defendants jointly and severally along with interest as also

the relief of mandatory injunction directing the defendant no. 5 in the

suit i.e the shipping agency namely Majestic Maritima Private

Limited/respondent no. 5 to release the imported goods to the

appellant/plaintiff.

3. The main contesting defendant in the suit is defendant

no.4 and who is respondent no. 4 in this appeal. Respondent no. 4

contested the suit by filing written statement and pleading that the

appellant/plaintiff is not the owner of the goods, inasmuch as, the

goods in question were in fact purchased by the respondent

no.4/defendant no. 4 from the seller J&R Holding Limited. It was

argued that all the documents being the commercial invoice, packing

list, certificate of origin, certificate of analysis, etc were issued by the

seller in the name of the respondent no.4/defendant no.4, however, the

appellant/plaintiff in collusion with the seller got the bill of lading

changed in the name of the appellant/plaintiff. Respondent

no.4/defendant no.4, therefore, claims that it/he is the owner of the

goods and not the appellant/plaintiff. Respondent no.4/defendant no. 4

also states that 25% advance payment being USD 8030 has already

been paid to the seller J&R Holding Limited who had received the

payment from Kotak Mahindra Bank.

4. Appellant/plaintiff was not successful in getting the goods

released from the shipping company and customs, inasmuch as, when

the entry documents were filed it was required that even the

commercial invoice, and other documents pertaining to the goods had

to be in the name of the appellant/plaintiff but since they were in the

name of respondent no.4/defendant no. 4 hence no objection certificate

was asked from the respondent no.4/defendant no. 4 and which

respondent no.4/defendant no. 4 objected to release of the goods in

favour of the appellant/plaintiff by the shipping company on the

ground that it is the respondent no.4/defendant no.4 which is the owner

of the goods and which situation has resulted in filing of the present

suit.

5. It is, therefore, seen that there is a disputed question of

fact which requires trial as to who is the owner of the goods, i.e

whether the owner of the goods is the appellant/plaintiff or it is the

respondent no.4/defendant no.4. Though the appellant/plaintiff has

filed the bill of lading in his name, however it is seen that all other

original documents of the goods in question being the commercial

invoice, packing list, certificate of origin, certificate of analysis, etc are

all in the name of respondent no. 4/defendant no. 4 who had also made

advance payment of 25% to the seller J&R Holding Limited.

6. Therefore, the disputed question of fact as to who is the

owner of goods whether the appellant/plaintiff or respondent no.

4/defendant no.4 can only be decided after a trial and at this interim

stage no order can be passed for unconditionally allowing the

appellant/plaintiff to receive the goods and which will amount to

passing a decree in favour of the appellant/plaintiff and against the

respondent no.4/defendant no. 4 with respect to the goods in question.

7. In my opinion the trial court has rightly balanced the issue

by directing the release of goods to the appellant/plaintiff only after the

appellant/plaintiff depositing a sum of Rs.25,00,000/-, and which is a

fair and balanced order although it would have been preferable if no

order whatsoever had been passed by the trial court directing release of

the goods to the appellant/plaintiff as there was a disputed question of

fact requiring trial as to who was the owner of the goods being either

the appellant/plaintiff or the respondent no.4/defendant no.4.

8. Learned counsel for the appellant/plaintiff sought to place

reliance upon a judgment of the learned Single Judge of this Court in

W.P. (C) No. 1721/1990 decided on 22.4.2009 titled as Transworld

Shipping Service (P) Limited Vs. Central Warehousing Corporation

and Ors., to argue that courts can issue interim mandatory injunction for

release of the goods, however, it is seen that the judgment in the case of

Transworld Shipping Service (supra) was a judgment in a writ petition

wherein there was the importer/petitioner on one side with the port

storage companies on the other side and the issue in that case was only of

release of goods by de-stuffing the container on payment of demurrage

charges and in that case there were no disputed questions of fact with

respect to title of goods between two contesting parties and which dispute

exists in the present case. The judgment in the case of Transworld

Shipping Service (supra) therefore does not help the appellant/plaintiff.

9. In view of the above, I do not find any illegality whatsoever

in the impugned order dated 25.1.2017, and the present appeal is

therefore dismissed.

MAY 03, 2017                                   VALMIKI J. MEHTA, J
AK