Hapag Lloyd India Pvt Ltd & Anr vs Hotel Needs India & Ors.

Invoice Number,Date,Particulars,Amount in Rupees

2019459837,23-07-2020,Destination Port expenses,"17,155.60 USD

= 12,47,898.344 INR

2019459943,24-07-2020,"Demurrage at Destination

Port","23,759.00 USD

= 17,30,848 INR

DL10135886,03-09-2020,Sea freight for re-Import,"1,33,750.41/-

INR

DL10135888,03-09-2020,"Indian Port and

ICD expenses","67,603/- INR

DL10159053,01-02-2021,"Detention charges At Indian

ICD till 31st December, 2020","5,26,566.16 INR

DL10160536,09-02-2021,"Detention charges at Indian

ICD from 01/01/2021

to 31/01/2021","2,44,445/- INR

Not raised,----------,"Detention from 1stFebruary,

2021 Till 16/02/2021 @

Rs. 6682/- per day.","1,06,912/- INR

,,Total till 16/02/2021:,"40,58,022.914/- INR

Delhi High Court in the case of “M/s. Global Impex Through its Partner v/s. Manager, Celebi Import Shed and Anr., W.P.(C) 7577/2019 & CM",,,

No. 47877/2019, decided on 20/12/2019â€. Also see “Mumbai Port Trust v/s M/s. Shri Lakshmi Steels and Ors. Etc., Civil Appeal nos. 9831-32 of",,,

2017 decided by the Hon’ble Supreme Court of India on 27thJuly, 2017â€​.",,,

b) The Plaintiff is liable to make payments of all invoices in respect of the subject goods:,,,

i) It has been pointed out and contended by the Plaintiff that it is ready to deposit before this Honâ€ble Court the amounts due and payable in respect,,,

of invoices no. 2074601095 for an amount of Rs. 1,33,750.41/- and invoice no. 2074601097 for an amount of Rs. 67,603,380/- (hereinafter referred to",,,

as “Rupees Invoiceâ€) but he is not liable to pay or deposit amounts for the other two invoices, i.e. invoice no. 2019459837 dated 23rd July, 2020",,,

for an amount of UD17,155.60 and invoice no. 2019459943 dated 24th July, 2020 for an amount of USD23,795.00 (hereinafter referred to as",,,

“USD Invoiceâ€). The Plaintiff also falsely contends that the USD invoices are raised in favour of the Defendant no. 7 and not the Plaintiff and,,,

thus, he is not liable to pay the4 amounts against those invoices.",,,

(ii) As against this, this Defendant strongly states that it is absolutely false to state that the USD invoices are raised upon the Defendant no. 7 and not",,,

on the Plaintiff. A bare perusal of the said invoices at Annexure “A3†shall reveal that the invoice is not addressed to the Defendant no. 7,,,

particularly. In fact, the names of both the Plaintiff as well as the Defendant no. 7 are mentioned on the said invoices as Shipper and Consignee",,,

respectively. Thus, the said invoices are not particularly addressed to a particular party but the amount therein is payable by either the Plaintiff or the",,,

Defendant no. 7. In order to understand this liability of both the parties, it shall be necessary to see the clear and unambiguous terms and conditions of",,,

the Bill of Lading printed on the rear and annexed as Annexure “D4†along with the reply to I.A. A joint reading of clause no. 12, 13, 14 and 15",,,

of the said terms and conditions would show that all the costs, expenses, freight, charges, losses, liabilities and all monies due to the present Defendant",,,

no. 5 are payable “jointly and severally†by all persons coming under the definition of the term “MERCHANTâ€. Now, the definition of the",,,

term “MERCHANT†given in the same terms state that “Merchant includes the booking party, shipper and consignee named on page 2",,,

hereof, holder, receiver of the Goods or of this Bill of Lading, and any person owning or entitled to the possession of the Goods or this Bill of",,,

Ladingâ€. Thus, it can be seen that the Plaintiff cannot escape the liability to pay the costs and charges incurred at the Canada Port, i.e. USD Bills as",,,

all the charges are payable by “Merchant†as per the terms of Bill of Lading and the Plaintiff being the consignor of the goods comes under the,,,

definition of the term “Merchantâ€​ as the BL.,,,

iii) Without prejudice to the above, it is submitted by this Defendant that be that as it may it is even otherwise crystal clear from the above-mentioned",,,

statues, law, judgments and terms and conditions of the Bill of Lading that this Defendant has a statutory as well as contractual right of lien on the",,,

goods for “freight as well as other charges†which undoubtedly include the expenses in respect of these goods at the Port of destination in,,,

Canada. Therefore, this Defendant is well within its rights to hold the goods unless “All the charges†in respect of the said goods are paid to it,",,,

either by the Plaintiff or by the Defendant no. 7. It has been held by the Honâ€ble Supreme Court of India in the case of “M/s. RasiklalKantilal&,,,

Co. v/s. Board of Trustees of the Port of Bombay & Others, Civil Appeal no. 5968 of 2011 decided on 27/02/2017†that the right of lien in respect of",,,

goods for demurrage charges is enforceable against any person claiming goods even if he may be a complete stranger to the contract of carriage and,,,

that this right to hold the goods for demurrage charges should be protected.,,,

(iv) Without prejudice to the above, even otherwise it is apparent on the face of record that the goods belong to the Plaintiff, the Plaintiff had a",,,

contract with the Defendant no. 7 for sale of goods, the Plaintiff shipped the goods from India to Canada, the necessary certificates were not provided",,,

by the Plaintiff for the said goods, the Plaintiff shipped the goods from India to Canada, the necessary certificates were not provided by the Plaintiff",,,

for the said goods, the Defendant no. 7, who is the Plaintiffâ€s customer failed to take delivery of the said goods in Canada, demurrage and other",,,

charges have been imposed in Canada on the said goods, the goods were returned to India on Plaintiffâ€s account, the present Defendant no. 5 has",,,

suffered expenses as the Port of destination because of the Plaintiff and his customers defaults and now the Plaintiff has come to claim delivery of the,,,

goods from this Defendant. Thus, even as a matter of logical thinking it is only the Plaintiff who is responsible to pay the said charges suffered by this",,,

Defendant at the Port of destination and then claim the goods from this Defendant.,,,

Thus, from all the above-mentioned facts, circumstances and legal propositions, it would become crystal clear that this Defendant has a statutory as",,,

well as contractual lien on the subject goods of the Plaintiff and the Honâ€ble superior Courts of the country have time and again upheld the legality of,,,

the lien of Shipping Line and Ports over goods for payment of demurrage and other charges.â€​,,,

Significantly, there is no mention about any of the above arguments/defenses taken by the present appellants before the Trial Court. The",,,

contesting defendants have also raised serious objection to the plaintiff classifying the stainless-steel utensils as “Perishableâ€. The said stand of,,,

the defendants is contained in paragraph 6 (c) of the detailed written submissions and the same are reproduced hereunder:,,,

“c) The Plaintiff is not entitled to any relief from this Hon’ble Court as he has approached the Court with unclean hands and made false,,,

statements on oath in Plaint as well as I.A.:,,,

i) Without prejudice to the above it is most respectfully stated by the present Defendant that the Plaintiff has stated in para no. 30 and 33 of the Plaint,,,

that there is an extreme urgency in the present matter as the goods detained by this Defendant are “Perishableâ€. Moreover, on the strength of",,,

these statements and relying on this false contention before this Honâ€ble Court, the Plaintiff filed the present Interim Application and prayed for",,,

urgent hearing and decision in the present I.A. Unfortunately, even the Ld. Counsel representing the plaintiff has strenuously argued before this",,,

Honâ€ble Court that the goods are of “perishable†nature and therefore, relying on these statements, this Honâ€ble Court was pleased to issue",,,

urgent notices of hearing to all Defendants on 5th November, thereafter when the matter was heard on 9th November, again the Ld. Counsel",,,

representing the Plaintiff strongly argued that the Plaintiffâ€s goods are “Perishable†and likely to decay and again believing these statements, this",,,

Honâ€​ble Court was accordingly pleased to adjourn the matter for filing replies to I.A. and hearing on the very next day, i.e. 10th November.",,,

This Defendant most respectfully stated that this is clearly gross abuse of legal process on the part of the Plaintiff. As per the Plaintiffâ€s own,,,

declarations in Bill of Lading, the goods are “Stainless Steel Utensilsâ€​, and as per statement made in the Plaint and even in fact, the said goods are",,,

on board for transportation from January, 2020. It is pertinent to note that as peer the Plaintiffâ€s own statements, the goods claimed to be",,,

“perishable†have been transported from India to Canada and back from Canada to India from almost last 11 months. Firstly, it is interesting to",,,

see the definition of the term “perishable†as per different dictionaries is as follows: “likely to decay or go bad quickyâ€, “likely to perish;",,,

subject to destruction or natural decayâ€​.,,,

Now, at no stretch of imagination Stainless Steel Utensils can be said to be “Perishableâ€. In fact stainless steel utensils are used in almost every",,,

house and it has never been heard of being decayed or destroyed.â€​,,,

The present appellants have also referred to the lien of Port Authorities as well as the Ship Ownerâ€s lien in respect of the goods in terms of,,,

Sections 59 and 60 of The Major Port Trust Act, 1963. The said sections are reproduced here under:",,,

“59. Board’s lien for rates:,,,

(1) For the amount of all rates [leviable under this Act] in respect of any cargo, and for the rent due to the Board for any buildings, plinths, stacking",,,

areas, or other premises on or in which any cargo may have been placed, the Board shall have a lien on such cargo, and may seize and detain the",,,

same until such rates and rents are fully paid.,,,

(2) Such lien shall have priority over all other lines and claims, except for general average and for the ship-ownerâ€s lien upon the said cargo for",,,

freight and other charges where such lien exists and has been preserved in the manner provided in sub-section (1) of section 60, and for money",,,

payable to the Central Government [under any law for the time being in force relating to customs, other than by way of penalty or fine].",,,

60 Ship-owner’s lien for freight and other charges:,,,

(1) If the master or owner of any vessel or his agent, at or before ethe time of landing from such vessel any cargo at any dock, wharf, quay, stage,",,,

jetty, berth, mooring or pier belonging to or in the occupation of a Board gives to the Board a notice in writing that such cargo are to remain subject to",,,

a lien for freight or other charges payable to the ship-owner, to an amount to be mentioned in such notice, such cargo shall continue to be liable to such",,,

lien to such amount.,,,

(2) The cargo shall be retained in the custody of the Board at the risk and expense of the owners of the cargo until such lien is discharged as,,,

hereinafter mentioned; and godown or storage rent shall be payable by the party entitled to such cargo for the time during which they may be so,,,

retained.,,,

(3) Upon the production before any officer appointed by the Board in that behalf of a document purporting to be a receipt for, or release from, the",,,

amount of such lien, executed by the person by whom or on whose behalf such notice has been given, the Board may permit such cargo to be",,,

removed without regard to such lien, provided that the Board shall have used reasonable care in respect to the authenticity of such document.â€​",,,

Surprisingly, there is no mention of the above quoted sections or The Major Ports Act, 1963 anywhere in the impugned order, although, this is one",,,

of the major defenses taken by the present appellants while opposing the interim application filed by respondent no. 1.,,,

After going through the above, it is clear that the Ld. Trial Court has failed to appreciate even one single argument of defendant nos. 5 and 6 while",,,

passing the impugned order. The said order, at its best, can be termed as an ex-parte order solely based upon the submissions of the plaintiff; passed",,,

without caring for the reply or the written submissions filed by defendant nos. 5 and 6, who have no option but to challenge the said order before this",,,

court by filing this appeal.,,,

It is to be noted that merely stating in the impugned order by the Ld. Trial Court that “plaintiff has been able to show a prima facie case in his,,,

favour Balance of convenience is also in favour of the plaintiff and irreparable loss and injury would be caused to the plaintiff if interim injunction is,,,

not granted to himâ€​ does not satisfy the sacrosanct test of law and equity, where stand of the contesting defendants was totally ignored.",,,

We are conscious of the fact that even after discussing the stand of the defendants, the Ld. Trial Court could have reached to the same conclusion",,,

as arrived in the impugned order but at least consideration of the stand of both the contesting sides is required to arrive at a reasoned conclusion.,,,

Since, no findings have been given by the Ld. Trial Court on the stand of the contesting defendants as detailed above, we also refrain from arriving",,,

at any findings on the same and the only option left for us is to remand the matter back to the Ld. Trial Court with a request to consider all the,,,

documents and pleadings qua the interim application as well as the written submissions filed by both the parties, and thereafter, decide the interim",,,

application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 [in short “CPCâ€] afresh by passing a detailed, reasoned order.",,,

We have been also informed that the written statement as well as replication are already on record, which will help the Ld. Trial Court in crystallizing",,,

the dispute between the parties and to reach to a logical conclusion regarding the interim order to be passed in the facts and circumstances of the case,,,

after considering all the aspects of the matter, equities, applicable law and rival contentions of the contesting parties.",,,

Both the parties shall appear before the learned Trial Judge on 12.05.2021. We request the Ld. Trial Court to make every endeavor to dispose of,,,

the interim application at the earliest after giving sufficient opportunity to the contesting parties to address arguments. Till that time, impugned order",,,

dated 19.11.2020 shall remain suspended.,,,

The trial court is at liberty to set-aside, rescind, modify or re-confirm the impugned order dated 19.11.2020 without getting influenced by anything",,,

stated in the order hereinabove as we have not expressed any opinion on the merits of the case.,,,

It has also come to our notice that the valuation of the suit has not been done as per The Suits Valuation Act, 1887 and the appropriate court fees",,,

as per The Court Fees Act, 1870 has not been paid on distinctive reliefs prayed for by plaintiff in the suit. Learned Trial Judge may give an opportunity",,,

to the plaintiff to value its suit properly by segregating every claimed relief and to pay the appropriate ad-valorem/fixed court fees on the said reliefs.,,,

Accordingly, the appeal is disposed of. All the pending application(s) shall stand closed.",,,