2021 (5) TMI 90 - HC - Customs

Release of delivery order and original bill of lading of re-import shipment to enable the release of the subject consignment in favour of the plaintiff subject to payment by the plaintiff within 3 days from the date of the order - ex-parte order - HELD THAT - It is not in dispute that on the date when arguments on interim application were heard by the Ld. Trial Court, the reply filed by the contesting defendant nos. 5 and 6, was already on record but surprisingly in the impugned order not even one single sentence has been mentioned about the stand taken by the present appellants before the Ld. Trial Court and the impugned order dated 19.11.2020 was passed only on the basis of submissions made on behalf of the plaintiff without considering any argument advanced on behalf of the present appellants, who were vehemently opposing defending the said interim application - While going through the Bill of Lading, it has also come to our notice that Clause 25 provides for the territorial jurisdiction of only the Courts at Hamburg, Germany. The contract of shipping is to be governed by German law. It is worthwhile to mention that this Bill of Lading is available on the Ld. Trial Court s file and the same is relied upon by both the parties. The detailed written submissions filed by defendant nos. 5 and 6 running into 18 pages, were also on record of the Ld. Trial Court, in which specific reference has been made to the right of lien of the contesting defendants in respect of the goods and liability of the plaintiff (respondent no.1 herein) to make payments of all invoices raised in respect of goods in question. 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. Since, no findings have been given by the Ld. Trial Court on the stand of the contesting defendants nothing can be arrived at and the only option left 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 afresh by passing a detailed, reasoned order - The trial court is at liberty to set-aside, rescind, modify or reconfirm 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. Appeal allowed by way of remand..

Issues Involved:
1. Validity of the impugned order directing the release of the delivery order and original Bill of Lading.
2. Liability for charges incurred due to lack of necessary certificates.
3. Right of lien claimed by the appellants.
4. Jurisdiction of the trial court.
5. Classification of goods as 'perishable.'
6. Valuation of the suit and payment of court fees.

Issue-wise Detailed Analysis:

1. Validity of the Impugned Order:
The appellants challenged the order dated 19.11.2020 by the District Judge, Commercial Court, which directed them to release the delivery order and original Bill of Lading for the re-import shipment to the plaintiff subject to payment of specific invoices. The High Court noted that the trial court failed to consider the arguments and written submissions of the appellants, making the order ex-parte and solely based on the plaintiff's submissions. The High Court emphasized that the trial court must consider both parties' arguments to arrive at a reasoned conclusion.

2. Liability for Charges Incurred:
The appellants contended that the necessary certificates (Fumigation and Phytosanitary) were not provided by the shipper (respondent no. 1) or the consignee (respondent no. 6), leading to the consignment's uncleared status at the Canadian port and subsequent charges for demurrage, detention, customs, and other incidental expenses. These charges were billed to the shipper and consignee, who are both defined as "Merchant" under the Bill of Lading. The appellants argued that the plaintiff is liable to pay these charges as per the terms of the Bill of Lading.

3. Right of Lien Claimed by the Appellants:
The appellants asserted their right of lien over the goods for unpaid charges, citing Clause 15 of the Bill of Lading, which provides the carrier with a lien on the goods for all sums payable by the merchant. The appellants also referred to Sections 59 and 60 of the Major Port Trust Act, 1963, which grant the port authorities and ship owners a lien for freight and other charges. The High Court observed that the trial court did not consider these statutory and contractual rights of lien in its impugned order.

4. Jurisdiction of the Trial Court:
The Bill of Lading stipulated that the courts in Hamburg, Germany, have exclusive jurisdiction, and the contract is governed by German law. The High Court noted that this jurisdiction clause was not addressed by the trial court, despite being a significant aspect of the appellants' defense.

5. Classification of Goods as 'Perishable':
The appellants disputed the plaintiff's claim that the stainless-steel utensils were 'perishable.' They argued that the goods, being stainless steel utensils, do not decay or perish and that the plaintiff's urgency claim was misleading. The High Court highlighted that the trial court did not address this contention, which was crucial to the plaintiff's plea for urgent relief.

6. Valuation of the Suit and Payment of Court Fees:
The High Court observed that the suit's valuation was not done as per The Suits Valuation Act, 1887, and the appropriate court fees under The Court Fees Act, 1870, were not paid. The trial court was directed to provide the plaintiff an opportunity to properly value the suit and pay the requisite court fees for each claimed relief.

Conclusion:
The High Court remanded the matter back to the trial court, instructing it to consider all documents, pleadings, and written submissions from both parties and decide the interim application afresh under Order XXXIX Rule 1 and 2 of the CPC. The trial court was requested to dispose of the interim application expeditiously, and the impugned order dated 19.11.2020 was suspended until then. The trial court was also given the liberty to set aside, modify, or reconfirm the impugned order without being influenced by the High Court's observations. The appeal was disposed of, and all pending applications were closed.

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