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TMI Blog2011 (8) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ALTAMAS KABIR, J. 1. This order is being passed at the stage of notice on the Special Leave Petition filed by Suchetan Exports P. Ltd., which was the Defendant No.1 in Special Civil Suit No.187 of 2011 filed by Gupta Coal India Limited, the Respondent No.1 herein. 2. Some of the facts disclosed in the Plaint and the Written Statement are not disputed. It is not disputed that on 12.4.2010, the Plaintiff and the Defendant No.1 entered into an Agreement for sale and purchase of South African Coal measuring 16,943 metric tonnes. The Plaintiff agreed to sell the said quantity of coal to the Defendant No.1 at US $111.75 per metric tonne. On 22.4.2010, the Plaintiff, i.e., the Respondent No.1 herein, entered into another High Seas Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent no.2 out of the total quantity of 16,943 metric tonnes received by it from the Petitioner. 4. Since the Petitioner failed to pay the balance sum of 5,82,58,560/-, the Respondent No.1 filed Special Civil Suit No.187 of 2011, inter alia, for a declaration that the Petitioner had committed breach of contract and that the Agreements dated 12.4.2010 and 22.4.2010 stood cancelled and terminated. The Respondent No.1 also claimed return of the balance quantity of coal, amounting to 7400.082 metric tonnes, lying with the Respondent No.2 and for a decree for an amount of 1,22,04,349/- against the Petitioner towards the balance payment of the 9,542.920 metric tonnes of coal delivered to it by the Respondent No.2. Certain other claims w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, if any, due from the said Respondent. 6. Aggrieved thereby, the Petitioner preferred an appeal before the Nagpur Bench of the Bombay High Court, being Appeal from Order No.53 of 2011. 7. From the submissions made on behalf of the respective parties, the High Court noted that after taking into consideration all the claims of the Respondent No.1, the total amount due from the Petitioner in respect of the transaction was 6,19,58,123/-. On the other hand, it was the Petitioner's claim that the suit as filed by the Respondent No.1 was not for recovery of money for the goods supplied, but for cancellation/ termination of the Agreements dated 12.4.2010 and 22.4.2010, which were governed by the provisions of Section 46(1)(a) read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such amount is deposited, within a stipulated period by the defendant no.1, the application Exh.5 for grant of temporary injunction filed by the plaintiff, shall stand dismissed. (c) If the defendant no.1 fails to deposit an amount of ₹ 6,19,58,123/- (Rupees Six Crores Nineteen Lacs Fifty Eight Thousand One Hundred Twenty Three Only), within a stipulated period, the order of injunction passed by the Trial Court below Exh.5 on 16.4.2011, shall continue to operate pending the decision of the suit. (d) The plaintiff shall be at liberty to file an application for withdrawal of the said amount if deposited by the defendant no.1 and the same shall be decided by the Trial Court, within a period of four weeks from the date of serving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Mr. Ranjit Kumar submitted that the Petitioner was ready and willing to deposit the balance price of the remaining quantity of the coal measuring 7400.082 metric tonnes for lifting the same and the other claims of the Respondent No.1 towards demurrage and port charges etc. could be decided by the trial court in the pending suit. 11. Mr. Ranjit Kumar also urged that by allowing the Respondent No.1's prayer for interim relief and passing a mandatory order of injunction thereupon, both the trial court as well as the High Court, had provided the Respondent No.1 with the ultimate relief prayed for in the suit at the interim stage and if the remaining quantity of coal was allowed to be removed by the Respondent No.1, the suit of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Stevedore/Respondent No.2, having particular regard to the fact that the Agreement was a High Seas Sales Agreement which entails clearance of the goods from the vessel and its entrustment with the Stevedore which involved heavy costs per diem. In this regard, paragraph 3 of the aforesaid Agreement, inter alia, provides that the Respondent No.1/seller would have a lien over the cargo unless payment was made in full and the Petitioner/purchaser subrogated its right of insurance claim in favour of the Respondent No.1. It was also stipulated that the quality was to be determined and certified by an independent inspection agency of Disport and the same would be final and binding on both the parties. It was further stipulated that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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