9911796707
TMI Blog2008 (8) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... to the common order and judgment dated 22nd April, 2008 by which IA No.7864/2003 preferred by appellant Sagar Warehousing Corporation and IA No.7863/2003 preferred by appellant M/s Fly Jac Forwarders were decided, assailed in the present appeals. Both the appellants by the respective I.As had sought vacation of the ex parte ad interim order passed by the learned Single Judge on 20th February, 2002. Directions had also been sought by the appellants for removal of the goods by Pawan Hans Helicopters Ltd after paying the dues of the appellants for transportation and warehousing charges. Vacation of the restraint on the appellant from alienating, encumbering and disposing of the goods was also sought. 2. For facility of reference, Sagar War ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an authorized transporter. The term authorized transporter was defined in the contract to mean any transporter having demonstrated the capacity to transport part of the package from Safdarjung Airport, New Delhi to Mumbai and from Juhu Airport, Mumbai to Mumbai Customs Port as approved by the purchaser (emphasis supplied). In the instant case, it is common ground that AES had appointed FJF as the authorized transporter. This becomes apparent from the letter dated 30th September, 1999 written by Pawan Hans to FJF which is reproduced for facility of reference:- We have been advised by M/s AES Aerospace Ltd, England that Fly Jac Forwarders, New Delhi has been appointed by them for inland transportation of Westland 30 helicopters and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Pawan Hans in the circumstances filed a petition under section 9 of the Arbitration and Conciliation Act, 1996 for restraining AES or its agents from alienating or disposing the shipment of helicopters and spares lying with SWC. The learned Single Judge vide orders dated 20th December, 2002 granted an ex parte ad interim injunction restraining FJF and SWC from alienating, encumbering or otherwise disposing of the goods. Direction was also sought that Pawan Hans be permitted to lift helicopters and spares only upon payment of the warehousing and transportation charges of SWC and FJF. 4. The learned Single Judge by the impugned order dismissed the two applications filed by the appellants. He further permitted Pawan Hans to lift good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preservation of the property which is subject matter of arbitration. It cannot be used as a camouflage or a ruse to seek possession and that too with the appellant being deprived of the payment of their legitimate dues. 6. Let us consider the above submissions in the light of the findings and the view taken by the learned Single Judge. The learned Single Judge on a consideration of the agreement terms between Pawan Hans and AES reached the conclusion that the property in the good was to pass only upon entire sale consideration being paid. This is a common ground that entire sale consideration has not been paid and only 4,50,000 has been paid. Under Section 9 of Sales of Goods Act, 1930 property in goods pass when intended to be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented by FJF would not arise since the same was the liability of AES. We are of the view that the order passed by the learned Single Judge subserves the ends of justice and is fair and equitable. Besides the same would clearly fall within the ambit of Section 9(2) (a) and (e) of the Arbitration and Conciliation Act, 1996 as the order is in respect of goods which are the subject matter of an arbitration agreement and the order of restraint on appellants, who are not parties to the arbitration agreement is intended to preserve and protect the goods. The plea of the learned Single Judge having exceeded his jurisdiction is mis-conceived. The helicopters in question had been lying at the ware house since December, 1999 with no prospect of AES ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
