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TMI Blog2017 (2) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... ition Nos.51167-51168 OF 2016 W.P.Nos.51153-54/2016 - - - Dated:- 8-2-2017 - MR. ASHOK B. HINCHIGERI J. Petitioners: (By Sri Udaya Holla, Senior Advocate For Sri S. Guruprasanna, Advocate) Respondents: (By Sri K.V.Aravind, Advocate for R1: Sri Rayappa G.Hedagali, Advocate for R2: Sri M.B.Nargund, Senior Advocate for Smt.Sona Vakkund, Advocate for R3: Sri S.Rajashekar for Sri Dhananjaya Kumar, Advocate for R4) O R D E R The petitioners in W.P.Nos.51153-51154/2016 are seeking a writ of mandamus to the respondent No.1 to amend the Import General Manifest ( I.G.M. for short) to reflect the change of name of the consignee from the respondent No.4 to M/s. JHK Consultancy Private Limited. They have made an alternative prayer for a direction to the respondent Nos. 1 and 2 to consider the representations, dated 20.05.2016 and 01.09.2016 (Annexures P and S respectively) seeking the cancellation of the amendment of Manifest earlier effected in favour of the respondent No.4 and for effecting the amendment of the Manifest in favour of M/s. JHK Consultancy Private Limited. 2. The facts of the case in brief are that Cingler Ship Pte.Ltd. ( Cingler for short) loaded 77, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F INDIA AND ANOTHER v. SAMPAT RAJ DUGAR AND ANOTHER reported in (1992) 2 SCC 66 to advance the submission that if the importer fails to pay the value of goods, the exporter has to be allowed to deal with or seek to re-export the goods. 8. He also sought to draw support from the Delhi High Court s decision in the case of AGRIM SAMPADA LTD. ANR. v. UNION OF INDIA OTHERS reported in 2004 (72) DRJ 783 , wherein it is held that when importer fails to pay for the goods and abandons them, their ownership would continue to vest in the foreign supplier. 9. He asserts that notwithstanding the arbitration clause in the agreement between the petitioner No.1 and the respondent No.3, it can maintain the writ petition seeking the resolution of the issue, which is not covered by the arbitration agreement. He submits that the existence of an arbitration clause in the agreement is not an absolute bar for invoking the writ jurisdiction of this Court. In support of his submissions, he relies on the following authorities:- (i) (2011) 5 SCC 697 Union of India and others v. Tantia Construction Private limited. (ii) (2009) 14 SCC 451 National Sample Survey Organisation and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 on 31.08.2015. When the CER filed the appeal against the order, dated 05.08.2015 on 19.08.2015 and the stay application therein on 01.09.2015, the petitioners resisted it (stay application) on the ground of their entering into the sale agreement on the previous day. The sale agreement, dated 31.08.2015 did not fructify into the sale. But the same was not brought to the notice of the Appellate Court in Singapore. 14. The learned Senior Counsel submits that the petitioner No.1 filed the Arbitration Application (A.A.No.6/2016) before the District and Sessions Court, Dakshina Kannada seeking the interim relief, invoking Section 9 of the Arbitration and Conciliation Act, 1996. When serious jurisdictional issue was raised, the petitioner filed C.M.P.No.58/2016. In the memorandum of the said C.M.P., the petitioner No.1 had undertaken to withdraw A.A.No.6/2016, but as undertaken the said A.A. was not withdrawn. It was dismissed on 14.03.2016 for lack of jurisdiction. This Court by its order, dated 05.08.2016 (Annexure R-3F) directed that the C.M.P. be treated as Arbitration Petition-Interim Measure (AP-IM). The C.M.P. was converted and renumbered as AP.IM No.3/2016. The said case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner did not take any further steps in the matter. He reads out Article 10 of the said agreement which states that any dispute in connection with the said agreement has to be submitted to the Singapore International Arbitration Centre. Article 13 of the said agreement states that arbitration is to be held in Singapore. 20. He relies on the Apex Court s judgment in the case of reported in JOSHI TECHNOLOGIES INERNATIONAL INC. vs. UNION OF INDIA reported in (2015) 7 SCC 728 , wherein it is held that whenever a particular mode of settlement of disputes is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution of India and relegate the party to the said mode of settlement, particularly when the settlement of disputes is to be resorted through the means of arbitration. 21. He relies on the said decision of the Hon ble Supreme Court for canvassing yet another preposition that the writ jurisdiction of the High Court under Article 226 of the Constitution of India is not intended to facilitate the avoidance of obligation voluntarily incurred. 22. Sri Naragund further submits that the internal Annexure-A t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that the very filing of this writ petition is to preclude the Customs Authorities from taking a decision in the matter. 27. Sri K.V. Aravind, the learned counsel for the respondent No.1 submits that on receiving the representations from the petitioner, the Customs Authorities called upon the petitioner No.1 to produce the supporting additional documents. In the meanwhile, both the parties have approached this Court. The Customs Authorities are bound to act on the basis of the orders, which the Court may pass by adjudicating their dispute. 28. Sri K.G. Raghavan, the learned Senior Counsel appearing for Sri Rayappa for the respondent No.2 submits that the subject coal consignment is lying in the port area for more than one year. The area in which cargo is lying is earmarked and designated for M/s. Chettinad Mangalore Coal Private Limited ( M/s. Chettinad for short). M/s. Chettinad has to build multi cargo terminal, operate it and transfer it to the second respondent Port. He submits that any further delay in handing over the area in question to M/s. Chettinad would result not only in monetary loss but also in reputational loss to the second respondent Port. He subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the Constitution of India. When a party initiates fresh proceedings, he would be entitled to have the case determined on merits. 36. He submits that the respondent No.3 is not justified in contending that as the dispatch order is not received by the petitioner No.1, no payment towards the purchase of coal was made by the respondent No.3. He submits that many terms of the sale agreement (Annexure-B) are modified by the addendum (Annexure-C). He submits that not a single pai is paid by the respondent No.3 till now. For its failure to make the payment and on the expiry of the last date for making the payment, the petitioner No.1 has terminated the sale agreement entered into earlier with the respondent No.3. 37. He submits that the respondent No.3 has relied on Facility Notice, which has no application for the customs operations at New Mangaluru Port. The said notice is issued by the Principal Commissioner of Customs (General), Jawaharlala Nehru Custom House, Nhava Sheva Taluka Uran, Dist.Raigad, Maharashtra. 38. Sri K.V.Arvind, learned counsel for the respondent No.1 admits of the position that the said notice has application only for the customs operations falling wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mutual accord between BUYER and SELLER than all disputes, controversies or differences arising out of or in connection with this agreement shall be submitted to the Singapore Mediation Centre and the Singapore International Arbitration centre for resolution by med-arb in accordance with the SMC/SIAC Med-Arb Procedure for the time being in force, which procedure is deemed to be incorporated by reference into this clause. If no settlement is reached within 2 (two) months from the date the request for mediation is made, the dispute may be referred to arbitration as provided below, such dispute shall be finally settled under the arbitration proceedings will be held in Singapore irrespective of whether the SELLER or THE BUYER initiates the Arbitration and the same arbitration to be held as per Arbitration Laws and Guidelines of Singapore International Arbitration Center by 3 arbitrators appointed in accordance with the said Rules. The language to be used in the arbitral proceedings shall be in English. The decision of the majority of the arbitrators shall be final and binding on the parties here to, including the decision as to allocate of the costs of such arbitration, and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of being specifically performed. Otherwise, the party may sue for damages. 71. Keeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded. 46. It is also profitable to refer to the Hon ble Supreme Court s decision in the case of P .R.MURALIDHARAN AND OTHERS vs. SWAMI DHARMANANDA THEERTHA PADAR AND OTHERS reported in (2006) 4 SCC 501, wherein it is held that a writ of mandamus cannot be sought for directing protection in respect of the property, status or right, which remains to be adjudicated upon and when such adjudication can be done in a properly instituted civil suit. 47. The complexity of the matter is such that the IGM cannot be ordered to be amended or issued based on the version of any one party. On the ground that the Customs Authorities cannot be made parties to the arbitration proceedings, taking steps for the init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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