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2020 (12) TMI 923

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..... nst dues and declined to release bills. The question nos.15 (i., (ii. and (iii. are answered accordingly, in negative. Whether defendants were entitled to exercise lien under Section 171 of the Indian Contract Act, 1872? - HELD THAT:- It may be stated that defendants were not entitled to exercise general lien being not banker, factors, wharfingers, attorneys and also broker - In the case in hand, pleadings of either party do not suggest that bailee was empowered to exercise the general lien envisaged under Section 171 of the Indian Contract Act, 1872 - Goods cargo in the second shipment is a paper, a perishable product, which may loose its utility if kept for long period. Even otherwise, plaintiffs have paid sea freight for second consignment. Therefore, it is just and proper to direct defendants to release bills of lading immediately. In fact, it appears, that since second consignment has not been released within reasonable time, plaintiffs vendees have cancelled the orders. Therefore, the balance of convenience also tilts in favour of the plaintiffs. Appeal allowed - decided in favor of appellant. - APPEAL FROM ORDER (ST) NO.93898 OF 2020 WITH INTERIM APPLICATION (ST) N .....

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..... 297/-. Plaintiffs would claim that its customers demanded the demurrage charges and accordingly, plaintiffs raised credit note in favour of them for ₹ 1,80,297/-. SECOND CONSIGNMENT: 5. It is the plaintiffs case that next consignment of 72,666 MT of core board paper in three containers left Nhava-sheva port on 29th April, 2020 and reached the port of destination, i.e., Abbas bunder at Iran on 8th May, 2020. Towards ocean freight charges of three containers, defendants raised two invoices on 17th June, 2020, i.e, nearly after a month and half for ₹ 4,35,000/-. 6. Subject dispute relates to second consignment, i.e., three containers which though reached port of delivery on 8th May, 2020, bills of lading were not released and withheld illegally by the defendants, even after paying freight charges. 7. It is plaintiffs case that as per the prevailing practice, defendants were required to procure bills of lading from carrier and give it to shipper (plaintiffs. to enable shipper to forward it to its customers over-seas to enable them to release the goods. However, the defendants refused to release the bills of lading under the pretext of past dues. Plaintiffs .....

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..... rds the demurrage and detention charges (towards first consignment. and damages of ₹ 1,25,00,000/- per financial year including financial year 2020-21 and every financial year thereafter till disposal of the suit, towards damages for loss of business and loss of profit in relation to its customers in Iran. Pending suit Plaintiffs are seeking directions to the defendants to release the bill of lading or sea-way bills vis-a-vis 72666 MT of core board papers now lying at Abbas bunder in Iran in three containers without payment of any detention/demurrage charges by the plaintiffs or its customers. 10. Pending suit, plaintiffs sought relief of mandatory injunction seeking directions against the defendants to release three containers lying at freight container station, bunder-Abbas, Iran. Trial court declined the relief and therefore this Appeal. 11. Submission of the plaintiffs, is therefore, two fold; that second consignment reached the port of destination on 8th May, 2020. Thereafter, plaintiffs paid ₹ 4,35,000/- to the defendants on 30th May, 2020 with a clear understanding that this amount would be appropriated towards freight charges for three containers. In spite .....

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..... rs. Bankers, factors, wharfngers, attorneys of a High Court and police-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that efect. 15. Thus, questions, I am called upon to answer are; (i. Whether defendants being freight services agents, have right to retain shipment i.e. goods bailed, for not receiving the ocean freight charges in terms of Section 170 of the Indian Contract Act, 1872? (ii. Whether defendants were justified in appropriating ₹ 4,35,000/- made on 30th May, 2020 against past dues? (iii. Whether, while making payment of ₹ 4,35,000/- on 30th May, 2020, attendant circumstances , were indicating that this payment was towards ocean freight charges for three containers, which reached port of delivery on 8th May, 2020? (iv. Whether plaintiffs have made out prima facie case and in whose favour balance of convenience tilts and whether plaintiffs would suffer irreparable loss if the injunction is refused? 16. I .....

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..... Submission of the plaintiffs is that second consignment reached the port of destination on 8th May, 2020 and thereafter, plaintiffs paid ₹ 4,35,000/on 30th May, 2020 towards its freight charges whereupon defendants agreed to release the consignment. This, agreement-a circumstance is discernible from the messages exchanged between Mr. S.M. Nagar (representative of the plaintiffs. and Mr. Rajan Shah (representative of the defendants.. Thus, submitted that messages exchanged establishes the fact that defendants had agreed to release bills of lading of second consignment soon after, receipt of ₹ 4,35,000/-. To appreciate the arguments messages exchanged between the plaintiffs and the defendants are reproduced herein under; As discussed, I would also request you to kindly plan to release the remaining 3 B/Ls tomorrow I am trying to release the remaining ₹ 4.35 Lakhs out of the committed ₹ 13 Lakhs Thanks once once again My remittence of ₹ 4.36 Lakh will happen either 1 as the today or tomorrow,,, Kindly arrange for release as discussed . Regards .. Nagar cc: Sh Sudhir Pendse [29/05/20, 7:20:02 PM] S N Nagar : Sir, awaiting you .....

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..... not exchanging services/ money on personal relationships. Hope sir you understand. You should understand despite all this we release 9cntrs B1 just to help you out(from the beginning I was not in favour and against our business policy) request you not to take too much advantage of relationship. 20. What could be gathered from these messages is that; Mr. S.M. Nagar (representative of the plaintiffs. on 28th May, 2020 requested Mr. Rajan (representative of the defendants. to release three bills of lading and assured payment of ₹ 4,35,000/-, out of committed ₹ 13,000,00/-. On 29th May, 2020, Mr. S.M. Nagar again requested to release bills of lading. Defendants in reply just enquired about the payment, since not received by them on 29th May, 2020 and said nothing more. On 30th May, 2020, ₹ 4,35,000/- were credited in the books of defendants. However, bills were not released. Thus, on 1st June, 2020, Mr. Nagar once again, requested Mr. Rajan Shah to release bills of lading, however, he declined to release the bills. Defendantss message of 3rd June, 2020 suggests that for the first time release of consignment, was made subject to two conditions. The first condition .....

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..... ur payment plan sir. Will be able to speak only after 2pm. [03/06/20, 11:03:50 AM] S N Nagar: Good morning Sir . I await your call update on the 3 B/L of Iran . Kindly revert . Regards .. Nagar [03/06/20, 11:08:44 AM] Rajan Micro 2 : Gud mrng kindly go through my yesterday msg it is very clear. [03/06/20, 11:20:04 AM] S N Nagar: Sir, requesting to release the 3 B/L . Rest all we can clear/ discuss . Regards [03/06/20, 11:33:41 AM] Rajan Micro 2: Sir sorry every time we discuss. My stand is very very very clear I can not give you clean credit without having any shipment in my hand or other options you have to clear my entire out standing (which I know is not possible). Any way as you have only mentioned few days back your export shipments are starting in this week so let s wait till than. I am assuring you once new chars are stuff and reached the port for export we will release this B1 ALONG WITH MINIMUM PAYMENT OF 20 LACS. This are my two requirements sir. I have always supported your company and trusted respect your commitment but we are business not exchanging services/ money on personal relationships. Hope sir you understand. You should .....

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..... statutory right of lien to four categories only, namely, bankers, factors, wharfingers and attorneys of High Court and policy-brokers subject to their contracting out of Section 171. The second part of Section 171 applies to persons other than aforesaid fve categories and to them Section 171 does not give a statutory right of lien. It provides that they will have no right to retain as securities goods bailed to them unless there is an express contract to that effect. Whereas in respect of the first category of persons mentioned in Section 171 section itself enables them to retain the goods as security in the absence of a contract to the contrary but in respect of any other person to whom goods are bailed the right of retaining them as securities can be exercised only if there is an express contract to that effect. In the case in hand, pleadings of either party do not suggest that bailee was empowered to exercise the general lien envisaged under Section 171 of the Indian Contract Act, 1872. 25. Thus, in consideration of the facts, evidence and circumstances emerging and flowed therefrom, I hold that (1. ₹ 4,35,000/- were paid by the plaintiffs on 30th May, 2020 to .....

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