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TMI Blog2021 (5) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no.1. When the goods were loaded on the ship, the Bill of Lading dated 18.01.2020 was issued by the present appellant no.1 in the name of respondent no. 1. 3. The cargo reached its destination in Canada on 07.03.2020 but the necessary certificates, i.e., Fumigation Certificate as well as Phytosanitary Certificate were lacking, which were required as per applicable Canadian law and as per the appellants, the said certificates ought to have been furnished by respondent no.1 or respondent no.6, the seller and buyer of the consignment respectively. Due to this reason, the consignment remained uncleared at the Canadian Port and certain charges for demurrage, detention, customs and other incidental charges had been incurred, which were duly billed by appellant no.1 vide invoices dated 23.07.2020 and 24.07.2020. These invoices were raised against respondent no.1 as well as respondent no.6, who are Shipper and Consignee of the consignment in issue. The said invoices were payable by Merchant and the definition of Merchant includes Shipper and Consignee both. 4. Since necessary certificates could not be produced by the Shipper and/or Consignee, the cargo was required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case. 6. The present appellants were listed as defendant nos. 5 and 6 in the said suit. Summons in the suit and notices on the interim application were issued to the defendants. The present appellants filed a reply to the interim application on 10.11.2020 followed by detailed written submissions. Thereafter, arguments were heard and the impugned order was passed, which has been challenged by the appellants by filing an appeal before this Court. 7. Notices were issued to the respondents. Reply has been filed by the contesting respondent no.1. The appellants have also filed an additional affidavit listing out details of up-to-date amount due from respondent no.1 as under: Invoice Number Date Particulars Amount in Rupees 2019459837 23/07/2020 Destination Port expenses 17,155.60 USD = 12,47,898.344 INR 2019459943 24/07/2020 Demurrage at Destination Port 23,759.00 USD = 17,30,848 INR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. During the arguments, learned counsel for the appellants has relied upon the terms and conditions of Bill of Lading, which contains the definition of Merchant as under: Merchant: Includes the booking party, shipper and consignee named on page 2 hereof, holder, receiver of the Goods or of this Bill of Lading, and any person owning or entitled to the possession of the Goods or this Bill of Lading. 10. As per the learned counsel for the appellants, the Merchant includes the present respondent no. 1, who was the Shipper as well as the Consignee being present respondent nos. 6 and 7. He has also referred to Merchant s responsibility mentioned in Clause 12 (3) of the Bill of Lading and the same reads as under: Merchant shall comply with all regulations or requirements of customs, ports and/or other authorities, including but not limited to those relating to VGM, and shall bear and pay all d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods for payment of detention/demurrage charges: i) Both the Bills of Lading issued by this Defendant no. 5 for carriage of the subject goods from India to Canada as well as from Canada to India unequivocally contain the terms and conditions of the carriage, which includes the right to Lien and merchants responsibilities (See clause 12 and 15 of the terms and conditions contained on the rear side of the Bill of Lading issued by this Defendant). Under the said conditions, this Defendant has a further right to sell the said goods to recover it dues for the expenses and charges with respect to the said goods. The Bills of Lading are annexed and marked as Annexure D1 and D2 and the terms and conditions contained on the rear side of these Bills of Lading are annexed and marked as Annexure D4 filed along with the Reply to Interim Application dated 10/11/2020. The terms and conditions of the Bill of Lading are a binding contract of carriage and that the goods are carried and delivered according to those terms and conditions has been observed by a bench of 5 Hon ble Judges of the Supreme Court in the case of The Trustees of the Port of Madras v/s. K.P.V. Sheik Mohamed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said invoices at Annexure A3 shall reveal that the invoice is not addressed to the Defendant no. 7 particularly. In fact, the names of both the Plaintiff as well as the Defendant no. 7 are mentioned on the said invoices as Shipper and Consignee respectively. Thus, the said invoices are not particularly addressed to a particular party but the amount therein is payable by either the Plaintiff or the Defendant no. 7. In order to understand this liability of both the parties, it shall be necessary to see the clear and unambiguous terms and conditions of the Bill of Lading printed on the rear and annexed as Annexure D4 along with the reply to I.A. A joint reading of clause no. 12, 13, 14 and 15 of the said terms and conditions would show that all the costs, expenses, freight, charges, losses, liabilities and all monies due to the present Defendant no. 5 are payable jointly and severally by all persons coming under the definition of the term MERCHANT . Now, the definition of the term MERCHANT given in the same terms state that Merchant includes the booking party, shipper and consignee named on page 2 hereof, holder, receiver of the Goods or of this Bill of Lading, and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff has come to claim delivery of the goods from this Defendant. Thus, even as a matter of logical thinking it is only the Plaintiff who is responsible to pay the said charges suffered by this Defendant at the Port of destination and then claim the goods from this Defendant. Thus, from all the above-mentioned facts, circumstances and legal propositions, it would become crystal clear that this Defendant has a statutory as well as contractual lien on the subject goods of the Plaintiff and the Hon ble superior Courts of the country have time and again upheld the legality of the lien of Shipping Line and Ports over goods for payment of demurrage and other charges. 13. Significantly, there is no mention about any of the above arguments/defenses taken by the present appellants before the Trial Court. The contesting defendants have also raised serious objection to the plaintiff classifying the stainless-steel utensils as Perishable . The said stand of the defendants is contained in paragraph 6 (c) of the detailed written submissions and the same are reproduced hereunder: c) The Plaintiff is not entitled to any relief from this Hon ble Court as he has approached the Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 59 and 60 of The Major Port Trust Act, 1963. The said sections are reproduced here under: 59. Board s lien for rates: (1) For the amount of all rates [leviable under this Act] in respect of any cargo, and for the rent due to the Board for any buildings, plinths, stacking areas, or other premises on or in which any cargo may have been placed, the Board shall have a lien on such cargo, and may seize and detain the same until such rates and rents are fully paid. (2) Such lien shall have priority over all other lines and claims, except for general average and for the ship-owner s lien upon the said cargo for freight and other charges where such lien exists and has been preserved in the manner provided in sub-section (1) of section 60, and for money payable to the Central Government [under any law for the time being in force relating to customs, other than by way of penalty or fine]. 60 Ship-owner s lien for freight and other charges: (1) If the master or owner of any vessel or his agent, at or before ethe time of landing from such vessel any cargo at any dock, wharf, quay, stage, jetty, berth, mooring or pier belonging to or in the occupation of a Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the stand of both the contesting sides is required to arrive at a reasoned conclusion. 19. Since, no findings have been given by the Ld. Trial Court on the stand of the contesting defendants as detailed above, we also refrain from arriving at any findings on the same and the only option left for us 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 [in short CPC ] afresh by passing a detailed, reasoned order. We have been also informed that the written statement as well as replication are already on record, which will help the Ld. Trial Court in crystallizing the dispute between the parties and to reach to a logical conclusion regarding the interim order to be passed in the facts and circumstances of the case after considering all the aspects of the matter, equities, applicable law and rival contentions of the contesting parties. 20. Both the parties shall appear before the learned Trial Judge on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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