Full Judgment
ORDER
SHEET GA No.503 of 2013 With CS No.34 of 2013 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE R.
PIYARELALL IMPORT AND EXPORT LTD Versus AGROZAN COMMODITIES DMCC & ORS.BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date : 17th January, 2014.
Appearance: Mr.R.K.Chowdhury, Adv..for the plaintiff.
Ms.N.Adhya, Adv..for the defendant The Court: In this interlocutory application the petitioner has prayed for an injunction restraining the respondent no.6 from withholding the issuance of delivery order with respect to the goods comprised in bill of lading No.862195290 dated 30th September, 2011.
At the receiving stage an order was passed on 25th April, 2013 directing the plaintiff to pay Rs.25 lakhs to the 6th defendant in cash by 6th May, 2013 and furnish a bank guarantee in favour of the said defendant for a sum of Rs.1 crore within 6th May, 2013.
Upon making the above payment and furnishing the above security a direction was given upon the 6th defendant to issue the necessary delivery order.
It was further observed that the cash payment made and the security furnished would be subject to the decree to be passed in the suit.
In default the order provided that Mr.R.K.Chowdhury would be appointed as a Receiver with a direction distuff the goods to take possession thereof and keep them in his custody until further orders of this Court.
The distuffed goods should be kept in a warehouse, charges whereof could be paid by the 6th defendant.
After distuffing the containers are to be returned to the container owner by 31st May, 2013.
The said order was passed after taking into consideration the fact that the claim of the container owner on account of container detention charges is about Rs.2.70 crores.
The container owner contended that they have a lien over the cargo until and unless their dues are paid.
The learned Judge after taking into consideration the submission of Mr.Chowdhury for the plaintiff that the exporter had attempted to pay US $ 60,000 to the container owner, for these charges which fact, however, was denied by Mr.Das observed that it does not matter whose liability it is but the claim of the container owner has to be paid or secured if any one wants the goods, because he, prima facie, is entitled to exercise a lien over the goods, for his claim.
Accordingly, US $ 60,000 was considered to be more or less the minimum amount due to the container owner and on that basis the aforesaid direction was passed.
Thereafter, the said order was modified by appointing joint Receivers to take possession of the containers distaff the goods therein and hand over the empty containers to the defendant.
Such modification was made on the basis of his submission made by Mr.Chowdhury that the plaintiff is not in a position to make cash payment and furnished bank guarantee as recorded in the order dated 15th May, 2013.
The learned Single Judge in his Lordship’s order dated 15th May, 2013 directed that the distaff goods would be in the custody of the joint receivers who shall keep them in a warehouse to be hired by the defendant.
As the goods are peas and perishable in nature the joint receivers were directed to sell the goods by public auction in consultation with the parties.
The joint Receivers filed a report on 15th July, 2013 wherefrom it appears that in spite of their best efforts the report of the public health officer regarding the sample of the goods could not be obtained and the earlier orders of the High Court had remained unexecuted due to the following reasons.
“a) There is no place in the said Century Ply CFS for distaffing and storing the huge quantity of loose yellow peas.
b) If the said 22 containers are removed from the said CSF for distaffing and storing the said goods in any other location or locations, it needs permission from the Custom Authority, as it is a Custom bound area.
c) If the said goods are spoilt and declared not fit for human consumption (which depends upon the PHO Report).due to substantial laps of storage time in the containeRs.then the distaffing process can harm the environment badly and the other materials in good condition, stored in the same warehouse, where it is to be stored, can get damaged.” Thereafter, a report was filed by the public health officer wherefrom it appears that the sample of Russian yellow peas are in decomposed condition and unfit for analysis and human consumption.
On the basis of a submission made by Mr.Chowdhury for the plaintiff that an opinion may be sought for from the public health officer as to whether the said food item could be used as cattle feed or fertilizer or for any other use which would not be injurious to health or cause any environmental pollution.
Further direction was given tot he public health officer to consider this aspect of the matter and file a report on or before 7th of January, 2014.
The authorized officer of the Food Safety and Standards Authority of India filed a report in Court yesterday in which the said authority has expressed his inability to file any report with regard thereof.
Since the said authority deals with food of human consumption and does not deal with animal food, the said officer suggested that the parties may approach before West Bengal University of Fisheries and Animal Sciences, (Department of Animal Husbandry & Dairy).Since the authorised officer of the department has already given opinion that the said goods are not fit for human consumption and the containers of the defendant No.6 has been detained for all these period, in my view, the plaintiff should take appropriate steps for distuffing of the container under the supervision of the joint Receivers after obtaining necessary permission from the Customs Authorities.
The Customs Authorities, if are of the opinion that the distuffing of the goods would cause environmental hazards or are likely to cause any injury or harm to the environment and affect other materials in good condition stored in the same warehouse, it would be open for the customs authorities to destroy and/or dispose of the consignment upon notice to the parties and the Joint Receivers and in their presence.
The entire process shall be completed within a period of four weeks from date.
The container in any event shall be released in favour of the container owner being the defendant No.6 within six weeks from date.
The defendant no.6 shall extend all cooperation to the plaintiff and Customs Authorities in implementing this order.
The plaintiff shall bear all costs, charges, and expenses in carrying out this order.
The Joint Receivers shall be entitled to a further remuneration of 500 GMs.each which shall be paid by the plaintiff at the fiRs.instance.
In the event the plaintiff succeeds, the plaintiff would be entitled to claim the cost, charges expenses incurred in carrying out this order at the time of passing of the decree.
With this direction GA No.503 of 2003 stands disposed of.
The Joint Receivers shall stands discharged after six weeks.
The Joint ReceiveRs.Customs Authorities and all parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN, J.) sp/