Full Judgment
Hence this application is allowed. Instead of taking up the stay petition we take up the appeal for hearing by consent of the parties treating the same as on the days list. This appeal is directed against an Order dated 06th July 2010.
The facts of the case briefly are as follows:-
The plaintiff / respondent sues the defendant on the facts pleaded in the plaint that the plaintiff No 1 received an order from Citilink of Moscow for supply of diverse quantities and qualities of bags of an aggregate value of Rs 19,57,872.25p. The plaintiff No 2 also received an order from Elite Pack of Moscow for supply of diverse quantities of such drinking straw of the aggregate value of Rs 92,460 for the purpose of supplying the said ordered materials to the said foreign purchasers, the plaintiffs contracted the defendant No 1 wherein the said defendant represented that it was capable of undertaking the entire responsibility of delivering the said goods so to be exported by the plaintiffs to the said foreign buyer of the plaintiffs.
Relying on such representation an agreement was entered into within the jurisdiction of this Court with the defendant No 1 for exporting the said goods to the foreign buyer inter alia on the terms and conditions contained therein in the said agreement. In these circumstances, the defendant No. 1 forwarded one empty container to the plaintiffs for loading the said goods so to be exported by the plaintiffs.
The plaintiffs loaded the said goods so to be exported in the said container and thereafter on the basis of instructions of the defendant No. 1 handed over the said loaded container to the Ever Shine Customs (C&F;) Pvt. Ltd for the purpose of exporting and delivering the said goods to the respective purchasers. The defendant No. 1 raised an invoice dated 19th July 2003 on the plaintiff No. 1 as well as defendant No. 2 the plaintiffs duly paid the amounts by cheque being a sum of Rs. 2,21,588.00 and a sum of Rs. 8,810.00. The plaintiffs state that the said goods of the plaintiff were lost while the same were in the custody of the defendant No. 1 and/or of the defendant No. 2.
Hence, suit was filed claiming a decree for the said amount. In the said suit an application under Order 7 Rule 11 was filed on behalf of the defendants. The said application was disposed of by an order dated 6th July 2010 when His Lordship was pleased to reject the prayer of the defendants giving liberty to the second defendant to carry the ground urged to the trial. His Lordship further make it clear that the views expressed here should also be treated as tentative and should not prejudice either the plaintiffs or the second defendant.
It is further directed that however, in the event the plaintiffs claim falls on the ground of Clause 4(g) of the General Conditions governing the bill of lading, the plaintiffs will pay costs assessed at Rs. 5 lakh to the second defendant being aggrieved the appellant has filed this appeal.
Mr. Chowdhury appearing on behalf of the appellant contended that in passing such order the Hon'ble First Court should not have allowed or directed that in the event the plaintiffs claim falls on the ground of Clause 4 (g) of the terms of the bill of lading, the plaintiffs will pay costs assessed at Rs. 5 lakh to the second defendant. According to him the said assessment which has been done by way of cost is prejudged the whole issue before the Hon'ble First Court took steps in the matter.
He further drew attention to Clause 4 (g) of the terms of the bill of lading and contended that the said bill of lading has not been referred to in the plaint itself. Therefore, according to him, the Hon'ble First Court should not have relied upon the said clause at the time of passing of such order.
In our considered opinion, the order so passed by His Lordship at the Interlocutory stage and furthermore the Court has specifically stated all the opinion form by the Court and expressed in the said order is nothing but tentative. Therefore, in our considered opinion, at the time of trial such order which has been passed by the Court will not affect the rights of the parties in the suit in any manner whatsoever.
His Lordship has also made it clear that the Hon'ble First Court would not have influenced by the order so passed by His Lordship. Therefore, we do not think that it is necessary for us to pass any order in this appeal. For the reasons stated hereinabove the appeal is disposed of.
All parties concerned are to act on a Xerox signed copy of the minutes of this order on the usual undertakings.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.