Karnataka High Court
M/S Five Ocean Corporation vs The Commissioner Of Customs on 8 February, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.51153-51154 OF 2016(GM-RES)
C/W.
WRIT PETITION Nos.51167-51168 OF 2016
W.P.Nos.51153-54/2016:
BETWEEN :
1. M/s.Five Ocean Corporation Pvt. Ltd.
Having its office at 7th Floor,
Jeong An Building, 95, Seosonum Ro,
Chung-gu, Seoul, South Korea - 100 814,
Represented by Power of Attorney
Anil Shamrao Jadhav.
2. M/s.Cho Pyongho,
The President of M/s.Five Ocean
Corporation Ltd. Having its office
At 7th Floor Jeong An Building,
95, Seosonum Ro, Chung-gu,
Seoul, South Korea - 100 814,
Represented by Power of Attorney
Anil Shamrao Jadhav. ... Petitioners
(By Sri Udaya Holla, Senior Advocate
For Sri S.Guruprasanna, Advocate)
AND:
1. The Commissioner of Customs,
New Customs House,
New Mangalore Port,
Panambur, Mangalore - 575 001.
2
2. New Mangalore Port Trust,
New Mangalore Port,
Panambur, Mangalore - 575 006,
Represented by the Traffic Manager.
3. IRIV Asia Pte Ltd.
No.84, Flora Road,
03-18, Singapore - 507 001,
Represented by Director.
4. Lakshmi Agencies,
No.106, 1st Floor,
Silver Streak Apartments,
Ashok Nagar Circle, Mangalore - 575 006,
Represented by Authorised Signatory. ...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)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to direct the R1 to amend the
IGM to reflect the change of the name of the consignee from the
R4 to M/s JHK Consultancy Private Limited or any other party
nominated by the petitioner and etc.
W.P.Nos.51167-68/2016:
BETWEEN :
Lakshmi Agencies,
No.51-2/1, Sy.No.22/1P22/IQ,
Meena Kalya Road, Baikampadi,
Kulai Village, Mangalore - 575 001,
D.K.District, represented by its
Proprietor Sri D.B.Hiriyappa,
Son of late Basappa,
Aged about 56 years. ... Petitioner
(By Sri S.Rajashekar for Sri Dhananjaya Kumar, Advocate)
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AND:
1. The Commissioner of Customs,
New Customs House,
Mangalore Port,
Pannambur, Mangalore,
D.K.District - 575 010.
2. The Traffic Manager,
New Mangalore Port Trust,
Pannambur, Mangalore
Dakshina Kannada District - 575 006. ...Respondents
(By Sri K.V.Aravind, Advocate for R1:
Sri K.G.Raghavan, Senior Advocate for
Sri Rayappa G.Hedagali, Advocate for R2)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to direct the respondent to give
permission for clearance of the imported Indonesian Stream Coal
of 63,800 Metric Tones vide vessel MV Corina stacked in the
Portland measuring 3770 square meters and 4060 square
meters at MDL Yard, pursuant to the show cause notice dated
23.9.2016 vide Annexure-A and reply dated 16.9.2016
submitted by the petitioner vide Annexure-B, etc.
These writ petitions coming on for orders this day, the
Court made the following:
ORDER
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 4 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 77,000 MT of coal on MV Corinna vessel belonging to the petitioners. On account of the failure of Cingler to pay the freight charges and to lift the coal, the first petitioner approached the Singapore High Court against Cingler. The Singapore High Court passed the decree on 05.08.2015 (Annexure-A) permitting the first petitioner to sell the cargo and to take all such steps to effect the same such as to move, discharge, tranship, store and/or dispose such part of the cargo as may be necessary to preserve the cargo and its value. The first petitioner was directed to deduct the costs and expenses incurred in connection with selling the coal from the sale proceeds and deposit the balance of the sale proceeds with it.
3. Pursuant to the aforesaid decree, the first petitioner entered into the sale agreement, dated 31.08.2015 (Annexure- 5 B) with the third respondent and issued the bill of lading to the third respondent in respect of 6,600 MT of coal.
4. The third respondent, in turn, entered into the agreement with the fourth respondent to sell the coal and the fourth respondent was shown as consignee in the I.G.M. As the third respondent failed to make the payment, the petitioner No.1 terminated the sale agreement on 22.2.2016. In the meanwhile, the third and the fourth respondents had sold 13,200 metric tons of coal. On 10.5.2016, the petitioner No.1 entered into the sale agreement with M/s. J.H.K.Consultants in respect of the balance quantity of coal (63,800 tons) and requested the Customs Authorities to amend the I.G.M. The representations of the petitioner No.1 in that regard did not evoke any response from the Customs Authorities.
5. On 2.9.2016, the second respondent New Mangalore Port Trust authorities called upon the petitioner to clear the cargo by completing the formalities and informing it that for its failure thereof, the cargo would be sold in public auction.
6. Sri Udaya Holla, the learned Senior Counsel appearing for Sri Guruprasanna for the petitioners submits that 6 the holder of the Bill of Lading has the right to transfer it, as the Bill of Lading is a symbol of goods. In support of his submissions, he relies on the Apex Court's decision in the case of BRITISH INIDA STEAM NAVIGATION CO. LTD. v.
SHANMUGHAVILAS CASHEW INDUSTRIES AND OTHERS reported in (1990) 3 SCC 481.
7. He relies on the Apex Court's judgment in the case of UNION OF 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 7 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.
(iii) (2003) 2 SCC 107 - Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others.
10. The learned Senior Counsel submits that the application AP.IM No.3/2016 instituted in the District Court in Mangaluru came to be dismissed on finding that it did not have the jurisdiction to consider international commercial arbitration.
11. Thereafter the petitioner filed AP.IM No.3/2016 before this Court. The said case was withdrawn with the liberty to have the recourse to appropriate proceedings before the appropriate forum. In this regard, he brings to my notice the order, dated 8 27.9.2016 passed by the Division Bench of this Court in AP.IM No.3/2016. As it is withdrawn, it is as good as not filing the case in the eye of law. He relies on the decision in the cases of MUKTA BAI AND OTHERS v. KAMALAKSHA AND OTHERS reported in AIR 1960 MYSORE 178, SUKUMAR BANERJEE vs. DILIP KUMAR SARKAR AND OTHERS reported in AIR 1982, Calcutta 17 and K.S.BHOOPATHY AND OTHERS vs. KOKILA AND OTHERS reported in 2000 (5) SCC 458.
12. He submits that the arbitration application is not filed, as the Customs Authorities are not parties to the arbitration agreement. In the arbitral proceedings, no relief can be sought against the Customs Authorities. He relies on the Apex Court's decision in the case of S.N.PRASAD, HITEK INDUSTRIES (BIHAR) LIMITED vs. MONNET FINANCE LIMITED AND OTHERS reported in (2011) 1 SCC 320.
13. Sri M.B.Nargund, learned Senior Counsel appearing for Smt. Sona Vakkund for the respondent No.3 submits that these petitions are liable to be dismissed on more than one ground. He submits that the petitioners have not approached this Court with clean hands. They have suppressed the material facts and 9 abused the process of law. He submits that the petitioner is not even the transporter of the coal in question. In the liquidity proceedings, filed by the Akamas Navigation Limited against Commodities and Energy Resources ('CER' for short) before the High Court - Justice Queen's Bench - Davison Commercial Court, the petitioner took the leave to recover the amounts stated to be due to it by selling the coal in question. He submits that the petitioner got the permission from the High Court of the Republic of Singapore to sell the coal on 05.08.2015 and entered into sale agreement with the respondent No.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 10 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 posted before the Division Bench on 27.09.2016 but without showing the names of the respondents' learned advocates, who appeared in the C.M.P. He submits that the same may be a lapse on the part of the Office, but it was incumbent on the petitioners' learned advocate to bring it to the notice of the Court that the names of the respondents' learned advocates were not shown in the cause-list. Thus, without notice to the respondents, AP.IM No.3/2016 was withdrawn with the liberty to file the appropriate proceedings. All these things would only indicate that the petitioner No.1 has only been indulging in chance litigation, so submits the learned Senior Counsel. 11
15. He submits that five days before the withdrawal of the AP.IM No.3/2016 on 27.09.2016, this writ petition is filed on 22.09.2016. He submits that the factum of filing A.A., C.M.P. and AP.IM are not disclosed in the memorandum of the writ petition.
16. He submits that as the petitioners have suppressed the material facts, they are not entitled to any equitable reliefs. In that regard, he relies on the Apex Court's judgment in the case of ARUNIMA BARUAH vs. UNION OF INDIA AND OTHERS reported in (2007) 6 SCC 120. He submits that the petitioners' reliance on the Apex Court's judgment in the case of HARBANSLAL SAHNIA (supra) does not come to the rescue of the petitioners in any way, as none of the three enumerated circumstances for entertaining the writ petition notwithstanding the availability of the recourse to arbitration, are available in this case.
17. He also sought to draw support from the Apex Court's judgment in the case of CDC FINANCIAL SERVICES (MAURITIUS) LTD. vs. BPL COMMUNICATIONS AND OTHERS reported in (2003) 12 SCC 140 wherein it is held that 12 the writ petition, which is unfounded, speculative and malafide, cannot be entertained. The respondent authorities in the said case were restrained from making any application in the pending writ petition which would have the effect of interfering with the continuance and conclusion of the arbitration proceedings.
18. The learned Senior Counsel submits that none of the fundamental rights of the petitioner is infringed warranting the institution of this writ petition.
19. He brings to my notice that the petitioners chose to issue the mediation notice to the respondent No.3. On the respondent indicating his positive response thereto, 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 13 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 to the facility notice (Annexure R3J) contains the classification as to which are the major amendments and which are the minor amendments to the IGM. The amendment sought falls in the category of major amendments. He submits that the sought major amendment is not in the prescribed form. The requisition is also not accompanied by the prescribed documents.
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23. He read out Article 8 of the sale agreement (Annexure- B) between the petitioner and the respondent No.3, which states that the payment shall be made by the respondent No.3 to the petitioner No.1 only for that quantity of the material for which the dispatch order is issued by the petitioner No.1. He submits that the petitioner No.1 has not issued any dispatch order.
24. He submits that M.V.Corinna was on the high seas for about six months, as the coal was not being off-loaded. It is at that crucial stage that the petitioner No.1 entered into an agreement with the respondent No.3. On the coal being off- loaded from the ship on the basis of the sale agreement between the petitioner No.1 and the respondent No.3, the vessel was freed to make its onward journey. The petitioner has been breaking the contract, which it has made with the respondent No.3.
25. He also read out the relevant Clause from the aforesaid notice No.47/2016 (Annexure R3J) issued on 15.03.2016 by the Office of the Principal Commissioner of Customs (General) for advancing the submission that no amendment in the consignee's name is permissible in the 15 absence of the NOC from the first consignee in original. The said notice states that if a dispute arises over the ownership of the consignment, the Customs Department would not interfere in the matter, as the issues would be of civil nature. He also read out Clause 7(b) from the said notice which is as follows:
"7. b) Non-negotiable copy of Bill of Lading in original. If same is not available, then a photocopy of such Bill of Lading duly authenticated by Shipping Line/Steamer Agent/Custom Broker."
26. He brings to my notice the letter, dated 15.09.2016 (Annexure-V) issued by the Customs Authorities calling upon the petitioner No.1 to furnish the supporting documents. Without caring to produce the supporting documents, the petitioner has rushed to this Court within seven days of the issuance of the said letter from the Customs Authorities. The writ petition is filed on 22.09.2016. 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 16 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 submits that the port dues payable by the consignee are over `50 lakhs, besides the penalty at 13% per annum to honour the second respondent's obligations to M/s. Chettinad. The area has to be cleared and the subject coal cargo has to be shifted to some other safe place without any further loss of time.
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29. Sri Rayappa, the learned counsel for the respondent No.2 submits that the coal storage in question is also causing fire hazards.
30. Sri S. Rajashekar, learned counsel appearing for Sri Dhananjaya Kumar for the respondent No.4 in W.P.Nos.51153- 51154/2016 and the petitioner in W.P.Nos.51167-51168/2016 makes the submissions substantially akin to those of Sri M.B.Nargund. He submits that the IGM stands in the name of the earlier consignee and that is M/s.Lakshmi Agencies (respondent No. 4 in W.P.Nos.51153-51154/2016 and the petitioner in W.P.Nos.51167-51168/2016). He submits that unless M/s.Lakshmi Agencies indicates its no objection to the amendment of IGM, the name of M/s. JHK Consultancy Private Limited cannot be reflected in the Bill of Lading.
31. He submits that everyday M/s.Lakshmi Agencies are spending `10,000/- to `20,000/- only on watering the coal in question; otherwise it is bound to catch fire.
32. He submits that the respondent No.4 is prepared to pay $3 on and above the agreed rate, although it is not liable to do so. He submits that M/s. Lakshmi Agencies is ready to make 18 down payment for 50% of the coal and in one month's time it would pay the balance 50% price.
33. Sri Udaya Holla, learned Senior Counsel appearing on behalf of the petitioners submits that the petitioner is virtually a receiver appointed by the High Court of Singapore for selling the coal in question. As the receiver appointed by the Court, the petitioner has to sell the coal at the highest possible value, retain the amounts towards conducting the sale and deposit the balance with the said Court at Singapore.
34. He takes serious exception to the allegations made by the respondent No.3 that the petitioner is guilty of suppression of material facts. He submits that the petitioner has indeed made an averment regarding the AP.IM No.3/2016 in para 30 of the memorandum of the writ petition.
35. Relying on the decision of the Hon'ble Supreme Court in the case of Arunima Baruah (supra), he would contend that the judicial review is a basic feature of the Constitution of India. When a party initiates fresh proceedings, he would be entitled to have the case determined on merits.
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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 within the Nhava Sheva Port.
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39. Sri Udaya Holla relies on the Delhi High Court's decision in the case of Agrim Sampada Limited (supra) wherein the matter was remanded to the Registrar of Customs for considering the amendment to the I.G.M. Whenever there is a failure to exercise discretionary power conferred by the Statute, it is permissible for the Court to take note of such inaction and give a direction to consider the case of the applicant for the amendment of the IGM.
40. He submits that the dispute between the petitioner and the first respondent is not of civil nature at all.
41. He submits that the coal selling rate at present is $30 per metric ton. By offering $3 more per metric ton, the fourth respondent Lakshmi Agencies is not doing any favour. On the other hand, it is the responsibility of the petitioner to get the highest possible value for the coal, as directed by the High Court of Singapore. To advance the submission that the doctrine of amity or comity requires that different courts exercising separate jurisdiction pass similar orders, he relies on the Hon'ble Supreme Court's decision in the case of TAMILNAD MERCANTILE BANK 21 SHAREHOLDERS WELFARE ASSOCIATION vs. S.C.SEKAR AND OTHERS reported in (2009) 2 SCC 784.
42. The submissions of the learned counsel have received my thoughtful consideration. The case was being adjourned from time to time to enable the parties to arrive at a negotiated settlement. Ultimately their endeavours do not appear to have fructified into any settlement. The petitioners in W.P.No.51153- 54/2016 are seeking a direction to the respondent No.1 to amend the IGM to reflect the change of the name of the consignee from the respondent No.4 to M/s. JHK Consultancy Private Limited or in the alternative for a direction to consider their representations made in that regard.
43. There is a serious dispute as to who is to be treated as a consignee for the purpose of lifting the coal in question. The agreement, dated 31.8.2015 (Annexure-B) between the petitioner and the respondent No.3 provides for the dispute resolution through arbitration. Article 10 of the said agreement reads as follows:
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"Article 10 Arbitration In case of any dispute which may arise between BUYER and SELLER in connection with this Agreement or the interpretation, performance or non-performance here of, and which cannot be settled by 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 may be entered in any court having jurisdiction."23
44. Further, Article 12 of the agreement between the respondent Nos.3 and 4 contains an absolutely identical arbitration clause.
45. In view of the afore-extracted clause in the agreement between the petitioner No.1 and the respondent No.3 and the existence of an absolutely identical clause in the agreement between the respondent Nos.3 and 4, the parties have to approach the Singapore Mediation Centre and Singapore International Arbitration Centre. The Apex Court in the case of Joshi Technologies Inernational Inc (supra) has this to say in paragraph Nos.69, 70, 70.1, 70.5, 70.6 and 71:
"69.The position thus summarized in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, 'normally', the Court would not exercise such a discretion:
..................
70. Further, legal position which emerges from various judgments of this Court dealing with different 24 situations/aspects relating to contracts entered into by the State/public Authority with private parties, can be summarized as under:
70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
...........
70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is 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 25 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 initiation of the arbitration proceedings cannot be avoided. Once the arbitrator adjudicates the disputes and decides, inter alia, as to who is entitled to be the holder of the Bill of Lading, which consignee is entitled to take the cargo, etc. the said order is only to be acted upon by the Customs Authorities. In short, the amendment to the IGM in a case of this nature can 26 only be consequential to the passing of the award by the arbitrator.
48. In W.P.Nos.51167-51168/2016, M/s.Lakshmi Agencies (respondent No.4 in W.P:.Nos.51153-51154/2016) is seeking a direction to the respondents to give permission for clearance of the sale. No such direction can be given. It is trite that no one can ask for a mandamus without there being a judicially enforceable right as well as a legally protected right. In saying so, I am fortified by the Apex Court's judgment in the case of MANI SUBRAT JAIN AND OTHERS v. STATE OF HARYANA AND OTHERS reported in (1977) 1 SCC 486. In its decision in the case of ORIENTAL BANK OF COMMERCE vs. SUNDER LAL JAIN AND ANOTHER reported in (2008) 2 SCC 280, the Hon'ble Supreme Court has expressed the considered view that mandamus will not lie where the duty is clearly discretionary. I may also usefully refer to the Apex Court's judgment in the case of RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION AND ANOTHER v. DIAMOND & GEM DEVELOPMENT CORPORATION LIMITED AND ANOTHER reported in (2013) 5 SCC 470, wherein it is held 27 that the writ cannot be granted unless it is established that there is existing legal right of the applicant or existing duty of the respondent. The existence of a right is the foundation of the petition under Article 226 of the Constitution of India. Therefore, no relief can be given to the petitioners in either of the cases.
49. These petitions are disposed of reserving the liberty to the petitioners to resort to the initiation of the arbitration proceedings in accordance with the relevant clauses of their agreements.
50. The unending lis amongst the petitioners, respondent Nos.3 and 4 cannot be permitted to create surmounting problems to the respondent No.2. Admittedly, the area in the Port on which the coal is lying for more than one year is earmarked and designated for M/s. Chettinad. The delay in handing over the said area to M/s. Chettinad may result in the loss of money and loss of reputation to the second respondent Mangalore Port Trust Authorities. To safeguard the interests of the public and of the second respondent Port Trust Authority, I deem it just to permit it to shift the coal to a safe place. It may 28 even resort to exercise the power conferred by Section 62 of the Major Port Trusts Act, 1963. It is made clear that the shifting of the coal from the present storage area to another area shall be done in the presence of the representatives of the petitioners, respondent Nos.3 and 4 and by drawing the mahazar in that regard. While undertaking this exercise, the respondent No.2 shall adhere to the highest safety measures to ensure that the coal does not catch fire and the lives and the properties of the people are not endangered in any way.
51. No order as to costs.
52. Now that the main matter itself is disposed of, the pending I.A.s are dismissed as having become unnecessary.
Sd/-
JUDGE CM/VGR/MD