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Delhi District Court

M/S Cornell Overseas Pvt Ltd vs M/S On Time International Logistics (P) ... on 27 September, 2023

IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
      COMMERCIAL COURT-02, SOUTH WEST,
           DWARKA COURTS, DELHI


CNR No. DLSW01-006443-2019
CS (Comm) No. 72/2019


In the matter of :-

M/s Cornell Overseas Pvt. Ltd.
Through its Managing Director
Having its office at : B-32,
Sector - 65, District Gautam Buddh Nagar,
Noida - 201301

                                            ............Plaintiff
Vs.

1. M/s On Time International Logistics (P) Ltd.
Through : Mr. Robert D'Cruz (Director)
Having its office at : Khasra no. 78, 2nd Floor
Kapashera Village, Bijwasan Road
New Delhi - 110037

Ms. Shweta Jain (Manager Sea Freight)
Having its office at : Khasra no. 78, 2nd Floor
Kapashera Village, Bijwasan Road
New Delhi - 110037
(Previously numbered as Defendant no.2 but deleted from
array of parties vide order dated 30.11.2019)

2. Harry Buscher (Vice President)
Nashville (Branch Manager)
V. Alexander & Co. Inc.
22 Century Boulevard, Suit 510
Nashville, TN 37214 (USA)

3. World Bridge Logistics Inc.
22 Century Boulevard, Suit 510
Nashville, TN 37214 (USA)

CS (Comm) No. : 72/2019                               1/20
 4. 'The J Peterman Company'
5345, Creek Road, BLUE ASH OH 45242 (USA)

                                                .........Defendants

Date of institution of the case : 17.05.2019
Date of final arguments         : 25.07.2023, 15.09.2023
                                  22.09.2023, 26.09.2023
                                  & 27.09.2023
Date of judgment                : 27.09.2023


                                JUDGMENT

1. This is suit for Mandatory Injunction u/s 39 of Specific Relief Act, filed by plaintiff against the defendants.

2. Plaintiff, as stated, is a Private Limited Company and is in the business of manufacturing and export of garments, all over the globe. Defendant no.4 vide purchase order dated 25.01.2019 expressed its interest in the products of the plaintiff. As per the needs of defendant no.4, plaintiff agreed to supply the said merchandise to defendant no.4 vide separate invoices. Defendant no.4 had nominated M/s On Time International Logistics (P) Ltd. as its forwarder . Thus, in terms of purchase order, plaintiff (consignor) delivered the consignment worth USD 86,719.60 on 04.02.2019 to defendant no. 1, against Shipping Bill No. 1803851 and Bill of Lading No. SDH219100059 (OTI No. 019976N) dated 18.02.2019 for delivery of the consignment to the consignee at Chicago. As per the contract, freight was payable by Defendant no.5 (Consignee).

3. As further stated, since the price of consignment has not been received by the plaintiff, plaintiff falls in the category of unpaid seller, as defined in section 45 of Sale of Goods Act.

Further, section 46 of the Sale of Goods Act, prescribes that till such time, that the property in goods has not passed to the buyer, the unpaid seller, in addition to other remedies has a right to withhold delivery of goods. Accordingly, for compelling reasons, plaintiff on 22.02.2019 made a request to defendant no.1 to withhold the consignment and return the same to the plaintiff. Vide e-mail dated 05.03.2019 and 27.03.2019, defendants no. 1 assured to return the consignment shortly subject to payment of Delhi-New YorK and New York to Delhi freight. Plaintiff being a business entity, agreed to the justified demand of freight, however, the plaintiff was shocked to receive an e-mail dated 29.03.209 whereby defendants changed their stand and one ' Hary Buscher- Vice President, Nashville Branch Manager in ' V. Alexander & Co. Inc.' stated that the consignment has been withheld due to certain inter-se previous payment with defendant no.4, which was absolutely illegal and unjustified.

4. As stated, defendants no. 1 and its Principal i.e. Defendants no. 2 & 3 having connived with defendant no.4 hatched a conspiracy to extort a sum of USD 36,253.66 from the plaintiff and started blackmailing the plaintiff, by illegally withholding the consignment, despite the fact that the plaintiff had agreed to pay the freight, for the present consignment. It was further stated that ' On Time International Logistics (P) Limited' and ' V. Alexander & Co. Inc. ' in connivance with the ' J. Peterman Company' induced the plaintiff to deliver consignment worth USD 86,719.60 and when the plaintiff asked for return of the consignment, at the first instance, plaintiff was asked to pay the freight, and the plaintiff when agreed to the justified claims of defendants, the defendants turned dishonest and then raised a demand of USD 36,253.66 for CS (Comm) No. : 72/2019 3/20 return of the consignment, which clearly indicates, that the defendants jointly and severally conspired, to cause illegal loss to plaintiff and illegal gains for themselves. Defendant no.3 through Defendant no.1 threatened the plaintiff that if USD 36,253.66 is not paid or agreed to be paid, by 10.04.2019, they shall sell the consignment to recover their dues.

5. In view of said un-ethical acts/deeds of the defendants, plaintiff was constrained to issue legal notice dated 08.04.2019 to defendants, in response to which, defendants no. 2 & 3 vide e- mail dated 09.05.2019 rather increased the demand to USD 71,799/- and once again threatened the plaintiff that since defendants no. 1 to 3 have lien over the consignment, so if the aforesaid amount is not paid before 20.05.2019, they will auction/sell the consignment and recover the aforesaid amount. .

6. In written statement filed on behalf of defendants no. 1, it was stated that defendant no.1 was acting in bonafide manner and made attempts to get the consignment returned back on the instructions of the plaintiff, but it could not be done due to the terms and conditions of the contract entered by plaintiff with the purchaser/ defendant no.4. However as per FOB contract, defendant no.1 never came in physical possession/custody of the consignment at any point of time as the same was loaded in container as LCL (Loose Cargo Load) and handed over to V. Alexander & Co. Inc. after custom clearances and other formalities directly from the possession of plaintiff. Therefore, defendant no. 1 has no role in the entire transaction in this scenario, except that defendant no.1 acted for plaintiff in bonafide and good faith only. As it was provided in the Bill of Lading clause no.16 that :

" 16. All and any Services provided by the Carrier gratuitously are provided on the basis that the Carrier will not accept any liability whatsoever".

7. Therefore, no cause of action ever arose against defendant no.1 and defendant no.1 is not liable for any claim of plaintiff for the agreement/contract between plaintiff and defendant no.4. It was further submitted that the consignment was forwarded on Non-negotiable Bill of Lading, therefore, it cannot move without the instructions of purchaser/defendant no.4, and it was beyond the control of defendant no.1 to bring the consignment back, as no contract of any kind was existing between plaintiff and defendant no.1.

8. Initially, five defendants were named in Memo of Parties but vide order dated 30.11.2019, defendant no.2 was directed to be deleted from array of parties. Therefore, original defendants no. 3, 4 & 5 shall be read as defendants no. 2, 3 & 4.

9. Application under order XIII-A (2) of Commercial Courts Act for grant of summary judgment was filed by plaintiff on the grounds that defendants no. 1 in its written statement has agreed that it is the agent of defendants no. 2-4 and since it has been admitted that defendant no. 1 is the agent and defendants no. 2 - 4 are the principal, law states that Principal is liable for the agents. Further, defendant no. 1 in written statement has also accepted that the goods were duly delivered to the agent of defendants no. 2-4 i.e. The Principal. On the strength of above, it was submitted that since it has been admitted by defendant no. 1 that there is relationship of Principal and Agent between defendants no. 2 - 4 with defendant no. 1 and that the goods were duly delivered by the plaintiff to the agent, plaintiff is entitled for summary judgment.

As submitted, in a case wherein admissions have already been made by defendant regarding any issue which has been placed before the court for adjudication, in such a situation, the court can proceed with grant of summary judgment. Therefore, it was prayed that summary judgment in favour of plaintiff may be passed restraining the defendants, their agents, officers and assigns from selling, transferring, alienating the consignment work USD 86,719.60, which the defendants in connivance with each other have threatened to auction if sum of USD 71,799.01 is not paid to them.

10. In reply to said application for grant of summary judgment, it was stated by defendant no.1 that disputed question of facts are involved in this case, therefore, no summary judgment in terms of Order XIII-A (2) of Commercial Courts Act, can be passed until and unless the plaintiff proves its case by leading oral and documentary evidence. Defendant no.1 is having real prospect of successfully defending the claim and there are other compelling reasons also as to why the petition should not be disposed off before recording of oral evidence. As further submitted, plaintiff has not placed on record the purchase orders issued by defendant no.4 in support of its application under rule 4 (1) (c) of the Order XIII-A, therefore no question arises for summary judgment. As further submitted, plaintiff has not approached the court with clean hands and has concealed the material facts regarding sale and mode of payment, as agreed between plaintiff and defendant no.4, therefore in absence of such an important piece of evidence concealed by the plaintiff, present application deserves to be dismissed.

11. It was further submitted that there was direct dealing between plaintiff and defendant no.4 as far as sale and purchase of consignment was concerned and defendant no.1 was not in any manner responsible for the payments of the transactions between plaintiff and defendant no.4. Freight was booked by defendant no.4 vide FOB Contract i.e. Freight on Board, through shipping line V. Alexander & Co. Inc/defendant no.2 which was delivered in presence of defendant no.1. Even otherwise it is well settled law that principal is liable for all the acts and deeds of its agents but not the vice versa as defendant no.1 was working on instructions of its counterpart i.e. defendant no.2. As further submitted, plaintiff has not disclosed the real prospect of succeeding on the claim as provided under Rule 3 (a), therefore, in absence of such an important prospect, present application is liable to be dismissed, besides the fact that present application will not serve any purpose as plaintiff is always free to proceed against the purchaser of goods i.e. defendant no.4 but he has to execute the decree against it at USA and nothing prevented the plaintiff from prosecuting his debtor i.e. defendant no. 4.

12. Written submissions were also filed by defendant no.1 wherein it was reiterated that plaintiff concealed the material facts regarding terms and conditions of FOB contract and plaintiff is not pursuing the matter with the purchaser/defendant no.4 as per the terms and conditions of their contract, as plaintiff is under contractual obligation to co-ordinate and deal with purchaser/defendant no.4 for clearance of payments towards plaintiff and get the liability fixed of the purchaser/defendant no.4. Even otherwise, plaintiff was very well aware of the financial conditions of the purchaser/defendant no.4, whereas defendant CS (Comm) No. : 72/2019 7/20 no.1 has no role to play in the transaction between plaintiff and defendant no.4 as the consignment was booked by purchaser/defendant no.4 and the same was handed over to its agent i.e. V. Alexander and Co. Inc. by plaintiff directly after all the clearances and loading in the container which was LCL (Loose Cargo Load) and it was loaded in Cargo as per FOB agreement. Thus, defendant no.1 is not responsible for any of the payments from purchaser/defendant no.4 in any manner.

13. It was further submitted that the consignment was forwarded on Non-Negotiable Bill of Lading, therefore, it cannot move without the instructions of Purchaser/Defendant no.4 and it was beyond the control of defendant no.1 to bring the consignment back, as no contract of any kind was existing between plaintiff and defendant no.1 in this regard.

14. Grounds for summary judgment -" The Court may give summary judgment against plaintiff or defendant on a claim if it considers that :-

(a) the plaintiff has no real prospect of succeeding on the claim or defendant has no real prospect of successfully defending the claim, as the case may be; and

(b) there is no other compelling reason why the claim should not be disposed off before recording of oral evidence".

15. In the instant matter, though Defendant no.1 has disputed with regard to its liability as detailed above submitting that defendant no.1 has no role to play in the transaction between the plaintiff and defendant no.4 as the consignment was booked by purchaser/defendant no.4 and the same was handed over to its agent i.e. V. Alexander & Co. Inc. But at the same time, it was also submitted that defendant no.1 was acting in bonafide manner CS (Comm) No. : 72/2019 8/20 and made attempts to get the consignment returned back on the instructions of plaintiff, which could not be done due to the terms and conditions of contract entered by plaintiff with the purchaser defendant no.4. As further stated, as per FOB contract, defendant no.1 never came in physical possession/custody of the consignment at any point of time as the same was loaded in container and handed over to V. Alexander & Co. after custom clearances and other formalities directly from the possession of plaintiff.

16. Plaintiff referred to communications through e-mail between the parties. By way of e-mail dated 22.02.2019, defendant no.1 was informed by plaintiff to co-ordinate with co- loader and hold the consignment immediately with further communication that they will pay the withdraw charges.

17. Vide e-mail dated 5.3.2019 sent at 3:23 P.M. on behalf of Defendant no.1 to plaintiff, defendant no.1 sought confirmation from plaintiff as to whether the plaintiff will pay the transport costs from Delhi to New York (Freight and all charges) and whether they should arrange transport from New York to Delhi on collect basis.

18. It was confirmed vide return e-mail dated 5.3.2019 at 04:50 P.M. communicating the confirmation that plaintiff will pay the transport cost from Delhi to New York and back. It was followed by response on behalf of defendant no.1:

" Thanks, well noted sir".

19. Vide e-mail of even date, plaintiff communicated as follows:

" please note that the vessel will reach New York on 20 th March. Please co-ordinate with your counterpart and confirm if CS (Comm) No. : 72/2019 9/20 you need any documents from our side. We would like our goods to be back from New York itself. Please organize and confirm all is clear".

20. On 27.03.2019 at 11: 40 A.M, it was communicated through e-mail on behalf of defendant no.1 to plaintiff that reply had been received from Overseas about return shipment, they have started the process for the same and once all finalized,they will share the details with them.

21. Vide e-mail dated 29.03.2019 at 4:32 P.M. , plaintiff asked defendant no.1 to advise about the status of cargo and confirm the Vessel schedule (NYK to MUM) urgently, to which it was responded as per message received from overseas office vide return e-mail dated 29.03.2019 that:

" cargo is currently in a warehouse on lien because of payment issues on previous J. Peterman/Cornell Overseas Shipments were money is still owed. Once, we have more details we will revert back to you".

22. Vide e-mail dated 2.4.2019, plaintiff informed defendant no.1 that they wanted their goods back at the earliest and have nothing to do what's going on between V. Alexander and JP.

23. It was again responded with forwarding of the following e- mail by Defendant no.1 :

" total charges owed to us are USD 35,553.66 + USD 700 currently for Dray and Storage. If Cornell Overseas agrees we can send a formal letter to agree on payment for them to sign before they send the wire for payment of the goods. Then we can setup return of the cargo and send all charges collect".

24. Vide e-mail dated 3.4.2019 plaintiff communicated to defendant no.1 that:

" I am surprised to see the below e-mail. We own the consignment and you need to go as per our instruction. We are not concerned with whatever is going on between V. Alexander and JP. How can anyone hold our goods? Yes we are liable to pay the freight for this consignment to & fro. If there is any charge/demurrage, we won't pay anything and it will come to your account. Please note this very clearly".

25. Exchange of e-mails between the parties is admitted fact on record and all the e-mails have been specifically admitted by defendant no.1 in terms of affidavit of Admission/Denial of Documents filed on its behalf. Legal notice dated 8.4.2019 was sent to defendant no.1 which was responded on behalf of defendant no.2 V. Alexander and Co. stating that the amount being sought was owed by Cornell as the shipper of the goods at issues (which amounts are owed jointly and severally by J. Peterman). It was informed that as per terms and conditions of the bills of lading, the shipper and consignee are jointly and severally liable for the payment of the freight, demurrage and related charges arising from the transportation at issue and the carrier has possessory lien on goods in its possession for all money owed.

26. As brought on record, since the price of consignment has not been received by the plaintiff, plaintiff falls in the category of unpaid seller, as defined in section 45 of Sale of Goods Act. Ld. Counsel for plaintiff referred to section 46 of Sale of Goods Act and section 148 of Indian Contract Act, 1872.

27. Section 46 of Sale of Goods Act, 1930- (1) Subject to the provisions of this Act and of any law for the time being in force, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law -

(a) a lien on the goods for the price which he is in possession of them;

(b) in case of the insolvency of the buyer a right of stopping the goods in transit after he has parted with the possession of them ;

(c) a right of re-sale as limited by this Act (2) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transit where the property has passed to the buyer .

28. Section 148 of Indian Contract Act, 1872-

148. A bailment is the delivery of goods by one person to another for some purpose,upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed off according to the directions of the person delivering them. The person delivering the goods is called the ' Bailor'. The person to whom they are delivered is called the ' Bailee' .

29. Based upon the abovesaid, plaintiff asserted that plaintiff was an unpaid seller and defendants no. 2 to 4 have not filed any written statement to controvert this fact and further there is no evidence on record to show that the price of goods stood paid to CS (Comm) No. : 72/2019 12/20 plaintiff by Defendant no.4. Thus, plaintiff as per section 46 was entitled to withhold the delivery. Further Defendants no. 1 to 4 were merely the Bailee of the consignment in question. There can be no valid and enforceable carriers lien, on the goods transported, for a prior debt of the consignee. Accordingly, withholding the goods as lien for some previous dues of Defendant no.4 was absolutely illegal.

30. As stated by plaintiff, as per contract, even the freight was to be paid by Defendant no.4. Defendant no.3 was nominated as Forwarder of Defendant no.4 and Defendant no.1 was agent of Defendant no.2 and 3 . Goods were handed over to defendant no.1 against issuance of shipping bill and bill of lading dated 18.2.2019. Plaintiff remained unpaid seller who requested defendant no.1 to withhold the consignment and return the same to the plaintiff vide communication dated 22.2.2019 and agreed to bear 'to and fro' freight charges for the consignment. Defendant no.1 referred to clause 9.2 of the terms and conditions of bill of lading issued by defendant no.1 that:

" if the shipment is on the freight collect basis but the consignee does not take the delivery of the goods within 14 days from the date of the good's arrival at the port of discharge or place of delivery, the shipper shall be responsible for payment of all the outstanding freight charges, and costs and expenses (including but not limited to storage costs and demurrage charges) incurred until the goods are duly delivered or are sold or disposed of as per Clauses 8.2 and/or 8.3".

31. In terms of the above clause as referred by Defendant no.1 itself, shipper was responsible for payment of outstanding freight charges, costs and expenses etc. if the delivery was not taken CS (Comm) No. : 72/2019 13/20 within 14 days from the date of the good's arrival at the port of discharge or place of delivery. Plaintiff booked and delivered the consignment against shipping bill dated 18.02.2019 for delivery of consignment to the consignee at Chicago. Shipment as per the documents on record particularly e-mail dated 5.3.2019 refers to the date of sending of shipment on 25.2.2019 from Nhava Sheva. Prior to that on 22.02.2019, Defendant no.1 was informed by plaintiff to co-ordinate with co-loader and hold the consignment immediately with further communication that they will pay the withdraw charges. Defendant no.1 also agreed for return of consignment subject to payment of 'to and fro' freight charges by plaintiff vide e-mail communication dated 05.03.2019. Plaintiff thereby much before the arrival of goods at the port of discharge or place of delivery, sought return of consignment by defendant no.1. Consignment thereafter had been withheld by the defendants and was not returned contrary to the instructions of the plaintiff in this regard, liability of which cannot be fastened upon the plaintiff.

32. At the cost of repetition, it may be noted that defendant no.1 agreed to return the consignment subject to payment of 'to and fro' charges and issued debit note. Plaintiff agreed to pay the freight of this consignment. Thereafter defendant no.1 at the instructions of defendant no.2 stated about the claim of defendant no.2 with regard to other expenses. Even if it is considered that said demand of Defendant no.2 was not pertaining to some previous dispute but with regard to withholding charges, in terms of clause 8.2 of terms and conditions of Bill of Lading referred by Defendant no.1, shipper was responsible for the charges after the expiry of 14 days of non receipt of the delivery by the consignee. As already noted, shipper i.e. plaintiff had already informed the CS (Comm) No. : 72/2019 14/20 defendant no.1 to return the consignment much prior to arrival of the goods at port of discharge, in which circumstances, there was no occasion for the defendants to charge any further amount or expenses from the plaintiff. Contention of Defendant no.1 is falsified on record that the consignment could not move without instructions of purchaser/defendant no.4 as it was beyond the control of Defendant no.1 to bring the consignment back as no contract of any kind was existing between the plaintiff and defendant no.1. If the consignment could not move without the instructions of purchaser/Defendant no.4, there was no reason, occasion or scope for defendants to agree to return the consignment to plaintiff against payment of ' to and fro' freight charges.

33. In these circumstances, this turns out to be a case where defendants have no real prospect of resisting the decree of mandatory injunction sought by the plaintiff. Defendant no.1 also has little prospect of succeeding in its defence as detailed above. There was no representation on behalf of Defendants no. 2 to 4 despite the service who were proceeded ex-parte. Case of plaintiff against defendant no.2 & 4 remained uncontroverted, unchallenged and duly substantiated by documents filed on record.

34. As noted in Parsvanath Developers Ltd v. Vikram Khosla, CS Comm No. 618 of 2019 and C.M No. 8431 of 2020, decided on 03.03.2021, 2021 SCC Online DEL 3147 wherein while referring to Satya Infrastructure Ltd. and Ors. v. Satya Infra and Estates Pvt. Ltd., 2013 (54) PTC 419 (Del), it was observed that :

"4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in chief and which invariably is a repetition of the CS (Comm) No. : 72/2019 15/20 contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record".

35. In the application for Summary Judgment, prayer was made by plaintiff to restrain the defendants, their agents, officers and assigns from selling, transferring, alienating the consignment work USD 86,719.60, which the defendants in connivance with each other had threatened to auction if sum of USD 71,799.01 is not paid to them. Whereas in plaint, prayer was made to pass a decree of Mandatory Injunction, directing defendants to immediately release the consignment booked on 04.02.2019 through defendant no.1 against Shipping Bill no. 1803851 and Bill of Lading no. SDH 219100059 (OTI No. 019976N) dated 18.02.2019, to the consignor.

36. Matter was put up for clarifications. Ld. Counsel for plaintiff submitted that initially prayer was made before the court for restrain order which was repeated in the application for grant of summary judgment, however prayer made in the plaint be considered as the prayer for grant of summary judgment.

37. Ld. Counsel for Defendant no.1 submitted that after the consignment had been booked and loaded, planitiff sought return of the consignment as he got to know about bankruptcy of Defendant no.4. It was further submitted that now suit of the plaintiff has become infructuous as the consignee has already taken over/collected the consignment on 03.04.2019.

38. Ld. Counsel for defendant no.1 was inquired whether this fact was mentioned in the pleadings or in reply to the application CS (Comm) No. : 72/2019 16/20 for grant of summary judgment . Ld. Counsel for Defendant no.1 submitted that this fact was not mentioned as this information had been received lateron from V. Alexander & Co. Inc i.e. defendant no.2 that the consignment had been collected by Defendant no.4 on 03.04.2019.

39. On 26.09.2023, statement of Sh. Ghanshyam Pandit, S/o Sh. Yashveer Sharma, Chief Products Officer, Delhi from On time International Logistics Pvt. Limited i.e. Defendant no.1 was recorded before the court wherein he stated that in terms of the email dated 16.04.2019 received from Vanguard Logistics, the consignment had been collected/picked up from their warehouse by consignee on 03.04.2019. Therefore, the suit stands infructuous. In answer to court Question as to why this fact was not disclosed before the court at any point of time after filing of the suit, he stated that he could not answer this question at this stage without consulting his counsel. He also stated that he will have to check whether this email was filed on record or not.

40. No such email forms part of record. It may be noted that continuously plaintiff had been asking defendant no.1 to withhold the consignment being 'unpaid seller' and defendant no.1 on instructions of Defendant no. 2 & Defendant no.3 had also agreed to return the consignment subject to payment of 'to and fro' freight charges by the plaintiff. Later on, defendants modified the demand and as communicated by defendant no.1 to plaintiff vide e-mail dated 02.04.2019 with forwarding of the following e-mail sent by Defendant no.2 to Defendant no.1 :

" total charges owed to us are USD 35,553.66 + USD 700 currently for Dray and Storage. If Cornell Overseas agrees we can send a formal letter to agree on payment for them to sign CS (Comm) No. : 72/2019 17/20 before they send the wire for payment of the goods. Then we can setup return of the cargo and send all charges collect".

41. Meaning thereby, till that date, consignment had not been taken over by the consignee, therefore plaintiff was asked to pay abovesaid charges.

42. In reply to legal notice dated 16.04.2019, it was reiterated on behalf of defendant no.2 that " V.Alexander is exercising the lien rights until the amount it is owned by Cornel as the shipper of the goods at issue is paid". Plaintiff was asked to pay the charges of $USD 36,253.66 and as stated, once such payments were received, V. Alexander shall follow instructions from Cornell regarding the return or delivery of such cargo.

43. As on 16.04.2019, when this reply was given, there was no mention that the consignment had already been taken over/collected by the consignee on 03.04.2019 and defendants were ready to return the consignment even as on 16.04.2019, after receipt of enhanced charges. Either of the contentions, therefore, is false.

44. Plaintiff also referred to the Notice of Carrier's Lien and Sale of Goods, Dated May 9, 2019, issued under the following Nomenclature:

" World Bridge Logistics, Inc. (Defendant no.3 herein), as Agents for On Time Shipping Line Limited (Defendant no.1 herein) By: Harry R. Buscher, Jr. Vice President, Nashville Branch (Defendant no.2 herein)", wherein it was mentioned that " Defendant no.3 as lawful agent of Defendant no.1 shall exercise the lien rights set forth in section 8.3 CS (Comm) No. : 72/2019 18/20 of On Time Shipping Limited's (D-1) bill of lading and shall cause to be sold at public auction or private sale said goods to recover charges and expenses owed World Bridge Logistics, Inc. by the owner of such goods in the amount of USD $ 71,799.01 as set forth in invoices and statements of accounts, which remain unpaid, plus finance and other charges that are still accruing and will be determined at the time of delivery of the goods to the buyer unless all said charges are paid by May 20, 2019".

45. The above noted language rather makes it apparent on record that Defendant no.3 had published above information as Agent of Defendant no.1 herein contrary to the assertion of Defendant no.1 throughout that he was agent of Defendants no. 2 & 3 and was not responsible for acts of Principal. Contrary to assertion of Defendant no.1, in terms of above noted documents forming part of record, consignment had not been collected by the buyer as on May 9, 2019 and thereafter also time was permitted to clear the charges by May 20, 2019.

46. It is also matter of record that vide order dated 03.06.2019, Ld. Predecessor of this court restrained the defendants from dealing in any manner be it sale, transfer, alienation, auction, etc. with regard to the goods shipped by plaintiff. Throughout pendency of the proceedings, it was not informed by defendant no.1 that the consignment had already been collected by the consignee on 03.04.2019 till the date of asking of clarifications from the parties i.e. till 15.09.2023. Apparently this objection is not only after thought but is substantiating the contention of plaintiff with regard to defendants jointly and severally conniving to cause illegal loss to plaintiff. Once it was known to the defendants, as submitted by counsel for defendant no.1 himself CS (Comm) No. : 72/2019 19/20 that after the plaintiff got to know about the bankruptcy of defendant no.4, it sought return of the consignment . The above action on part of plaintiff being unpaid seller of consignment cannot be considered unjustified. What was unjustified was the action on behalf of defendants in not returning the consignment to the plaintiff after having agreed to return the consignment of plaintiff against payment of 'to and fro' charges, particularly when the consignment had not even reached to the port of delivery by then and then asking for enhanced claim as well as the storage charges, despite knowing the alleged financial bankruptcy of Defendant no.4. Plaintiff, in these circumstances, deserves the order in its favour.

47. Suit is accordingly decreed with cost in favour of the plaintiff and against defendants whereby Decree of mandatory injunction is passed with directions to defendants, through Defendant no.1 to release the consignment booked on 04.02.2019 against shipping bill no. 1803851 and Bill of Lading no. SDH 219100059 ( OTI No. 019976N) dated 18.02.2019 to consignor/plaintiff. Against handing over of the consignment to the plaintiff, 'to and fro' freight charges as applicable on 05.03.2019 shall be payable by plaintiff after adjustment of costs of suit.

48. Decree sheet be prepared accordingly.

                                      SAVITA Digitally signed
                                             by SAVITA RAO

                                      RAO    Date: 2023.09.27
                                             14:34:31 +0530

Announced in the open               (SAVITA RAO)
court on this 27th day            DISTRICT JUDGE
of September 2023              (COMMERCIAL COURT)-02
                              (S/W) DWARKA COURTS, DELHI




CS (Comm) No. : 72/2019                                        20/20