Kerala High Court
V.Sunil Kumar vs M/S.Coopa-Bgb
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934
OP(C).No. 3411 of 2011 (O)
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OP(ARB).1073/2011 of I ADDL.DISTRICT COURT, ERNAKULAM
PETITIONER : -
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V.SUNIL KUMAR, AGED 40 YEARS,
S/O LATE VELAYUDHAN, PROPRIETOR:M/S V.K. EXPORTS,
CHAVARA P.O, KOLLAM DISTRICT. RESIDING AT KUMBALATHU VEEDU,
CHAVARA P.O, KOLLAM DISTRICT.
BY ADV. SRI.V.PHILIP MATHEWS
RESPONDENTS: -
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1. M/S.COOPA-BGB , 12 BP 667,
ABIDJAN 12, COTE'D IVORY (IVORY COAST), WEST AFRICA.
2. LORD'S FAVOUR SARL,C/878,
AGONG BOMEY, COTONOU EST, BENIN,
WEST AFRICA.
*ADDL. R3 IMPLEADED
ADDL R3. COCHIN PORT TRUST,
WILLINGTON ISLAND, ERNAKULAM,
REPRESENTED BY ITS CHAIRMAN
ADDL R3 IS IMPLEADED AS PER ORDER DATED 21.10.2011 IN I.A. 16934/2011 IN OPC
3411/2011.
BY ADV. SRI.V.ABRAHAM MARKOS
BY ADV. SRI.MATHEWS K.UTHUPPACHAN
BY ADV. SRI.BINU MATHEW
BY ADV. SRI.TERRY V.JAMES
BY ADV. SRI.B.J.JOHN PRAKASH
BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL)
BY ADV. SRI.V.ABRAHAM MARKOS
BY ADV. SRI.MATHEWS K.UTHUPPACHAN
BY ADV. SRI.BINU MATHEW
BY ADV. SRI.TERRY V.JAMES
BY ADV. SRI.B.J.JOHN PRAKASH
BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL)
BY ADV. SRI.N.D.PREMACHANDRAN
BY ADV. SRI.D.AJITHKUMAR
BY ADV. SMT.AMBILY K.ARAVIND
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-04-2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3411 of 2011 (O)
APPENDIX
PETITIONER'S EXHIBITS:
EXT P1 : COPY OF THE CONTRACT.
EXT P2 : COPY OF THE COMMUNICATION DATED 24.05.2010 ISSUED BY THE BANK.
EXT P3 : COPY OF THE COMMUNICATION ISSUED BY THE FEDERAL BANK,
KOLLAM.
EXT P4 : COPY OF PACKING LIST ISSUED BY THE 1st RESPONDENT TO THE
PETITIONER ON 22.6.2010.
EXT P5 : COPY OF COMMUNICATION DATED 26.8.2011 FROM THE 1st RESPONDENT
TO THE PETITIONER.
EXT P6 : COPY OF BILL OF LADING.
EXT P7 : COPY OF THE OP (Arb) NO.1073/2011 FILED BEFORE THE DISTRICT
COURT, ERNAKULAM.
EXT P8 : COPY OF I.A.NO.5256/2011 FILED BY THE PETITIONER IN OP (Arb)
NO.1073/2011 BEFORE THE DISTRICT COURT, ERNAKULAM.
EXT P9 : COPY OF THE ORDER DATED 20.10.2011 PASSED BY THE FIRST
ADDITIONAL DISTRICT COURT, ERNAKULAM IN I.A.NO.5256/2011 IN OP
(Arb) NO.1073/2011.
EXT P10 : COPY OF COMPUTER PRINTOUT OF 'SWIFT INPUT' SENT FROM THE
BANK OF THE 2nd RESPONDENT TO IDBI BANK LIMITED REQUESTING TO
TRANSMIT DOCUMENTS IN FAVOUR OF THE PETITIONER.
EXT P11 : COPY OF THE COMPUTER PRINT OUT OF THE 'SWIFT' MESSAGE FROM
RESPONDENTS 1 AND 2 TO BANK OF INDIA.
RESPONDENTS' EXHIBITS:
EXT R4 (a) : COPY OF THE COMMERCIAL INVOICE DATED 2.3.2012.
EXT R4 (b) : COPY OF THE ORIGINAL BILL OF LADING.
EXT R4 (c) : COPY OF THE DOCUMENT DATED 16.3.2012.
EXT R4 (d) : COPY OF THE NO OBJECTION CERTIFICATE DATED 7.2.2012.
EXT R4 (e) : COPY OF LIST OF DOCUMENTS.
EXT R4 (f) : COPIES OF THE APPLICATION SUBMITTED BEFORE THE ASSISTANT/
DEPUTY COMMISSIONER OF CUSTOMS BY MAERSK, THE CARRIERS.
EXT R4 (g) : COPY OF THE APPLICATION BEFORE THE RELAY SHIPPING AGENCY
LTD. (THE OWNER OF THE VESSEL) DATED 14.3.2012.
OP(C).No. 3411 of 2011 (O)
EXT R4 (h) : COPY OF THE ANNEXURE iv, AMENDMENT OF CARGO DETAILS DATED
14.3.2012.
EXT R4 (i) : COPY OF THE MANIFEST DATED 21.10.2011.
EXT R4 (j) : COPY OF THE ORIGINAL BILL OF LADING.
EXT R4 (k) : COPY OF THE CARGO AMENDMENT CHECK LIST DATED 21.3.2012.
EXT R4 (l) : COPYOF THE BILL OF ENTRY.
EXT R4 (m) : COPY OF THE LETTER DATED 21.3.2012.
EXT R4 (n) : THE PROCEEDINGS FOR OPEN AND EXAMINATION OF THE CONTAINER
ISSUED BY THE CUSTOMS DEPARTMENT DATED 22.3.2012.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
S.S.SATHEESACHANDRAN,J.
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O.P. (c) NO.3411 of 2011
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Dated this the 13th day of April, 2012
JUDGMENT
This original petition has been filed seeking the following reliefs.
(i) Issue appropriate writ, order or direction quashing Exhibit P9 to the extent it disallows the prayer of the petitioner to pass an order of conditional attachment attaching the goods mentioned in the attachment schedule in Exhibits P7 and P8 and allow the entire relief's sought by the petitioner in Exhibit P8.
(ii) Issue appropriate order allowing Exhibit P8 as prayed for.
(iii) Mould and grand such other reliefs which this Hon'ble Court deems just and necessary and that may be prayed for by the Petitioners while hearing the OP (c).
2. Petitioner has moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the 'Act'), before the District Court, Ernakulam. An order of interim attachment over the goods described in the schedule attached to the petition was sought for as an interim measure in the aforesaid proceedings. That interim relief canvassed for being declined by the learned District Judge, petitioner filed this O.P. (c) NO.3411 of 2011 2 original petition invoking the visitorial jurisdiction of this court under Article 227 of the Constitution of India.
3. This court by order dated 21.10.2011 passed in the original petition directed detention of the goods covered by the schedule of the petitioner subject to the liability of the petitioner to pay the demurrage charges. A third party has come forward with a petition for his impleadment as additional respondent in the OP contending that the goods ordered to be detained under the aforesaid order actually belongs to him. Allowing the application he was impleaded as additional 4th respondent. The learned counsel for the third respondent submits that, whoever be the person entitled to collect the goods, for its retention, he is liable to pay the demurrage charges. In this proceedings as to who should pay the demurrage charges or whether the petitioner is even entitled to get an order of attachment canvassed for, at this stage, is found to be having no significance. Ext.P7 application was moved by the petitioner before the District Judge, only for an interim order of attachment of the goods. Even from the case set up by the O.P. (c) NO.3411 of 2011 3 petitioner no step has been taken so far for commencement of the arbitration proceedings. Invoking of the powers of the court under Section 9 of the Act would emerge for consideration in such a case, where the petitioner seeks bona fide commencement of the arbitration proceedings on the basis of the arbitration clause covered by the agreement binding upon the parties. A proceeding under Section 9 of the Act cannot be used to stultify the resolving of the disputes through arbitration, keeping the interim orders issued indefinitely. If the court after passing interim orders continues with such proceeding for months then it would defeat the very object and purpose of the Act itself. The learned counsel for the petitioner submits that in view of the volatile situation in Ivory Coast, where there is no effective Government in control, notice to the respondents, who are stated to be operating from the above country, could not be served till now. Whatever that be, the proceedings initiated under Section 9 of the Arbitration Act cannot be continued indefinitely before the court and it has to be disposed of within a reasonable time. (See. M/s Sundaram Finance Ltd Vs. M/s O.P. (c) NO.3411 of 2011 4 NEPC India Ltd, AIR 1999 SC 565). The court below has to consider and pass appropriate orders on Ext.P7 application expeditiously taking note that what is contemplated under Section 9 is nothing but an interim relief, and when such interim relief is applied at a stage before commencement of the Arbitration proceedings the measure so provided by the court is only for the purpose of enabling the party to take effective steps for commencement of the proceedings. So far as the interim order passed by this court, if the condition imposed for payment of the demurrage as directed has not been complied with the order shall be of no avail. The interim order dated 21.10.2011 reads thus: "It is made clear that if any demurrage is payable for such retention, the same shall be paid by the petitioner failing which it will be open to the third respondent to deliver the property to the person entitled thereto". An application moved by the petitioner later for removing that condition had been dismissed by this court. Whether petitioner has paid the demurrages or not, is not a matter or issue that is to be resolved by this court. If demurrages have not been paid then the O.P. (c) NO.3411 of 2011 5 consequences thereof will follow.
4. The court below is directed to dispose of the OP filed by the petitioner as expeditiously as possible, at any rate, before 30.06.2012. Interim order passed by this court dated 21.10.2011 shall continue till such period in case demurrages had been paid by the petitioner. If payment is by third party then also the petitioner cannot seek any relief. Port authorities are free to release the goods under retention to the eligible person subject to realisation of the charges due to them, if demurrage charges have not been paid by the petitioner.
Original petition is disposed of.
S.S.SATHEESACHANDRAN JUDGE.
DMR/-