Calcutta High Court
Trafigura Beheer B.V vs Rashmi Cement Ltd on 5 October, 2010
Author: I. P. Mukerji
Bench: I. P. Mukerji
T No. 34 of 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
TRAFIGURA BEHEER B.V. Plaintiff/Petitioner/Applicant
Versus
RASHMI CEMENT LTD. Defendant/Respondent
For Plaintiff/Petitioner : MR. S. MITRA, ADVOCATE. For M/s.Reshmi Cements Ltd. : MRS.L.BANERJEE,ADVOCATE For M/s.Reshmi Metalics Ltd.: Mr.RATNANKO BANERJEE,ADVOCATE BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI Date : 5th October, 2010.
The Court : Today on the returnable date of this application, not only the respondent is represented but also M/s. Rashmi Metalics Ltd.
It appears that the quantity of iron fines lying at Gangavaram port belongs to or is on the account of Rashmi Metalics Ltd. Although it is 2 pleaded that the shareholders of this company and the respondent are common and control of both companies is by the same persons or a group of persons, there is no prima facie evidence before me at this stage to show that Rashmi Metalics Ltd. is holding the said goods as agent of the respondent. Further, prima facie there is immediately no case for specific performance of the subject contract for sale of goods between the parties.
But considering the submission of the learned counsel for the respondent, it is prima facie quite evident that at the time for performance, the respondent neither had the contracted quantity of iron fines in its possession nor was otherwise able to fulfill its export obligations towards the petitioner. Therefore, it is prima facie in breach and liable in damages.
Therefore, considering the above, prima facie case, I pass the following order in modification of the order dated 1st October, 2010 :
(a) The injunction regarding the goods at Gangavaram port is discharged.
(b) If the respondent is able to export to the petitioner the contracted quantity of 40,000 Metric tonnes of iron fines by 15th October, 2010 from any port, the petitioner will accept it without prejudice to its rights and contentions.
This part of the order is passed at the suggestion of the petitioner.
3If such goods cannot be so exported by the stipulated time, the respondent will furnish security by way of bank guarantee of the value of 20% of the sale price of USD 4,864,000, at the conversion rate on the date of issuance of the bank guarantee in favour of and to the satisfaction of the Registrar, Original Side. Such security should be furnished by 9th November, 2010, if the goods cannot be exported. Intimation should be given to the petitioner of furnishing of such security.
In default of furnishing such security, all immoveable properties of the respondents will stand attached.
Let Affidavit-in-opposition be filed by 18th November, 2010. List this application in the Monthly List of December, 2010. Affidavit-in-reply be filed in the meantime.
All parties concerned are to act on a signed photo copy of this order on the usual undertakings.
(I. P. MUKERJI, J.) ssaha AR(C.R.)