Bombay High Court
Seaco Global Limited vs Opal Asia Logistics (India) Pvt. Ltd. ... on 27 January, 2020
Author: A.K. Menon
Bench: A.K. Menon
16ia 1.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Interim Application No. 1 of 2019
IN
COMM. SUIT (l) NO. 1212 OF 2019
SEACO Global Limited ....Applicant
In the matter between
SEACO Global Limited ....Plaintiffs
V/s.
Opal Asia Logistics (India)
Pvt. Ltd. & anr. ....Defendants
Mr. Karl Shroff a/w. Mr. Avinav Mukherjee a/w. Mr.Rushil Mathur i/b.
Kochhar & co. for the applicant.
CORAM : A.K. MENON, J.
DATED : 27th JANUARY, 2020.
P.C. :
1. By this interim application, the plaintiff seeks urgent ad-interim reliefs in terms of prayer clauses (a) and (b) thereby seeking to restrain the defendants from dealing with, disposing of alienating, encumbering, further utilising and/or creating third party rights in 364 containers which were leased to the defendant no.1 initially and by a subsequent lease to defendant no.2 as well. Defendants 1 & 2 are thus jointly and severally lessees of these 364 containers.
2. The plaintiffs are today unaware of the location of the containers and 1/4 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 21:16:15 ::: 16ia 1.19.odt are, therefore, unable to precisely describe where these containers are presently located. For want of more particulars, he seeks urgent ad-interim relief of disclosure of exact location of these containers. The particulars of containers are set out in Exhibit R to the plaint. They are 364 in number. Each one is described by their unique serial number and with reference to the lease contract number.
3. It is submitted that the lease contract copy of which appears at Exhibit A has been renewed from time to time and that it continued to be valid till these agreements were terminated for default on 12 th December 2019 as seen from Exhibit 'N' to the plaint. It is submitted that defendants have failed and neglected to return any of the 364 containers and have also defaulted in paying lease rent in respect of these containers. Despite repeated requests the defendants have failed and neglected to comply with the demand to make payment of lease rent. Vide the demand letter dated 12 th February 2019 both the defendants have been called upon to return the containers failing which the plaintiffs will be left with no alternative but to proceed to take possession of the containers. A second demand notice has been issued on 21 st August 2019 to both the defendants. The demand notice contains an annexure which provides a list of the containers with serial numbers. The Demand Notice is seen to have been addressed to defendant no.1. Defendant no.2 also carries on business at the same address.
4. Prima-facie it appears that Demand Notice has been delivered. 2/4 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 21:16:15 :::
16ia 1.19.odt Mr.Shroff submits that there is no response nor compliance. As a result, 2 nd demand was sent on 23rd October 2019 reiterating the earlier demand. This notice has been delivered to both the defendants as seen from the postal tracking report at pages 95 and 96 to the plaint. Prima-facie the plaintiffs appear to be entitled to receive a sum of USD 199739.70. Interest is also claimed thereon.
5. This motion was first moved on 20 th January 2020 when Mr.Shroff submitted that notice of the application had been served only the previous day. The Court, therefore, adjourned the matter for a week. Today, it is submitted that fresh notice was served on 21 st January 2020. He produces the original acknowledgment on the letter of the plaintiff's Advocate addressed to both the defendants and bearing acknowledgment of both defendants as of 21st January 2020. An affidavit of service is also filed dated 23 rd January 2020. The defendants are absent on call. Prima-facie case is made out for the grant of ad-interim relief.
6. In that view of the matter, I pass the following order;
(i) There will be an ad-interim order in terms of prayer clauses (a) &
(b) which read as follows:
(a) Pending the hearing and fnial disposal of this Suit, this Hon'ble Court be pleased to pass an order restraining the Defendant Nos.1 and 2 themselves and/or its agents/associates/servants from dealing with, disposing of, alienating, encumbering, further utilising and/or creating any 3/4 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 21:16:15 ::: 16ia 1.19.odt third party right, title and/or interest of any kind or nature whatsoever in relation to the said 364 containers described in Exhibit R to the Plaint;
(b) Pending the hearing and final disposal of this Suit, this Hon'ble Court be pleased to direct Defendant Nos.1 or 2 to disclose the exact locations of the 364 containers described in exhibit R to the Plaint;
(ii) Liberty to the defendants to file reply within a period of 2 weeks from service of an authenticated copy of order.
(iii) In the event, the defendants file their affidavit-in-reply within two weeks and if so advised, plaintiffs are at liberty to make further application for ad-interim relief. Likewise, if no reply is filed in two weeks, liberty to apply for further ad-interim relief.
(iv) List the matter on 10th February 2020.
(A.K. MENON, J.) L.S.Panjwani, P.S. 4/4 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 21:16:15 :::