In the suit an application for interim orders was also made for the following reliefs Commissioner Special Officer be appointed to make inventory of the manganese ores lying at the respondent No.1s leased plots in the factories of the petitioner at Durgapur and Ranigunj and thereafter to take steps for drawing of samples and get the same analysed through and or by such agency as this Honble Court may deem fit and proper including National Test House, Alipore, Calcutta Injunction restraining the respondent No.1 from depositing and or encashing the said cheque dated December 14, 2008, bearing number242474 for Rs.20,31,25,956/ drawn on Allahabad Bank, Calcutta Main Branch Direction upon the respondent number1 to cancel and return the said cheque bearing number242474, dated December, 2008 for Rs.30,31,25,956/ , drawn on Allahabad Bank, Calcutta Main Branch Appropriate direction upon the respondent number1 to remove the manganese ore lying at the respondent number1s leased plots being portions of the factory premises of the petitioner at Ranigunj and Durgapur within such time as may be fixed by this Honble Court In default of the respondent number1 removing the manganese ore from the said leased plots in the factory premises of your petitioner, Receiver be appointed by this Honble Court with all powers under order 40 of the Code of Civil Procedure including sale of manganese ore lying at the leased plots of the respondent number1 in the factory premises of the petitioner at Durgapur at Ranigunj, either by public auction or by private treaty and to deposit the sale proceeds thereof with the Registrar, Original Side Ad interim order in terms of above prayers Costs and incidental to this application be borne by the respondent number1 Such further orders be made and or directions be given as this Honble Court may deem fit and proper.
As mentioned hereinbefore, these appeals are directed against the said order of the Division Bench of the Calcutta High Court.
It appears that the goods were dispatched to the appellants factory premises at Durgapur and Ranigunj in West Bengal and were allegedly unloaded on plots within the appellants factory premises purportedly leased to the Respondent No.1 Company.
For purposes of drawing samples and getting the same analysed through the National Test House, Alipore, Calcutta.
On 18th May, 2009, the learned Single Judge passed an interim order, as prayed for, in regard to encashment of the security deposit till 22nd May, 2009.
These appeals are directed against the judgment and order dated 1st September, 2009 passed by the Division Bench of the Calcutta High Court in APOT No.235 of 2009 and APOT No.249 of 2009 and companynected applications allowing the appeals in terms of the following order The appellant defendant will be at liberty to encash the cheques and appropriate the amount subject to furnishing a Bank Guarantee of like amount to be furnished in favour of the Registrar, Original Side.
Written statement within 3 weeks from the date the certified companyy of this judgment is made available, cross order for discovery two weeks thereafter, inspection two weeks thereafter and the suit is directed to appear in the prospective list.
From the materials on record it appears that the appellant entered into an agreement on 28th July, 2008 with, a foreign seller for purchase of 7100 metric tonnes of Manganese Ore which was to be sold by the said foreign party under a CIF companytract and discharged at Paradeep Port.
The vessel carrying the companysignment of Manganese Ore arrived at Paradeep Port and the goods were discharged on or about 8th October, 2008, and, thereafter, transferred to a warehouse.
The appellant filed a suit, being C.S.No.137 of 2009, in the Calcutta High Court in its Ordinary Original Civil Jurisdiction claiming return of an advance amount of Rs.2,85,28,926/ and Rs.35,30,000/ , being the price of 100 metric tonnes, aggregating a sum of Rs.3,20,58,926/ and Rs.2,52,08,526/ paid towards various duties, charges and freight etc.
After hearing the parties at length on 12th June, 2009, the learned Single Judge rejected the prayer made on behalf of the respondent Company to vacate the interim order, and, instead, passed the following order To ascertain the quality of the balance goods lying in the leased plots of the respondent number1 Mr. Amit Gupta, Adv.,
Further, ad hoc remuneration of 500 GMs should be paid to the Receiver.
Thereafter, the interim order was extended and the appellant herein was directed to revalidate the cheque dated 14th December, 2008, which was purported to have been given by way of security to the Respondent No.1, by another six months from the date of receipt of the order.
Allegedly, the said ore did number meet the tests relating to its quality and, companysequently, the appellant rejected the entire companysignment and refused to take delivery thereof from the Respondent No.1 Company.
A Deed of Pledge was also executed whereby the entire companysignment was pledged to the Respondent No.1 Company.
Thereafter, the appellant and the Respondent No.1, a Government Company, entered into a High Seas Sale Agreement on 25th September, 2008, wherein the Respondent No.1 has been described as seller of the goods and the appellant is described as the buyer.
It is also the case of the appellant that out of the said companysignment of 7100 metric tonnes of Manganese Ore, the appellant purchased 100 metric tonnes from the Respondent No.1 with the intention of testing the quality of the said ore.
Directions are given for filing affidavits Affidavit in opposition be filed within four weeks from date affidavit in reply thereto, if any, be filed within two weeks thereafter.
The Receiver already appointed shall sell the goods after issuing an advertisement in the Newspapers, once in Statesman once in Ajkal and once in Hindi in Sanmarg, either by way of public auction or by private party subject to companyfirmation by the Court.
Registrar, Original Side until the formal Bank Guarantee is furnished as directed and upon doing so, the cheques may be encashed.
Thereafter, the Respondent No.1 Company filed an application for vacating the interim order while the appellant sought companytinuance thereof.
Report be filed by the said agency on the next date of hearing.
Matter to appear in the list seven weeks hence.
We have heard learned companynsel for the parties at the very initial stage for issuance of numberice since the Respondent No.1 was duly represented on caveat.
The appellant also prayed for an injunction to restrain the Respondent No.1 Company from encashing the security which had been given by the appellant to the extent of Rs.20,31,25,956/ and for damages.
It was also agreed that the Respondent No.1 would endorse the Bill of Lading in favour of the appellant.
We also grant liberty to the appellant to furnish a letter of undertaking to furnish Bank Guarantee for like amount from a Nationalised Bank in favour of Registrar, Original side.
Under the terms of the said Agreement, the appellant was to pay to the Respondent No.1 a sum of US 48,25,188.40 as 100 value of the documents plus 1.5 trading margin of documents, as payment for the documents.
The Bank Guarantee should be kept to the credit of this suit.
We also grant liberty to the parties to bring the intending buyers.
The companyt charges and expenses of sale will be borne by the appellants at the first instance.
Accordingly, the interim order granted will companytinue till ten weeks.
The Receiver after companyfirmation of sale shall handover the sale proceeds to the respondent plaintiff.
Aggrieved thereby, the Respondent No.1 herein preferred APOT No.235 of 2009 and APOT No.249 of 2009 before the Division Bench of the Calcutta High Court and the same were disposed of finally by the Appeal Court by its order dated 1st September, 2009, extracted hereinabove, whereby the order of the learned Single Judge was set aside and replaced by the said order.
That is the genesis of the dispute which arose between the parties.
In terms of the said agreement, the quality and quantity of goods were to be inspected by the buyer at the Port of Loading.
Leave granted.
The suit is expedited.
The appellant is directed to renew the said Bank Guarantee till the disposal of the suit.
The appellant shall keep the Bank Guarantee renew till the disposal of the suit.
1st Floor, Bar Library Club is appointed Receiver at an initial remuneration of 500 GMs.
