OSI Imports and Exports India Private Limited, Rep. by its Managing Director, Monangi Savararaju, S/o Late Thavitayya v. Doki Tirumala Rao, S/o Chinna Adinaryana
2023-06-14
SUBBA REDDY SATTI
body2023
DigiLaw.ai
ORDER : Plaintiff in the suit filed above revision against order dated 03.11.2022 in CMA No.1 of 2022 passed by learned Judge, Family Court –cum- III Additional District and Sessions Court, Srikakulam (FAC) VI Additional District Court, Sompeta confirming the order and decretal order dated 04.07.2022 passed by learned Junior Civil Judge, Palasa in I.A.No.62 of 2022 in O.S.No.18 of 2022. 2. Plaintiff filed suit O.S.No.18 of 2022 for permanent injunction restraining and preventing the defendant, his men, agents, servants and any person claiming through him/on behalf of him from interfering with and from causing obstruction of delivery and movement of goods/stocks of raw cashew nuts being purchased from Saanthi Global Traders Limited and being preserved in godowns 1 and 2 as shown in the suit schedule for loading and transporting of the same through vehicles for reaching the destination of godowns or places of business of purchasers and for movement of the same to any other place by loading and transporting the same through vehicles for reaching their other places of business for the convenience of the plaintiff company from the godowns 1 and 2 and for costs, etc. 3. Plaint schedule property is shown as “the stock of raw cashew nuts being purchased by the plaintiff company from the company of Saanthi Global Traders being preserved in godowns 1 and 2 of the plaintiff company obtained on lease from the respective landlords within the boundaries mentioned therein. 4. The case of the plaintiff, in brief, is that plaintiff is a Private Limited Company registered under the Companies Act, under the name and style of OSI Imports and Exports India Private Ltd. Plaintiff is carrying on the business of raw cashew nuts at Palasa town and since three years the plaintiff company is dealing with purchase and sales of raw cashew nuts which are purchased and imported from Saanthi Global Traders Limited, a limited company established in Ghana, West African Country. After completion of legal formalities, plaintiff used to receive stock of raw cashew nuts from Saanthi Global Traders Limited. Plaintiff company used to obtain delivery of stock of cashew nuts by submitting bills of lading at Tuticorn Port at Tamilnadu State and used to transport by road to godowns 1 and 2 as described in the suit schedule for preserving. Lease deeds were executed between plaintiff company and landlords.
Plaintiff company used to obtain delivery of stock of cashew nuts by submitting bills of lading at Tuticorn Port at Tamilnadu State and used to transport by road to godowns 1 and 2 as described in the suit schedule for preserving. Lease deeds were executed between plaintiff company and landlords. In the course of business, plaintiff purchased raw cashew nuts in the current financial year from Saanthi Global Traders Limited by virtue of invoices five in number. Saanthi Global Traders Limited dispatched stock to India through Tuticorn Port of Tamilnadu State. After submission of invoices and bills of lading to the customs house at Tuticorn Port of Tamilnadu and after acceptance and acknowledgment of the bills of entry by the customs house at Tuticorn Port, plaintiff obtained delivery of stocks from shipping companies and kept the stocks in godowns 1 and 2. 5. Defendant, who is doing business of raw cashew nuts in and around Palasa also used to import raw cashew nuts of Benin country, by purchasing the same from Saanthi Global Traders Limited of Ghana country. Defendant filed petition under Section 9 of Arbitration and Reconciliation Act, vide ICAOA No.9 of 2021 on the file of High Court of Andhra Pradesh and sought attachment of stock of raw cashew nuts weighing approximately 250 metric tons in godowns 1 and 2. Defendant raised false plea that plaintiff did not purchase any stock from Saanthi Global Traders Limited and the plaintiff company is only shown as notified party for limited purpose of holding and delivering stock on behalf of Saanthi Global Traders Limited. Saanthi Global Traders Limited has been keeping stock with the plaintiff company in breach of the contract entered by the defendant with Saanthi Global Traders. In the commercial arbitration appeal, plaintiff and Saanthi Global Traders Limited are shown as respondents. Though defendant sought for interim attachment, no order was passed. Defendant is nothing to do with the business affairs or stocks of raw cashew nuts preserved in godowns 1 and 2 purchased by the plaintiff company from Saanthi Global Traders Limited. Under the guise of pendency of ICAOA No.9 of 2021, defendant and its followers are not allowing delivery of raw cashew nuts of plaintiff from godowns 1 and 2 shown in the suit schedule property. Plaintiff lodged a complaint with the Station House Officer, Palasa, Srikakulam on 31.07.2021 regarding unlawful activities of the defendant.
Under the guise of pendency of ICAOA No.9 of 2021, defendant and its followers are not allowing delivery of raw cashew nuts of plaintiff from godowns 1 and 2 shown in the suit schedule property. Plaintiff lodged a complaint with the Station House Officer, Palasa, Srikakulam on 31.07.2021 regarding unlawful activities of the defendant. However, a case was registered under non-cognizable sections. Plaintiff company also lodged another complaint before Station House Officer, Palasa on 08.01.2022 alleging that defendant and his followers are continuously interfering with delivery of stocks from godowns 1 and 2 in the suit schedule property. Out of total quantity of 3,220 bags of raw cashew nuts, 2,578 bags have become stagnated since 24.09.2021. Hence, the suit. 6. Other averments in the plaint regarding the arbitration application etc., are not germane to decide this revision. 7. Along with the suit plaintiff filed I.A.No.62 of 2022 under Order XXXIX Rules 1 and 2 of CPC seeking the following relief: “to grant temporary injunction restraining and preventing the defendant, his men, agents, servants and any person claiming through him/on behalf of him from interfering with and from causing obstruction of delivery and movement of goods/stocks of raw cashew nuts purchased from Saanthi Global Traders Limited which are preserved in godowns 1 and 2 at present as shown in the petition schedule for loading and transporting of the same through vehicles for reaching the destination of godowns or places of business of purchasers and for movement of the same to any other place by loading and transporting the same through vehicles for reaching their other places of business for the convenience of the petitioner/plaintiff company from the godowns 1 and 2 in the interest of justice.” 8. In the affidavit filed in support of the petition, the averments of the plaint were reiterated. 9. Respondent/defendant filed counter and opposed the application. In the counter, it was contended inter alia that petitioner/plaintiff is sister concern of Saanthi Global Traders Limited. Promotees of both the companies are related to each other and some of them are common. Saanthi Global Traders Limited nominated petitioner as its notified party in the bills of lading and documents. Cargo was kept in the custody of petitioner/plaintiff without any title.
Promotees of both the companies are related to each other and some of them are common. Saanthi Global Traders Limited nominated petitioner as its notified party in the bills of lading and documents. Cargo was kept in the custody of petitioner/plaintiff without any title. Saanthi Global Traders Limited has been stocking material with the petitioner/plaintiff for delivery to the respondent/defendant and others, who, in turn, entered into contract with Saanthi Global Traders Limited. Godowns 1 and 2 shown in schedule property are godowns of Saanthi Global Traders Limited. Respondent/defendant is a proprietary concern engaged in the business of raw cashew nuts and other products. Defendant is Proprietor of M/s Sri Vishnu Priya Cashew Industries, Bantukettru, Brahmanatarla Srikakulam District. In course of, its business, defendant procures raw-material cashew in shell from various countries, more often from African countries, processes cashew or sometimes sell in cashew in shell for nominal margin profit. Respondent/defendant used to purchase stock of Benian origin. Respondent/defendant placed order for supply of 550 metric tons at the rate of USD 1126/- per unit. Total value of contract is to a tune of USD 6,19,300/-. Respondent/defendant paid USD 92,895/- towards 15% of advance through his banker ICICI Bank, Palasa branch, backed on advance invoice issued by Saanthi Global Traders Limited. Respondent/defendant also entered into various agreements with third parties for supply of cashew nuts. Saanthi Global Traders Limited delayed performance of its obligation under sales contract after receipt of the amount in the form of 15% advance and thus, respondent/defendant sustained huge loss to a tune of $ 375 for metric ton. The total loss sustained by the respondent/defendant is $ 2,06,250/- excluding $ 92,895/-. Saanthi Global Traders Limited is trying to make unlawful gain by diverting the stock in central, through the petitioner to third parties at a higher price. Respondent/defendant filed ICAOA No.9 of 2021 and eventually prayed the Court to dismiss the application. 10. During enquiry, Exs.P1 to P21 were marked on behalf of the petitioner/plaintiff and no documents were marked on behalf of the respondent/defendant. Neither of the parties adduced oral evidence. 11. Trial Court by order, dated 04.07.2022 dismissed the application for grant of injunction. Aggrieved by the same, petitioner/plaintiff filed CMA No.1 of 2022 on the file of learned VI Additional District Court, Sompeta. Appellate Court, by order, dated 03.11.2022, dismissed CMA confirming order, dated 04.07.2022 of the trial Court.
Neither of the parties adduced oral evidence. 11. Trial Court by order, dated 04.07.2022 dismissed the application for grant of injunction. Aggrieved by the same, petitioner/plaintiff filed CMA No.1 of 2022 on the file of learned VI Additional District Court, Sompeta. Appellate Court, by order, dated 03.11.2022, dismissed CMA confirming order, dated 04.07.2022 of the trial Court. Aggrieved by the same, the present revision is filed. 12. Heard learned counsel for the petitioner. This Court ordered notice to the respondent/defendant and the notice was served on him. However, none appeared on behalf of the respondent/defendant. 13. Learned counsel for the petitioner would contend that the Courts below failed to consider Exs.P1 to P21, for grant of injunction. He would also contend that neither trial Court nor appellate Court considered prima facie case, balance of convenience and irreparable loss. He would further contend that there is no privity of contract between the petitioner/plaintiff and the respondent/defendant. He would also contend that the quantity and bills of the stock are evident from invoices marked as Exs.P7 to P11. He would contend that it is choice of the plaintiff to value relief of injunction notionally for the purpose of seeking injunction. 14. Point for consideration is whether Courts below failed to exercise jurisdiction vested with them in considering I.A.No.62 of 2022 filed by the petitioner/plaintiff under Order XXXIX Rules 1 and 2 of CPC? 15. Before discussing the facts this court deems it appropriate to look into the main prayer sought for in the plaint and the interlocutory injunction prayed for. In the main suit, plaintiff sought for injunction preventing the defendant from interfering or causing obstruction of delivery and movement of goods/stocks of raw cashew nuts being purchased by Saanthi Global Traders Limited and being preserved in godowns 1 and 2 shown in the suit schedule, etc. Suit schedule filed along with the plaint does not indicate stock except stating that ‘being purchased by the plaintiff’. Thus, in the suit the prayer is for grant of injunction in respect of cashew nuts being purchased and being preserved in the godowns. Plaintiff, though pleaded in the plaint about purchase, did not seek for relief against that purchased stock. 16. However, in I.A.No.62 of 2022, injunction sought for is retraining respondent/defendant, his men, etc.
Thus, in the suit the prayer is for grant of injunction in respect of cashew nuts being purchased and being preserved in the godowns. Plaintiff, though pleaded in the plaint about purchase, did not seek for relief against that purchased stock. 16. However, in I.A.No.62 of 2022, injunction sought for is retraining respondent/defendant, his men, etc. from interfering and causing obstructions of delivery and movement of goods/stocks of cashew nuts purchased from Saanthi Global Traders Limited, which are preserved in godowns 1 and 2, at present shown in the petition schedule for loading and transporting, etc. In the schedule in I.A., the quantity of stock was shown as 2,578 bags of raw cashew nuts preserved in godowns 1 and 2. Thus, in the interlocutory application, relief sought is restraining the defendants qua the stock purchased and preserved in godown. 17. Petitioner being plaintiff filed suit for permanent injunction and valued the suit notionally for Rs.5,00,000/- and Court Fee of Rs.7,426/- was paid. As argued by learned counsel for the petitioner, in the plaint as well as I.A.No.62 of 2022, plaintiff pleaded purchase of stock and the quantity as 2,578 bags of raw cashew nuts. 18. However, as indicated supra, prayer for injunction in the plaint is restraining the defendant from interfering with or causing obstruction of delivery of goods/stock of raw cashew nuts being purchased and being preserved. When it comes to I.A.No.62 of 2022, petitioner/plaintiff is asking for relief, more than the relief sought by him in the main suit. 19. Relief of injunction being discretionary, Courts should consider the same with the material available before it. If the court comes to the conclusion that if any party comes to the court by suppressing the material facts, discretionary relief of injunction can be denied. Courts also, in the case of interlocutory injunctions, consider the basic ingredients for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss. 20. In the case on hand, as stated supra, petitioner showed stock of 2,578 bags of raw cashew nuts and valued the suit at Rs.5,00,000/-, which is drastically low. Petitioner cannot choose the forum. The notional value should not be at whims and fancies of the petitioner. Had the petitioner valued the suit for the purpose of jurisdiction basing on the preserved stock, Junior Civil Judge lacks jurisdiction.
Petitioner cannot choose the forum. The notional value should not be at whims and fancies of the petitioner. Had the petitioner valued the suit for the purpose of jurisdiction basing on the preserved stock, Junior Civil Judge lacks jurisdiction. The trial Court would have raised an objection regarding maintainability of the suit on its file. 21. Be that as it may, as stated supra, the main suit is filed for simple permanent injunction preventing the respondent/defendant from interfering and obstructing the petitioner/plaintiff in delivery and movement of goods/stocks of raw cashew nuts being purchased by Saanthi Global Traders Limited and being preserved in godowns 1 and 2. Whereas in I.A.No.62 of 2022, the petitioner is seeking relief beyond the prayer sought for in the main suit. The Appellate Court, being final fact-finding Court, considered all these aspects and dismissed the miscellaneous appeal. Appellate Court, in fact, passed a reasoned order. This Court does not find any reasons to interfere with the reasoned order passed by the Appellate Court by confirming order of the trial Court and there are no merits in the revision. Hence, revision is liable to be dismissed. 22. Accordingly, this civil revision petition is dismissed at the stage of admission. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.