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2021 (5) TMI 90 - HC - CustomsRelease of delivery order and original bill of lading of re-import shipment to enable the release of the subject consignment in favour of the plaintiff subject to payment by the plaintiff within 3 days from the date of the order - ex-parte order - HELD THAT:- It is not in dispute that on the date when arguments on interim application were heard by the Ld. Trial Court, the reply filed by the contesting defendant nos. 5 and 6, was already on record but surprisingly in the impugned order not even one single sentence has been mentioned about the stand taken by the present appellants before the Ld. Trial Court and the impugned order dated 19.11.2020 was passed only on the basis of submissions made on behalf of the plaintiff without considering any argument advanced on behalf of the present appellants, who were vehemently opposing defending the said interim application - While going through the Bill of Lading, it has also come to our notice that Clause 25 provides for the territorial jurisdiction of only the Courts at Hamburg, Germany. The contract of shipping is to be governed by German law. It is worthwhile to mention that this Bill of Lading is available on the Ld. Trial Court’s file and the same is relied upon by both the parties. The detailed written submissions filed by defendant nos. 5 and 6 running into 18 pages, were also on record of the Ld. Trial Court, in which specific reference has been made to the right of lien of the contesting defendants in respect of the goods and liability of the plaintiff (respondent no.1 herein) to make payments of all invoices raised in respect of goods in question. The Ld. Trial Court has failed to appreciate even one single argument of defendant nos. 5 and 6 while passing the impugned order. The said order, at its best, can be termed as an ex-parte order solely based upon the submissions of the plaintiff; passed without caring for the reply or the written submissions filed by defendant nos. 5 and 6, who have no option but to challenge the said order before this court by filing this appeal. Since, no findings have been given by the Ld. Trial Court on the stand of the contesting defendants nothing can be arrived at and the only option left is to remand the matter back to the Ld. Trial Court with a request to consider all the documents and pleadings qua the interim application as well as the written submissions filed by both the parties, and thereafter, decide the interim application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 afresh by passing a detailed, reasoned order - The trial court is at liberty to set-aside, rescind, modify or reconfirm the impugned order dated 19.11.2020 without getting influenced by anything stated in the order hereinabove as we have not expressed any opinion on the merits of the case. Appeal allowed by way of remand..
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