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TMI Blog2018 (4) TMI 1667X X X X Extracts X X X X X X X X Extracts X X X X ..... he Materials as defined under Paragraph 4 of the instant Application. c. Pass any other order, relief/reliefs, directions as deems fit for grant, in the interest of justice and equity. FACTUAL MATRIX 2. The Applicant states that it had placed a Purchase Order dated 11.04.2017 with M/s. GB Engineering Enterprises Limited, Trichy, for procurement of boiler plate materials for the Steam Generation Plant. The Purchase Order was bifurcated into two parts, viz., the supply component, for supply of materials worth Rs. 4.40 Crores, and the job work component amounting to Rs. 4.04 Crores. The total value of the Purchase Order was thus, Rs. 8.44 Crores. The Purchase Order dated 11.04.2017 stipulates that Boiler Parts will be supplied within five months of the order, and Purchase Order shall be governed by Singapore Law and only the Court of Singapore shall have the Jurisdiction over the Purchase Order. 3. It has been submitted by the Applicant that pursuant to its Order dated 11.04.2017, M/s. GB Enterprises placed purchase order dated, 10.04.2017 with M/s. Shah Brothers Ispat Pvt. Ltd., (hereinafter referred to as 'the Supplier') for a consideration of Rs. 87,77,899/- for procurement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoked the advance payment Guarantee of USD 94,910.00 submitted by the M/s. GB Engineering Enterprises Limited. 9. The said MoU provides that IUIHPL Singapore had assigned USIPL with the responsibility of completion of work on the semi-finished goods acquired from M/s. GB Engineering Enterprises Limited, and supply of the finished goods to the customer of IUIHPL Singapore in Indonesia. 10. Clause 7 of the MoU provides that the USIPL shall take all legal and economic rights in the semi-finished goods from M/s. GB Engineering Enterprises Limited and the advance payment paid by IUIHPL Singapore to M/s. GB Engineering Enterprises Limited. 11. Clause 14 of the MoU provides that the same shall be governed, construed and interpreted in accordance with the Indian laws, and the jurisdiction will be at New Delhi, India. Clause 15, of the MoU provides that if any dispute arise between the parties, concerning with the MoU, the same shall be resolved by negotiation, failing which by a single arbitrator appointed by agreement between the parties and the seat of the arbitration shall be in Singapore to be governed in accordance with the rules of arbitration of the charted institute of arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e help of Chairman's daughter i.e. MD of M/s. Dynepro Private Limited, and Resolution Professional is of the presumption that it is a ploy being played by the M/s. Dynepro Private Limited. 15. The Resolution Professional has also submitted that the Corporate Debtor is neither a contracting party nor confirming party or beneficiary to any transaction entered into by the Applicant. There is no privity of contract between the Applicant and Corporate Debtor and the Applicant has no legal right to sue the Corporate Debtor for any materials. 16. From the pleading of the parties, the issue that can be framed is as follows;- Whether the Applicant has any locus standi to file the Application and claim the materials from the Corporate Debtor? 17. The Applicant would contend that privity of contract is not required for the Applicant to seek custody of the materials from the Corporate Debtor, because the Corporate Debtor retained custody of the materials in the capacity of a Sub-bailee, and thus, the Applicant being owner is entitled to claim the materials. The Applicant has relied on the judgments of Morris v. C. W Martin and Sons Ltd. 19M WLR 276, N.R Srinivasa Iyer v. New India Assuran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whisper in the MoU that any materials of the Applicant is lying with the Corporate Debtor. Therefore, the claim of the Applicant made in the Application, and as reflects from the MoU is being hit by major contradictions with regard to the title and possession of materials which is stated to have been delivered by M/s. GB Engineering Enterprises limited, to M/s. Dynepro private limited. But, no proof has been placed on record to show that the materials were delivered either by the Applicant or by M/s. Dynepro Private limited to the Corporate Debtor. Thus, the concept of bailment does not apply to the facts and circumstances of the case on hand, as has been claimed by the Applicant. 22. It is worthwhile to mention that the Applicant viz., IUIHPL Singapore has given the Purchase Order to M/s. GB Engineering Enterprises limited on 11.04.2017, which was subject to the acceptance by M/s. GB Engineering Enterprises limited. But, it is seen that the order for purchase of the materials was given by M/s. GB Engineering Enterprises limited to M/s. Shah Brothers Ispat Pvt. Ltd., on 10.04.2017, which is prior to the date of purchase order given by the Applicant to M/s. GB Engineering Enterpri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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