TaxTMI 
TaxTMI 
2021 (5) TMI 90
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....le the release of the subject consignment in favour of the plaintiff subject to payment of invoice no. 2074601095 and 2074601097 by the plaintiff within 3 days from the date of the order." 2. The brief history of the case, as per appellants, is that the appellant no.1 is a Shipping Line, engaged in transporting goods through sea. Respondent No. 1 herein is the plaintiff in the suit below, who had appointed respondent nos. 2 and 3 as its Freight Forwarder/Agent for the purpose of exporting a consignment of stainless-steel utensils to its client in Canada, who are respondent nos. 6 and 7 in the present appeal. The agent, appointed by respondent no. 1, had further appointed Freight Forwarder/Agent, who in turn engaged the services of the appellant no.1. When the goods were loaded on the ship, the Bill of Lading dated 18.01.2020 was issued by the present appellant no.1 in the name of respondent no. 1. 3. The cargo reached its destination in Canada on 07.03.2020 but the necessary certificates, i.e., Fumigation Certificate as well as Phytosanitary Certificate were lacking, which were required as per applicable Canadian law and as per the appellants, the said certificates ought to have ....
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....der as well as original Bill of Lading No. HLCUVAN20070919 of reimport shipment shall not be released by them unless impugned communication dated 29.10.2020 is being complied. (D) To grant injunction in favour of the plaintiff and against the defen1dants from any further incurrence of demurrage and damage charges since the subject consignment is kept in to illegal confinement by defendants by taking law into their hands wherein declaring that the Delivery Order as well as original Bill of Lading No. HLCUVAN20070919 of reimport shipment shall not be released by them unless impugned communication dated 29.10.2020 is being complied. (E) To pass any order or orders as this Hon'ble Court may deem fit and proper in present facts and circumstances of the case." 6. The present appellants were listed as defendant nos. 5 and 6 in the said suit. Summons in the suit and notices on the interim application were issued to the defendants. The present appellants filed a reply to the interim application on 10.11.2020 followed by detailed written submissions. Thereafter, arguments were heard and the impugned order was passed, which has been challenged by the appellants by filing an appeal before....
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....y 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. 9. During the arguments, learned counsel for the appellants has relied upon the terms and conditions of Bill of Lading, which contains the definition of "Merchant" as under: "Merchant: Includes the booking party, shipper and consignee named on page 2 hereof, holder, receiver of the Goods or of this Bill of Lading, and any person owning or entitled to the possession of the Goods or this Bill of Lading." 10. As per the learned counsel for the appellants, the "Merchant" includes the present respondent no. 1, who was the "Shipper" as well as the "Consignee" being present respondent nos. 6 and 7. He has also referred to Merchant's responsibility mentioned in Clause 12 (3) of the Bill of Lading and the same reads as under: "Merchant shall comply with all regulations or requirements of customs, ports and/or other authorities, including but not limited to those relating to V....
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.... respect of the goods for payment of detention/demurrage charges: i) Both the Bills of Lading issued by this Defendant no. 5 for carriage of the subject goods from India to Canada as well as from Canada to India unequivocally contain the terms and conditions of the carriage, which includes the right to Lien and merchants' responsibilities (See clause 12 and 15 of the terms and conditions contained on the rear side of the Bill of Lading issued by this Defendant). Under the said conditions, this Defendant has a further right to sell the said goods to recover it dues for the expenses and charges with respect to the said goods. The Bills of Lading are annexed and marked as Annexure "D1" and "D2" and the terms and conditions contained on the rear side of these Bills of Lading are annexed and marked as Annexure "D4" filed along with the Reply to Interim Application dated 10/11/2020. The terms and conditions of the Bill of Lading are a binding contract of carriage and that the goods are carried and delivered according to those terms and conditions has been observed by a bench of 5 Hon'ble Judges of the Supreme Court in the case of "The Trustees of the Port of Madras v/s. K.P.V. Sheik Mo....
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....xure "A3" shall reveal that the invoice is not addressed to the Defendant no. 7 particularly. In fact, the names of both the Plaintiff as well as the Defendant no. 7 are mentioned on the said invoices as Shipper and Consignee respectively. Thus, the said invoices are not particularly addressed to a particular party but the amount therein is payable by either the Plaintiff or the Defendant no. 7. In order to understand this liability of both the parties, it shall be necessary to see the clear and unambiguous terms and conditions of the Bill of Lading printed on the rear and annexed as Annexure "D4" along with the reply to I.A. A joint reading of clause no. 12, 13, 14 and 15 of the said terms and conditions would show that all the costs, expenses, freight, charges, losses, liabilities and all monies due to the present Defendant no. 5 are payable "jointly and severally" by all persons coming under the definition of the term "MERCHANT". Now, the definition of the term "MERCHANT" given in the same terms state that "Merchant includes the booking party, shipper and consignee named on page 2 hereof, holder, receiver of the Goods or of this Bill of Lading, and any person owning or entitled ....
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....e goods from this Defendant. Thus, even as a matter of logical thinking it is only the Plaintiff who is responsible to pay the said charges suffered by this Defendant at the Port of destination and then claim the goods from this Defendant. Thus, from all the above-mentioned facts, circumstances and legal propositions, it would become crystal clear that this Defendant has a statutory as well as contractual lien on the subject goods of the Plaintiff and the Hon'ble superior Courts of the country have time and again upheld the legality of the lien of Shipping Line and Ports over goods for payment of demurrage and other charges." 13. Significantly, there is no mention about any of the above arguments/defenses taken by the present appellants before the Trial Court. The contesting defendants have also raised serious objection to the plaintiff classifying the stainless-steel utensils as 'Perishable'. The said stand of the defendants is contained in paragraph 6 (c) of the detailed written submissions and the same are reproduced hereunder: "c) The Plaintiff is not entitled to any relief from this Hon'ble Court as he has approached the Court with unclean hands and made false statements ....
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....sections are reproduced here under: "59. Board's lien for rates: (1) For the amount of all rates [leviable under this Act] in respect of any cargo, and for the rent due to the Board for any buildings, plinths, stacking areas, or other premises on or in which any cargo may have been placed, the Board shall have a lien on such cargo, and may seize and detain the same until such rates and rents are fully paid. (2) Such lien shall have priority over all other lines and claims, except for general average and for the ship-owner's lien upon the said cargo for freight and other charges where such lien exists and has been preserved in the manner provided in sub-section (1) of section 60, and for money payable to the Central Government [under any law for the time being in force relating to customs, other than by way of penalty or fine]. 60 Ship-owner's lien for freight and other charges: (1) If the master or owner of any vessel or his agent, at or before ethe time of landing from such vessel any cargo at any dock, wharf, quay, stage, jetty, berth, mooring or pier belonging to or in the occupation of a Board gives to the Board a notice in writing that such cargo are to remain subjec....