TaxTMI 
TaxTMI 
2017 (2) TMI 1331
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....ndment of Manifest earlier effected in favour of the respondent No.4 and for effecting the amendment of the Manifest in favour of M/s. JHK Consultancy Private Limited. 2. The facts of the case in brief are that Cingler Ship Pte.Ltd. ('Cingler' for short) loaded 77,000 MT of coal on MV Corinna vessel belonging to the petitioners. On account of the failure of Cingler to pay the freight charges and to lift the coal, the first petitioner approached the Singapore High Court against Cingler. The Singapore High Court passed the decree on 05.08.2015 (Annexure-A) permitting the first petitioner to sell the cargo and to take all such steps to effect the same such as to move, discharge, tranship, store and/or dispose such part of the cargo as may be necessary to preserve the cargo and its value. The first petitioner was directed to deduct the costs and expenses incurred in connection with selling the coal from the sale proceeds and deposit the balance of the sale proceeds with it. 3. Pursuant to the aforesaid decree, the first petitioner entered into the sale agreement, dated 31.08.2015 (Annexure-B) with the third respondent and issued the bill of lading to the third respondent in respect o....
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.... In support of his submissions, he relies on the following authorities:- (i) (2011) 5 SCC 697 - Union of India and others v. Tantia Construction Private limited. (ii) (2009) 14 SCC 451 - National Sample Survey Organisation and Another v. Champa Properties Limited and Another. (iii) (2003) 2 SCC 107 - Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others. 10. The learned Senior Counsel submits that the application AP.IM No.3/2016 instituted in the District Court in Mangaluru came to be dismissed on finding that it did not have the jurisdiction to consider international commercial arbitration. 11. Thereafter the petitioner filed AP.IM No.3/2016 before this Court. The said case was withdrawn with the liberty to have the recourse to appropriate proceedings before the appropriate forum. In this regard, he brings to my notice the order, dated 27.9.2016 passed by the Division Bench of this Court in AP.IM No.3/2016. As it is withdrawn, it is as good as not filing the case in the eye of law. He relies on the decision in the cases of MUKTA BAI AND OTHERS v. KAMALAKSHA AND OTHERS reported in AIR 1960 MYSORE 178, SUKUMAR BANERJEE vs. DILIP KUMAR SARKAR AND OTHERS reported in ....
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.... order, dated 05.08.2016 (Annexure R-3F) directed that the C.M.P. be treated as Arbitration Petition-Interim Measure (AP-IM). The C.M.P. was converted and renumbered as AP.IM No.3/2016. The said case was posted before the Division Bench on 27.09.2016 but without showing the names of the respondents' learned advocates, who appeared in the C.M.P. He submits that the same may be a lapse on the part of the Office, but it was incumbent on the petitioners' learned advocate to bring it to the notice of the Court that the names of the respondents' learned advocates were not shown in the cause-list. Thus, without notice to the respondents, AP.IM No.3/2016 was withdrawn with the liberty to file the appropriate proceedings. All these things would only indicate that the petitioner No.1 has only been indulging in chance litigation, so submits the learned Senior Counsel. 15. He submits that five days before the withdrawal of the AP.IM No.3/2016 on 27.09.2016, this writ petition is filed on 22.09.2016. He submits that the factum of filing A.A., C.M.P. and AP.IM are not disclosed in the memorandum of the writ petition. 16. He submits that as the petitioners have suppressed the material facts, th....
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....26 of the Constitution of India is not intended to facilitate the avoidance of obligation voluntarily incurred. 22. Sri Naragund further submits that the internal Annexure-A to the facility notice (Annexure R3J) contains the classification as to which are the major amendments and which are the minor amendments to the IGM. The amendment sought falls in the category of major amendments. He submits that the sought major amendment is not in the prescribed form. The requisition is also not accompanied by the prescribed documents. 23. He read out Article 8 of the sale agreement (Annexure-B) between the petitioner and the respondent No.3, which states that the payment shall be made by the respondent No.3 to the petitioner No.1 only for that quantity of the material for which the dispatch order is issued by the petitioner No.1. He submits that the petitioner No.1 has not issued any dispatch order. 24. He submits that M.V. Corinna was on the high seas for about six months, as the coal was not being off-loaded. It is at that crucial stage that the petitioner No.1 entered into an agreement with the respondent No.3. On the coal being off- loaded from the ship on the basis of the sale agreem....
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.... handing over the area in question to M/s. Chettinad would result not only in monetary loss but also in reputational loss to the second respondent Port. He submits that the port dues payable by the consignee are over Rs. 50 lakhs, besides the penalty at 13% per annum to honour the second respondent's obligations to M/s. Chettinad. The area has to be cleared and the subject coal cargo has to be shifted to some other safe place without any further loss of time. 29. Sri Rayappa, the learned counsel for the respondent No.2 submits that the coal storage in question is also causing fire hazards. 30. Sri S. Rajashekar, learned counsel appearing for Sri Dhananjaya Kumar for the respondent No.4 in W.P.Nos.51153- 51154/2016 and the petitioner in W.P.Nos.51167-51168/2016 makes the submissions substantially akin to those of Sri M.B.Nargund. He submits that the IGM stands in the name of the earlier consignee and that is M/s.Lakshmi Agencies (respondent No. 4 in W.P.Nos.51153-51154/2016 and the petitioner in W.P.Nos.51167-51168/2016). He submits that unless M/s.Lakshmi Agencies indicates its no objection to the amendment of IGM, the name of M/s. JHK Consultancy Private Limited cannot be reflec....
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.... for the respondent No.1 admits of the position that the said notice has application only for the customs operations falling within the Nhava Sheva Port. 39. Sri Udaya Holla relies on the Delhi High Court's decision in the case of Agrim Sampada Limited (supra) wherein the matter was remanded to the Registrar of Customs for considering the amendment to the I.G.M. Whenever there is a failure to exercise discretionary power conferred by the Statute, it is permissible for the Court to take note of such inaction and give a direction to consider the case of the applicant for the amendment of the IGM. 40. He submits that the dispute between the petitioner and the first respondent is not of civil nature at all. 41. He submits that the coal selling rate at present is $30 per metric ton. By offering $3 more per metric ton, the fourth respondent Lakshmi Agencies is not doing any favour. On the other hand, it is the responsibility of the petitioner to get the highest possible value for the coal, as directed by the High Court of Singapore. To advance the submission that the doctrine of amity or comity requires that different courts exercising separate jurisdiction pass similar orders, he rel....
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....arties here to, including the decision as to allocate of the costs of such arbitration, and may be entered in any court having jurisdiction." 44. Further, Article 12 of the agreement between the respondent Nos.3 and 4 contains an absolutely identical arbitration clause. 45. In view of the afore-extracted clause in the agreement between the petitioner No.1 and the respondent No.3 and the existence of an absolutely identical clause in the agreement between the respondent Nos.3 and 4, the parties have to approach the Singapore Mediation Centre and Singapore International Arbitration Centre. The Apex Court in the case of Joshi Technologies Inernational Inc (supra) has this to say in paragraph Nos.69, 70, 70.1, 70.5, 70.6 and 71: "69. The position thus summarized in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can re....
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....ties to the arbitration proceedings, taking steps for the initiation of the arbitration proceedings cannot be avoided. Once the arbitrator adjudicates the disputes and decides, inter alia, as to who is entitled to be the holder of the Bill of Lading, which consignee is entitled to take the cargo, etc. the said order is only to be acted upon by the Customs Authorities. In short, the amendment to the IGM in a case of this nature can only be consequential to the passing of the award by the arbitrator. 48. In W.P.Nos.51167-51168/2016, M/s.Lakshmi Agencies (respondent No.4 in W.P:.Nos.51153-51154/2016) is seeking a direction to the respondents to give permission for clearance of the sale. No such direction can be given. It is trite that no one can ask for a mandamus without there being a judicially enforceable right as well as a legally protected right. In saying so, I am fortified by the Apex Court's judgment in the case of MANI SUBRAT JAIN AND OTHERS v. STATE OF HARYANA AND OTHERS reported in (1977) 1 SCC 486. In its decision in the case of ORIENTAL BANK OF COMMERCE vs. SUNDER LAL JAIN AND ANOTHER reported in (2008) 2 SCC 280, the Hon'ble Supreme Court has expressed the considered vi....