Judgment

ALTAMAS KABIR, J.

1. This order is being passed at the stage of notice on the Special Leave Petition filed by Suchetan Exports P. Ltd., which was the Defendant No.1 in Special Civil Suit No.187 of 2011 filed by Gupta Coal India Limited, the Respondent No.1 herein.

2. Some of the facts disclosed in the Plaint and the Written Statement are not disputed. It is not disputed that on 12.4.2010, the Plaintiff and the Defendant No.1 entered into an Agreement for sale and purchase of South African Coal measuring 16,943 metric tonnes. The Plaintiff agreed to sell the said quantity of coal to the Defendant No.1 at US $111.75 per metric tonne. On 22.4.2010, the Plaintiff, i.e., the Respondent No.1 herein, entered into another High Seas Sale Agreement with the Defendant No.1/Petitioner herein. Clause 2 of the said Agreement provides that the Plaintiff/Respondent No.1 herein had imported 16,943 metric tonnes of Steaming Non Coking Coal in bulk of South African origin and had shipped the same on MV Novios Meridian arriving at Dharamtar Port, under Bill of Lading Numbers 2, 3 and 4, all dated 8.4.2010. Clause 3 of the Agreement provides that the Plaintiff had agreed to sell and the Defendant No.1 had agreed to purchase the consignment of the coal on High Seas Sale basis, subject to the terms and conditions specified thereunder. Clause 3(b) of the Agreement provides that the quality determined and certified by an independent inspecting agency at Disport would be final and binding on both the parties.

3. On 22.4.2010, the aforesaid vessel containing coal imported through the Respondent No.3, Venkatesh Karriers Limited, reached the Dharamtar Port at Mumbai and according to the case made out in the plaint, the coal was delivered to the Respondent No.2, M/s United Shippers Limited, as the stevedore agent. On the same day, the Respondent No.1/Plaintiff raised and delivered a High Seas Sales Invoice for an amount of 8,25,46,296/- upon the Petitioner herein for sale of the said coal. Consequent thereupon, the Respondent No.2 handed over the total quantity of 9,542.920 metric tonnes to the Petitioner till the date of filing of the suit. The balance quantity of coal amounting to 7400.082 metric tonnes was lying with the Respondent no.2 out of the total quantity of 16,943 metric tonnes received by it from the Petitioner.

4. Since the Petitioner failed to pay the balance sum of 5,82,58,560/-, the Respondent No.1 filed Special Civil Suit No.187 of 2011, inter alia, for a declaration that the Petitioner had committed breach of contract and that the Agreements dated 12.4.2010 and 22.4.2010 stood cancelled and terminated. The Respondent No.1 also claimed return of the balance quantity of coal, amounting to 7400.082 metric tonnes, lying with the Respondent No.2 and for a decree for an amount of 1,22,04,349/- against the Petitioner towards the balance payment of the 9,542.920 metric tonnes of coal delivered to it by the Respondent No.2. Certain other claims were also made regarding interest and payment of demurrage charges incurred after the date of filing of the suit, as also the L/C discounting charges of 7,19,483/-. The Respondent No.1 also claimed permanent injunction to restrain the Respondent Nos.2 and 3 from handing over the balance amount of coal measuring 7400.082 metric tonnes lying with the Respondent No.2 at Dharamtar Port, Mumbai, either to the Petitioner or to any other person. By an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the Plaintiff/Respondent No.1 also prayed for an interim order in the same terms and also sought a direction in the form of a mandatory injunction to the Respondent No.2 to hand over the balance coal to the Respondent No.1.

5. The claim of the Respondent No.1 was opposed by the Petitioner by filing a Written Statement. On 9.2.2011, the trial court passed an ex-parte order of injunction restraining the Respondent Nos.2 and 3 from handing over the custody of the balance coal weighing 7