Defendants cannot withhold bills of lading based on unpaid dues when payment was made towards sea freight charges. General lien under Section 171 of the Indian Contract Act, 1872 does not apply to defendants in this case.

JUDGMENT :

SANDEEP K. SHINDE, J.

1. Heard. With consent of the learned counsel appearing for the parties, matter is taken up for final hearing forthwith.

2. Appellants/plaintiffs instituted Commercial Suit No. 12 of 2020 for damages and pending suit, sought mandatory injunction seeking release of bills of lading illegally withheld by the defendants-freight forwarding agents, so as to preserve the cargo, before it looses utility. The learned District Judge-2, Pune declined the mandatory relief vide order dated 10th August, 2020 and thus, this appeal is preferred under Section 13(1-A) of the Commercial Courts Act, 2015 read with Order 43 Rule 1 (2) of the Code of Civil Procedure, 1908.

3. Plaintiff’s case is:

Plaintiff is a private limited company, engaged in the business of manufacturing core board and high strength paper conversion products. Defendant is one of the group companies of SJA group, a freight forwarding agents. That since incorporation, plaintiffs have been exporting products to almost 36 countries and it exports consignments were handled by defendants. It is plaintiffs case that freight forwarding agent is also responsible for arranging over-seas customs clearance and inland haulage of the containers as per the order.

FIRST CONSIGNMENT:

4. Plaintiffs, claim that on 27th April, 2020, core board paper weighing 2,22,334 metric ton was shipped in nine containers from factory of the plaintiffs. Port of loading was Nha-sheva and port of discharge was Bunder Abbas in Iran. These nine containers reached at port of destination, on 3rd May, 2020. Whereupon defendants raised two invoices nos. 17 and 18, towards ocean freight charges for Rs. 11,66,874/- and Rs. 5,900/-. However, defendants declined to release the bills of lading, on account of outstanding dues. Plaintiffs, therefore, on 22nd May, 2020, paid Rs. 8,65,000/- to the defendants. After receiving Rs. 8,65,000/- defendants released bill of lading and issued seaway bill dated 29th April, 2020, which enabled consignee, to release the goods from the port at Iran. Plaintiffs would contend that since goods were not released within free period of 14 days, consignee was required to pay demurrage charges, US dollars 2340 i.e. Rs. 1,80,297/-. Plaintiffs would claim that its customers demanded the demurrage charges and accordingly, plaintiffs raised credit note in favour of them for Rs. 1,80,297/-.

SECOND CONSIGNMENT:

5. It is the plaintiffs case that next consignment of 72,666 MT of core board paper in three containers left Nhava-sheva port on 29th April, 2020 and reached the port of destination, i.e. Abbas bunder at Iran on 8th May, 2020. Towards ocean freight charges of three containers, defendants raised two invoices on 17th June, 2020, i.e. nearly after a month and half for Rs. 4,35,000/-.

6. Subject dispute relates to second consignment, i.e. three containers which though reached port of delivery on 8th May, 2020, bills of lading were not released and withheld illegally by the defendants, even after paying freight charges.

7. It is plaintiffs case that as per the prevailing practice, defendants were required to procure bills of lading from carrier and give it to shipper (plaintiffs) to enable shipper to forward it to its customers over-seas to enable them to release the goods. However, the defendants refused to release the bills of lading under the pretext of past dues. Plaintiffs, therefore, paid Rs. 4,35,000/- to the defendants on 30th May, 2020, but in spite of payment, defendants declined to release the bills of lading. Defendants infact after receiving Rs. 4,35,000/- subjected release of consignment on two conditions:

(i) additional shipment business;

(ii) payment of Rs. 20,00,000/- towards past dues

8. Plaintiffs would assert that, in ordinary course of business, original bill of lading reaches consignee in time to avoid liability towards the demurrage or detention charges. However, though the second consignment had reached the port of destination on 8th May, 2020 and though Rs.