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1991 Supreme(Del) 130
High Court Of Delhi
TRANSWORLD SHIPPING SERVICE PRIVATE LIMITED - Appellant
Versus
CENTRAL WAREHOUSING CORPORATION - Respondent
Civil Miscellaneous Petition 2642 of 1990
Decided On : 02/25/1991
Mandatory injunctions can be granted at the interlocutory stage to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
Headnote:
CONTAINER - RELEASE - INTERIM RELIEF - MANDATORY INJUNCTION - CUSTOMS ACT, 1962 - SECTION 48 - Held, the container should be destuffed released and delivered to the petitioner without payment of any amounts to the respondents subject to the final decision in the writ petition.
Fact of the Case:
The petitioner, a shipping, brokers and clearing agents company, imported 103 and 33 woollen bales from Melbourne, Australia through the petitioner. The cargo came to New Delhi via Bombay in a container stated to belong to one Malaysia International Shipping Corporation, Kuala Lumpur. The container came by ship to Bombay. From there it was brought by respondent No. 2 to the Inland Container Depot. (hereinafter referred to as ICD) at Pragati Maidan, New Delhi on 9. 12. 87 under Import General Manifest No 2653. The container was not emptied at ICD because it was not a full container load (hereinafter referred to as FCL) but less than a container load (hereinafter referred to as LCL) meaning thereby that the container had cargo for more than one consignee viz. the two parties of Panipat. It is stated that there is no bonded warehouse of Customs Authorities at the ICD in Pragati Maidan, New Delhi. It is also stated that consequently only FCL is destuffed at the ICD and not LCL. The petitioners were informed by respondent No. I that the cargo cannot be delivered from ICD at Pragati Maidan but would be delivered from Container Frieght Station (hereinafter referred to as CFS) at Patparganj, Delhi. Respondents 2 and 2a were incharge of the ICD and CFS is under respondent No. 1.
Finding of the Court:
The railways could not load the container on the trailer on 19. 12. 87 for reasons attributable to them and thereafter the complications started. The railways claimed demurrage/ground rent for the period beyond 19. 12. 87; the petitioners contended that it was not liable to pay any such charges. The railways did not release the container. Then suddenly on 6. 3. 88 they shifted the container to CFS even without payment of their dues ; which should have been realised ; if any such payment was due ; before realising the container. No intimation was sent about this shifting to the petitioner. If the railways had not shifted the container to CFS of respondent No. 1 then the petitioner would have had to deal with only the railways and the claim of respondent No. 1 for ground rent would not have arisen. After 6. 3. 88 respondent No. 1 declined to destuff and release the container because of the dues of the railways and meanwhile the respondent No. 1 also claimed ground rent. The owners of the container are supposed to be charging US $ 10 per day as was stated on behalf of the petitioners and in any event valuable space of respondent No. 1 is unnecessarily being occupied by the container.
Issues: Whether the container should be released to the petitioner without payment of any amounts to the respondents subject to the final decision in the writ petition.
Ratio Decidendi: The law relating to grant of mandatory injunctions at the interlocutory stage has been discussed and laid down by Supreme Court in the recent judgment in the case of Dorab Cawasji Warden (supra ). The petitioners have established a strong case in the petition. The balance of convenience is also in favour of the petitioners. If the railways had not taken the container to ICD and had sent it to CFS then the claim of the railways for demurrage would not have arisen at all. If the railways had lifted and shifted the container of the petitioners on the trailer of respondent No. 1 made available to the railways on 19. 12. 87. then the container would have been taken by respondent No. 1 to CFS from where within 48 hours the petitioner could and would have got his container after the same had been destuffed even if customs duty had not been paid on the cargo.
Final Decision: The container should be destuffed released and delivered to the petitioner without payment of any amounts to the respondents subject to the final decision in the writ petition.
( 1 ) THIS order will dispose of the above Civil Miscellaneous Petition for interim relief seeking a direction to respondent No. 1 to destuff the container No. CTIU-4419530 and release and deliver the same to the petitioners.
( 2 ) THE petitioners have filed the above writ petition in which rule nisi has been issued. Apart from seeking the relief of release of the container, it has also been prayed in the writ petition that respondents 1 and 2 be directed not to make a claim of ground rent or such other charges against the petitioners, because according to the petitioner, it was not liable to pay the same.
( 3 ) SOME relevant facts necessary for disposing of this application may be noticed here. The petitioner is a. registered company which inter-alia carries on the business of shipping, brokers and clearing agents. It is stated that 103 and 33 woollen bales were imported by two parties of Panipat namely M/s. Aggarwal Woollen Spinning and Weaving Mills and M/s. Jindal Woollen Industries respectively. The said bales have been imported from Melbourne, Australia through the petitioner. This cargo came to New Delhi via Bombay in a container stated to belong to one Malaysia International Shipping Corporation, Kuala Lumpur. The container came by ship to Bombay. From there it was brought by respondent No. 2 to the Inland Container Depot. (hereinafter referred to as ICD) at Pragati Maidan, New Delhi on 9. 12. 87 under Import General Manifest No 2653. There is a slight variance about this fact because according to respondents 2 and 2a the container reached ICD on 4. 12. 87. However, this will not have any material bearing in disposing of this application.
( 4 ) THE container was not emptied at ICD because it was not a full container load (hereinafter referred to as FCL) but less than a container load (hereinafter referred to as LCL) meaning thereby that the container had cargo for more than one consignee viz. the two parties of Panipat. It is stated that there is no bonded warehouse of Customs Authorities at the ICD in Pragati Maidan, New Delhi. It is also stated that consequently only FCL is destuffed at the ICD and not LCL. The petitioners were informed by respondent No. I that the cargo cannot be delivered from ICD at Pragati Maidan but would be delivered from Container Frieght Station (hereinafter referred to as CFS) at Patparganj, Delhi. Respondents 2 and 2a were incharge of the ICD and CFS is under respondent No. 1.
( 5 ) ON being so informed, the petitioner requested respondent No. 1 on 15. 12. 87 to shift the container from ICD to CFS. The ground rent claimed by respondent No. 2 was also paid by the petitioners on 15. 12. 87 for the period upto19. 12. 87 although according to the petitioner it was not liable to pay it. It is the petitioner s case that the container had been brought to ICD erroneously without any fault on the part of the petitioners. A railway receipt No. 278818 was issued for the said ground rent paid on 15. 12. 87. A copy of this receipt is on the record. On 19. 12. 87, the petitioners also paid the shifting charges to respondent No. 1 for shifting the container from ICD to CFS. It is an admitted position that as on 19. 12. 87 no payment was due from the petitioner to any of the respondents. However, the container of the petitioner was still not shifted from ICD to CFS.
( 6 ) annexure P. 2 to the writ petition is a letter dated 22 12. 87 written to the petitioner from the CFS of respondent No. I informing the petitioner that the railways had not loaded the container of the petitioner on the vehicle of respondent No. 1 inspite of repeated requests because the container was stated to be stuck up in the yard of the railways known as Y-yard in ICD. In the additional affidavit dated 21. 8. 90 of Shri R. C. Bhardwaj filed on behalf of respondent No. 1, it has been stated that trailer No. DIG 3168 was made available to the railways and that vide letter dated 19. 12 87, respondent No. 1 requested the
