SANJAY KISHAN KAUL, J.

( 1 ) THE plaintiff filed a suit for recovery of a sum of Rs. 60,25,112/- under the provisions of Order 37 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code ) along with pendente lite and future interest. This claim is based on the conditions of Bill of Lading No. 1831279 dated 30. 9. 1998 and an agreement dated 21. 2. 2000.

( 2 ) PLAINTIFF No. 1 is a ship-liner engaged in transportation of goods/cargo in enclosed containers by sea. Plaintiff No. 2 is the agent of plaintiff No. 1 in India.

( 3 ) M/s Marmoles Ronimar, Spain approached the plaintiff No. 1 at their office in Spain with a request to carry consignment of rough marble slabs and blocks by twelve 20 containers for the defendant herein which was the notified party for the consignment. The plaintiff No. 1 carried the consignment to Mumbai, the port of discharge and the defendant was informed about the arrival of the cargo. The consignment had to be carried to Delhi at the request of defendant. There are stated to be certain disputes which arose between the defendant and the Customs authorities with the result that the cargo could not be cleared and the defendant even filed writ proceedings before this court being CWP 7313/1999 for release of the cargo but the same was dismissed by the Division Bench on 11. 2. 2000. The defendant also filed another Writ Petition No. 7314/1999 seeking a writ of mandamus against Union of India to undertake the exercise of fixation of reasonable demurrage charges in conformity with government recommendations and RBI circulars. Plaintiff No. 2 is stated to have been added as a respondent in both these proceedings but was subsequently deleted at the request of the defendant.

( 4 ) THE consignment arrived at Delhi on 14. 1. 1999 and it is stated that the defendant was entitled to five free days for clearing and lifting cargo whereafter the defendant was liable to pay the charges for the container per day as per tariff charts of the plaintiff. The containers were, however, not destuffed and the defendant did not take delivery of the cargo despite request of the plaintiff. In July, 1999, the defendant is stated to have approached the plaintiffs for waiver of detention charges and the plaintiff as a gesture of goodwill is stated to have agreed to waive detention charges and on receipt of the agreed amount, issued delivery order dated 7. 7. 1999. The defendant still failed to destuff the containers with the result that the plaintiff was not able to utilise and circulate the containers for its business purposes.

( 5 ) THE defendant is stated to have made a request in June, 2000 for further waiver of detention charges from 7. 7. 1999. The plaintiff in turn is stated to have agreed to charge a lumpsum of Rs. 4,21,097/- as the detention charges from 7. 7. 1999 to 25. 1. 2000 and thus, agreed to waive substantial amount of detention charges subject to the defendant destuffing and releasing of containers by 28. 2. 2000. This is stated to be incorporated in the agreement dated 21. 1. 2000. Clause 2 of the agreement provided that in case of failure of the defendant to destuff and release the containers on or before 28. 2. 2000, the agreement would become non-est and the plaintiffs would be entitled to claim such container detention charges as were prescribed under the Karmahom Conference in respect of the entire amount of detention of the consignment.

( 6 ) THE defendant took delivery of the containers after executing the indemnity bond and the same were taken to the factory of the defendant on 25. 1. 2000 and were required to be returned within 7 days as per clause 6 of the indemnity bond. However, only 8 containers were returned and released to the plaintiff and four containers are stated to have been illegally and unlawfully detained by the defendant. Despite repeated requests, the balance four containers have not been released. (The containers were released subsequently in 2001 during the pendency

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