JUDGMENT :

(N.V. ANJARIA, J.)

1. Whether the Commercial Suit instituted by the respondent herein before the Commercial Court, Gandhinagar is founded on legal cause of action rendering the plaint liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908, is the moot question.

1.1 The following pointed observation of the Supreme Court in T.Arivandandam Vs. T.V.Satyapal and Another [(1977) 4 SCC 467], whether stand true in this case is to be appreciated.

“The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage.” (para 5)

2. It is in such context that the challenge to order dated 11.02.2021 below application Exhibit 62 passed by learned Principal Senior Civil Judge, Gandhidham - Kachchh in Commercial Civil Suit No. 56 of 2019, arises. By the said impugned order, the Commercial Court disallowed the application of the petitioner – defendant under Order VII Rule 11, CPC and refused to reject the plaint.

2.1 Noticing the case of the plaintiff revealing from the plaint, the plaintiff – respondent herein, instituted Commercial Civil Suit against the petitioner- the Britannia Steam Ship Association Limited seeking decree for a sum of US$ 1,70,489/- with interest at 18%. It was also the prayer in the suit to direct the respondent to extend the Bank Guarantee till final disposal of the suit. The plaintiff company averred in the plaint that it had entered into a contract dated 29.09.2015 with one Noble Resource S. A., Switzerland for import of Crude Degummed Soyabean Oil of edible grade in bulk from the Port of San Lorenzo, Argentina which was to be delivered at the Port Kandla, Gujarat. The seller transported the said goods through the vessel named M. T. Box belonging to one Shell Tankers Pvt. Ltd. The sole defendant – the petitioner herein happened to be a Protection and Indemnity (P & I) club based in London, UK and happens to be merely the protection and indemnity insurer of the owners of the above named vessel through which the goods were transported.

3. It was the case of the plaintiff that at the time of loading the oil at the Load Port, a survey was undertaken and surveyor report dated 27.07.2016 indicated that the Free Fatty Acid value (FAA) was 0.80% which was moderate. This value is measure of amount of fatty acids liberated by hydrolysis on account of moisture, temperature etc. It was stated that upon the inspection of consignment on board the vessel at the discharge port at Kandla it was found that the oil was contaminated with water. It was averred that when the surveyor of the plaintiff inspected the ship tanks at Kandla port, shockingly the contamination was found. It was alleged that when the goods were loaded, they were in perfect condition. The plaintiff stated that it intimated the said facts on 12.08.2016 to the seller, the owner of the vessel and the surveyor of the vessel. It was further averred that the surveyors appointed by the insurer of the plaintiff removed the water from the tanks, the samples of the contaminated water from the oil tanks were drawn and were sent for analysis to the laboratory. Details were given in the plaint about the analysis report.

3.1 In Para 9 of the plaint the following averments were made, “Thus, it is clear that the FFA which was 0.80% at the Load Port increased to limits much more than acceptable limits. In other words, the transported oil b