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IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Maersk Line India Pvt. Ltd. – Petitioner
Versus
State of Kerala – Respondent
W.P. (C) Nos. 34460 of 2019, 1366 of 2020
Decided On : 28-04-2021
Arbitration and Conciliation Act - Section 9 - Companies Act, 1956 - Arbitration agreement - Alleged act of trespassing into CFS facility and for parking their containers - Seeking police assistance to remove “Foreign Import Containers” owned by the respective petitioners, bonded with Customs Department and lying in Container Yard owned by 4th respondent.
Finding of the Court:
It would be profitable to bear in mind that contention of 4th respondent in counter affidavit filed initially was that the petitioners had trespassed into CFS facility and that they had illegally stored containers there - Court view of stand taken in previous proceedings by 4th respondent. Instead of warning agencies who had parked their containers in CFS facility on strength of contract entered into with 5th respondent about termination of relationship between respondents 4 and 5 and giving a breathing time to remove containers from facility, 4th respondent proceeded to file an application under Section 9 of Act and obtained an interdictory order. Said application has hence been withdrawn as well. Court not in a position to accept contention of the 4th respondent that they are in a position to retain such goods until they receive due remuneration from petitioners herein for alleged act of trespassing into CFS facility and for parking their containers there. 4th respondent has not made out any ground enabling them to interfere with right of petitioners to remove containers parked in CFS facility.
Result: Writ Petitions disposed of.
JUDGMENT :
1. These Writ Petitions are filed seeking police assistance to remove “Foreign Import Containers” owned by the respective petitioners, bonded with the Customs Department and lying in the Container Yard owned by the 4th respondent at Binanipuram, Ernakulam.
2. W.P. (C) No. 34460 of 2019 is filed by Maersk Line India Limited, a company incorporated under the Companies Act and acting as the steamer agent in India of Maersk Line A/S. They state that they are the owners of about 246 containers, the details of which are mentioned in the list produced as Exhibit P1 in the writ petition and lying in the Container Freight Station (CFS).
3. W.P. (C) No. 1366 of 2020 is filed by Star Shipping Services (India) Pvt. Limited, a company incorporated under the Companies Act and acting as the steamer agent in India of M/s Gold Line Shipping Company, a company headquartered in Hong Kong. It is asserted in the writ petition that about 4 containers owned by the petitioner are lying in the CFS.
4. As the issues raised in both the matters are interrelated, both these writ petitions are taken up and disposed of by a common judgment. For the sake of clarity and convenience, reference to parties and Exhibits shall be as detailed in W.P. (C) No. 34460/2019.
5. M/s. Periyar Chemicals Pvt. Ltd. the 4th respondent herein, is the owner in title and possession of 8 acres of land in Sy. Nos. 59/4, 59/7, 61/2, 61/1B, 59/1-2, 59/5-2, 64/1-2 of Kadungallur Village. In the year 2010, the Office of the Commissioner of Customs granted them permission to operate a container yard in the said property. Later, by Exhibit R4(b) communication, the 4th respondent was permitted to set up a CFS.
6. The 5th respondent, OPAL Asia India Ltd. is a company incorporated under the Companies Act, 1956 and is engaged in the business of stocking and repairing of shipping containers. On 4.4.2014, the 4th respondent entered into a license agreement with the 5th respondent and took on license basis, the CFS facility covered under Exhibit R4(a). The license period was 11 months and was being renewed continuously until it was finally renewed on 1.12.2017. The term of the license was due to expire only on 30.10.2018. A dispute resolution clause was incorporated in the agreement which provided for recourse to arbitration in case of difference of opinion between the contracting parties. Disputes arose between the respondents 4 and 5 which led the 5th respondent to approach the District Court, Ernakulam with Ext.P7 application under Section 9 of the Arbitration and Conciliation Act, 1996 on 20.12.2018 as CMA (Arb) No. 1243/2018. In Ext.P8 affidavit, which was filed along with the application under Section 9, it is seen stated by the applicant, the 4th respondent herein, that at the time of filing of the application, approximately 3000 containers are lying in the petition schedule property/stockyard. It is also stated that the 4th respondent is on the verge of winding up its activities in the premises and they are attempting to remove the containers from the petition schedule property and thereby cause monetary loss to the licensor. The prayer was to interdict the 4th respondent from removing the containers lying in the property and stored by the 4th respondent. The District Court passed an order as prayed for.
7. While so, MSC agency (India) Private Ltd., the agent of MSC Mediterranean Shipping Company, approached the District Court with an application seeking to implead themselves. They also sought for vacating the interim order passed by the Court contending that about 5 containers belonging to them were lying in the property of the 5th respondent. Their prayer was to permit them to take possession of the said containers and to remove them.
8. The District Court, after evaluating the contentions, took the view that Section 9 of the Arbitration and Conciliation Act contemplated issuance of interim measures by the Court only at the instance of the party to an arbitration agreement with re
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