Form No. J(1)

OD-1 IN THE HIGH COURT AT CALCUTTA Commercial Appellate Division ORIGINAL SIDE AD-COM 4 of 2024 With AS 3 of 1996 TATA STEEL LIMITED -Versus-

THE OWNERS AND PARTIES INTERESTED IN THE OCEAN VESSEL ESPERANZA - III.

OCO 2 of 2025 IA NO:GA-COM 1 of 2024 TATA STEEL LIMITED -Versus-

THE OWNERS AND PARTIES INTERESTED IN OCEAN VESSEL ESPERANZA III (SANDHEAD)

Present:

The Hon’ble Justice RAJASEKHAR MANTHA The Hon’ble Justice AJAY KUMAR GUPTA For the Appellant: Mr. Ratnanko Banerjee, Sr. Adv.

Mr. D.K. Sarkar, Adv.

Mr. J. Ghorai, Adv. Mr. D. Ghorai, Adv.

Mr. S. Sen, Adv.

For the Respondent: Mr. V.K. Ramabhadram, Sr. Adv.

Mr. K. Thakkar, Sr. Adv.

Mr. S. Prasad, Adv.

Mr. N. Banerjee, Adv.

Heard on: 07th April, 2025 Judgment On: 29th April, 2025 Rajasekhar Mantha, J.

1. The appeal and cross-objection have been filed against judgment and decree dated 07th May, 2024 passed by a Single Bench of this Court in AS 3 of 1996 [The Tinplate Company of India Limited -Vs- The Owners and Parties Interested In Ocean Vessel Esperanza-III (Sandhead)].

2. By the impugned judgment, the Single Bench of this Court allowed the counter-claim of the defendant/cross-objector in the suit and dismissed AS 3 of 1996. The Single Judge allowed the defendant to encash the bank guarantee furnished by the plaintiff/appellant in terms of the orders dated 28th February, 1996 and 29th February, 1996 passed at the inception of the suit. The Registrar, Original Side was directed to encash the bank guarantee and transfer the proceedings thereof to the defendant, ‘Cargo Levant’. Interim interest and interest on judgment @ 6%on the sum of Rs.68 lakhs from 25th April, 1996 was also ordered by the Single Judge.

A. Facts of the Case

3. The brief facts relevant to the case are that one “Cargo Levant”, entered into a time charter party of the sea-faring vessel “Esperanza-III”, with its owners on

19th December, 1995. [Exhibit 6]

4. A Bill of Lading dated 28th December, 1995 [Exhibit 1] was issued by the carrier in favour of the appellant M/s. Tinplate Company of India Ltd. as a consignee to carry and deliver 263 Tin Mill Blackplates in coils, from the port of lading at Antwerp in Belgium to Calcutta, on agreed terms and conditions. Five other similar bills of lading were also issued by the carrier on the same terms and conditions to different other consignees (some of whom are sister concerns of the plaintiff) in Calcutta.

5. The Ship M.V. Esperanza III arrived at the sand-heads on the 5th February, 1996 outside Kolkata Port but could not berth at the port due to a “river pilot strike”.

6. By a facsimile communication dated 8th February 1996, [Exhibit 5] the agents of the carrier one M/s. Oceanic Shipping Agency Pvt. Ltd, to the appellant, recorded that the ship was unable to berth at Calcutta due to the aforesaid pilot strike and was stuck at the Sand-heads from 5th February, 1996. The appellant was asked to indicate whether the Cargo could be discharged at a port nearby. It was also stated that if a nearby port is not indicated by the plaintiff the consignment would be delivered at the destination, condition precedent upon payment of all detention charges by the appellant, in terms of Clauses 11 and 12 of the bill of lading in addition to freight already paid. The appellants did not reply to the same.

7. The vessel arrived at the Sandhead outside Kolkata port on 16thFebruary 1996. 8. By a further facsimile message communication from the M/s. Oceanic Shipping Agency Pvt. Ltd. dated 19thFebruary 1996 [Exhibit 4] the appellant was intimated that the vessel was expected to berth at Calcutta on 13thFebruary 1996 and that the latter must instruct their shipping agents to contact the carrier for delivery orders.

9. The defendant/cross-objector once again informed the appellant that delivery orders for Cargo would be issued to the appellants only against payment of detention charges in terms of Clauses 11 and 12 of the Bill of Lading. The detention charges were raised in an invoice dated 27th Febru