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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 26^thApril, 2021

+

FAO (COMM) 51/2021& CM APPL. No. 31579/2020

HAPAG LLOYD INDIA PVT LTD & ANR.

.....Appellants

Through:

Mr. M.S. Kalra, Advocate.

versus

HOTEL NEEDS INDIA & ORS.

.....Respondents

Through:

Mr. Sushil Tekriwal, Advocate for

R-1.

Mr. Deepak Kumar Mishra for R-2

and 3.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

HON'BLE MR. JUSTICE TALWANT SINGH

TALWANT SINGH, J. (ORAL) :

1. The appellant no. 1 is a duly incorporated company and appellant

no. 2 is its director. The appellants have preferred this appeal against the

order dated 19.11.2020, passed by the learned District Judge, Commercial

Court, South East District at Saket, Delhi, in Civil Suit (Comm.) No.

310/2020, titled Hotel Needs India vs. AVM Cargo Pvt. Ltd. & Ors. By

way of the impugned order, the learned District Judge was pleased to direct

the present appellants, who are defendant nos. 5 and 6 before the said

Court, as under:

“In the facts and circumstances of the case, defendant no. 5

and 6 are directed to release the delivery order as well as

original Bill of Lading no. HLCUVAN20070919 of re-import

shipment to enable the release of the subject consignment in

favour of the plaintiff subject to payment of invoice no.

2074601095 and 2074601097 by the plaintiff within 3 days

from the date of the order.”

2021:DHC:1445-DB

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2. The brief history of the case, as per appellants, is that the appellant

no.1 is a Shipping Line, engaged in transporting goods through sea.

Respondent No. 1 herein is the plaintiff in the suit below, who had

appointed respondent nos. 2 and 3 as its Freight Forwarder/Agent for the

purpose of exporting a consignment of stainless-steel utensils to its client

in Canada, who are respondent nos. 6 and 7 in the present appeal. The

agent, appointed by respondent no. 1, had further appointed Freight

Forwarder/Agent, who in turn engaged the services of the appellant no.1.

When the goods were loaded on the ship, the Bill of Lading dated

18.01.2020 was issued by the present appellant no.1 in the name of

respondent no. 1.

3. The cargo reached its destination in Canada on 07.03.2020 but the

necessary certificates, i.e., Fumigation Certificate as well as Phytosanitary

Certificate were lacking, which were required as per applicable Canadian

law and as per the appellants, the said certificates ought to have been

furnished by respondent no.1 or respondent no.6, the seller and buyer of

the consignment respectively. Due to this reason, the consignment

remained uncleared at the Canadian Port and certain charges for

demurrage, detention, customs and other incidental charges had been

incurred, which were duly billed by appellant no.1 vide invoices dated

23.07.2020 and 24.07.2020. These invoices were raised against respondent

no.1 as well as respondent no.6, who are “Shipper” and “Consignee” of the

consignment in issue. The said invoices were payable by “Merchant” and

the definition of „Merchant‟ includes „Shipper‟ and „Consignee‟ both.

4. Since necessary certificates could not be produced by the Shipper

and/or Consignee, the cargo was required to be re-shipped to its place of

origin, i.e., India, and accordingly, it was loaded on board by the present

2021:DHC:1445-DB

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appellant no.1 by issuing Bill of Lading dated 30.07.2020 and it reached in

October, 2020 at JNPT Port, Uran, Raigad, India. The appellant company

refused to issue delivery order of the cargo as well as refused to hand over

the Bill of Lading to respondent no.1 till all its dues in respect of detention,

demurrage and other charges at the port of destination as well as Indian

port are cleared.

5. Respondent no.1 herein filed Civil Suit (Comm.) No. 310/2020

along with an interlocutory application [in short “I.A.”], before the District

Court, praying for following reliefs:

“(