Safmarine Container Lines N.V v. M/S Amita Enterprises & Anr

1. On the last date of hearing, counsel for the plaintiff was directed to file a copy of the Compromise Agreement referred to as Ex.C-1 in the order dated 16.10.2014, passed in the Consumer Complaint Case No.11/2009, entitled ‘Amita Enterprises vs. Safmarine’. The said document has not been filed. Counsel for the plaintiff states that he could not obtain a copy of the compromise application till recently and now the same is available with him. A copy thereof has been handed over to the Court, with a copy to the other side. The same is taken on record.

2. It may be noted that the plaintiff has filed an interpleader suit under Order XXXV read with Sections 88 & 151 CPC praying inter alia that the defendants be directed to interplead together concerning their 2015:DHC:8727 respective claims in respect of a consignment of goods that was booked through the plaintiff by an entity in Kenya for delivery, originally to the defendant No.2 and subsequently, by change of instructions through documents, to the defendant No.1. The plaintiff has further prayed for directions to be issued to the defendants to pay the amounts towards the ground rent, demurrage, etc., to Startrack Terminal Private Limited, Dadri, where the said containers have been detained on account of the proceedings initiated by the defendant No.2 against the plaintiff in the High Court of Kenya.

3. It is submitted by learned counsel for the plaintiff that apart from the legal proceedings initiated by the defendant No.2 against the plaintiff, the defendant No.1 had filed a complaint against the plaintiff before the District Consumer Protection Forum at Gautam Budh Nagar, NOIDA, UP. The said complaint was finally settled between the plaintiff and the defendant No.1 through a compromise application dated 15.10.2014, a copy whereof has been furnished today. The said compromise application was allowed by the concerned court on 16.10.2014 and as a result, the complaint case was withdrawn by the defendant No.1.

4. The Court is informed that the defendant No.2 has succeeded in the first court at Kenya and aggrieved by the said order, the plaintiff has filed an appeal in the Court of Appeal at Nairobi, Kenya which is pending adjudication. As a result, the container in question is still lying in the premises of Startrack Terminal Private Limited, at Dadri till the final adjudication of the appeal filed by the plaintiff. In the meantime, the plaintiff seeks permission to withdraw the present suit with liberty to file a fresh proceeding, if necessary, as per law.

5. Though no specific averment has been made in the application, counsel for the plaintiff states that the right to initiate fresh proceeding is limited to any demurrage/damages/interest that may be payable in view of the retention of the containers with Startrack Terminal Private Limited, at Dadri and it is only in that context that the plaintiff reserves its right to initiate fresh proceedings, as per law.

6. Counsel for the defendant No.1 does not have any objection to the present application being allowed and he states that the dispute between the plaintiff and his client is over in view of the settlement recorded in the Compromise Deed.

7. However, counsel for the defendant No.2 opposes the application and submits that the plaintiff has not specified the ingredients of Order XXIII Rule 1(3) of the CPC in this application and in the absence of making out any ground, it should not be permitted to initiate fresh proceeding, as prayed for.

8. There is sufficient explanation offered by the counsel for the plaintiff to initiate a fresh proceeding in respect of the damages, etc., that may be claimed by M/s Stratrack Terminal Pvt. Ltd. and/or its nominees for retaining the containers in its premises. This is apparent from a perusal of the prayers made in the present suit, particularly prayer (b) of the plaint, that seeks directions to the defendants for payment of the ground rent, container retention charges etc. to Startrack Terminal (P) Ltd. Therefore, it cannot be stated that a fresh proceedings cannot be initiated by the plaintiff for the subject matter of the suit or part of the claim raised by the plaintiff in the present case. Having regard to the submission made by counsel for the plaintiff as noted herein above, and in view of the nature of relief prayed for in the suit, this Court is of the opinion that the ingredients of Order XXIII Rule 1(3) of the CPC stand satisfied.

9. For the reasons noted herein above, the present application is allowed and the suit is dismissed as withdrawn, along with the pending application, with liberty granted to the plaintiff, as prayed for.

10. File be consigned to the record room. HIMA KOHLI, J OCTOBER 15, 2015 sk/ap