Al Ahli International Building Products Trading Fze Vs Sb Impex

Al Ahli International Building Products Trading FZE A company incorporated in Sharjah under the laws of UAE^having its registered office at P.O. Box 49503, Sharjah HFZ, UAE. Rep by its Constituted Power of Attorney Holder, Mr. Ganesh Shinde.

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...Original Applicant

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AND

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SB Impex

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An entity incorporated under the Indian laws, having its registered office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya^{Pradesh-485001}

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1. The Board of Trustees of Visakhapatnam Port Trust, A statutory body established under the Major Port Trusts^Act,1963Port Area, Visakhapatnam-530035.

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Commissioner of Customs, Custom House, Port Area, Visakhapatnam Andhra Pradesh^-530035.

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Ultratech Cement Limited B-wing, 2nd floor, Ahura Centre, Mahakali caves road,^{Andheri(East),}

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Mumbai.400093. Rep by its Constituted power of Attorney Holder Ms. Swati Atrawalkar

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Court order dated 06-08-2018 vide lA No.3 of

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(R4 is impleaded as per 2018 in ICOMAOA No. 2 of 2018)

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Rab Metals and Co. A/102, Esmeralda Appartments, St.John Baptist Road,^{Mt.MarySteps,} Bandra West, Mumbai - 400 050.

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Promotech Plastics Limited Having Registered Office at 106, Harikrupa Chambers Behind National Chambers, Ashram Road, Ahmedabad - 380 009, Gujarat

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Alliance Import and Export Having Registered Office at Shop No.01, Fiaz-E-Akhtar, 27, Memonwada Road, Mumbai - 400 003

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Court order dt.08/08/2018 Vide lA (RR 5 to 7 are impleaded as per No.1 of 2018 in ICOMAOA 2 of 2018.)

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8 Orham Shipping Pvt Ltd, its

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A Company Incorporated under the law of India and having registered office at 101, The Summit, Near Hanuman^{Mandir,Hanuman} Road, Office Westeren Express Highway, Vile Parle (East,^Mumbai - 400 057 Through its authourized Signatory Mr.Mittapally Sivaprasad Court order dt.l3/08/2018. Vide lA No.7 of

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(R 8 is impleaded as per

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2018 in ICOMAOA 2 of 2018).

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...Respondents

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under Section 9 of the Arbitration and Conciliation^Act1996, Application praying that the High Court may be pleased to

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to furnish solvent security, a sum of

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a. order the Respondent Rs.4,54,11,790 equivalent to USD 659,785.05 (being^theamount

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I

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awarded in Final Arbitration Award) failing which order^attachment of the Cargo of 55,199.376 Mts. of Mineral Natural^Gypsum shipped on vessel MV Busan Star lying at Vishakhapatnam^Port; order of the interim injunction restraining the Respondebnt b. pass an No.1 either directly or indirectly through its nonimees, agents, associates, affiliates, representatives or employees^from in any manner selling, encumbering, alienating, transferring, issuing delivery order, parting with possession or otherwise^dealingwith the cargo of 55,199.376 Mts. Mineral Natural Gypsum shipped on/on board the vessel MV Busan Star lying at Visakhapatnam Port and or removing it from jurisdiction of this Hon’ble^Courtand render justice,

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c. For ad interim reliefs in terms of prayer

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lA NO: 1 OF 2018

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition,^{theHighCourtmaybepleasedto} of interim injunction restraining the Respondent No. 1 either pass an order associates, affiliates, directly or indirectly through its nominees, agents, manner, selling, encumbering. representatives or employees, from, in any alienating transferring, issuing delivery order, parting with^possession or of 55,199.376 Mts. of Mineral Natural otherwise dealing with the cargo vessel MV Busan Star lying at Vishakhapatnam Port and Gypsum shipped on render justice.

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lA NO: 10 OF 2018

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition,^{theHighCourtmaybepleasedto} No 1 to furnish security of US $ 320,000 for losses direct the respondent suffered by the petitioner till date, and pass

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lA NO: 13 OF 2018

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to pass an order directing Respondent No. 1 to furnish security of US$ 682,187 (Rs.5,02,60,127.23)for additional costs/ losses suffered by the Petitioner for the period 26 July 2018 to 30 August 2018; and pass

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lA NO: 1 OF 2021

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Between:

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M/s Alliance Import and Export Having Registered Office at Shop No.01 ,Fiaz-E-Akhtar, 27, Memonwada Road, Mumbai - 400 003

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...Applicant/Respondent No.7

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and

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Al Ahli International Building Products Trading FZE, A company incorporated in Sharjah under the laws of UAE having its registered office at P.O. Box 49503, Sharjah HFZ, UAE. Rep by^{itsConstituted} Power of Attorney Holder, Mr. Ganesh Shinde.

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SB Impex An entity incorporated under the Indian laws, having its registered

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office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya Pradesh - 485001

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The Board of Trustees of Visakhapatnam Port Trust, A statutory body established under the Major Port Trusts^Act,1963Port Area, Visakhapatnam-530035.

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Commissioner of Customs,

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Custom House, Port Area, Visakhapatnam Andhra Pradesh^-530035.

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Ultratech Cement Limited B-wing, 2nd floor, Ahura Centre, Mahakali caves road, Andheri (East), Mumbai.400093.

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Rab Metals and Co. A/102, Esmeralda Appartments, St.John Baptist Road, Mt.Mary Steps

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.7:"-
m
^1

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Bandra West, Mumbai - 400 050.

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Promotech Plastics Limited

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Having Registered Office at 106, Harikrupa Chambers,Behind^National Chambers, Ashram Road, Ahmedabad - 30 009, Gujarat

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...Respondents

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Petition under Section 151 CPC r/w Section 9(1)(ii)(e)^{oftheArbitration} and Conciliation Act, 1996 praying that in the circumstances^stated in the affidavit filed in support of the petition, the High Court may be pleased to pass an order directing

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a. that the Registrar (Judicial) of this Hon’ble Court^{bedirectedtopay} over to the Applicant herein the amount of Rs.4,54,11,790/together with interest accrued thereon deposited in^thisHon'ble Court by Respondent No. 5 herein pursuant to Order dated 13.08.2018

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b. that pending the hearing and final disposal of the present placationon, the Respondent No.1 herein or any other^partiesbe restrained from withdrawing the said amount of Rs.4,54,11,790/-.

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Counsel for the Applicant: Sri I V Siddhivardhana

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Counsel for the Respondent No.2 : Sri P Roy Reddy Counsel for the Respondent No.3 : Sri Raviteja Padiri Counsel for the Respondent No.6 : Sri VV Prabhakara^Rao Counsel for the Respondent No.7 : Sri R Sushanth Reddy The Court made the following Common Order:

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APHC010548132018

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3311]

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(Special Original Jurisdiction)

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Wednesday, the Seventh Day of May, Two Thousand and Twenty Five

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Present

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The Honourable Ms. Justice B S Bhanumathi

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l.A.No.1 of 2021

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ln/&

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International Commercial Arbitration Original Application^No.2of2018

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Between:

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Al Ahli International Building Products Trading FZE ...Petitioner

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and

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S. B. Impex and others

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...Respondents

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Counsel for the petitioner:

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I.I.V.Siddhivardhana

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Counsel for the respondents:

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I.RavitejaPadiri

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2.Sai Sanjay Suraneni

3.P. Roy Reddy

4.V.V.Prabhakara Rao

S.R.Sushanth Reddy

The Court made the following:

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pv 1- 4

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COMMON ORDER:

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I.C.O.M.A.O.A.No.2 of 2018 - This petition was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act’) mainly to

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a. order the respondent to furnish solvent security, a^sum of Rs.4,54,11,790/- equivalent to U.S.D. 659,785.05^(being the amount awarded in Final Arbitration Award) failing^which order attachment of the Cargo of 55,199.376 M.T. of^mineral natural gypsum shipped on vessel M.V. Busan Star lying^at Visakhapatnam Port;

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b. order of interim injunction restraining the respondent No.1 either directly or indirectly through its nominees, agents, associates, affiliates, representatives or^employees, from, in any manner, selling, encumbering, alienating, transferring, issuing delivery order, parting with^possession or otherwise dealing with the cargo of 55,199.376 M.T. of mineral natural gypsum shipped on/on board the vessel^M.V. Busan Star lying at Visakhapatnam Port and / or removing it from the jurisdiction of this Court and render justice;

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c. order ad- interim reliefs in terms of prayer (b) above;

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d. pass such further or other orders as this Court may deem fit and proper in the facts and circumstances^ofthe case; and order costs.

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I.A.No.l of 2021 - This petition is filed by the respondent^No.7in I.C.O.M.A.O.A.No.2 of 2018 under Section 151 C.P.C., seeking mainly direction to the Registrar (Judicial) to pay over to^{thepetitionerherein} the amount of Rs.4,54,11,790/- together with interest^{accruedthereon}

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3 BSB, J I.C.O.M.A.O.A. No.2 of 2018 deposited in this Court by the respondent No.5 pursuant to order, dated 13.08.2018 and that the respondent No.1 and other parties be restrained from withdrawing the said amount. 3. The petitioner in I.A.No.1 of 2021 is the respondent No.7; the respondent No.1 is the petitioner; and the respondents No.2 to 7 are the respondents No.1 to 6 in I.C.O.M.A.O.A.No.2 of 2018. 4. Since the considerations i n I.C.O.M.A.O.A.No.2 of 2018 and I.A.No.1 of 2021 are the same, a common order is passed and the parties are arrayed as in I.C.O.M.A.O.A.No.2 of 2018. 5. The case of the petitioner in I.C.O.M.A.O.A. No.2 of 2018. briefly stated, is as follows; a. The petitioner, Al Ahli International Building Products Trading FZE, is a company incorporated in Sharjah under the laws of U.A.E. The respondent No.1 is an entity incorporated under the Indian laws The respondents No.2 and 3 are the Visakhapatnam Port and custom authorities at Visakhapatnam port respectively and are vested with the jurisdiction and control over the cargo belonging to the respondent No.1. The respondents No.4, 5 to 7 and 8 were impleaded as per the orders of this Court, dated 06.08.2018, 08.08.2018 and 13.08.2018 passed in I.A.No.3 of 2018, I.A.No.5 of 2018 and I.A.No.7 of 2018 respectively. b. On 12.02.2016, the petitioner and the respondent No.1 entered into a supply agreement for sale and supply of natural gypsum. The cargo was delivered by the petitioner and the respondent No.1 received the entire cargo under the supply agreement. Despite numerous demands from the petitioner, the respondent No.1 failed to pay a sum of U.S.D. 300,000 due to the petitioner under the j supply agreement.

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c. Accordingly, the petitioner initiated arbitration proceedings as provided under the supply agreement. Both parties waived requirement of mediation and agreed that International Chamber of Commerce (I.C.C.) may proceed to appoint the arbitrator in the matter. On 09.02.2017, the I.C.C. International Court of Arbitration appointed Mr. Yu-Jin Tay as the sole Arbitrator for resolution of the dispute under the supply agreement.

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d. The respondent No.1 participated in the arbitration proceedings. The matter was heard at Singapore. On considering the facts of the matter and on hearing the parties, the sole arbitrator passed a final award on 13.07.2018. The award reads as follows:

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(i) The respondent is liable to pay and shall pay to the claimant U.S.D. 300,000;

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(ii) The respondent is liable to pay and shall pay the claimant simple interest on the sum of Rs.300,000 accruing^at 8.5% per annum from February 25, 2016 until the date of payment;

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(iii) The respondent is liable to pay and shall pay to the claimant the sum of A.E.D. 829, 976.29 as reimbursement of claimant’s legal costs and disbursements; (iv) The respondent is liable to pay and shall pay to claimant the sum of E.U.R. 62,000 as reimbursement of claimant s paid-up share of I.C.C. advances on costs.”

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e. Thus, under the final award, the respondent No.1 is due to the petitioner a sum of U.S.D. 300,000, interest of U.S.D. 61,500, legal costs of A.E.D. 829,976.29 and arbitration costs of E.U.R. 62,000 equivalent to a sum of Rs.4,54,11,790/-.

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f. Apart from the cargo of 55,199.376 mts. of mineral natural gypsum Which is on board the vessel M.V. Busan Star which has been valued at approximately U S D, 1,000,000, the respondent No 1 owns no other substantial / real asset. 9- The petitioner apprehends that the respondent No.1 may remove the said cargo from the jurisdiction of the Court, alienate, sell or dispose the same in order to prevent the same from being proceeded against in enforcing the award. Therefore, this petition was filed.

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The authorized si signatory of the respondent No.1 filed counter affidavit with the averments briefly as follows;

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a. This Court has no territorial jurisdiction to entertain and adjudicate the present petition as the office of the respondent is situated at Satna, Madhya Pradesh and the High Court of Madhya Pradesh has jurisdiction. Since an award was passed, the same is to be enforced under Section 49 of the Act. A petition under Section 9 cannot be maintained before a High Court other than the High Court which can execute the award. No cause of action affecting the rights of the parties to the arbitration agreement arose within the jurisdiction of this Court, Merely because the ship / vessel carrying cargo halts for unloading the cargo, it does not confer jurisdiction on this Court. Hence the present petition is liable to be returned for its presentation before the High Court of Madhya Pradesh. The aspect of territorial jurisdiction of this Court ISi to be decided as a preliminary issue. This respondent is taking appropriate legal steps to file a petition to set aside the arbitral award dated 13.07.2018.

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b. Gypsum (cargo) on board was purchased by this respondent from M/s. Eastern Minerals & Metals Trading D.M.C.C. on 13.07.2018 and

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Shipped the same to Visakhapatnam, Andhra Pradesh and Haldia, West Bengal in India. This respondent sold away 55,199.376 mts. to M/s. RAB Metal & Co / respondent No.5, Mount Merry Steps, Bandra (West) Mumbai, under two high sea sale agreement, dated 14.07.2018 and received Rs.6,40,00,000/and there is a balance amount of Rs.43,972/-. The said respondent No.5 had sold the entire cargo^to someone else and this respondent is not directly concerned with the subsequent sale of the cargo. Thus, by the time of passing of interim injunction order, on 25.07.2018, this respondent was not the owner of the cargo since the title in the goods had already passed on. The petitioner failed to make out any case for grant of injunction.

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c. The appeal time to challenge the arbitral award, dated 13.07.2018, served on this respondent on 20.07.2018, has not expired so far. Without prejudice to the above submissions,^noexecution can be done before expiry of the time prescribed for appeal.^There is no merit in the petition and the same is liable to be dismissed.

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The respondent No.4 -UltraTech Cement Limited, filed^counter affidavit contending as follows: This petition was filed without seeking enforcement^andexecution of the foreign award in India. This respondent is an innocent purchaser of the cargo and has not colluded with any party in the chain of high sea sales. The import general manifest and the bill of entry at the Visakhapatnam Port were in the name of the respondent^No.4 as on 23.07.2018 since the cargo had already been sold by the respondent No.1. The respondent No.7 addressed a letter, dated 27.07.2018, to the petitioner informing that the title in the cargo had passed from the respondent No.1. Bill of lading is a document of title to goods and

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therefore, payment of consideration is not the test of ownership. The onus of proving that the documents filed fraudulent lies by this respondent are on the petitioner. It i IS denied that the bills of lading have been endorsed after the order, dated 25.07.2018, passed by this Court, The petitioner has not submitted any evidence of its allegations of fraud or that the cargo did not change hands. The deposit made by this respondent was i in compliance with the directions of this Court. The petition was filed without enquiring about the assets of the respondent No.1 in India with a mala fide intention and hope of getting the respondent No. 1 to settle the petitioner’ s alleged claim under the foreign award. The respondent No.4 shall be deleted from the array of parties in the present petition as the dispute of the alleged claim against the respondent No.1 can be decided inter se between them and the respondent No.4 is not a be put to terms by this Court'^^cessary for the orlossespropersufferedparty. byTheallpetitionerthe partiesmuston account of wrongful attachment of the cargo.

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The respondent No,6 -Promact Impex Limited filed as follows; counter stating The petition is not maintainable since as on the date of filinn th petition, the respondent No.1 was not the owner of the cargo ha ' ^ respondent purchased the cargo under high sea agreement, dated 14.07.2018, from the respondent No.5 Which, in turn, purchased from the respondent No.1. This respondent paid the entire consideration of Rs.4,27,43,i45/ - (i e., Rs.62,30,238/- on 25.06.2018 Rs.75,00,000/Rs.70,00,000/ on 27.06.2018, Rs.85,00,000/- plus Rs.80,00,000/ - plus - on 05.07.2018, Rs.55,12 907/ - on 13.07.2018) towards the price of 31199.376 M.T. of the cargo to the respondent No.5.

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Finally, the cargo was purchased on 14.07.2018 by the respondent No.4 from the respondent No.7 to which this respondent sold the cargo. Since this respondent paid the entire amount of consideration to the respondent No.5, but this respondent has not been paid by the respondent No.7, this respondent is entitled to the amount deposited before this Court. The balance confirmation ledger^{accountsealedand} signed by the respondent No.7 indicates that Rs.4,55,71,162/is due and unpaid till date by the respondent No.7. The present application is not maintainable since the petitioner cannot claim lien over the money deposited before this Court as the cargo had already been^discharged in favour of the respondent No.4. Now the issue that^remains to be adjudicated is regarding the entitlement of the parties^{overtheamount} in deposit. As the order, dated 25.07.2018, was passed^exparte,the factual aspects could not be brought to the notice^{oftheCourtbythe} respondents. This respondent prayed to dismiss the^{mainpetitionand} order payment of the amount in deposit to this respondent.

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The applicant in I.C.O.M.A.O.A.No.2 of 2018 filed affidavit in rejoinder to the counter of the respondent No.6 denying all the allegations and reiterating the petition contents, The claim of the respondent No.6 that the amounts deposited by the respondent^No.4 should be paid to them is frivolous and highly belated.^{Theclaimofthe} respondent No.6, if any, has to be independently agitated^andcannotbe decided in the instant application.

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The respondents No.5 & 7 / Rab Metals & Co. and Alliance^Import & Export filed counter affidavit of Rashid Abbas Busheri^{claimingtobea} common partner to the respondents No.5 & 7, stating^{briefly asfollows} seeking to vacate order of attachment, dated 27.07.2018.

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The model of the business for the purchase of gypsum via the respondent No.5 or the respondent No.7 is on a CFR / Free DA basis, which means that apart from the purchase price, all vessel related costs at the load and discharge ports are borne by the purchasers. Alliance banks primarily deal with a DCB, as does the respondent No.5. Due to the sanction regime recently imposed and further sanctions expected, if payment to an Iranian party is remitted through DCB, there is a possibility that payment would be delayed while passing through correspondent / NOSTRO Banks. It the payment is not received in time in Iran, the vessel would be delayed. To avoid such risk, these respondents prefer to make purchase through the respondent No.5 which banks with Inter alia I.D.B.I. and Indusind banks' It the size of the transaction is large, like the present case, these respondents raise some finance through the respondent No.6, in which case, the cargo, after it is purchased by the respondent No.5, is sold to the respondent No.6 at a pre-agreed price and then the respondent No.6 sells the cargo at a pre-agreed price to the the consideration the respondent No.7 for profit, which IS respondent No.6 receives for supporting the transaction. The respondents No.5 to 7 work very closely with each other and are involved i n more than one venture at a given point of time, The respondent No.1 is not associated with these respondents No.5 & 7 in any manner, however, the respondent No.7 dealt with the respondent No.1 in the past. The deponent of the affidavit struck a deal with the respondent No.1 to purchase the cargo in advance sometime in March 2018. Once the terms are agreed, the respondent No.1 raises a proforma invoice to enable release of advance payments. Since the cargo was to be loaded out of Iran, a proforma invoice was raised on the respondent No.5. Against the same, the respondent No.5 made advance payments to the respondent No.1 in tranches. The proforma

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v:

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invoice provided that 50% was to be paid up-front and a further 10% was to be paid upon nomination of a vessel, but the payment schedule had not been adhered to due to the working relationships. Thus, when the bills of lading were issued on 13.07.2018 (after nomination of the vessel), the respondent No.5 transferred INR 5,35,00,000/-, instead of 60/o. Once the cargo was loaded and the bills of lading were issued, the respondent No.1 and the respondent No.5 concluded a formal high sea sale agreement. In turn, the respondent No.5 concluded a high sea sale agreement with the respondent No.6 which, in turn, concluded similar agreement with the respondent No.7 which, in turn, concluded similar agreement with the respondent No.4. The balance INR 1,05,00,000/- (INR 60,00,000/- on 16.07.2018 and INR 45,00,000/on 24.07.2018) was paid by the respondent No.5. Thus, the total amount paid by the respondent No.5 to the respondent No.1 is INR 6,40,00,000/-, as against INR 6,37,65,900/- stated in the proforma invoice. The difference was due to fluctuations in the currency exchange rates. Thus, as on the date of the interim order, i.e., 25.07.2018, the cargo on board was already sold through various high sea sale agreements and the total amount was paid. The allegation^thatthe documents were fabricated is incorrect. (All the details stated in the counter regarding the preparation, exchange and signing of the documents stated in the counter affidavit are not reproduced^herefor brevity.) The respondent No.4 has not paid the respondent^No.7forthe cargo because of the order of attachment, but the title in the goods passed to the respondent No.4 upon delivery of the endorsed original bills of lading on 17.07.2018. Though the agreement between the respondent No.1 and the respondent No.5 stated that a discharge port quality survey report should be submitted for payment,^thisclause was not adhered to, like the other terms of payment in the proforma invoice

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and the payment was released by the respondent No.5 because the load port quality reports were satisfactory. The transaction between the respondent No.1 and the respondent No.5 was in the regular course of business and was not meant to defeat or circumvent the order which was subsequently issued on 25.07.2018. Further, the respondents No. 5 & 7 had no knowledge of the award till after 25.07.2018 and thus there is no question of these respondents colluding with the respondent No.1 to defeat the award. Since the respondent No.4 deposited the amount payable to the respondent No.7, a letter, dated 27.07.2018 was addressed by respondent No.7 to the petitioner informing the sale already made and calling upon the petitioner to get the order of attachment vacated. The respondent No.7 is suffering grave and irreparable loss as it has not received funds from the respondent No.4. The amount of Rs.4,54,11,790/deposited before this Court be paid to the respondent No.7 and the present application is liable to be dismissed.

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The petitioner filed reply affidavit to the counter affidavit of respondents No.5 & 7 stating briefly as follows, besides reiterating the contentions in the petition. The material allegations are denied. The counter affidavit of respondents No.5 & 7 is an afterthought and filed with an aim to support the fraudulent documents submitted with the impleadment application of the respondent No.4. The respondents No.5, 6 & 7 are owned / operated by the deponent of the counter affidavit of the respondent No.7 and are in fact, sham companies and there was no flow of consideration between the parties. It is denied that all three of them have a running continuous account and that all the transactions of the respondents No.5 & 7 are undertaken through banking channels and all inward

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customs procedures were complied with. Since the purported^contract with the respondent No.1 is on C.F.R. basis, and the purchase price of cargo includes freight amount, the respondents No.5 & 7 do not have to make remittance to Iran in time or make any payment in foreign currency at all. It is denied that the respondent No.5 made payment to the respondent No.1. In fact, the respondent No.1, in collusion with the other respondents, is trying to play mischief. The admission that the terms of the alleged proforma invoice had not been adhered to due to the working relationships establishes beyond that both^theentities are one and the same. A single transaction in the alleged ledger from 01.04.2017 to July, 2018, cannot be treated as working relationship. The alleged payments by the respondent No.5 have not been established by any document. It is denied that the bills of lading were endorsed before passing of the order, dated 25.07.2018 or that the respondent No.1 has been fully paid for the cargo. The alleged exchange of correspondence regarding the high sea sale agreements is denied. The alleged agreement between the respondent^No.1 and the respondent No.5 was notarized before the respondent No.5 signed the document. The notary of the high sea sale agreement was at Madhya Pradesh. The deponent of the counter affidavit of the respondent No.7 confirms that only he signed the high sea sale agreement^betweenthe respondents No.7 and 4 and independently notarized the agreement without obtaining the signature of respondent No.4. The authorized signatory of the respondent No.1 and the deponent of^the counter affidavit of the respondent No.7 are liable for criminal prosecution. Under the above circumstances, the petitioner has unchallenged^claim against the respondent No.1 and entitled to proceed to satisfy the claim under the award.

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I.A.No.l of 2021

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The case of the petitioner / respondent No.7, as pleaded in the affidavit filed in support of the petition, in brief, is as follows:

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a. The respondent No.2 herein carries on business of import and export inter alia of mineral natural gypsum which the petitioner and the respondent No.6 herein used to purchase. The respondent No.2 is stated to have purchased a cargo of the mineral on 13.07.2018 from M/s. Eastern Minerals and Metals Trading DMCC and shipped the same to Indian ports on the vessel M.V.Busan Star. The respondent No.6, purchased the said cargo from the respondent i No.2 herein by duly paying the entire consideration of Rs.6,40,43,972/under a high sea sale agreement, dated 14.07.2018. The respondent No.7 purchased the said cargo from the respondent No.6 under a high sea sale agreement, dated 14.07.2018. The petitioner herein purchased, on high sea sale basis, 55,199.376 metric tons of the mineral under a high sea sale agreement, dated 14.07.2018 from the respondent No.7. The respondent No.2, the judgment debtor under the award, was totally divested of any title in the said cargo and ceased to have any right, title or interest of any nature whatsoever in the said cargo with effect from 14.07.2018.

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b. Thereafter, the main petition, dated 24.07.2018, was filed by the respondent No.1 herein for interim reliefs based on international award, dated 13.07.2018, claiming that respondent No.2 herein was the owner of the said cargo. By an order, dated 25.07.2018, this Court granted an order of attachment of the said cargo which was subsequently modified by an order, dated 01.08.2018 directing that respondents No.3 & 4 herein shall not obstruct berthing of the vessel M.V.Busan Star and

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discharge of the said cargo of 31200 M.Ts therein and^{wouldallowthe} vessel to sail along with the balance cargo after discharge.

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c. The respondent No.5 herein, claiming to be the owner^ofthesaid cargo based on a high sea sale agreement, dated 14.07.2018, got impleaded in the main petition by order, dated 06.08.2018^inI.A.No.3of 2018. The respondent No.5 herein had also paid the cargo duty on 23.07.2018 and the goods in transit had already changed^handsbefore this Court passed the initial attachment order, dated 25.07.2018. Subsequently, the respondents No.6 & 7 and the petitioner^hereinwere impleaded in the main petition by order, dated 08.08.2018,^inI.A.No.5of 2018 filed by the respondent No.5.

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d. Thereafter, by order, dated 13.08.2018, this Court passed the following order;

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“17. Accordingly, pending the disposal of the main application in I.C.O.M.A.O.A. No.2 of 2018,

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(A) M/s. Ultra Tech Cement Limited shall deposit a^sum of Rs.4,54,11,790/- by way of Pay Order or Demand Draft drawn on Nationalized Bank with the Registrar (Judicial) of this Court on account of its contract^with M/s. Alliance Import and Export, subject to its contractual right for inspection of the cargo on aboard the vessel MV Busan Star; and

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(B) On such deposit, M/s. Ultratech Cement Ltd., would be entitled to take discharge of the cargo at Visakhapatnam and at the next port of call at Haldia, West Bengal.

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^ bsb, J I.C.O.M.A.O.A. No.2 of 2018 f --- are lef, open for cons,deration in the main application, i.e., I.C.O M A O A No.2of2018.” ■

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e. The order, dated 13.08.2018 was subsequently modified by the order, dated 29.08.2018 issue of payment of customs duty to be paid by the respondent No.5 herein to the Thereafter respondent No.4 herein, on or around 21.08.2018, the respondent No.5 the said sum of Rs.4,54,11,790/deposited and, after payment of customs duty and other expenses, took delivery of the Visakhapatna said cargo on 28.08.2018 at m port and in September, 2018 at Haldia Port.

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f. In respect of the cargo of the mineral purchased by the respondent No.5 herein from the petitioner, the amount of consideration of Rs.4,54,11,790/i IS required to be paid. However, in view of the deposit made before this Court, the said amount has not been paid to the petitioner herein, The cargo purchased by the petitioner and subsequently sold i IS not the subject matter of the award and does not form part of the award or the arbitration agreement. The respondent No.2 stood divested of all ri 14 07 2018 Th .. 'He said cargo as on the4.07.2018,prior ownerThus,Of thethissaidCourtcargorecognizedand thereforethat the petitioner herein was entitled to the value of the said the petitioner herein IS cargo. In view of the same, the respondent No.1 cannot and ought not to be permitted to make claim of any nature whatsoever i in respect of the said cargo and / or the said sum of Rs.4,54,11,790/-. Being deprived of the said Rs.4,54, 11,790/- si amount of since July, 2018, the petitioner has been constrained to avail credit facilities and suffer payment of substantial - interest. The amount of take any stepsrespondentto executeNo.1the herein,award, i.e.,datedthe decree holder did not 13.07.2018. against the

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BSB, J l.C.O.M.A.O.A. No.2of 2018

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respondent No.2 herein even after lapse of three years. It is not only just and convenient, but also absolutely necessary in the interest of equity, justice and good conscience that the present petition be heard and disposed of expeditiously and pending the same, the petitioner be permitted to withdraw the said amount of Rs.4,54,11,790/- together with interest accrued thereon on such terms and conditions as the Court may deem fit and proper.

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The petitioner in l.C.O.M.A.O.A. No.2 of 2018 / the respondent No.1 in I.A.No.1 of 2021 filed additional affidavit, dated 23.11.2022, stating that the searches made by it revealed that the respondent No.7 / petitioner in I.A.No.1 of 2021 is not a registered partnership firm and resultantly, it is not entitled to enforce any right against third party in the name of the firm. Therefore, the petition is liable^{tobedismissed.} It is further stated that the affidavit in I.A.No.1 of 2021 was signed by the person styling himself as its Managing Director which position cannot be claimed in relation to a partnership firm.

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Firstly, the question of jurisdiction was argued as^stated in the counter affidavit of the respondent No.1. But, the argument on the territorial jurisdiction is not maintainable since the ship carrying the cargo was sailing in the territorial jurisdiction of this Fligh Court.

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The learned counsel for the petitioner submitted that the high-sea sales were not established by placing sufficient evidence. Whereas, the counsels for the respondents who contended that the respondent No.1 parted with the ownership of the cargo as on the date^oftheorderof attachment submitted that the documents filed by the respondents are sufficient to prove the same and that the petition^{shallbedismissedand} the amount be paid back.

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17 BSBJ I.C.O.M.A.O.A. No.2 of 2018

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A perusal of the order, dated 13.08.2018, shows that the respondent No.4 was impleaded on 06.08.2018 vide order in I.A.No.3 of 2018 in which all the above pleadings regarding the transfers were taken. Then, the respondents No.5, 6 and 7 were impleaded on 08.08.2018 vide order in I.A.No.5 of 2018 Lator fh^ r Later, the respondent No.8 was tmpieaded on 13.08.2018 vide order in I.A.No.7 of 2018 The respondent No.8 filed I.A. Nos.8, 9, 10 and 11 of 2018 for the following reliefs;

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I.A.No.8 of 2018 - to direct the port, customs and all concerned authorities to permit the discharge of the Cargo of 31,200 MTS of the mineral natural gypsum laden on board the Vessel Busan ‘ Star into the custody of Respondent No. 1 pending the final hearing and disposal of the present application, for an order." I.A.No.9 of 2018 - direct Respondent No. 1 to store the Cargo at its cost and expense, pending the final hearing and disposal of the present application. I.A.No.10 of 2018 - direct Respondent No. 1 to store the Cargo at its cost and expense, pending the final hearing and disposal of the present application l-A.No.H of 2018 - to direct Port, Customs and all concerned authorities to allow the Vessel to take berth and resupply and for a further order directing the respondent No 1 to bear such costs pending the final hearing and disposal of the present application.

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It was recorded i -n paragraph No. 15 of the order that though the counsel for the petitioner in the main case had sought to^file a counter affidavit to these applications, in view of the submissions made by the

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18 BSBJ l.C.O.M.A.O.A. No.2of2018

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W'

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Senior Counsel appearing for the respondent No.4 that^hisclientwas willing to deposit the amount claimed by the petitioner^{inthemaincase} of Rs.4,54,11,790/equivalent to U.S.D. 659,785.05 (which was awarded in favour of the applicant in the main case), pending disposal of the main petition and consideration of the question^whether the respondent No.7 and the other intermediaries had paid the respondent No.1 through the intermediaries or not, and subject to the right of the respondent No.4 for inspection of the cargo and the other rights conferred on it under its agreement with the respondent No.7, the thought that it was not necessary to grant time to file counters and proceeded further in recording importantly that this arrangement of depositing is agreeable to the counsel for the petitioner^{inthemaincase} as well as the other parties. Accordingly, pending disposal of the I.C.O.IVl.A.O.A.No.2 of 2018, the Court directed the respondent No.4 to deposit the above said amount and on such deposit, the respondent No.4 was permitted to take discharge of the cargo at both the ports. 18. Since the petition in I.C.O.M.A.O.A.No.2 of 2018 is^underSection 9 of the Act, it is only an interim measure to protect^{theinterestofthe} petitioner, who has obtained an award on merits, before^theaward is executed. On the understanding to deposit money to secure the petitioner’s interest only, the order dated 13.08.2018 was passed, as the petitioner in the main petition had decided not to file counters to the above interlocutory petitions; otherwise, the matter^could have been decided on merits by then.

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Subsequently, a petition in C.O.M.A.O.A.No.1 of 2022 under Section 47 read with Section 49 of the Act has been filed for execution of the award, dated 13.07.2018. The inter se disputes among the other respondents shall be decided in separate proceedings. The question of

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title of the goods / cargo attached will be decided in the execution proceedings. Therefore, without going into the question of transfer of title in the cargo at this juncture, the deposit of the amount in lieu of the attachment of the cargo is made absolute.

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In the result, I.C.O.M.A.O.A.No.2 of 2018 is closed and the interim order granted earlier is made absolute while dismissing I.A.No.1 of 2021.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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To,

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//TRUE COPY//

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SB Impex, An entity incorporated under the Indian laws, having its

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registered office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya Pradesh - 485001

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The Board of Trustees of Visakhapatnam Port Trust, a statutory body

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established under the Major Port Trusts Act, 1963 Port Area, Visakhapatnam-530035.

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Commissioner of Customs, Custom House Port Area, Visakhapatnam

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Andhra Pradesh - 530035.

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Ultratech Cement Limited, B-wing, 2nd floor, Ahura Centre, Mahakali caves road, Andheri (East), Mumbai.400093.

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Rab Metals and Co, A/102, Emarald Appartments, St.Jhon Baptist Road, Mr.Mary Steps, Bandra Wst, Mumbai - 400 050.

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Promotech Plastics Limited, Having Registered Office st 106,

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Harikrupa Chambers Behind National Chambers, Ashram Road,

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Ahmedabad - 380 009, Gujarat

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Alliance Import and Export, Having Registered Office at Shop No.01, Fiaz-E-Akhtar, 27, Memonwada Road, Mumbai - 400 003

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■4^

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j. '/

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Orham Shipping Pvt Ltd, A Company Incorporated under the law of India and having its registered office at 101, The Summit, Near Hanuman Mandir, Hanuman Road, Office Westeren Express Highway, Vile Parle (East, Mumbai - 400 057 Through its authourized Signatory Mr.Mittapally Sivaprasad

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