APHC010453352024 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) WEDNESDAY ,THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI CIVIL MISCELLANEOUS APPEAL NO: 744/2024 Between: Shaleen Overseas Seaways Shipping And Logistics Ltd and Others Counsel for the Appellant: 1. MOGULURU ISWARYA Counsel for the Respondent(S): 1. D S SIVADARSHAN 2. VIVEK CHANDRA SEKHAR S The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY ,THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 744/2024 ...APPELLANT AND Seaways Shipping And Logistics Ltd and Others ...RESPONDENT(S) Counsel for the Appellant: MOGULURU ISWARYA Counsel for the Respondent(S): VIVEK CHANDRA SEKHAR S The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH [3509] WEDNESDAY ,THE TWENTY SECOND DAY OF JANUARY THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI JUSTICE CHALLA GUNARANJAN ...APPELLANT ...RESPONDENT(S) HONOURABLE SRI JUSTICE RAVI NATH TILHARI HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO.744 of 2024 JUDGMENT: (per Hon’ble Sri Justice Ravi Nath Tilhari) Heard Sri Manoj Khatri, learned counsel assisted by Sri Arnab Ghosh & Ms. Renuka Pandit, learned counsels for the appellant and Sri D.Prudhvi Teja, learned counsel for respondent No.1 and Sri D.S.Sivadarshan, learned counsel for respondent No.2. 2. Appellant is the plaintiff and respondent Nos.1 & 2 are the defendant Nos.1 & 2 respectively in COS.No.25 of 2023 pending on the file of Special Court for Trial and Disposal of Commercial Disputes, Vijayawada (in short ‘Special Court’). 3. The appellant/plaintiff instituted COS.No.25 of 2023 for recovery of the sum of Rs.1,05,11,864/- together with the interest @ 18% per annum from the date of filing of the suit till actual realization/payment. With the said suit, I.A.No.164 of 2023 was also filed by the plaintiff under Order 39 Rule 1 & 2 and Section 151 CPC for the following relief: “to grant an interim order of release of cargo 160 Metric Tons of rice, packed in 50 bags having the brand name ‘hello’ presently stored at the warehouse of 2nd respondent and also by staying the auction of the said cargo.” 4. The respondents filed counter to I.A.No.164 of 2023. 5. Learned Special Court vide order dated 29.11.2023 directed the defendant No.2 therein to keep the Cargo material without delivering to the Auction Purchasers. Complete docket order reads as under: “Counter of R1 not filed. R2 is directed to keep the Cargo material without deliver the material to Auction Purchasers. If the Cargo material is already delivered to the Auction Purchaser, R2 is directed to file the Auction Proceedings. For counter of R1, call on 15.12.2023.” 6. Challenging the order dated 29.11.2023, CMA.No.549 of 2023 was filed by the defendant No.2/respondent No.2 herein. In that appeal, the affidavit was filed by the respondent No.2 herein, interalia to the effect that the sale proceeds of the subject cargo after its due evaluation will be kept in a separate fixed deposit in the name of the respondent No.2 herein and the same will not be encashed by him till the final disposal of the interlocutory application which was at that time pending before learned Special Judge. The plaintiff/appellant herein, also consented for the said course of action and agreed for disposal of the CMA. 7. The appeal was disposed of vide order dated 14.12.2023, modifying the order dated 29.11.2023, which was under challenge in the appeal. 8. Para Nos.5 to 8 of the order dated 14.12.2023 in CMA.No.549 of 2023 are reproduced as under: “5. Though the appellant has assailed the said order on a number of grounds, now the affidavit deposed by the Managing Director of the appellant Company is filed before this Court. Paragraph No.4 of the said affidavit reads as follows:- “I respectfully submit that, through the present affidavit, the appellant submits that sale proceeds of the subject cargo after its due evaluation will be kept in a separate fixed deposit in the name of the appellant and the same will not be encashed by the appellant till the final disposal of the interlocutory application which is currently pending for consideration on the file of the Hon’ble Commercial Court, Vijayawada”. 6. Learned counsel for the plaintiff/1st respondent on instructions has accepted and expressed his consent for the aforesaid mentioned course of action proposed in the said affidavit and agreed for the disposal of the appeal. 7. For the aforesaid reasons, the Civil Miscellaneous Appeal is disposed of, permitting the appellant to deliver the subject goods and to deposit the same in a fixed deposit in State Bank of India, Nellore in the name of the appellant and the said deposit shall continue till disposal of I.A.No.164 of 2023 in C.O.S.No.25 of 2023. 8. Accordingly, the order impugned in the Appeal stands modified. However, it is made clear that I.A.No.164 of 2023 in C.O.S.No.25 of 2023 shall be disposed of on merits and uninfluenced by the arrangement now made on consent, as expeditiously as possible. There shall be no order as to costs.” 9. Thereafter, on 08.06.2024 the plaintiff/appellant herein, in view of the changed circumstances, filed I.A.No.65 of 2024 to amend the prayer in I.A.No.164 of 2023. 10. During the pendency of the I.A.No.65 of 2024, without considering the same, I.A.No.164 of 2023 was decided by an order dated 26.07.2024 under challenge in this appeal. The I.A.No.164 of 2023 of the appellant was rejected. 11. The rejection by the impugned order dated 26.07.2024 is on the ground that the rights of the parties over the cargo, now available in the form of sale proceeds after its auction, can be decided only in the main suit after adducing of the evidence of both sides, also observing that “in view of the above orders of the Hon’ble A.P. High Court, this Court cannot go beyond the orders of the Hon'ble A.P.High Court and if really the plaintiff feel any grievance, they should have approached the Hon’ble A.P. High Court for obtaining the necessary orders. But, the plaintiff cannot request this Court to pass such orders for giving direction to continue the said deposit till disposal of the suit, beyond the orders of the Hon'ble A.P.High Court and that too in the above petition which relief has already become infructuous by taking into consideration of the nature of the relief.” 12. Para Nos.10.5 & 10.6 of the impugned order reads as under: “10.5) However, so far as the rights of the parties are concerned, over the said Cargo, which is now available in the form of sale proceeds after its auction, can be decided only in the main suit only after adducing the evidence of both sides coupled with documents. So far as this I.A is concerned, we cannot come to final conclusion with regard to the title of the parties of those sale proceeds. Therefore, the parties are directed to proceed with the trial as early as possible to arrive into conclusion with regard to the title of the said sale proceeds. However, if the above sale proceeds are encashed by the 2nd respondent after disposal of the above I.A, definitely it would affect the result of the above suit, but however it is the direction of the Hon’ble A.P. High Court to continue the said deposit till disposal of I.A. 164/2023. 10.6) Therefore, in view of the above orders of the Hon’ble A.P. High Court, this Court cannot go beyond the orders of the Hon'ble A.P.High Court and if really the plaintiffs feel any grievance, they should have approached the Hon’ble A.P. High Court for obtaining the necessary orders. But, the plaintiff cannot request this Court to pass such orders for giving direction to continue the said deposit till disposal of the suit, beyond the orders of the Hon'ble A.P.High Court and that too in the above petition which relief has already become infructuous by taking into consideration of the nature of the relief. Therefore, there are no bonafides found on the part of the petitioner.” 13. Consequently, later on, IA.No.65 of 2024 was also rejected on 30.09.2024. 14. Learned counsel for the appellant submits that the learned Court ought to have first considered the application for amendment. But, without considering the same, I.A.No.164 of 2023 was decided. His further submission is that pursuant to the direction issued by this Court in CMA.No.549 of 2023, the application deserved to be considered on merits. But, the application has not been considered on merits in the misconception that the same became infructuous. Consequently, the order under challenge cannot be sustained. 15. Learned counsel for respondent No.2 submits that the appellant has not challenged the order of rejection of I.A.No.65 of 2024. The application I.A.No.164 of 2023 was rendered infructuous in view of the auction of the cargo. He submits that there is no illegality in the order under challenge. 16. We have considered the aforesaid submissions and perused the material on record. 17. It is evident from the order passed in CMA.No.549 of 2023, that the Co- ordinate Bench directed to dispose of the I.A.No.164 of 2023 on merits, uninfluenced by the arrangement made on consent. We are of the view that the application I.A.No.164 of 2023 deserved to be considered on merits. But, the same has not been decided on merits, on consideration of the relevant factors of deciding application under Order 39 Rule 1 & 2 CPC. In view of the changed circumstances, indicated in I.A.No.65 of 2024, amendment for such application also deserved consideration, preferably firstly, and in any case taking into account the changed circumstances, the Court had the power and the jurisdiction to consider to mould the relief of temporary injunction, if a case for grant of temporary injunction was made out. But, the Special Judge did not consider the application for amendment and decided IA.No.164 of 2023, being of the view, as observed that I.A.No.164 of 2023 became infructuous and the appellant ought to have approached this Court, whereas this Court had already directed to decide the application on merits without being influenced by the arrangement made on consent by order dated 14.12.2023. 18. The impugned order therefore cannot be sustained which deserves to be set aside. 19. At this stage learned counsel for the respondent No.2 submits that the amount kept in fixed deposits under the arrangement in the order dated 14.12.2023 has been withdrawn by respondent No.2 on disposal of I.A.No.164 of 2023. 20. Considering the aforesaid, we allow this appeal and set aside the order dated 26.07.2024 with a direction to the learned Special Judge, to pass fresh orders in I.A.No.164 of 2023 considering also I.A.No.65 of 2024, on merits, in terms of the direction issued in CMA.No.549 of 2023, dated 14.12.2023. 21. The appellant is also granted liberty to file appropriate application to amend the prayer interim/final, if so advised, in the changed circumstances. 22. The Civil Miscellaneous Appeal is allowed in the aforesaid terms. No orders as to cost. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed. ____________________ RAVI NATH TILHARI, J ______________________ CHALLA GUNARANJAN,J Dated: 22.01.2025 AG 329 HONOURABLE SRI JUSTICE RAVI NATH TILHARI HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO.744 of 2024 Dated: 22.01.2025 AG