1132018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI r~j- WEDNESDAY,THE SEVENTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI I.A No.1 of 2021 In/and INTERNATIONAL COMMERCIAL ARBITRATION ORIGINAL APPLICATION NO: 2 OF 2018 Between: Al Ahli International Building Products Trading FZE its A company incorporated in Sharjah under the laws of UAE having Sharjah HFZ, UAE. Rep by its registered office at P.O. Box 49503, Constituted Power of Attorney Holder, Mr. Ganesh Shinde. ...Original Applicant AND 1. SB Impex An entity incorporated under the Indian laws, having its registered office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya Pradesh -485001 The Board of Trustees of Visakhapatnam Port Trust, A statutory body established under the Major Port Trusts Act, 1963 Port Area, Visakhapatnam-530035. Commissioner of Customs, Custom House, Port Area, Visakhapatnam Andhra Pradesh - 530035. 2. 3. Ultratech Cement Limited B-wing, 2nd floor, Ahura Centre, Mahakali caves road, Andheri (East), Mumbai.400093. Rep by its Constituted power of Attorney Holder Ms. Swati Atrawalkar (R4 is impleaded as per 2018 in ICOMAOA No. 2 of 2018) Rab Metals and Co. A/102, Esmeralda Appartments, St.John Baptist Road, Mt.Mary Steps, Bandra West, Mumbai - 400 050. Promotech Plastics Limited Having Registered Office at 106, National Chambers, Ashram Road, Ahmedabad - 380 009, Gujarat Alliance Import and Export Having Registered Office at Shop No.01, Fiaz-E-Akhtar, Memonwada Road, Mumbai - 400 003 (RR 5 to 7 are impleaded as per No.1 of 2018 in ICOMAOA 2 of 2018.) 4. Court order dated 06-08-2018 vide lA No.3 of 5. 6. Behind Harikrupa Chambers 7. 27, Court order dt.08/08/2018 Vide lA Orham Shipping Pvt Ltd, Company Incorporated under the law of India and having its registered office at 101, The Summit, Near Hanuman Mandir, Hanuman Office Westeren Express Highway, Vile Parle (East, Mumbai - 8 A Road, 400 057 (R 8 is impleaded as per 2018 in ICOMAOA 2 of 2018). Through its authourized Signatory Mr.Mittapally Sivaprasad Court order dt.l3/08/2018. Vide lA No.7 of ...Respondents under Section 9 of the Arbitration and Conciliation Act 1996, Application praying that the High Court may be pleased to to furnish solvent security, a sum of a. order the Respondent Rs.4,54,11,790 equivalent to USD 659,785.05 (being the amount I 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 No.1 either directly or indirectly through its nonimees, agents, associates, affiliates, representatives or employees from in any manner b. pass an selling, encumbering, alienating, transferring, issuing delivery order, parting with possession or otherwise dealing with 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 Court and render justice, c. For ad interim reliefs in terms of prayer lA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to of interim injunction restraining the Respondent No. 1 either pass an order directly or indirectly through its nominees, agents, associates, affiliates, manner, selling, encumbering. representatives or employees, from, in any transferring, issuing delivery order, parting with possession of 55,199.376 Mts. of Mineral Natural or alienating otherwise dealing with the cargo Gypsum shipped on render justice. vessel MV Busan Star lying at Vishakhapatnam Port and lA NO: 10 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to No 1 to furnish security of US $ 320,000 for losses direct the respondent suffered by the petitioner till date, and pass lA NO: 13 OF 2018 Petition under Section 151 CPC 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 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 lA NO: 1 OF 2021 Between: M/s Alliance Import and Export Having Registered Office at Shop No.01 ,Fiaz-E-Akhtar, 27, Memonwada Road, Mumbai - 400 003 ...Applicant/Respondent No.7 and 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. SB Impex An entity incorporated under the Indian laws, having its registered office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya Pradesh - 485001 The Board of Trustees of Visakhapatnam Port Trust, A statutory body established under the Major Port Trusts Act, 1963 Port Area, Visakhapatnam-530035. Commissioner of Customs, Custom House, Port Area, Visakhapatnam Andhra Pradesh - 530035. Ultratech Cement Limited B-wing, 2nd floor, Ahura Centre, Mahakali caves road, Andheri (East), Mumbai.400093. Rab Metals and Co. A/102, Esmeralda Appartments, St.John Baptist Road, Mt.Mary Steps 1. 2. 3. 4. 5. 6. .7:"- m ^1 Bandra West, Mumbai - 400 050. 7. Promotech Plastics Limited Having Registered Office at 106, Harikrupa Chambers,Behind National Chambers, Ashram Road, Ahmedabad - 30 009, Gujarat ...Respondents Petition under Section 151 CPC r/w Section 9(1)(ii)(e) of the Arbitration 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 a. that the Registrar (Judicial) of this Hon’ble Court be directed to pay over to the Applicant herein the amount of Rs.4,54,11,790/- together with interest accrued thereon deposited in this Hon'ble Court by Respondent No. 5 herein pursuant to Order dated 13.08.2018 b. that pending the hearing and final disposal of the present placationon, the Respondent No.1 herein or any other parties be restrained from withdrawing the said amount of Rs.4,54,11,790/-. Counsel for the Applicant: Sri I V Siddhivardhana 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: f APHC010548132018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Wednesday, the Seventh Day of May, Two Thousand and Twenty Five Present The Honourable Ms. Justice B S Bhanumathi l.A.No.1 of 2021 ln/& International Commercial Arbitration Original Application No.2 of 2018 Between: ...Petitioner Al Ahli International Building Products Trading FZE and S. B. Impex and others ...Respondents Counsel for the petitioner: I.I.V.Siddhivardhana Counsel for the respondents: I.RavitejaPadiri 2.Sai Sanjay Suraneni 3.P. Roy Reddy 4.V.V.Prabhakara Rao S.R.Sushanth Reddy The Court made the following: 1- pv ■ 4 . 2 BSB, J I.C.O.M.A.O.A. No.2 of 2018 COMMON ORDER: 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 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; 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; order ad- interim reliefs in terms of prayer (b) above; pass such further or other orders as this Court may deem fit and proper in the facts and circumstances of the case; and order costs. a. b. c. d. I.A.No.l of 2021 - This petition is filed by the respondent No.7 in 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 the petitioner herein the amount of Rs.4,54,11,790/- together with interest accrued thereon 2. 3 BSB, J I.C.O.M.A.O.A. No.2 of 2018 deposited in this Court by the respondent No.5 13.08.2018 and that the restrained from withdrawing the said The petitioner in I.A.No.1 of 2021 respondent No.1 is the petitioner; and the respondents No.1 to 6 in I.C.O.M.A.O.A.No.2 of 2018. Since the considerations i I.A.No.1 of 2021 are the same, , parties are arrayed as in I.C.O.M.A.O.A.No.2 of 2018. The case of the petitioner in I.C.O.M.A.O.A. No.2 of 2018. briefly stated, is as follows; pursuant to order, dated respondent No.1 and other parties be amount. 3. is the respondent No.7; the respondents No.2 to 7 are the 4. I.C.O.M.A.O.A.No.2 of 2018 in and a common order is passed and the 5. The petitioner, Al Ahli International a. Building Products Trading company incorporated in Sharjah under the laws of The respondent No.1 is FZE, is a U.A.E. an entity incorporated under the Indian laws The respondents No.2 and 3 are the Visakhapatnam Port and custom authorities at Visakhapatnam port respectively jurisdiction and control and are vested with the over the cargo belonging to the respondent No.1. were impleaded as per the orders 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. The respondents No.4, 5 to 7 and 8 of this Court, dated 06.08.2018, 08.08.2018 b. On 12.02.2016, the petitioner and the into a supply agreement for sale and cargo was delivered by the petitioner and the the entire respondent No.1 entered supply of natural gypsum. The respondent No.1 received cargo under the supply agreement. Despite demands from the petitioner, the i U.S.D. 300,000 due to the petitioner under the numerous respondent No.1 failed to pay a sum of j supply agreement. 4 BSB, J t.C.O.M.A.O.A. No.2 of 2018 Accordingly, the petitioner initiated arbitration c. 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. 09.02.2017, the I.C.C. International Court On of Arbitration appointed dispute under Mr. Yu-Jin Tay as the sole Arbitrator for resolution of the the supply agreement. 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 award on 13.07.2018. The award reads as follows: a final (i) The respondent is liable to pay and shall pay to the claimant U.S.D. 300,000; 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; (ii) (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.” 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, costs of A.E.D. 829,976.29 and arbitration costs of E.U.R. equivalent to a sum of Rs.4,54,11,790/-. legal 62,000 5 BSB, J I.C.O.M.A.O.A. No.2 of 2018 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 no other substantial / real owns asset. 9- The petitioner apprehends that the the said cargo from the jurisdiction the same in order to | enforcing the award. Therefore, The authorized si respondent No.1 may remove of the Court, alienate, sell or dispose prevent the same from being proceeded against in this petition was filed. 6. signatory of the respondent No.1 filed affidavit with the averments briefly as follows; counter This Court has the present petition Madhya Pradesh jurisdiction. Since a. no territorial jurisdiction to entertain and adjudicate as the office of the respondent and the High Court of Madhya is situated at Satna, Pradesh has same is to be enforced 9 cannot be an award was passed, the under Section 49 of the Act. A petition under Section a High Court other than the High Court cause of action affecting the rights of the maintained before which can parties this Court, carrying cargo halts for unloading the on this Court. Hence the execute the award. No to the arbitration agreement arose within the jurisdiction of Merely because the ship / vessel cargo, it does not confer jurisdiction petition is liable to be returned for its of Madhya Pradesh. The to be decided present presentation before the High Court aspect of territorial jurisdiction of this Court i as a preliminary issue. This IS respondent is taking appropriate legal steps to file a petition to set aside the arbitral award dated 13.07.2018. b. Gypsum (cargo) on board was purchased by this M/s. Eastern Minerals & Metals respondent from Trading D.M.C.C. on 13.07.2018 and BSB, J I.C.O.M.A.O.A. No.2 of 2018 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 petitioner failed to make out any case for grant of injunction. on. The 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, no execution 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. c. can 7. The respondent No.4 -UltraTech Cement Limited, filed counter affidavit contending as follows: This petition was filed without seeking enforcement and execution 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 7 bsb, J I.C.O.M.A.O.A. No.2 of 2018 therefore, onus of fraudulent lies payment of consideration is not the test of proving that the documents filed ownership. The by this respondent are on the petitioner. It i IS denied that the bills of lading order, dated 25.07.2018, have been endorsed after the passed by this Court, any evidence of its allegations of fraud The petitioner has not submitted or that the respondent was i cargo did not change hands. The deposit made by this 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 respondent No. 1 to settle the petitioner’ and hope of getting the s alleged claim under the foreign be deleted from the award. The respondent No.4 shall in the present petition array of parties against the and the must parties on as the dispute of the alleged claim can be decided inter respondent No.1 se between them respondent No.4 is not a '^^cessary or proper party. The petitioner be put to terms by this Court for the losses suffered by all the account of wrongful attachment of the cargo. The respondent No,6 -Promact Impex Limited filed 8. counter stating as follows; 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 Which, in turn, respondent paid the entire - (i e., Rs.62,30,238/- on 25.06.2018 on 27.06.2018, Rs.85,00,000/- plus Rs.80,00,000/ - on 05.07.2018, Rs.55,12 907/ sea agreement, dated 14.07.2018, from the respondent No.5 purchased from the respondent No.1. This consideration of Rs.4,27,43,i45/ Rs.75,00,000/- - plus - on 13.07.2018) towards respondent No.5. Rs.70,00,000/ the price of 31199.376 M.T. of the cargo to the 8 BSB, J I.C.O.M.A.O.A. No.2 of 2018 r 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 account sealed and 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 over the amount in deposit. As the order, dated 25.07.2018, was passed ex parte, the factual aspects could not be brought to the notice of the Court by the respondents. This respondent prayed to dismiss the main petition and order payment of the amount in deposit to this respondent. 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 The claim of the 9. allegations and reiterating the petition contents, respondent No.6 that the amounts deposited by the respondent No.4 should be paid to them is frivolous and highly belated. The claim of the respondent No.6, if any, has to be independently agitated and cannot be decided in the instant application. The respondents No.5 & 7 / Rab Metals & Co. and Alliance Import & Export filed counter affidavit of Rashid Abbas Busheri claiming to be a common partner to the respondents No.5 & 7, stating briefly as follows seeking to vacate order of attachment, dated 27.07.2018. 10. 9 BSB, J I.C.O.M.A.O.A. No.2 of 2018 The model of the business for respondent No.5 or the which means that apart from the purchase of gypsum via the a CFR / Free DA basis, respondent No.7 is on the purchase price, all vessel related costs at the load and discharge ports banks primarily deal with the sanction are borne by the purchasers. Alliance a DCB, as does the respondent No.5. Due to regime recently imposed and further sanctions expected, if there is a payment to an Iranian party is remitted through DCB, possibility that payment would be delayed while passing through It the payment is not received in time correspondent / NOSTRO Banks. in Iran, the vessel would be delayed. To avoid such risk, these respondents prefer to make purchase through the which banks with Inter alia I.D.B.I. and Indusind banks' the transaction is large, like the respondent No.5 It the size of present case, these respondents raise some finance through the after it is purchased by the No.6 at a respondent No.6, in which case, the cargo, respondent No.5, is sold to the respondent respondent No.6 sells the pre-agreed price and then the cargo at a pre-agreed price to the the consideration the respondent No.7 for profit, which respondent No.6 receives for IS supporting the transaction. The other and are involved i The respondent No.1 respondents No.5 to 7 work very closely with each more than one venture at a given point of time, is not associated with these in respondents No.5 & 7 in any manner, however, the respondent No.7 dealt with the respondent of the affidavit struck a deal with the cargo in advance sometime in March No.1 in the past. The deponent respondent No.1 to purchase the 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 advance payments to the same, the respondent No.5 made respondent No.1 in tranches. The proforma v: 10 BSBJ I.C.O.M.A.O.A. No.2 of 2018 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 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/- 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 that the 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 here for brevity.) The respondent No.4 has not paid the respondent No.7 for the 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, this clause not adhered to, like the other terms of payment in the proforma invoice sea on was 11 BSB, J I.C.O.M.A.O.A. No.2 of 2018 and the payment was released by the respondent No.5 because load port quality reports were satisfactory. The transaction between the respondent No.1 and the respondent No.5 the was in the regular course of business and was not meant to defeat was subsequently issued on 25.07.2018. 5 & 7 had no knowledge of the award there is no question of these or circumvent the order which Further, the respondents No. till after 25.07.2018 and thus 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 addressed by respondent No.7 to the was petitioner informing the sale upon the petitioner to get the order already made and calling attachment vacated. The of respondent No.7 is suffering irreparable loss as it has not received funds from grave and the respondent No.4. deposited before this Court be paid to present application is liable to be The amount of Rs.4,54,11,790/- the respondent No.7 and the dismissed. 11. The petitioner filed reply affidavit respondents No.5 & 7 stating briefly as follows, besides reiterating the contentions in the petition. to the counter affidavit of 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 and are in fact, sham respondent No.7 companies and there was no flow of consideration between the parties. It is denied that all three of them have continuous account and that all the transactions No.5 & 7 are undertaken through banking a running of the respondents channels and all inward 12 BSB, J I.C.O.M.A.O.A. No.2 of 2018 % 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 the entities 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 between the 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. are 13 BSB, J I.C.O.M.A.O.A. No.2 of 2018 I.A.No.l of 2021 12. The case of the petitioner / respondent No.7, affidavit filed in support of the petition, in brief, is as follows: as pleaded in the The respondent No.2 herein export inter alia of mineral natural a. carries on business of import and 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 paying the entire consideration of Rs.6,40,43,972/- sale agreement, dated 14.07.2018. The No.2 herein by duly under a high sea respondent No.7 purchased the a high sea sale agreement, purchased, on high sea sale said cargo from the respondent No.6 under dated 14.07.2018. The petitioner herein basis, 55,199.376 metric tons of the agreement, dated 14.07.2018 from the respondent No.2, the judgment debtor under the mineral under a high sea sale respondent No.7. The award, was totally cargo and ceased to have any right, title or interest of any nature whatsoever in the said cargo with effect from 14.07.2018. divested of any title in the said b. Thereafter, the main petition, dated 24.07.2018, respondent No.1 herein for interim reliefs based dated 13.07.2018, claiming that respondent No.2 herein of the said cargo. By an order, dated 25.07.2018, this Court granted an order of attachment of the said by an order, dated 01.08.2018 directing that respondents No.3 & 4 herein shall not obstruct berthing of the was filed by the on international award, was the owner cargo which was subsequently modified vessel M.V.Busan Star and 14 BSB, J I.C.O.M.A.O.A. No.2of 2018 '■4k, V discharge of the said cargo of 31200 M.Ts therein and would allow the vessel to sail along with the balance cargo after discharge. ' The respondent No.5 herein, claiming to be the owner of the said cargo based on a high sea sale agreement, dated 14.07.2018, got impleaded in the main petition by order, dated 06.08.2018 in I.A.No.3 of 2018. The respondent No.5 herein had also paid the cargo duty on 23.07.2018 and the goods in transit had already changed hands before this Court passed the initial attachment order, dated 25.07.2018. Subsequently, the respondents No.6 & 7 and the petitioner herein were impleaded in the main petition by order, dated 08.08.2018, in I.A.No.5 of 2018 filed by the respondent No.5. c. d. Thereafter, by order, dated 13.08.2018, this Court passed the following order; “17. Accordingly, pending the disposal of the main application in I.C.O.M.A.O.A. No.2 of 2018, (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 (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. 15 , ^ 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.” ■ The order, dated 13.08.2018 order, dated 29.08.2018 e. subsequently modified by customs duty to be , was the issue of payment of 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 said cargo on 28.08.2018 and other expenses, Visakhapatna took delivery of the at m port and in September, 2018 at Haldia Port. f. In respect of the cargo of the mineral petitioner, the purchased by the respondent No.5 herein from the of Rs.4,54,11,790/- i amount of consideration IS required to be paid. However, Court, the said in view of the deposit made before this amount has not been paid to petitioner and the petitioner herein, subsequently sold i form part of the The cargo purchased by the IS not the subject matter of the award and does not award or the arbitration agreement. The respondent No.2 stood divested of all ri 14 07 2018 Th .. 'He said cargo 4.07.2018, Thus, this Court recognized that the petitioner herein the prior owner Of the said cargo and therefore entitled to the value of the as on was the petitioner herein cargo. In view of the IS said same, the to make claim of respondent No.1 cannot and any nature whatsoever i ought not to be permitted in respect of the said cargo and / or the said the said sum of Rs.4,54,11,790/-. Rs.4,54, 11,790/- si Being deprived of amount of since July, 2018, the petitioner has been constrained and suffer to avail credit facilities payment of substantial - respondent No.1 herein, i.e., the decree holder take any steps to execute the award, dated amount of , did not 13.07.2018. against the interest. The 16 BSB, J l.C.O.M.A.O.A. No.2of 2018 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. 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 to be dismissed. 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. 13. 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. 14. 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 of the order of attachment submitted that the documents filed by the respondents are sufficient to prove the same and that the petition shall be dismissed and the amount be paid back. 15. 17 BSBJ I.C.O.M.A.O.A. No.2 of 2018 16. A perusal of the order, dated 13.08.2018, shows that the on 06.08.2018 vide order in I.A.No.3 of pleadings regarding the transfers respondents No.5, 6 and 7 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 respondent No.8 filed I.A. Nos.8, respondent No.4 was impleaded 2018 in which all the above taken. Then, the were were impleaded on The 9, 10 and 11 of 2018 for the following reliefs; I.A.No.8 of 2018 - to direct the port, customs and all concerned authorities to permit the discharge of the mineral natural gypsum Cargo of 31,200 MTS of the laden on board the Vessel Busan ‘ Respondent No. 1 pending the final hearing of the present application, for Star into the custody of and disposal an order." direct Respondent No. 1 to I.A.No.9 of 2018 - 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 to take berth a further order directing the costs pending the final concerned authorities to allow the Vessel and resupply and for respondent No 1 to bear such hearing and disposal of the present application. 17. It was recorded i -n paragraph No. 15 of the order that though counsel for the petitioner in the main case had sought to file affidavit to these applications, in view of the submissions made by the the a counter W' 18 BSBJ l.C.O.M.A.O.A. No.2of2018 / Senior Counsel appearing for the respondent No.4 that his client was willing to deposit the amount claimed by the petitioner in the main case 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 in the main case 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. / Since the petition in I.C.O.M.A.O.A.No.2 of 2018 is under Section 9 of the Act, it is only an interim measure to protect the interest of the petitioner, who has obtained an award on merits, before the award 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. 18. 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 19. 19 BSB, J ■ I.C.O.M.A.O.A. No.2 of 2018 \ 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. 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. 20. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- E. KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. SB Impex, An entity incorporated under the Indian registered office at 41/182, First Floor, Chowk Bazaar, Satna, Madhya Pradesh - 485001 2. The Board of Trustees of Visakhapatnam Port Trust, established under the Major Port Trusts Act, Visakhapatnam-530035. 3. Commissioner of Customs, Custom House Andhra Pradesh - 530035. laws, having its a statutory body 1963 Port Area, Port Area, Visakhapatnam 4. Ultratech Cement Limited, B-wing, 2nd floor, Ahura Centre, Mahakali caves road, Andheri (East), Mumbai.400093. 5. Rab Metals and Co, A/102, Emarald Appartments, Road, Mr.Mary Steps, Bandra Wst, Mumbai - 400 050. 6. Promotech Plastics Limited, Harikrupa Chambers St.Jhon Baptist Having Registered Office st 106, Ashram Road, Behind National Chambers, Ahmedabad - 380 009, Gujarat 7. Alliance Import and Export, Having Registered Office Fiaz-E-Akhtar, 27, Memonwada Road, Mumbai at Shop No.01, - 400 003 ■4^ i 8. 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 9. One CC to Sri. I V Siddhivardhana, Advocate [OPUC] 10. One CC to Sri. Raviteja Padiri, Advocate [OPUC] 11. One CC to Sri. P Roy Reddy, Advocate [OPUC] 12.One CC to Sri. VV Prabhakara Rao, Advocate [OPUC] 13. One CC to Sri. R Sushanth Reddy, Advocate [OPUC 14. Two CD Copies j. '/ Stu sree »• * r < HIGH COURT DATED:07/05/2025 COMMON ORDER I.A No.1 of 2021 in/and ICOMAOA NO. 2 OF 2018 50^ ANOW^;^ I 11 SEP MS ^ . Current Section ms CLOSING THE ICOMAOA No.2 of 2018 DISMISSING THE I.A No.1 of 2021