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Judgment
By consent of the parties, both the appeals and the application are treated on day's list and disposed of by the common order.
This appeal (APOT No. 130 of 2019) is directed against an order dated 30th September 2019. The grievance of the appellant is that the first defendant was directed to pay Rs. 50 lakh in cash instead of bank draft. It appears from the impugned order that out of Rs. 75 lakh, Rs. 50 lakh was directed to be paid in cash and the balance Rs. 25 lakh by way of pay order, aggregating to Rs. 75 lakh. The appellant submits that since it was unable to arrange Rs. 50 lakh in cash and was seeking modification of the said order, the appellant was unable to furnish the security within the period stipulated in the order. Mr. Anirban Kumar Ray, learned counsel appearing on behalf of the respondent No.1, on instruction, submits that as on date, it would be approximately Rs. 3.6 crore and unless the entire amount is secured, the question of releasing the goods cannot arise. Mr. Ray further submits that the suit was filed suppressing the jurisdiction clause. Mr. Ray has submitted that an application for modification of the order dated 30th September 2019 is pending in which directions have been given for filing affidavits. The Learned Single Judge refused to pass any interim order without affording any opportunity to the defendant to file affidavit in opposition.
The appellant has preferred two distinct appeals being APOT No. 130 of 2019 and APOT No. 129 of 2019 against both orders, one dated 30th September 2019 and the other dated 22nd October 2019. The respondents have not challenged the orders dill date.
We feel that the appellant was justified in making a prayer for modification to the extent of furnishing bank draft instead of cash. Bank draft is equivalent to cash. However, had the order dated 30th September 2019 been complied with in time, the respondents would not have any objection to the compliance of the said order as there was no appeal contemporaneously filed by the respondents or till date. Having regard to the passage of time, the goods are attracting detention charges. We accept Mr. Ray's submission that as on date, it will be approximately Rs. 3.6 crore. Mr. Ghose, however, has referred to the communication dated 18th October 2019 from the respondents to show that till 15th October 2019, it would be Rs. 2,26,69,202/- plus GST. This is apart from Rs. 75 lakh.
For the time being, we direct the appellant to furnish unconditional bank guarantee for a sum of Rs. 2,26,69,202/- plus GST as on date, within two weeks from date subject to the satisfaction of the Registrar, High Court, Original Side. However, a sum of Rs. 75 lakh shall be paid by way of bank draft within one week from date. The bank guarantee shall initially be for a period of one year and the appellant shall continue to renew the said bank guarantee till the disposal of the suit or any further order that may be passed in the pending proceeding. Upon receiving such payment and production of the bank guarantee towards security, the containers may be released by the defendant No.1 to the appellant. The advocates-on-record of the parties are appointed Special Officers under whose supervision the goods shall be released in favour of the appellant upon compliance of the aforesaid directions. It is needless to mention, if it is found that the appellant has made excess payment, the appellant shall be entitled to refund of the said sum together with interest @ 8% per annum from the date of deposit till refund. In the event it is found in the pending proceeding that the respondent No.1 is entitled to further amount, the plaintiff shall either secure or make payment of such sum as may be directed by the Learned Single Judge in the pending proceeding. One of the directors of the appellant shall file an affidavit of undertaking to the aforesaid effect, upon prior service to the advocate-on-record of the respondent No.1, before the release of the goods in terms of this order with the Registrar, High Court, Original Side. The said affidavit of undertaking shall form part of GA No. 2304 of 2019.
Both the appeals and the application stand disposed of.