AI Structured Summary
Not yet generated for this judgment
Judgment
Shampa Sarkar, J
The Court : The Marshall, Calcutta High Court, has filed a report of service and arrest, which is taken on record.
GA No.810 of 2020 is an application for vacating, recalling and/or modification of the order dated April 24, 2020 passed in AS No.2 of 2020.
It is the contention of the defendant in this application that the order dated April 24, 2020 was obtained by suppression, misstatement and fraud. It is their further contention that the plaintiff was neither an endorsee in the bill of lading nor a named consignee and, as such, the plaintiff did not have locus standi to file the said suit. It is further contended that there is a grave urgency in vacating and/or modifying the interim order passed by this Court as the ship is due to receive cargo in some other port but the ex parte order of arrest has been causing severe loss to the defendant.
Mr. Sarkar, learned Senior Advocate appearing on behalf of the plaintiff submits that a written objection to the application has already been filed dealing with the aforementioned points raised by the defendant. It is further stated that the annexures to the plaint could not be filed on the first day and the same has since been sent to this Court along with a copy of the objection. Although the defendant has received a copy of the objection, but the same has not been received by the office or at least sent before this Court. As such, the application for modification and/or vacating the interim order/order of arrest passed cannot be taken up in absence of those documents as the defendant seeks to establish the grounds for vacating the interim order on the basis of those documents.
Under such circumstances, in view of the urgency involved, office is directed to place this matter along with the documents subsequently filed by the plaintiff in response to the application for vacating the order dated 24th April, 2020 filed by the defendant before the Hon'ble Judge having determination on the next available date.
It is, however, pertinent to mention that without prejudice to their rights and contentions, the defendants had offered to secure the claim of the plaintiff by furnishing a bank guarantee amounting to Rs.10 crores. Mr. Sarkar, learned Senior appearing on behalf of the plaintiff argues that the said offer was not acceptable in view of the quantum of damages claimed by the plaintiff. Mr. Sarkar further submits that fraud, suppression, misstatement as have been urged by the defendant in the application for vacating and/or modification were matters of knowledge personal to the defendant and the person who has affirmed the affidavit on behalf of the defendant while filing the application could not be privy to such knowledge and, as such, the said application was not properly verified and affirmed and should be rejected.
However, as this Court is not in a position to decide the merits of this application today, in absence of the records, all points are kept open with regard to maintainability of the application, as also the question of suppression, fraud and misrepresentation raised by the defendants. This Court directs that the matter be placed before the next available Bench i.e. on 30th April, 2020 having determination in the matter along with all records subsequently filed by the plaintiff in support of their contention and also their objection to the application for vacating and/or modification filed by the defendant.
It is also recorded that the undertaking in terms of the order dated April 24, 2020 has been filed before this Court by the plaintiff which is taken on record.
Mr. Ratnanko Banerji, learned Senior Advocate prays for liberty to apply for assignment of the matter to an appropriate Bench to be constituted on April 29, 2020. This Court does not find any reason to grant such liberty as the parties to a proceeding are always at liberty to take appropriate steps in the matter.