1 nms3164-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3164 of 2009 in Suit No. 3599 of 2006 Haresh Petrochem Pvt. Ltd. .. Plaintiffs v/s. Dujodwala Paper Chemicals Ltd. ..Defendants Mr.P.S.Colabawala i/b. M/s. Modekar & Co. for the Plaintiffs. Mr.Birendra Saraf & Mr. Vishal Shriyan, Sandesh Shukla, Swati Sagvekar i/b. Legasis Partners for the Defendants CORAM : R.Y.GANOO, J. DATED : 7th December , 2010 P.C. : 1. This motion is taken out by the defendants for setting aside decree dated 12.3.2009. Parties herein had the benefit of filing affidavits to complete the pleadings. Few facts are required to be stated for the purpose of disposing off this notice of motion. 2. Plaintiffs agreed to deliver to defendants 50 metric tons of goods, more particularly set out in the plaint and the transaction was a high- sea transaction. Bill of Lading was issued as regards 50 metric tons 2 nms3164-09.sxw and it was endorsed in the name of the defendants. This endorsement enabled the defendants to receive full quantity of consignment, namely 50 metric tons. 3. Record shows that the defendants could lift 19.700 metric tons out of total quantity of 50 Metric tons and in so far as the rest of the quantity the plaintiffs created embargo through their group company who was agent of the defendants in the matter of picking up the balance quantity. On account of this embargo, defendants could not collect the balance goods. Suit came to be filed for recovery of cost of 50 metric tons along with interest, as according to the plaintiffs they were entitled to recover the said amount. 4. After having gone through the notice of motion, I am inclined to observe that the defendants have made out a case for setting aside the ex-parte decree. It must be mentioned that the impression was created at the stage of hearing of the suit that the defendants have received full quantity of goods and the relevant correspondence which came to be produced in the course of hearing of this motion, which indicated that the embargo was created upon the defendants 3 nms3164-09.sxw from lifting 30.300 metric tons was not placed before the Court. If the correspondence would have been placed before the court, surely the decree as passed could not have been passed. 5. The aforesaid discussion will show that the decree is required to be set aside and claim of the plaintiffs raised in the suit will have to be decided at the time of trial. 6. From the record one thing is clear that the defendants had the benefit of 19.700 metric tons, the cost of which is Rs.11,27,825/-, Surely the defendants will have to pay this amount. The plaintiffs have demanded interest at the rate of 15% per annum. Since the decree is being set aside , question of interest on Rs.11,27,825/- will have to be left to trial. As of today, Defendants will have to pay some interest on this amount of Rs.11,27,855/-. Taking into consideration attending factors, I am inclined to fix the rate of interest at the rate of 9% per annum to be paid on Rs.11,27,855/- for 2015 days. This interest component turns out to be Rs.5,60,359.08. This will mean that upon deposit of Rs.11,27,825/- towards the cost of 19.700 metric tons and upon deposit of Rs.5,60,359.08 towards interest as stated above in 4 nms3164-09.sxw the office of this Court, the plaintiffs will be able to have this amount of Rs.16,88,184.08 as the plaintiffs had delivered goods weighing 19.700 metric tons and the defendants had the benefit of the same. The rate of interest at 9% p.m. is fixed for the purposes of disposing of notice of motion on ad-hoc basis. If plaintiffs succeed in the suit at what rate they would be entitled to get interest will be decided at the trial. If the defendants deposit the above amount of Rs. 16,88,184/- they will get credit for it at the time of judgment in the suit. In view of the above following order is passed to dispose of the notice of motion. ORDER i. Upon defendants depositing in this Court the sum of Rs. 16,88,184.00 on or before 16.3.2011, the decree dated 12.3.2009 passed by this Court shall stand set aside. Till 16.3.2011 the defendants are free to deposit the aforesaid amount of Rs.16,88,184/- in instalments. However, they should see that the whole amount gets deposited on or before 16.3.2011. If the defendants deposit the aforesaid amount, the plaintiffs will be able to withdraw the same without any security or guarantee as the said amount is towards the costs of the goods namely 19.700 metric tons and interest thereon at 5 nms3164-09.sxw the rate of 9% per annum. If the defendants do not deposit the aforesaid amount of Rs.16,88,184/- on or before 16.3.2011, w.e.f 17.3.2011, the order passed in this motion setting aside the decree dated 12.3.2009 shall not operate and decree dated 12.3.2009 will become operative and plaintiffs would be able to execute the same without any restrictions. Till 16.3.2011 plaintiffs are restrained from executing the decree dated 12.3.2009. If defendants deposit the aforesaid amount of Rs.16,88,184/- the decree shall stand set aside. The parties will go for trial and at trial the court shall decide the rate of interest, which the plaintiffs can recover if at all they succeed and if the plaintiffs are proved to be entitled to get interest more than 9% per annum, the said court shall pass a decree accordingly. It is clarified that this court has not expressed any views on the merits of the matter. Certain facts were placed before the court, which prima facie indicated to this court that by the said correspondence the defendants were prohibited from lifting the goods weighing 30.300 metric tons. That observation was made by the court for the purpose of disposing of the notice of motion. ii) There shall be no order as to costs. Iii) At this stage, learned Counsel appearing on behalf of the 6 nms3164-09.sxw defendants waives service of writ of summons, seeks time to file written statement. Written statement to be filed in the office on or before 16.3.2011. [R.Y.GANOO, J.]