MARGRA INDUSTRIES LTD Vs. MEDITERRANEAN SHIPPING COMPANY

JUDGEMENT

(1.) This appeal under Section 10 of the Delhi High Court Act, 1966 impugns the judgment dated 20.02.2006 of a Single Judge of this Court dismissing the IA No.13116/2000 preferred by the appellant under Order XXXVII Rule 4 of the CPC i.e. for setting aside of the decree dated 17.11.2000 passed against the appellant in CS(OS) No.1444/2000 filed under Order XXXVII of the CPC for failure of the appellant to enter appearance within the prescribed time of the service of the summons for appearance on the appellant. The said decree was for a sum of Rs.60,25,112/- with pendente lite and future interest.

(2.) Notice of this appeal was issued. Vide order dated 18.09.2006, the operation of the impugned judgment and order stayed subject to the appellant depositing 50% of the decreetal amount. The appellant failed to deposit the same and vide order dated 13.12.2006, the stay was vacated. During the pendency of the appeal, the parties were referred to the Mediation and Conciliation Centre of this Court but the same remained unsuccessful. The counsels have been heard.

(3.) The respondent No.1, a shipping line engaged in transportation by sea of goods / cargo in enclosed containers from one destination to another and the respondent No.2 being the agent of the respondent No.1 in India, instituted the suit aforesaid under Order XXXVII of the CPC for recovery of Rs.60,25,112/- with pendente lite and future interest pleading, that the respondent No.1 had been approached at its office in Spain to carry a consignment of rough marble slabs and blocks to Delhi to be delivered to the appellant; that though the respondents transported/shipped the said cargo but owing to the disputes between the appellant and the customs, the said cargo could not be cleared; that the appellant filed W.P.(C) No.7313/1999 in this Court claiming the relief of release of the cargo but which writ petition was dismissed on 11.02.2000; that the appellant filed another writ petition being W.P.(C) No.7314/1999 seeking mandamus directing UOI to undertake the exercise of fixation of reasonable demurrage charges; that though the respondent No.1 was impleaded as a party to the said writ petition but was subsequently deleted therefrom; that the consignment had arrived at ICD, Delhi on 14.01.1999 and the appellant was entitled to five free days for clearing and lifting the cargo and was thereafter liable to pay container charges as per the tariff chart of the respondent No.1; that the appellant failed to de-stuff the container and take delivery of the consignment inspite of repeated requests and reminders; that the appellant in July, 1999 approached the respondents for waiver of detention charges and though the respondents agreed to waive detention charges on payment of agreed amount but the appellant neither paid the same nor de-stuffed the containers; that owing to the same, the respondents were unable to utilize and circulate the containers for their business purposes adversely affecting their business; that in January, 2000 the appellant again approached the respondents seeking waiver of detention charges and an agreement dated 21.01.2000 was entered into between the parties whereunder the respondents agreed to release the goods on payment of agreed amount within the stipulated date and the appellant agreed that upon appellant?s failure to pay the agreed amount by the stipulated date, the container detention charges as prescribed under the Karmahom Conference in respect of the entire period of detention of the consignment shall be payable by the appellant; that though the appellant took the containers to its the factory for de-stuffing and was to return the same within seven days but failed to do so and ultimately out of twelve containers released 8 containers only, illegally, retaining four containers and failed to return the same inspite of reminders. The respondents in Para 25 of the plaint pleaded as under: